ing their lives together; but which would soon be inflamed into the most deadly hatred were they pursued to the utmost, under the prospect of an easy separation. We must consider that nothing is more dangerous than to unite two persons so closely in all their interests and concerns as man and wife, without rendering the union entire and total. The least possibility of a separate interest must be the source of endless quarrels and suspicions. The wife, not secure of her establishment, will still be driving some separate end or project : and the husband's selfishness, being accompanied with more power, may be still more dangerous."

Lord Stowell said," In many cases, if it were a question of humanity simply, which confined its views merely [ *371 ] to the happiness of the parties concerned, it would be a question easily decided upon first impressions. Every body must feel a wish to sever those who wish to live separate from each other, who cannot live together with any degree of harmony, and consequently with any degree of happiness; but the law of England will not allow the operations of such reasons. That law has said that married persons shall not be legally separated upon the mere disinclination of one or both parties to cohabit together. The disinclination must be founded upon reasons which the law approves. The law in this respect acts with wisdom and humanity, with that true wisdom, and that real humanity that regards the general interests of mankind. For though in particular cases the repugnance of the law to dissolve the obliga tions of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered, that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives, from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes. If it were once understood that upon mutual disgust married persons might be legally separated, many couples who now pass through the world with mutual comfort; with attention to their common offspring, and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness, in a state of estrangement from their common offspring, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good."(n) The same learned judge also observed, "If two persons have pledged themselves at the altar of God to spend their lives together, for purposes that reach much beyond themselves, it is a doctrine to which the morality of the law gives no coun[ *372 ] tenance, that they may by private contract dissolve the bands of this solemn tie, and throw themselves upon society, in the undefined and dangerous characters of a wife without a husband, and a husband without a wife.

(n) Evans v. Evans, 1 Hagg. Cons. R. 36, 37.

"There are, undoubtedly, cases for which a separation is provided; but it must be lawfully decreed by public authority, and for reasons which the public wisdom approves. Mere turbulence of temper, petulence of manners, infirmity of body or mind, are not numbered amongst these causes. When they occur, their effects are to be subdued by management if possible, or submitted to with patience; for the engagement was to take for better for worse; and painful as the performance of this duty may be, painful as it certainly is in many instances, which exhibits a great deal of the misery that clouds human life, it must be attempted to be sweetened by the conciousness of its being a duty, and a duty of the very first class and importance."(o)

Milton, in his celebrated work on this subject(p), laid down and forcibly argued in favour of the proposition: "That indisposition, unfitness, or contrariety of mind, arising from a cause in nature unchangeable, hindering, and ever likely to hinder, the main benefits of conjugal society, which are solace and peace; is a greater reason of divorce than natural frigidity, especially if there be no children, and that there be mutual consent."

says,

Dr. Symmons, perhaps the most impartial biographer of Milton, "On the subject of divorce he makes out a strong case, and fights with arguments which cannot be easily repelled. The whole context of the Holy Scriptures, the laws of the first Christian emperors, the opinions of some of the most eminent reformers, and a projected statute of Edward the Sixth, are adduced by him for the purpose of demonstrating that by the laws of God, and by the inferences of the most virtuous and enlightened men, the power of divorce ought not to be rigidly restricted be rigidly restricted to those causes, which [ *373 ] *render the nuptial state unfruitful, or which taint it with a spurious offspring. Regarding mutual support as the principal object of this union, he contends that whatever defrauds it of these ends, essentially vitiates the contract, and must necessarily justify its dissolution. Though his arguments failed, and indeed they could not reasonably hope to produce general conviction, their effect was far from inconsiderable; and a party distinguished by the name of Miltonists, attested the power of his pen, and gave consequence to his pleading for divorce. The legislature, however, coinciding evidently with a large majority of the nation, seem to have considered the evil resulting from the indissolubleness of marriage as not to be weighed against the greater good; and their wisdom permitted the abilities of Milton to be exerted in vain against that condition of the contract which provided the most effectually for the interest of the offspring, and which offered the best means of intimately blending the fortunes, the tempers, and the manners of the parents."

SECT. II.-OF PARLIMENTARY DIVORCE.

Marriage is considered by the law of England an indissoluble con

(0) Evans v. Evans, 1 Hagg. Cons. R. 119. See post sect. iv.

(p) The Doctrine and Discipline of Di. vorce, p. 23, ed. 1820.

tract; and there is only one case where it has been deemed proper to sanction a complete dissolution, and that is, where one of the parties has been guilty of adultery. This power of dissolution is not entrusted to any ordinary court of justice, but reserved to the legislature. The practice is to legislate for each particular case, and by a specific act of parliment to release the injured individual from the bond of matrimony.

