Chapter XIII: Part I: , "Foreign Countries;" Part II, "Brit. Colonies"(London, (4)

[Footnote 218: JEAFFRESON, _Brides and Bridals_, II, 316.
This summary really gives the gist of MILTON'S argument in
his "Doctrine and Discipline of Divorce," _Prose Works_, III,
169-273.]

The average sentiment of the age is quaintly expressed in Bullinger's _The Christen State of Matrimonye_, translated by Bishop Miles Coverdale in 1541. "That is called iuste diuorce, when as nether partye maye take the tother agene, so it is in the lybertye of the fawtlesse partye to mary another." Such a "divorce is permitted of god for the welth and medicine of man and for amendment in wedlok. And like as all maner of medicynes and specially some as they that go nyest death as to cut of whole membres ... are very terrible. So is divorce indede a medicyne, but a perilous and pitefull.... The papistes haue forbydden the innocent and vnguiltye parte to marye after the diuorce made: Which yt was no thinge els but euen violently to cast a snare about poore peoples neckes, and to drawe them vnto vyce and synne. For the diuorced coulde not refrayne, and mary they were not permitted, therfore with violence were they forced into whordome."[219]

[Footnote 219: _The Christen State of Matrimonye_, lvs. lxxvi,
lxxvii.]

The favorite metaphor of the reformers is also employed by Master Henry Smith. In his _Preparation to Marriage_, written in the reign of Elizabeth, divorce is described as the "rod of mariage" and the "medicine of adultery." If duty be done, he says, "then I need not speake of divorcement, which is the rod of mariage and divideth them which were one flesh, as if the bodie and soul were parted asunder. But because all performe not their wedlocke vowes, therefore He which appointed mariage hath appointed divorcement, as it were, taking a privilege from us when we abuse it. As God hath ordained remedies for every disease, so He hath ordained a remedie for the disease of mariage. The disease of marriage is adultery, and the medicine thereof is divorcement."[220]

[Footnote 220: MASTER HENRY SMITH, _Preparation to Marriage_:
quoted by JEAFFRESON, _Brides and Bridals_, II, 294, note.]

Nearly all the English reformers of the sixteenth century agree in rejecting separation from bed and board as a "papist" innovation; and they are equally unanimous in allowing the man for unfaithfulness to put away his wife and contract another marriage.[221] Prevailing opinion appears also to have accorded the same privilege to the woman on like provocation; but there were undoubtedly some in the Protestant ranks who were not so liberal in her behalf. In particular this seems to be the correct inference to be drawn from the antagonism and excitement caused by the bold position of Hooper,[222] who won a perilous distinction through his sensible demand for even justice to the sexes in this regard.[223] According to the common view, malicious desertion on the part of either spouse is a second scriptural ground for the complete dissolution of wedlock. The singular logic through which the words of Paul are made to sustain this distinctively Protestant doctrine may be illustrated by a typical example. "But to our purpose," exclaims Tyndale, "what if a man run from his wife and leave her desolate? Verily, the rulers ought to make a law, if any do so and come not again by a certain day, as within the space of a year or so, that then he be banished the country; and if he come again, to come on his head, and let the wife be free to marry when she will." But how is this liberty to be reconciled with the words of Paul who allows a brother or sister a divorce when deserted by an unbelieving spouse? Easily; for elsewhere "he saith, 'If there be any man that provideth not for his, and namely for them of his own household, the same denieth the faith, and is worse than an infidel.' And even so is this man much worse to be interpreted for an infidel, that causeless runneth from his wife."[224]

[Footnote 221: _Cf._, for example, BECON'S "Catechism," _Works_,
II, 647; and his "Prayers," _ibid._, III, 532; TYNDALE,
_Expositions_, 51, 52; Bucer in MILTON'S _Prose Works_, III, 299,
300, who grants this cause to both parties.]

[Footnote 222: Hooper's teaching caused great excitement: see
the letter of JOHN AB ULMIS to BULLINGER, in _Original Letters
relating to English Reformation_, 416. Bullinger is said to hold
the same views: _ibid._, 422. At his trial one of the charges
against Hooper was that he taught that the bond of wedlock may be
dissolved for adultery: HOOPER, _Later Writings_, xxiii.]

[Footnote 223: HOOPER, _Early Writings_, 382-87, declares, on the
authority of Mark 10:12, that the woman as well as the man may
divorce for adultery. To those who deny this according to the
Mosaic law he says: "I grant the same, but I am sure the poor
woman was not compelled to live with her adulterous husband; for
the law commanded such a villain to be slain, and so put the
honest party to liberty; and so should it be now-a-days, and
then the question of divorcement would be ended" (383). Again,
to those who say if woman had this right "marriage could never
be sure nor constant, for women would change still at their
pleasure," he replies, "there is given no such liberty to man
or woman by the word of God," meaning, doubtless, separation at
pleasure, except for cause established in court. In a letter to
Henry Bullinger he defends his doctrine of divorce as to the
woman: _Original Letters rel. to English Reformation_, 64.]

[Footnote 224: TYNDALE, _Expositions_, 54, 55. A similar
illustration of the straits to which the Protestant was brought
in his necessity of appealing to authority is afforded by Bucer,
in MILTON'S _Prose Works_, III, 309: "Hither may be added, that
the Holy Spirit grants desertion to be a cause of divorce, in
those answers given to the Corinthians.... But some will say,
that this is spoken of a misbeliever departing. But I beseech
ye, doth not he reject the faith of Christ in his deeds, who
rashly breaks the holy covenant of wedlock instituted by God?
And besides this, the Holy Spirit does not make the misbelieving
of him who departs, but the departing of him who disbelieves,
to be the just cause of freedom to the brother or sister. Since
therefore it will be agreed among Christians, that they who
depart from wedlock without just cause, do not only deny the
faith of matrimony, but of Christ also, whatever they profess
with their mouths; it is but reason to conclude, that the party
deserted is not bound in case of causeless desertion, but that
he may lawfully seek another consort, if it be needful to him,
toward a pure and blameless conversation." _Cf_. also the
argument of MILTON, "The Doctrine and Discipline of Divorce,"
_Prose Works_, III, 258, 259.]

