474
DIVORCE
“ Quamdiu vivit vir licet adulter sit, licet sodomita, licet jlagitiis omnibus coopertus, et ab uxore propter hcec scelera derelictus, maritus ejus reputatur, cui alterum vivum accipere non licet” (Caus. 32, Qusest. 7, c. 7). (2) That no divorce could be had at the will of the parties, but only by the sentence of a competent, that is to say, an ecclesiastical, court. In this negation of a right to divorce a vinculo matrimonii lies the broad difference between the doctrines of the Eastern and Western Churches of Christendom. The Greek Church, understanding the words of Christ in the broader sense above mentioned, has always allowed complete divorce with a right to remarry for the cause of adultery. And it is said that the form at least of an anathema of the Council of Trent was modified out of respect to difference on the part of the Greek Church (see Pothier 5. 6. 21). The papal canon law allowed a divorce a mensd et thoro for six causes: (1) adultery or unnatural offences; (2) impotency; (3) cruelty; (4) infidelity; (5) entering into religion; (6) consanguinity. The Church, however, always assumed to itself the right to grant licenses for an absolute divorce; and further, by claiming the power to declare marriages null and void, though professedly this could be done only in cases where the original contract could be said to be void, it was, and is to this day, undoubtedly extended in practice to cases in which it is impossible to suppose the original contract really void, but in which a complete divorce is on other grounds desirable. Divorce in England. In England the law of divorce, originally based on the canon law of Home, underwent some, though little, permanent change at the Reformation, but was profoundly modified by the exercise of the power of the State through legislation. From the canon law was derived the principle that divorce could legally take place only by sentence of the court, and never at the will of the parties. Complete divorce has never been governed by any other principle than this ; and in so far as an incomplete divorce has become practicable at the will of the parties, it has been by the intervention of civil tribunals and contrary to the law of the ecclesiastical courts. Those courts adopted as ground for divorce a mensd et thoro the main grounds allowed by Roman canon law, adultery and cruelty (Ayliffe, 22 ; Co. Lit. 102 ; 1 Salk. 162 ; Godolphin Abridg. 495). The causes of heresy and of entering with religion, if ever they were recognized in England, ceased to exist at the Reformation. The principles upon which the English ecclesiastical courts proceeded in divorce a mensd et thoro are those which are still in force, and which (with some modification by statutory enactment) have been administered by judicial tribunals down to the present day. The courts by which the ecclesiastical law, and therefore the law of divorce, was administered were, until 1857, the courts of the various dioceses, including that of the Archbishop of Canterbury, known as the Arches Court, and that of the Archbishop of York, known as the Consistory Court of York; but by statute a suitor was prevented from taking proceedings in any court except that determined by the residence of the person against whom proceedings were taken (23 Hen. VIII. c. 9). From these courts an appeal lay to delegates appointed in each case by the Crown, until the establishment of the Judicial Committee of the Privy Council in 1836, when the appeal was given to the Crown as advised by that body. The proof of adultery (to which Isydon in his Booh of Etymologies gives the fanciful derivation of “ ad alterius thorum ”) was not by the canon law as received in England restricted by the operation of arbitrary rules. It
was never, for example, required, as by the law of Mahomet,, that the act should have been actually seen by competent witnesses, nor even that the case should be based on any particular kind of proof. It was recognized that the nature of the offence almost inevitably precluded direct evidence. One rule, however, appears to have commended itself to the framers of the canon law as too general in its application not to be regarded as a principle. The mere confession of the parties was not regarded as a safe ground of conviction; and this rule was formulated by a decretal epistle of Pope Celestine III., and, following it, by the 105th of the Canons of 1604. This rule has now been abrogated ; and no doubt it is wiser not to fetter the discretion of the tribunal charged with the responsibility of deciding particular cases, but experience of divorce proceedings tends to confirm the belief that this rule of the canon law was founded on an accurate appreciation of human nature. Although, therefore, with the above exception, no strict rules of the evidence necessary to establish adultery have ever been established in the English courts, experience has indicated, and, in former days judges of the ecclesiastical courts often expressed, the lines upon which such proof may be expected to proceed. It is necessary and sufficient,, in general, to prove two things—first the guilty affection towards each other of the persons accused, and, secondly, an opportunity or opportunities on which, if so minded, their passion may have been gratified. It 'is obvious that any strong proof on either of these points renders strict proof on the other less needful; but when proof on both is afforded, the common sense of a tribunal, acting with a knowledge of human nature, may be trusted to draw the inevitable conclusion. The definition of cruelty accepted by the ecclesiastical courts as that of the canon law is the same as that which prevails at the present time; and the view of the law taken by the House of Lords in a recent case, by which the subject is now governed {Russell v. Russell, 1897 App. Gas. 395), was expressly based on the view of cruelty taken by the authorities of the ecclesiastical law. The best definition by our older writers is probably to be' found in Clarke’s Praxis (p. 144) : “ Si maritus fuerit erga uxorem crudelis et ferax ac mortem comminatus et machinatus fuerit, vel earn inhumaniter verbis et verberibus tractaverit, et aliquando venenum loco potus paraverit vel aliquod simile commiserit, propter quod sine periculo vitae cum marito cohabitare aut obsequia conjugalia impenderenon audeat . . . consimili etiam causa competit viro contra mulierem.” Lord Stowell, probably the greatest master of the civil and canon law who ever sat in an English court of justice, has in one of his most famous judgments {Evans v. Evans, 1 Hagg. Consist. 35) echoed the above language in words often quoted, which have constituted the standard exposition of the law to the present day. “ In the oldercases,” he said, “ of this sort which I have had the opportunity of looking into, I have observed that the danger of life, limb, or health is usually insisted as the ground upon which the court has proceeded to a separation. This doctrine has been repeatedly applied by the court in the caseswhich have been cited. The court has never been driven off this ground. It has always been jealous of the inconvenience of departing from it, and I have heard no one case cited in which the court has granted a divorce without proof given of a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the court is not to wait till the hurt is actually done; but the apprehension must be reasonable: it must not be an apprehension arising from an exquisite and diseased sensibility of mind. Petty vexations applied to such a constitution of mind may certainly in time wear out the animal machine, but still
