Chapter 23

[267]Scheurl,Das gem. deut. Eherecht, 294 ff., forcibly argues that the conception of divorce through magisterial intervention, as opposed to self-divorce, is a mark of Reformation thought. According to Luther, God speaks through the civil magistrate. Hence in case of divorce from the bond of wedlock by judicial decree it is not "man," but God himself, who parts man and wife. Therefore the command of Jesus is not broken. So here we have another illustration of the casuistry necessitated by the appeal to authority.[268]AccordinglyMiltonjustifies Parliament and the clergy in consenting to Henry VIII.'s putting away Anne of Cleves, "whom he could not like after he had been wedded half a year."—"Doctrine and Discipline of Divorce,"Prose Works, III, 266.[269]Cf.Jeaffreson'ssuggestion,Brides and Bridals, II, 337.[270]Ibid., 338. A representative Catholic writer,Rev. William Humphrey, S. J., defending the sacramental doctrine of marriage, transposes Milton's phrase, declaring the woman in paradise and "as she is now" to be the "subordinate equal of man."—Christian Marriage, 16.[271]Cf.Jeaffreson,op. cit., II, 339, 340.[272]Pollock and Maitland,Hist. of Eng. Law, II, 392:Co. Lit., 32a, 33b, 235a.[273]Year Book, 10 Edw. III., fol. 35 (Trin. pl. 24):Pollock and Maitland,op. cit., II, 392.[274]Glanville,Tractatus, VI, 17;Bracton,De legibus, fol. 92, 304.Britton, II, 264, seems to say, though his statement is somewhat confusing, that in case of divorcea mensa et thoro"if verified or not denied, the wife shall not recover any dower." Were not that interpretation of the law in the highest degree improbable, Britton's context might appear to show that such a divorce worked a complete dissolution of marriage. "In the recorded cases it is often difficult to see whether the divorce that is pleaded is a dissolution of marriage; e. g., Note Book, pl. 690. It is believed however thatdivortium, standing by itself, generally points to a divorce [nullification]a vinculo, e. g., in Lit. sec. 380."—Pollock and Maitland,op. cit., II, 392 n. 5.Bishop,Marriage, Divorce, and Separation, I, §§ 1497, 1498 n. 3, appears to think that the "effect of a divorce for adultery ... was to dissolve the marriage" bond, because the guilty woman may "not be heard upon a claim of dower" (Beames,Glanville, 133). But this view is surely wrong, as the researches ofPollock and Maitlandhave finally established:op. cit., II, 372-95. Their results are thus summarized (373): "If however we can not argue that a woman was not married because she can not claim dower, still less can we argue that a union is a marriage because the issue of it will—or is not a marriage because the issue of it will not—be capable of inheriting English land."[275]As by the statute of Westminster, II, c. 34, under Ed. I.:Pollock and Maitland,op. cit., II, 392, 393.[276]The term "voidable" as applied to marriage is still used in various senses besides the special meaning referred to in the text. For a full discussion seeBishop,Marriage, Divorce, and Separation, I, chap. xiii, §§ 252-92.[277]See the excellent discussion of the relation of the spiritual and temporal law in cases of "putative" wedlock byPollock and Maitland,op. cit., II, 373 ff.[278]Ibid., 375;ap. Year Book, 11-12 Ed. III., xx-xxii; for the early period seeGlanville,Tractatus, VI, 17;Bracton,De legibus, fol. 63.Cf.alsoWoolsey,Divorce124.[279]Pollock and Maitland,op. cit., II, 375 n. 3.Cf.Blackstone,Commentaries, I, 440;Co. Lit., 233, 235; alsoGlasson,Hist. du droit, IV, 152;Burn,Ecc. Law, II, 501b-501c.[280]Woolsey,op. cit., 124.[281]SeeFirst Report of Commissioners(affinity), 1847-48, v; alsoHammick,Marriage Law, 32. Originally the decree might be rendered after the death of one or both of the persons, without, of course, affecting the status of the children.[282]See Pridev.The Earls of Bath and Montague (1695): in 1Salkeld'sReports, 120, declaring that the reason why the spiritual court cannot give sentence to annul a marriage after the death of the parties is "because sentence is given onlypro salute animae, and then it is too late."Cf.Geary,Marriage and Family Relations, 10, 11;Blackstone,Commentaries, I, 444;Jeaffreson,Brides and Bridals, II, 262-64.[283]Harrisv.Hicks (1694): in 2Salkeld'sReports, 548, where such consort may be proceeded against for incest. "Our forefathers, with exquisite inconsistency, were of opinion that the survivor might (for his or her soul's good) be proceeded against and punished in a spiritual court, for having committed sin in respect of the marriage which might not be adjudged a sinful nullity."—Jeaffreson,op. cit., II, 264.Cf.Geary,op. cit., 10, 11, 32.[284]5 and 6 W. IV., c. 54; also inHammick,Marriage Law, 281. CompareHansard'sParl. Debates, 3d series, XXXVIII, 203-7; XXX, 661, 662. In general, seeGeary,op. cit., 10, 11, 32;Burn,Ecc. Law, II, 501c-501e;Hammick,op. cit., 32, 33, 23;Ernst,Marriage and Divorce, 183, 184;Luckock,Hist. of Marriage, 300-307;Jeaffreson,op. cit., II, 264-66;Bishop,Marriage, Divorce, and Separation, I, §§ 288, 289, 753;Tracts Issued by the Mar. Law Defence Union, II, 91-104.The act extends to Ireland. "By the law of Scotland the distinction between void and voidable marriages was never recognized, all marriages within the prohibited degrees being voidab initio."—Hammick,op. cit., 33 n.a.[285]This liberal exception, mainly in favor of existing unions with a deceased wife's sister, is of course denounced by writers such asLuckock,op. cit., 305, as a "mischievous concession and compromise principle."[286]For the special senses in which the term is used see the discussion ofBishop,op. cit., I, §§ 252-92, already cited.[287]The only surviving canonical impediment for which a marriage may be voidable, but not void, is impotence. The same principle is also applied to marriages secured by force:Geary,op. cit., 34, 203 ff., 212;Hammick,Marriage Law, 48, 49.[288]Marriage with a deceased wife's sister or a husband's brother is included in the table of forbidden degrees approved by Archbishop Parker in 1563. It purports to be based on the Levitical code; and it was accepted as the law of the English church by the ninety-ninth canon of 1603:Hammick,op. cit., 32 ff., 350;Tracts Issued by the Mar. Law Defence Union, I, 51 ff.[289]Jeaffreson,op. cit., II, 258-66. These marriages were called "Altona marriages" (from Altona in Denmark, where they were sometimes solemnized), and are the counterpart of the "Gretna marriages," except that the latter were valid and the former were not:ibid., II, 259, 260. The case of Brookv.Brook (House of Lords, March, 1861) grew out of a marriage celebrated near Altona, June, 1850:Tracts Issued by the Mar. Law Defence Union, II, 313 ff.[290]Luckock,op. cit., 303, 304, who holds that sometimes by such collusion the "ends of justice were defeated, and persons defrauded of their rights."Cf.the remarks to this effect of Lord Selborne in the House of Lords, 1873, inTracts Issued by the Mar. Law Defence Union, II, 168.[291]Luckock,op. cit., 304.[292]First Report of the Commission of 1847-8, v, vi, xii;Hammick,Marriage Law, 33 n.b;Geary,Marriage and Family Relations, 11, 30 n. 3. SeeHuth,Marriage of Near Kin, 129 n. 1.According to theReport(viii), since the Lyndhurst act (1835) there had been 1,364 marriages within the prohibited degrees, of which nine-tenths were with a deceased wife's sister. Only in 88 cases had the act prevented an intended marriage; and of these 32 resulted in open cohabitation. Ten of the 88 cases were among the lower classes. See the epitome of evidence, xvii-xxxix; the minutes of evidence, 1-120; and the interesting letters and papers in the Appendix, 121-65.[293]Lecky,Democracy and Liberty, II, 214. There is already an immense literature relating to the question of marriage with a deceased wife's sister. The most complete bibliography of the subject is comprised in Mr.Huth's"Bibliography of Works on the Impediments to Marriage" appended to hisMarriage of Near Kin, 393-449; also in part previously published by theIndex Society, IV, 1st App. to 1st Report. In theChurch Quarterly Review, XV, 426, may be found a table showing the results of the various attempts to pass the deceased wife's sister's bill during the period 1842-82.The absurdities and anomalies of the system are described in his trenchant manner byLecky,op. cit., II, 214-23. With his account should be read the able discussion byHuth,op. cit., 124-26. The peculiar arguments of the opponents of a change in the law, mainly resting upon the alleged authority of the Old Testament, are best seen in the two volumes ofTracts Issued by the Mar. Law Defence Union(London, 1889); while the antidote may be found inT. Paynter Allen'sOpinions of the Hebrew and Greek Professors of the European Universities(London, 1882), prepared for the Marriage Law Reform Association. The speeches in the two houses of Parliament in 1849, 1851, 1855, 1873, 1883, 1895, and whenever a bill on the subject has been under consideration, may of course be found inHansard'sParliamentary Debates; and theReport of the Royal Commissionof 1848 (London, 1848) is especially important. A strong partisan in favor of the existing law