Such remained the state of the law until the appearance of Lord Lyndhurst's act in 1835.[284] This statute declares, because "it is unreasonable that the state and condition of the children of marriages between persons within the prohibited degrees of affinity should remain unsettled during so long a period" as the joint lives of the parents, therefore "all marriages which may hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity" ought to "be ipso facto void, and not merely voidable;" and accordingly it is so enacted. With respect to existing unions of this kind a distinction is made between "affinity" and "consanguinity." Marriages within the forbidden degrees of affinity already celebrated may not "hereafter be annulled for that cause by any sentence of the ecclesiastical court," unless pronounced in a pending suit; while existing marriages within the prohibited degrees of consanguinity are not so exempt.[285] Voidable wedlock in the sense here employed[286] thus disappears from the English law, except in those minor cases where "canonical" impediments are still recognized.[287]
Lord Lyndhurst's act was especially designed to put an end to marriage with a deceased wife's sister.[288] Such unions, clearly unlawful, appear to have become very common since the age of the Stuarts.[289] For where no property or other interests were at stake a man's marriage with his sister-in-law was likely to go unchallenged until the death of husband or wife made it perfectly valid. Doubtless in such cases, through delay in "collusive suits," greedy relatives may sometimes have been prevented from securing estates which by natural justice, if not by law, belonged to the children or other heirs; for "no fresh proceedings could be initiated so long as any suit of a similar kind was pending."[290] But the avowed purpose of the act is its best justification, if the times were not ripe for a more liberal remedy. If this class of marriages could not be legalized in harmony with the practice of most other civilized peoples, it was perhaps well in this way to make an attempt to relieve their innocent offspring from the uncertainty which "hung over them sometimes for years like a sword of Damocles."[291] The attempt, however, did not prove successful. "In 1847 a Royal Commission was appointed to inquire into the state and operation of the law of marriage as relating to the prohibited degrees of affinity. In their report the commissioners state that of marriages within the prohibited degrees by far the most frequent class was that of marriage of a widower with a sister of his deceased wife, so that in fact it formed the most important consideration in the whole subject; and that as these so-called marriages will take place, especially among the middle and poorer classes, when a concurrence of circumstances gives rise to mutual attachment, the commissioners were of opinion" that Lord Lyndhurst's act "had failed to attain its object." They furthermore declare, even at this early date, that such unions are permitted, "by dispensation or otherwise, in nearly all the continental states of Europe," as well as in most of the states of the American Union.[292]
No legislation followed the commissioners' report. Nor, despite repeated efforts, has the perennial "deceased wife's sister's bill" ever yet become a law. It is, indeed, curious to see a noble senate capable of accepting the liberal civil marriage law of 1836 still stubbornly resisting in this particular the secularizing of marriage which a recent writer observes "is an evident accompaniment, if it is not a consequence, of the progress of democracy."[293] There "can be little doubt," adds the same author, "that the opposition to these marriages rests mainly upon theological grounds."[294] Yet even on such grounds it is hard to see why the Protestant theologian or lawgiver should retain them in the table of degrees of affinity prohibited by the code of Moses, while other provisions of that law far more clearly enjoined are rejected or ignored. "The Jews themselves maintain that this kind of marriage is not forbidden in the Old Testament, and great numbers of the most eminent Christian divines concur in their opinion."[295] The Catholic is far more consistent and liberal in this respect; for he "regards the prohibition as resting, not on direct Divine or natural law, but merely on an ecclesiastical command, and his Church therefore claims and constantly exercises the right of dispensing with it."[296] The arguments on either side of the controversy need not here be summarized. Those in favor of the prohibition rest almost wholly upon authority. Only secondarily is an attempt made to defend it on social, political, or moral grounds. For most people of the civilized world[297] the subject is already "ancient history." Hence the modern student who first takes this controversial literature in hand is amazed to find men of high repute still earnestly speaking the language of the Middle Ages; still juggling with the casuistry and quibbles which satisfied Tancred and his predecessors.[298]
The nature of the problem and the way it is conceived by the English theological mind are thus strongly stated by Lecky in the fine paragraph with which he closes his interesting discussion of these marriages: "It would be difficult to overstate the extravagance of the language which has been sometimes employed in England by their opponents. One gentleman, who had been Lord Chancellor of England, more than once declared that if marriage with a deceased wife's sister ever became legal 'the decadence of England was inevitable,' and that, for his part, he would rather see 300,000 Frenchmen landed on the English coasts.