Chapter XIV: Part I: , "Foreign Countries;" Part II, "Brit. Colonies"(London, (5)

_b_) _Void and voidable contracts._--It is a striking illustration of the completeness with which in social questions the English mind was dominated by theological modes of thought that no change in the law of divorce was effected until the present century. Yet there was crying need of reform. The rigid tightening of the bonds of wedlock seems to have produced its natural fruit. Immorality grew apace.[271] The lot of the married woman became harder even than before the Reformation. To the anomalies of the mediæval system, some of which survived, were added others not less harmful. Chief among them were those arising in the dualism, amounting sometimes to antagonism, subsisting between the civil and the spiritual law. Theoretically, of course, the temporal judge had no divorce competence at all. Still where dower or inheritance was involved a policy had to be defined. "Ultimately the common lawyers came to the doctrine that while the divorce _a vinculo matrimonii_ did, the divorce _a mensa et toro_ did not deprive the widow of dower, even though she was the guilty person."[272] Such was the law onward from the days of Edward III.[273] Earlier, according to Glanville, and apparently also according to Bracton, the woman "divorced for her misconduct can claim no dower;"[274] and even at a time when she was not deprived of dower through the fact of divorce, she might have the right to claim it taken away as a punishment for her crime, if she "eloped and abode" with her paramour.[275]

[Footnote 271: _Cf._ JEAFFRESON, _op. cit._, II, 339, 340.]

[Footnote 272: POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
392: _Co. Lit._ , 32_a_, 33_b_, 235_a_.]

[Footnote 273: _Year Book_, 10 Edw. III., fol. 35 (Trin. pl. 24):
POLLOCK AND MAITLAND, _op. cit._, II, 392.]

[Footnote 274: GLANVILLE, _Tractatus_, VI, 17; BRACTON, _De
legibus_, fol. 92, 304. BRITTON, II, 264, seems to say, though
his statement is somewhat confusing, that in case of divorce
_a mensa et thoro_ "if verified or not denied, the wife shall
not recover any dower." Were not that interpretation of the
law in the highest degree improbable, Britton's context might
appear to show that such a divorce worked a complete dissolution
of marriage. "In the recorded cases it is often difficult to
see whether the divorce that is pleaded is a dissolution of
marriage; e. g., Note Book, pl. 690. It is believed however
that _divortium_, standing by itself, generally points to a
divorce [nullification] _a vinculo_, e. g., in Lit. sec.
380."--POLLOCK AND MAITLAND, _op. cit._, II, 392 n. 5. BISHOP,
_Marriage, Divorce, and Separation_, I, §§ 1497, 1498 n. 3,
appears to think that the "effect of a divorce for adultery ...
was to dissolve the marriage" bond, because the guilty woman may
"not be heard upon a claim of dower" (BEAMES, _Glanville_, 133).
But this view is surely wrong, as the researches of POLLOCK AND
MAITLAND have finally established: _op. cit._, II, 372-95. Their
results are thus summarized (373): "If however we can not argue
that a woman was not married because she can not claim dower,
still less can we argue that a union is a marriage because the
issue of it will--or is not a marriage because the issue of it
will not--be capable of inheriting English land."]

[Footnote 275: As by the statute of Westminster, II, c. 34, under
Ed. I.: POLLOCK AND MAITLAND, _op. cit._, II, 392, 393.]

Especially disastrous in its effects was the absurd distinction, maintained after as well as before the Reformation, between _void_ and _voidable_ marriages.[276] This had its origin in the canonical doctrine of "putative" wedlock.[277] A union unlawful on account of some diriment impediment, such as affinity or consanguinity, was held not to be _ipso facto_ void, but only voidable, if it had been solemnized with the proper rites of the church; and the temporal courts assumed the validity of all such marriages until they were declared null by an ecclesiastical decree. The happiness of an innocent family was thus put in jeopardy. At any moment a fatal flaw in the union might be discovered or for money invented, when _pro salute animarum_ a separation of the parties would be enforced. In that case the canonists declared that the issue should not suffer. If one or both of the parents were ignorant of the impediment at the time the children were born, these were held to be legitimate. This rule was adopted by the secular courts in determining questions of inheritance. "As late as 1337 English lawyers still maintained that the issue of a _de facto_ marriage, which was invalid because of the consanguinity of the parties, were not bastards if born before divorce.[278] Later, however, they developed a different doctrine which was enforced after the Reformation. Taking "no heed of good or bad faith," the temporal law even in Protestant times made the "legitimacy of the children depend on the fact that their parents while living were never divorced."[279] The persons separated for spurious wedlock were permitted to contract new marriages; but in that event they were exposed to one of the innumerable hardships caused by the fine-spun theories of the canonists. The "validity of the first marriage was always an open question, and new evidence might at any time reverse the decree. In this case the second marriage would be a nullity and the first would recover its obligatory force, so that now two separations, it might be, would be demanded by canonical law."[280] But from the reign of James I., through intercession of the temporal courts, the action for voidance of false wedlock had to be brought during the joint lives of the consorts.[281] After the death of either spouse the spiritual judge was prevented from issuing a decree. For all practical purposes the spurious marriage then became a valid marriage, and the unlawful issue became legitimate;[282] though, absurdly enough, the surviving consort might be punished for the sin of wedding within the forbidden degrees.[283]

[Footnote 276: The term "voidable" as applied to marriage is
still used in various senses besides the special meaning referred
to in the text. For a full discussion see BISHOP, _Marriage,
Divorce, and Separation_, I, chap. xiii, §§ 252-92.]

[Footnote 277: See the excellent discussion of the relation of
the spiritual and temporal law in cases of "putative" wedlock by
POLLOCK AND MAITLAND, _op. cit._, II, 373 ff.]

[Footnote 278: _Ibid._, 375; _ap. Year Book_, 11-12 Ed. III.,
xx-xxii; for the early period see GLANVILLE, _Tractatus_, VI, 17;
BRACTON, _De legibus_, fol. 63. _Cf._ also WOOLSEY, _Divorce_
124.]

[Footnote 279: POLLOCK AND MAITLAND, _op. cit._, II, 375 n. 3.
_Cf._ BLACKSTONE, _Commentaries_, I, 440; _Co. Lit._, 233, 235;
also GLASSON, _Hist. du droit_, IV, 152; BURN, _Ecc. Law_, II,
501_b_-501_c_.]

[Footnote 280: WOOLSEY, _op. cit._, 124.]