isLuckock,Hist. of Marriage, Part II, 213 ff., particularly 250 ff., 292 ff., 300 ff. For his and similar arguments from the standpoint of Hebrew law a partial remedy, on the homeopathic plan, is afforded by the curious essay ofRev. George Zabriskie Gray,Husband and Wife(2d ed., Boston, 1886). Starting with the scriptural premise that man and wife are "one flesh," not "by his becoming part of her flesh, nor by both forming a new flesh, but by her entering into his flesh," the author, arguing with an ingenuity which would have done credit to Peter Lombard in his palmiest days, reaches the triumphant conclusion that a widower may properly marry his sister-in-law. In the same way he shows that by divine intent a woman may not divorce her husband under any circumstances, for "a member can not put away the head" (90); though she may "leave" him—secure a separationa mensa et thoro—if he is "cruel or unclean" (100).On the general controversy see especiallyColloquii über die Frage: Ob Gott verboten oder zugelassen habe dass einer seines verstorbenen Weibes Schwester heyraten möge(Oettingen [1681]), 12 ff.; andKettner(L.F.E.),Judicia und Responsa von der Ehe mit des Weibes Schwester(Quedlinburg [ca.1710]), 1 ff., neither of which appears inHuth'slist; alsoZeidler,De mat. cum defunctae uxoris sorore, published with hisDe polygamia(Helmstadt, 1698); andMichaelisAbhandlung von den Ehegesetzen Mosis(Göttingen, 1768). Among the vast number of tracts and books on the subject for England a few of the more important areKeble,Against Profane Dealing with Holy Matrimony(Oxford, 1849);Foster,Review of the Law(London, 1847);Pusey,Letter on the proposed Change in the Laws prohib. Mar. between Near Kin(Oxford, 1842);idem,Evidence given before the Commission(Oxford, 1849);idem,God's Prohibition(Oxford and London, 1860);Binney,The Men of Glasgow and the Women of Scotland(London, [1850]);Gibson,Mar. Aff. Question(Edinburgh, 1854);Duke,The Question of Incest(2d ed., London, 1883). This question, with others, is also dealt with byFry,The Case of Mar. between Near Kindred(London, 1756, 1773);Alleyne,The Legal Degrees of Mar.(London, 1774, 1775);Macrae,Script. Law of Mar.(2d ed., Edinburgh, 1862);Meyer,Uxor christiana(Amsterdam, 1688), 2d dissertation; andKettner(J. J.),Zwei Abhandlungen(Leipzig, 1780), 67 ff. For discussion of related questions of kinship compareButler,Marriage of Cousin Germans(Oxford, 1619); the same in Latin under the leading titleSuggeneiainFlorens,De nuptiis consobrinarum(Frankfort, 1643);Dugard,Marriage of Cousin Germans(Oxford, 1673);Johnstoun,Juridical Dissertation(London, 1734);Paton,Mar. with a Dec. Brother's Wife(London, 1869), and in general readObservations on the Mar. Laws, 126 ff.;Lawrence, inRevue de droit int., II, 65 ff.;Jeaffreson,Brides and Bridals, II, 258 ff.;Hammick,Marriage Law, 23, 30-40;Geary,Mar. and Fam. Rel., II, 30-32;Wharton,Exposition of the Laws, 200, note;Bishop,Mar., Div. and Sep., I, §§736 ff., 747, 750, 752, 753, 875 ff.;Law Mag., XXI, 371-82 (May, 1839);Quarterly Review, LXXXV, 156-82 (July, 1849);Ecc. Review, new series, II, 735-48.[294]Lecky,Democracy and Liberty, II, 214, who cites "the very candid confession of the Bishop of Winchester":Hansard'sDebates, 3d series, CCLXXX, 1671.[295]Lecky,op. cit., II, 215, citingT. Paynter Allen'spamphlet already mentioned. There is a weak criticism of this work in theTracts Issued by the Mar. Law Defence Union, I, 177-96. On its high authority seeHuth,Mar. of Near Kin, 129."It is certain that the Old Testament does not directly condemn such marriages, and it is very doubtful whether it condemns them even by inference. It is not at all doubtful that it sanctions, and sometimes eminently blesses, polygamy; that it strictly enjoins that, in every case of adultery, both parties should be put to death; that it makes it a capital offence for a man to have intercourse with a woman who, though unmarried, was betrothed to another; that it commands that a man who had defiled an unbetrothed virgin should be compelled to marry her; that it forbids marriage with aliens in religion; that it not only permits, but enjoins a man to marry the widow of his deceased brother if she had no children, or only daughters, which could scarcely be the case if such marriages of affinity were in their own nature incestuous. It is not easy to understand the process of mind which, among all these provisions of the Jewish code, selects a very doubtful inference condemnatory of marriage with the deceased wife's sister as alone binding on the conscience of the Imperial Parliament."—Lecky,op. cit., II, 216, 217.[296]Lecky,op. cit., II, 215;cf.Allen,Opinions, 36.[297]Russia appears to be the only important European exception:Huth,op. cit., 130, 131.[298]For abundant proofs of what Mr. Lecky would call the "insularity" of the English mind in this regard, see the mass of matter—letters, speeches, and declarations of prelates, noblemen, and private persons—contained in that marvelous monument of mediævalism, the two volumes ofTracts Issued by the Mar. Law Defence Union. Mr. Gladstone's speeches are a conspicuous example:ibid., II, 174 ff.[299]Hansard, 3d series, CCLXXX, 1675. This was Lord Hatherley: seeTracts Issued by Mar. Law Defence Union, II, 161, 162, where he repeats the statement. Compare the views of the bishop of Exeter, in the sameTracts, I, 19, who predicts an orgy of incest if the law be changed: "At the present, no doubt, there is a strong natural instinct against the marriage of a man with his own mother. It is awful to think of. The marriage of a man with his own blood sister is fearful. But this instinctive protection of our domestic purity, how far does it go if we begin to pare the edges off." The Metropolitan (1880) indulges in like forebodings:ibid., I, 97, 98.[300]Lecky,Democracy and Liberty, II, 221-23.[301]The only special work on parliamentary divorce is that contained inMacqueen'sPractical Treatise, 463-68, comprising a clear historical "Introduction;" the "Action at Law;" the "Petition and Bill;" the "General Preparation of the Case;" the "Second Reading and Subsequent Proceedings;" and an interesting "Selection of Leading Cases." See alsoLaw Review, I, 362 ff.;Lecky,Democracy and Liberty, II, 200-202;Geary,Marriage and Family Relations, 17, 18;Hammick,Marriage Law, 18;Shelford,Law of Marriage and Divorce, 373-79;Bishop,Marriage, Divorce, and Separation, I, §§ 1422 ff.;Woolsey,Divorce, 172-74;Jeaffreson,Brides and Bridals, II, 340-44;Luckock,Hist. of Marriage, 178-81;Wharton,Exposition of Laws Relating to Women, 471-84;Glasson,Le marriage civil et le divorce, 318, 319;Burn,Ecc. Law, II, 503b, 503c;Hirschfeld, "The Law of Divorce in England and in Germany,"Law Quarterly Review, XIII, 398, 399;Montmorency, "The Changing Status of a Married Woman,"ibid., 191;Plea for an Alt. in the Divorce Laws, 5 ff.;Scribner,Treatise on the Law of Dower, II, 542 ff.; and especially the full account byMorgan,Marriage, Adultery, and Divorce, II, 237-313.[302]Geary,Marriage and Family Relations, 17:Rot. Parl., 15 H. VI, Nos. 14, 15.[303]Macqueen,Practical Treatise, 469.Cf.n. 4, p. 80, above.[304]The act, being private, was never printed in the collections of statutes; but a writer in theLaw Review, I, 363 n. 1, publishes it from the "House copy in the parliament office."Cf.Macqueen,op. cit., 471-73, 551-61, who discusses the case, giving Bishop Cozen's argument, but he does not appear to have had a copy of the statute before him. SeeEvelyn,Diary(London, 1878), II, 49 n. 3, who declares that the Roos divorce bill was carried under influence of corrupt political motives; and he is followed byKeble,Sequel to the Argument, 212 ff.; andMorgan,Marriage, Adultery, and Divorce, II, 237 ff. For a number of instructive details relating to this case, extending over the years 1662-70, taken from the manuscripts of the House of Lords, seeReports of Hist. MSS. Com., VII, 165, 166; VIII, 102a, 117a, App. I, 141a; XII, App. V, 8; App. VII, 69. The last entry runs: "1669, March 14. News letter. Lord Roos presses for liberty to marry again, urging precedent of Marquess of Northampton. All the bishops oppose except the B. of Durham." It is here noted that the act finally passed April 11, 1670; 22 Car. II., 1, Private Acts. The case gave rise toThe Case of Divorce and Re-Marriage thereupon(London, 1673), in which a "Reverend Prelate of the Church of England" denies, and a "private Gentleman" maintains, the right of remarriage on scriptural authority.[305]On these two cases seeMacqueen,op. cit., 473, 562-76; andLaw Review, I, 364. The proceedings in the Norfolk case are contained in Vol. II, 59-324, appended toArchbishop Abbot'sThe Case of Impotency; also inHowell'sState Trials, XII, 883-948; and in part in theReports of Hist. MSS. Com., XIV, 17-27, 278, where, in addition, arguments of the counsel are given. Sir W. Williams, counsel for the duchess, calls this case the "first precedent."[306]Macqueen,op. cit., 474, 496;Luckock,Hist. of Marriage, 179, note;Wharton,Exposition of Laws rel. to Women, 471, 472;Morgan,Marriage, Adultery, and Divorce, II, 244 ff. The "earliest specimen of a dissolving statute passed by the Legislature,aftersentence of divorce in the ecclesiastical court" is the "Act to dissolve the marriage of Ralph Box with Elizabeth Eyre, and to enable him to marry again," 1701. This form was followed ever after:Law Review, I, 364, 365.