Similar testimony is afforded by the celebrated Foljambe case in 1602, when a court sitting in the Star Chamber incidentally pronounced invalid a marriage which had been contracted after separation from bed and board by decree of an ecclesiastical judge; and this decision follows the advice of a council of the "most sage divines and civilians assembled by Archbishop Whitgift at Lambeth, declaring in harmony with the ancient law that remarriage after judicial separation is null and void."[249]Strictly speaking, it may not be correct to say, as is commonly done by law writers, that the Foljambe case marks a change in the law of divorce by requiring a return to the doctrine of the ancient church; but from it, at any rate, two important inferences may be drawn. On the one hand, it shows that the custom of remarriage after separationa mensa et thorowas continued to the very end of Elizabeth's reign. On the other hand, it constitutes a stage in the development of a more conservative policy. As such it may have had something to do with the legislation of about a year later. By royal authority in 1603 the canons of 1597 were re-enacted "word for word," and consequently, as already suggested, they incidentally bear witness to the Reformation theory and practice as to divorce and remarriage, while seeming to admit the possibility of a valid dissolution of wedlock by judicial decree.[250]For the first time in English history a statute of 1604 makes bigamy[251]in the modern sensea felony punishable with death; but there are exceptions to the operation of the act which tell strongly in favor of the view that the custom of remarriage after judicial separation had been something more than tolerated. It is expressly provided that the penalty fixed by the act shall not extend to a man or woman who has contracted a new marriage after seven years' desertion; nor to "any person or persons that are or shall be at the time of such marriage divorced by any sentence had or hereafter to be had in the ecclesiastical court."[252]Here it is clear that dissolution of wedlock bysentence of nullity is not intended; for this is provided for by another exception in the act itself. It is equally clear that all cases of divorce by judicial decreearecomprehended, whatever the cause of separation assigned. The law as then interpreted seems to have remained unchallenged until 1637, when in Porter's case the court of King's Bench, without squarely deciding the point, expressed a doubt whether a woman remarrying after divorce for cruelty was exempt from punishment under the proviso of King James's statute; because, "if this should be suffered, many would be divorced upon such pretence, and instantly marry again, whereby many inconveniences would arise. Whereupon she was advised not to insist upon the law, but to procure a pardon to avoid the danger; for it was clearly agreed by all the civilians and others, that the second marriage was unlawful."[253]Nevertheless, the hesitation of the court does not appear to be justified either by the plain words of the act or by the weight of legal authority.[254]III. LAW AND THEORY DURING THREE CENTURIESa)The views of Milton.—With the opening of the Stuart era, therefore, a reactionary policy with respect to divorce was established. For two centuries and a half thereafter the principles of the ancient canon law were administered by the English spiritual courts. In fact, it was now more difficult than before the Reformation to escape the marriagetie;[255]for the papal dispensation could grant no relief, and in consequence of the decrease in the number of restraints to a valid marriage, the decree of nullity was not so often a convenient subterfuge. Only the rich or noble were able to afford the costly remedy of a special act of Parliament to cure their matrimonial ills. Hence it is not a little surprising that the Puritan Revolution brought with it no change in this regard. One would naturally expect the Independents under Cromwell's leadership, by whom the remarkable civil-marriage law of 1653 was conceived, to relegate the whole matter of divorce and nullity to the temporal courts under proper legal conditions; yet there seems to be no record of such a course.But if the Puritan statute-book was silent, Puritan thought produced the boldest defense of the liberty of divorce which had yet appeared. If taken in the abstract and applied to both sexes alike, it is perhaps the strongest defense which can be made through an appeal to mere authority. For, in spite of their casuistry, their inconsistencies, and their injustice to woman, the writings of John Milton may be said to have about exhausted the resources of theological argument and the learning of his age on this subject.[256]He goes farther than Zwingli, Bucer, or any other reformer in admitting grounds for the absolute dissolution of marriage. According to Milton, divorce is a "lawof moral equity," a "pure moral economical law ... so clear in nature and reason, that it was left to a man's own arbitrement to be determined between God and his own conscience;" and "the restraint whereof, who is not too thick-sighted, may see how hurtful and distractive it is to the house, the church, and the commonwealth."[257]It is lawful to Christians "for many other causes equal to adultery," such as cruelty, idolatry, and "headstrong behaviour" on the part of the woman, as also for desertion.[258]For "what are these two cases [adultery and desertion] to many other, which afflict the state of marriage as bad, and yet find no redress?" Hence he spurns a narrow construction as contrary to reason. "What hath the soul of man deserved, if it be in the way of salvation, that it should be mortgaged thus, and may not redeem itself according to conscience out of the hands of such ignorant and slothful teachers as these, who are neither able nor mindful to give due tendance to that precious cure which they rashly undertake; nor have in them the noble goodness, to consider these distresses and accidents of man's life, but are bent rather to fill their mouths with tithe and oblation?"[259]Nor is this the only time when Milton speaks the language of the modern social reformer, though sometimes his strongest arguments from the standpoint of reason are ill sustained by the authority upon which he relies. From the law of Moses, with which he insists that the law of Jesus must agree, he thus reaches the conclusion that just ground of divorce is "indisposition, unfitness, or contrariety of mind, arising from a cause in nature unchangeable, hindering, and ever likely to hinder the main benefits of conjugal society, which are solace andpeace."[260]To this ideal of the true end of wedlock he returns again and again. Rejecting the gross and carnal conception of the Fathers and canonists, their glaring contradiction between marriage as a "defilement" and a sacrament,[261]he urges that matrimony is a society "more than human," centering "in the soul rather than in the body;" a companionship resting upon the "deep and serious verity" of "mutual love," without which wedlock is "nothing but the empty husks of an outside matrimony, as undelightful and unpleasing to God as any other kind of hypocrisy."[262]Hence, where such society does not exist, where mutual affection has given place to deceit, the legal bond of the sham wedlock ought to be dissolved.Unfortunately, there is another and less pleasing aspect of Milton's teaching. Beyond question saturated as he is in the sentiments of the Hebrew law, Milton has a very low ideal of womanhood. Almost invariably it is the husband's grievances which excite his compassion. Scarcely by implication does he ever admit that the wife may initiate proceedings, private or public, to rid herself of an unwelcome spouse. It is not quite clear whether he would allow her to put away even the unfaithful husband against his will;[263]while repudiation for lack of sympathy, for "loneliness," on account offailure to realize that comfort and full spiritual society upon which he so fondly dwells, is apparently the sole privilege of the man. In his opinion the man is emphatically the head of the woman, who was created by God expressly "to comfort and refresh him against the evil of solitary life."[264]No disciple of Hillel was ever more thoroughly persuaded that mere dislike is adequate cause for putting away a wife at the sole command of the husband than was he. "No libertine, for the sake of wickedness and gratification of low desire, ever demanded greater license in marriage than Milton in the name of religion demanded for Christian men, in order that they might find meet-helps, and escape the grievances of uncongenial wedlock," though doubtless his sole aim was the attainment of domestic purity and happiness.[265]That this judgment is scarcely too severe is clearly proved by Milton's theory of proper divorce procedure.[266]Rejecting all aid of court or magistrate, he goes back to theancient principle of self-divorce.[267]For it was an "act of papal encroachment" to "pluck the power and arbitrement of divorce from the master of the family, into whose hands God and the law of all nations had put it, and Christ so left it, preaching only to the conscience, and not authorizing a judicial court to toss about and divulge the unaccountable and secret reason of disaffection between man and wife, as a thing most improperly answerable to any such kind of trial." For the sake of "revenue and high authority" the "popes of Rome" have "subjected that ancient and naturally domestic prerogative to an external and unbefitting judicature." Differences "in divorce about dowries, jointures, and the like, besides the punishing of adultery," ought indeed to be referred to the magistrate; yet "against the will and consent of both parties, or of the husband alone," the "absolute and final hindering of divorce" cannot rightly "belong to any civil or earthly power." For "ofttimes the causes of seeking divorce reside so deeply in the radical and innocent affections of nature, as is not within the diocese of law to tamper with." Among such "deep and serious regresses of nature" is hate, "of all things the mightiest divider." Moreover, the lord of the family cannot go wrong in acting from such motive; "for although a man may often be unjust in seeking that which he loves, yet he can never be unjust or blamable in retiring from his endless trouble and distaste, whenas his tarrying can redound to no true content on either side."[268]All this despotic power is placedin the husband's hands for the woman's good; for it is "an unseemly affront to the sequestered and veiled modesty of that sex, to have her unpleasingness and other concealments bandied up and down, and aggravated in open court by those hired masters of tongue-fence.... It is true an adulteress cannot be shamed enough by any public proceeding; but the woman whose honour is not appeached is less injured by a silent dimission, being otherwise not illiberally dealt with, than to endure a clamouring debate of utterless things." Whether it would be well to shame the adulterer by publicity we are not informed. Power would thus be restored to the "master of the family," where it was divinely placed. For its exercise there is but one condition needful among Christian men. The repudiation should take place in "the presence of the minister and other grave selected elders." These are to "admonish" him; and he in turn is to declare solemnly by "the hope he has of happy resurrection, that otherwise than thus he cannot do, and thinks himself and this his case not contained in that prohibition of divorce which Christ pronounced, the matter not being of malice, but nature, and so not capable of reconciling." He must not be restrained further. To do so "were to unchristian him, to unman him, to throw the whole mountain of Sinai upon him, with the weight of the whole law to boot, flat against the liberty and essence of the gospel." The procedure thus provided for by Milton, remarks Jeaffreson, is a "strictly private trial in which the husband discharged the function of prosecutor, furnished the evidence, and played the part of a judge." But Milton is conscious that the denial of a reciprocal liberty to the wife may require some defense. This he supplies by a singular piece of logic, which in its effect would sanction and encourage the basest tyranny for even the vilest purposes, though he does not appear to see it.