Two kinds of Divorce.]-Divorce, according to the canon law, is twofold: the first being only a separation from bed and board a mensa et thoro; the other, an entire dissolution of the marriage a vinculo matrimonii. The first happens when mutual cohabitation or conversation is forbidden to the parties either with a time, or without any time prefixed for their coming together again. By the second the marriage is entirely dissolved; and as to the substance of it, forever rescinded.(c)

Divorce a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving *it;

[ *364 ] but for some supervenient cause, it becomes improper or

impossible for the parties to live together. Although in England the mutual obligations attending the condition of husband and wife cannot be extinguished, yet for the protection and relief of individuals these obligations may be suspended; but only by the sentence of an ecclesiastical court, which separates the parties a mensa et thoro; and this sentence of divorce or rather 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 ;(d) and it is in conformity to this notion that the injured party, before becoming entitled to the benefit of the sentence, is, according to the injunction of the 107th canon, (e) obliged to enter into a bond for the observance of a chaste and continent life, without contracting marriage during the lifetime of the offender.

The only causes for which divorces are granted by the ecclesiastical courts of England are-first, adultery; second, cruelty; third, unnatural practices. The two first grounds will be considered at length; the third is dismissed with the only reported cases mentioned in the subjoined note.(f)

(c) Ayl. Parer. 225.

(d) "Wherefore, and by reason of the premises, we do pronounce, decree and declare, that the said A. B. ought by law to be divorced, and separated from bed, board, and mutual cohabitation with the said C. B. her husband, until they shall be reconciled to each other; and we do by these presents divorce and separate them accordingly, bond being first given on the part of the said A. B. according to the tenor of the canon in that case made and provided, that she, the said A. B., shall live chastely, and shall not contract any other marriage during the lifetime of the said C. B., intimating, nevertheless, and by such intimation expressly inhibiting, according to the ecclesiastical laws and canons made in that behalf, as well the said A. B. as the said C. B. that neither of them in the lifetime of each other shall in anywise attempt or presume to contract another marriage, &c."-Extract from a form of a sentence in a cause of divorce, Poynter, 182.

(e) See post, p. 376, n. (m).

(f) "Tenendum est sodomiam sufficere ad divortium. Quia sodomia est gravius de

lictum adulterio. Si ergo ob adulterium permittitur divortium; idem à fortiori dicendum erit de sodomia; Sanchez, lib. 10, Disp. 4, s. 3.

In one case a lady founded her claim to a divorce a mensa et thoro on a verdict of a jury that her husband was guilty of sodomitical practices with A. B., for which he was sentenced to two years imprisonment. The judge rejected the libel, and the lady appealed to the Delegates. For the respondent it was objected that there was no case where even actual sodomy had been deemed a sufficient cause for a divorce; a fortiori, a mere attempt to commit it could not be deemed sufficient. That supposing it to be sufficient cause, the libel ought to have sta⚫ ted the facts from which the guilt was to be inferred, which should have been again the subject of proof; and that merely stating the verdict, and producing the record of it, could not entitle the lady to a divorce. But the judges thought the objections insufficient; reversed the sentence of the court below, and pronounced for the divorce. The lady afterwards obtained an act of parliament, by which the marriage was dissolved; Bromley

*The proof of a valid marriage is a necessary preliminary in all suits for divorce: it follows, therefore, that [ *365 ] no cause or impediment existing previous to marriage can, properly speaking, be the subject-matter of a suit for divorce; the civil and canonical disabilities which render the marriage contract either void or voidable, are grounds for a proceeding for nullity of marriage, but not, correctly speaking, for a divorce.(g) A marriage which is void from the beginning, and may be declared so by the sentence of an ecclesiastical court, cannot be said to be dissolved, because it was never legally constituted, and marriages void in themselves can have no legal effect.

