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

THE LAW OF DIVORCE.

The Commissioners—Lord Campbell, Dr. Lushington,
Lord Beaumont Lord Bedesdale, Mr. Bouverie, Mr. Wal-
pole, and Sir Page Wood, appointed in December, 1850, to
inquire into the Law of Divorce, had just published their
first report.

We subjoin a portion of this interesting document :
I. Your Majesty's Commissioners appointed to inquire
into the present state of the law of divorce, and more par-
ticularly into the mode of obtaining divorce a vincula nut-
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 a mensti et thoro,
because they separate the married parties from each other's
society without dissolving the marriage union. Total di-
vorces are called divorces a vinculo matrintoni ,i 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 mensl et thoro are little more in the eye
of the law than simple separations ; they only last until
the par ties 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 aro 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 ntensti 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 matrintonii, 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.

VII. 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 statute, " 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 tho delin-
quency of the parties. And the sentences pronounced are
improperly termed sentence of divorce ci vineulo matri-
monii, for in the cases to which a!ono such sentences are
applicable, there is in fact, in the eye of the law, no legal
vincidum, or binding tie of any kind.
IX. The effects of a 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 atual
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 Ecclesiasticarum," 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 diverce was allowed, and the un-
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 fortune, 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, ho 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
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-
sive liberty of divorce ought to be allowed.
XIV. Apparently, in fact, it was allowed for more than
half a century. For it has been observed by Sir John
Stoddart—and there is somyeezasonfor assenting to the ob-
servation—that from the
1550, until the year 1602,
marriage was not held by the Church, and therefore
was not held by the law, to be indissoluble. Parr'
case is one proof of this ; and another and still stroller
one is the -language used by the ecclesiastical authorities
of 1597. For by the 105th canon a discrimination is
made between the process of dissolving and the pro-
cess of annulling matrimony, remedies then existing,
or supposed to exist, in the spiritual courts. The canon
is in these words:
" Forasmuch as matrimonial causes
have always been reputed among the weightiest, and
therefore require the ore ates t a ution when they come to
be handled and debate-dm' judegment, especially in cases
wherein matrimony is required to be dissolved or annul-
led, we strictly charge and enjoin that in all proceedings in
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 prof, and chat credit be not given to the pole oonfeo.