Far more daring than any of the English writers before Milton is Martin Bucer, of Strassburg, whose doctrines of divorce comprised in the book dedicated to Edward VI. are almost as bold as those of Zwingli. According to this famous theologian, for two years professor at Cambridge, and greatly venerated by his contemporaries, divorce is a divine institution; and it ought to be granted not merely for unfaithfulness and desertion, but for many other reasons as well. It is curious, but thoroughly in keeping with the mental habits of his age, to see how he persuaded himself that the causes of divorce sanctioned by the decrees of the "pious emperors" from Constantine to Justinian are not "contrary to the word of God;" may therefore "be recalled into use by any Christian prince or commonwealth;" and are thus "by divine approbation" valid among Christians at the present hour.[225] Usually in his treatise he advocates equal liberty of divorce for both consorts; but, in contradiction to the spirit of his own teaching, in one chapter he sets forth a doctrine which would place the wife absolutely at the mercy of a licentious or despotic lord. A passage from the prophet Malachi Bucer renders: "'Take heed to your spirit, and let none deal injuriously against the wife of his youth. If he hate, let him put away, saith the Lord God of Israel. And he shall hide thy violence with his garment'--that marries her divorced by thee."[226] On this authority he concludes that "by these testimonies of the divine law ... the Lord did not only permit, but also expressly and earnestly commanded his people, by whom he would that all holiness and faith of marriage covenant should be observed, that he who could not induce his mind to love his wife with a true conjugal love, might dismiss her, that she might marry to another."[227] Verily this is naïve morality. Such singular care for the wife's happiness finds scarcely a parallel, unless indeed it be in the ethics of John Milton, to which we must presently recur.

[Footnote 225: BUCER, in MILTON'S _Prose Works_, III, 302, 303,
292, 293, 306-8. By some of his brethren he was regarded as a
fanatic on this subject as the following letter from JOHN BURCHER
to HENRY BULLINGER shows: "Strasburgh, June 8, 1550: Bucer is
more than licentious on the subject of marriage. I heard him once
disputing at table upon this question, when he asserted that
a divorce should be allowed for any reason, however trifling;
so that he is considered, not without cause, by our bishop of
Winchester as the author of the book published in defence of the
Landgrave. I am ignorant as to what the hireling Bucer, who fled
from this church before the wolf came in sight, is plotting in
England."--_Original Letters rel. to the Eng. Ref._, 655, 656.

"Philip, landgrave of Hesse, in addition to Christina, the
daughter of the late duke George, to whom he had been united many
years, and by whom he had a large family, married on March 3,
1540, a lady named Margaret de Sala, and this with the consent of
the landgravine under her own hand and seal. Previous to this he
sought to obtain the sanction of Luther, Melanchthon, and Bucer,
whose want of firmness in this painful case has called forth the
most violent invectives from Vorillas and Bossuet, bishop of
Meaux."--_Ibid._, 666, note.]

[Footnote 226: Mal. 2:15, 16, which in the James version is
given: "Therefore take heed to your spirit, and let none deal
treacherously against the wife of his youth. For the Lord,
the God of Israel, saith that he hateth putting away: for one
covereth violence with his garment," etc. It may be noted that
MILTON, "Doctrine and Discipline of Divorce," _Prose Works_,
III, 196, following "Calvin and the best translations," renders
the passage from Malachi, "he who hates, let him divorce," thus
agreeing essentially with Bucer.]

[Footnote 227: BUCER, in MILTON, _Prose Works_, III, 297. _Cf._
JEAFFRESON, _Brides and Bridals_, II, 329-32, who believes
that these sentiments of Bucer, however shocking to us, were
accepted by the most "virtuous and devout" in the sixteenth and
seventeenth centuries.]

But positive evidence of the views of the Reformation Fathers has been preserved for the time of Edward VI. Under Henry VIII. the principles of the canon law touching divorce remained in full force, except that by restricting the number of forbidden degrees to those recognized by the Levitical code, and through the abolition of pre-contracts, the chances for escaping the ties of marriage by crooked ways were somewhat lessened.[228] The restoration of pre-contracts[229] under Edward VI., however, caused the reformers to fear lest the old evils growing out of clandestine unions and nullification of false wedlock on the pretext of previous _sponsalia de praesenti_ would also be revived; and this quickened their desire for a formal settlement of the law of divorce in harmony with the altered views of the English church. Accordingly, an act of Parliament authorized the appointment of a commission of thirty-two persons to prepare a "complete code of ecclesiastical laws."[230] The commission selected in pursuance of this statute comprised the most learned divines and lawyers of the Protestant party. Their task was well performed; and their report, drafted mainly by Cranmer and translated into Latin by Dr. Haddon and Sir John Cheke, was submitted in 1552 under the title of _Reformatio Legum Ecclesiasticarum_.[231]

[Footnote 228: By 32 H. VIII, c. 38. _Cf._ REEVES, _Hist. of Eng.
Law_, IV, 333-36; GLASSON, _Hist. du droit_, V, 89.

On Henry VIII.'s divorce see POCOCK, _Records of the Reformation:
The Divorce, 1527-1553_, containing the original documents;
BURNET, _Hist. of the Reformation_, I, 26-123; GEARY, _Marriage
and Family Relations_, 596-602; THWING, _The Family_, 87;
WOOLSEY, _Divorce_, 168, 169; JEAFFRESON, _Brides and Bridals_,
I, 114, 124; II, 312 ff., who defends the king on the ground that
the pope did not grant him the indulgence which private citizens
constantly enjoyed, especially when they were able to pay for
it. There is a valuable bibliography of Henry's divorce in HUTH,
_Marriage of Near Kin_, 404-11.]

[Footnote 229: By 2 and 3 Ed. VI, c. 23.]

[Footnote 230: By 3 and 4 Ed. VI, c. 11. _Cf._ the account by
JEAFFRESON, _op. cit._, II, 317, 318.]