The causes for separation a vinculo, or rather of nullity of marriage, are consanguinity, or affinity within the prohibited degrees,(h) mental incapacity, (i) impotence,(k) force and error,(?) impuberty, where at the time of the marriage either party was under the age of consent, (m) and a prior valid marriage subsisting between either of the parties.(n)

The distinction between divorce from bed and board, and from the bond of matrimony, is not mentioned in Scripture, and was unknown to the ancient church. It was devised by the canonists and schoolmen to serve the pope's purposes, and first established by the decrees of the Council of Trent.(o)

The commissioners appointed by Henry VIII. and Edward VI. for reforming the ecclesiastical law, in their elaborate report [ *366 ] *recommend divorces a mensa et thoro to be abolished, and complete divorces to be allowed for adultery, desertion, bad treatment, &c.; the innocent party to be allowed to marry again; the offending party to be punished by banishment or imprisonment.(p)

Great Diversity in the Laws relative to Divorce.]-It is evidently most essential to every view of public expediency, as well as of justice between private parties, that of all contracts, that of marriage should have a fixed and indelible character, which it shall not be in the power of either party to alter at pleasure. But the municipal laws as to divorces in almost every state, ancient and modern, are peculiar and local. These too are sometimes quite opposite even in neighbouring provinces of the same state. Quotations from the codes of different countries would only prove that perfect agreement between

v. Bromley, Feb. 1704, 2 Burn's Eccl. Law, 499, n.; 2 Addams, 158, n.

The wife's libel in a divorce cause charging cruelty and unnatural practices, the hus. band having been convicted of an assault with an intent to commit the latter, was admitted to proof, the case charged (at least taken as a whole) being held to be one "per quod consortium amittitur." The libel having been afterwards proved in all particulars, the court pronounced for the divorce as prayed by the wife; Mogg v. Mogg, 2 Addams, 292.

(g) Godolph. Abr. 500.
(h) Ante, 157. 183.
(i) Ante, 183. 201.

(k) Ante, 201. 213.

(1) Ante, 213. 223.

AUGUST, 1841.-R

(m) Ante, 282. 285.

(n) Ante, 223. 231.

(0) See Bishop Cozen's argument, 13 How. St. Tr. 1332–1338; 2 Toullier, 86; see post, p. 375.

(p) Mense societas et thori solebat in certis criminibus adiini conjugibus; salvo tamen inter illos reliquo matrimonii jure; quæ constitutio cum à sacris literis aliena sit, et maximum perversitatem habeat et malorum sentinam in matrimoniurn comportaverit, illud authoritate nostra totum aboleri placet." Reformatio Legum de adulteriis et Divortiis, c. 19, p. 55; see Gibs. Cod. 535, ante, p. 23; 1 Hallam's Const. Hist. 138 n.; 7 Lingard's Hist. 127.

any two of such codes as to the extent of the remedy to be afforded for conjugal wrongs, if it exists at all, is extremely rare, and that there is scarcely any other point on which such unbounded freedom of judgment has been exercised by each legislature.(g) No example can be more striking than that of the three kingdoms of the British empire, in two of which marriage is indissoluble by judicial sentence, while in Scotland it may be dissolved either for adultery or continued nonadherence after legal requisition.(r)

Upon the continent of Europe there has long existed a known distinction betwen the catholics and protestants on the subject of divorce. The former, according to the doctrine of the Romish church, consider marriage as a sacrament, and in its effect to be governed by the divine law; and according to their interpretation of that law it is indissoluble.(s)

The protestants on the contrary, have not always considered it as [ *367 ] a sacrament; but many, if not most of them, *have considered it mainly as a civil institution, subject to the legis lative authority as matter of public police and regulation.(t)

In Catholic France, until the year 1792, sometime after the revolution, marriage was always treated as indissoluble. "Our church," says Merlin, "never approved of divorce properly so called. It has always regarded it as contrary to the precept, Quod Deus conjunxit, homo non separet,-What God hath joined together, let no man put asunder.(v) It is therefore a perpetual maxim among us, that mar¡ riage cannot be dissolved by means of a divorce."(x)

