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

sions of the parties themselves, howsoever taken uon
oath, either within or without the court." - p
XV. The Church, however, was still anxious to dia.
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 mend, 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 lie 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 mensd et thoro, and not
a vinculo ntatrimonii ; 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 practic e of the
laity for at least half a century. Accordingly, Mr. Ser-
geant Salkeld, lays it down that " divorce for adultery
was anciently el 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. 1., c. 11) was passed
by the Legislature, making that offence felony ; but con-
taming 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 a vinculo matrintonii. 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 filed, Bateman contra Wells, "to dissolve a con-
tract of marriage, and to have bond up, 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 meant et thoro were
endeavouring to find some competent tribunal which would
set them free from the marriage bond, and enable them to
contract a second marriage. Such a tribunal was certainly
not found until application was made to Parliament. One
of the chief ground.s 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 bastardise the issue born while
his ife, against whom a sentence of divorce had been ob-
tained, continued to live 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 meant 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 renderedillegiti-
mate ; whereas Lord Boos 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 and Ralph, 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 contested 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 baffle 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 abill 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 o fcrirtchuenastance duchess ,
(Sirsu T. ecessfpulowiynolc7ooom.plaTnheedltehadat-
mg counsel for
this wasiv
thedfirsee by Acttreinstance of Parliament,whereanatte without
hthadoubteaennymadesen-
tence
to obtain a
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 bo 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 prim:marriage.
The object of Mr. Lukenor's case was to prevent the evil of
an illegitimate family being fathered upon him. The ob-
ject in Lord Roos's case was to continue the succession and
jfEcouius/Thbapvleatrto•ohrvfiThednwEFyil.bnteePenirua:tienitee
probably the peerage in the male line. The object in Lord
y
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,
without any special or peculiar reason, a divorce a vinculo
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 rin-
tirytionl9of, Mr.
1700,8 ox, as entered on the Lords'
Choauvritn prays that he may have
"leave to bring in a bill to dissolve his marriage with
definitived
To
fh:lißalph
hw
oas
was
sen of tence i'snßadeneichte, adultery,
sbiltaine bathcl
fzoallboewthed
marry again,"—a title
heidnE,l,tihAne Araccthges Court of Canterbury."
marriage
The measure passed in 1701.
XXVI.e
By these means the right to obtain a divorce d
Eyre,t
°o
md s as
thatoeland enable
e timeet ahbelemt
toimthis.
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
increased
about one a year. Frompola77asntoavle7raBOge,hthey
ahbaodutintchrerease a
to 74, that is to
they amounted to 110. Two
y'letteuacieless2tield's and the Duke of Nor-
folk's any sentence ecclesiastical ; and
yofea these,;
viz.,
mtalscray.
cases, were without
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.
xXVII. In that year Lord Chancellor Loughborough
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
comply. Accordingly he framed a series of resolutions; and
by these resolutions it was not only required that a sentence
a divorce a newel et thorn 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 alsowith 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, IT withdrawing
his marital authority and protection, Theo resolutions,