The Sun.
London, England, 1853-03-29 00:00:00

THE LA TV OF DIVORCE.

The Cornaioners--Lord Campbell, Dr. Lushington,
Lord lhauin nit, Lord Bedesdale, Mr. Bouverie, Mr. Wal-
pole, an 1 Si: Page Wood, appointed in December, 1850, to
inquire in , the 14.1 v of Divorce, had just published their
first report.
We subjoin a portion of this interesting document :

I. Your Majesty's Commissioners appointed to inquire
.nto the present state of the law of divorce, and more par-
ticularly into the mode of obtaining divorce a vinculo raa-
trimonii in this country, have humbly to submit to your
Majesty's consideration the following report, explaining, in
the first place, what the law is, and suggesting, in the se-
cond place, some important alterations by which, in the
opinion of your Majesty's Commissioners, it might be im-
proved.
11. In the first place, we would observe that divorces in
England are of two kinds—the one partial, and the other
total. Partial divorces are called divorces 4 mend et thoro,
because they separate the married parties from each other's
society without dissolving the marriage union. Total di-
vorces are called divorces d vinculo fnatrimonii because
they dissolve that union altogether, either on the ground
of some antecedent incapacity which rendered the contract
void from the beginning, or on the ground of some super-
venient cause which having arisen subsequent to the mar-
riage, justifies the parties in desiring to put an end to it.
111. Divorces a mensci et thoro are little more in the eye
of the law than simple separations ; they only last until
the parties think fit to be reconciled ; and they are granted
at the suit of the husband or wife, when the gross mis-
conduct of either of them, such as cruelty, adultery, or
the like, have rendered it impracticable for them to live
together.
IV. The common law of England, which follows in this
case the canon law of the Church, " deems so highly, and
with such mysterious reverence, of the nuptial tie," that
the causes of divorce are purposely limited to a few ex-
treme and specific provocations ; and the preservation of
that union, so long as it can be secured, is so manifestly
essential to the best interests of society, that before it can
be dissolved it must be clearly established by the strictest
proof that the offence has been committed ; that there is
no contrivance by which the parties are endeavouring to
escape from their solemn obligations to themselves and their
children; that they cannot discharge their mutual duties
by continuing any longer to cohabit with each other, and
that the party complaining is free from guilt. Hence have
arisen certain well-known rules, which the Ecclesiastical
Courts have invariably acted upon; as, first, that divorce
will only be granted for the extreme provocations adverted
to above ; secondly, that the law will not suffer it to be
obtained on the sole confession of the parties them-
selves ; and, thirdly, that it will be refused, even al-
though an offence has been committed which would other-
wise justify it, if collusion, connivance, condonation, or
recrimination can be pleaded and proved. These rules are
all of them founded on the soundest wisdom ; and though
they may require some little modification, which will be
adverted to hereafter when we come to consider the sug-
gested improvements, we conceive that in substance they
ought to be maintained.
V. Since the effect of a divorce a mend et thoro is not
to dissolve the marriage bond, but simply to authorise,
under certain circumstances, the separation of the parties,
their legal rights remain in most respects what they were
before ; though their moral obligations towards themselves
and their children are materially altered by the impossi-
bility of discharging them any longer together. For which
reason a divorce of this kind will neither bar the wife of
her dower, nor deprive the husband of his martial rights
in respect of her property. Nor will it enable either of
the parties to marry again ; nor will it exempt them from
the censure of the Ecclesiastical Court for living incon-
tinently. Nor will it bastardise the subsequent born
issue ; but during the separation the court will decree
a competent allowance to the wife for her maintenance
under the name of alimony. This allowance ,depends
on the innocence or delinquency of the parties, and is
measured by the means and circumstances of the hus-
band. In cases of elopement, or when the wife is
living in adultery, none will be awarded ; but when
she is innocent, and the delinquency of the husband
is clearly established, the law considers that as she is
separated by his misconduct from all the comforts of
matrimonial society, she ought to be liberally provided for
by him. The amount is left to the discretion of the judge;
sometimes a moiety of the property has been given, some-
times a third, and sometimes less, regard being had to a
variety of circumstances ; such as the condition of the hus-
band, his station in life, the support of the children, and
especially to the circumstance where the allowance has been
a large one, whether the bulk of the fortune came origi-

nally—from her.
VI. Total divorces, or divorces a vinculo matrimonii, are
those which annul or those which rescind the marriage con-
tract ; the former being grounded on some antecedent
incapacity which rendered it in reality void from the be-
ginning ; the latter being granted in consequence of some
supervenient cause, which, having arisen subsequently to
the marriage, justifies the parties in desiring to put a stop
to it. _ .

