Page:Encyclopædia Britannica, Ninth Edition, v. 7.djvu/319

301 DIVORCE 301 These experiments in divorce legislation display anxiety to regulate the relationship of marriage as a purely civil institution, with a view mainly to public decorum and the comfort of individuals. When marriage had manifestly failed it was no longer worth preserving, and it had failed when either of the parties showed a desire to withdraw from the alliance. At the same time an innocent party must be protected against the caprices of an unjust spouse, and such protection was sought by the device just described. It is a remarkable illustration of the Roman view of marriage that, in view of what must have been the great social evil of capricious divorce, the right of either party to dissolve the marriage was never successfully questioned. From the pure Roman to the canon law the change is great indeed. The ceremony becomes sacred, the tie indissoluble. Those whom God hath joined let not man put asunder, was the first text of the new law of marriage, and against such a prohibition social convenience and experience pleadedjn vain. While marriage once created became indissoluble, the impediments to marriage also multiplied. The canon law annulled a marriage ab initio for causes which we should now consider wholly inadequate. The tie of consanguinity was extended to the eighth generation ; and affinity, it was held, might be established by adulterous intercourse with out marriage. The power of dispensing with canonical disabilities, and the power of annulling marriage on the ground of such disabilities, belonged to the church, and tvere important aids to its influence in society. In countries vhich have embraced the doctrines of the Reformation, a relaxation of the law of divorce has generally followed the changes of religion whether immediately, as in Scotland, or indirectly, as in England. In Roman Catholic countries the theory of the canon law still rules. The history of divorce in English law is particularly in teresting. Down to the passing of the Divorce Act of 1858, the theory of the law of England was the same as the theory of the Roman Church. There were attempts during the period of the Reformation to introduce a greater licence of divorce, and in the Keformatio Legum Ecclesiasti- carum (a code of ecclesiastical law projected by a royal commission, but never enacted) the leaders of the Reformation sanctioned principles which would even now be considered liberal. Divorce was to be granted for adultery, and the innocent spouse was to be permitted to marry again. Other grounds for divorce were specified, such as desertion and continued absence, and savageness of temper. Separation a mensa ct thoro was to be superseded by this more complete remedy. And the more advanced Reformers advocated even greater liberty of divorce. The nature of their proposals, and the arguments by which they reconciled them with the language of Scripture, may be studied in Milton s tractate on the Doctrine and Discipline of Divorce, addressed to the Parliament of England. But the law remained unchanged. The constitution of marriages belonged to the jurisdiction of the ecclesiastical courts. The tie was indissoluble. The marriage, indeed, might be declared null and void in certain cases, e.g,, where the parties were within the prohibited degrees of consanguinity or affinity. This proceeding was not a dis solution of marriage so much as a declaration that no real marriage had taken place between the parties. Divorce a mensa et thoro was granted for adultery and cruelty. Here the marriage, being originally good, was not dissolved, but a separation was ordered either for a limited or an indefinite time. The spouses were not permitted to marry again. But while the law remained unchanged, the practice of granting complete divorces by private Acts of Parliament had come into existence. The legislature did in particular cases that which it refused to do by a general law. Two conditions were in general necessary to satisfy Parliament. 1st, A divorce a mensa et thoro had to be obtained from the ecclesiastical court. 2d, An action for damages had to be brought against the adulterer in the civil court for criminal conversation. The latter was not absolutely necessary, and appears to have been regarded as a safeguard against divorce being granted to persons who had connived at the acts of adultery, or had themselves been guilty of miscon duct in the marriage state. The passing of these Acts through Parliament became a matter of as much formality as a proceeding in an ordinary law court. The two Houses passed standing orders on the subject, under which bills on divorce were argued before the law lords by professional advocates, and generally neither the House of Commons nor the lay lords interfered. By this characteristic evasion, the law of England completely changed its practice while still maintaining its ancient theory of divorce. Probably the anomalous character of the remedy might not have brought about a change but for the great practical evil of the expense attending the proceedings. Three suits ecclesiastical, civil, and parliamentary were necessary. Divorce became a remedy for the rich. The poor were driven to bigamy. 1 Yet it was not until 1857 and not then without determined resistance that this disgraceful state of things was changed. A commission appointed in 1850 recommended the establishment of a regular court for divorce, and that divorce should be granted for the wife s adultery but not for the husband s unless aggra vated by other offences. Bills constructed on these prin ciples were introduced into Parliament, and successively abandoned or lost, until in 1857 the ministry of the day by great exertions carried the bill which is now the Act of 20 and 21 Viet. c. 85. Notwithstanding the hostility it excited, the bill proposed little more than a consolidation of jurisdictions ; and proceedings in the Divorce Court have now, with few exceptions, the same object and result as the former proceedings in Parliament and in the civil and ecclesiastical courts. The action for damages for crim. con. is represented by the adulterer being made a party to the husband s suit. Full divorce is granted on the principles usually recognized by the House of Lords ; and the other remedies are such as might formerly have been granted by the ecclesiastical court. The following statement embraces the most important provisions of the Act : All jurisdiction in matters matrimonial (i.e., in respect of divorces a mensa et thoro, suits of nullity of marriage, of jactitation of marriage, for restitution of conjugal rights, &c. ), shall cease to be so exercisable, and shall in future be exercised by a new court, to be called the &quot; Court for Divorce and Matrimonial Causes.&quot; The Lord Chancellor and other judges are named as members of this court, along with the judge of the new constituted Court of Probate, who is to be the judge ordinary oE the new court. Divorce a mensa et thoro is under that name abolished, but a new remedy called judicial separation is introduced, which shall have the same effect, and such other legal eifect as in the Act mentioned. This remedy may be obtained by either husband or wife, on the ground of adultery or cruelty, or desertion without cause for two years and upwards. At the same time it is provided that a wife deserted by her husband may apply to a police magistrate or justice of the peace for a pro tection order, by which her earnings and property acquired since the 1 The satirical address of Mr Justice Maule to a poor man convicted of bigamy, in 1845, put the absurdities of the existing law in a way not likely to be forgotten. The prisoner s wife had robbed him and run away with another man. &quot; You should have brought an action,&quot; he told him, &quot; and obtained damages, which the other side would probably not have been able to pay, and you would have had to pay your own costs, perhaps a hundred or a hundred and fifty pounds. You should then have gone to the ecclesiastical courts, 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 expense might amount to five or six hundred or perhaps a thousand pounds. You say you are a poor man. But I must tell you that there is not one law for the rich and another for the poor.