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DIVORCE connected with the solemnization of marriage has been asserted, in time compelled the discovery of a remedy. The kept within these narrow limits. Fraud of a different commission appointed by Henry VIII. and Edward VI. to kind, such as deception as to the property or position of reform the ecclesiastical law drew up the elaborate report the husband or wife, or antecedent impurity of the wife, known as the Reformatio Legum, and in this they recomeven if resulting in a concealed pregnancy, has not in mended that divorces a mensd et thoro should be abolished, England (though the last-mentioned cause has in other and in their place complete divorce allowed for the causes countries) been held a ground for the vitiation of a mar- of adultery, desertion, and cruelty. These proposals, howriage contract. A marriage was voidable, and could be ever, never became_law. In 1669 a private Act of Parliadeclared void, on the ground of physical incapacity of ment was granted in the case of Lord de Roos, and this either spouse, the absence of intercourse between the was followed by another in the case of the Duke of parties after a sufficient period of opportunity being Norfolk in 1692. Such Acts were, however, rare until almost, if not quite, conclusive on this subject. the accession of the House of Hanover, only five Acts With regard to one cause of nullity the legislation in- passing before that period. Afterwards their number conterfered from consideration, it is said, of a case of special siderably increased. Between 1715 and 1775 there were hardship. Before an Act of 1835 (5 & 6 Will. IV. c. 54) sixty such Acts, in the next twenty-five years there were marriages within the prohibited degrees of consanguinity seventy-four, and between 1800 and 1850 there were and affinity were only voidable by a decree of the court, ninety. In 1829 alone there were seven, and in 1830 and remained valid unless challenged during the lifetime nine. of both the parties. But this Act, while providing that no The jurisdiction thus assumed by Parliament to grant previous marriage between persons within the prohibited absolute divorces was exercised with great care. The case degrees should be annulled by a decree of the ecclesiastical was fully investigated before a committee of the House of court pronounced in a suit depending at the time of the Lords, and not only was the substance of justice so passing of the Act, went on to render all such marriages secured, but the House of Lords further required that thereafter contracted in England “absolutely null and application to Parliament should be preceded by a successvoid to all interests and purposes whatever.” ful suit in the ecclesiastical courts resulting in a decree of Another suit was allowed by the ecclesiastical courts divorce a mensd et thoro, and in the case of a husband which should be mentioned, although its bearing on being the applicant, a successful action at common law divorce is indirect. This was the suit for jactitation of and the recovery of damages against the paramour. In marriage, which in the case of any person falsely asserting this way, and also, if needful, on its own initiative, the his or her marriage to another, allowed such person to be House of Lords provided that there should be no conput to perpetual silence by an order of the court. This nivance or collusion. Care was also taken that a proper suit, which has been of rare occurrence, although an allowance was secured to the wife in cases in which she instance of it has recently been known, does not appear was not the offending party. This procedure is still purto have been used for the purpose of determining the sued in the case of Irish divorces. validity of a marriage. The legislature has, however, It is obvious, however, that the necessity for costly proin the Legitimacy Declaration Act of 1858, provided a ceedings before the Houses of Parliament imposed great ready means by which the validity of marriages and the hardship on the mass of the population, and there can be legitimacy of children can be determined, and the pro- little doubt that this hardship was deeply felt. Repeated cedure provided has repeatedly been utilized. proposals were made to Parliament with a view to reform It should be added, as a matter closely akin to the pro- of the law, and more than one commission reported on the ceedings in the ecclesiastical courts, that the common law subject. It is said that the final impetus was given by took cognizance of one phase of matrimonial relations by an address to a prisoner by Mr Justice Maule. The allowing an action by the husband against a paramour, prisoner’s wife had deserted him with her paramour, and known as an action for criminal conversation. In such an he married again during her lifetime. He was indicted action a husband could recover damages estimated accord- for bigamy, and convicted, and Mr Justice Maule sentenced ing to the loss he was supposed to have sustained by the him in the following words :—“Prisoner at the bar: You seduction and loss of his wife, the punishment of the have been convicted of the offence of bigamy, that is to seducer not being altogether excluded from consideration. say, of marrying a woman while you had a wife still alive, Although this action was not unfrequently (and indeed, for though it is true she has deserted you and is living in the purposes of a divorce, necessarily) brought, it was one adultery with another man. You have, therefore, comwhich naturally was regarded with disfavour. mitted a crime against the laws of your country, and you Effect of the Reformation.—Great as was the indirect have also acted under a very serious misapprehension of effect of the Beformation upon the law of divorce in the course which you ought to have pursued. You should England, the direct effect was small. It might, indeed, have gone to the ecclesiastical court and there obtained have been supposed that the disappearance of the sacra- against your wife a decree a mensd et thoro. You should mental idea of marriage entertained by the Roman Church then have brought an action in the courts of common law would have ushered in the greater freedom of divorce and recovered, as no doubt you would have recovered, which had been associated with marriage regarded as a damages against your wife’s paramour. Armed with these civil contract. And to some extent this was the case. It decrees, you should have approached the legislature and was for some time supposed that the sentences of divorce obtained an Act of Parliament which would have rendered pronounced by the ecclesiastical courts acquired the you free and legally competent to marry the person v’hom effect of allowing remarriage, and such divorces were in you have taken on yourself to marry with no such some cases granted. In Lord Northampton's case in the sanction. It is quite true that these proceedings v’ould reign of Edward VI. the delegates pronounced in favour of have cost you many hundreds of pounds, whereas you a second marriage after a divorce a mensd et thoro. It was, probably have not as many pence. But the law knows however, finally decided in Foljambe's case, in the 44th year no distinction between rich and poor. The sentence of of Elizabeth, that a marriage validly contracted could not the court upon you, therefore, is that you be imprisoned be dissolved for any cause. But the growing sense of the for one day, which period has already been exceeded, as you right to a complete divorce for adequate cause, when no have been in custody since the commencement of the longer any religious law to the contrary could be validly assizes.” The grave irony of the learned judge was felt to