ifql. With regard to the former, the causes for which a
marriage might be annulled were much more extensive be-
fore the Reformation than they are present. Before the
Reformation marriages were liable to be set aside upon
proof of pre-contract with some other person, or because
the connexion was within the degrees of consanguinity or
affinity prohibited by the canon law, " which was far more
restrictive than the law of God." But since the Reforma-
tion these rules have been altered on account of the incon-
veniences which resulted from them ; for, to use the lan-
guage of an old stntute, " Marriages were brought into such
uncertainty thereby that none could be surely knit and
bounden, but it should be in either of the parties power
and arbiter, casting away the fear of God by means and
compasses to prove a pre-contract, a kindred and alliance,
or a carnal knowledge to defeat the same." Accordingly,
that statute has declared all marriages to be good and in-
dissoluble, notwithstanding a pre-contract ; and the for-
bidden degrees are limited to those which the law of God
defines. The only grounds, therefore, since the passing of
that statute for nullifying and absolving the marriage con-
tract by reason of some antecedent incapacity, are relation-
ships within the forbidden degrees, a previous marriage,
corporal imbecility, or mental incompetency.
VIII. In cases of this description the Ecclesiastical Courts
do not exercise, nor do they possess, a rescinding power.
They have no authority, at least in the present day, to dis-
solve a marriage good in itself, whatever may be the delin-
quency of the parties. And the sentences pronounced are
improperly termed sentence of divorce a vinculo matri-
monii, for in the cases to which alone such sentences are
applicable, there is in fact, in the eye of the law, no legal
vinculum or binding tie of any kind._

IX. The effects ola sentence nullifying a marriage are,
first, that the wife is barred of her dower ; secondly, that
the issue are illegitimate ; and thirdly, that the parties so
divorced may marry again,
X. With regard to divorces which rescind the marriage
contract, it is to be observed that, strictly speaking, they
are unknown to our law. By the law of England, that
contract is indissoluble, and when once it has been consti-
tuted in a legal manner there are no means of putting an
end to it in any of our courts. Nevertheless, the actual
dissolution of such a contract, when adultery has been com-
mitted, is so consonant to reason and religion, that where
the general law has failed to give a remedy, Parliament has
stepped in to provide one specially by passing a particular
law in favour of those who can make out a case which will
warrant its interference. The origin of this is important
and instructive.
XI. In Roman Catholic times, marriage was regarded as
a sacrament by the canon law ; and being a sacrament, it
was deemed indissoluble. But when the Reformation came,
the courts denounced, amongst other opinions of the Romish
Church, the doctrine of a sacrament in marriage, " retaining
the idea of its being of divine institution in its general origin,"
but considering it in the light of a civil contract, which,
for its full completion, had always required, in England
at least, some religious solemnity. The character of mar-
riage was thus materially altered ; for since it was no
longer to be deemed a sacrament, there was nothing, on
that account, to render it indissoluble ; and as the reform-
ers were about to revise the whole body of the canon law,
which had become unsuitable to a Protestant-country, they
did not omit the matrimonial code. With this view
various acts were passed, providing that the Crown should
have full power to nominate commissioners (16 ecclesiastic,
of whom four were to be bishops, and 16 laymen,
of whom four were to be lawyers) to order and
compile such laws ecclesiastical as should be thought
convenient. " A work was accordingly composed
for this purpose by Cranmer, and translated into
Latin with a happy imitation of the clear method and ele-