[269]"The law can only appoint the justand equal conditions of divorce," he declares, "and is to look how it is an injury to the divorced," that is to say, to the repudiated wife. But in truth, he hastens to add, "as a mere separation" it can be no injury to her; "for if she consent, wherein has the law to right her? or consent not, then is it either just, and so deserved; or if unjust, such in all likelihood was the divorcer: and to part from an unjust man is a happiness and no injury to be lamented. But suppose it be an injury, the law is not able to amend it, unless she think it other than a miserable redress, to return back from whence she was expelled, or but entreated to be gone;" or else, if not formally separated, "to live apart still married without marriage, a married widow." The circular argument is thus complete. "The poet, whose Adam prayed the Almighty to give him anequal inferiorfor his companion in the happy garden, does not appear to have conceived it possible for a woman in her right mind to wish to put away her lord and master."[270]b)Void and voidable contracts.—It is a striking illustration of the completeness with which in social questions the English mind was dominated by theological modes of thought that no change in the law of divorce was effected until the present century. Yet there was crying need of reform. The rigid tightening of the bonds of wedlock seems to have produced its natural fruit. Immorality grew apace.[271]The lot of the married woman became harder even than before the Reformation. To the anomalies of the mediæval system, some of which survived, were added others not less harmful. Chief among them were those arising in the dualism, amounting sometimes to antagonism, subsistingbetween the civil and the spiritual law. Theoretically, of course, the temporal judge had no divorce competence at all. Still where dower or inheritance was involved a policy had to be defined. "Ultimately the common lawyers came to the doctrine that while the divorcea vinculo matrimoniidid, the divorcea mensa et torodid not deprive the widow of dower, even though she was the guilty person."[272]Such was the law onward from the days of Edward III.[273]Earlier, according to Glanville, and apparently also according to Bracton, the woman "divorced for her misconduct can claim no dower;"[274]and even at a time when she was not deprived of dower through the fact of divorce, she might have the right to claim it taken away as a punishment for her crime, if she "eloped and abode" with her paramour.[275]Especially disastrous in its effects was the absurd distinction, maintained after as well as before the Reformation, betweenvoidandvoidablemarriages.[276]This had its originin the canonical doctrine of "putative" wedlock.[277]A union unlawful on account of some diriment impediment, such as affinity or consanguinity, was held not to beipso factovoid, but only voidable, if it had been solemnized with the proper rites of the church; and the temporal courts assumed the validity of all such marriages until they were declared null by an ecclesiastical decree. The happiness of an innocent family was thus put in jeopardy. At any moment a fatal flaw in the union might be discovered or for money invented, whenpro salute animaruma separation of the parties would be enforced. In that case the canonists declared that the issue should not suffer. If one or both of the parents were ignorant of the impediment at the time the children were born, these were held to be legitimate. This rule was adopted by the secular courts in determining questions of inheritance. "As late as 1337 English lawyers still maintained that the issue of ade factomarriage, which was invalid because of the consanguinity of the parties, were not bastards if born before divorce.[278]Later, however, they developed a different doctrine which was enforced after the Reformation. Taking "no heed of good or bad faith," the temporal law even in Protestant times made the "legitimacy of the children depend on the fact that their parents while living were never divorced."[279]The persons separated for spurious wedlock were permitted to contract new marriages; but in that event they were exposed to one of the innumerable hardships caused by the fine-spun theories of the canonists. The "validity of the first marriage was always anopen question, and new evidence might at any time reverse the decree. In this case the second marriage would be a nullity and the first would recover its obligatory force, so that now two separations, it might be, would be demanded by canonical law."[280]But from the reign of James I., through intercession of the temporal courts, the action for voidance of false wedlock had to be brought during the joint lives of the consorts.[281]After the death of either spouse the spiritual judge was prevented from issuing a decree. For all practical purposes the spurious marriage then became a valid marriage, and the unlawful issue became legitimate;[282]though, absurdly enough, the surviving consort might be punished for the sin of wedding within the forbidden degrees.[283]Such remained the state of the law until the appearance of Lord Lyndhurst's act in 1835.[284]This statute declares, because "it is unreasonable that the state and condition of the children of marriages between persons within the prohibiteddegrees of affinity should remain unsettled during so long a period" as the joint lives of the parents, therefore "all marriages which may hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity" ought to "beipso factovoid, and not merely voidable;" and accordingly it is so enacted. With respect to existing unions of this kind a distinction is made between "affinity" and "consanguinity." Marriages within the forbidden degrees of affinity already celebrated may not "hereafter be annulled for that cause by any sentence of the ecclesiastical court," unless pronounced in a pending suit; while existing marriages within the prohibited degrees of consanguinity are not so exempt.[285]Voidable wedlock in the sense here employed[286]thus disappears from the English law, except in those minor cases where "canonical" impediments are still recognized.[287]Lord Lyndhurst's act was especially designed to put an end to marriage with a deceased wife's sister.[288]Such unions, clearly unlawful, appear to have become very common since the age of the Stuarts.[289]For where no property or otherinterests were at stake a man's marriage with his sister-in-law was likely to go unchallenged until the death of husband or wife made it perfectly valid. Doubtless in such cases, through delay in "collusive suits," greedy relatives may sometimes have been prevented from securing estates which by natural justice, if not by law, belonged to the children or other heirs; for "no fresh proceedings could be initiated so long as any suit of a similar kind was pending."[290]But the avowed purpose of the act is its best justification, if the times were not ripe for a more liberal remedy. If this class of marriages could not be legalized in harmony with the practice of most other civilized peoples, it was perhaps well in this way to make an attempt to relieve their innocent offspring from the uncertainty which "hung over them sometimes for years like a sword of Damocles."[291]The attempt, however, did not prove successful. "In 1847 a Royal Commission was appointed to inquire into the state and operation of the law of marriage as relating to the prohibited degrees of affinity. In their report the commissioners state that of marriages within the prohibited degrees by far the most frequent class was that of marriage of a widower with a sister of his deceased wife, so that in fact it formed the most important consideration in the whole subject; and that as these so-called marriages will take place, especially among the middle and poorer classes, when a concurrence of circumstances gives rise to mutual attachment, the commissioners were of opinion" that Lord Lyndhurst's act "had failed to attain its object." They furthermore declare, even at this early date, that such unions are permitted, "by dispensation or otherwise, in nearly all thecontinental states of Europe," as well as in most of the states of the American Union.[292]No legislation followed the commissioners' report. Nor, despite repeated efforts, has the perennial "deceased wife's sister's bill" ever yet become a law. It is, indeed, curious to see a noble senate capable of accepting the liberal civil marriage law of 1836 still stubbornly resisting in this particular the secularizing of marriage which a recent writer observes "is an evident accompaniment, if it is not a consequence, of the progress of democracy."[293]There "can be little doubt,"adds the same author, "that the opposition to these marriages rests mainly upon theological grounds."[294]Yet even on such grounds it is hard to see why the Protestant theologian or lawgiver should retain them in the table of degrees of affinity prohibited by the code of Moses, while other provisions of that law far more clearly enjoined are rejected or ignored. "The Jews themselves maintain that this kind of marriage is not forbidden in the Old Testament, and great numbers of the most eminent Christian divines concur in their opinion."[295]The Catholic is far more consistent and liberal in this respect; for he "regards the prohibition as resting, not on direct Divine or natural law, but merely on an ecclesiastical command, and his Church therefore claims and constantly exercises the right of dispensing with it."[296]The arguments on either side of the controversy need not here be summarized. Those in favor of the prohibition rest almost wholly upon authority. Only secondarily is an attempt made to defend it on social, political, or moral grounds. For most people of the civilized world[297]the subject is already "ancient history." Hence the modern student who first takes this controversial literature in hand is amazed to find men of high repute still earnestly speaking the language of the Middle Ages; still juggling with the casuistry and quibbles which satisfied Tancred and his predecessors.[298]The nature of the problem and the way it is conceived by the English theological mind are thus strongly stated by Lecky in the fine paragraph with which he closes his interesting discussion of these marriages: "It would be difficult to overstate the extravagance of the language which has been sometimes employed in England by their opponents. One gentleman, who had been Lord Chancellor of England, morethan once declared that if marriage with a deceased wife's sister ever became legal 'the decadence of England was inevitable,' and that, for his part, he would rather see 300,000 Frenchmen landed on the English coasts.