[Footnote 281: See _First Report of Commissioners_ (affinity),
1847-48, v; also HAMMICK, _Marriage Law_, 32. Originally the
decree might be rendered after the death of one or both of
the persons, without, of course, affecting the status of the
children.]

[Footnote 282: See Pride _v._ The Earls of Bath and Montague
(1695): in 1 SALKELD'S _Reports_, 120, declaring that the
reason why the spiritual court cannot give sentence to annul a
marriage after the death of the parties is "because sentence is
given only _pro salute animae_, and then it is too late." _Cf._
GEARY, _Marriage and Family Relations_, 10, 11; BLACKSTONE,
_Commentaries_, I, 444; JEAFFRESON, _Brides and Bridals_, II,
262-64.]

[Footnote 283: Harris _v._ Hicks (1694): in 2 SALKELD'S
_Reports_, 548, where such consort may be proceeded against for
incest. "Our forefathers, with exquisite inconsistency, were of
opinion that the survivor might (for his or her soul's good) be
proceeded against and punished in a spiritual court, for having
committed sin in respect of the marriage which might not be
adjudged a sinful nullity."--JEAFFRESON, _op. cit._, II, 264.
_Cf._ GEARY, _op. cit._, 10, 11, 32.]

Such remained the state of the law until the appearance of Lord Lyndhurst's act in 1835.[284] This statute declares, because "it is unreasonable that the state and condition of the children of marriages between persons within the prohibited degrees of affinity should remain unsettled during so long a period" as the joint lives of the parents, therefore "all marriages which may hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity" ought to "be _ipso facto_ void, and not merely voidable;" and accordingly it is so enacted. With respect to existing unions of this kind a distinction is made between "affinity" and "consanguinity." Marriages within the forbidden degrees of affinity already celebrated may not "hereafter be annulled for that cause by any sentence of the ecclesiastical court," unless pronounced in a pending suit; while existing marriages within the prohibited degrees of consanguinity are not so exempt.[285] Voidable wedlock in the sense here employed[286] thus disappears from the English law, except in those minor cases where "canonical" impediments are still recognized.[287]

[Footnote 284: 5 and 6 W. IV., c. 54; also in HAMMICK, _Marriage
Law_, 281. Compare HANSARD'S _Parl. Debates_, 3d series, XXXVIII,
203-7; XXX, 661, 662. In general, see GEARY, _op. cit._, 10, 11,
32; BURN, _Ecc. Law_, II, 501_c_-501_e_; HAMMICK, _op. cit._,
32, 33, 23; ERNST, _Marriage and Divorce_, 183, 184; LUCKOCK,
_Hist. of Marriage_, 300-307; JEAFFRESON, _op. cit._, II, 264-66;
BISHOP, _Marriage, Divorce, and Separation_, I, §§ 288, 289, 753;
_Tracts Issued by the Mar. Law Defence Union_, II, 91-104.

The act extends to Ireland. "By the law of Scotland the
distinction between void and voidable marriages was never
recognized, all marriages within the prohibited degrees being
void _ab initio_."--HAMMICK, _op. cit._, 33 n. _a._]

[Footnote 285: This liberal exception, mainly in favor of
existing unions with a deceased wife's sister, is of course
denounced by writers such as LUCKOCK, _op. cit._, 305, as a
"mischievous concession and compromise principle."]

[Footnote 286: For the special senses in which the term is used
see the discussion of BISHOP, _op. cit._, I, §§ 252-92, already
cited.]

[Footnote 287: The only surviving canonical impediment for which
a marriage may be voidable, but not void, is impotence. The same
principle is also applied to marriages secured by force: GEARY,
_op. cit._, 34, 203 ff., 212; HAMMICK, _Marriage Law_, 48, 49.]

Lord Lyndhurst's act was especially designed to put an end to marriage with a deceased wife's sister.[288] Such unions, clearly unlawful, appear to have become very common since the age of the Stuarts.[289] For where no property or other interests were at stake a man's marriage with his sister-in-law was likely to go unchallenged until the death of husband or wife made it perfectly valid. Doubtless in such cases, through delay in "collusive suits," greedy relatives may sometimes have been prevented from securing estates which by natural justice, if not by law, belonged to the children or other heirs; for "no fresh proceedings could be initiated so long as any suit of a similar kind was pending."[290] But the avowed purpose of the act is its best justification, if the times were not ripe for a more liberal remedy. If this class of marriages could not be legalized in harmony with the practice of most other civilized peoples, it was perhaps well in this way to make an attempt to relieve their innocent offspring from the uncertainty which "hung over them sometimes for years like a sword of Damocles."[291] The attempt, however, did not prove successful. "In 1847 a Royal Commission was appointed to inquire into the state and operation of the law of marriage as relating to the prohibited degrees of affinity. In their report the commissioners state that of marriages within the prohibited degrees by far the most frequent class was that of marriage of a widower with a sister of his deceased wife, so that in fact it formed the most important consideration in the whole subject; and that as these so-called marriages will take place, especially among the middle and poorer classes, when a concurrence of circumstances gives rise to mutual attachment, the commissioners were of opinion" that Lord Lyndhurst's act "had failed to attain its object." They furthermore declare, even at this early date, that such unions are permitted, "by dispensation or otherwise, in nearly all the continental states of Europe," as well as in most of the states of the American Union.[292]

[Footnote 288: Marriage with a deceased wife's sister or a
husband's brother is included in the table of forbidden degrees
approved by Archbishop Parker in 1563. It purports to be based on
the Levitical code; and it was accepted as the law of the English
church by the ninety-ninth canon of 1603: HAMMICK, _op. cit._, 32
ff., 350; _Tracts Issued by the Mar. Law Defence Union_, I, 51
ff.]

[Footnote 289: JEAFFRESON, _op. cit._, II, 258-66. These
marriages were called "Altona marriages" (from Altona in Denmark,
where they were sometimes solemnized), and are the counterpart
of the "Gretna marriages," except that the latter were valid and
the former were not: _ibid._, II, 259, 260. The case of Brook
_v._ Brook (House of Lords, March, 1861) grew out of a marriage
celebrated near Altona, June, 1850: _Tracts Issued by the Mar.
Law Defence Union_, II, 313 ff.]

[Footnote 290: LUCKOCK, _op. cit._, 303, 304, who holds that
sometimes by such collusion the "ends of justice were defeated,
and persons defrauded of their rights." _Cf._ the remarks to this
effect of Lord Selborne in the House of Lords, 1873, in _Tracts
Issued by the Mar. Law Defence Union_, II, 168.]