gant brevity of the Roman jurists, by Sir John Cheke and
Dr. Haddon, two of the restorers of classical literature in
England." This work, having never received the Royal
confirmation, is not indeed law, but it is of great authority.
It has been published under the title of " Reformatio Le-
gum Ecelesiasticarum," and the articles on the subject of
marriage and divorce are peculiarly interesting, as contain-
ing, in a short compass, the opinions of our first reformers
on matters which affect the civil rights of all men, as well
as the highest of all the moral interests of society.
XII. By these articles, when the husband or wife had
committed adultery, a divorce was allowed, and the nu-
offending party might marry again. But if both were guilty,
since both must fall under the same condemnation, the first
marriage was not to be dissolved. Absolute desertion, pro-
tracted absence, mortal enmities, and lasting cruelty, were
all adjudged to be lawful grounds of divorce. But reconci-
liation was inculcated wherever it could be obtained and
separations from bed and board were entirely abolished. It
was, moreover, recommended that adultery should be pun-
ished by perpetual imprisonment or transportation for life;
and if the offender were the husband, he was to return to
the wife with her fortuno, and add to it one-half of his
own; or if the wife, she was to forfeit her jointure, and
all the advantages which by law, custom, settlement, or
promise, &c., she might have otherwise derived from her
marriage.
XIII. It is supposed that the regulations contained in
this code on the subject of divorce were occasioned by the
case of Parr, Marquis of Northampton, who had divorced
his wife, Anne, Boucher, for adultery, in the Ecclesias-
tical Court. For, according to the custom which then
prevailed, it is probable that divorces had no certain and
immediate effect beyond that of a legal separation from
bed and board. A commission, however, was appointed
to inquire whether by a divorce on this ground, that is to
say, on the ground of adultery, he was not so divorced from
Lady Anne, that no divine law prohibited his mar-
riage. The marquis was too impatient to wait for
issue of the commissioners' researches, and in the in-
terim he married again, Elisabeth Brooke, daughter
to Lord Cobham. Two years afterwards, the commis-
sion made answer to the queries put to them, " that the
band of wedlock being broken by the mere fact of infidelity
the second marriage was lawful.' After that, the Parlia
ment of 1551 confirmed this answer by declaring that the 4
marriage of Northampton and Elisabeth Brooke was " law-
ful, as by the law of God indeed it was, any decretal,
canon ecclesiastical, law or usage to the contrary notwith-
standing." But since this statute was repealed by a law
passed in the following reign, " nothing is left of these
proceedings except the advised and lasting belief of Cran-
mer and his associates in Reformation, that a more exten-
sivxie lvibe. rtAyppofaredinvtolryc,e ouginfahettoit bweasallalowloelvde.d
for
nytirrtehlte6o;ll-,
half a century. For it has been observed by Sir John
sSetorvaddtaiort—n—atnhdatthferroemistshoemyeera7slosnsofo, ruanstsielnttbineg
stronger
an
marriage was not held by the Church,
be
ther and sstill Eonargfers
case
n
se ieoetneh;lrdoobf by the
sla;wa,ndto ano indissoluble.tidtherefore
was
one is the language t
hpuels.
process
ndleossl6)tyhntfhe
canon
ecclesiastical
rdtea ssj mtu
among
dun
mu iastical authorities
non a discrimination is
emfadles97l;etwFeeern by
pro-
cess of annulling matrimony, remedies dissolving and the
or supposed to exist, in the spiritual
have
savine tatvesaeyswobredesn:--re; 'st ng,
then existing,
or courts. The canon
therefore require the
be handled and debategdurFetortem.
wherein matrimony is required to be dissolved or annul-
caus
led, we strictly charge and enjoin that in all proceedings in
teianostnt
especially
as
pbtwer leneShuentyyii weightiest,
cases
divorce and nullities of marriage, good circumspection and
advice be used, and that the truth may as far as possible
• be sifted out by the depositions of witness and other law-
ful proof, and that credit be not given to the sole conies-