[Footnote 231: The report was published in 1571 under supervision
of Archbishop Parker; and then in an Oxford reprint of 1850:
WOOLSEY, _Divorce_, 170, note. I have followed the excellent
summary by JEAFFRESON, partly containing the Latin text: _op.
cit._, II, 318-23; and REEVES, _Hist. of Eng. Law_, V, 74-80,
gives a good analysis. _Cf._ also HALLAM, _Const. Hist._, I,
101, 102, note; LINGARD, _Hist. of England_, IV, 284; HAMMICK,
_Marriage Law_, 6; GEARY, _Marriage and Family Relations_, 8
n. 6, 578; _Report of the Divorce Commission, Parl. Papers_,
1852-53, 4; _Report of the Ecc. Courts Comm._, 1883, xxxi-xxxiii,
xxxvi; BISHOP, _Marriage, Divorce, and Separation_, I, § 1496;
MACQUEEN, _Practical Treatise_ (London, 1842), 467; _Law Review_
(English), I, 356-58; BURN, _Ecc. Law_, II, 503 ff.; LECKY,
_Democracy and Liberty_, II, 175; LUCKOCK, _Hist. of Marriage_,
175, 176; MORGAN, _Marriage, Adultery, and Divorce_, II, 227-29.]

This code, though it was never put in force, perhaps in consequence of the king's death, is regarded as a faithful index of Protestant opinion. Before referring to its treatment of the question of divorce, some of its general provisions may be mentioned. These often show the strong common-sense and lofty moral purpose of its framers. The consent of the parent or guardian is made necessary to a valid marriage. Children whose reasonable desires in matrimony are hindered by the caprice or unkindness of those having authority over them are granted the right of appeal to the ecclesiastical magistrate, who may give redress. Aged women are advised to forbear from wedlock with young men. A marriage secured through fear or violence is rendered void. An attempt is also made through severe penalties to check those crimes against women which, as elsewhere shown, were first effectively dealt with during the Puritan Commonwealth.[232] "They ordered that the betrayer of a virgin should be excommunicated until he had married his victim, if it was in his power to wed her; or until he had assigned to her a third of his property, or made some other sufficient arrangement for the support of her offspring," if on account of legal impediment he could not make her his wife.[233]

[Footnote 232: See chap. x, sec. i, pp. 421-23 above.]

[Footnote 233: JEAFFRESON, _op. cit._, II, 322.]

Hereafter, according to the report, spiritual affinity is not to count as an impediment to matrimony. Separation _a mensa et thoro_ is not recognized; but complete divorce _a vinculo matrimonii_ is granted "in cases of extreme conjugal faithlessness; in case of conjugal desertion or cruelty; in cases where a husband, not guilty of deserting his wife, had been for several years absent from her," provided there be reason to believe him dead; "and in cases of such violent hatred as rendered it in the highest degree improbable that the husband and wife would survive their animosities and again love one another;"[234] but separation is not permitted for frequent, though not incessant or vehement, quarrels.[235] Divorce is denied where both partners are guilty of unfaithfulness; and when one is guilty, only the innocent spouse is permitted to contract another marriage. Self-divorce is forbidden. In all cases it is the province of the ecclesiastical court to determine whether there exists a just cause for separation.[236] Finally, it may be noted that adultery as a crime is severely dealt with, though the commissioners do not go to the length of prescribing capital punishment, as some of the English reformers would have desired. The guilty husband, if a layman, shall "restore to his injured wife whatever possessions she had brought him, and also surrender to her one-half of all his other property. He was, moreover, sentenced to exile or imprisonment for life. Convicted of the same offence, the wife lost her dower and all interest in her husband's property, and was consigned to life-long imprisonment or banishment." For this crime and similar offenses "clerical delinquents" are treated with even greater severity.[237]

[Footnote 234: "Inter conjuges si capitales intercedant
inimicitiae tamque vehementer exarserint, ut alter alterum
aut insidiis aut venenis appellat, aut aliqua vel aperta
vi, vel occulta peste, vitam velit eripere, quamprimum tam
horribile crimen probatum fuerit, rite in juditio divortio
volumus hujuscemodi personas distrahi."--_Ref. leg. ecc.: ap._
JEAFFRESON, _op. cit._, II, 320, 321, note.]

[Footnote 235: "Parva contentiones, nisi perpetuae sint,
divortium non inducunt."--_Ref. leg. ecc.: ap._ JEAFFRESON, _op.
cit._, II, 321.]

[Footnote 236: JEAFFRESON, _op. cit._, II, 321.]

[Footnote 237: _Ibid._, 322, 323.]

The report prepared by the commission never received the sanction of the king; nor does it appear that any authoritative change in the canon law relating to divorce was ever made until the present century. Nevertheless the _Reformatio Legum_ "is a work of great authority, showing the recognized opinion and sentiment of the church of England at that time and containing the views of the first reformers."[238] The principle represented by it was carried out in practice, though it may well be doubted whether, as is sometimes urged,[239] the decrees of the ecclesiastical court ever went so far as expressly to grant dissolution of wedlock. According to the ancient form of judgment, divorce was probably still pronounced only _a mensa et thoro_; but, whatever the shape of the decrees, there is strong evidence that from about 1548 to 1602, except for the short period of Mary's reign, "the community, in cases of adultery, relied upon them as justifying a second act of matrimony."[240] For already in 1548--four years before Edward's commission had completed its report--the new doctrine had been in a measure sustained by the well-known case of Lord Northampton, brother of Queen Catherine Parr. After obtaining a decision of an ecclesiastical court separating him from his wife, Anne Bourchier, the marquis had contracted another union with Elizabeth Brooke, daughter of Lord Cobham. Subsequently a commission of delegates, headed by the archbishop of Canterbury, declared the second marriage valid, "because the former contract had been absolutely destroyed" by Anne Bourchier's infidelity;[241] and in 1552 this decision was confirmed by an act of Parliament[242] which declares the marriage valid "by the law of God,--any decretal, canon ecclesiastical, law, or usage to the contrary notwithstanding."[243]

[Footnote 238: GEARY, _Marriage and Family Relations_, 8 n. 6.]