[Footnote 291: LUCKOCK, _op. cit._, 304.]

[Footnote 292: _First Report of the Commission of 1847-8_, v, vi,
xii; HAMMICK, _Marriage Law_, 33 n. _b_; GEARY, _Marriage and
Family Relations_, 11, 30 n. 3. See HUTH, _Marriage of Near Kin_,
129 n. 1.

According to the _Report_ (viii), since the Lyndhurst act (1835)
there had been 1,364 marriages within the prohibited degrees,
of which nine-tenths were with a deceased wife's sister. Only
in 88 cases had the act prevented an intended marriage; and of
these 32 resulted in open cohabitation. Ten of the 88 cases were
among the lower classes. See the epitome of evidence, xvii-xxxix;
the minutes of evidence, 1-120; and the interesting letters and
papers in the Appendix, 121-65.]

No legislation followed the commissioners' report. Nor, despite repeated efforts, has the perennial "deceased wife's sister's bill" ever yet become a law. It is, indeed, curious to see a noble senate capable of accepting the liberal civil marriage law of 1836 still stubbornly resisting in this particular the secularizing of marriage which a recent writer observes "is an evident accompaniment, if it is not a consequence, of the progress of democracy."[293] There "can be little doubt," adds the same author, "that the opposition to these marriages rests mainly upon theological grounds."[294] Yet even on such grounds it is hard to see why the Protestant theologian or lawgiver should retain them in the table of degrees of affinity prohibited by the code of Moses, while other provisions of that law far more clearly enjoined are rejected or ignored. "The Jews themselves maintain that this kind of marriage is not forbidden in the Old Testament, and great numbers of the most eminent Christian divines concur in their opinion."[295] The Catholic is far more consistent and liberal in this respect; for he "regards the prohibition as resting, not on direct Divine or natural law, but merely on an ecclesiastical command, and his Church therefore claims and constantly exercises the right of dispensing with it."[296] The arguments on either side of the controversy need not here be summarized. Those in favor of the prohibition rest almost wholly upon authority. Only secondarily is an attempt made to defend it on social, political, or moral grounds. For most people of the civilized world[297] the subject is already "ancient history." Hence the modern student who first takes this controversial literature in hand is amazed to find men of high repute still earnestly speaking the language of the Middle Ages; still juggling with the casuistry and quibbles which satisfied Tancred and his predecessors.[298]

[Footnote 293: LECKY, _Democracy and Liberty_, II, 214. There
is already an immense literature relating to the question of
marriage with a deceased wife's sister. The most complete
bibliography of the subject is comprised in Mr. HUTH'S
"Bibliography of Works on the Impediments to Marriage" appended
to his _Marriage of Near Kin_, 393-449; also in part previously
published by the _Index Society_, IV, 1st App. to 1st Report.
In the _Church Quarterly Review_, XV, 426, may be found a table
showing the results of the various attempts to pass the deceased
wife's sister's bill during the period 1842-82.

The absurdities and anomalies of the system are described in
his trenchant manner by LECKY, _op. cit._, II, 214-23. With his
account should be read the able discussion by HUTH, _op. cit._,
124-26. The peculiar arguments of the opponents of a change in
the law, mainly resting upon the alleged authority of the Old
Testament, are best seen in the two volumes of _Tracts Issued by
the Mar. Law Defence Union_ (London, 1889); while the antidote
may be found in T. PAYNTER ALLEN'S _Opinions of the Hebrew and
Greek Professors of the European Universities_ (London, 1882),
prepared for the Marriage Law Reform Association. The speeches
in the two houses of Parliament in 1849, 1851, 1855, 1873,
1883, 1895, and whenever a bill on the subject has been under
consideration, may of course be found in HANSARD'S _Parliamentary
Debates_; and the _Report of the Royal Commission_ of 1848
(London, 1848) is especially important. A strong partisan in
favor of the existing law is LUCKOCK, _Hist. of Marriage_, Part
II, 213 ff., particularly 250 ff., 292 ff., 300 ff. For his and
similar arguments from the standpoint of Hebrew law a partial
remedy, on the homeopathic plan, is afforded by the curious
essay of REV. GEORGE ZABRISKIE GRAY, _Husband and Wife_ (2d
ed., Boston, 1886). Starting with the scriptural premise that
man and wife are "one flesh," not "by his becoming part of her
flesh, nor by both forming a new flesh, but by her entering into
his flesh," the author, arguing with an ingenuity which would
have done credit to Peter Lombard in his palmiest days, reaches
the triumphant conclusion that a widower may properly marry his
sister-in-law. In the same way he shows that by divine intent a
woman may not divorce her husband under any circumstances, for "a
member can not put away the head" (90); though she may "leave"
him--secure a separation _a mensa et thoro_--if he is "cruel or
unclean" (100).

On the general controversy see especially _Colloquii über die
Frage: Ob Gott verboten oder zugelassen habe dass einer seines
verstorbenen Weibes Schwester heyraten möge_ (Oettingen [1681]),
12 ff.; and KETTNER (L.F.E.), _Judicia und Responsa von der Ehe
mit des Weibes Schwester_ (Quedlinburg [_ca._ 1710]), 1 ff.,
neither of which appears in HUTH'S list; also ZEIDLER, _De mat.
cum defunctae uxoris sorore_, published with his _De polygamia_
(Helmstadt, 1698); and MICHAELIS _Abhandlung von den Ehegesetzen
Mosis_ (Göttingen, 1768). Among the vast number of tracts and
books on the subject for England a few of the more important are
KEBLE, _Against Profane Dealing with Holy Matrimony_ (Oxford,
1849); FOSTER, _Review of the Law_ (London, 1847); PUSEY, _Letter
on the proposed Change in the Laws prohib. Mar. between Near Kin_
(Oxford, 1842); _idem_, _Evidence given before the Commission_
(Oxford, 1849); _idem_, _God's Prohibition_ (Oxford and London,
1860); BINNEY, _The Men of Glasgow and the Women of Scotland_
(London, [1850]); GIBSON, _Mar. Aff. Question_ (Edinburgh, 1854);
DUKE, _The Question of Incest_ (2d ed., London, 1883). This
question, with others, is also dealt with by FRY, _The Case of
Mar. between Near Kindred_ (London, 1756, 1773); ALLEYNE, _The
Legal Degrees of Mar._ (London, 1774, 1775); MACRAE, _Script.
Law of Mar._ (2d ed., Edinburgh, 1862); MEYER, _Uxor christiana_
(Amsterdam, 1688), 2d dissertation; and KETTNER (J. J.), _Zwei
Abhandlungen_ (Leipzig, 1780), 67 ff. For discussion of related
questions of kinship compare BUTLER, _Marriage of Cousin Germans_
(Oxford, 1619); the same in Latin under the leading title
_Suggeneia_ in FLORENS, _De nuptiis consobrinarum_ (Frankfort,
1643); DUGARD, _Marriage of Cousin Germans_ (Oxford, 1673);
JOHNSTOUN, _Juridical Dissertation_ (London, 1734); PATON, _Mar.
with a Dec. Brother's Wife_ (London, 1869), and in general read
_Observations on the Mar. Laws_, 126 ff.; LAWRENCE, in _Revue de
droit int._, II, 65 ff.; JEAFFRESON, _Brides and Bridals_, II,
258 ff.; HAMMICK, _Marriage Law_, 23, 30-40; GEARY, _Mar. and
Fam. Rel._, II, 30-32; WHARTON, _Exposition of the Laws_, 200,
note; BISHOP, _Mar., Div. and Sep._, I, §§736 ff., 747, 750, 752,
753, 875 ff.; _Law Mag._, XXI, 371-82 (May, 1839); _Quarterly
Review_, LXXXV, 156-82 (July, 1849); _Ecc. Review_, new series,
II, 735-48.]