glean; of the parties themselves, howsoever taken upon
oath, either within or without the court."
XV. The Church, however, was still anxious to dis-
courage as much as possible a second marriage after di-
vorce ; and accordingly it requires, by the 109th canon,
that "in all sentences pronounced only for divorce and
separation a mewl, et thoro, there shall be a caution and
restraint inserted in the said sentence, that the parties so
separated shall live chastely, and neither shall they, during
each other's life, contract matrimony with other person.
And for the better observance of this last clause, the said
sentence of divorce shall not be pronounced until the party
or parties requiring the same shall have given good and
sufficient caution and security unto the Court, that they
will not any way break or transgress the said restrain or
prohibition. '
XVI. Now the very fact of enjoining a prohibitory- bond
implies that the marriage, which the bond was intended to
prevent, would have been valid. It is so laid down by the
learned and judicious Dr. Hammond, with great clearness,
for he says, That requiring a bond does infer that this
marriage, after a Christian divorce, is not looked on by the
Church as an adulterous commission, but rather as a matter
of dangerous consequence ;" and such would appear to have
been the prevailing opinion of our ablest divines of the

17th century.
XVII. While the Church of England disclaimed, as a
body, the doctrine of indissolubility, it is probable that
many members of it adhered to the old opinion ; for when
the case of Foljambe (who, after a divorce, had married a
second time living his first wife), was brought before the
Court of Star Chamber, it was there held that the second
marriage was void " because" according to the report of
Moore, " the first divorce was but a mend et thoro and not
vznculo matrimonii ; and John Whitgift, then Archbishop
of Canterbury, said that he had called to him at Lambeth
the most wise divines and civilians, who all agreed on this."
Now this determination was inconsistent with the opinions
of the reformed divines in the " Reformatio Legum," it
clashes with the case of the Marquis of Northampton, and
it cannot be reconciled with the ecclesiastical constitutions
of 1597 ; and it was also opposed to the practice of the
laity for at least half a century. Accordingly, Mr. Ser-
geant Salkeld, lays it down that " divorce for adultery
was anciently a vinculo matrimonii, and, therefore in the
beginning of the reign of Queen Elizabeth, the opinion of
the Church of England was, that after a divorce for adul-
tery the parties might marry again. But in Foljambe's
case, he adds, Anno 44 Elizabeth, in the Star Chamber,
that opinion was changed. And Archbishop Bancroft, (it
should be Whitgift) upon the advice of divines, held that
adultery was only a cause of divorce a mend et thoro."
The doctrine of indissolubility was thus not only re-estab-
lished, but it operated in this country with a rigour un-
known in Roman Catholic times ; the various fictions and
devices in the shape of canonical degrees and alleged pre-
contracts, which then afforded so many loopholes of escape
from its severity, having been each and all put an end to
at the Reformation.

XVIII. It may be reasonably doubted whether the de-
cision in Foljambe's case was assented to by the Church of
England as a body, for the Chamber of Convocation in the
succeeding year re-enacted, word for word, the ecclesiastical
constitutions of 1597; these as subsequently confirmed by
James 1., are now a substantive part of the ecclesiastical law
of this kingdom, being in fact the well-known canons of
1603, which have never been repealed or disturbed. In the
year 1604, the statue of bigamy (1 Jac.l., c. 11) was passed
by the Legislature, making that offence felony ; but con-
taining an express proviso that the act should " not extend
to any person divorced by sentence of the Ecclesiastical
Court." Now we can hardly suppose that the Legislature
intended to declare, in one and the same breath, that bigamy
was felony, and yet that a second marriage after divore,
living the first wife, was not to be considered in that light,
unless it conceived that the sentence passed in the Ecclesi-
astical Court had worked a dissolution in the marriage
contract.