[Footnote 239: So by Sir John Stoddart in his evidence before the
Lords' Select Committee, 1844: "Therefore I apprehend that the
_Reformatio legum_ having been published as a work of authority,
although not of absolute legislative authority, it must have
been, and in all probability was, followed: and for that reason
_in the Spiritual Courts there were dissolutions of marriage_.
Because _I believe that from about the year 1550 to the year 1602
marriage was not held by the Church, and therefore was not held
by the Law, to be indissoluble_."--_Minutes of Evidence_, 27:
_Law Review_ (Eng.), I, 358, 359.]

[Footnote 240: _Law Review_ (Eng.), I, 359. _Cf._ JEAFFRESON,
_op. cit._, II, 323.]

[Footnote 241: JEAFFRESON, _op. cit._, II, 323, 324. Cranmer
examined the Fathers and other authorities on divorce for
adultery; and the material which he thus collected grew into a
large book, which Burnet, who gives a summary, says he has seen:
_Hist. of Reformation_, I, 330 ff. Burnet's summary is also
given by GEARY, _Marriage and Family Relations_, 577, 578. _Cf._
MACQUEEN, _Practical Treatise_, 468, 469.]

[Footnote 242: 5 and 6 Ed. VI., c. 4.]

[Footnote 243: MACQUEEN, _op. cit._, 469. "This bill is often,
but erroneously, referred to as the earliest example of
parliamentary divorce (SHELFORD, 373). It is not a divorce bill;
neither did it proceed upon the principle of a divorce bill. Its
object was merely to declare that the adultery of the first wife,
followed by the ecclesiastical sentence, entitled the Marquis
to take a second wife. The principle on which the act passed
assumed the jurisdiction of the Church Court, to dissolve the
marriage _proprio vigore_. The act did not divorce the parties,
but merely declared them to be _already_, by the ecclesiastical
sentence, sufficiently divorced to admit of the Marquis marrying
again."--_Ibid._, 469 n. _e_. On this case see also _Law Review_
(Eng.), I, 358, 359; _Report of the Royal Commission on Divorce,
Parl. Papers_, 1853, 57 ff.; GEARY, _op. cit._, 17; WOOLSEY,
_Divorce_, 169-71; LECKY, _Democracy and Liberty_, II, 174, 175;
BURN, _Ecc. Law_, II, 503_a_-503_b_; REEVES, _Hist. of Eng. Law_,
V, 80, 81; MORGAN, _Marriage, Adultery, and Divorce_, II, 229
ff.]

This is, indeed, convincing evidence of the changed opinion of the English church. Nor can it be questioned that throughout nearly the whole of Elizabeth's reign popular practice was in harmony with the doctrine thus proclaimed.[244] New marriages were freely contracted after obtaining divorce from unfaithful partners.[245] Clear evidence of this fact is afforded by Bunny, himself strongly opposed to the liberal tendency.[246] As a matter of fact, popular custom, sustained by the profound sentiment of the Reformed clergy, was fast ripening into a law as valid as any which a legislature could enact. Such a tendency, however, could not fail to become more and more obnoxious to many of the leaders of the established clergy, as Elizabeth's reign progressed. Archbishop Whitgift defends the ancient divorce jurisdiction of the spiritual courts against Cartwright,[247] and the Puritan party is treated with ever-increasing rigor. Still the reactionary canons passed by the Chamber of Convocation in 1597, doubtless designed to check what was already looked upon as a dangerous abuse, bear witness to its continued existence; if indeed by implication, as is powerfully argued, they do not directly sanction the dissolution of marriage through divorce.[248]

[Footnote 244: According to the _Report of the Commissioners,
1852-3_, 5, divorce was allowed during the period 1550-1602.]

[Footnote 245: See, however, WOOLSEY, _Divorce_, 170, 171, 313,
who, insisting that the ancient canon law was unchanged, remarks
that "for a number of years, although remarriage after divorce
was null and void, so that the issue would not be legitimate,
no civil penalties were attached to it, and it was punishable
only by ecclesiastical censures." Hence many married "without
scruple." _Cf._ CRAIK, _Romance of the Peerage_, I, Appendix,
upon whom Woolsey relies; and JEAFFRESON, _Brides and Bridals_,
II, 323, 324, who holds that the decision of the delegates in the
Northampton case was "good law" until 1602.]

[Footnote 246: BUNNY, _Of Divorce for Adulterie, and Marrying
againe: that there is no sufficient Warrant so to do_ (Oxford,
1610). This book had been written many years before. The preface
is dated Dec. 13, 1595; and in it Bunny refers to the state of
public opinion and to events, notably in Yorkshire, of a still
earlier time. In "a Sermon," he says: "I breefly noted, that the
libertie, that in these our daies many doe take, of divorcing
their wiues for adulterie and marying of others, had not such
warrant in the worde of God as they thought that it had." Just
before delivering this discourse a gentleman who desired to put
away his wife for adultery and marry again, "and having already
gotten (into a little paper-book of his) the handes of sundrie
of the Preachers of those parts," had come to him for similar
support. He further notes that "a few yeeres" earlier not less
than "fowre several persons" of one of the greatest families in
"those parts" had married again after divorce; and in general
his "Advertisement to the Reader" leaves the impression that the
new doctrine was, on the whole, the prevailing one; although,
according to law, "neither those second women were allowed any
dowrie, nor their children to be legitimate."]

[Footnote 247: WHITGIFT, "Defence of the Answer," _Works_, III,
267 ff. _Cf._ BULLINGER, _Decades_, IV (V), 511.]

[Footnote 248: These ordinances are known as the "Ecclesiastical
Constitutions" of 1597. Canon 105 urges greater care in
matrimonial causes, especially in cases where marriage "is
required to be _dissolved_ or _annulled_;" and it is strictly
charged "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 depositions of
witnesses and other lawful proofs; and that credit be not given
to the sole confession of the parties themselves, howsoever taken
upon oath either within or without the court." The 107th canon
requires a bond to be given in case of "sentences pronounced
only for divorce and separation _à thoro et mensâ_," that "the
parties so separated shall live chastely, and neither shall they,
during each other's life, contract matrimony with other persons."
From these canons it has been inferred with some plausibility
that both "dissolving divorce" and "nullifying divorce" are
contemplated as valid and customary; and that the requiring of
a bond implies that the marriage which the bond is intended to
prevent would have been valid: see _Law Review_ (Eng.), I, 359,
360, and the opinions there cited; also _Plea for an Alteration
in the Divorce Laws_ (London, 1831), 3 ff.]

