(Lat. divorcium), a breach or dissolution of the bond of marriage.

Both among the pagans and the Jews a great latitude was allowed of in divorce. At Athens and at Sparta, the only Greek states of whose laws on this subject we have any certain information, a divorce might be effected either by the husband or the wife; though in the woman's case it was a matter of some difficulty. The husband, on the other hand, was permitted by the Athenian law to divorce his wife by a very summary process—namely, by turning her out of his house. This was usually done in the presence of witnesses; but the husband was bound to restore her portion, or in lieu of it to pay her the interest on it at the rate of nine oboli per drachma every month, besides an allowance for alimony. A woman could only sue for a divorce by appearing in person before the archon, and delivering up a memorial stating the grounds upon which she sued for a divorce. The terms expressing the separation of men and women were different; the man being said ἀναστρέφειν, to dismiss his wife, and the woman ἀπολύεσθαι, to leave her husband. At Sparta, according to Herodotus, a man might divorce his wife on the plea of barrenness. The Cretans, again, are said to have permitted a man to divorce his wife if he was afraid of having too great a number of children.

Among the Romans, the ordinary causes of divorce were sterility, old age, bodily disease, insanity, and banishment; Divorce, to which were afterwards added by Justinian a vow of chastity and the profession of the monastic life—with a view to conciliate his Christian subjects. Divorce always existed in the Roman polity, and appears to have been permitted on very slight grounds, since either party might declare his or her intention to dissolve the marriage on the plea of the absence of conjugal affection—abiding consent being considered essential to the continuance of the connection. The dissolution of the marriage might be effected without any judicial process. According to Plutarch (Romulus, c. 22), the husband alone originally was able to effect a divorce; but his authority on this point is questionable. The earliest instance of a divorce at Rome is said to have occurred under the consulship of M. Attilius and P. Valerius, about the year B.C. 234, when Sp. Carvilius Ruga put away his wife on the plea of barrenness; but it would appear that his behaviour was much censured.

Divorces were of comparatively rare occurrence at Rome till towards the latter end of the republic; and under the emperors they became very common. Doubtless the state of the law tended greatly to multiply divorces, since either party was at liberty to contract a new marriage. Pompey divorced his wife Mucia on the charge of adultery; Cicero divorced his aged wife Terentia and married a young woman; Cato the younger lent his wife Marcia to his friend Hortensius, or in other words he divorced her that his friend might marry her and have children by her; and Julius Caesar divorced Pompeia because she was suspected of intriguing with Clodius. As a general rule, the portion (dos) of the wife was returned to her when divorced by the husband, or when they separated by mutual consent. Their offspring in all cases remained at the disposal of the father. A constitution of Diocletian and Maximian, however, empowered a competent judge to declare whether the father or the mother should be entrusted with the care of the children. In certain cases, a sixth part of the wife's portion might be retained by the husband; as, for example, when the wife had been convicted of infidelity.

It was necessary, in proceeding to effect a divorce, to make a distinct notice or declaration of the intention to separate. The term repudium is said to differ from divorcium, in that the former properly applies to a marriage only contracted; but these terms appear to be sometimes used indifferently. In the time of Augustus an attempt was made to restrain the facilities for divorce, by the Lex Julia de Adulteriis and the Lex Poppia—Poppaea.

"The law of Moses," observes Archdeacon Paley, "for reasons of local expediency, permitted the Jewish husband to put away his wife; but whether for every cause, or for what cause, appears to have been controverted amongst the interpreters of those times. Christ, the precepts of whose religion were calculated for more general use and observation, revokes this permission, as given to the Jews 'for their hardness of heart,' and promulgates a law which was thenceforward to confine divorces to the single cause of adultery in the wife: 'Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery; and whoso marrieth her which is put away, doth commit adultery.'"

