Similar testimony is afforded by the celebrated Foljambe case in 1602, when a court sitting in the Star Chamber incidentally pronounced invalid a marriage which had been contracted after separation from bed and board by decree of an ecclesiastical judge; and this decision follows the advice of a council of the "most sage divines and civilians assembled by Archbishop Whitgift at Lambeth, declaring in harmony with the ancient law that remarriage after judicial separation is null and void."[249]
Strictly speaking, it may not be correct to say, as is commonly done by law writers, that the Foljambe case marks a change in the law of divorce by requiring a return to the doctrine of the ancient church; but from it, at any rate, two important inferences may be drawn. On the one hand, it shows that the custom of remarriage after separation a mensa et thoro was continued to the very end of Elizabeth's reign. On the other hand, it constitutes a stage in the development of a more conservative policy. As such it may have had something to do with the legislation of about a year later. By royal authority in 1603 the canons of 1597 were re-enacted "word for word," and consequently, as already suggested, they incidentally bear witness to the Reformation theory and practice as to divorce and remarriage, while seeming to admit the possibility of a valid dissolution of wedlock by judicial decree.[250] For the first time in English history a statute of 1604 makes bigamy[251] in the modern sense a felony punishable with death; but there are exceptions to the operation of the act which tell strongly in favor of the view that the custom of remarriage after judicial separation had been something more than tolerated. It is expressly provided that the penalty fixed by the act shall not extend to a man or woman who has contracted a new marriage after seven years' desertion; nor to "any person or persons that are or shall be at the time of such marriage divorced by any sentence had or hereafter to be had in the ecclesiastical court."[252] Here it is clear that dissolution of wedlock by sentence of nullity is not intended; for this is provided for by another exception in the act itself. It is equally clear that all cases of divorce by judicial decree are comprehended, whatever the cause of separation assigned. The law as then interpreted seems to have remained unchallenged until 1637, when in Porter's case the court of King's Bench, without squarely deciding the point, expressed a doubt whether a woman remarrying after divorce for cruelty was exempt from punishment under the proviso of King James's statute; because, "if this should be suffered, many would be divorced upon such pretence, and instantly marry again, whereby many inconveniences would arise. Whereupon she was advised not to insist upon the law, but to procure a pardon to avoid the danger; for it was clearly agreed by all the civilians and others, that the second marriage was unlawful."[253] Nevertheless, the hesitation of the court does not appear to be justified either by the plain words of the act or by the weight of legal authority.[254]
III. LAW AND THEORY DURING THREE CENTURIES
a) The views of Milton.—With the opening of the Stuart era, therefore, a reactionary policy with respect to divorce was established. For two centuries and a half thereafter the principles of the ancient canon law were administered by the English spiritual courts. In fact, it was now more difficult than before the Reformation to escape the marriage tie;[255] for the papal dispensation could grant no relief, and in consequence of the decrease in the number of restraints to a valid marriage, the decree of nullity was not so often a convenient subterfuge. Only the rich or noble were able to afford the costly remedy of a special act of Parliament to cure their matrimonial ills. Hence it is not a little surprising that the Puritan Revolution brought with it no change in this regard. One would naturally expect the Independents under Cromwell's leadership, by whom the remarkable civil-marriage law of 1653 was conceived, to relegate the whole matter of divorce and nullity to the temporal courts under proper legal conditions; yet there seems to be no record of such a course.
But if the Puritan statute-book was silent, Puritan thought produced the boldest defense of the liberty of divorce which had yet appeared. If taken in the abstract and applied to both sexes alike, it is perhaps the strongest defense which can be made through an appeal to mere authority. For, in spite of their casuistry, their inconsistencies, and their injustice to woman, the writings of John Milton may be said to have about exhausted the resources of theological argument and the learning of his age on this subject.[256] He goes farther than Zwingli, Bucer, or any other reformer in admitting grounds for the absolute dissolution of marriage. According to Milton, divorce is a "law of moral equity," a "pure moral economical law ... so clear in nature and reason, that it was left to a man's own arbitrement to be determined between God and his own conscience;" and "the restraint whereof, who is not too thick-sighted, may see how hurtful and distractive it is to the house, the church, and the commonwealth."[257] It is lawful to Christians "for many other causes equal to adultery," such as cruelty, idolatry, and "headstrong behaviour" on the part of the woman, as also for desertion.[258] For "what are these two cases [adultery and desertion] to many other, which afflict the state of marriage as bad, and yet find no redress?" Hence he spurns a narrow construction as contrary to reason. "What hath the soul of man deserved, if it be in the way of salvation, that it should be mortgaged thus, and may not redeem itself according to conscience out of the hands of such ignorant and slothful teachers as these, who are neither able nor mindful to give due tendance to that precious cure which they rashly undertake; nor have in them the noble goodness, to consider these distresses and accidents of man's life, but are bent rather to fill their mouths with tithe and oblation?"[259] Nor is this the only time when Milton speaks the language of the modern social reformer, though sometimes his strongest arguments from the standpoint of reason are ill sustained by the authority upon which he relies. From the law of Moses, with which he insists that the law of Jesus must agree, he thus reaches the conclusion that just ground of divorce is "indisposition, unfitness, or contrariety of mind, arising from a cause in nature unchangeable, hindering, and ever likely to hinder the main benefits of conjugal society, which are solace and peace."[260] To this ideal of the true end of wedlock he returns again and again. Rejecting the gross and carnal conception of the Fathers and canonists, their glaring contradiction between marriage as a "defilement" and a sacrament,[261] he urges that matrimony is a society "more than human," centering "in the soul rather than in the body;" a companionship resting upon the "deep and serious verity" of "mutual love," without which wedlock is "nothing but the empty husks of an outside matrimony, as undelightful and unpleasing to God as any other kind of hypocrisy."[262] Hence, where such society does not exist, where mutual affection has given place to deceit, the legal bond of the sham wedlock ought to be dissolved.