Similar testimony is afforded by the celebrated Foljambe case in 1602, when a court sitting in the Star Chamber incidentally pronounced invalid a marriage which had been contracted after separation from bed and board by decree of an ecclesiastical judge; and this decision follows the advice of a council of the "most sage divines and civilians assembled by Archbishop Whitgift at Lambeth, declaring in harmony with the ancient law that remarriage after judicial separation is null and void."[249]

[Footnote 249: The Foljambe case has given rise to much
controversy. It is commonly regarded as marking the formal
abandonment of the more liberal _law_ of the Reformation period
and a return to canonical principles. This view is mainly
traceable to the statements of SALKELD, _Reports of Cases in the
King's Bench_ (Philadelphia, 1822, from 6th London ed.), III,
137, who commits several errors, and is otherwise misleading.
He is followed by JEAFFRESON, _Brides and Bridals_, II, 324;
GEARY, _Marriage and Family Relations_, 12; MACQUEEN, _Practical
Treatise_, 470, 471; HARRISON, _Probate and Divorce_, 115; and
especially BISHOP, _Marriage and Divorce_ (5th ed.), I, §§ 661,
705. On the other hand, WOOLSEY, _Divorce_, 172, note, 310-13,
following the researches of CRAIK, _Romance of the Peerage_, I,
Appendix, regards the decision as merely confirming existing law.
He criticises Bishop for being misled by Salkeld, whereas the
facts appear to be more correctly given in NOY'S _Reports_, 100;
and particularly in MOORE'S _Cases_ (2d ed. folio, London, 1688),
683, which may be translated from the law-French as follows:
"Feb. 13, _anno_ 44 Eliz. In the Star Chamber it was declared
by all the court, that whereas Foljambe was divorced from his
first wife for incontinence of the woman [in fact, for his own
adultery], and afterwards had married Sarah Poge [Page], daughter
of Rye, in his former wife's life-time, this was a void marriage,
the divorce being _a mensa et thoro_, and not _a vinculo
matrimonii_. And John Whitgift, then Archbishop of Canterbury,
said that he had called to himself at Lambeth the most sage
divines and civilians, and that they had all agreed therein." It
is concluded, therefore, that this decision of the "sage divines
and civilians" must have been incidental to a case under trial in
the Star Chamber, and that the law was merely declared and not
changed. See, however, the sixth edition of BISHOP'S work, I, §
1498 n. 3, where the author insists on the essential correctness
of his original view. _Cf_. also _Law Review_ (Eng.), I, 361,
362; _Report of the Commissioners_ (Divorce), 1852-53, 4-6; and
MORGAN, _Marriage, Adultery, and Divorce_, II, 233.]

Strictly speaking, it may not be correct to say, as is commonly done by law writers, that the Foljambe case marks a change in the law of divorce by requiring a return to the doctrine of the ancient church; but from it, at any rate, two important inferences may be drawn. On the one hand, it shows that the custom of remarriage after separation _a mensa et thoro_ was continued to the very end of Elizabeth's reign. On the other hand, it constitutes a stage in the development of a more conservative policy. As such it may have had something to do with the legislation of about a year later. By royal authority in 1603 the canons of 1597 were re-enacted "word for word," and consequently, as already suggested, they incidentally bear witness to the Reformation theory and practice as to divorce and remarriage, while seeming to admit the possibility of a valid dissolution of wedlock by judicial decree.[250] For the first time in English history a statute of 1604 makes bigamy[251] in the modern sense a felony punishable with death; but there are exceptions to the operation of the act which tell strongly in favor of the view that the custom of remarriage after judicial separation had been something more than tolerated. It is expressly provided that the penalty fixed by the act shall not extend to a man or woman who has contracted a new marriage after seven years' desertion; nor to "any person or persons that are or shall be at the time of such marriage divorced by any sentence had or hereafter to be had in the ecclesiastical court."[252] Here it is clear that dissolution of wedlock by sentence of nullity is not intended; for this is provided for by another exception in the act itself. It is equally clear that all cases of divorce by judicial decree _are_ comprehended, whatever the cause of separation assigned. The law as then interpreted seems to have remained unchallenged until 1637, when in Porter's case the court of King's Bench, without squarely deciding the point, expressed a doubt whether a woman remarrying after divorce for cruelty was exempt from punishment under the proviso of King James's statute; because, "if this should be suffered, many would be divorced upon such pretence, and instantly marry again, whereby many inconveniences would arise. Whereupon she was advised not to insist upon the law, but to procure a pardon to avoid the danger; for it was clearly agreed by all the civilians and others, that the second marriage was unlawful."[253] Nevertheless, the hesitation of the court does not appear to be justified either by the plain words of the act or by the weight of legal authority.[254]

[Footnote 250: _Law Review_ (Eng.), I, 362. One of these canons
"provided that no persons separated _a toro et mensa_ should,
during their joint lives, contract matrimony with other persons,
and that the parties requiring the sentence of divorce should
give sufficient caution and security into the court that they
would not transgress this restraint. Another canon required the
judge who should grant divorce, without observing these rules,
to be suspended for one year by the archbishop or bishop, and
declared his sentence utterly void."--WOOLSEY, _Divorce_, 171,
172. _Cf._ LUCKOCK, _Hist. of Marriage_, 177 n. 2; MORGAN,
_Marriage, Adultery, and Divorce_, II, 233 ff.]

[Footnote 251: By the act of 1 James I., c. xi, "bigamy" is
used in the modern sense. In mediæval law a "bigamist" is one
who marries again _after_ his first wife's death; the word
"polygamist" being employed for the person who takes another
woman _before_ the death of the first spouse. By 4 Ed. I., 1276
(_Stat. de bigamis_, _Stat. at Large_ [Pickering], I, 116),
benefit of clergy is denied him who is a bigamist, _i. e._, has
contracted a second marriage after death of the first wife:
JEAFFRESON, _Brides and Bridals_, II, 327. Compare GLASSON,
_Hist. du droit_, III, 184, 185.