By the law of Scotland, a divorce may be obtained on the ground either of adultery or of wilful desertion. Neither of these grounds, however, dissolves the marriage ipso jure; and if a process of divorce be not instituted, the marriage subsists, notwithstanding the adultery or desertion. Until recently the action of divorce proceeded before the commissioners of Edinburgh; and in every such action, whether founded on adultery or desertion, the pursuer must make oath that the action is not collusive. The legal effect of divorce on the ground of desertion is, that the offending party loses the "tocher," as it is called, and the donationes Divorce. proper nuptias; that is, the offending husband is bound to restore the dowry, and to pay or make good to the wife all her provisions, legal or conventional; and the offending wife forfeits her dowry, and all that would have come to her had the marriage been dissolved by the predecease of her husband. It is now held that recrimination is not a good defence against divorce for adultery; yet, as the mutual guilt may affect the patrimonial interests of the parties, it may be stated in a counter action. But lenocinium, or the husband's participation in the profits of his wife's prostitution, nay, even the husband's connivance in her guilt, is a good defence to the wife against an action of divorce on the ground of adultery. The statute 1600, cap. 20, declares marriages contracted between the adulterer and the person with whom he or she may be found by the sentence of divorce to have committed the crime, to be null and unlawful, and the issue of such marriages to be incapable of succeeding to their parents; but the act, nevertheless, has not the effect of bastardizing such issue. The right to institute a divorce is personal to the husband or wife; but if, after the action has been raised, either party die before the decree of divorce becomes final, it has been argued that the natural dissolution of the marriage by death supersedes and definitively closes all proceeding commenced for dissolving it on any other ground. The natural dissolution, it has been contended, is the first effectual one, and that which is to regulate all questions as to the status of the survivor. How far litiscontestation in such a case renders it transmissible to representatives, has not yet, we believe, been decided.

The following is the substance of the inquiries and recommendations of the commissioners appointed by Her Majesty in December 1850 to inquire into the law of divorce. Divorces in England are of two kinds—the one partial, and the other total. Partial divorces are called divorces à mensa et thoro, because they separate the married parties from each other's society without dissolving the marriage union. Total divorces are called divorces à vinculo matrimoni, because they dissolve that union altogether, either on the ground of some antecedent incapacity which rendered the contract void from the beginning, or on the ground of some supervenient cause, which having arisen subsequently to the marriage justifies the parties in desiring to put an end to it.

Divorces à mensa et thoro are little more in the eye of the law than simple separations; they only last until the parties think fit to be reconciled; and they are granted at the suit of the husband or wife, when the gross misconduct of either of them—such as cruelty, adultery, or the like—have rendered it impracticable for them to live together; but so careful is our law to encourage reconciliations, that an express clause to that effect ought always to be inserted in the sentence of divorce.

The common law of England, which follows in this case the canon law of the church, "deems so highly, and with such mysterious reverence, of the nuptial tie," that the causes of divorce are purposely limited to a few extreme and specific provocations; and the preservation of that union, so long as it can be secured, is so manifestly essential to the best interests of society, that before it can be dissolved it must be clearly established by the strictest proof that the offence has been committed; that there is no contrivance by which the parties are endeavouring to escape from their solemn obligations to themselves and their children; that they cannot discharge their mutual duties by continuing any longer to cohabit with each other; and that the party complaining is free from guilt.

A divorce à mensa et thoro will neither bar the wife of her dower, nor deprive the husband of his marital rights in respect of her property. Nor will it enable either of the parties to marry again; nor will it exempt them from the censure of the ecclesiastical court for living incontinently. Nor will it bastardize the subsequent born issue; but during the separation the court will decree a competent allowance to the wife for her maintenance under the name of alimony. This allowance depends on the innocence or delinquency of the parties, and is measured by the means and circumstances of the husband.

Before the Reformation, marriages were liable to be set aside on the ground of some antecedent incapacity which rendered it in reality void from the beginning; upon proof of precontract with some other person; or because the connexion was within the degrees of consanguinity or affinity prohibited by the canon law, which was far more restrictive than the law of God. But since the Reformation these rules have been altered on account of the inconveniences which resulted from them; for, to use the language of an old statute, "Marriages were brought into such uncertainty thereby, that none could be surely knit and bounden, but it should be in either of the parties' power and arbitre (casting away the fear of God by means and compasses) to prove a precontract, a kindred and alliance, or a carnal knowledge, to defeat the same." The only grounds, therefore, since the passing of that statute, for nullifying and absolving the marriage contract by reason of some antecedent incapacity, are relationship within the forbidden degrees, a previous marriage, corporal imbecility, or mental incompetency.