[299]Pictures have been drawn of the moral anarchy such marriages must produce, which are read by American, colonial, and continental observers with a bewilderment that is not unmixed with disgust, and are, indeed, a curious illustration of the extreme insularity of the English mind. The truth seems to be that there are cases in which the presence of a young and attractive sister-in-law in a widower's house would, under any system of law, produce scandal. There are others where, in all countries, a sister-in-law's care and presence would seem natural. There are cases where every murmur is silenced by the simple consideration that the two parties are at perfect liberty to marry if they please. Experience—the one sure guide in politics—conclusively shows how quickly the best public opinion of a country accommodates itself to these marriages; how easy, natural, and beneficent they prove; how little disturbance of any kind they introduce into domestic relations. They will long be opposed on the ground of ecclesiastical traditions, and apart from all considerations of consequences, by a section of theologians in England, in America, and in the Colonies. Those who consider them wrong should abstain from contracting them, and a wise legislature will deal gently with the scruples of objecting clergymen, as it has done in the case of the marriage of divorced persons. But the law of the land should rest on other than ecclesiastical grounds, and a prohibition that hasno foundation in nature or in reason is both unjust and oppressive. It is not for the true interests of morals or of family life that the law should brand as immoral, unions which those who contract them feel and know to be perfectly innocent, and which are fully sanctioned by the general voice of the civilised world, by an overwhelming majority of the English race, by a great and steadily increasing weight of public opinion at home, and by repeated majorities in the House of Commons. In an age when most wise and patriotic men desire that the influence and character of the Upper House should be upheld and strengthened, few things can be more deplorable than that this House should have suffered itself to be made the representative of a swiftly vanishing superstition, the chief instrument in perpetuating a paltry and an ignoble persecution."[300]c)Parliamentary divorce.—More than twenty years were yet to pass before the appearance of the first English statute providing for divorce through regular civil process. Proximately the act of 1857 owes its origin to the anomaly of parliamentary divorce, whose glaring inconsistency but served to accent the evils fostered by the canons of 1603. In theory marriage continued to be absolutely indissoluble. Only by giving bond not to marry again could a person secure even a judicial separation. No matter how grave the offense, or how notorious the breach of the nuptial vow, the parties in most legal respects were chained for life. At most they might be suffered to dwell apart. Obviously the proper remedy would have been a general law of civil divorce whose benefits should be placed within the easy reach of rich and poor alike. Instead, a resort was had to special acts of Parliament whose advantages could be enjoyed only by a fortunate class.[301]The practice originated inthe last years of the seventeenth century, though it may have been suggested by prior instances of legislative intervention in matrimonial questions. As early as 1436 a marriage obtained by force was declared void.[302]More clearly analogous is the opposite case of Lord Northampton, already mentioned, whose second marriage after decree of separation was pronounced valid in 1552. This, however, is not an instance of parliamentary divorce.[303]Nor, strictly speaking, is that of Lord Roos in 1670, which Macqueen regards as the first "genuine example;" for the bill is entitled merely "an act for John Manners, called Lord Roos, to marry again;" and does not as alleged expressly effect a "rescission of the contract."[304]The earliest clear precedents are the caseof the Earl of Macclesfield in 1698 and that of the Duke of Norfolk, two years later, in each of which the act provides for a dissolution of marriage.[305]Ultimately (1798) a standing order of the House of Lords requires that "all bills of divorce shall be preceded by a sentence of separationa mensa, issuing out of the ecclesiastical court;"[306]and usually such bills must be preceded also by the action at law against the guilty paramour for damage.[307]Thus a vast power was placed in the hands of the spiritual courts to hinder an aggrieved husband or wife from resorting to Parliament for redress. This fact is illustrated in the history of the cases already cited. Lord Roos had previously secured a decree of separation, no mention being made of an action for damage. In Lord Macclesfield's case the bill for divorce was sustained neither by a judgment at law nor by an ecclesiastical sentence. For "in consequence of the skilful opposition set up by the countess in the spiritual courts, and the narrow antiquated maxims which there prevailed, she contrived to baffle all her husband's efforts to obtain a sentence of divorceà mensâ et thoro. The circumstances of the case, however, were so scandalous and flagrant, that it would have been an outrage upon every principle of justice to withhold relief." In like manner for seven years theDuke of Norfolk tried in vain to obtain a decree of separation, although he "recovered damage at law from the adulterer, Sir John Jermayne."[308]But in no other case save these two has there been a successful resort to Parliament without first obtaining the sentence of an ecclesiastical judge;[309]and the clumsy, almost farcical, nature of the procedure in divorce suits may be more fully appreciated when it is borne in mind that an aggrieved spouse desirous of securing a divorce from a guilty partner through an act of Parliament was compelled, before he could "get through the ecclesiastical courts, to pledge himself not to remarry."[310]In consequence of the standing order of the House of Lords, Parliament was unable to grant relief, except on the one ground of conjugal infidelity; for the spiritual court declined to issue a decree of separation for malicious desertion, unless in connection with acts of cruelty.[311]"On a retrospect of one hundred and seventy years, since the establishment of the system of parliamentary divorcea vinculo," says Macqueen, writing in 1842, "I find no case in which that remedy has been awarded or sought, without a charge of adultery. There is no example of a bill of divorce for malicious desertion," although from the Reformation onward this has been a clearly recognized ground for dissolution of wedlock in other Protestant lands.[312]Furthermore, with respect to the rights of the wife Parliament was more illiberal than the spiritual courts themselves, refusing, even after the ecclesiastical sentence of separation, to free her from a dissolute husband, unless his offense were attended by "aggravating" conduct, such as cruelty. In no case was the woman granted relief merely for the husband'sunfaithfulness, however flagrant and shameless his conduct might be. Indeed, for the entire period during which the practice existed, there were but three or four examples of legislative divorce at the instance of a woman, and in each case the man's infidelity was attended by other offenses.[313]In two other cases the bill of the wife was rejected by the Lords, although the grievous wrong which she had suffered was established by the clearest proof.[314]Parliament appears to have accepted the view of Dr. Johnson that there is a "boundless" difference between the infidelity of the man and that of the woman. In the husband's case, according to that philosopher, there is no danger of a "confusion of progeny;" and this, he says, "constitutes the essence of the crime."[315]Therefore, "wise married women don't trouble themselves" about such mere peccadilloes.[316]The sphere of parliamentary divorce was greatly narrowed in still other ways. As a matter of fact, for the century and a half during which the practice prevailed perhaps not morethan two hundred such separations were granted.[317]In the first place, the rules of evidence observed in the spiritual courts tended to thwart justice even in cases of the most cruel and scandalous wrongs. Two witnesses were invariably required; whereas in the lay tribunals one witness is accepted as sufficient when no more can be had.[318]On such testimony, for instance, damage may be awarded in the suit at law for adultery, when the same evidence is rejected as insufficient in the ecclesiastical action for separation. Yet it is precisely in cases of adultery that a "penuria testiumis most likely to occur. To require two witnesses of facts almost necessarily secret is, in most cases, to ensure a denyal of justice. Of this constant examples are to be found in the records of the ecclesiastical courts."[319]Again, the relief granted by Parliament was effectively placed beyond the reach of all save the plutocracy. The triple cost of the law action, the ecclesiastical decree, and the legislative proceedings was enormous. How utterly the luxury of divorce was placed beyond the wildest dreams of the poor man clearly appears when one understands that it couldbe obtained only through the expenditure of a fortune sometimes amounting to thousands of pounds.[320]The shameful injustice of the system has never been so vividly brought out as in the often-quoted words of Justice Maule in a case tried before him in 1845: "The culprit was a poor man who had committed bigamy. The defence was that when the prisoner married his second wife he had in reality no wife, for his former wife had first robbed, and then deserted him, and was now living with another man. The judge imposed the lightest penalty in his power, but he prefaced it with some ironical remarks which made a deep and lasting impression. Having described the gross provocation under which the prisoner had acted, he continued: 'But, prisoner, you have committed a grave offence in taking the law into your own hands and marrying again. I will now tell you what you should have done. You should have brought an action into the civil court, and obtained damages, which the other side would probably have been unable to pay, and you would have had to pay your own costs—perhaps 100l.or 150l.You should then have gone to the ecclesiastical court and obtained a divorcea mensa et thoro, and then to the House of Lords, where having proved that these preliminaries had been complied with, you would have been enabled to marry again. The expenses might amount to 500l.or 600l.or perhaps 1000l.You say you are a poor man, and you probably do not possess as many pence. But, prisoner, you mustknow that in England there is not one law for the rich and another for the poor.'"[321]d)The present English law.