[307]Since about 1800:Macqueen,op. cit., 489.Cf.Wharton,op. cit., 472, 483;Glasson,Le marriage civil et le divorce, 318. For examples of these actions for "criminal conversation" seeCases of Divorce(London, 1715), 1 ff. (Feilding), 41 ff. (Dormer); andCrim. Con. Actions and Trials, 10 ff., containing a good historical introduction.[308]Law Review, I, 364;Macqueen,op. cit., 473.[309]Macqueen,op. cit., 550.[310]Plea for an Alt. in the Divorce Laws, 5, referring to the security required by the canons of 1603.[311]Haggard,Consistory Reports, 120;Macqueen,op. cit., 474.[312]Macqueen,op. cit., 473, 474.[313]The first three cases are those of Mrs. Addison, 1801; Mrs. Turton, 1831; and Mrs. Battersby, 1840:Macqueen,op. cit., 474-80, 594-98, 657, 658; alsoLaw Review, I, 371; andLecky,Democracy and Liberty, II, 200, 201. There appears to have been a fourth case:Geary,Marriage and Family Relations, 18; and in several instances Parliament interfered by bill to nullify marriage or to grant separationa mensa:Macqueen,op. cit., 475, note.[314]The cases of Tewsh, 1805; and Mrs. Moffat, 1832:Macqueen,op. cit., 480, 482, 602-4, 658-60. These are discussed inLaw Review, I, 371-74. Lord Chancellor Brougham opposed Mrs. Moffat's bill; but later he took the opposite and more liberal view:Brougham,Speeches, III, 446.[315]"He said, confusion of progeny constitutes the essence of the crime; and therefore a woman who breaks her marriage vow is much more criminal than a man who does it. A man, to be sure, is criminal in the sight of God, but he does not do his wife any material injury if he does not insult her; if, for instance, hesteals privatelyto her chambermaid. Sir, a wife ought not greatly to resent this. I would not receive home a daughter who had run away from her husband on that account. A wife should study to retain her husband by more attention to please him."—Boswell,Life of Johnson, III, 46 (ed. 1835). Some recent writers, who ought to know better, indulge in similar sophistry;cf.Nisbet,Marriage and Heredity, 18 ff.;Ap Richard,Marriage and Divorce, 25, 34, 35.[316]Boswell,Life of Johnson, VII, 288. For discussion of Dr. Johnson's philosophy seeJeaffreson,Brides and Bridals, I, 338, 339; II, 278-88;Macqueen,op. cit., 482, 483;Law Review, I, 369, 370.[317]Sixty between 1715 and 1775; 14 between 1775 and 1780; 110 between 1800 and 1852:Geary,Marriage and Family Relations, 18;Morgan,Marriage, Adultery, and Divorce, II, 239, 240;Report of Commission(divorce), 1852-53.[318]"One witness (if credible) issufficientevidence to the jury of any single fact, though undoubtedly the concurrence of two or more corroborates the proof. Yet our law considers that there are many transactions to which only one person is privy; and therefore does notalwaysdemand the testimony of two which the civil [and ecclesiastical] law universally requires. 'Unius responsio testis omnino non audiatur.' To extricate itself out of such absurdity, the modern practice of the civil law courts has plunged itself into another. For, as they do not allow a less number than two witnesses to beplena probatio, they call the testimony of one, though never so clear and positive,semi-plena probatioonly, on which no sentence can be founded. To make up, therefore, the necessary complement of witnesses, when they have one only to a single fact, they admit the party himself (plaintiff or defendant) to be examined in his own behalf; and administer to him what is called thesuppletoryoath; and if his evidence happens to be in his own favour, this immediately converts the half proof into a whole one."—Blackstone,Commentaries, III, 370.Cf.alsoBishop,Marriage, Divorce, and Separation, II, § 456;Law Review, I, 378, 379.[319]Law Review, I, 379, 380. See the illustrative case of Evansv.Evans inNotes of Cases in Ecc. and Mar. Courts, II (1842-43), 470-76.Cf.Bishop,op. cit., I, § 1532;Burn,Ecc. Law, II, 503e-503g.[320]According to the writer in theLaw Review, I, 367, two thousand pounds is not an overcharged estimate. "In some cases even the preliminary proceedings in Doctors' Commons will cost nearly as much. From the evidence of Mr. Swaby, the Registrar of the Admiralty Court, before the Select Committee, p. 33, it appears that even in an ordinary litigation, with moderate opposition, and where the witnesses are at hand, the expense of obtaining a definitive sentence of divorceà mensâmay reasonably amount to 1700l.; and this merely to lay a foundation for the proceedings before Parliament, and quite independently of the action at law. It is well known that Lord Ellenborough's divorce cost 5000l."—Ibid., 367 n. 6. At the same time the cost of a divorcea vinculoin Scotland was only 25l.:ibid., 367, 368. But in theEvidence before the Select Committee of the House of Lords, 1844, 39, the expense of getting a full divorce is then put at about 800 or 900 pounds.[321]Lecky,Democracy and Liberty, II, 201, 202; also cited byJeaffreson,Brides and Bridals, II, 342, 343, note. For this case seeMorgan,Marriage, Adultery, and Divorce, II, 234-313.On the law before 1857 seePoynter,Doctrine and Practice of Ecc. Courts in Doctors' Commons, 68 ff. Against the proposed alteration isKeble,Sequel of the Argument against immediately repealing the Laws which treat the Nuptial Bond as indissoluble(Oxford, 1857), 196-220; while strongly in favor of a reform are the anonymous authors ofPlea for an Alt. in the Divorce Laws(London, 1831), 1 ff.; andObservations on the Marriage Laws(London, 1815); as well as much earlierSalmon,Crit. Essay Concerning Marriage(London, 1724), 109 ff.[322]20 and 21 Vict., c. 85:Statutes at Large, XCVII, 532-46. In general on the present English law of divorce seeGlasson,Le mariage civil et le divorce, 317-27;Harrison,The Laws of Probate and Divorce, 115 ff.;Geary,Marriage and Family Relations, 237-430;Browning,Practice and Procedure, 1 ff.;Lecky,Democracy and Liberty, II, 202 ff.;Thwing,The Family, 194;Ernst,Marriage and Divorce, 55 ff.;Woolsey,Divorce, 174-78;Glasson,Hist. du droit, VI, 177-84;Neubauer, "Ehescheidung im Auslande,"ZVR., VII, 297-99;Montmorency, "The Changing Status of a Married Woman,"Law Quart. Rev., XIII, 189-92;Hirschfeld, "The Law of Divorce in England and in Germany,"ibid., XIII, 399-405.[323]Hansard'sParl. Debates, 3d series, CXLIV-VIII. "The discussions on the subject were curious as showing how powerfully, even to that late period, theological methods of thought and reasoning prevailed in the British Legislature. There were speeches that would seem more in place in a church council than in a lay Parliament."—Lecky,Democracy and Liberty, II, 202.[324]36 and 37 Vict., c. 66, secs. 16, 31.[325]SeeGeary,Marriage and Family Relations, 238 ff., for the jurisdiction and procedure of these courts.Cf.alsoHarrison,The Laws of Probate and Divorce, 191 ff.[326]20 and 21 Vict., c. 85, sec. 27:Statutes at Large, XCVII, 537. But various "absolute" or "discretionary" bars may be pleaded against a decree. On these seeGeary,op. cit., 267-304;Harrison,op. cit., 130 ff.;Woolsey,Divorce, 175.[327]Hansard,Parl. Debates, 3d series, CXLII, 394 ff. See the suggestive paper ofHirschfeld, "The Law of Divorce in England and in Germany,"Law Quart. Review, XIII, 400-403, giving illustrative passages from the debates relating to the unfair treatment of the wife.[328]Hansard,op. cit., 3d series, CXLVII, 1545.[329]Thus adultery, if long persisted in, ripens into "desertion." For a detailed discussion of "cruelty" and "desertion" according to definition and judicial precedent, and particularly on "constructive" and "moral" cruelty, seeGeary,op. cit., 323 ff., 330 ff.Cf.Bishop,Marriage, Divorce, and Separation, I, §§ 1524 ff., especially 1532;Harrison,op. cit., 138 ff.[330]"From the meaning of pain inflicted on the body it [cruelty] has in recent years attained the extended meaning that includes pain inflicted on the mind. Coldness and neglect may now almost of themselves constitute such cruelty as, coupled with misconduct, will give the right of divorce. The time may very reasonably be looked forward to when almost every act of misconduct will in itself be considered to convey such mental agony to the innocent party as to constitute the cruelty requisite under the Act of 1857. The difference already is very marked when we compare the 'cruelty' of today with the thrashing by the husband that constituted cruelty thirty years ago. Probably in those days the doctrine of a husband's right to administer physical correction to his wife was not entirely discredited. Today it is possible for a woman, with celerity and at little cost, to separate herself from her husband if she be able to prove that he is either a brute or a monster. Forty years ago the vast majority of women were indissolubly tied to their husbands though the whole world knew them to be both brutes and monsters. It is a great change in a short period."—Montmorency, "The Changing Status of a Married Woman,"Law Quart. Review, XIII, 191, 192.