In cases of this description the ecclesiastical courts do not exercise, nor do they possess, a rescinding power.

The effects of a sentence nullifying a marriage are, first, that the wife is barred of her dower; secondly, that the issue are illegitimate; and thirdly, that the parties so divorced may marry again.

By the law of England the marriage contract is indissoluble; and when once it has been constituted in a legal manner, there are no means of putting an end to it in any of our courts. Nevertheless, the actual dissolution of such a contract, when adultery has been committed, is so con-

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1 Every one knows how much it was the policy of the Roman Church to multiply impediments to matrimony; the power of granting dispensations having been in all ages a fruitful source of ecclesiastical revenue. Not only were marriages with cousins interdicted, but the relation of affinity was held to be contracted by mere commerce between the sexes. Thus, if a man had connection with one sister, though not married to her, it would have been incestuous in him to marry, or to have sexual intercourse with the other sister, or even with her relatives, by consanguinity or affinity, to the eighth degree! Thus, on the death of James IV. of Scotland, his widow Margaret Tudor married the Earl of Angus. In 1524 she procured (by collusion with her husband) a sentence of divorce à vinculo matrimoni upon proof of his having been "precontracted." Sentence of nullity (that is, in the ecclesiastical phraseology, divorce à vinculo matrimoni) was thereupon pronounced; and the queen, freed from her fetters, gave her hand to Lord Methven, whom, however, she very soon divorced by another suit in the ecclesiastical court, upon evidence that Methven was cousin, eight degrees removed, to her former husband, Angus; this constituted affinity by the laws of holy church, and a just impediment to matrimony. In another case, Janet Beaton (the Lady Buccleugh of the "Lady of the Lake") being accused by Simon Preston of Craigmillar, sued a divorce against him in the ecclesiastical court, not on the ground of any misconduct on his part, but on the ground that before their marriage she, the plaintiff, had sinful intercourse with Walter Scott of Buccleugh, and that Buccleugh and Preston were within the prohibited degrees. On proof of these allegations, a sentence of divorce à vinculo matrimoni was pronounced. (Hibbald's "Exposition of Ancient Constitutional Law of Edinburgh, 1842.) These cases show most clearly what the law was in the Roman Catholic times; and the learned Mr. Edmund Coke tells, that there was a time in England when divorce à vinculo matrimoni might be had "because the husband had stood godfather to his wife's cousin." It was not by the axe that Henry VIII. extinguished his marriage with Anne Boleyn. He first carried her into the ecclesiastical court, and got a sentence against her, for an alleged precontract with Northumberland, and for his own criminal intercourse with her sister Mary. In the Roman Catholic times, the same ecclesiastical law prevailed throughout the island, and, indeed, governed the entire Christian world. Divorce.

sonant to reason and religion, that, where the general law has failed to give a remedy, parliament has stepped in to provide one specially by passing a particular law in favour of those who can make out a case which will warrant its interference. The origin of this is important and instructive.

In Roman Catholic times marriage was regarded as a sacrament by the canon law; and being a sacrament it was deemed indissoluble. But at the Reformation the courts denounced, amongst other opinions of the Romish Church, the doctrine of a sacrament in marriage; "retaining the idea of its being of Divine institution in its general origin," but considering it in the light of a civil contract, which for its full completion had always required, in England at least, some religious solemnity. The character of marriage was thus materially altered; for since it was no longer to be deemed a sacrament, there was nothing, on that account, to render it indissoluble; and as the Reformers were about to revise the whole body of the canon law—which had become unsuitable to a Protestant country—they did not omit the matrimonial code. With this view, thirty-two commissioners were appointed to order and compile such laws ecclesiastical as should be thought convenient.1 A work was accordingly composed for this purpose by Cranmer, and translated into Latin by Sir John Cheke and Dr Haddon, two of the restorers of classical literature in England.2 This work, having never received the royal confirmation, is not indeed law, but it is of great authority. It has been published under the title of "Reformatio Legum Ecclesiasticarum," and the articles on the subject of marriage and divorce are peculiarly interesting, as containing, in a short compass, the opinions of our first Reformers on matters which affect the civil rights of all men, as well as the highest of all the moral interests of society.