—It is, indeed, wonderful that a great nation, priding herself on a love of equity and social liberty, should thus for five generations tolerate an invidious indulgence, rather than frankly and courageously to free herself from the shackles of an ecclesiastical tradition! But even in England, so far as the state is concerned, the dogma that marriage is an indissoluble bond has finally run its course. A partial remedy for the scandals and hardships of the existing system was at last grudgingly provided in the civil divorce law of 1857. By this act,[322]which during a whole session of Parliament was stubbornly resisted, mainly on religious grounds,[323]the entire jurisdiction in matrimonial questions hitherto belonging to the spiritual courts, except "so far as relates to the granting of marriage licences," is transferred to a new civil "Court for Divorce and Matrimonial Causes;" and since 1873 this tribunal has givenplace to the "Probate, Divorce, and Admiralty Division" of the "High Court of Justice."[324]It is "a court for England only," its competence not extending to Ireland, Scotland, or the Channel Isles.[325]By the law of 1857, supplemented in various ways through subsequent statutes, three forms of separation are recognized. First, on petition of either consort the court is empowered to grant a complete dissolution of wedlock; but in this respect the provisions of the act are conceived in the same narrow spirit that actuated the policy of legislative divorce. The woman is treated with precisely the same injustice. For while the husband may secure an absolute divorce on account of the simple adultery of the wife, the wife is unable to free herself from an unfaithful husband unless his infidelity has been coupled with such cruelty as "would have entitled her to a divorcea mensa et thoro;" or "with desertion, without reasonable cause, for two years and upwards;" or with certain other aggravating offenses.[326]Friends and enemies of the bill alike joined in condemning the unequal position in which man and wife were placed. Gladstone, who tenaciously resisted the act on theological grounds, declared: "If there is one broad and palpable principle of Christianity which we ought to regard as precious it is, that it has placed the seal of God Almighty upon the equality of man and woman with respect to everything that relates to these rights."[327]On the other hand, the attorney-general,who introduced the measure, found it necessary to apologize for this defect. "If this bill," he says, "were thrown aside and the whole law of marriage and divorce made the subject of inquiry, I should be the last man to limit the field of discussion or to refuse to consider a state of law which inflicts injustice upon the women most wrongfully and without cause, and which may be considered opprobrious and wicked;" moreover, he continues, the "present bill need not be the end-all of legislation upon the subject."[328]In judicial practice, however, the terms "cruelty" and "desertion" have acquired a rather broad meaning.[329]In particular through the doctrine of "constructive" and "moral" cruelty there is a "strong tendency to equalize the positions of the two" sexes.[330]Nevertheless, the woman is still in a relatively unfavorable position; and the sphere of divorcea vinculois exceedingly narrow. There are doubtless many other causes besides infidelity for which the welfare of society and the happiness of individuals require that marriage may be dissolved. "It is a scandal to English legislation," observesLecky, that divorce "should not be granted when one of the partners has been condemned for some grave criminal offence involving a long period of imprisonment or penal servitude, or for wilful and prolonged desertion, or for cruelty, however atrocious, if it is not coupled with adultery. In all continental legislations which admit divorce a catalogue of grave causes is admitted which justify it."[331]While depriving the ancient spiritual tribunals of the monopoly of matrimonial jurisdiction which they had so long possessed, Parliament made a proper concession to the scruples of the regular clergy. By the act a divorced person, whether guilty or innocent, is permitted to marry again if he likes; but a clergyman of the "United Church of England and Ireland" is not compelled to solemnize the marriage. Should he refuse, however, he cannot legally prevent a brother-minister of the establishment from using his church or chapel for the celebration; and this last provision has in our own day become a standing grievance on the part of those who denounce such a celebration as a "defilement" of the sanctuary.[332]The act of 1857 directs that, before granting a decree, the court shall "satisfy itself, so far as it reasonably can, not only as to the facts alleged," but also whether there has been any collusion between the petitioner and either of the respondents, or whether there is any bar or counter-charge against the petitioner.[333]But no special procedure was created for making the inquiry suggested, "nor could a stranger without any legal private interest intervene."[334]The necessary machinery for that purpose was provided by the Matrimonial Causes Act[335]of 1860, which rests upon the theory "that the public is interested in seeing that no marriage is dissolved except on certain grounds."[336]Two distinct stages in the proceedings for a dissolution of wedlock are prescribed. If a sentence of divorce be rendered, it must always in the first instance be a decreenisi. Only after an interval of six months, unless a shorter time be set by the court, can such a decree be madeabsolute. In the meantime, the queen's proctor, or any member of the public, whether interested in the suit or not, may "intervene" to show collusion or the suppression of material facts;[337]and in case of such interventionthe court shall deal with the cause "by making the decree absolute, or by reversing the decreenisi," or by conducting further examination, as "justice may require."Secondly, the present English law allows a decree for "judicial separation" with the "same force and the same consequences" as the former sentence of divorcea mensa et thoro, which is abolished by the act of 1857.[338]To such a decree either the husband or the wife is entitled on the ground of adultery, cruelty, or two years' desertion;[339]provided no legal bar to the petition such as condonation, cruelty, or a separation deed, be established. At the prayer of the petitioner, or when the evidence is insufficient to warrant a decree of complete divorce, a judicial separation may be granted in a suit brought for dissolution of marriage.[340]After such separation the wife is considered as afeme solewith respect to property, contracts, wrongs, suing and being sued; and her husband is not liable for her engagements.[341]In place of the old action at law for "criminal conversation" a prayer for damage against the wife's paramour may be joined with the petition for judicial separation or for dissolution of wedlock; or the aggrieved husband may make separate application for indemnity.[342]Adultery thus becomes a mere "private injury" and not a crime. The damage recovered may be "applied by the court for the benefit of the children of the marriage or for the maintenance of the wife." When the wife is the guilty person and is entitled to property in possession or in reversion, the court, at its discretion, may settle "such property, or any part of it, on the innocent party, or on the children of the marriage."[343]The rules, principles, and procedure observed in the old ecclesiastical courts are to be followed by the civil judge in a suit for judicial separation except as otherwise provided by statute.[344]In the third place, by the existing law provision is made for what is commonly called "magisterial separation." The "separation order," presently to be considered, is one of several remedial devices introduced by various statutes in the injured wife's behalf. Thus the act of 1857 enables a woman deserted by her husband to apply to a local court of summary jurisdiction, or, if she prefer, to the high divorce court of the kingdom, for an order to protect her subsequently acquired earnings or property from being seized by him or any of his creditors.[345]By this "protection order" the wife is to be in the same position as to property and contracts, suing and being sued, as if she had obtained a decree of judicial separation.[346]In all respects she is treated as afeme sole. For a number of years after it was first introduced the protection order was a means of real redress; for then, according to the principles of the barbarous laws of the Middle Ages which still survived, a married woman without settlements had practically no property rights at all during her husband's lifetime. Her landed property at marriage passed into his control; her chattels and personaleffects of every description became absolutely his; and she had no legal power to dispose even of the wages of her own toil.[347]The protection order merely gave the wife her own, preventing the man who had basely abandoned her without making any provision for her support from appropriating the wages or the property which she might thereafter gain. More than this it did not do. "So to a poor wife a protection order was but little, if any, advantage, and now seems absolutely useless. For it did not relieve her from cohabitation, it did not compel the husband to pay her any alimony, and it did not permit her to pledge his credit for necessaries."[348]Since the Married Women's Property Acts, therefore, notably those of 1870 and 1882, by which many of the worst evils of the old system have been remedied,[349]the protection order has been of little avail. Accordingly, a new measure of relief was adopted. The act of 1886,[350]in case of desertion, provides that any two justices in petty sessions or any stipendiary magistrate may make a "maintenance order" when they "are satisfied that the husband, being able wholly or in part to maintain his wife and family has wilfully refused and neglected to do so." The maintenance order requires the husband to "pay to the wife such weekly sum, not exceeding two pounds, as the justices or magistrate may consider to be in accordance with his means and with any means the wife may have for her support and the support of her family;" and the payment of the sum so ordered may beenforced by distress or by imprisonment if necessary.[351]Unlike the protection order, the order for maintenance is not expressly declared to be equivalent to a judicial separation; so it is inferred that a husband may "at any moment terminate the desertion," and require to be taken back by the wife who will "be in default" for refusal.[352]By the protection and maintenance orders a deserted wife is secured in the enjoyment of her own property or is given a just share in her delinquent partner's goods. In the meantime, a statute of 1878 attempts to shield her from a husband's brutality through the so-called "separation order."[353]The court is authorized in case of "aggravated assault," if "satisfied that the future safety of the wife is in peril," to order that she shall no longer be bound to live with her husband; that he shall render to her such weekly alimony[354]as may seem just; and to place the children in her custody.[355]This order for "magisterial separation," as it is called, has the "effect in all respects of a decree of judicial separation on the ground of cruelty." Like the protection, and probably also the maintenance, order, it does not preclude the wife's right, when she sees fit, to apply for a judicial separation or even for a dissolution of marriage.[356]
