wit, her literature, her talents, and her industry, and, we may add, her sorrows.

"The crime of the man is nothing in comparison with the crime of the woman," say the objectors. "Why? Because -and here we come to England's merchant spirit, gainproperty, not morality, being the thing held sacred-because the wife's adultery may give the husband a spurious son to inherit! Truly; and the husband's adultery may give his friend, into whose house he has crept like a thief, to steal faith and honour, a spurious son to inherit. Or it may give some wretched victim of his seduction a spurious son to drown or strangle. Or it may give him a spurious son, by some wanton, on whom he lavishes the patrimony of his legitimate sons. No matter! the wrong done by him cannot be measured by equal lengths with the wrong done to him; for he is a MAN, and claims his right of exemption by natural superiority. As Peers cannot be hung, but must be beheaded, a Member of the House of Commons cannot be arrested for debt, so they cannot be arrested in sin, on equal grounds with an inferior party."

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1

Having passed over the ground of Adultery, the grievance of Intolerable Cruelty comes under discussion. "Spitting on a wife is a gross and unmanly act of cruelty." So are blows, or bodily injury, or threats sufficient to alarm a mind of ordinary firmness. We are scarcely able to agree with the quotation (2 Hagg. 732,) in which a blow between parties in the lower and higher conditions of life is endeavoured to be distinguished. Among the lower classes, blows sometimes pass between married couples, who, in the main, are very happy, and have no desire to part; amidst very coarse habits, such incidents occur almost as freely as rude or reproachful words, a word and a blow go together." The quotation then proceeds with the illustrative instance of a nobleman of high rank and ancient family, or a gentleman, a person of education, who might happen to fall into such an error. And it concludes: "The particular situation of the parties, when the ill-treatment is inflicted, may create a still further aggravation." The comparison seems to assume too 2 Exposition, p. 468. 3 P. 468, note (w).

1 P. 153.

wide a latitude. There can be no good reason why the wife of the labourer, harnessed to work like the laborious ox, should be goaded by ill-treatment to return a blow, and be then taunted with coarseness when she resists the savage animal with whom she is associated. However, violence, especially towards an educated woman, is termed intolerable cruelty, and draws after it a sentence of separation. But a husband may issue an interdict against his wife's intercourse with her own family, he may even deny her access to her own children,—without being amenable to this judgment.1 The principle of the divorce à mensâ, &c. seems to be imperfectly understood. It rests upon a more equitable foundation than is usually set down to the credit of Courts Ecclesiastical. The same tribunal which made those,

"Vent'ring to be brisk and wanton,

Do penance in a paper lanthorn,”

intended this divorce more by way of penance or separation than an earnest disruption of the conjugal tie. "The sentence of divorce, or rather of separation, so far from dissolving the matrimonial tie, and permitting the parties to marry again, by its very tenor contemplates the possibility of reconciliation and renewed cohabitation." This is explained by the pledge required before the sentence is given, "a bond for the observance of a chaste and continent life, without contracting marriage during the existence of the offender. Separantur sed remanent conjuges." It does not, however, appear that the bond of abstinence is required on the side of the peccant spouse. Nevertheless, as a return to the domestic union is intimated, a more extensive use of this privilege may, perhaps, be permitted with advantage to the general welfare. In the words of the Society's Report,

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Why clog the administration of justice with unnecessary expense, delay, exposure, and humiliation?" And it may be asked, Why make the sentence absolute until the consent of both parties renews the social compact? For the judgment of divorce forbids a prayer for the restitution of conjugal rights. If the period of the sentence were limited to one year, to three years, even to five years, subject to an appli1 See Mrs. Norton's Pamphlet, p. 49, et seq. 2 P. 467. How is this bond to be enforced?

cation on either side to dissolve the separation, a beneficial result might often be attained, especially if the status of legal liabilities were duly maintained in case of continued separation. But we would gladly have an answer to the demand of the Society's Committee. It related, indeed, to the more serious dissolution à vinculo, but its scrutiny is well applicable to the divorce now under consideration. "The question comes to this," says the author of an article in the Law Magazine on Parliamentary Divorce, "is the principle of the dissolubility of marriage for adultery to be admitted or denied by the law? If the former, on what principle is the remedy to be extended only to the rich? If the latter, why are any divorce Bills passed at all ?”1

1

The power of decreeing a temporary separation not merely with reference to the rich man, might be of some value. It is worthy, surely, of a fair discussion whether a man, who, by law, is master of his wife, should not lose the benefit of her society and assistance if he abuses his authority so grossly as to treat her with cruelty. Already may he revel in îdleness on his wife's earnings. He may impoverish an able and admirable partner by his expenses. He may be austere, overbearing, an unprofitable inmate of a busy dwelling; "malus, ingratusque maritus." We have nothing to say to that. "Courts of justice cannot cure all the miseries, imaginative and self-imposed, of married life."2 But when he has recourse to violence, when he tarnishes the honour of the nuptial chamber, when he prostitutes his vows to a strange woman, we think it time that his punishment should not depend upon the indignation of his wife's relations, upon her ability to carry her cause into court, or upon the rustic outbreak of the country village. The person most injured ought to have some voice in her vindication:

"Mulier sævissima tunc est,

Cum stimulos odio pudor admovet."