By these articles, when the husband or wife had committed adultery, a divorce was allowed, and the offending party might marry again. But if both were guilty, since both must fall under the same condemnation, the first marriage was not to be dissolved. Absolute desertion, protracted absence, mortal enmities, and lasting cruelty, were all adjudged to be lawful grounds of divorce. But reconciliation was inculcated wherever it could be obtained; and separations from bed and board were entirely abolished. It was, moreover, recommended that adultery should be punished by perpetual imprisonment or transportation for life; and if the offender were the husband, he was to return to the wife her fortune, and add to it one-half of his own; or if the wife, she was to forfeit her jointure, and all the advantages which by law, custom, settlement, or promise, &c., she might have otherwise derived from her marriage.

It is supposed that the regulations contained in this code on the subject of divorce were occasioned by the case of Parr, Marquis of Northampton, who had divorced his wife, Anne Boucher, for adultery, in the ecclesiastical court. For, according to the custom then prevalent, it was probable that divorces had no certain and immediate effect beyond that. But since this statute was repealed by a law passed in the following reign,3 nothing is left of these proceedings except the advised and lasting belief of Cranmer, and his associates in reformation, that a more extensive liberty of divorce ought to be allowed.4

Apparently, in fact, it was allowed for more than half a century. For it has been observed by Sir John Stoddart, that from the year 1550 until the year 1602, marriage was Divorce not held by the church, and therefore was not held by the law, to be indissoluble.

The church, however, was still anxious to discourage as much as possible a second marriage after divorce; and accordingly it requires by the 109th canon that "in all sentences pronounced only for divorce and separation à thoro et mensa, there shall be a caution and restraint inserted in the said sentence that the parties so separated shall live chastely, and neither shall they, during each other's life, contract matrimony with other person."

Mr Serjeant Salkeld lays it down that "divorce for adultery was anciently à vinculo matrimonii;" and therefore, in the beginning of the reign of Queen Elizabeth, the opinion of the Church of England was, that after a divorce for adultery the parties might marry again. But in Foljambe's case, he adds, anno 44th Elizabethi, in the Star Chamber, that opinion was changed. And Archbishop Bancroft (it should be Whitgift) upon the advice of divines, held that adultery was only a cause of divorce à mensa et thoro. The doctrine of indissolubility was thus not only re-established, but it operated in this country with a rigour unknown in Roman Catholic times; the various fictions and devices in the shape of canonical degrees and alleged precontracts, which then afforded so many loopholes of escape from its severity, having been each and all put an end to at the Reformation.

It may be reasonably doubted whether the decision in Foljambe's case was assented to by the Church of England as a body, for the Chamber of Convocation in the succeeding year rescinded, word for word, the ecclesiastical constitutions of 1597. These, as subsequently confirmed by James I., are now a substantive part of the ecclesiastical law of this kingdom, being in fact the well-known canons of 1603, which have never been repealed or disturbed.

How far the conduct of the laity may have been affected by these proceedings, it is difficult to conjecture. What was the practical rule respecting second marriages in the reign of James I., or in that of his son, or during the time of the Commonwealth, we are but little informed. Mr Spence has conjectured that, in early times, the Court of Chancery, under its clerical chancellors, exercised jurisdiction to decree a divorce à vinculo matrimonii. There is no authority, however, for this, except some loose entries in Toshill's Transactions of the Court of Chancery. The first case which answered the double purpose of bastardizing the issue and enabling the parties to marry again is that of Lord Roos, in the reign of Charles II. The facts were shortly these. In the year 1666, an act was passed, bastardizing the children of Lady Ann Roos, by reason of her adultery; and thereupon her husband, Lord Roos, followed up this proceeding by obtaining from the spiritual court a sentence of divorce à mensa et thoro. But these proceedings were incomplete for his purpose; and since "there was no probable expectation of posterity to support the family in the male line, but by the said John Manners Lord Roos," a bill was brought in entitled "An act for Lord Roos to marry again," and it enabled him to do so, and gave to the children born in such wedlock the character of legitimacy, and the capacity of inheriting.

