[243] Macqueen, op. cit., 469. "This bill is often, but erroneously, referred to as the earliest example of parliamentary divorce (Shelford, 373). It is not a divorce bill; neither did it proceed upon the principle of a divorce bill. Its object was merely to declare that the adultery of the first wife, followed by the ecclesiastical sentence, entitled the Marquis to take a second wife. The principle on which the act passed assumed the jurisdiction of the Church Court, to dissolve the marriage proprio vigore. The act did not divorce the parties, but merely declared them to be already, by the ecclesiastical sentence, sufficiently divorced to admit of the Marquis marrying again."—Ibid., 469 n. e. On this case see also Law Review (Eng.), I, 358, 359; Report of the Royal Commission on Divorce, Parl. Papers, 1853, 57 ff.; Geary, op. cit., 17; Woolsey, Divorce, 169-71; Lecky, Democracy and Liberty, II, 174, 175; Burn, Ecc. Law, II, 503a-503b; Reeves, Hist. of Eng. Law, V, 80, 81; Morgan, Marriage, Adultery, and Divorce, II, 229 ff.
[244] According to the Report of the Commissioners, 1852-3, 5, divorce was allowed during the period 1550-1602.
[245] See, however, Woolsey, Divorce, 170, 171, 313, who, insisting that the ancient canon law was unchanged, remarks that "for a number of years, although remarriage after divorce was null and void, so that the issue would not be legitimate, no civil penalties were attached to it, and it was punishable only by ecclesiastical censures." Hence many married "without scruple." Cf. Craik, Romance of the Peerage, I, Appendix, upon whom Woolsey relies; and Jeaffreson, Brides and Bridals, II, 323, 324, who holds that the decision of the delegates in the Northampton case was "good law" until 1602.
[246] Bunny, Of Divorce for Adulterie, and Marrying againe: that there is no sufficient Warrant so to do (Oxford, 1610). This book had been written many years before. The preface is dated Dec. 13, 1595; and in it Bunny refers to the state of public opinion and to events, notably in Yorkshire, of a still earlier time. In "a Sermon," he says: "I breefly noted, that the libertie, that in these our daies many doe take, of divorcing their wiues for adulterie and marying of others, had not such warrant in the worde of God as they thought that it had." Just before delivering this discourse a gentleman who desired to put away his wife for adultery and marry again, "and having already gotten (into a little paper-book of his) the handes of sundrie of the Preachers of those parts," had come to him for similar support. He further notes that "a few yeeres" earlier not less than "fowre several persons" of one of the greatest families in "those parts" had married again after divorce; and in general his "Advertisement to the Reader" leaves the impression that the new doctrine was, on the whole, the prevailing one; although, according to law, "neither those second women were allowed any dowrie, nor their children to be legitimate."
[247] Whitgift, "Defence of the Answer," Works, III, 267 ff. Cf. Bullinger, Decades, IV (V), 511.
[248] These ordinances are known as the "Ecclesiastical Constitutions" of 1597. Canon 105 urges greater care in matrimonial causes, especially in cases where marriage "is required to be dissolved or annulled;" and it is strictly charged "that in all proceedings in divorce and nullities of marriage, good circumspection and advice be used, and that the truth may, as far as possible, be sifted out by depositions of witnesses and other lawful proofs; and that credit be not given to the sole confession of the parties themselves, howsoever taken upon oath either within or without the court." The 107th canon requires a bond to be given in case of "sentences pronounced only for divorce and separation à thoro et mensâ," that "the parties so separated shall live chastely, and neither shall they, during each other's life, contract matrimony with other persons." From these canons it has been inferred with some plausibility that both "dissolving divorce" and "nullifying divorce" are contemplated as valid and customary; and that the requiring of a bond implies that the marriage which the bond is intended to prevent would have been valid: see Law Review (Eng.), I, 359, 360, and the opinions there cited; also Plea for an Alteration in the Divorce Laws (London, 1831), 3 ff.