"As for the crime of polygamy [the modern bigamy], it hath not
been made penal by any statute, till the time of James the First.
A canon of Pope Gregory the Tenth had taken away all clerical
privileges from a bigamist, as the marrying a second wife was
considered by the ecclesiastical law, to be proof of a most
incontinent disposition; this regulation having been adopted in
England, the clergy had a doubt, whether a person, who had been
guilty of this offence before the canon law took place, might
claim the indulgence of the common law; this statute [4 Ed. I.],
therefore, retrospectively declares, he shall not be entitled to
such privilege."--BARRINGTON, _Observations upon the Statutes_
(4th ed., London, 1775), 106; also JEAFFRESON, _op. cit._, II,
327, note. But it may be noted that by 1 Ed. VI., c. 12, sec.
16: _Stat. at Large_ (Pickering), V, 265, 266, benefit of clergy
is restored in terms which may leave it in doubt whether bigamy
in the modern sense is intended. This privilege is granted to
offenders, "although they or any of them have been divers and
sundry times married to any single woman or single women, or to
any widow or widows, or to two wives or more." On the ancient
meaning of "bigamy" see also GLASSON, _op. cit._, III, 184.]

[Footnote 252: 1 James I., c. xi: _Stat. at Large_ (Pickering),
VII, 88, 89.

However, inferences as to the law in the preceding period must be
made with caution. The case of Stephens _v._ Totty, decided at
the Michaelmas term, 44 and 45 Eliz., shows that a husband and
a wife divorced _a mensa et thoro_ were still married: CROKE'S
_Reports_ (Elizabeth), 908. _Cf._ on this act especially HALE,
_Hist. of the Pleas of the Crown_ (London, 1800), I, 691-93;
also WOOLSEY, _Divorce_, 171; _Law Review_ (Eng.), I, 362.
Furthermore, RAYNOLDS, a strong advocate of absolute divorce,
in his _Defence of the Judgment of the Reformed Churches_
(1609), appears to make no claim that his doctrine is sustained
either by law or custom. So also in the quaint treatise, _The
Lawes Resolutions of Women's Rights_ (London, 1632), 64 ff.,
full divorce is not recognized; although, referring to the
fact that legally "no crime dissolueth marriage," the compiler
(67) seemingly approves Conrad Lagus who says, "seeing that
in Contracts of Wedlock we regard as well what is decent and
conuenient, as what is lawfull, I cannot tell why we be not bound
in dissoluing of it to follow the like equitie; and for example,
if a Wife cannot dwell with her husband without manifest danger
of death ... why may not she be separated iudicis ordinarij
cognitione precedente?"

On the other hand, SPENCE, _Equitable Jurisprudence_, I, 702,
believes that the bond not to marry required by the canons of
1603 was the only hindrance to remarriage after divorce; and
from this time onward he thinks it "not unlikely that the court
of chancery decreed divorces _a vinculo_; and that the American
courts of equity brought this doctrine (or right) with them."
This view is rejected by SCRIBNER, _Treatise on the Law of
Dower_, II, 545-47, although he agrees as to the effect of the
bond.]

[Footnote 253: Porter's case, Easter term, 12 C. I.: CROKE'S
_Reports_ (Charles I.), 461-63.]

[Footnote 254: See the strong argument of Holburn and Grimston
for the defendant who justly claim that a "divorce _causa
saevitiae_ is grounded _ex jure naturae_, and is in the same
manner and nature as a divorce _causae adulterii_: CROKE'S
_Reports_ (Charles I.), 463. HALE, _Hist. of Pleas of the Crown_,
I, 693, remarks "certainly the divorce intended" by James's act
"is not _a vinculo matrimonii_;" and then further observes,
in Porter's case "it was doubted, whether a divorce _causâ
saevitiae_ were such a divorce as was within this exception,
because it seemed rather to be a provisional separation for the
wife's safety and maintenance, than a divorce; but it was never
resolved." _Cf._ also _Co. Lit._, 235; MARCH, _Reports of New
Cases_, 101; COKE, _Institutes_, III, 89; KELYNG, _Report of
Divers Cases_ (Dublin, 1789), 27; GEARY, _Marriage and Family
Relations_, 12.]

III. LAW AND THEORY DURING THREE CENTURIES

_a_) _The views of Milton._--With the opening of the Stuart era, therefore, a reactionary policy with respect to divorce was established. For two centuries and a half thereafter the principles of the ancient canon law were administered by the English spiritual courts. In fact, it was now more difficult than before the Reformation to escape the marriage tie;[255] for the papal dispensation could grant no relief, and in consequence of the decrease in the number of restraints to a valid marriage, the decree of nullity was not so often a convenient subterfuge. Only the rich or noble were able to afford the costly remedy of a special act of Parliament to cure their matrimonial ills. Hence it is not a little surprising that the Puritan Revolution brought with it no change in this regard. One would naturally expect the Independents under Cromwell's leadership, by whom the remarkable civil-marriage law of 1653 was conceived, to relegate the whole matter of divorce and nullity to the temporal courts under proper legal conditions; yet there seems to be no record of such a course.

[Footnote 255: JEAFFRESON, _Brides and Bridals_, II, 315, perhaps
with too much emphasis, thus describes the effects of 32 H.
VIII., c. 38: "It rendered wedlock easier of entrance, but closed
all the many gates which had hitherto afforded spouses the means
of escape from conjugal wretchedness.... The Elizabethan jest,
that compared matrimony to a public rout, was no less applicable
to wedlock in Catholic than to marriage in Protestant England;
but whereas our ancestors before the Reformation could always get
out of the press by a few permissible falsehoods and the payment
of money, the marriage law of Protestant times declared that,
having once forced their way into the crowd, they should remain
in it till death came to their relief."]