Pothier says, "Marriage is not dissolved but by the natural death of one of the parties; while they live it is indissoluble."(x) He adds, that though divorce was permitted by the Christian emperors, the church regarded it as prohibited by the Gospel; and that it is not permitted by the French law for any cause whatsoever.(y)

By the law of the French revolutionary government, incompatability of temper was made a ground of divorce at the pleasure of the parties. (2) By the code civil a divorce may be judicially obtained for the cause of adultery, excess, cruelty, grievous injuries of either party, and in certain cases by mutual and persevering consent. (a)

(9) See 1 Burge on Foreign Law, 640668.

(r) Stair's Institutes, book 1, tit. 4, ss. 7, 8.

(s) See Ferguss. R. Appendix, p. 443, n.; M. Heinecc. Elem. Juris Germ. tit. 14, ss. 328-332; Dalrymple v. Dalrymple, 2 Hagg. Cons. R. 63, 64. 67. 1 Burge, 643.

(t) 1 Bl. Comm. 433; 2 Hagg. Cons. R.
63. 67; Story, Conflict of Laws, 174.
(v) Matthew, ch. 19, v. 6.

(u) Merlin, Répertoire Divorce, sect. 3.
(x) Pothier, Traité du Mariage, art. 462.
(y) Ibid. art. 466.

(z) In the three first months of the year 1793, the number of divorces in Paris is said to have amounted to 562; the marriages were 1785. See Burke's Works, 8th vol. p.

176.

(a) Code Civil, art. 229-233; see Toul

lier, p 40-62, 63; Manuel de droit Français, p. 58-66; 1 Burge, 645.

By a law of the 8th May, 1816, divorce a vinculo was abolished in France, for which a separation was substituted.

1. Le divorce est aboli.

2. Toutes demandes et instances en divorce pour causes, determinées sont converties en demandes et instauces en separation de corps les jugemens et arrêts restés sans execution par le défaut de prononciation du divorce par l'officier civil, conformement aux articles 227. 264, 265, 266, du Code Civil, sont restreints aux effets de la separation.

3. Tous actes faits pour parvenir au divorce par consentement mutuel sont annulés; les jugemens et arrets rendus en ce cas, mais non suivis de la prononciation du divorce,

sont considérés comme non avenus conformement à l'article 294. Les Cinq Codes,

Protestants have treated this subject differently. In Scotland, *which professes to be governed in this subject *368 ] exclusively by the Scriptures, divorce is allowed for the scriptural causes for adultery, and for wilful desertion.(b) In many protestant countries, it is not treated as indissoluble, except for scriptural causes; but it may be dissolved for other causes.

By the laws of Holland, of Prussia, and other Protestant states of Germany, of Sweden, of Denmark, and of Russia, divorce a vinculo matrimonii may be granted not only for adultery but for other causes.(c)

The supreme courts of judicature of the presidencies in the East Indies on the ecclesiastical side, grant sentences of divorce a mensa et thoro.(d)

In the West India colonies, except British Guiana, St. Lucia and Trinidad, there exists no authority in any judicial tribunal to entertain a suit for a divorce, nor does the parent state permit their legislatures to grant it. It is an instruction to governors of colonies not to give their assent to any act of the other two branches of the legislature for dissolving a marriage. Neither is there any court having authority to grant separation a mensa et thoro. In consequence of this defect of jurisdiction, the courts of chancery, of Jamaica and Barbadoes have entertained suits, and granted maintenance to a wife, living apart from her husband, in consequence of the conduct of the latter, when, without that interposition, she would be destitute of the means of support.

In Nova Scotia,(e) a power was vested by the governor and council of dissolving marriages for adultery, cruelty, wilful desertion, and withholding necessary maintenance for three years together; but by a subsequent statute this power has been confined to cases of adultery and cruelty.(ƒ)

In New Brunswick, the power of granting divorce from the bond of matrimony, and a separation from bed and board, is also vested in the governor and council.(g)

*In St. Lucia and Lower Canada divorces are governed by the law of France as it existed before the Revolution.