[268]AccordinglyMiltonjustifies Parliament and the clergy in consenting to Henry VIII.'s putting away Anne of Cleves, "whom he could not like after he had been wedded half a year."—"Doctrine and Discipline of Divorce,"Prose Works, III, 266.

[269]Cf.Jeaffreson'ssuggestion,Brides and Bridals, II, 337.

[270]Ibid., 338. A representative Catholic writer,Rev. William Humphrey, S. J., defending the sacramental doctrine of marriage, transposes Milton's phrase, declaring the woman in paradise and "as she is now" to be the "subordinate equal of man."—Christian Marriage, 16.

[271]Cf.Jeaffreson,op. cit., II, 339, 340.

[272]Pollock and Maitland,Hist. of Eng. Law, II, 392:Co. Lit., 32a, 33b, 235a.

[273]Year Book, 10 Edw. III., fol. 35 (Trin. pl. 24):Pollock and Maitland,op. cit., II, 392.

[274]Glanville,Tractatus, VI, 17;Bracton,De legibus, fol. 92, 304.Britton, II, 264, seems to say, though his statement is somewhat confusing, that in case of divorcea mensa et thoro"if verified or not denied, the wife shall not recover any dower." Were not that interpretation of the law in the highest degree improbable, Britton's context might appear to show that such a divorce worked a complete dissolution of marriage. "In the recorded cases it is often difficult to see whether the divorce that is pleaded is a dissolution of marriage; e. g., Note Book, pl. 690. It is believed however thatdivortium, standing by itself, generally points to a divorce [nullification]a vinculo, e. g., in Lit. sec. 380."—Pollock and Maitland,op. cit., II, 392 n. 5.Bishop,Marriage, Divorce, and Separation, I, §§ 1497, 1498 n. 3, appears to think that the "effect of a divorce for adultery ... was to dissolve the marriage" bond, because the guilty woman may "not be heard upon a claim of dower" (Beames,Glanville, 133). But this view is surely wrong, as the researches ofPollock and Maitlandhave finally established:op. cit., II, 372-95. Their results are thus summarized (373): "If however we can not argue that a woman was not married because she can not claim dower, still less can we argue that a union is a marriage because the issue of it will—or is not a marriage because the issue of it will not—be capable of inheriting English land."

[275]As by the statute of Westminster, II, c. 34, under Ed. I.:Pollock and Maitland,op. cit., II, 392, 393.

[276]The term "voidable" as applied to marriage is still used in various senses besides the special meaning referred to in the text. For a full discussion seeBishop,Marriage, Divorce, and Separation, I, chap. xiii, §§ 252-92.

[277]See the excellent discussion of the relation of the spiritual and temporal law in cases of "putative" wedlock byPollock and Maitland,op. cit., II, 373 ff.

[278]Ibid., 375;ap. Year Book, 11-12 Ed. III., xx-xxii; for the early period seeGlanville,Tractatus, VI, 17;Bracton,De legibus, fol. 63.Cf.alsoWoolsey,Divorce124.

[279]Pollock and Maitland,op. cit., II, 375 n. 3.Cf.Blackstone,Commentaries, I, 440;Co. Lit., 233, 235; alsoGlasson,Hist. du droit, IV, 152;Burn,Ecc. Law, II, 501b-501c.

[280]Woolsey,op. cit., 124.