But if the Puritan statute-book was silent, Puritan thought produced the boldest defense of the liberty of divorce which had yet appeared. If taken in the abstract and applied to both sexes alike, it is perhaps the strongest defense which can be made through an appeal to mere authority. For, in spite of their casuistry, their inconsistencies, and their injustice to woman, the writings of John Milton may be said to have about exhausted the resources of theological argument and the learning of his age on this subject.[256] He goes farther than Zwingli, Bucer, or any other reformer in admitting grounds for the absolute dissolution of marriage. According to Milton, divorce is a "law of moral equity," a "pure moral economical law ... so clear in nature and reason, that it was left to a man's own arbitrement to be determined between God and his own conscience;" and "the restraint whereof, who is not too thick-sighted, may see how hurtful and distractive it is to the house, the church, and the commonwealth."[257] It is lawful to Christians "for many other causes equal to adultery," such as cruelty, idolatry, and "headstrong behaviour" on the part of the woman, as also for desertion.[258] For "what are these two cases [adultery and desertion] to many other, which afflict the state of marriage as bad, and yet find no redress?" Hence he spurns a narrow construction as contrary to reason. "What hath the soul of man deserved, if it be in the way of salvation, that it should be mortgaged thus, and may not redeem itself according to conscience out of the hands of such ignorant and slothful teachers as these, who are neither able nor mindful to give due tendance to that precious cure which they rashly undertake; nor have in them the noble goodness, to consider these distresses and accidents of man's life, but are bent rather to fill their mouths with tithe and oblation?"[259] Nor is this the only time when Milton speaks the language of the modern social reformer, though sometimes his strongest arguments from the standpoint of reason are ill sustained by the authority upon which he relies. From the law of Moses, with which he insists that the law of Jesus must agree, he thus reaches the conclusion that just ground of divorce is "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."[260] To this ideal of the true end of wedlock he returns again and again. Rejecting the gross and carnal conception of the Fathers and canonists, their glaring contradiction between marriage as a "defilement" and a sacrament,[261] he urges that matrimony is a society "more than human," centering "in the soul rather than in the body;" a companionship resting upon the "deep and serious verity" of "mutual love," without which wedlock is "nothing but the empty husks of an outside matrimony, as undelightful and unpleasing to God as any other kind of hypocrisy."[262] Hence, where such society does not exist, where mutual affection has given place to deceit, the legal bond of the sham wedlock ought to be dissolved.

[Footnote 256: His four principal works dealing with divorce
are the "Doctrine and Discipline of Divorce" (_Prose Works_,
III, 169-273); supplemented by "The Judgment of Martin Bucer"
(_ibid._, 274-314); "Tetrachordon" (_ibid._, 315-433); and the
"Colasterion" (_ibid._, 434-61). See also _Prose Works_, IV,
243-49; I, 259.]

[Footnote 257: MILTON, "Doctrine and Discipline of Divorce,"
_Prose Works_, III, 241, 242.]

[Footnote 258: MILTON, "Colasterion," _Prose Works_, III, 423-33,
where the views of many reformers are quoted; and "Doctrine and
Discipline of Divorce," _ibid._, 251-58, where Jesus's words are
examined.]

[Footnote 259: MILTON, "Colasterion," _Prose Works_, III, 425.]

[Footnote 260: MILTON, "Doctrine and Discipline of Divorce,"
_Prose Works_, III, 185.]

[Footnote 261: The doctrine of indissolubility compels
uncongenial minds to "fadge together, and combine as they may
to their unspeakable wearisomeness, and despair of all sociable
delight in the ordinance which God hath established to that very
end.... All which we can refer justly to no other author than
the canon law and her adherents, not consulting with charity,
the interpreter and guide of our faith, but resting in the mere
element of the text; doubtless by the policy of the devil to make
that gracious ordinance become unsupportable, that what with men
not daring to venture upon wedlock, and what with men wearied
out of it, all inordinate licence might abound."--"Doctrine and
Discipline of Divorce," _Prose Works_, III, 181.]

[Footnote 262: _Ibid._, 210, 211, 195. For similar expressions
see _ibid._, 181, 182, 185, 267.]

Unfortunately, there is another and less pleasing aspect of Milton's teaching. Beyond question saturated as he is in the sentiments of the Hebrew law, Milton has a very low ideal of womanhood. Almost invariably it is the husband's grievances which excite his compassion. Scarcely by implication does he ever admit that the wife may initiate proceedings, private or public, to rid herself of an unwelcome spouse. It is not quite clear whether he would allow her to put away even the unfaithful husband against his will;[263] while repudiation for lack of sympathy, for "loneliness," on account of failure to realize that comfort and full spiritual society upon which he so fondly dwells, is apparently the sole privilege of the man. In his opinion the man is emphatically the head of the woman, who was created by God expressly "to comfort and refresh him against the evil of solitary life."[264] No disciple of Hillel was ever more thoroughly persuaded that mere dislike is adequate cause for putting away a wife at the sole command of the husband than was he. "No libertine, for the sake of wickedness and gratification of low desire, ever demanded greater license in marriage than Milton in the name of religion demanded for Christian men, in order that they might find meet-helps, and escape the grievances of uncongenial wedlock," though doubtless his sole aim was the attainment of domestic purity and happiness.[265]

[Footnote 263: However, chap. xxxiv of BUCER'S work, entitled
"That it is lawful for a wife to leave an adulterer, and to marry
another husband," Milton disposes of with the remark that "this
is generally granted, and therefore excuses me the writing out":
"The Judgment of Martin Bucer," _Prose Works_, III, 300. But
this must be considered in connection with his positive claim of
entire jurisdiction for the man in divorce causes, below referred
to. Occasionally he drops a word from which possibly it may be
inferred that he believes in a reciprocal right of the sexes; but
it is amazing how adroitly he avoids a direct statement to that
effect. _Cf._, for example, "Doctrine and Discipline of Divorce,"
_Prose Works_, III, 182, where he seems to approve the liberal
laws of the Christian emperors; _ibid._, 247-49, where he refers
to Beza's view that divorce is for the benefit of the woman;
"Tetrachordon," _Prose Works_, III, 359, 372, where he touches
lightly upon the mutual rights of husband and wife.]