The first case, in which any parlimentary divorce was applied for, was that of the Marquis of Northampton, who had obtained a divorce in the Ecclesiastical Court in the reign of Henry VIII.;(a) but the question arose, whether, in consequence of the Reformation, the latter divorce was à vinculo matrimonii as well as a mensâ et thoro. The question was looked upon as so important, that a commission was appointed, consisting of Archbishop Cranmer and nine other divines, to inquire whether the lady of the Marquis of [ *374 ] Northampton was still his wife. The marquis, without waiting for the decision of the commissioners, married again, alleging that the ecclesiastical divorce was good, and that making marriage indissoluble was founded only on the doctrine of the Church of Rome. Although the decision of the commission was in favour of the marriage, it was not thought safe to consider the divorce as perfect, without an act of parliament. Application was accordingly made to parliament, and an act obtained, but Queen Mary succeeding to the throne on the following year, it was set aside on the ground that the divorce had been unlawfully obtained. (b) In the beginning of Queen Elizabeth's reign, it was generally held that ecclesiastical divorces were valid, and such continued to be the law of the country until the end of her reign. It was then totally changed; and it was held that the Ecclesiastical Courts could not grant divorces a vinculo matrimonii.(c)

A divorce for adultery was anciently a vinculo matrimonii;(d) and therefore, in the beginning of the reign of Queen Elizabeth, the opinion of the Church of England was, that after a divorce for adultery, the parties might marry again; but in Foljamb's case, anno 44 Eliz. in the Star Chamber, that opinion was changed, and Archbishop Bancroft, upon the advice of divines, held that adultery was only a cause of divorce a mensa et thoro.(e)

By the canon law, persons who are divorced for adultery or cruelty cannot marry again while their former husband or wife is living, because matrimony, once perfected, can only be dissolved by the death of one of the parties.(f) But that law permitted the adulterer, after the marriage was dissolved by the wife's death, to intermarry with the adulteress, except where the adulterer had contrived, or been acessary to, the death of the wife.(g)

The law of the Roman Catholic Church as to divorce

(a) See 2 Burnet's Hist. of Ref. 53, 54. (b) 2 Burnet's Hist. Ref. 237. See 4 Reeves's Hist. of Law, 549.

(c) Parl. Debates, 3 June, 1830, vol. xxiv. N. S. 1260, 1261.

(d) Glan. 44; Bract. 92; 18th ed. 4, 45.
(e) 3 Salk. 138; 2 Burn's Eccl. Law, 503;

Rye v. Fulcumbe, Noy's R. 100; see 2 Clark & Finn. 553; Powell v. Weeks, Noy's R. 108.

(f) Godolp. Abr. 495, &c.

(g) Decretal, Lib. iv. tit. 7, ch. 6; Ersk, Inst. Book i. tit. 6, s. 43.

[ *375 ] *seems to have remained in a fluctuating and uncertain state,(h) until the canons of the council of Trent, De sacramento matrimonii, were promulgated upon the 11th November, 1563, the seventh of which dogmatically settles the question for the adherents of the Church of Rome. The words are: " Si quis dixerit, ecclesiam errare, cum docuit et docet juxta evangelicam et apostolicam doctrinam propter adulterium alterius conjugum matrimonii vinculum non posse dissolvi, et utrumque, vel etiam innocentem, qui causam adulterio non dedit, non posse, altero conjuge vivente, aliud matrimonium contrahere, macharique eum qui dimissa adultera, aliam duxerit, et eam quæ dimisso adultero alii nupserit, anathema sit. Si quis dixerit ecclesiam errare, cum ob multas causas separationem inter conjuges, quoad thorum, sed quoad cohabitationem, ad certum, incertumve tempus fieri posse decerni, anathema sit.(?)

The canons prohibiting second marriage probably originated in the popish doctrine of marriage being a sacrament, and in the avarice of the court of Rome to obtain money for dispensations.(k)

In the proposed reformation of the ecclesiastical laws in the time of Edward VI., a rule was laid down, from which it may be collected that the opinion of the most eminent divines and priests of that day was in favour of allowing a second marriage upon a divorce for adultery. "Cum alter conjux adulterii damnatus est, alteri licebet innocenti novum ad matrimonium (si volet) progredi. Nec enim usque adeo debet integra persona crimine alieno premi, cœlibatus ut invitè possit obtrudi, qua propter integra persona non habebitur *adultera, si novo se matrimonio devinxerit, quoniam ipse [ *376 ] causam adulterii Christus excepit."(?) But whatever may have been the history of the change, it appears to be now settled that marriage between natives of England, who continue domiciled there, is indissoluble, except by authority of parliament.

One of the ecclesiastical canons of 1603,(m) a law still in force, imposes on the ecclesiastical judge the obligation of requiring that in

(h) See the canons referred to in Ferg. R. 443-446.

