affirms, that it is the doctrine of Christ and his apostles, that the divorced shall remain unmarried; and the same is decreed by the famous council of Carthage to all which much more might be added, but I will only note, that from the first conversion of our Saxon ancestors, these marriages after divorce have been prohibited, as may be seen in those ancient canons of this nation, which have condemned them as adultery. So that we do, on just authority, conclude, it hath been the constant doctrine of the catholic Church, that the bond of matrimony, once rightly tied, can never be dissolved but by death: and although some contentious persons have disputed against this eminent truth, to me it seems very rational to maintain this principle, as well to prevent the frequency of divorces, as to make it necessary to choose warily, since we can never choose again, till God, in whose presence we promised to live together till death, do set us at liberty, by the taking away of one party'.'

'Off. of Matrimony, Sect. ii. ad fin.

SECTION V.

The English Law of Divorce.

THERE is nothing in the doctrine which has been proposed, which is not in perfect agreement with the received rules and principles of the law of England, which holds the indissolubility of marriage, with the only exception of such marriages as are originally void, on the ground of some impediment, by which the contract is not superseded or dissolved, but precluded and annulled.

The difficulties, which are inseparable from the principle and practice of divorce for adultery, are not however abated by any provisions of the English law and if in other countries there is reason to object, that the right of divorce has been arbitrarily assumed, and that in its operation it has been unfavourable to social happiness and moral virtue, it may be difficult to vindicate the peculiarities of the English practice from the same exceptions, and to establish the justice of the principle, the wisdom of the administration, or the virtue of the effect.

The indissolubility of marriage is a main principle of English law, asserted without any exception or reserve in the formularies of the Church, in which the parties pledge themselves, either to other, that they will live together so long as they both shall live, and until death shall part them. The unequivocal intention of these expressions is ascertained by the circumstance of their derivation from the Romish

ritual, in which the doctrine is undisputed; and it is confirmed by the contemporary statute, 32 Henry VIII. c. 38. declaring all marriages, celebrated in the face of the Church, and consummate, to be indissoluble; by the legal definition that no marriage is voidable which is not void ab initio; by the practice of the ecclesiastical courts, in laying the husband under a necessity of providing alimony for a wife divorced a mensâ, and of maintaining her as if the marriage continued, in contemplating the possibility of their reunion, by granting the separation only until they shall be reconciled, and in requiring a cautionary bond, that they shall not contract matrimony with any other person during the life of each other; and by the provisions of the common law, under which the husband and wife are but one person, and the legal existence of the woman is suspended during the marriage, and incorporated in that of the husband; under which the marriage of either, during the life of the other, is a nullity, and the dower is not forfeited in the case of a divorce a mensâ, even though adultery be the cause, except in the particular case of the woman's eloping from her husband, and living with the adulterer, when it is forfeited, but recoverable on the reconciliation of the husband, by the statute of Westminster. It is argued by the civilians, that the bond of marriage cannot be forfeited but by natural death: the parties may be separated, but they nevertheless remain husband and wife. Thus the indissolubility of marriage rests not on the terms of the agreement between the parties, but "on the law of the country. One proof of this is, that marriage was held indissoluble in

England before the Marriage Act," and that Act asserted not the voidability but the nullity of the marriages which it proscribed. "Another is, that the English apply the doctrine of indissolubility to all marriages wherever celebrated, by whatever forms, and in whatever words." But "the best practical evidence of the general indissolubility of the contract of marriage is perhaps to be found in the occasional permissions granted for the dissolution of the marriages of particular individuals, which permissions can only be obtained under special circumstances, and by the concurrent vote and consent of the three branches of the legislature," and are in fact suspensions of the ordinary law of the land.

It is too plain to be disputed, that the present law of marriage and divorce in England is derived through that which prevailed during the ascendancy of the Church of Rome. In the remote period in which Britain was held under the dominion of the Romans, it is not improbable that the imperial law of divorce was admitted, and when they left the country, it was not entirely superseded by the better influence of Christian truth. Relics of the Roman practice may be traced in the laws of the Cambrian Prince Howel Dhâ, which contain various regulations of divorce, permitting, with the forfeiture of all her goods, the divorce of a wife who should hold any familiarity with any other man than her husband; and prescribing the form in which the woman might recover her goods from a husband by whom she had been unlawfully divorced, and who was

Fergusson's Reports, p. 401.

b Poynter's Eccl. Courts, p. 70.

married to another woman; and in which a man having divorced his wife, and afterwards repented of the act, might resume the possession of her, even after her marriage to another man. The wife also had her privilege of divorcing herself from her husband who laboured under certain specified infirmities. This was the British law, and, as it was published with the concurrence of the priests and nobles, it may be considered authentic evidence of the British rule and practice of divorce, as it was held in the tenth century, by remote tradition from imperial Rome. The Anglo-Saxons followed a rule more conformable with the manners of their progenitors the ancient Germans, with whom divorce was unknown, or was very unusual, and submitted to the law of the Church of Rome, from the first introduction of Christianity amongst them, as appears from the Canons of councils; from the letters of Pope Gregory to Augustin the first missionary from Rome to England; from the silence of the Saxon laws concerning divorce; and from the immemorial reservation of the cognizance of matrimonial causes to the ecclesiastical courts". In the council of Hertford, held under the Heptarchy, so early as A. D. 683, it was decreed, that no man should leave his own wife, but as the holy Gospel teaches for the cause of fornication; and if any man shall divorce his own wife, to whom he is joined in lawful matrimony, he shall not, if he wishes to be indeed a Christian, marry any other woman, but shall remain as he is, or be reconciled to his wife". In the reign d Spelman Concil. Herudford,

cUx. Ebr. 1. iii. c. 30. Art. x. quoted by Tebbs.