[Footnote 294: LECKY, _Democracy and Liberty_, II, 214, who
cites "the very candid confession of the Bishop of Winchester":
HANSARD'S _Debates_, 3d series, CCLXXX, 1671.]

[Footnote 295: LECKY, _op. cit._, II, 215, citing T. PAYNTER
ALLEN'S pamphlet already mentioned. There is a weak criticism of
this work in the _Tracts Issued by the Mar. Law Defence Union_,
I, 177-96. On its high authority see HUTH, _Mar. of Near Kin_,
129.

"It is certain that the Old Testament does not directly condemn
such marriages, and it is very doubtful whether it condemns them
even by inference. It is not at all doubtful that it sanctions,
and sometimes eminently blesses, polygamy; that it strictly
enjoins that, in every case of adultery, both parties should
be put to death; that it makes it a capital offence for a man
to have intercourse with a woman who, though unmarried, was
betrothed to another; that it commands that a man who had defiled
an unbetrothed virgin should be compelled to marry her; that
it forbids marriage with aliens in religion; that it not only
permits, but enjoins a man to marry the widow of his deceased
brother if she had no children, or only daughters, which could
scarcely be the case if such marriages of affinity were in their
own nature incestuous. It is not easy to understand the process
of mind which, among all these provisions of the Jewish code,
selects a very doubtful inference condemnatory of marriage with
the deceased wife's sister as alone binding on the conscience of
the Imperial Parliament."--LECKY, _op. cit._, II, 216, 217.]

[Footnote 296: LECKY, _op. cit._, II, 215; _cf._ ALLEN,
_Opinions_, 36.]

[Footnote 297: Russia appears to be the only important European
exception: HUTH, _op. cit._, 130, 131.]

[Footnote 298: For abundant proofs of what Mr. Lecky would call
the "insularity" of the English mind in this regard, see the
mass of matter--letters, speeches, and declarations of prelates,
noblemen, and private persons--contained in that marvelous
monument of mediævalism, the two volumes of _Tracts Issued by
the Mar. Law Defence Union_. Mr. Gladstone's speeches are a
conspicuous example: _ibid._, II, 174 ff.]

The nature of the problem and the way it is conceived by the English theological mind are thus strongly stated by Lecky in the fine paragraph with which he closes his interesting discussion of these marriages: "It would be difficult to overstate the extravagance of the language which has been sometimes employed in England by their opponents. One gentleman, who had been Lord Chancellor of England, more than once declared that if marriage with a deceased wife's sister ever became legal 'the decadence of England was inevitable,' and that, for his part, he would rather see 300,000 Frenchmen landed on the English coasts.[299] Pictures have been drawn of the moral anarchy such marriages must produce, which are read by American, colonial, and continental observers with a bewilderment that is not unmixed with disgust, and are, indeed, a curious illustration of the extreme insularity of the English mind. The truth seems to be that there are cases in which the presence of a young and attractive sister-in-law in a widower's house would, under any system of law, produce scandal. There are others where, in all countries, a sister-in-law's care and presence would seem natural. There are cases where every murmur is silenced by the simple consideration that the two parties are at perfect liberty to marry if they please. Experience--the one sure guide in politics--conclusively shows how quickly the best public opinion of a country accommodates itself to these marriages; how easy, natural, and beneficent they prove; how little disturbance of any kind they introduce into domestic relations. They will long be opposed on the ground of ecclesiastical traditions, and apart from all considerations of consequences, by a section of theologians in England, in America, and in the Colonies. Those who consider them wrong should abstain from contracting them, and a wise legislature will deal gently with the scruples of objecting clergymen, as it has done in the case of the marriage of divorced persons. But the law of the land should rest on other than ecclesiastical grounds, and a prohibition that has no foundation in nature or in reason is both unjust and oppressive. It is not for the true interests of morals or of family life that the law should brand as immoral, unions which those who contract them feel and know to be perfectly innocent, and which are fully sanctioned by the general voice of the civilised world, by an overwhelming majority of the English race, by a great and steadily increasing weight of public opinion at home, and by repeated majorities in the House of Commons. In an age when most wise and patriotic men desire that the influence and character of the Upper House should be upheld and strengthened, few things can be more deplorable than that this House should have suffered itself to be made the representative of a swiftly vanishing superstition, the chief instrument in perpetuating a paltry and an ignoble persecution."[300]

[Footnote 299: HANSARD, 3d series, CCLXXX, 1675. This was Lord
Hatherley: see _Tracts Issued by Mar. Law Defence Union_, II,
161, 162, where he repeats the statement. Compare the views of
the bishop of Exeter, in the same _Tracts_, I, 19, who predicts
an orgy of incest if the law be changed: "At the present, no
doubt, there is a strong natural instinct against the marriage
of a man with his own mother. It is awful to think of. The
marriage of a man with his own blood sister is fearful. But this
instinctive protection of our domestic purity, how far does it
go if we begin to pare the edges off." The Metropolitan (1880)
indulges in like forebodings: _ibid._, I, 97, 98.]

[Footnote 300: LECKY, _Democracy and Liberty_, II, 221-23.]