[281]SeeFirst Report of Commissioners(affinity), 1847-48, v; alsoHammick,Marriage Law, 32. Originally the decree might be rendered after the death of one or both of the persons, without, of course, affecting the status of the children.

[282]See Pridev.The Earls of Bath and Montague (1695): in 1Salkeld'sReports, 120, declaring that the reason why the spiritual court cannot give sentence to annul a marriage after the death of the parties is "because sentence is given onlypro salute animae, and then it is too late."Cf.Geary,Marriage and Family Relations, 10, 11;Blackstone,Commentaries, I, 444;Jeaffreson,Brides and Bridals, II, 262-64.

[283]Harrisv.Hicks (1694): in 2Salkeld'sReports, 548, where such consort may be proceeded against for incest. "Our forefathers, with exquisite inconsistency, were of opinion that the survivor might (for his or her soul's good) be proceeded against and punished in a spiritual court, for having committed sin in respect of the marriage which might not be adjudged a sinful nullity."—Jeaffreson,op. cit., II, 264.Cf.Geary,op. cit., 10, 11, 32.

[284]5 and 6 W. IV., c. 54; also inHammick,Marriage Law, 281. CompareHansard'sParl. Debates, 3d series, XXXVIII, 203-7; XXX, 661, 662. In general, seeGeary,op. cit., 10, 11, 32;Burn,Ecc. Law, II, 501c-501e;Hammick,op. cit., 32, 33, 23;Ernst,Marriage and Divorce, 183, 184;Luckock,Hist. of Marriage, 300-307;Jeaffreson,op. cit., II, 264-66;Bishop,Marriage, Divorce, and Separation, I, §§ 288, 289, 753;Tracts Issued by the Mar. Law Defence Union, II, 91-104.The act extends to Ireland. "By the law of Scotland the distinction between void and voidable marriages was never recognized, all marriages within the prohibited degrees being voidab initio."—Hammick,op. cit., 33 n.a.

The act extends to Ireland. "By the law of Scotland the distinction between void and voidable marriages was never recognized, all marriages within the prohibited degrees being voidab initio."—Hammick,op. cit., 33 n.a.

[285]This liberal exception, mainly in favor of existing unions with a deceased wife's sister, is of course denounced by writers such asLuckock,op. cit., 305, as a "mischievous concession and compromise principle."

[286]For the special senses in which the term is used see the discussion ofBishop,op. cit., I, §§ 252-92, already cited.

[287]The only surviving canonical impediment for which a marriage may be voidable, but not void, is impotence. The same principle is also applied to marriages secured by force:Geary,op. cit., 34, 203 ff., 212;Hammick,Marriage Law, 48, 49.

[288]Marriage with a deceased wife's sister or a husband's brother is included in the table of forbidden degrees approved by Archbishop Parker in 1563. It purports to be based on the Levitical code; and it was accepted as the law of the English church by the ninety-ninth canon of 1603:Hammick,op. cit., 32 ff., 350;Tracts Issued by the Mar. Law Defence Union, I, 51 ff.

[289]Jeaffreson,op. cit., II, 258-66. These marriages were called "Altona marriages" (from Altona in Denmark, where they were sometimes solemnized), and are the counterpart of the "Gretna marriages," except that the latter were valid and the former were not:ibid., II, 259, 260. The case of Brookv.Brook (House of Lords, March, 1861) grew out of a marriage celebrated near Altona, June, 1850:Tracts Issued by the Mar. Law Defence Union, II, 313 ff.

[290]Luckock,op. cit., 303, 304, who holds that sometimes by such collusion the "ends of justice were defeated, and persons defrauded of their rights."Cf.the remarks to this effect of Lord Selborne in the House of Lords, 1873, inTracts Issued by the Mar. Law Defence Union, II, 168.

[291]Luckock,op. cit., 304.

[292]First Report of the Commission of 1847-8, v, vi, xii;Hammick,Marriage Law, 33 n.b;Geary,Marriage and Family Relations, 11, 30 n. 3. SeeHuth,Marriage of Near Kin, 129 n. 1.According to theReport(viii), since the Lyndhurst act (1835) there had been 1,364 marriages within the prohibited degrees, of which nine-tenths were with a deceased wife's sister. Only in 88 cases had the act prevented an intended marriage; and of these 32 resulted in open cohabitation. Ten of the 88 cases were among the lower classes. See the epitome of evidence, xvii-xxxix; the minutes of evidence, 1-120; and the interesting letters and papers in the Appendix, 121-65.

[292]First Report of the Commission of 1847-8, v, vi, xii;Hammick,Marriage Law, 33 n.b;Geary,Marriage and Family Relations, 11, 30 n. 3. SeeHuth,Marriage of Near Kin, 129 n. 1.

According to theReport(viii), since the Lyndhurst act (1835) there had been 1,364 marriages within the prohibited degrees, of which nine-tenths were with a deceased wife's sister. Only in 88 cases had the act prevented an intended marriage; and of these 32 resulted in open cohabitation. Ten of the 88 cases were among the lower classes. See the epitome of evidence, xvii-xxxix; the minutes of evidence, 1-120; and the interesting letters and papers in the Appendix, 121-65.

[293]Lecky,Democracy and Liberty, II, 214. There is already an immense literature relating to the question of marriage with a deceased wife's sister. The most complete bibliography of the subject is comprised in Mr.Huth's"Bibliography of Works on the Impediments to Marriage" appended to hisMarriage of Near Kin, 393-449; also in part previously published by theIndex Society, IV, 1st App. to 1st Report. In theChurch Quarterly Review, XV, 426, may be found a table showing the results of the various attempts to pass the deceased wife's sister's bill during the period 1842-82.The absurdities and anomalies of the system are described in his trenchant manner byLecky,op. cit., II, 214-23. With his account should be read the able discussion byHuth,op. cit., 124-26. The peculiar arguments of the opponents of a change in the law, mainly resting upon the alleged authority of the Old Testament, are best seen in the two volumes ofTracts Issued by the Mar. Law Defence Union(London, 1889); while the antidote may be found inT. Paynter Allen'sOpinions of the Hebrew and Greek Professors of the European Universities(London, 1882), prepared for the Marriage Law Reform Association. The speeches in the two houses of Parliament in 1849, 1851, 1855, 1873, 1883, 1895, and whenever a bill on the subject has been under consideration, may of course be found inHansard'sParliamentary Debates; and theReport of the Royal Commissionof 1848 (London, 1848) is especially important. A strong partisan in favor of the existing law isLuckock,Hist. of Marriage, Part II, 213 ff., particularly 250 ff., 292 ff., 300 ff. For his and similar arguments from the standpoint of Hebrew law a partial remedy, on the homeopathic plan, is afforded by the curious essay ofRev. George Zabriskie Gray,Husband and Wife(2d ed., Boston, 1886). Starting with the scriptural premise that man and wife are "one flesh," not "by his becoming part of her flesh, nor by both forming a new flesh, but by her entering into his flesh," the author, arguing with an ingenuity which would have done credit to Peter Lombard in his palmiest days, reaches the triumphant conclusion that a widower may properly marry his sister-in-law. In the same way he shows that by divine intent a woman may not divorce her husband under any circumstances, for "a member can not put away the head" (90); though she may "leave" him—secure a separationa mensa et thoro—if he is "cruel or unclean" (100).On the general controversy see especiallyColloquii über die Frage: Ob Gott verboten oder zugelassen habe dass einer seines verstorbenen Weibes Schwester heyraten möge(Oettingen [1681]), 12 ff.; andKettner(L.F.E.),Judicia und Responsa von der Ehe mit des Weibes Schwester(Quedlinburg [ca.1710]), 1 ff., neither of which appears inHuth'slist; alsoZeidler,De mat. cum defunctae uxoris sorore, published with hisDe polygamia(Helmstadt, 1698); andMichaelisAbhandlung von den Ehegesetzen Mosis(Göttingen, 1768). Among the vast number of tracts and books on the subject for England a few of the more important areKeble,Against Profane Dealing with Holy Matrimony(Oxford, 1849);Foster,Review of the Law(London, 1847);Pusey,Letter on the proposed Change in the Laws prohib. Mar. between Near Kin(Oxford, 1842);idem,Evidence given before the Commission(Oxford, 1849);idem,God's Prohibition(Oxford and London, 1860);Binney,The Men of Glasgow and the Women of Scotland(London, [1850]);Gibson,Mar. Aff. Question(Edinburgh, 1854);Duke,The Question of Incest(2d ed., London, 1883). This question, with others, is also dealt with byFry,The Case of Mar. between Near Kindred(London, 1756, 1773);Alleyne,The Legal Degrees of Mar.(London, 1774, 1775);Macrae,Script. Law of Mar.(2d ed., Edinburgh, 1862);Meyer,Uxor christiana(Amsterdam, 1688), 2d dissertation; andKettner(J. J.),Zwei Abhandlungen(Leipzig, 1780), 67 ff. For discussion of related questions of kinship compareButler,Marriage of Cousin Germans(Oxford, 1619); the same in Latin under the leading titleSuggeneiainFlorens,De nuptiis consobrinarum(Frankfort, 1643);Dugard,Marriage of Cousin Germans(Oxford, 1673);Johnstoun,Juridical Dissertation(London, 1734);Paton,Mar. with a Dec. Brother's Wife(London, 1869), and in general readObservations on the Mar. Laws, 126 ff.;Lawrence, inRevue de droit int., II, 65 ff.;Jeaffreson,Brides and Bridals, II, 258 ff.;Hammick,Marriage Law, 23, 30-40;Geary,Mar. and Fam. Rel., II, 30-32;Wharton,Exposition of the Laws, 200, note;Bishop,Mar., Div. and Sep., I, §§736 ff., 747, 750, 752, 753, 875 ff.;Law Mag., XXI, 371-82 (May, 1839);Quarterly Review, LXXXV, 156-82 (July, 1849);Ecc. Review, new series, II, 735-48.