(i) Concilii Trident. Canones et Decreta, Sess. 24, can. 7, 8, p. 247, ed. 1615; see Paul's Hist. of the Council, 626; ante, p. 23. The doctrine of the canon law.-Nec illi nubere conceditur, vivo viro, à quo recessit, neque huic alteram ducere, viva uxore, quam dimisit. Placuit, ut, secundum Evangelicam et Apostolicam disciplinam, neque dimissus ab uxore, neque dimissa à marito alteri conjungantur; set ita maneant, aut sibimet reconcilientur. Quod si contempserint, ad penitentiam redigantur; Gibs. Cod. 536.See 5 Spel. p. 153, c. 10; ibid. 70, c. 120. Quoties autem matrimonium dissolvitur, si id fit ob utriusque, conjugis perpetuum, impedimentum, utrique, aliæ nuptia interdieendæ sunt; si vero ob alterius tantum impedimentum, illi interdicuntur, concessa non impedito licentia ad alias transeundi; Sanchez, Lib. vii. Disp. 93, No. 37; Godolp. Abr. 504.

(k) See Parl. Hist. vol. v. 1174; 2 Hallam's

Middle Ages, 293.

(1) Reformatio Legum-De Adulteriis et Devortiis, c. 5, p. 49. The Archbishop of Canterbury, on the trial of Queen Caroline, said he was bound to say that a divorce vinculo matrimonii was consistent with the word of God. Hans. Parl. Deb. N. S. vol. iii. p. 1710. See ante, pp. 365, 366.

(m) The 107th canon is in these words:→→ "In all sentences pronounced only for di vorce, and separation a thoro el mensa, there shall be a caution and restraint inserted in the act of the said sentence, that the parties so separated shall live chastely and continent> ly; neither shall they during each other's life, contract matrimony with any 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 giv en good and sufficient caution and security into the court, that they will not any way break or transgress the said restraint or prohibition.

all sentences of divorce a mensa et thoro bond shall be given by the parties so separated, that they shall not during the life of each other contract matrimony with any other person. It has been argued, that as the canon does not declare a second marriage void, the penalty only of the bond is forfeited. (n)

The first attempt to invoke the interference of the legislature after that canon did not occur till the year 1668, in the case of Lord Roos; yet even then, though at the distance of a hundred years from the Reformation, so strong was the opinion that human legislatures had nothing to do in such matters, that it was with the greatest difficulty the divorce bill was carried through the house of lords, and all the bishops but three voted against it.(o) In 1715 Bishop Fleetwood combated the same notions, which still existed in his time. Parlia mentary divorce was for some time exclusively confined to the very highest classes, and granted to them only as a great favour, and under special consideration. (p) After the accession of the House of Hanover, a greater laxity was introduced, and [*377 ] a greater number of divorce bills was passed. From the year 1715 to the year 1775, a period of sixty years, sixty divorce bills were passed, and from 1775 to 1800, during a period of twenty-five years, there were seventy-four such bills passed; from 1800 up to June, 1836, between eighty and ninety such bills passed.(q)

It is understood that the expense of a common divorce bill, which has nothing peculiar in it, is between 600l. and 7007.; the middle and lower ranks of life are therefore for the most part excluded from resorting to this remedy.

Standing Orders of the House of Lords as to Bills of Divorce.]That no petition for any bill of divorce shall be presented to the House of Lords, (where such bili usually originates,) unless an official copy of the proceedings, and of a definite sentence of divorce a mensa et thoro in the ecclesiastical court, at the suit of a party desirous to present such petition, shall be delivered upon oath at the bar of that house at the same time. And that upon the second reading of any bill of divorce, the petitioner praying for the same do attend that house to be examined at the bar, if the house shall think fit, whether there has or has not been any collusion directly or indirectly, on his part, relative to any act of adultery that may have been committed by his wife, or whether there be any collusion directly or indirectly between him and his wife, or any other person or persons, touching the said bill of divorce, or touching any proceedings or sentence of divorce had in the ecclesiastical court at his suit, or touching any action at law which may have been brought by such petitioner against any person for criminal conversation with the petitioner's wife; and also whether at the time of the adultery of which the petitioner complains, his wife was by deed, or otherwise by his consent, living separate and apart from him, and released by him, as far as in him lies,

(n) See Godol. Abr. 495.

(0) See Parlimentary Hist. vol. iv. p. 447. (p) See proceedings on the Duke of Norfolk's divorce, 13 How. St. Tr. pp. 12831370. The marriage of the Earl of Macclesfield was dissolved by act of parliament,

without any previous divorce having been obtained in the ecclesiastical courts. See Protest, Lords' Journ. 1697, vol. xvi. p. 224.

(9) Dr. Phillimore, Parl. Debates, 3 June, 1830, vol. xxiv. p. 1262. See Parl. Hist. vol. xxxv. p. 305.