In Mauritius divorces are granted under the code civil.

[ *369 ]

In Trinidad the marriage cannot be dissolved; but a separation a mensa et thoro is grantable for those causes which are authorized by the canon law.(h)

In British Guinea, the Cape of Good Hope, and Ceylon, divorces are governed by the law of Holland.(i)

In some of the United States, Georgia and Mississippi, divorces

par Siréy, 498. Manuel de Droit Français. (b) Ersk. Inst. B. 1, tit. 6, ss. 43, 44; Fergusson's Rep. 423, note H.; Stair's Institutes by Brodie, 28.

(c) Ferguss. Rep. 202; see Frederican Code, 1 vol. 125-134; Henry's Institutes of laws of Holland, 88-91; see Prussian Code, published at Berlin, 1795, vol. iii. p. 84; and Ferguss. R. 448-454.

(p) See Report on Perry's Divorce Bill,

are restrained, even by constitutional provisions, which require to every valid divorce the assent of two-thirds of each branch of the legislature, founded on a previous judicial investigation and decision. The policy of other states is exceedingly various on this subject. In several of them (k) no divorce is granted but by a special act of the legislature, according to the English practice; and so strict and scrupulous has been the policy of South Carolina, that there is no instance in that state, since the revolution, of a divorce of any kind either by the sentence of a court of justice, or by act of the legisla ture. In all the other states, divorces a vinculo may be granted judicially for adultery. In some of them() the jurisdiction of the Courts as to absolute divorces for causes subsequent to the marriage, is confined to the single case of adultery; but in the residue of the states, intolerable ill usage, or wilful desertion, or unheard of absence, or some of them, will authorize a decree for a divorce a vinculo, under different modifications and restrictions.(m)

Observations on the Inexpediency of allowing unlimited Right of Divorce.]-The general advantages of indissolubility, as opposed to an unlimited right of divorce, are elegantly and clearly demonstrated by Hume in his Essay of Polygamy and Divorces, where he observes, "If it be true, on the one hand, that the heart of man naturally delights in liberty, and hates every thing to which it is confined; it is also true, on the other, that the heart of man naturally

[ *370 ] submits to necessity and soon loses an inclination, when there appears an absolute impossibility of gratifying it. Perhaps it will be said that these principles of human nature are contradictory: but what is man but a heap of contradictions! Though it is remarkable, that where principles are, after this manner, contrary in their operation, they do not always destroy each other; but the one or the other may predominate on any particular occasion, according as circumstances are more or less favourable to it. For instance, love is a restless and impatient passion, full of caprices and variations, arising in a moment from a feature, from an air, from nothing, and suddenly extinguishing after the same manner. But friendship is a calm and sedate affection, conducted by reason and cemented by habit, springing from long acquaintance and mutual obligations, without jealousies or fears, and without those feverish fits of heat and cold which cause such an agreeable torment in the amorous passion. So sober an affection, therefore, as friendship, rather thrives under constraint, and never rises to such a height as when any strong interest or necessity binds two persons together, and gives them some common object of pursuit. We need not, therefore, be afraid of drawing the marriage knot, which chiefly subsists by friendship, the closest possible. The amity between the persons, where it is solid and sincere, will rather gain by it; and where it is wavering and uncertain, this is the best expedient for fixing it. How many frivolous quarrels and disgusts are there, which people of common prudence endeavour to forget, when they lie under the necessity of pass

(k) Delaware, Maryland, Virginia, SouthCarolina, Georgia, Mississippi, and Louisi

ana.

(1) Maine, Massachusetts, New York,

North Carolina, and Illinois.

(m) 2 Kent's Comm. 88. As to New York, see ibid. pp. 82, 83.