Similar testimony is afforded by the celebrated Foljambe case in 1602, when a court sitting in the Star Chamber incidentally pronounced invalid a marriage which had been contracted after separation from bed and board by decree of an ecclesiastical judge; and this decision follows the advice of a council of the "most sage divines and civilians assembled by Archbishop Whitgift at Lambeth, declaring in harmony with the ancient law that remarriage after judicial separation is null and void."[249]
Strictly speaking, it may not be correct to say, as is commonly done by law writers, that the Foljambe case marks a change in the law of divorce by requiring a return to the doctrine of the ancient church; but from it, at any rate, two important inferences may be drawn. On the one hand, it shows that the custom of remarriage after separationa mensa et thorowas continued to the very end of Elizabeth's reign. On the other hand, it constitutes a stage in the development of a more conservative policy. As such it may have had something to do with the legislation of about a year later. By royal authority in 1603 the canons of 1597 were re-enacted "word for word," and consequently, as already suggested, they incidentally bear witness to the Reformation theory and practice as to divorce and remarriage, while seeming to admit the possibility of a valid dissolution of wedlock by judicial decree.[250]For the first time in English history a statute of 1604 makes bigamy[251]in the modern sensea felony punishable with death; but there are exceptions to the operation of the act which tell strongly in favor of the view that the custom of remarriage after judicial separation had been something more than tolerated. It is expressly provided that the penalty fixed by the act shall not extend to a man or woman who has contracted a new marriage after seven years' desertion; nor to "any person or persons that are or shall be at the time of such marriage divorced by any sentence had or hereafter to be had in the ecclesiastical court."[252]Here it is clear that dissolution of wedlock bysentence of nullity is not intended; for this is provided for by another exception in the act itself. It is equally clear that all cases of divorce by judicial decreearecomprehended, whatever the cause of separation assigned. The law as then interpreted seems to have remained unchallenged until 1637, when in Porter's case the court of King's Bench, without squarely deciding the point, expressed a doubt whether a woman remarrying after divorce for cruelty was exempt from punishment under the proviso of King James's statute; because, "if this should be suffered, many would be divorced upon such pretence, and instantly marry again, whereby many inconveniences would arise. Whereupon she was advised not to insist upon the law, but to procure a pardon to avoid the danger; for it was clearly agreed by all the civilians and others, that the second marriage was unlawful."[253]Nevertheless, the hesitation of the court does not appear to be justified either by the plain words of the act or by the weight of legal authority.[254]
a)The views of Milton.—With the opening of the Stuart era, therefore, a reactionary policy with respect to divorce was established. For two centuries and a half thereafter the principles of the ancient canon law were administered by the English spiritual courts. In fact, it was now more difficult than before the Reformation to escape the marriagetie;[255]for the papal dispensation could grant no relief, and in consequence of the decrease in the number of restraints to a valid marriage, the decree of nullity was not so often a convenient subterfuge. Only the rich or noble were able to afford the costly remedy of a special act of Parliament to cure their matrimonial ills. Hence it is not a little surprising that the Puritan Revolution brought with it no change in this regard. One would naturally expect the Independents under Cromwell's leadership, by whom the remarkable civil-marriage law of 1653 was conceived, to relegate the whole matter of divorce and nullity to the temporal courts under proper legal conditions; yet there seems to be no record of such a course.
But if the Puritan statute-book was silent, Puritan thought produced the boldest defense of the liberty of divorce which had yet appeared. If taken in the abstract and applied to both sexes alike, it is perhaps the strongest defense which can be made through an appeal to mere authority. For, in spite of their casuistry, their inconsistencies, and their injustice to woman, the writings of John Milton may be said to have about exhausted the resources of theological argument and the learning of his age on this subject.[256]He goes farther than Zwingli, Bucer, or any other reformer in admitting grounds for the absolute dissolution of marriage. According to Milton, divorce is a "lawof moral equity," a "pure moral economical law ... so clear in nature and reason, that it was left to a man's own arbitrement to be determined between God and his own conscience;" and "the restraint whereof, who is not too thick-sighted, may see how hurtful and distractive it is to the house, the church, and the commonwealth."[257]It is lawful to Christians "for many other causes equal to adultery," such as cruelty, idolatry, and "headstrong behaviour" on the part of the woman, as also for desertion.[258]For "what are these two cases [adultery and desertion] to many other, which afflict the state of marriage as bad, and yet find no redress?" Hence he spurns a narrow construction as contrary to reason. "What hath the soul of man deserved, if it be in the way of salvation, that it should be mortgaged thus, and may not redeem itself according to conscience out of the hands of such ignorant and slothful teachers as these, who are neither able nor mindful to give due tendance to that precious cure which they rashly undertake; nor have in them the noble goodness, to consider these distresses and accidents of man's life, but are bent rather to fill their mouths with tithe and oblation?"[259]Nor is this the only time when Milton speaks the language of the modern social reformer, though sometimes his strongest arguments from the standpoint of reason are ill sustained by the authority upon which he relies. From the law of Moses, with which he insists that the law of Jesus must agree, he thus reaches the conclusion that just ground of divorce is "indisposition, unfitness, or contrariety of mind, arising from a cause in nature unchangeable, hindering, and ever likely to hinder the main benefits of conjugal society, which are solace andpeace."[260]To this ideal of the true end of wedlock he returns again and again. Rejecting the gross and carnal conception of the Fathers and canonists, their glaring contradiction between marriage as a "defilement" and a sacrament,[261]he urges that matrimony is a society "more than human," centering "in the soul rather than in the body;" a companionship resting upon the "deep and serious verity" of "mutual love," without which wedlock is "nothing but the empty husks of an outside matrimony, as undelightful and unpleasing to God as any other kind of hypocrisy."[262]Hence, where such society does not exist, where mutual affection has given place to deceit, the legal bond of the sham wedlock ought to be dissolved.
Unfortunately, there is another and less pleasing aspect of Milton's teaching. Beyond question saturated as he is in the sentiments of the Hebrew law, Milton has a very low ideal of womanhood. Almost invariably it is the husband's grievances which excite his compassion. Scarcely by implication does he ever admit that the wife may initiate proceedings, private or public, to rid herself of an unwelcome spouse. It is not quite clear whether he would allow her to put away even the unfaithful husband against his will;[263]while repudiation for lack of sympathy, for "loneliness," on account offailure to realize that comfort and full spiritual society upon which he so fondly dwells, is apparently the sole privilege of the man. In his opinion the man is emphatically the head of the woman, who was created by God expressly "to comfort and refresh him against the evil of solitary life."[264]No disciple of Hillel was ever more thoroughly persuaded that mere dislike is adequate cause for putting away a wife at the sole command of the husband than was he. "No libertine, for the sake of wickedness and gratification of low desire, ever demanded greater license in marriage than Milton in the name of religion demanded for Christian men, in order that they might find meet-helps, and escape the grievances of uncongenial wedlock," though doubtless his sole aim was the attainment of domestic purity and happiness.[265]
That this judgment is scarcely too severe is clearly proved by Milton's theory of proper divorce procedure.[266]Rejecting all aid of court or magistrate, he goes back to theancient principle of self-divorce.[267]For it was an "act of papal encroachment" to "pluck the power and arbitrement of divorce from the master of the family, into whose hands God and the law of all nations had put it, and Christ so left it, preaching only to the conscience, and not authorizing a judicial court to toss about and divulge the unaccountable and secret reason of disaffection between man and wife, as a thing most improperly answerable to any such kind of trial." For the sake of "revenue and high authority" the "popes of Rome" have "subjected that ancient and naturally domestic prerogative to an external and unbefitting judicature." Differences "in divorce about dowries, jointures, and the like, besides the punishing of adultery," ought indeed to be referred to the magistrate; yet "against the will and consent of both parties, or of the husband alone," the "absolute and final hindering of divorce" cannot rightly "belong to any civil or earthly power." For "ofttimes the causes of seeking divorce reside so deeply in the radical and innocent affections of nature, as is not within the diocese of law to tamper with." Among such "deep and serious regresses of nature" is hate, "of all things the mightiest divider." Moreover, the lord of the family cannot go wrong in acting from such motive; "for although a man may often be unjust in seeking that which he loves, yet he can never be unjust or blamable in retiring from his endless trouble and distaste, whenas his tarrying can redound to no true content on either side."[268]All this despotic power is placedin the husband's hands for the woman's good; for it is "an unseemly affront to the sequestered and veiled modesty of that sex, to have her unpleasingness and other concealments bandied up and down, and aggravated in open court by those hired masters of tongue-fence.... It is true an adulteress cannot be shamed enough by any public proceeding; but the woman whose honour is not appeached is less injured by a silent dimission, being otherwise not illiberally dealt with, than to endure a clamouring debate of utterless things." Whether it would be well to shame the adulterer by publicity we are not informed. Power would thus be restored to the "master of the family," where it was divinely placed. For its exercise there is but one condition needful among Christian men. The repudiation should take place in "the presence of the minister and other grave selected elders." These are to "admonish" him; and he in turn is to declare solemnly by "the hope he has of happy resurrection, that otherwise than thus he cannot do, and thinks himself and this his case not contained in that prohibition of divorce which Christ pronounced, the matter not being of malice, but nature, and so not capable of reconciling." He must not be restrained further. To do so "were to unchristian him, to unman him, to throw the whole mountain of Sinai upon him, with the weight of the whole law to boot, flat against the liberty and essence of the gospel." The procedure thus provided for by Milton, remarks Jeaffreson, is a "strictly private trial in which the husband discharged the function of prosecutor, furnished the evidence, and played the part of a judge." But Milton is conscious that the denial of a reciprocal liberty to the wife may require some defense. This he supplies by a singular piece of logic, which in its effect would sanction and encourage the basest tyranny for even the vilest purposes, though he does not appear to see it.