"Sic collige, quod vindictâ Nemo magis gaudet, quàm femina."

Her wrongs prompt these deeds of anger. The inequality of our legal administration leaves its justice attainable only

1 1831. Vol. vi. p. 43.

2 Wharton, p. 470.

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by a minority. The adulteries of middle life and the ferocity of the humble ranks scarcely meet with a sufficient retribution. The report of the committee above alluded to, seeks to repose the power of divorce à vinculo, in the Lords of the Privy Council. We wish that something better could be done with the divorce à mensâ et thoro.

The appointment of a judicial officer to preside over this species of divorce may be suggested. The procedure should be inexpensive; the separation pronounced for limited. The renewal of domestic intercourse before the expiration of the sentence might be promoted with the sanction of the judge, but not allowed without the consent of the injured party'; the divorce à mensâ et thoro should, therefore, whether for adultery or cruelty, be with a view to future amity, yet so as to protect where protection is needed, and punish where punishment is due. We conclude these remarks with the observation, that the frequent imprisonments now inflicted leave the woman and her children at the mercy of the poor-law, or drive them to their own resources, or call forth the compassion of their kindred. A judgment of limited dissociation by a competent officer would scarcely produce greater evils, whilst it might lead to more just consequences than we see attached to these wrongs under our present system.

Some few words on the divorce à vinculo matrimonii, and our task is completed. We must not look to the Roman Law for the rule upon this mode of breaking the marital bond. The licence which prevailed under these institutions was scarcely checked by the restrictions of Theodosius and the Code of Justinian : "the law was soon after replaced by Justin upon its former footing."2 Nor are we to expect much purer doctrines from the Roman Catholic Church. The successors of the Apostles seem to have propounded canons which were hardly in unison with their infallibility; some recognising, some discountenancing, this species of divorce. Notwithstanding the Council of Trent, which went so far as to

1 Thus the limited sentence would stand unrepealed unless there were a mutual consent. But at the end of the period, whether for six months or five years, the relations of husband and wife would be revived.

2 See a useful article in the Law Magazine for 1831, vol. vi. art. 2., "The Law of Parliamentary Divorce," where many authors on the subject are mentioned,

maintain the strictness of conjugal union, in the face even of adultery, the new doctrine was not implicitly received in all Catholic countries.

It was left for our Reformers to vindicate the Saviour's precept, and to admit the incident of complete divorce on proof of matrimonial infidelity. As late as 1547, there was still a division of opinion. The case of Lord Northampton was settled by an Act of the Legislature, but the Act was repealed, and the Ecclesiastical Court assumed the power of final divorce throughout the reign of Elizabeth. At length, in 1601, the ancient doctrine revived, and the divorce in the Court Christian was held to be only à mensâ et thoro; yet it was not until 1669 that the laity ventured to judge for themselves by carrying a bill through Parliament which united the previous Ecclesiastical sentence of separation with the final divorce. Nearly thirty years had elapsed when another bill was debated, thrown out, but renewed and passed. The bishops then came forward, and many of them declared that they considered a second marriage lawful, after full proof of adultery. After this, appeals to Parliament increased in frequency; that which was an indulgence to high rank and great connection descended in turn upon all who could afford to meet the cost; at length, in the session of 1829 alone, seven divorce bills received the Royal Assent; and in the short one of 1830, from February to July, no fewer than nine!" 1

We are not disposed to enter here upon the expediency of transferring the jurisdiction from the House of Lords to the Lords of the Privy Council. Having endeavoured to make a separation in ordinary cases more easy of attainment, it may be sufficient to add, that the less expensive procedure before the inferior tribunal would the more easily enable the husband or the wife to resort to Parliament, or to the Council, or to any other constituted authority, for a dissolution of the nuptial contract. Even now" that the form is not inevitable as a preliminary step, is proved by the divorce of one of our peers being lately obtained without it." 2 It is gratifying to reflect that "Parliament will seldom bastardize the issue, except in a very clear case."

There are, however, two circumstances which have been See the above article, passim. 2 Norton, p. 155.