[299] Pictures have been drawn of the moral anarchy such marriages must produce, which are read by American, colonial, and continental observers with a bewilderment that is not unmixed with disgust, and are, indeed, a curious illustration of the extreme insularity of the English mind. The truth seems to be that there are cases in which the presence of a young and attractive sister-in-law in a widower's house would, under any system of law, produce scandal. There are others where, in all countries, a sister-in-law's care and presence would seem natural. There are cases where every murmur is silenced by the simple consideration that the two parties are at perfect liberty to marry if they please. Experience—the one sure guide in politics—conclusively shows how quickly the best public opinion of a country accommodates itself to these marriages; how easy, natural, and beneficent they prove; how little disturbance of any kind they introduce into domestic relations. They will long be opposed on the ground of ecclesiastical traditions, and apart from all considerations of consequences, by a section of theologians in England, in America, and in the Colonies. Those who consider them wrong should abstain from contracting them, and a wise legislature will deal gently with the scruples of objecting clergymen, as it has done in the case of the marriage of divorced persons. But the law of the land should rest on other than ecclesiastical grounds, and a prohibition that has no foundation in nature or in reason is both unjust and oppressive. It is not for the true interests of morals or of family life that the law should brand as immoral, unions which those who contract them feel and know to be perfectly innocent, and which are fully sanctioned by the general voice of the civilised world, by an overwhelming majority of the English race, by a great and steadily increasing weight of public opinion at home, and by repeated majorities in the House of Commons. In an age when most wise and patriotic men desire that the influence and character of the Upper House should be upheld and strengthened, few things can be more deplorable than that this House should have suffered itself to be made the representative of a swiftly vanishing superstition, the chief instrument in perpetuating a paltry and an ignoble persecution."[300]
c) Parliamentary divorce.—More than twenty years were yet to pass before the appearance of the first English statute providing for divorce through regular civil process. Proximately the act of 1857 owes its origin to the anomaly of parliamentary divorce, whose glaring inconsistency but served to accent the evils fostered by the canons of 1603. In theory marriage continued to be absolutely indissoluble. Only by giving bond not to marry again could a person secure even a judicial separation. No matter how grave the offense, or how notorious the breach of the nuptial vow, the parties in most legal respects were chained for life. At most they might be suffered to dwell apart. Obviously the proper remedy would have been a general law of civil divorce whose benefits should be placed within the easy reach of rich and poor alike. Instead, a resort was had to special acts of Parliament whose advantages could be enjoyed only by a fortunate class.[301] The practice originated in the last years of the seventeenth century, though it may have been suggested by prior instances of legislative intervention in matrimonial questions. As early as 1436 a marriage obtained by force was declared void.[302] More clearly analogous is the opposite case of Lord Northampton, already mentioned, whose second marriage after decree of separation was pronounced valid in 1552. This, however, is not an instance of parliamentary divorce.[303] Nor, strictly speaking, is that of Lord Roos in 1670, which Macqueen regards as the first "genuine example;" for the bill is entitled merely "an act for John Manners, called Lord Roos, to marry again;" and does not as alleged expressly effect a "rescission of the contract."[304] The earliest clear precedents are the case of the Earl of Macclesfield in 1698 and that of the Duke of Norfolk, two years later, in each of which the act provides for a dissolution of marriage.[305] Ultimately (1798) a standing order of the House of Lords requires that "all bills of divorce shall be preceded by a sentence of separation a mensa, issuing out of the ecclesiastical court;"[306] and usually such bills must be preceded also by the action at law against the guilty paramour for damage.[307] Thus a vast power was placed in the hands of the spiritual courts to hinder an aggrieved husband or wife from resorting to Parliament for redress. This fact is illustrated in the history of the cases already cited. Lord Roos had previously secured a decree of separation, no mention being made of an action for damage. In Lord Macclesfield's case the bill for divorce was sustained neither by a judgment at law nor by an ecclesiastical sentence. For "in consequence of the skilful opposition set up by the countess in the spiritual courts, and the narrow antiquated maxims which there prevailed, she contrived to baffle all her husband's efforts to obtain a sentence of divorce à mensâ 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." In like manner for seven years the Duke of Norfolk tried in vain to obtain a decree of separation, although he "recovered damage at law from the adulterer, Sir John Jermayne."[308] But in no other case save these two has there been a successful resort to Parliament without first obtaining the sentence of an ecclesiastical judge;[309] and the clumsy, almost farcical, nature of the procedure in divorce suits may be more fully appreciated when it is borne in mind that an aggrieved spouse desirous of securing a divorce from a guilty partner through an act of Parliament was compelled, before he could "get through the ecclesiastical courts, to pledge himself not to remarry."[310]
In consequence of the standing order of the House of Lords, Parliament was unable to grant relief, except on the one ground of conjugal infidelity; for the spiritual court declined to issue a decree of separation for malicious desertion, unless in connection with acts of cruelty.[311] "On a retrospect of one hundred and seventy years, since the establishment of the system of parliamentary divorce a vinculo," says Macqueen, writing in 1842, "I find no case in which that remedy has been awarded or sought, without a charge of adultery. There is no example of a bill of divorce for malicious desertion," although from the Reformation onward this has been a clearly recognized ground for dissolution of wedlock in other Protestant lands.[312] Furthermore, with respect to the rights of the wife Parliament was more illiberal than the spiritual courts themselves, refusing, even after the ecclesiastical sentence of separation, to free her from a dissolute husband, unless his offense were attended by "aggravating" conduct, such as cruelty. In no case was the woman granted relief merely for the husband's unfaithfulness, however flagrant and shameless his conduct might be. Indeed, for the entire period during which the practice existed, there were but three or four examples of legislative divorce at the instance of a woman, and in each case the man's infidelity was attended by other offenses.[313] In two other cases the bill of the wife was rejected by the Lords, although the grievous wrong which she had suffered was established by the clearest proof.[314] Parliament appears to have accepted the view of Dr. Johnson that there is a "boundless" difference between the infidelity of the man and that of the woman. In the husband's case, according to that philosopher, there is no danger of a "confusion of progeny;" and this, he says, "constitutes the essence of the crime."[315] Therefore, "wise married women don't trouble themselves" about such mere peccadilloes.[316]
