[315] "He said, confusion of progeny constitutes the essence of the crime; and therefore a woman who breaks her marriage vow is much more criminal than a man who does it. A man, to be sure, is criminal in the sight of God, but he does not do his wife any material injury if he does not insult her; if, for instance, he steals privately to her chambermaid. Sir, a wife ought not greatly to resent this. I would not receive home a daughter who had run away from her husband on that account. A wife should study to retain her husband by more attention to please him."—Boswell, Life of Johnson, III, 46 (ed. 1835). Some recent writers, who ought to know better, indulge in similar sophistry; cf. Nisbet, Marriage and Heredity, 18 ff.; Ap Richard, Marriage and Divorce, 25, 34, 35.
[316] Boswell, Life of Johnson, VII, 288. For discussion of Dr. Johnson's philosophy see Jeaffreson, Brides and Bridals, I, 338, 339; II, 278-88; Macqueen, op. cit., 482, 483; Law Review, I, 369, 370.
[317] Sixty between 1715 and 1775; 14 between 1775 and 1780; 110 between 1800 and 1852: Geary, Marriage and Family Relations, 18; Morgan, Marriage, Adultery, and Divorce, II, 239, 240; Report of Commission (divorce), 1852-53.
[318] "One witness (if credible) is sufficient evidence to the jury of any single fact, though undoubtedly the concurrence of two or more corroborates the proof. Yet our law considers that there are many transactions to which only one person is privy; and therefore does not always demand the testimony of two which the civil [and ecclesiastical] law universally requires. 'Unius responsio testis omnino non audiatur.' To extricate itself out of such absurdity, the modern practice of the civil law courts has plunged itself into another. For, as they do not allow a less number than two witnesses to be plena probatio, they call the testimony of one, though never so clear and positive, semi-plena probatio only, on which no sentence can be founded. To make up, therefore, the necessary complement of witnesses, when they have one only to a single fact, they admit the party himself (plaintiff or defendant) to be examined in his own behalf; and administer to him what is called the suppletory oath; and if his evidence happens to be in his own favour, this immediately converts the half proof into a whole one."—Blackstone, Commentaries, III, 370. Cf. also Bishop, Marriage, Divorce, and Separation, II, § 456; Law Review, I, 378, 379.
[319] Law Review, I, 379, 380. See the illustrative case of Evans v. Evans in Notes of Cases in Ecc. and Mar. Courts, II (1842-43), 470-76. Cf. Bishop, op. cit., I, § 1532; Burn, Ecc. Law, II, 503e-503g.
[320] According to the writer in the Law Review, I, 367, two thousand pounds is not an overcharged estimate. "In some cases even the preliminary proceedings in Doctors' Commons will cost nearly as much. From the evidence of Mr. Swaby, the Registrar of the Admiralty Court, before the Select Committee, p. 33, it appears that even in an ordinary litigation, with moderate opposition, and where the witnesses are at hand, the expense of obtaining a definitive sentence of divorce à mensâ may reasonably amount to 1700 l.; and this merely to lay a foundation for the proceedings before Parliament, and quite independently of the action at law. It is well known that Lord Ellenborough's divorce cost 5000 l."—Ibid., 367 n. 6. At the same time the cost of a divorce a vinculo in Scotland was only 25 l.: ibid., 367, 368. But in the Evidence before the Select Committee of the House of Lords, 1844, 39, the expense of getting a full divorce is then put at about 800 or 900 pounds.
[321] Lecky, Democracy and Liberty, II, 201, 202; also cited by Jeaffreson, Brides and Bridals, II, 342, 343, note. For this case see Morgan, Marriage, Adultery, and Divorce, II, 234-313.
On the law before 1857 see Poynter, Doctrine and Practice of Ecc. Courts in Doctors' Commons, 68 ff. Against the proposed alteration is Keble, Sequel of the Argument against immediately repealing the Laws which treat the Nuptial Bond as indissoluble (Oxford, 1857), 196-220; while strongly in favor of a reform are the anonymous authors of Plea for an Alt. in the Divorce Laws (London, 1831), 1 ff.; and Observations on the Marriage Laws (London, 1815); as well as much earlier Salmon, Crit. Essay Concerning Marriage (London, 1724), 109 ff.
[322] 20 and 21 Vict., c. 85: Statutes at Large, XCVII, 532-46. In general on the present English law of divorce see Glasson, Le mariage civil et le divorce, 317-27; Harrison, The Laws of Probate and Divorce, 115 ff.; Geary, Marriage and Family Relations, 237-430; Browning, Practice and Procedure, 1 ff.; Lecky, Democracy and Liberty, II, 202 ff.; Thwing, The Family, 194; Ernst, Marriage and Divorce, 55 ff.; Woolsey, Divorce, 174-78; Glasson, Hist. du droit, VI, 177-84; Neubauer, "Ehescheidung im Auslande," ZVR., VII, 297-99; Montmorency, "The Changing Status of a Married Woman," Law Quart. Rev., XIII, 189-92; Hirschfeld, "The Law of Divorce in England and in Germany," ibid., XIII, 399-405.
[323] Hansard's Parl. Debates, 3d series, CXLIV-VIII. "The discussions on the subject were curious as showing how powerfully, even to that late period, theological methods of thought and reasoning prevailed in the British Legislature. There were speeches that would seem more in place in a church council than in a lay Parliament."—Lecky, Democracy and Liberty, II, 202.