_c_) _Parliamentary divorce._--More than twenty years were yet to pass before the appearance of the first English statute providing for divorce through regular civil process. Proximately the act of 1857 owes its origin to the anomaly of parliamentary divorce, whose glaring inconsistency but served to accent the evils fostered by the canons of 1603. In theory marriage continued to be absolutely indissoluble. Only by giving bond not to marry again could a person secure even a judicial separation. No matter how grave the offense, or how notorious the breach of the nuptial vow, the parties in most legal respects were chained for life. At most they might be suffered to dwell apart. Obviously the proper remedy would have been a general law of civil divorce whose benefits should be placed within the easy reach of rich and poor alike. Instead, a resort was had to special acts of Parliament whose advantages could be enjoyed only by a fortunate class.[301] The practice originated in the last years of the seventeenth century, though it may have been suggested by prior instances of legislative intervention in matrimonial questions. As early as 1436 a marriage obtained by force was declared void.[302] More clearly analogous is the opposite case of Lord Northampton, already mentioned, whose second marriage after decree of separation was pronounced valid in 1552. This, however, is not an instance of parliamentary divorce.[303] Nor, strictly speaking, is that of Lord Roos in 1670, which Macqueen regards as the first "genuine example;" for the bill is entitled merely "an act for John Manners, called Lord Roos, to marry again;" and does not as alleged expressly effect a "rescission of the contract."[304] The earliest clear precedents are the case of the Earl of Macclesfield in 1698 and that of the Duke of Norfolk, two years later, in each of which the act provides for a dissolution of marriage.[305] Ultimately (1798) a standing order of the House of Lords requires that "all bills of divorce shall be preceded by a sentence of separation _a mensa_, issuing out of the ecclesiastical court;"[306] and usually such bills must be preceded also by the action at law against the guilty paramour for damage.[307] Thus a vast power was placed in the hands of the spiritual courts to hinder an aggrieved husband or wife from resorting to Parliament for redress. This fact is illustrated in the history of the cases already cited. Lord Roos had previously secured a decree of separation, no mention being made of an action for damage. In Lord Macclesfield's case the bill for divorce was sustained neither by a judgment at law nor by an ecclesiastical sentence. For "in consequence of the skilful opposition set up by the countess in the spiritual courts, and the narrow antiquated maxims which there prevailed, she contrived to baffle all her husband's efforts to obtain a sentence of divorce _à mensâ et thoro_. The circumstances of the case, however, were so scandalous and flagrant, that it would have been an outrage upon every principle of justice to withhold relief." In like manner for seven years the Duke of Norfolk tried in vain to obtain a decree of separation, although he "recovered damage at law from the adulterer, Sir John Jermayne."[308] But in no other case save these two has there been a successful resort to Parliament without first obtaining the sentence of an ecclesiastical judge;[309] and the clumsy, almost farcical, nature of the procedure in divorce suits may be more fully appreciated when it is borne in mind that an aggrieved spouse desirous of securing a divorce from a guilty partner through an act of Parliament was compelled, before he could "get through the ecclesiastical courts, to pledge himself not to remarry."[310]

[Footnote 301: The only special work on parliamentary divorce
is that contained in MACQUEEN'S _Practical Treatise_, 463-68,
comprising a clear historical "Introduction;" the "Action at
Law;" the "Petition and Bill;" the "General Preparation of the
Case;" the "Second Reading and Subsequent Proceedings;" and an
interesting "Selection of Leading Cases." See also _Law Review_,
I, 362 ff.; LECKY, _Democracy and Liberty_, II, 200-202; GEARY,
_Marriage and Family Relations_, 17, 18; HAMMICK, _Marriage Law_,
18; SHELFORD, _Law of Marriage and Divorce_, 373-79; BISHOP,
_Marriage, Divorce, and Separation_, I, §§ 1422 ff.; WOOLSEY,
_Divorce_, 172-74; JEAFFRESON, _Brides and Bridals_, II, 340-44;
LUCKOCK, _Hist. of Marriage_, 178-81; WHARTON, _Exposition of
Laws Relating to Women_, 471-84; GLASSON, _Le marriage civil et
le divorce_, 318, 319; BURN, _Ecc. Law_, II, 503_b_, 503_c_;
HIRSCHFELD, "The Law of Divorce in England and in Germany," _Law
Quarterly Review_, XIII, 398, 399; MONTMORENCY, "The Changing
Status of a Married Woman," _ibid._, 191; _Plea for an Alt. in
the Divorce Laws_, 5 ff.; SCRIBNER, _Treatise on the Law of
Dower_, II, 542 ff.; and especially the full account by MORGAN,
_Marriage, Adultery, and Divorce_, II, 237-313.]

[Footnote 302: GEARY, _Marriage and Family Relations_, 17: _Rot.
Parl._, 15 H. VI, Nos. 14, 15.]

[Footnote 303: MACQUEEN, _Practical Treatise_, 469. _Cf._ n. 4,
p. 80, above.]

[Footnote 304: The act, being private, was never printed in the
collections of statutes; but a writer in the _Law Review_, I,
363 n. 1, publishes it from the "House copy in the parliament
office." _Cf._ MACQUEEN, _op. cit._, 471-73, 551-61, who
discusses the case, giving Bishop Cozen's argument, but he does
not appear to have had a copy of the statute before him. See
EVELYN, _Diary_ (London, 1878), II, 49 n. 3, who declares that
the Roos divorce bill was carried under influence of corrupt
political motives; and he is followed by KEBLE, _Sequel to
the Argument_, 212 ff.; and MORGAN, _Marriage, Adultery, and
Divorce_, II, 237 ff. For a number of instructive details
relating to this case, extending over the years 1662-70, taken
from the manuscripts of the House of Lords, see _Reports of Hist.
MSS. Com._, VII, 165, 166; VIII, 102_a_, 117_a_, App. I, 141_a_;
XII, App. V, 8; App. VII, 69. The last entry runs: "1669, March
14. News letter. Lord Roos presses for liberty to marry again,
urging precedent of Marquess of Northampton. All the bishops
oppose except the B. of Durham." It is here noted that the act
finally passed April 11, 1670; 22 Car. II., 1, Private Acts. The
case gave rise to _The Case of Divorce and Re-Marriage thereupon_
(London, 1673), in which a "Reverend Prelate of the Church of
England" denies, and a "private Gentleman" maintains, the right
of remarriage on scriptural authority.]