Unfortunately, there is another and less pleasing aspect of Milton's teaching. Beyond question saturated as he is in the sentiments of the Hebrew law, Milton has a very low ideal of womanhood. Almost invariably it is the husband's grievances which excite his compassion. Scarcely by implication does he ever admit that the wife may initiate proceedings, private or public, to rid herself of an unwelcome spouse. It is not quite clear whether he would allow her to put away even the unfaithful husband against his will;[263] while repudiation for lack of sympathy, for "loneliness," on account of failure to realize that comfort and full spiritual society upon which he so fondly dwells, is apparently the sole privilege of the man. In his opinion the man is emphatically the head of the woman, who was created by God expressly "to comfort and refresh him against the evil of solitary life."[264] No disciple of Hillel was ever more thoroughly persuaded that mere dislike is adequate cause for putting away a wife at the sole command of the husband than was he. "No libertine, for the sake of wickedness and gratification of low desire, ever demanded greater license in marriage than Milton in the name of religion demanded for Christian men, in order that they might find meet-helps, and escape the grievances of uncongenial wedlock," though doubtless his sole aim was the attainment of domestic purity and happiness.[265]
That this judgment is scarcely too severe is clearly proved by Milton's theory of proper divorce procedure.[266] Rejecting all aid of court or magistrate, he goes back to the ancient principle of self-divorce.[267] For it was an "act of papal encroachment" to "pluck the power and arbitrement of divorce from the master of the family, into whose hands God and the law of all nations had put it, and Christ so left it, preaching only to the conscience, and not authorizing a judicial court to toss about and divulge the unaccountable and secret reason of disaffection between man and wife, as a thing most improperly answerable to any such kind of trial." For the sake of "revenue and high authority" the "popes of Rome" have "subjected that ancient and naturally domestic prerogative to an external and unbefitting judicature." Differences "in divorce about dowries, jointures, and the like, besides the punishing of adultery," ought indeed to be referred to the magistrate; yet "against the will and consent of both parties, or of the husband alone," the "absolute and final hindering of divorce" cannot rightly "belong to any civil or earthly power." For "ofttimes the causes of seeking divorce reside so deeply in the radical and innocent affections of nature, as is not within the diocese of law to tamper with." Among such "deep and serious regresses of nature" is hate, "of all things the mightiest divider." Moreover, the lord of the family cannot go wrong in acting from such motive; "for although a man may often be unjust in seeking that which he loves, yet he can never be unjust or blamable in retiring from his endless trouble and distaste, whenas his tarrying can redound to no true content on either side."[268] All this despotic power is placed in the husband's hands for the woman's good; for it is "an unseemly affront to the sequestered and veiled modesty of that sex, to have her unpleasingness and other concealments bandied up and down, and aggravated in open court by those hired masters of tongue-fence.... It is true an adulteress cannot be shamed enough by any public proceeding; but the woman whose honour is not appeached is less injured by a silent dimission, being otherwise not illiberally dealt with, than to endure a clamouring debate of utterless things." Whether it would be well to shame the adulterer by publicity we are not informed. Power would thus be restored to the "master of the family," where it was divinely placed. For its exercise there is but one condition needful among Christian men. The repudiation should take place in "the presence of the minister and other grave selected elders." These are to "admonish" him; and he in turn is to declare solemnly by "the hope he has of happy resurrection, that otherwise than thus he cannot do, and thinks himself and this his case not contained in that prohibition of divorce which Christ pronounced, the matter not being of malice, but nature, and so not capable of reconciling." He must not be restrained further. To do so "were to unchristian him, to unman him, to throw the whole mountain of Sinai upon him, with the weight of the whole law to boot, flat against the liberty and essence of the gospel." The procedure thus provided for by Milton, remarks Jeaffreson, is a "strictly private trial in which the husband discharged the function of prosecutor, furnished the evidence, and played the part of a judge." But Milton is conscious that the denial of a reciprocal liberty to the wife may require some defense. This he supplies by a singular piece of logic, which in its effect would sanction and encourage the basest tyranny for even the vilest purposes, though he does not appear to see it.