[Footnote 264: MILTON, "Doctrine and Discipline of Divorce,"
_Prose Works_, III, 181. "And what his chief end was of creating
woman to be joined with man, his own instituting words declare,
and are infallible to inform us what is marriage, and what is
no marriage; unless we can think them set there to no purpose:
'It is not good,' saith he, 'that man should be alone. I will
make him a help meet for him.'"--_Ibid._, 187. Beza holds, says
Milton, that divorce (by the Jewish law) is created "only for the
help of wives." This leads him to exclaim: "Palpably uxorious!
Who can be ignorant, that woman was created for man, and not man
for woman, and that a husband may be injured as insufferably in
marriage as a wife! What an injury is it after wedlock not to be
loved! What to be slighted! What to be contended with in point of
house rule who shall be the head; not for any parity of wisdom,
for that were something reasonable, but out of a female pride! 'I
suffer not,' saith St. Paul, 'the woman to usurp authority over
the man.' If the apostle could not suffer it, into what mould is
he mortified that can?"--_Ibid._, 247; _cf._ also _ibid._, 209.]

[Footnote 265: JEAFFRESON, _Brides and Bridals_, II, 333. He was
not solely actuated by irritation against his wife, Mary Powell,
whom he had put away; for he retained his views after taking her
back and to his life's end: _ibid._, II, 333.]

That this judgment is scarcely too severe is clearly proved by Milton's theory of proper divorce procedure.[266] Rejecting all aid of court or magistrate, he goes back to the ancient principle of self-divorce.[267] For it was an "act of papal encroachment" to "pluck the power and arbitrement of divorce from the master of the family, into whose hands God and the law of all nations had put it, and Christ so left it, preaching only to the conscience, and not authorizing a judicial court to toss about and divulge the unaccountable and secret reason of disaffection between man and wife, as a thing most improperly answerable to any such kind of trial." For the sake of "revenue and high authority" the "popes of Rome" have "subjected that ancient and naturally domestic prerogative to an external and unbefitting judicature." Differences "in divorce about dowries, jointures, and the like, besides the punishing of adultery," ought indeed to be referred to the magistrate; yet "against the will and consent of both parties, or of the husband alone," the "absolute and final hindering of divorce" cannot rightly "belong to any civil or earthly power." For "ofttimes the causes of seeking divorce reside so deeply in the radical and innocent affections of nature, as is not within the diocese of law to tamper with." Among such "deep and serious regresses of nature" is hate, "of all things the mightiest divider." Moreover, the lord of the family cannot go wrong in acting from such motive; "for although a man may often be unjust in seeking that which he loves, yet he can never be unjust or blamable in retiring from his endless trouble and distaste, whenas his tarrying can redound to no true content on either side."[268] All this despotic power is placed in the husband's hands for the woman's good; for it is "an unseemly affront to the sequestered and veiled modesty of that sex, to have her unpleasingness and other concealments bandied up and down, and aggravated in open court by those hired masters of tongue-fence.... It is true an adulteress cannot be shamed enough by any public proceeding; but the woman whose honour is not appeached is less injured by a silent dimission, being otherwise not illiberally dealt with, than to endure a clamouring debate of utterless things." Whether it would be well to shame the adulterer by publicity we are not informed. Power would thus be restored to the "master of the family," where it was divinely placed. For its exercise there is but one condition needful among Christian men. The repudiation should take place in "the presence of the minister and other grave selected elders." These are to "admonish" him; and he in turn is to declare solemnly by "the hope he has of happy resurrection, that otherwise than thus he cannot do, and thinks himself and this his case not contained in that prohibition of divorce which Christ pronounced, the matter not being of malice, but nature, and so not capable of reconciling." He must not be restrained further. To do so "were to unchristian him, to unman him, to throw the whole mountain of Sinai upon him, with the weight of the whole law to boot, flat against the liberty and essence of the gospel." The procedure thus provided for by Milton, remarks Jeaffreson, is a "strictly private trial in which the husband discharged the function of prosecutor, furnished the evidence, and played the part of a judge." But Milton is conscious that the denial of a reciprocal liberty to the wife may require some defense. This he supplies by a singular piece of logic, which in its effect would sanction and encourage the basest tyranny for even the vilest purposes, though he does not appear to see it.[269] "The law can only appoint the just and equal conditions of divorce," he declares, "and is to look how it is an injury to the divorced," that is to say, to the repudiated wife. But in truth, he hastens to add, "as a mere separation" it can be no injury to her; "for if she consent, wherein has the law to right her? or consent not, then is it either just, and so deserved; or if unjust, such in all likelihood was the divorcer: and to part from an unjust man is a happiness and no injury to be lamented. But suppose it be an injury, the law is not able to amend it, unless she think it other than a miserable redress, to return back from whence she was expelled, or but entreated to be gone;" or else, if not formally separated, "to live apart still married without marriage, a married widow." The circular argument is thus complete. "The poet, whose Adam prayed the Almighty to give him an _equal inferior_ for his companion in the happy garden, does not appear to have conceived it possible for a woman in her right mind to wish to put away her lord and master."[270]

[Footnote 266: For MILTON'S theory of divorce procedure, as
summarized in the text, see "Doctrine and Discipline of Divorce,"
_Prose Works_, III, 263-73. _Cf._ JEAFFRESON, _Brides and
Bridals_, II, 335-38.]

[Footnote 267: SCHEURL, _Das gem. deut. Eherecht_, 294 ff.,
forcibly argues that the conception of divorce through
magisterial intervention, as opposed to self-divorce, is a mark
of Reformation thought. According to Luther, God speaks through
the civil magistrate. Hence in case of divorce from the bond of
wedlock by judicial decree it is not "man," but God himself,
who parts man and wife. Therefore the command of Jesus is not
broken. So here we have another illustration of the casuistry
necessitated by the appeal to authority.]

[Footnote 268: Accordingly MILTON justifies Parliament and the
clergy in consenting to Henry VIII.'s putting away Anne of
Cleves, "whom he could not like after he had been wedded half a
year."--"Doctrine and Discipline of Divorce," _Prose Works_, III,
266.]

[Footnote 269: _Cf._ JEAFFRESON'S suggestion, _Brides and
Bridals_, II, 337.]

[Footnote 270: _Ibid._, 338. A representative Catholic writer,
REV. WILLIAM HUMPHREY, S. J., defending the sacramental doctrine
of marriage, transposes Milton's phrase, declaring the woman in
paradise and "as she is now" to be the "subordinate equal of
man."--_Christian Marriage_, 16.]