[Footnote 305: On these two cases see MACQUEEN, _op. cit._, 473,
562-76; and _Law Review_, I, 364. The proceedings in the Norfolk
case are contained in Vol. II, 59-324, appended to ARCHBISHOP
ABBOT'S _The Case of Impotency_; also in HOWELL'S _State Trials_,
XII, 883-948; and in part in the _Reports of Hist. MSS. Com._,
XIV, 17-27, 278, where, in addition, arguments of the counsel are
given. Sir W. Williams, counsel for the duchess, calls this case
the "first precedent."]

[Footnote 306: MACQUEEN, _op. cit._, 474, 496; LUCKOCK, _Hist.
of Marriage_, 179, note; WHARTON, _Exposition of Laws rel. to
Women_, 471, 472; MORGAN, _Marriage, Adultery, and Divorce_,
II, 244 ff. The "earliest specimen of a dissolving statute
passed by the Legislature, _after_ sentence of divorce in the
ecclesiastical court" is the "Act to dissolve the marriage of
Ralph Box with Elizabeth Eyre, and to enable him to marry again,"
1701. This form was followed ever after: _Law Review_, I, 364,
365.]

[Footnote 307: Since about 1800: MACQUEEN, _op. cit._, 489. _Cf._
WHARTON, _op. cit._, 472, 483; GLASSON, _Le marriage civil et
le divorce_, 318. For examples of these actions for "criminal
conversation" see _Cases of Divorce_ (London, 1715), 1 ff.
(Feilding), 41 ff. (Dormer); and _Crim. Con. Actions and Trials_,
10 ff., containing a good historical introduction.]

[Footnote 308: _Law Review_, I, 364; MACQUEEN, _op. cit._, 473.]

[Footnote 309: MACQUEEN, _op. cit._, 550.]

[Footnote 310: _Plea for an Alt. in the Divorce Laws_, 5,
referring to the security required by the canons of 1603.]

In consequence of the standing order of the House of Lords, Parliament was unable to grant relief, except on the one ground of conjugal infidelity; for the spiritual court declined to issue a decree of separation for malicious desertion, unless in connection with acts of cruelty.[311] "On a retrospect of one hundred and seventy years, since the establishment of the system of parliamentary divorce _a vinculo_," says Macqueen, writing in 1842, "I find no case in which that remedy has been awarded or sought, without a charge of adultery. There is no example of a bill of divorce for malicious desertion," although from the Reformation onward this has been a clearly recognized ground for dissolution of wedlock in other Protestant lands.[312] Furthermore, with respect to the rights of the wife Parliament was more illiberal than the spiritual courts themselves, refusing, even after the ecclesiastical sentence of separation, to free her from a dissolute husband, unless his offense were attended by "aggravating" conduct, such as cruelty. In no case was the woman granted relief merely for the husband's unfaithfulness, however flagrant and shameless his conduct might be. Indeed, for the entire period during which the practice existed, there were but three or four examples of legislative divorce at the instance of a woman, and in each case the man's infidelity was attended by other offenses.[313] In two other cases the bill of the wife was rejected by the Lords, although the grievous wrong which she had suffered was established by the clearest proof.[314] Parliament appears to have accepted the view of Dr. Johnson that there is a "boundless" difference between the infidelity of the man and that of the woman. In the husband's case, according to that philosopher, there is no danger of a "confusion of progeny;" and this, he says, "constitutes the essence of the crime."[315] Therefore, "wise married women don't trouble themselves" about such mere peccadilloes.[316]

[Footnote 311: HAGGARD, _Consistory Reports_, 120; MACQUEEN, _op.
cit._, 474.]

[Footnote 312: MACQUEEN, _op. cit._, 473, 474.]

[Footnote 313: The first three cases are those of Mrs. Addison,
1801; Mrs. Turton, 1831; and Mrs. Battersby, 1840: MACQUEEN, _op.
cit._, 474-80, 594-98, 657, 658; also _Law Review_, I, 371; and
LECKY, _Democracy and Liberty_, II, 200, 201. There appears to
have been a fourth case: GEARY, _Marriage and Family Relations_,
18; and in several instances Parliament interfered by bill to
nullify marriage or to grant separation _a mensa_: MACQUEEN, _op.
cit._, 475, note.]

[Footnote 314: The cases of Tewsh, 1805; and Mrs. Moffat,
1832: MACQUEEN, _op. cit._, 480, 482, 602-4, 658-60. These are
discussed in _Law Review_, I, 371-74. Lord Chancellor Brougham
opposed Mrs. Moffat's bill; but later he took the opposite and
more liberal view: BROUGHAM, _Speeches_, III, 446.]

[Footnote 315: "He said, confusion of progeny constitutes the
essence of the crime; and therefore a woman who breaks her
marriage vow is much more criminal than a man who does it. A man,
to be sure, is criminal in the sight of God, but he does not
do his wife any material injury if he does not insult her; if,
for instance, he _steals privately_ to her chambermaid. Sir, a
wife ought not greatly to resent this. I would not receive home
a daughter who had run away from her husband on that account.
A wife should study to retain her husband by more attention to
please him."--BOSWELL, _Life of Johnson_, III, 46 (ed. 1835).
Some recent writers, who ought to know better, indulge in similar
sophistry; _cf._ NISBET, _Marriage and Heredity_, 18 ff.; AP
RICHARD, _Marriage and Divorce_, 25, 34, 35.]

[Footnote 316: BOSWELL, _Life of Johnson_, VII, 288. For
discussion of Dr. Johnson's philosophy see JEAFFRESON, _Brides
and Bridals_, I, 338, 339; II, 278-88; MACQUEEN, _op. cit._, 482,
483; _Law Review_, I, 369, 370.]

The sphere of parliamentary divorce was greatly narrowed in still other ways. As a matter of fact, for the century and a half during which the practice prevailed perhaps not more than two hundred such separations were granted.[317] In the first place, the rules of evidence observed in the spiritual courts tended to thwart justice even in cases of the most cruel and scandalous wrongs. Two witnesses were invariably required; whereas in the lay tribunals one witness is accepted as sufficient when no more can be had.[318] On such testimony, for instance, damage may be awarded in the suit at law for adultery, when the same evidence is rejected as insufficient in the ecclesiastical action for separation. Yet it is precisely in cases of adultery that a "_penuria testium_ is most likely to occur. To require two witnesses of facts almost necessarily secret is, in most cases, to ensure a denyal of justice. Of this constant examples are to be found in the records of the ecclesiastical courts."[319]

[Footnote 317: Sixty between 1715 and 1775; 14 between 1775 and
1780; 110 between 1800 and 1852: GEARY, _Marriage and Family
Relations_, 18; MORGAN, _Marriage, Adultery, and Divorce_, II,
239, 240; _Report of Commission_ (divorce), 1852-53.]