The absurdities and anomalies of the system are described in his trenchant manner byLecky,op. cit., II, 214-23. With his account should be read the able discussion byHuth,op. cit., 124-26. The peculiar arguments of the opponents of a change in the law, mainly resting upon the alleged authority of the Old Testament, are best seen in the two volumes ofTracts Issued by the Mar. Law Defence Union(London, 1889); while the antidote may be found inT. Paynter Allen'sOpinions of the Hebrew and Greek Professors of the European Universities(London, 1882), prepared for the Marriage Law Reform Association. The speeches in the two houses of Parliament in 1849, 1851, 1855, 1873, 1883, 1895, and whenever a bill on the subject has been under consideration, may of course be found inHansard'sParliamentary Debates; and theReport of the Royal Commissionof 1848 (London, 1848) is especially important. A strong partisan in favor of the existing law isLuckock,Hist. of Marriage, Part II, 213 ff., particularly 250 ff., 292 ff., 300 ff. For his and similar arguments from the standpoint of Hebrew law a partial remedy, on the homeopathic plan, is afforded by the curious essay ofRev. George Zabriskie Gray,Husband and Wife(2d ed., Boston, 1886). Starting with the scriptural premise that man and wife are "one flesh," not "by his becoming part of her flesh, nor by both forming a new flesh, but by her entering into his flesh," the author, arguing with an ingenuity which would have done credit to Peter Lombard in his palmiest days, reaches the triumphant conclusion that a widower may properly marry his sister-in-law. In the same way he shows that by divine intent a woman may not divorce her husband under any circumstances, for "a member can not put away the head" (90); though she may "leave" him—secure a separationa mensa et thoro—if he is "cruel or unclean" (100).

On the general controversy see especiallyColloquii über die Frage: Ob Gott verboten oder zugelassen habe dass einer seines verstorbenen Weibes Schwester heyraten möge(Oettingen [1681]), 12 ff.; andKettner(L.F.E.),Judicia und Responsa von der Ehe mit des Weibes Schwester(Quedlinburg [ca.1710]), 1 ff., neither of which appears inHuth'slist; alsoZeidler,De mat. cum defunctae uxoris sorore, published with hisDe polygamia(Helmstadt, 1698); andMichaelisAbhandlung von den Ehegesetzen Mosis(Göttingen, 1768). Among the vast number of tracts and books on the subject for England a few of the more important areKeble,Against Profane Dealing with Holy Matrimony(Oxford, 1849);Foster,Review of the Law(London, 1847);Pusey,Letter on the proposed Change in the Laws prohib. Mar. between Near Kin(Oxford, 1842);idem,Evidence given before the Commission(Oxford, 1849);idem,God's Prohibition(Oxford and London, 1860);Binney,The Men of Glasgow and the Women of Scotland(London, [1850]);Gibson,Mar. Aff. Question(Edinburgh, 1854);Duke,The Question of Incest(2d ed., London, 1883). This question, with others, is also dealt with byFry,The Case of Mar. between Near Kindred(London, 1756, 1773);Alleyne,The Legal Degrees of Mar.(London, 1774, 1775);Macrae,Script. Law of Mar.(2d ed., Edinburgh, 1862);Meyer,Uxor christiana(Amsterdam, 1688), 2d dissertation; andKettner(J. J.),Zwei Abhandlungen(Leipzig, 1780), 67 ff. For discussion of related questions of kinship compareButler,Marriage of Cousin Germans(Oxford, 1619); the same in Latin under the leading titleSuggeneiainFlorens,De nuptiis consobrinarum(Frankfort, 1643);Dugard,Marriage of Cousin Germans(Oxford, 1673);Johnstoun,Juridical Dissertation(London, 1734);Paton,Mar. with a Dec. Brother's Wife(London, 1869), and in general readObservations on the Mar. Laws, 126 ff.;Lawrence, inRevue de droit int., II, 65 ff.;Jeaffreson,Brides and Bridals, II, 258 ff.;Hammick,Marriage Law, 23, 30-40;Geary,Mar. and Fam. Rel., II, 30-32;Wharton,Exposition of the Laws, 200, note;Bishop,Mar., Div. and Sep., I, §§736 ff., 747, 750, 752, 753, 875 ff.;Law Mag., XXI, 371-82 (May, 1839);Quarterly Review, LXXXV, 156-82 (July, 1849);Ecc. Review, new series, II, 735-48.

[294]Lecky,Democracy and Liberty, II, 214, who cites "the very candid confession of the Bishop of Winchester":Hansard'sDebates, 3d series, CCLXXX, 1671.

[295]Lecky,op. cit., II, 215, citingT. Paynter Allen'spamphlet already mentioned. There is a weak criticism of this work in theTracts Issued by the Mar. Law Defence Union, I, 177-96. On its high authority seeHuth,Mar. of Near Kin, 129."It is certain that the Old Testament does not directly condemn such marriages, and it is very doubtful whether it condemns them even by inference. It is not at all doubtful that it sanctions, and sometimes eminently blesses, polygamy; that it strictly enjoins that, in every case of adultery, both parties should be put to death; that it makes it a capital offence for a man to have intercourse with a woman who, though unmarried, was betrothed to another; that it commands that a man who had defiled an unbetrothed virgin should be compelled to marry her; that it forbids marriage with aliens in religion; that it not only permits, but enjoins a man to marry the widow of his deceased brother if she had no children, or only daughters, which could scarcely be the case if such marriages of affinity were in their own nature incestuous. It is not easy to understand the process of mind which, among all these provisions of the Jewish code, selects a very doubtful inference condemnatory of marriage with the deceased wife's sister as alone binding on the conscience of the Imperial Parliament."—Lecky,op. cit., II, 216, 217.