According to the historians Burnet and Ralph, this bill was passed on political grounds, and with a political object, viz., to form a precedent which would enable Charles II. to separate from his first wife, by whom he had no children,

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1 35th Hen. VIII. cap. 16, authorizes the king to name thirty-two persons, viz., sixteen spiritual and sixteen temporal, to examine all canons, constitutions, and ordinances, provincial and synodal, and to establish all such laws ecclesiastical as shall be thought by the king and them convenient to be used in all spiritual causes.

2 34 & 35 Edw. VI. cap. 11. An act that the King's Majesty may nominate and appoint two-and-thirty persons to pursue and make ecclesiastical laws.

3 This is a private act, 5th & 6th Edw. VI., and consequently it is not printed in the authentic or common collection of the statutes.

4 See Macintosh's History of England, pp. 275, 276; and see an account of all the proceedings in Burnett's Reformation, vol. ii., pp. 90, &c., and 308; and Macqueen's Practice of the House of Lords, pp. 468, 792. and to marry a second wife, after that separation, for the purpose of excluding the Duke of York from the throne. However that may be, unquestionably the bill was contested stoutly; seventeen bishops opposed, and three only supported it. But amongst those who supported it, was Bishop Cozens, whose masterly argument on this subject was afterwards published in a pamphlet, and is now preserved in "The State Trials."

The first example of an actual dissolution of the nuptial tie by parliament was in the case of the notorious mother of Savage, the Countess of Macclesfield. In that case the aid of the legislature was sought, because, in consequence of the skilful opposition set up by the countess in the spiritual courts, and the narrow maxims which there prevailed, she contrived to baffie all her husband's efforts to obtain a sentence of divorce à mensa 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; at the same time, it was so novel a proceeding to pass a bill of that nature, where there was not a sentence of divorce first obtained in the spiritual court, that a protest was entered against it by Lords Halifax and Rochester, because, as they said, they looked upon it as an ill precedent, and which might be of ill consequence in the future.

The next instance of a legislative dissolution of marriage was in the Duke of Norfolk's case. There also a sentence of divorce was refused by the ecclesiastical court, although the duke tried the experiment more than once. He recovered damages, however, at law, from the adulterer, Sir John Jermayne. And after his bill had been repeatedly rejected by the Lords, it became at last, in a new state of circumstances, successful in 1700. The leading counsel for the duchess (Sir Thomas Powys) complained that this was the first instance where an attempt had been made to obtain a divorce by act of parliament, without any sentence being previously obtained at Doctors' Commons. And the duchess herself protested against it in these emphatic terms:—“My lords,” she said, “I had rather stand charged for high treason before your lordships than with this ignominious crime. In the charge for high treason, the manner of trial and the ways of the proceeding are known, and so is the punishment. But your lordships are now creating new ways of proceedings, and a new law to punish me, and this for a crime supposed and alleged to be committed seven years past, in another reign, and after public indemnities in many sessions of parliament.”

Such are the cases in which application was made to parliament before the commencement of the eighteenth century, to get rid of the consequences of a prior marriage.

By these means the right to obtain a divorce à vinculo was definitively established. It was established, however, in the rudest and most inconvenient manner; for the proceeding was a judicial one by a legislative process, and it had all the inconveniences which necessarily result from the discussion of such a question in a mixed and popular assembly. At first only a few divorce bills were passed—not more than five were carried through parliament before the accession of the House of Hanover. From 1715 to 1775 their number was sixty, that is to say, they averaged about one a-year. From 1775 to 1780 they had increased to seventy-four, that is to say, upon an average, to about three a-year; and from 1800 to 1852, they amounted to 110. Two of these, viz., Lady Macclesfield's and the Duke of Norfolk's cases, were without any sentence ecclesiastical; and several were without any previous verdict at law; for no standing orders of either house of parliament required the institution of these parliamentary proceedings until the year 1798.