[269] "The law can only appoint the just and equal conditions of divorce," he declares, "and is to look how it is an injury to the divorced," that is to say, to the repudiated wife. But in truth, he hastens to add, "as a mere separation" it can be no injury to her; "for if she consent, wherein has the law to right her? or consent not, then is it either just, and so deserved; or if unjust, such in all likelihood was the divorcer: and to part from an unjust man is a happiness and no injury to be lamented. But suppose it be an injury, the law is not able to amend it, unless she think it other than a miserable redress, to return back from whence she was expelled, or but entreated to be gone;" or else, if not formally separated, "to live apart still married without marriage, a married widow." The circular argument is thus complete. "The poet, whose Adam prayed the Almighty to give him an equal inferior for his companion in the happy garden, does not appear to have conceived it possible for a woman in her right mind to wish to put away her lord and master."[270]
b) Void and voidable contracts.—It is a striking illustration of the completeness with which in social questions the English mind was dominated by theological modes of thought that no change in the law of divorce was effected until the present century. Yet there was crying need of reform. The rigid tightening of the bonds of wedlock seems to have produced its natural fruit. Immorality grew apace.[271] The lot of the married woman became harder even than before the Reformation. To the anomalies of the mediæval system, some of which survived, were added others not less harmful. Chief among them were those arising in the dualism, amounting sometimes to antagonism, subsisting between the civil and the spiritual law. Theoretically, of course, the temporal judge had no divorce competence at all. Still where dower or inheritance was involved a policy had to be defined. "Ultimately the common lawyers came to the doctrine that while the divorce a vinculo matrimonii did, the divorce a mensa et toro did not deprive the widow of dower, even though she was the guilty person."[272] Such was the law onward from the days of Edward III.[273] Earlier, according to Glanville, and apparently also according to Bracton, the woman "divorced for her misconduct can claim no dower;"[274] and even at a time when she was not deprived of dower through the fact of divorce, she might have the right to claim it taken away as a punishment for her crime, if she "eloped and abode" with her paramour.[275]
Especially disastrous in its effects was the absurd distinction, maintained after as well as before the Reformation, between void and voidable marriages.[276] This had its origin in the canonical doctrine of "putative" wedlock.[277] A union unlawful on account of some diriment impediment, such as affinity or consanguinity, was held not to be ipso facto void, but only voidable, if it had been solemnized with the proper rites of the church; and the temporal courts assumed the validity of all such marriages until they were declared null by an ecclesiastical decree. The happiness of an innocent family was thus put in jeopardy. At any moment a fatal flaw in the union might be discovered or for money invented, when pro salute animarum a separation of the parties would be enforced. In that case the canonists declared that the issue should not suffer. If one or both of the parents were ignorant of the impediment at the time the children were born, these were held to be legitimate. This rule was adopted by the secular courts in determining questions of inheritance. "As late as 1337 English lawyers still maintained that the issue of a de facto marriage, which was invalid because of the consanguinity of the parties, were not bastards if born before divorce.[278] Later, however, they developed a different doctrine which was enforced after the Reformation. Taking "no heed of good or bad faith," the temporal law even in Protestant times made the "legitimacy of the children depend on the fact that their parents while living were never divorced."[279] The persons separated for spurious wedlock were permitted to contract new marriages; but in that event they were exposed to one of the innumerable hardships caused by the fine-spun theories of the canonists. The "validity of the first marriage was always an open question, and new evidence might at any time reverse the decree. In this case the second marriage would be a nullity and the first would recover its obligatory force, so that now two separations, it might be, would be demanded by canonical law."[280] But from the reign of James I., through intercession of the temporal courts, the action for voidance of false wedlock had to be brought during the joint lives of the consorts.[281] After the death of either spouse the spiritual judge was prevented from issuing a decree. For all practical purposes the spurious marriage then became a valid marriage, and the unlawful issue became legitimate;[282] though, absurdly enough, the surviving consort might be punished for the sin of wedding within the forbidden degrees.[283]