[Footnote 318: "One witness (if credible) is _sufficient_
evidence to the jury of any single fact, though undoubtedly
the concurrence of two or more corroborates the proof. Yet our
law considers that there are many transactions to which only
one person is privy; and therefore does not _always_ demand
the testimony of two which the civil [and ecclesiastical] law
universally requires. '_Unius responsio testis omnino non
audiatur._' To extricate itself out of such absurdity, the modern
practice of the civil law courts has plunged itself into another.
For, as they do not allow a less number than two witnesses to be
_plena probatio_, they call the testimony of one, though never
so clear and positive, _semi-plena probatio_ only, on which no
sentence can be founded. To make up, therefore, the necessary
complement of witnesses, when they have one only to a single
fact, they admit the party himself (plaintiff or defendant) to be
examined in his own behalf; and administer to him what is called
the _suppletory_ oath; and if his evidence happens to be in his
own favour, this immediately converts the half proof into a whole
one."--BLACKSTONE, _Commentaries_, III, 370. _Cf._ also BISHOP,
_Marriage, Divorce, and Separation_, II, § 456; _Law Review_, I,
378, 379.]

[Footnote 319: _Law Review_, I, 379, 380. See the illustrative
case of Evans _v._ Evans in _Notes of Cases in Ecc. and Mar.
Courts_, II (1842-43), 470-76. _Cf._ BISHOP, _op. cit._, I, §
1532; BURN, _Ecc. Law_, II, 503_e_-503_g_.]

Again, the relief granted by Parliament was effectively placed beyond the reach of all save the plutocracy. The triple cost of the law action, the ecclesiastical decree, and the legislative proceedings was enormous. How utterly the luxury of divorce was placed beyond the wildest dreams of the poor man clearly appears when one understands that it could be obtained only through the expenditure of a fortune sometimes amounting to thousands of pounds.[320] The shameful injustice of the system has never been so vividly brought out as in the often-quoted words of Justice Maule in a case tried before him in 1845: "The culprit was a poor man who had committed bigamy. The defence was that when the prisoner married his second wife he had in reality no wife, for his former wife had first robbed, and then deserted him, and was now living with another man. The judge imposed the lightest penalty in his power, but he prefaced it with some ironical remarks which made a deep and lasting impression. Having described the gross provocation under which the prisoner had acted, he continued: 'But, prisoner, you have committed a grave offence in taking the law into your own hands and marrying again. I will now tell you what you should have done. You should have brought an action into the civil court, and obtained damages, which the other side would probably have been unable to pay, and you would have had to pay your own costs--perhaps 100 _l._ or 150 _l._ You should then have gone to the ecclesiastical court and obtained a divorce _a mensa et thoro_, and then to the House of Lords, where having proved that these preliminaries had been complied with, you would have been enabled to marry again. The expenses might amount to 500 _l._ or 600 _l._ or perhaps 1000 _l._ You say you are a poor man, and you probably do not possess as many pence. But, prisoner, you must know that in England there is not one law for the rich and another for the poor.'"[321]

[Footnote 320: According to the writer in the _Law Review_, I,
367, two thousand pounds is not an overcharged estimate. "In
some cases even the preliminary proceedings in Doctors' Commons
will cost nearly as much. From the evidence of Mr. Swaby, the
Registrar of the Admiralty Court, before the Select Committee,
p. 33, it appears that even in an ordinary litigation, with
moderate opposition, and where the witnesses are at hand, the
expense of obtaining a definitive sentence of divorce _à mensâ_
may reasonably amount to 1700 _l._; and this merely to lay a
foundation for the proceedings before Parliament, and quite
independently of the action at law. It is well known that Lord
Ellenborough's divorce cost 5000 _l._"--_Ibid._, 367 n. 6. At
the same time the cost of a divorce _a vinculo_ in Scotland was
only 25 _l._: _ibid_., 367, 368. But in the _Evidence before the
Select Committee of the House of Lords, 1844_, 39, the expense of
getting a full divorce is then put at about 800 or 900 pounds.]

[Footnote 321: LECKY, _Democracy and Liberty_, II, 201, 202; also
cited by JEAFFRESOn, _Brides and Bridals_, II, 342, 343, note.
For this case see MORGAN, _Marriage, Adultery, and Divorce_, II,
234-313.

On the law before 1857 see POYNTER, _Doctrine and Practice of
Ecc. Courts in Doctors' Commons_, 68 ff. Against the proposed
alteration is KEBLE, _Sequel of the Argument against immediately
repealing the Laws which treat the Nuptial Bond as indissoluble_
(Oxford, 1857), 196-220; while strongly in favor of a reform are
the anonymous authors of _Plea for an Alt. in the Divorce Laws_
(London, 1831), 1 ff.; and _Observations on the Marriage Laws_
(London, 1815); as well as much earlier SALMON, _Crit. Essay
Concerning Marriage_ (London, 1724), 109 ff.]

_d_) _The present English law._--It is, indeed, wonderful that a great nation, priding herself on a love of equity and social liberty, should thus for five generations tolerate an invidious indulgence, rather than frankly and courageously to free herself from the shackles of an ecclesiastical tradition! But even in England, so far as the state is concerned, the dogma that marriage is an indissoluble bond has finally run its course. A partial remedy for the scandals and hardships of the existing system was at last grudgingly provided in the civil divorce law of 1857. By this act,[322] which during a whole session of Parliament was stubbornly resisted, mainly on religious grounds,[323] the entire jurisdiction in matrimonial questions hitherto belonging to the spiritual courts, except "so far as relates to the granting of marriage licences," is transferred to a new civil "Court for Divorce and Matrimonial Causes;" and since 1873 this tribunal has given place to the "Probate, Divorce, and Admiralty Division" of the "High Court of Justice."[324] It is "a court for England only," its competence not extending to Ireland, Scotland, or the Channel Isles.[325]

[Footnote 322: 20 and 21 Vict., c. 85: _Statutes at Large_,
XCVII, 532-46. In general on the present English law of divorce
see GLASSON, _Le mariage civil et le divorce_, 317-27; HARRISON,
_The Laws of Probate and Divorce_, 115 ff.; GEARY, _Marriage and
Family Relations_, 237-430; BROWNING, _Practice and Procedure_,
1 ff.; LECKY, _Democracy and Liberty_, II, 202 ff.; THWING, _The
Family_, 194; ERNST, _Marriage and Divorce_, 55 ff.; WOOLSEY,
_Divorce_, 174-78; GLASSON, _Hist. du droit_, VI, 177-84;
NEUBAUER, "Ehescheidung im Auslande," _ZVR._, VII, 297-99;
_Montmorency_, "The Changing Status of a Married Woman," _Law
Quart. Rev._, XIII, 189-92; HIRSCHFELD, "The Law of Divorce in
England and in Germany," _ibid._, XIII, 399-405.]