In that year Lord Chancellor Loughborough called the attention of the House of Lords to the propriety of laying down certain general rules, which should precede the consideration of every case, and with which all parties who came before them to seek a divorce should be bound to comply. Accordingly he framed a series of resolutions; and by these resolutions it was not only required that a sentence of divorce à mensa et thoro should have been pronounced before soliciting the bill, but that the entire proceedings in the ecclesiastical court should be delivered in upon oath at the bar of the House of Lords. They further required that the petitioner should attend the house, in order, if necessary, that he might be examined as a witness with reference to connivance or collusion, and also with reference to another point which has always been deemed of primary importance in judging of divorce bills, namely, whether he was, or was not, at the time of the adultery, living apart from his wife, and whether he had not, by deed or otherwise, released her from her conjugal duty by withdrawing his marital authority and protection. These resolutions, which were passed soon afterwards, had the effect of introducing a stricter practice than had previously obtained upon bills of this nature. By a subsequent order it was provided that no bill to disallow a marriage on the ground of adultery shall be received without a clause prohibiting the marriage of the offending parties. But this clause was struck out in committee or on the report, except in very peculiar cases. In Dr Campbell's case, where the adultery was incestuous, a provision to that effect was inserted in the Lords; but the Commons refused to ratify it.

Since the passing of Lord Loughborough's orders, all applications for divorces à vinculo have been supported by ecclesiastical sentences; and all have been supported by verdicts at law, or accompanied by circumstances which justified or explained the want of such verdicts.

Divorce bills in the Commons were originally determined in the whole house. But that unseemly and inconvenient practice was put an end to on the motion of Mr Labouchere in the year 1840, when the house referred them to a select committee of nine members, of whom three are a quorum. An instruction is given to the committee that they do hear counsel and examine witnesses for the bill; and also that they do hear counsel and examine witnesses against the bill, if the parties concerned think fit to be heard by counsel or produce witnesses. The proceedings in the Commons have acquired by this change a more judicial character; but it seems absurd that a case which has been already proved three times should be proved again.

Under ordinary circumstances a divorce bill may be obtained at the suit of the husband, but not at the suit of the wife. It may be obtained almost as a matter of right at the suit of the husband, when the wife is convicted of infidelity, and the conduct of the husband is irreproachable. But it cannot be obtained at the suit of the wife except in cases of aggravated enormity, such, for instance, as incestuous intercourse with the wife's relations, which precludes the possibility of future reconciliation.

The provisions of a divorce bill are in the discretion of parliament; and in this respect there is some advantage in bringing these questions under the jurisdiction of the legislature, as other courts are bound by rules. Parliament may mould and adapt its relief according to the facts and exigencies of the case. In former times, it was asked to provide, by express enactment, that the divorced wife should not be left in a state of destitution. According to the modern practice, this is a matter that is ordinarily effected by private arrangement; but it is never neglected. “There is in the House of Commons,” Mr Macqueen observes (and the observation is perfectly correct), “a functionary called ‘The Ladies' Friend’ (an office generally filled by some member distinguished for his attention to the private business of the House), whose duty it is to see that the husband petitioning for divorce makes some suitable but moderate provision for the divorced wife." This he attends to on all occasions; not by inserting the intended provision in the bill itself, for fear it should be rejected by the other House of Parliament, but by taking care that it is legally secured to her, before the bill has passed through committee.

It has sometimes been urged that cruelty should have a more extended signification; that other causes of divorce, or at least of separation from bed and board, should be allowed, such as mutual dislike, incompatibility of temper, neglect, severity, and repeated provocation; and that these separations might even be voluntary, if the parties were forbidden to seek such a dissolution of the marriage contract as would leave them at liberty to marry again. We cannot assent to these suggestions. The arguments against them are put so forcibly by Lord Stowell, and Hume and Paley, that they are absolutely unanswerable. "To vindicate the policy of the law," says Lord Stowell, "is no necessary part of the office of a judge; but if it were, it would not be difficult to show that the law in this respect has acted with its usual wisdom and humanity, with that true wisdom, and that real humanity that regards the general interests of mankind. For though, in particular cases, the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals; yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives, from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes. If it were once understood that upon mutual disgust married persons might be legally separated, many couples who now pass through the world with mutual comfort, with attention to their common offspring, and to the moral order of civil society, might at this moment have been living in a state of mutual unkindness, in a state of estrangement from their common offspring, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good."