"It is certain that the Old Testament does not directly condemn such marriages, and it is very doubtful whether it condemns them even by inference. It is not at all doubtful that it sanctions, and sometimes eminently blesses, polygamy; that it strictly enjoins that, in every case of adultery, both parties should be put to death; that it makes it a capital offence for a man to have intercourse with a woman who, though unmarried, was betrothed to another; that it commands that a man who had defiled an unbetrothed virgin should be compelled to marry her; that it forbids marriage with aliens in religion; that it not only permits, but enjoins a man to marry the widow of his deceased brother if she had no children, or only daughters, which could scarcely be the case if such marriages of affinity were in their own nature incestuous. It is not easy to understand the process of mind which, among all these provisions of the Jewish code, selects a very doubtful inference condemnatory of marriage with the deceased wife's sister as alone binding on the conscience of the Imperial Parliament."—Lecky,op. cit., II, 216, 217.

[296]Lecky,op. cit., II, 215;cf.Allen,Opinions, 36.

[297]Russia appears to be the only important European exception:Huth,op. cit., 130, 131.

[298]For abundant proofs of what Mr. Lecky would call the "insularity" of the English mind in this regard, see the mass of matter—letters, speeches, and declarations of prelates, noblemen, and private persons—contained in that marvelous monument of mediævalism, the two volumes ofTracts Issued by the Mar. Law Defence Union. Mr. Gladstone's speeches are a conspicuous example:ibid., II, 174 ff.

[299]Hansard, 3d series, CCLXXX, 1675. This was Lord Hatherley: seeTracts Issued by Mar. Law Defence Union, II, 161, 162, where he repeats the statement. Compare the views of the bishop of Exeter, in the sameTracts, I, 19, who predicts an orgy of incest if the law be changed: "At the present, no doubt, there is a strong natural instinct against the marriage of a man with his own mother. It is awful to think of. The marriage of a man with his own blood sister is fearful. But this instinctive protection of our domestic purity, how far does it go if we begin to pare the edges off." The Metropolitan (1880) indulges in like forebodings:ibid., I, 97, 98.

[300]Lecky,Democracy and Liberty, II, 221-23.

[301]The only special work on parliamentary divorce is that contained inMacqueen'sPractical Treatise, 463-68, comprising a clear historical "Introduction;" the "Action at Law;" the "Petition and Bill;" the "General Preparation of the Case;" the "Second Reading and Subsequent Proceedings;" and an interesting "Selection of Leading Cases." See alsoLaw Review, I, 362 ff.;Lecky,Democracy and Liberty, II, 200-202;Geary,Marriage and Family Relations, 17, 18;Hammick,Marriage Law, 18;Shelford,Law of Marriage and Divorce, 373-79;Bishop,Marriage, Divorce, and Separation, I, §§ 1422 ff.;Woolsey,Divorce, 172-74;Jeaffreson,Brides and Bridals, II, 340-44;Luckock,Hist. of Marriage, 178-81;Wharton,Exposition of Laws Relating to Women, 471-84;Glasson,Le marriage civil et le divorce, 318, 319;Burn,Ecc. Law, II, 503b, 503c;Hirschfeld, "The Law of Divorce in England and in Germany,"Law Quarterly Review, XIII, 398, 399;Montmorency, "The Changing Status of a Married Woman,"ibid., 191;Plea for an Alt. in the Divorce Laws, 5 ff.;Scribner,Treatise on the Law of Dower, II, 542 ff.; and especially the full account byMorgan,Marriage, Adultery, and Divorce, II, 237-313.

[302]Geary,Marriage and Family Relations, 17:Rot. Parl., 15 H. VI, Nos. 14, 15.

[303]Macqueen,Practical Treatise, 469.Cf.n. 4, p. 80, above.

[304]The act, being private, was never printed in the collections of statutes; but a writer in theLaw Review, I, 363 n. 1, publishes it from the "House copy in the parliament office."Cf.Macqueen,op. cit., 471-73, 551-61, who discusses the case, giving Bishop Cozen's argument, but he does not appear to have had a copy of the statute before him. SeeEvelyn,Diary(London, 1878), II, 49 n. 3, who declares that the Roos divorce bill was carried under influence of corrupt political motives; and he is followed byKeble,Sequel to the Argument, 212 ff.; andMorgan,Marriage, Adultery, and Divorce, II, 237 ff. For a number of instructive details relating to this case, extending over the years 1662-70, taken from the manuscripts of the House of Lords, seeReports of Hist. MSS. Com., VII, 165, 166; VIII, 102a, 117a, App. I, 141a; XII, App. V, 8; App. VII, 69. The last entry runs: "1669, March 14. News letter. Lord Roos presses for liberty to marry again, urging precedent of Marquess of Northampton. All the bishops oppose except the B. of Durham." It is here noted that the act finally passed April 11, 1670; 22 Car. II., 1, Private Acts. The case gave rise toThe Case of Divorce and Re-Marriage thereupon(London, 1673), in which a "Reverend Prelate of the Church of England" denies, and a "private Gentleman" maintains, the right of remarriage on scriptural authority.

[305]On these two cases seeMacqueen,op. cit., 473, 562-76; andLaw Review, I, 364. The proceedings in the Norfolk case are contained in Vol. II, 59-324, appended toArchbishop Abbot'sThe Case of Impotency; also inHowell'sState Trials, XII, 883-948; and in part in theReports of Hist. MSS. Com., XIV, 17-27, 278, where, in addition, arguments of the counsel are given. Sir W. Williams, counsel for the duchess, calls this case the "first precedent."

[306]Macqueen,op. cit., 474, 496;Luckock,Hist. of Marriage, 179, note;Wharton,Exposition of Laws rel. to Women, 471, 472;Morgan,Marriage, Adultery, and Divorce, II, 244 ff. The "earliest specimen of a dissolving statute passed by the Legislature,aftersentence of divorce in the ecclesiastical court" is the "Act to dissolve the marriage of Ralph Box with Elizabeth Eyre, and to enable him to marry again," 1701. This form was followed ever after:Law Review, I, 364, 365.

[307]Since about 1800:Macqueen,op. cit., 489.Cf.Wharton,op. cit., 472, 483;Glasson,Le marriage civil et le divorce, 318. For examples of these actions for "criminal conversation" seeCases of Divorce(London, 1715), 1 ff. (Feilding), 41 ff. (Dormer); andCrim. Con. Actions and Trials, 10 ff., containing a good historical introduction.

[308]Law Review, I, 364;Macqueen,op. cit., 473.

[309]Macqueen,op. cit., 550.

[310]Plea for an Alt. in the Divorce Laws, 5, referring to the security required by the canons of 1603.

[311]Haggard,Consistory Reports, 120;Macqueen,op. cit., 474.

[312]Macqueen,op. cit., 473, 474.

[313]The first three cases are those of Mrs. Addison, 1801; Mrs. Turton, 1831; and Mrs. Battersby, 1840:Macqueen,op. cit., 474-80, 594-98, 657, 658; alsoLaw Review, I, 371; andLecky,Democracy and Liberty, II, 200, 201. There appears to have been a fourth case:Geary,Marriage and Family Relations, 18; and in several instances Parliament interfered by bill to nullify marriage or to grant separationa mensa:Macqueen,op. cit., 475, note.

[314]The cases of Tewsh, 1805; and Mrs. Moffat, 1832:Macqueen,op. cit., 480, 482, 602-4, 658-60. These are discussed inLaw Review, I, 371-74. Lord Chancellor Brougham opposed Mrs. Moffat's bill; but later he took the opposite and more liberal view:Brougham,Speeches, III, 446.

[315]"He said, confusion of progeny constitutes the essence of the crime; and therefore a woman who breaks her marriage vow is much more criminal than a man who does it. A man, to be sure, is criminal in the sight of God, but he does not do his wife any material injury if he does not insult her; if, for instance, hesteals privatelyto her chambermaid. Sir, a wife ought not greatly to resent this. I would not receive home a daughter who had run away from her husband on that account. A wife should study to retain her husband by more attention to please him."—Boswell,Life of Johnson, III, 46 (ed. 1835). Some recent writers, who ought to know better, indulge in similar sophistry;cf.Nisbet,Marriage and Heredity, 18 ff.;Ap Richard,Marriage and Divorce, 25, 34, 35.