[Footnote 323: HANSARD'S _Parl. Debates_, 3d series, CXLIV-VIII.
"The discussions on the subject were curious as showing how
powerfully, even to that late period, theological methods of
thought and reasoning prevailed in the British Legislature. There
were speeches that would seem more in place in a church council
than in a lay Parliament."--LECKY, _Democracy and Liberty_, II,
202.]

[Footnote 324: 36 and 37 Vict., c. 66, secs. 16, 31.]

[Footnote 325: See GEARY, _Marriage and Family Relations_, 238
ff., for the jurisdiction and procedure of these courts. _Cf._
also HARRISON, _The Laws of Probate and Divorce_, 191 ff.]

By the law of 1857, supplemented in various ways through subsequent statutes, three forms of separation are recognized. First, on petition of either consort the court is empowered to grant a complete dissolution of wedlock; but in this respect the provisions of the act are conceived in the same narrow spirit that actuated the policy of legislative divorce. The woman is treated with precisely the same injustice. For while the husband may secure an absolute divorce on account of the simple adultery of the wife, the wife is unable to free herself from an unfaithful husband unless his infidelity has been coupled with such cruelty as "would have entitled her to a divorce _a mensa et thoro_;" or "with desertion, without reasonable cause, for two years and upwards;" or with certain other aggravating offenses.[326] Friends and enemies of the bill alike joined in condemning the unequal position in which man and wife were placed. Gladstone, who tenaciously resisted the act on theological grounds, declared: "If there is one broad and palpable principle of Christianity which we ought to regard as precious it is, that it has placed the seal of God Almighty upon the equality of man and woman with respect to everything that relates to these rights."[327] On the other hand, the attorney-general, who introduced the measure, found it necessary to apologize for this defect. "If this bill," he says, "were thrown aside and the whole law of marriage and divorce made the subject of inquiry, I should be the last man to limit the field of discussion or to refuse to consider a state of law which inflicts injustice upon the women most wrongfully and without cause, and which may be considered opprobrious and wicked;" moreover, he continues, the "present bill need not be the end-all of legislation upon the subject."[328]

[Footnote 326: 20 and 21 Vict., c. 85, sec. 27: _Statutes at
Large_, XCVII, 537. But various "absolute" or "discretionary"
bars may be pleaded against a decree. On these see GEARY,
_op. cit._, 267-304; HARRISON, _op. cit._, 130 ff.; WOOLSEY,
_Divorce_, 175.]

[Footnote 327: HANSARD, _Parl. Debates_, 3d series, CXLII, 394
ff. See the suggestive paper of HIRSCHFELD, "The Law of Divorce
in England and in Germany," _Law Quart. Review_, XIII, 400-403,
giving illustrative passages from the debates relating to the
unfair treatment of the wife.]

[Footnote 328: HANSARD, _op. cit._, 3d series, CXLVII, 1545.]

In judicial practice, however, the terms "cruelty" and "desertion" have acquired a rather broad meaning.[329] In particular through the doctrine of "constructive" and "moral" cruelty there is a "strong tendency to equalize the positions of the two" sexes.[330] Nevertheless, the woman is still in a relatively unfavorable position; and the sphere of divorce _a vinculo_ is exceedingly narrow. There are doubtless many other causes besides infidelity for which the welfare of society and the happiness of individuals require that marriage may be dissolved. "It is a scandal to English legislation," observes Lecky, that divorce "should not be granted when one of the partners has been condemned for some grave criminal offence involving a long period of imprisonment or penal servitude, or for wilful and prolonged desertion, or for cruelty, however atrocious, if it is not coupled with adultery. In all continental legislations which admit divorce a catalogue of grave causes is admitted which justify it."[331]

[Footnote 329: Thus adultery, if long persisted in, ripens
into "desertion." For a detailed discussion of "cruelty" and
"desertion" according to definition and judicial precedent, and
particularly on "constructive" and "moral" cruelty, see GEARY,
_op. cit._, 323 ff., 330 ff. _Cf._ BISHOP, _Marriage, Divorce,
and Separation_, I, §§ 1524 ff., especially 1532; HARRISON, _op.
cit._, 138 ff.]

[Footnote 330: "From the meaning of pain inflicted on the
body it [cruelty] has in recent years attained the extended
meaning that includes pain inflicted on the mind. Coldness and
neglect may now almost of themselves constitute such cruelty
as, coupled with misconduct, will give the right of divorce.
The time may very reasonably be looked forward to when almost
every act of misconduct will in itself be considered to convey
such mental agony to the innocent party as to constitute the
cruelty requisite under the Act of 1857. The difference already
is very marked when we compare the 'cruelty' of today with the
thrashing by the husband that constituted cruelty thirty years
ago. Probably in those days the doctrine of a husband's right
to administer physical correction to his wife was not entirely
discredited. Today it is possible for a woman, with celerity and
at little cost, to separate herself from her husband if she be
able to prove that he is either a brute or a monster. Forty years
ago the vast majority of women were indissolubly tied to their
husbands though the whole world knew them to be both brutes and
monsters. It is a great change in a short period."--MONTMORENCY,
"The Changing Status of a Married Woman," _Law Quart. Review_,
XIII, 191, 192.]

[Footnote 331: LECKY, _op. cit._, II, 202, 203.]

While depriving the ancient spiritual tribunals of the monopoly of matrimonial jurisdiction which they had so long possessed, Parliament made a proper concession to the scruples of the regular clergy. By the act a divorced person, whether guilty or innocent, is permitted to marry again if he likes; but a clergyman of the "United Church of England and Ireland" is not compelled to solemnize the marriage. Should he refuse, however, he cannot legally prevent a brother-minister of the establishment from using his church or chapel for the celebration; and this last provision has in our own day become a standing grievance on the part of those who denounce such a celebration as a "defilement" of the sanctuary.[332]