Our laws, while allowing divorces à mensa et thoro in cases of adultery and outrageous cruelty, have wisely denied the like privileges to mere dislike, contrariety of temper, severity, neglect, or voluntary arrangements. There is another cause, however, which so entirely frustrates all the objects of the marriage union that it may reasonably be doubted whether it should not be put on the same footing as cases of cruelty. We allude to wilful and obstinate desertion. Our old Reformers considered that this was so gross a breach of all the obligations, human and divine, which the husband and wife owe to each other, that in that case they would have allowed the deserted party to enter again into fresh nuptials. At the same time they were so impressed with the importance of keeping the contract unbroken, that before the complainant could obtain a dissolution of it, every kind of means was previously to be exhausted, exhortation and counsel, and even punishment, to bring the offender back to his duty; and in case of his absence an interval was prescribed of two or three years for the chance of his return, that nothing might be done with levity or rashness. In other Protestant countries that offence, when properly established, is considered a scriptural ground of divorce, even à vinculo matrimonii. In Scotland, also, if it be wilfully persevered in for four years, followed by a judicial requisition of conjugal rights on the part of the complainant, it warrants a dissolution of the marriage contract. In England, desertion must be coupled with cruelty before it can entitle the abandoned party to a sentence of separation; but in reason, in principle, and in its moral consequences, it can hardly be distinguished from cruelty itself.

Divorces à mensa et thoro should, for the causes above adverted to, be allowed to the wife as well as to the husband, and desertion should entitle the wife to a remedy by way of alimony; but whether divorces à vinculo should be granted at the suit of the wife with the same facilities as at the suit of the husband, is a question which has elicited much difference of opinion. There are four instances in which wives have succeeded in procuring divorces à vinculo from parliament; but in these the husbands were guilty of other offences besides adultery, which were held either to preclude or absolve the complainants from further cohabitation.

For trying and determining questions of divorce three tribunals must now be resorted to—a court of law for damages against the adulterer; an ecclesiastical court for a divorce à mensa et thoro, and the imperial parliament for a dissolving statute. The great expense and the long delay of these proceedings is a grievous hardship and oppression to individuals, and they amount in many cases to a denial of justice. Even in an unopposed suit the minimum expense of obtaining a sentence of divorce in the consistory court of London would vary from L120 to L140 at the least, and the case would occupy about two months. If it were opposed the expense would range from L300 to L500 and upwards (in heavy cases to much more), and it would take from one to two or three years before it was decided. The proceedings also do not terminate here; but there is an appeal to the court of arches, and from thence to the judicial committee. The expense of an action-at-law will depend in a great measure on the nature of the case, and the extent to which it is contested. The expenses in parliament, exclusive of counsel's fees, charges for witnesses, and solicitor's own bill, which amount, no doubt, to a considerable sum, average about L200. With the other charges they would possibly be doubled; so that the total cost, under the most favourable circumstances, of obtaining

