[252] 1 James I., c. xi: Stat. at Large (Pickering), VII, 88, 89.
However, inferences as to the law in the preceding period must be made with caution. The case of Stephens v. Totty, decided at the Michaelmas term, 44 and 45 Eliz., shows that a husband and a wife divorced a mensa et thoro were still married: Croke's Reports (Elizabeth), 908. Cf. on this act especially Hale, Hist. of the Pleas of the Crown (London, 1800), I, 691-93; also Woolsey, Divorce, 171; Law Review (Eng.), I, 362. Furthermore, Raynolds, a strong advocate of absolute divorce, in his Defence of the Judgment of the Reformed Churches (1609), appears to make no claim that his doctrine is sustained either by law or custom. So also in the quaint treatise, The Lawes Resolutions of Women's Rights (London, 1632), 64 ff., full divorce is not recognized; although, referring to the fact that legally "no crime dissolueth marriage," the compiler (67) seemingly approves Conrad Lagus who says, "seeing that in Contracts of Wedlock we regard as well what is decent and conuenient, as what is lawfull, I cannot tell why we be not bound in dissoluing of it to follow the like equitie; and for example, if a Wife cannot dwell with her husband without manifest danger of death ... why may not she be separated iudicis ordinarij cognitione precedente?"
On the other hand, Spence, Equitable Jurisprudence, I, 702, believes that the bond not to marry required by the canons of 1603 was the only hindrance to remarriage after divorce; and from this time onward he thinks it "not unlikely that the court of chancery decreed divorces a vinculo; and that the American courts of equity brought this doctrine (or right) with them." This view is rejected by Scribner, Treatise on the Law of Dower, II, 545-47, although he agrees as to the effect of the bond.
[253] Porter's case, Easter term, 12 C. I.: Croke's Reports (Charles I.), 461-63.
[254] See the strong argument of Holburn and Grimston for the defendant who justly claim that a "divorce causa saevitiae is grounded ex jure naturae, and is in the same manner and nature as a divorce causae adulterii: Croke's Reports (Charles I.), 463. Hale, Hist. of Pleas of the Crown, I, 693, remarks "certainly the divorce intended" by James's act "is not a vinculo matrimonii;" and then further observes, in Porter's case "it was doubted, whether a divorce causâ saevitiae were such a divorce as was within this exception, because it seemed rather to be a provisional separation for the wife's safety and maintenance, than a divorce; but it was never resolved." Cf. also Co. Lit., 235; March, Reports of New Cases, 101; Coke, Institutes, III, 89; Kelyng, Report of Divers Cases (Dublin, 1789), 27; Geary, Marriage and Family Relations, 12.
[255] Jeaffreson, Brides and Bridals, II, 315, perhaps with too much emphasis, thus describes the effects of 32 H. VIII., c. 38: "It rendered wedlock easier of entrance, but closed all the many gates which had hitherto afforded spouses the means of escape from conjugal wretchedness.... The Elizabethan jest, that compared matrimony to a public rout, was no less applicable to wedlock in Catholic than to marriage in Protestant England; but whereas our ancestors before the Reformation could always get out of the press by a few permissible falsehoods and the payment of money, the marriage law of Protestant times declared that, having once forced their way into the crowd, they should remain in it till death came to their relief."
[256] His four principal works dealing with divorce are the "Doctrine and Discipline of Divorce" (Prose Works, III, 169-273); supplemented by "The Judgment of Martin Bucer" (ibid., 274-314); "Tetrachordon" (ibid., 315-433); and the "Colasterion" (ibid., 434-61). See also Prose Works, IV, 243-49; I, 259.
[257] Milton, "Doctrine and Discipline of Divorce," Prose Works, III, 241, 242.
[258] Milton, "Colasterion," Prose Works, III, 423-33, where the views of many reformers are quoted; and "Doctrine and Discipline of Divorce," ibid., 251-58, where Jesus's words are examined.
[259] Milton, "Colasterion," Prose Works, III, 425.