[316]Boswell,Life of Johnson, VII, 288. For discussion of Dr. Johnson's philosophy seeJeaffreson,Brides and Bridals, I, 338, 339; II, 278-88;Macqueen,op. cit., 482, 483;Law Review, I, 369, 370.

[317]Sixty between 1715 and 1775; 14 between 1775 and 1780; 110 between 1800 and 1852:Geary,Marriage and Family Relations, 18;Morgan,Marriage, Adultery, and Divorce, II, 239, 240;Report of Commission(divorce), 1852-53.

[318]"One witness (if credible) issufficientevidence to the jury of any single fact, though undoubtedly the concurrence of two or more corroborates the proof. Yet our law considers that there are many transactions to which only one person is privy; and therefore does notalwaysdemand the testimony of two which the civil [and ecclesiastical] law universally requires. 'Unius responsio testis omnino non audiatur.' To extricate itself out of such absurdity, the modern practice of the civil law courts has plunged itself into another. For, as they do not allow a less number than two witnesses to beplena probatio, they call the testimony of one, though never so clear and positive,semi-plena probatioonly, on which no sentence can be founded. To make up, therefore, the necessary complement of witnesses, when they have one only to a single fact, they admit the party himself (plaintiff or defendant) to be examined in his own behalf; and administer to him what is called thesuppletoryoath; and if his evidence happens to be in his own favour, this immediately converts the half proof into a whole one."—Blackstone,Commentaries, III, 370.Cf.alsoBishop,Marriage, Divorce, and Separation, II, § 456;Law Review, I, 378, 379.

[319]Law Review, I, 379, 380. See the illustrative case of Evansv.Evans inNotes of Cases in Ecc. and Mar. Courts, II (1842-43), 470-76.Cf.Bishop,op. cit., I, § 1532;Burn,Ecc. Law, II, 503e-503g.

[320]According to the writer in theLaw Review, I, 367, two thousand pounds is not an overcharged estimate. "In some cases even the preliminary proceedings in Doctors' Commons will cost nearly as much. From the evidence of Mr. Swaby, the Registrar of the Admiralty Court, before the Select Committee, p. 33, it appears that even in an ordinary litigation, with moderate opposition, and where the witnesses are at hand, the expense of obtaining a definitive sentence of divorceà mensâmay reasonably amount to 1700l.; and this merely to lay a foundation for the proceedings before Parliament, and quite independently of the action at law. It is well known that Lord Ellenborough's divorce cost 5000l."—Ibid., 367 n. 6. At the same time the cost of a divorcea vinculoin Scotland was only 25l.:ibid., 367, 368. But in theEvidence before the Select Committee of the House of Lords, 1844, 39, the expense of getting a full divorce is then put at about 800 or 900 pounds.

[321]Lecky,Democracy and Liberty, II, 201, 202; also cited byJeaffreson,Brides and Bridals, II, 342, 343, note. For this case seeMorgan,Marriage, Adultery, and Divorce, II, 234-313.On the law before 1857 seePoynter,Doctrine and Practice of Ecc. Courts in Doctors' Commons, 68 ff. Against the proposed alteration isKeble,Sequel of the Argument against immediately repealing the Laws which treat the Nuptial Bond as indissoluble(Oxford, 1857), 196-220; while strongly in favor of a reform are the anonymous authors ofPlea for an Alt. in the Divorce Laws(London, 1831), 1 ff.; andObservations on the Marriage Laws(London, 1815); as well as much earlierSalmon,Crit. Essay Concerning Marriage(London, 1724), 109 ff.

[321]Lecky,Democracy and Liberty, II, 201, 202; also cited byJeaffreson,Brides and Bridals, II, 342, 343, note. For this case seeMorgan,Marriage, Adultery, and Divorce, II, 234-313.

On the law before 1857 seePoynter,Doctrine and Practice of Ecc. Courts in Doctors' Commons, 68 ff. Against the proposed alteration isKeble,Sequel of the Argument against immediately repealing the Laws which treat the Nuptial Bond as indissoluble(Oxford, 1857), 196-220; while strongly in favor of a reform are the anonymous authors ofPlea for an Alt. in the Divorce Laws(London, 1831), 1 ff.; andObservations on the Marriage Laws(London, 1815); as well as much earlierSalmon,Crit. Essay Concerning Marriage(London, 1724), 109 ff.

[322]20 and 21 Vict., c. 85:Statutes at Large, XCVII, 532-46. In general on the present English law of divorce seeGlasson,Le mariage civil et le divorce, 317-27;Harrison,The Laws of Probate and Divorce, 115 ff.;Geary,Marriage and Family Relations, 237-430;Browning,Practice and Procedure, 1 ff.;Lecky,Democracy and Liberty, II, 202 ff.;Thwing,The Family, 194;Ernst,Marriage and Divorce, 55 ff.;Woolsey,Divorce, 174-78;Glasson,Hist. du droit, VI, 177-84;Neubauer, "Ehescheidung im Auslande,"ZVR., VII, 297-99;Montmorency, "The Changing Status of a Married Woman,"Law Quart. Rev., XIII, 189-92;Hirschfeld, "The Law of Divorce in England and in Germany,"ibid., XIII, 399-405.

[323]Hansard'sParl. Debates, 3d series, CXLIV-VIII. "The discussions on the subject were curious as showing how powerfully, even to that late period, theological methods of thought and reasoning prevailed in the British Legislature. There were speeches that would seem more in place in a church council than in a lay Parliament."—Lecky,Democracy and Liberty, II, 202.

[324]36 and 37 Vict., c. 66, secs. 16, 31.

[325]SeeGeary,Marriage and Family Relations, 238 ff., for the jurisdiction and procedure of these courts.Cf.alsoHarrison,The Laws of Probate and Divorce, 191 ff.

[326]20 and 21 Vict., c. 85, sec. 27:Statutes at Large, XCVII, 537. But various "absolute" or "discretionary" bars may be pleaded against a decree. On these seeGeary,op. cit., 267-304;Harrison,op. cit., 130 ff.;Woolsey,Divorce, 175.

[327]Hansard,Parl. Debates, 3d series, CXLII, 394 ff. See the suggestive paper ofHirschfeld, "The Law of Divorce in England and in Germany,"Law Quart. Review, XIII, 400-403, giving illustrative passages from the debates relating to the unfair treatment of the wife.

[328]Hansard,op. cit., 3d series, CXLVII, 1545.

[329]Thus adultery, if long persisted in, ripens into "desertion." For a detailed discussion of "cruelty" and "desertion" according to definition and judicial precedent, and particularly on "constructive" and "moral" cruelty, seeGeary,op. cit., 323 ff., 330 ff.Cf.Bishop,Marriage, Divorce, and Separation, I, §§ 1524 ff., especially 1532;Harrison,op. cit., 138 ff.

[330]"From the meaning of pain inflicted on the body it [cruelty] has in recent years attained the extended meaning that includes pain inflicted on the mind. Coldness and neglect may now almost of themselves constitute such cruelty as, coupled with misconduct, will give the right of divorce. The time may very reasonably be looked forward to when almost every act of misconduct will in itself be considered to convey such mental agony to the innocent party as to constitute the cruelty requisite under the Act of 1857. The difference already is very marked when we compare the 'cruelty' of today with the thrashing by the husband that constituted cruelty thirty years ago. Probably in those days the doctrine of a husband's right to administer physical correction to his wife was not entirely discredited. Today it is possible for a woman, with celerity and at little cost, to separate herself from her husband if she be able to prove that he is either a brute or a monster. Forty years ago the vast majority of women were indissolubly tied to their husbands though the whole world knew them to be both brutes and monsters. It is a great change in a short period."—Montmorency, "The Changing Status of a Married Woman,"Law Quart. Review, XIII, 191, 192.

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