The sphere of parliamentary divorce was greatly narrowed in still other ways. As a matter of fact, for the century and a half during which the practice prevailed perhaps not more than two hundred such separations were granted.[317] In the first place, the rules of evidence observed in the spiritual courts tended to thwart justice even in cases of the most cruel and scandalous wrongs. Two witnesses were invariably required; whereas in the lay tribunals one witness is accepted as sufficient when no more can be had.[318] On such testimony, for instance, damage may be awarded in the suit at law for adultery, when the same evidence is rejected as insufficient in the ecclesiastical action for separation. Yet it is precisely in cases of adultery that a "penuria testium is most likely to occur. To require two witnesses of facts almost necessarily secret is, in most cases, to ensure a denyal of justice. Of this constant examples are to be found in the records of the ecclesiastical courts."[319]
Again, the relief granted by Parliament was effectively placed beyond the reach of all save the plutocracy. The triple cost of the law action, the ecclesiastical decree, and the legislative proceedings was enormous. How utterly the luxury of divorce was placed beyond the wildest dreams of the poor man clearly appears when one understands that it could be obtained only through the expenditure of a fortune sometimes amounting to thousands of pounds.[320] The shameful injustice of the system has never been so vividly brought out as in the often-quoted words of Justice Maule in a case tried before him in 1845: "The culprit was a poor man who had committed bigamy. The defence was that when the prisoner married his second wife he had in reality no wife, for his former wife had first robbed, and then deserted him, and was now living with another man. The judge imposed the lightest penalty in his power, but he prefaced it with some ironical remarks which made a deep and lasting impression. Having described the gross provocation under which the prisoner had acted, he continued: 'But, prisoner, you have committed a grave offence in taking the law into your own hands and marrying again. I will now tell you what you should have done. You should have brought an action into the civil court, and obtained damages, which the other side would probably have been unable to pay, and you would have had to pay your own costs—perhaps 100 l. or 150 l. You should then have gone to the ecclesiastical court and obtained a divorce a mensa et thoro, and then to the House of Lords, where having proved that these preliminaries had been complied with, you would have been enabled to marry again. The expenses might amount to 500 l. or 600 l. or perhaps 1000 l. You say you are a poor man, and you probably do not possess as many pence. But, prisoner, you must know that in England there is not one law for the rich and another for the poor.'"[321]
d) The present English law.—It is, indeed, wonderful that a great nation, priding herself on a love of equity and social liberty, should thus for five generations tolerate an invidious indulgence, rather than frankly and courageously to free herself from the shackles of an ecclesiastical tradition! But even in England, so far as the state is concerned, the dogma that marriage is an indissoluble bond has finally run its course. A partial remedy for the scandals and hardships of the existing system was at last grudgingly provided in the civil divorce law of 1857. By this act,[322] which during a whole session of Parliament was stubbornly resisted, mainly on religious grounds,[323] the entire jurisdiction in matrimonial questions hitherto belonging to the spiritual courts, except "so far as relates to the granting of marriage licences," is transferred to a new civil "Court for Divorce and Matrimonial Causes;" and since 1873 this tribunal has given place to the "Probate, Divorce, and Admiralty Division" of the "High Court of Justice."[324] It is "a court for England only," its competence not extending to Ireland, Scotland, or the Channel Isles.[325]
By the law of 1857, supplemented in various ways through subsequent statutes, three forms of separation are recognized. First, on petition of either consort the court is empowered to grant a complete dissolution of wedlock; but in this respect the provisions of the act are conceived in the same narrow spirit that actuated the policy of legislative divorce. The woman is treated with precisely the same injustice. For while the husband may secure an absolute divorce on account of the simple adultery of the wife, the wife is unable to free herself from an unfaithful husband unless his infidelity has been coupled with such cruelty as "would have entitled her to a divorce a mensa et thoro;" or "with desertion, without reasonable cause, for two years and upwards;" or with certain other aggravating offenses.[326] Friends and enemies of the bill alike joined in condemning the unequal position in which man and wife were placed. Gladstone, who tenaciously resisted the act on theological grounds, declared: "If there is one broad and palpable principle of Christianity which we ought to regard as precious it is, that it has placed the seal of God Almighty upon the equality of man and woman with respect to everything that relates to these rights."[327] On the other hand, the attorney-general, who introduced the measure, found it necessary to apologize for this defect. "If this bill," he says, "were thrown aside and the whole law of marriage and divorce made the subject of inquiry, I should be the last man to limit the field of discussion or to refuse to consider a state of law which inflicts injustice upon the women most wrongfully and without cause, and which may be considered opprobrious and wicked;" moreover, he continues, the "present bill need not be the end-all of legislation upon the subject."[328]