XIX. How far the conduct of the laity may have been
affected by these proceedings, it is difficult to conjecture.
What was the practical rule respecting second marriages in
the reign of James 1., or in that of his son, or during the
time of the Commonwealth, we are but little informed.
Mr. Spence has conjectured that, in early times, the Court
of Chancery, under its clerical chancellors, exercised juris-
diction to decree a divorce d vinculo matrinvonii. There is
no authority, however, for this, except some loose entries in
Tothill's " Transactions of the Court of Chancery ;" in one
of which it is said that, in the books in Henry VIII 's
reign, there are "two decrees for divorces, Terrell and his
wife, and Jeffrey and Jenny (p. 61), and in another, that a
bill was Sled, Bateman contra Wells, "to dissolve a con-
tract of marriage, and to ha% e bond np, because the woman
denies to have him." These entries are by far too loose to
allow us to draw any accurate conclusion from them, save
that they show that parties divorced a mensd et thoro were
endeavouring to find some competent tribunal which would
set them free from the marriage bond, and enable them to
contract a &aeon 1 marriage. Such a tribunal was certainly
not found until application was made to Parliament. One
of the chief grounds for the application was to prevent the
fathering of illegitimate children on the unhappy husband
whose bed had been violated. Accordingly in Mr. Lukenor's
case, an act was obtained to b..stardise the issue born while
his wife, against whom a sentence of divorce had been ob-
tained, continued to lire in open adultery; but it did not
dissolve the marriage bond, or allow the innocent party to
marry again. The first case which answered the double
purpose of bastardising the issue and enabling the parties to
marry again is that of Lord Roos, in the reign of Charles
11. The facts were shortly these. In the year 1666, an
act was passed bastardising the children of Lady Ann Roos,
by reason of her adultery, and thereupon her husband,
Lord Roos, followed up this proceeding by obtaining from
the Spiritual Court a sentence of divorce a mend et thoro.
But these proceedings were incomplete for his purpose; and
since " there was no probable expectation of posterity to
support the family in the male line, but by the said John
Manners Lord Roos," a bill was brought in entitled " An
Act for Lord Roos to marry again," and it enabled him to
do so, and gave to the children born in such wedlock the
character of legitimacy, and the capacity of inheriting.
XX. The case is interesting and important, as constitut-
ing a distinct Parliamentary negation of the doctrine of
indissolubility, so early as the reign of Charles 11. The
difference between the case of Lord Roos and the case of
the Marquis of Northampton seems to have been this—the
Marquis was barred by no restraint from marrying another
wife immediately after sentence, and so there was no law
by which his children would have been rendered illegiti-
mate ; whereas Lord Roos was prevented from doing so by
the canon and the bond, from the binding cogency of which
it was the object of the act apparently to relieve him.
XXI. According to the historians Burnet andßalph, this
bill was passed upon political grounds, and with a political
object—viz., to form a precedent which would enable Charles
11. to separate from his first wife, by whom he had no
children, and to marry a second wife, after that separation,
for the purpose of excluding the Duke of York from the
throne. However that may be, unquestionably the bill
was contester: stoutly ; 17 bishops opposed, and three only
supported it. But amongst those who supported it was
Bishop Cozens, whose masterly argument on this subject
was afterwards published in a pamphlet, and is now pre-
served in " The State Trials."
XXII. The first example of an actual dissolution of the
nuptial tie by Parliament was in the case of the notorious
mother of Savage, the Countess of Macclesfield. In that
case the aid of the Legislature was sought, because, in con-
sequence of the skilful opposition set up by the Countess in
the spiritual courts, and the narrow maxims which there
prevailed, she contrived to baffie all her husband's efforts to
obtain a sentence of divorce a mend et thoro. The circum-
stances of the case, however, was so scandalous and flagrant,
that it would have been an outrage upon every principle of
justice to withhold relief ; at the same time it was so novel
a proceeding to pass a bill of that nature, where there was not
a sentence of divorce first obtained in the Spiritual Court,
that a protest was entered against it by Lords Halifax and
Rochester, because, as they said, they looked upon it as an
ill precedent, and which might be of ill consequence in the
future.