[269]"The law can only appoint the justand equal conditions of divorce," he declares, "and is to look how it is an injury to the divorced," that is to say, to the repudiated wife. But in truth, he hastens to add, "as a mere separation" it can be no injury to her; "for if she consent, wherein has the law to right her? or consent not, then is it either just, and so deserved; or if unjust, such in all likelihood was the divorcer: and to part from an unjust man is a happiness and no injury to be lamented. But suppose it be an injury, the law is not able to amend it, unless she think it other than a miserable redress, to return back from whence she was expelled, or but entreated to be gone;" or else, if not formally separated, "to live apart still married without marriage, a married widow." The circular argument is thus complete. "The poet, whose Adam prayed the Almighty to give him anequal inferiorfor his companion in the happy garden, does not appear to have conceived it possible for a woman in her right mind to wish to put away her lord and master."[270]
b)Void and voidable contracts.—It is a striking illustration of the completeness with which in social questions the English mind was dominated by theological modes of thought that no change in the law of divorce was effected until the present century. Yet there was crying need of reform. The rigid tightening of the bonds of wedlock seems to have produced its natural fruit. Immorality grew apace.[271]The lot of the married woman became harder even than before the Reformation. To the anomalies of the mediæval system, some of which survived, were added others not less harmful. Chief among them were those arising in the dualism, amounting sometimes to antagonism, subsistingbetween the civil and the spiritual law. Theoretically, of course, the temporal judge had no divorce competence at all. Still where dower or inheritance was involved a policy had to be defined. "Ultimately the common lawyers came to the doctrine that while the divorcea vinculo matrimoniidid, the divorcea mensa et torodid not deprive the widow of dower, even though she was the guilty person."[272]Such was the law onward from the days of Edward III.[273]Earlier, according to Glanville, and apparently also according to Bracton, the woman "divorced for her misconduct can claim no dower;"[274]and even at a time when she was not deprived of dower through the fact of divorce, she might have the right to claim it taken away as a punishment for her crime, if she "eloped and abode" with her paramour.[275]
Especially disastrous in its effects was the absurd distinction, maintained after as well as before the Reformation, betweenvoidandvoidablemarriages.[276]This had its originin the canonical doctrine of "putative" wedlock.[277]A union unlawful on account of some diriment impediment, such as affinity or consanguinity, was held not to beipso factovoid, but only voidable, if it had been solemnized with the proper rites of the church; and the temporal courts assumed the validity of all such marriages until they were declared null by an ecclesiastical decree. The happiness of an innocent family was thus put in jeopardy. At any moment a fatal flaw in the union might be discovered or for money invented, whenpro salute animaruma separation of the parties would be enforced. In that case the canonists declared that the issue should not suffer. If one or both of the parents were ignorant of the impediment at the time the children were born, these were held to be legitimate. This rule was adopted by the secular courts in determining questions of inheritance. "As late as 1337 English lawyers still maintained that the issue of ade factomarriage, which was invalid because of the consanguinity of the parties, were not bastards if born before divorce.[278]Later, however, they developed a different doctrine which was enforced after the Reformation. Taking "no heed of good or bad faith," the temporal law even in Protestant times made the "legitimacy of the children depend on the fact that their parents while living were never divorced."[279]The persons separated for spurious wedlock were permitted to contract new marriages; but in that event they were exposed to one of the innumerable hardships caused by the fine-spun theories of the canonists. The "validity of the first marriage was always anopen question, and new evidence might at any time reverse the decree. In this case the second marriage would be a nullity and the first would recover its obligatory force, so that now two separations, it might be, would be demanded by canonical law."[280]But from the reign of James I., through intercession of the temporal courts, the action for voidance of false wedlock had to be brought during the joint lives of the consorts.[281]After the death of either spouse the spiritual judge was prevented from issuing a decree. For all practical purposes the spurious marriage then became a valid marriage, and the unlawful issue became legitimate;[282]though, absurdly enough, the surviving consort might be punished for the sin of wedding within the forbidden degrees.[283]
Such remained the state of the law until the appearance of Lord Lyndhurst's act in 1835.[284]This statute declares, because "it is unreasonable that the state and condition of the children of marriages between persons within the prohibiteddegrees of affinity should remain unsettled during so long a period" as the joint lives of the parents, therefore "all marriages which may hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity" ought to "beipso factovoid, and not merely voidable;" and accordingly it is so enacted. With respect to existing unions of this kind a distinction is made between "affinity" and "consanguinity." Marriages within the forbidden degrees of affinity already celebrated may not "hereafter be annulled for that cause by any sentence of the ecclesiastical court," unless pronounced in a pending suit; while existing marriages within the prohibited degrees of consanguinity are not so exempt.[285]Voidable wedlock in the sense here employed[286]thus disappears from the English law, except in those minor cases where "canonical" impediments are still recognized.[287]
Lord Lyndhurst's act was especially designed to put an end to marriage with a deceased wife's sister.[288]Such unions, clearly unlawful, appear to have become very common since the age of the Stuarts.[289]For where no property or otherinterests were at stake a man's marriage with his sister-in-law was likely to go unchallenged until the death of husband or wife made it perfectly valid. Doubtless in such cases, through delay in "collusive suits," greedy relatives may sometimes have been prevented from securing estates which by natural justice, if not by law, belonged to the children or other heirs; for "no fresh proceedings could be initiated so long as any suit of a similar kind was pending."[290]But the avowed purpose of the act is its best justification, if the times were not ripe for a more liberal remedy. If this class of marriages could not be legalized in harmony with the practice of most other civilized peoples, it was perhaps well in this way to make an attempt to relieve their innocent offspring from the uncertainty which "hung over them sometimes for years like a sword of Damocles."[291]The attempt, however, did not prove successful. "In 1847 a Royal Commission was appointed to inquire into the state and operation of the law of marriage as relating to the prohibited degrees of affinity. In their report the commissioners state that of marriages within the prohibited degrees by far the most frequent class was that of marriage of a widower with a sister of his deceased wife, so that in fact it formed the most important consideration in the whole subject; and that as these so-called marriages will take place, especially among the middle and poorer classes, when a concurrence of circumstances gives rise to mutual attachment, the commissioners were of opinion" that Lord Lyndhurst's act "had failed to attain its object." They furthermore declare, even at this early date, that such unions are permitted, "by dispensation or otherwise, in nearly all thecontinental states of Europe," as well as in most of the states of the American Union.[292]
No legislation followed the commissioners' report. Nor, despite repeated efforts, has the perennial "deceased wife's sister's bill" ever yet become a law. It is, indeed, curious to see a noble senate capable of accepting the liberal civil marriage law of 1836 still stubbornly resisting in this particular the secularizing of marriage which a recent writer observes "is an evident accompaniment, if it is not a consequence, of the progress of democracy."[293]There "can be little doubt,"adds the same author, "that the opposition to these marriages rests mainly upon theological grounds."[294]Yet even on such grounds it is hard to see why the Protestant theologian or lawgiver should retain them in the table of degrees of affinity prohibited by the code of Moses, while other provisions of that law far more clearly enjoined are rejected or ignored. "The Jews themselves maintain that this kind of marriage is not forbidden in the Old Testament, and great numbers of the most eminent Christian divines concur in their opinion."[295]The Catholic is far more consistent and liberal in this respect; for he "regards the prohibition as resting, not on direct Divine or natural law, but merely on an ecclesiastical command, and his Church therefore claims and constantly exercises the right of dispensing with it."[296]The arguments on either side of the controversy need not here be summarized. Those in favor of the prohibition rest almost wholly upon authority. Only secondarily is an attempt made to defend it on social, political, or moral grounds. For most people of the civilized world[297]the subject is already "ancient history." Hence the modern student who first takes this controversial literature in hand is amazed to find men of high repute still earnestly speaking the language of the Middle Ages; still juggling with the casuistry and quibbles which satisfied Tancred and his predecessors.[298]
