Page:The Green Bag (1889–1914), Volume 08.pdf/406

 The English Law Courts. of getting relief from the marriage tie except by an appeal to the Legislature for a private act, — a remedy which, after 1798, under Lord Loughborough's orders, was not grant ed unless and until the petitioner had obtained a definitive sentence of separation a mensa et thoro from the ecclesiastical courts. In 1809 a further order was made, that no divorce bill should be received without a clause prohibiting the offending parties from intermarrying. This clause.however, although insisted upon by the House of Lords, was regularly thrown out by the House of Com mons; and there are only one or two cases where a bill containing such a provision be came law, and in these the marriage, if it had taken place, would have been void by rea son of the consanguinity of the parties. In 1857, an act establishing a court for divorce passed into law. It was strenuously opposed by Mr. Gladstone, who held — and holds — the extreme High Church view as to the in dissolubility of the marriage bond, and whose views on the subject will be found stated at length and expounded with all his unequaled ability in his " Gleanings from Past Years." The jurisdiction of the Divorce Court has remained practically unchanged from 1857 to the present day. It will be found stated below when we come to sum up the juris diction of the Probate, Divorce and Admi ralty Division. The High Court of Admiralty dates as far back as the time of the Plantagenets. Its jurisdiction was both criminal and civil. The criminal jurisdiction comprised crimes com mitted on the high seas. But this has now been transferred to the Central Criminal Court (the Old Bailey) or the judges of as size, according to circumstances. The civil jurisdiction embraced suits for the purpose of enforcing bottomry or respondentia bonds, salvage actions, actions to enforce the pay ment of money due for necessaries supplied to a ship, or for wages due to the master or crew, or for pilotage services; actions to re cover damages in cases of collision and of

37 *

damage done by any ship; cases of damage to goods, or in respect of breaches of con tract where the owners of the vessel were domiciled abroad; and questions of prize and booty of war, — a jurisdiction, by the way, exercised by virtue of a special war rant. Appeals lay from the High. Court of Admiralty to the Judicial Committee of the Privy Council. The three tribunals to which we have been referring have now been consolidated in the Probate, Divorce and Admiralty Division of the High Court of Justice. The Judicature Act of 1873 assigned to this division, (1) all causes and matters pending in the Court of Probate or in the Court for Divorce and Matrimonial Causes, or in the High Court of Admiralty; (2) all causes and matters which would have been within the exclusive cog nizance of these courts if the Judicature Act had not passed. The non-contentious and contentious busi ness of the Court of Probate and the juris diction of the High Court of Admiralty have been already referred to. It may be interest ing, however, to analyze the English law as to divorce somewhat more closely. A hus band is entitled to a divorce from his wife on the ground of her adultery alone. A wife is not entitled to a divorce from her husband on account of his adultery unless it is {a) in cestuous, i. e. committed with a woman whom he could not marry though his wife were dead, by reason of her being within the pro hibited degrees of consanguinity or affinity; or(£)bigamous, i. e. committed with the same woman whom he has bigamously married (Home v. Home, 27 L. J. M. 50); or (c) coupled with cruelty or desertion without reasonable cause for two years or upwards. A wife is also enabled to obtain divorce on proof that her husband has committed rape or an unnatural offense. There are, however, cer tain bars to a decree for dissolution of mar riage. Some of these are absolute; others are discretionary. The absolute bars are active or passive connivance by the petitioner at