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1 Lord Brougham says, finely and justly, that "all systems are supposed to agree in this, that no dissolution of the nuptial union should be allowed upon the mere agreement of the parties to terminate their connection." (Speeches, vol. iii., p. 448.) And yet there were two periods in which the system was tried and failed,—one, in the corruption of manners, which hastened the decline of the Roman Empire; the other, in the utter subversion not only of manners but of law, morality, reason, and religion, which marked the French Revolution. In the former case, the Romans, by the laws of the Twelve Tables, and other partnerships, might be dissolved by the abdication of one of the associates. But the historian tells us that "The specious theory was confuted by this free and perfect experiment, which demonstrates that the liberty of divorce does not contribute to happiness and virtue." (Gibbon, c. 44.) "The abuse of this privilege was justly held up to scorn and indignation by the Roman philosophers, poets, and satirists." (Seneca de Benef. iii. 16; Martial, vi. 7, lib. epig. 16; Juvenal, Sat. vi. 223.) In the latter case the experiment was again attempted in France, and what was the result? "In the three first months the number of divorces in Paris, in 1793, amounted to 502, while the marriages were 1880; so that the proportion of divorces to marriages was not much less than one to three!—And in two years and three months 6000 are said to have taken place." (Quarterly Review, No. Ivi., p. 509.) "Other legislatures," says Burke, "knowing that marriage is the origin of all relations, and consequently the first element of all duties, have endeavoured by every art to make it sacred. The Christian religion, by confining it to the pair, and by rendering that relation indissoluble, has, by these two things, done more towards the perpetuity of the settlement of the world, than by any other part in the whole scheme of Divine Wisdom." (Letters on a Regicide Peace, Works, vol. viii., p. 174.) In many of the States of America, divorces may be obtained with comparative facility. But Chancellor Kent observes "that it is very questionable whether that facility has not been productive of more evil than good;" and he states that he has had reasons to believe, in the exercise of a judicial cognizance over numerous cases of divorce, that adultery was sometimes committed on the part of the husband for the very purpose of the divorce. (See Comment, vol. ii., p. 103.) a divorce à vinculo matrimoni can hardly be less than L700 or L800; and when the matter is much litigated, it would probably reach some thousands. In Scotland, the average cost of rescinding a marriage is said to be L20, and that when there is no opposition L20 will suffice. In Scotland, also, it is not a privilege for the rich, but a right for all; and it is not unworthy of notice that out of ninety-four cases between November 1836 and November 1841 the parties litigant were almost all of the lower classes.

The three tribunals which are thus rendered necessary by parliamentary regulations for a divorce à vinculo would not be required provided these questions could be submitted to a court in which the country has confidence. One tribunal which can satisfy itself of the proper relief to be given or withheld, is better than three which distrust each other. The verdict at law is practically valueless; and if the proceedings before the legislature were as regular and searching as those in a court of justice, the ecclesiastical sentence would be so too.

The commissioners, therefore, recommend that applications for divorce à vinculo matrimoni, and all causes matrimonial, should be submitted in future to a new tribunal, consisting of a vice-chancellor, a common law judge, and a judge of the ecclesiastical court, and that they should sit for the purpose of trying these questions at specified times in different parts of the year. We would also recommend that there should be no appeal from their decision except to the House of Lords; and we think there would be convenience in directing that divorces à mensa et thoro should likewise be referred to the same tribunal.

The commissioners add, "We cannot bring this report to a close without adverting to two questions of immense importance which are closely connected with the subject, though they do not fall within the terms of the inquiry proposed for our consideration. The one is, whether here, as in Scotland, the parties whose guilt has occasioned the divorce à vinculo matrimoni shall be restrained from intermarrying? The other, whether a Scotch divorce, upon grounds not allowed by the laws of England, shall operate as a dissolution for all purposes of an English marriage? With regard to the former question there is a standing order of the House of Lords which makes it imperative on any person petitioning for a bill for a divorce à vinculo to insert a provision in it prohibiting the person whose marriage with the petitioner shall be dissolved to intermarry with any offending party on account of whose adultery such marriage shall be dissolved; but this clause, notwithstanding many struggles to have it retained, is usually struck out without resistance in the committee. With regard to the latter question, a Scotch divorce of an English marriage, where the parties are bond fide domiciled in Scotland, will be binding and valid in the courts of that country upon any question of Scotch law affecting themselves, their children, or their property; but the courts of England will not recognise in some cases the binding validity of a Scotch divorce, since an English marriage, being a contract which, like other personal contracts, must be interpreted according to the law of the country in which it was made, cannot be dissolved by any proceeding in the courts of any other country for English purposes. The anomalies arising from this conflict between the law of the two countries are strange and distressing to many families, and a remedy, if possible, ought speedily to be provided for them. We feel, however, that both these questions involve so many and such important considerations of national policy, and they relate to matters which in some respects are so far removed from the scope of our inquiry, that we forbear to do more than call attention to them."

Having considered the law of divorce in its different bearings, the commissioners sum up briefly the alterations and improvements which they think may be made in it with prudence and safety.