The nature of the problem and the way it is conceived by the English theological mind are thus strongly stated by Lecky in the fine paragraph with which he closes his interesting discussion of these marriages: "It would be difficult to overstate the extravagance of the language which has been sometimes employed in England by their opponents. One gentleman, who had been Lord Chancellor of England, morethan once declared that if marriage with a deceased wife's sister ever became legal 'the decadence of England was inevitable,' and that, for his part, he would rather see 300,000 Frenchmen landed on the English coasts.[299]Pictures have been drawn of the moral anarchy such marriages must produce, which are read by American, colonial, and continental observers with a bewilderment that is not unmixed with disgust, and are, indeed, a curious illustration of the extreme insularity of the English mind. The truth seems to be that there are cases in which the presence of a young and attractive sister-in-law in a widower's house would, under any system of law, produce scandal. There are others where, in all countries, a sister-in-law's care and presence would seem natural. There are cases where every murmur is silenced by the simple consideration that the two parties are at perfect liberty to marry if they please. Experience—the one sure guide in politics—conclusively shows how quickly the best public opinion of a country accommodates itself to these marriages; how easy, natural, and beneficent they prove; how little disturbance of any kind they introduce into domestic relations. They will long be opposed on the ground of ecclesiastical traditions, and apart from all considerations of consequences, by a section of theologians in England, in America, and in the Colonies. Those who consider them wrong should abstain from contracting them, and a wise legislature will deal gently with the scruples of objecting clergymen, as it has done in the case of the marriage of divorced persons. But the law of the land should rest on other than ecclesiastical grounds, and a prohibition that hasno foundation in nature or in reason is both unjust and oppressive. It is not for the true interests of morals or of family life that the law should brand as immoral, unions which those who contract them feel and know to be perfectly innocent, and which are fully sanctioned by the general voice of the civilised world, by an overwhelming majority of the English race, by a great and steadily increasing weight of public opinion at home, and by repeated majorities in the House of Commons. In an age when most wise and patriotic men desire that the influence and character of the Upper House should be upheld and strengthened, few things can be more deplorable than that this House should have suffered itself to be made the representative of a swiftly vanishing superstition, the chief instrument in perpetuating a paltry and an ignoble persecution."[300]
c)Parliamentary divorce.—More than twenty years were yet to pass before the appearance of the first English statute providing for divorce through regular civil process. Proximately the act of 1857 owes its origin to the anomaly of parliamentary divorce, whose glaring inconsistency but served to accent the evils fostered by the canons of 1603. In theory marriage continued to be absolutely indissoluble. Only by giving bond not to marry again could a person secure even a judicial separation. No matter how grave the offense, or how notorious the breach of the nuptial vow, the parties in most legal respects were chained for life. At most they might be suffered to dwell apart. Obviously the proper remedy would have been a general law of civil divorce whose benefits should be placed within the easy reach of rich and poor alike. Instead, a resort was had to special acts of Parliament whose advantages could be enjoyed only by a fortunate class.[301]The practice originated inthe last years of the seventeenth century, though it may have been suggested by prior instances of legislative intervention in matrimonial questions. As early as 1436 a marriage obtained by force was declared void.[302]More clearly analogous is the opposite case of Lord Northampton, already mentioned, whose second marriage after decree of separation was pronounced valid in 1552. This, however, is not an instance of parliamentary divorce.[303]Nor, strictly speaking, is that of Lord Roos in 1670, which Macqueen regards as the first "genuine example;" for the bill is entitled merely "an act for John Manners, called Lord Roos, to marry again;" and does not as alleged expressly effect a "rescission of the contract."[304]The earliest clear precedents are the caseof the Earl of Macclesfield in 1698 and that of the Duke of Norfolk, two years later, in each of which the act provides for a dissolution of marriage.[305]Ultimately (1798) a standing order of the House of Lords requires that "all bills of divorce shall be preceded by a sentence of separationa mensa, issuing out of the ecclesiastical court;"[306]and usually such bills must be preceded also by the action at law against the guilty paramour for damage.[307]Thus a vast power was placed in the hands of the spiritual courts to hinder an aggrieved husband or wife from resorting to Parliament for redress. This fact is illustrated in the history of the cases already cited. Lord Roos had previously secured a decree of separation, no mention being made of an action for damage. In Lord Macclesfield's case the bill for divorce was sustained neither by a judgment at law nor by an ecclesiastical sentence. For "in consequence of the skilful opposition set up by the countess in the spiritual courts, and the narrow antiquated maxims which there prevailed, she contrived to baffle all her husband's efforts to obtain a sentence of divorceà mensâ et thoro. The circumstances of the case, however, were so scandalous and flagrant, that it would have been an outrage upon every principle of justice to withhold relief." In like manner for seven years theDuke of Norfolk tried in vain to obtain a decree of separation, although he "recovered damage at law from the adulterer, Sir John Jermayne."[308]But in no other case save these two has there been a successful resort to Parliament without first obtaining the sentence of an ecclesiastical judge;[309]and the clumsy, almost farcical, nature of the procedure in divorce suits may be more fully appreciated when it is borne in mind that an aggrieved spouse desirous of securing a divorce from a guilty partner through an act of Parliament was compelled, before he could "get through the ecclesiastical courts, to pledge himself not to remarry."[310]
In consequence of the standing order of the House of Lords, Parliament was unable to grant relief, except on the one ground of conjugal infidelity; for the spiritual court declined to issue a decree of separation for malicious desertion, unless in connection with acts of cruelty.[311]"On a retrospect of one hundred and seventy years, since the establishment of the system of parliamentary divorcea vinculo," says Macqueen, writing in 1842, "I find no case in which that remedy has been awarded or sought, without a charge of adultery. There is no example of a bill of divorce for malicious desertion," although from the Reformation onward this has been a clearly recognized ground for dissolution of wedlock in other Protestant lands.[312]Furthermore, with respect to the rights of the wife Parliament was more illiberal than the spiritual courts themselves, refusing, even after the ecclesiastical sentence of separation, to free her from a dissolute husband, unless his offense were attended by "aggravating" conduct, such as cruelty. In no case was the woman granted relief merely for the husband'sunfaithfulness, however flagrant and shameless his conduct might be. Indeed, for the entire period during which the practice existed, there were but three or four examples of legislative divorce at the instance of a woman, and in each case the man's infidelity was attended by other offenses.[313]In two other cases the bill of the wife was rejected by the Lords, although the grievous wrong which she had suffered was established by the clearest proof.[314]Parliament appears to have accepted the view of Dr. Johnson that there is a "boundless" difference between the infidelity of the man and that of the woman. In the husband's case, according to that philosopher, there is no danger of a "confusion of progeny;" and this, he says, "constitutes the essence of the crime."[315]Therefore, "wise married women don't trouble themselves" about such mere peccadilloes.[316]
The sphere of parliamentary divorce was greatly narrowed in still other ways. As a matter of fact, for the century and a half during which the practice prevailed perhaps not morethan two hundred such separations were granted.[317]In the first place, the rules of evidence observed in the spiritual courts tended to thwart justice even in cases of the most cruel and scandalous wrongs. Two witnesses were invariably required; whereas in the lay tribunals one witness is accepted as sufficient when no more can be had.[318]On such testimony, for instance, damage may be awarded in the suit at law for adultery, when the same evidence is rejected as insufficient in the ecclesiastical action for separation. Yet it is precisely in cases of adultery that a "penuria testiumis most likely to occur. To require two witnesses of facts almost necessarily secret is, in most cases, to ensure a denyal of justice. Of this constant examples are to be found in the records of the ecclesiastical courts."[319]
Again, the relief granted by Parliament was effectively placed beyond the reach of all save the plutocracy. The triple cost of the law action, the ecclesiastical decree, and the legislative proceedings was enormous. How utterly the luxury of divorce was placed beyond the wildest dreams of the poor man clearly appears when one understands that it couldbe obtained only through the expenditure of a fortune sometimes amounting to thousands of pounds.[320]The shameful injustice of the system has never been so vividly brought out as in the often-quoted words of Justice Maule in a case tried before him in 1845: "The culprit was a poor man who had committed bigamy. The defence was that when the prisoner married his second wife he had in reality no wife, for his former wife had first robbed, and then deserted him, and was now living with another man. The judge imposed the lightest penalty in his power, but he prefaced it with some ironical remarks which made a deep and lasting impression. Having described the gross provocation under which the prisoner had acted, he continued: 'But, prisoner, you have committed a grave offence in taking the law into your own hands and marrying again. I will now tell you what you should have done. You should have brought an action into the civil court, and obtained damages, which the other side would probably have been unable to pay, and you would have had to pay your own costs—perhaps 100l.or 150l.You should then have gone to the ecclesiastical court and obtained a divorcea mensa et thoro, and then to the House of Lords, where having proved that these preliminaries had been complied with, you would have been enabled to marry again. The expenses might amount to 500l.or 600l.or perhaps 1000l.You say you are a poor man, and you probably do not possess as many pence. But, prisoner, you mustknow that in England there is not one law for the rich and another for the poor.'"[321]