[249] The Foljambe case has given rise to much controversy. It is commonly regarded as marking the formal abandonment of the more liberal law of the Reformation period and a return to canonical principles. This view is mainly traceable to the statements of Salkeld, Reports of Cases in the King's Bench (Philadelphia, 1822, from 6th London ed.), III, 137, who commits several errors, and is otherwise misleading. He is followed by Jeaffreson, Brides and Bridals, II, 324; Geary, Marriage and Family Relations, 12; Macqueen, Practical Treatise, 470, 471; Harrison, Probate and Divorce, 115; and especially Bishop, Marriage and Divorce (5th ed.), I, §§ 661, 705. On the other hand, Woolsey, Divorce, 172, note, 310-13, following the researches of Craik, Romance of the Peerage, I, Appendix, regards the decision as merely confirming existing law. He criticises Bishop for being misled by Salkeld, whereas the facts appear to be more correctly given in Noy's Reports, 100; and particularly in Moore's Cases (2d ed. folio, London, 1688), 683, which may be translated from the law-French as follows: "Feb. 13, anno 44 Eliz. In the Star Chamber it was declared by all the court, that whereas Foljambe was divorced from his first wife for incontinence of the woman [in fact, for his own adultery], and afterwards had married Sarah Poge [Page], daughter of Rye, in his former wife's life-time, this was a void marriage, the divorce being a mensa et thoro, and not a vinculo matrimonii. And John Whitgift, then Archbishop of Canterbury, said that he had called to himself at Lambeth the most sage divines and civilians, and that they had all agreed therein." It is concluded, therefore, that this decision of the "sage divines and civilians" must have been incidental to a case under trial in the Star Chamber, and that the law was merely declared and not changed. See, however, the sixth edition of Bishop's work, I, § 1498 n. 3, where the author insists on the essential correctness of his original view. Cf. also Law Review (Eng.), I, 361, 362; Report of the Commissioners (Divorce), 1852-53, 4-6; and Morgan, Marriage, Adultery, and Divorce, II, 233.
[250] Law Review (Eng.), I, 362. One of these canons "provided that no persons separated a toro et mensa should, during their joint lives, contract matrimony with other persons, and that the parties requiring the sentence of divorce should give sufficient caution and security into the court that they would not transgress this restraint. Another canon required the judge who should grant divorce, without observing these rules, to be suspended for one year by the archbishop or bishop, and declared his sentence utterly void."—Woolsey, Divorce, 171, 172. Cf. Luckock, Hist. of Marriage, 177 n. 2; Morgan, Marriage, Adultery, and Divorce, II, 233 ff.
[251] By the act of 1 James I., c. xi, "bigamy" is used in the modern sense. In mediæval law a "bigamist" is one who marries again after his first wife's death; the word "polygamist" being employed for the person who takes another woman before the death of the first spouse. By 4 Ed. I., 1276 (Stat. de bigamis, Stat. at Large [Pickering], I, 116), benefit of clergy is denied him who is a bigamist, i. e., has contracted a second marriage after death of the first wife: Jeaffreson, Brides and Bridals, II, 327. Compare Glasson, Hist. du droit, III, 184, 185.
"As for the crime of polygamy [the modern bigamy], it hath not been made penal by any statute, till the time of James the First. A canon of Pope Gregory the Tenth had taken away all clerical privileges from a bigamist, as the marrying a second wife was considered by the ecclesiastical law, to be proof of a most incontinent disposition; this regulation having been adopted in England, the clergy had a doubt, whether a person, who had been guilty of this offence before the canon law took place, might claim the indulgence of the common law; this statute [4 Ed. I.], therefore, retrospectively declares, he shall not be entitled to such privilege."—Barrington, Observations upon the Statutes (4th ed., London, 1775), 106; also Jeaffreson, op. cit., II, 327, note. But it may be noted that by 1 Ed. VI., c. 12, sec. 16: Stat. at Large (Pickering), V, 265, 266, benefit of clergy is restored in terms which may leave it in doubt whether bigamy in the modern sense is intended. This privilege is granted to offenders, "although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow or widows, or to two wives or more." On the ancient meaning of "bigamy" see also Glasson, op. cit., III, 184.