XXIII. The next instance of a legislative dissolution of
marriage was in the Duke of Norfolk's case. There also a
sentence of divorce was refused by the Ecclesiastical Court,
although the duke tried the experiment more than once.
He recovered damages, however, at law, from the adul-
terer, Sir John Jermayne. And after his bill had been
repeatedly rejected by the Lords, it became at last, in a
new state of circumstance, successful in 1700. The lead-
ing counsel for the duchess (Sir T. Powys) complained that
this was the first instance where an attempt had been made
to obtain a divorce by Act of Parliament, without any sen-
tence being previously obtained at Doctors' Commons. And
the duchess herself protested against it in these emphatic
terms :—" My lords," she said, " I had rather stand charged
for high treason before your lordships, than with this igno-
minious crime. In the charge for high treason the manner
of trial and the ways of proceeding are known, and so is
the punishment. But your lordships are now creating new
ways of proceedings, and a new law to punish me, and this
for a crime supposed and alleged to be committed seven
years past, in another reign, and after public indemnities
in many sessions of Parliament.
XXIV. Such are the cases in which application was
made to Parliament before the commencement of the 18th

...
century, to get rid of the consequences of a prior marriage.
The object of Mr. Lukenor's case was to prevent the evil of
au illegitimate family being fathered upon him. The ob-
ject iu Lord Roos's case was to continue the succession and
probably the peerage in the male line. The object in Lord
Macclesfield's and the Duke of Norfolk's cases was to give
them that redress which the Ecclesiastical Courts had with-
held or refused. In none of these cases, however, was
Parliament asked, without some special and peculiar reason,
to interfere in the matter. But the precedent was set_
the power was established—and very soon afterwards, that
is to say, in 1701, it was so completely followed, that,
without any spatial or peculiar reason, a divorce a vincul;
was granted in the case of Mr. Box, which may be consi-
dered as the first specimen of the present Parliamentary
practice. From that time to this the Legislature in fact,
has constituted itself a court for granting divorces a ;in-
cute matrimonii.

joi:cLiry.ofTEheebperatairtyionl9o,f 3140.08, Box, ayssenttr et dhoen thema Lords'h
in his
Caionub
rt of
ft o.A.rKing'sdissolveeh es
Elizabeth Eyre, she having lived in adultery, as hey hathe
marriage with
" leave to bring
Court of
fanc'clanotbetrabizd.,a,
definitivefullyproved
sentencethe
e
Tho bill was entituled "An act to dissolve the marriage
of Ralph Box with Elizabeth Eyread enable him to
marry again, —a title followed from, that time to this.
The measure passed in 1701.
XXVI. By these means the right to obtain a divorce d
vinculo was definitively established. It was established,
however, in the rudest and most inconvenient manner ; for
the proceeding was a judicial one by a legislative process,
and it had all the inconvenience which necessarily result
from the discussion of such a question in a mixed and popu-
lar assembly. At first only a few divorce bills were passed
—not more than five were carried through Parliament be-
fore the accession of the House of Hanover. From 1715
to 1775 their number was 60, that is to say, they averaged
al,out one a year. From 1775 to 1780 they had increased
to 74, that is to say, upon an average, to about three a
year ; and from 1800 to 1852, they amounted to 110. Two
of these, viz., Lady Macclesfield's and the Duke of Nor-
folk's cases, were without any sentence ecclesiastical ; and
several were without any previous verdict at law • for no
standing orders of either house of Parliament required the
institution of these Parliamentary proceedings until the
year 1798.
thatyear Lord Chancellor L crlib h
.xxvir. In Loughborough
oroug
called the attention of the House of Lords to the propriety
of laying
• down certain general rules, which should precede
the consideration of every case, and with which all parties
who came before them to seek a divorce should be bound to
caloply. Accordingly he framed a series of resolutions; and
by these resolutions it was not only required that a sentence
a divorce a niens4 et tlwra should have been pronounced
before soliciting the bill, but that the entire proceedings in
the Ecclesiastical Court, should be delivered in upon oath
at the bar of the House of Lords. They-further required
that the petitioner should attend the house, in order, if
necessary that he might be examined as a witness, with
reference to connivance or collusion, and also with reference
to another point which has always been deemed of primary
importance in judging of divorce bills, namely, whether he
was or was not, at the time of the adultery, living apart
from his wife, and whether he had not, by deed or other-
wise, released her from her conjugal duty, 'byiiithdra,wing
his marital authority and protection. These resolutions,