d)The present English law.—It is, indeed, wonderful that a great nation, priding herself on a love of equity and social liberty, should thus for five generations tolerate an invidious indulgence, rather than frankly and courageously to free herself from the shackles of an ecclesiastical tradition! But even in England, so far as the state is concerned, the dogma that marriage is an indissoluble bond has finally run its course. A partial remedy for the scandals and hardships of the existing system was at last grudgingly provided in the civil divorce law of 1857. By this act,[322]which during a whole session of Parliament was stubbornly resisted, mainly on religious grounds,[323]the entire jurisdiction in matrimonial questions hitherto belonging to the spiritual courts, except "so far as relates to the granting of marriage licences," is transferred to a new civil "Court for Divorce and Matrimonial Causes;" and since 1873 this tribunal has givenplace to the "Probate, Divorce, and Admiralty Division" of the "High Court of Justice."[324]It is "a court for England only," its competence not extending to Ireland, Scotland, or the Channel Isles.[325]
By the law of 1857, supplemented in various ways through subsequent statutes, three forms of separation are recognized. First, on petition of either consort the court is empowered to grant a complete dissolution of wedlock; but in this respect the provisions of the act are conceived in the same narrow spirit that actuated the policy of legislative divorce. The woman is treated with precisely the same injustice. For while the husband may secure an absolute divorce on account of the simple adultery of the wife, the wife is unable to free herself from an unfaithful husband unless his infidelity has been coupled with such cruelty as "would have entitled her to a divorcea mensa et thoro;" or "with desertion, without reasonable cause, for two years and upwards;" or with certain other aggravating offenses.[326]Friends and enemies of the bill alike joined in condemning the unequal position in which man and wife were placed. Gladstone, who tenaciously resisted the act on theological grounds, declared: "If there is one broad and palpable principle of Christianity which we ought to regard as precious it is, that it has placed the seal of God Almighty upon the equality of man and woman with respect to everything that relates to these rights."[327]On the other hand, the attorney-general,who introduced the measure, found it necessary to apologize for this defect. "If this bill," he says, "were thrown aside and the whole law of marriage and divorce made the subject of inquiry, I should be the last man to limit the field of discussion or to refuse to consider a state of law which inflicts injustice upon the women most wrongfully and without cause, and which may be considered opprobrious and wicked;" moreover, he continues, the "present bill need not be the end-all of legislation upon the subject."[328]
In judicial practice, however, the terms "cruelty" and "desertion" have acquired a rather broad meaning.[329]In particular through the doctrine of "constructive" and "moral" cruelty there is a "strong tendency to equalize the positions of the two" sexes.[330]Nevertheless, the woman is still in a relatively unfavorable position; and the sphere of divorcea vinculois exceedingly narrow. There are doubtless many other causes besides infidelity for which the welfare of society and the happiness of individuals require that marriage may be dissolved. "It is a scandal to English legislation," observesLecky, that divorce "should not be granted when one of the partners has been condemned for some grave criminal offence involving a long period of imprisonment or penal servitude, or for wilful and prolonged desertion, or for cruelty, however atrocious, if it is not coupled with adultery. In all continental legislations which admit divorce a catalogue of grave causes is admitted which justify it."[331]
While depriving the ancient spiritual tribunals of the monopoly of matrimonial jurisdiction which they had so long possessed, Parliament made a proper concession to the scruples of the regular clergy. By the act a divorced person, whether guilty or innocent, is permitted to marry again if he likes; but a clergyman of the "United Church of England and Ireland" is not compelled to solemnize the marriage. Should he refuse, however, he cannot legally prevent a brother-minister of the establishment from using his church or chapel for the celebration; and this last provision has in our own day become a standing grievance on the part of those who denounce such a celebration as a "defilement" of the sanctuary.[332]
The act of 1857 directs that, before granting a decree, the court shall "satisfy itself, so far as it reasonably can, not only as to the facts alleged," but also whether there has been any collusion between the petitioner and either of the respondents, or whether there is any bar or counter-charge against the petitioner.[333]But no special procedure was created for making the inquiry suggested, "nor could a stranger without any legal private interest intervene."[334]The necessary machinery for that purpose was provided by the Matrimonial Causes Act[335]of 1860, which rests upon the theory "that the public is interested in seeing that no marriage is dissolved except on certain grounds."[336]Two distinct stages in the proceedings for a dissolution of wedlock are prescribed. If a sentence of divorce be rendered, it must always in the first instance be a decreenisi. Only after an interval of six months, unless a shorter time be set by the court, can such a decree be madeabsolute. In the meantime, the queen's proctor, or any member of the public, whether interested in the suit or not, may "intervene" to show collusion or the suppression of material facts;[337]and in case of such interventionthe court shall deal with the cause "by making the decree absolute, or by reversing the decreenisi," or by conducting further examination, as "justice may require."
Secondly, the present English law allows a decree for "judicial separation" with the "same force and the same consequences" as the former sentence of divorcea mensa et thoro, which is abolished by the act of 1857.[338]To such a decree either the husband or the wife is entitled on the ground of adultery, cruelty, or two years' desertion;[339]provided no legal bar to the petition such as condonation, cruelty, or a separation deed, be established. At the prayer of the petitioner, or when the evidence is insufficient to warrant a decree of complete divorce, a judicial separation may be granted in a suit brought for dissolution of marriage.[340]After such separation the wife is considered as afeme solewith respect to property, contracts, wrongs, suing and being sued; and her husband is not liable for her engagements.[341]In place of the old action at law for "criminal conversation" a prayer for damage against the wife's paramour may be joined with the petition for judicial separation or for dissolution of wedlock; or the aggrieved husband may make separate application for indemnity.[342]Adultery thus becomes a mere "private injury" and not a crime. The damage recovered may be "applied by the court for the benefit of the children of the marriage or for the maintenance of the wife." When the wife is the guilty person and is entitled to property in possession or in reversion, the court, at its discretion, may settle "such property, or any part of it, on the innocent party, or on the children of the marriage."[343]The rules, principles, and procedure observed in the old ecclesiastical courts are to be followed by the civil judge in a suit for judicial separation except as otherwise provided by statute.[344]
In the third place, by the existing law provision is made for what is commonly called "magisterial separation." The "separation order," presently to be considered, is one of several remedial devices introduced by various statutes in the injured wife's behalf. Thus the act of 1857 enables a woman deserted by her husband to apply to a local court of summary jurisdiction, or, if she prefer, to the high divorce court of the kingdom, for an order to protect her subsequently acquired earnings or property from being seized by him or any of his creditors.[345]By this "protection order" the wife is to be in the same position as to property and contracts, suing and being sued, as if she had obtained a decree of judicial separation.[346]In all respects she is treated as afeme sole. For a number of years after it was first introduced the protection order was a means of real redress; for then, according to the principles of the barbarous laws of the Middle Ages which still survived, a married woman without settlements had practically no property rights at all during her husband's lifetime. Her landed property at marriage passed into his control; her chattels and personaleffects of every description became absolutely his; and she had no legal power to dispose even of the wages of her own toil.[347]The protection order merely gave the wife her own, preventing the man who had basely abandoned her without making any provision for her support from appropriating the wages or the property which she might thereafter gain. More than this it did not do. "So to a poor wife a protection order was but little, if any, advantage, and now seems absolutely useless. For it did not relieve her from cohabitation, it did not compel the husband to pay her any alimony, and it did not permit her to pledge his credit for necessaries."[348]Since the Married Women's Property Acts, therefore, notably those of 1870 and 1882, by which many of the worst evils of the old system have been remedied,[349]the protection order has been of little avail. Accordingly, a new measure of relief was adopted. The act of 1886,[350]in case of desertion, provides that any two justices in petty sessions or any stipendiary magistrate may make a "maintenance order" when they "are satisfied that the husband, being able wholly or in part to maintain his wife and family has wilfully refused and neglected to do so." The maintenance order requires the husband to "pay to the wife such weekly sum, not exceeding two pounds, as the justices or magistrate may consider to be in accordance with his means and with any means the wife may have for her support and the support of her family;" and the payment of the sum so ordered may beenforced by distress or by imprisonment if necessary.[351]Unlike the protection order, the order for maintenance is not expressly declared to be equivalent to a judicial separation; so it is inferred that a husband may "at any moment terminate the desertion," and require to be taken back by the wife who will "be in default" for refusal.[352]
By the protection and maintenance orders a deserted wife is secured in the enjoyment of her own property or is given a just share in her delinquent partner's goods. In the meantime, a statute of 1878 attempts to shield her from a husband's brutality through the so-called "separation order."[353]The court is authorized in case of "aggravated assault," if "satisfied that the future safety of the wife is in peril," to order that she shall no longer be bound to live with her husband; that he shall render to her such weekly alimony[354]as may seem just; and to place the children in her custody.[355]This order for "magisterial separation," as it is called, has the "effect in all respects of a decree of judicial separation on the ground of cruelty." Like the protection, and probably also the maintenance, order, it does not preclude the wife's right, when she sees fit, to apply for a judicial separation or even for a dissolution of marriage.[356]