« ПредыдущаяПродолжить »
chiefly to be accounted for by reference to the constrained celibacy of its early compilers.
It remains, that we notice the ancient state of the laws of Britain in respect of Divorce.
Selden is of opinion, that those parts of Great Britain, which were subject to the Romans, and complied with their laws, retained Divorce even after their conversion to Christianity. This he proves, by reference to the laws of King Howel-dha, whereby a man was allowed to put away his wife, if she conversed too familiarly with another man; and to marry again afterwards. But from the letters of Pope Gregory to Austin, (the apostle of Britain, and also from the laws of the kings of the Anglo-Saxons, he thinks, that the discipline and decrees of the Church of Rome upon this point, were then received in England, where they have been observed ever since.
In the first year of Lotharius, King of Kent, (A. D. 683,) it was decreed in Concilio Herudfordiæ, that the permission of Divorce for Adultery, being given by Christ, might be received, but that no dissolution of the marriage took place; indeed, he, it appears,
would have scarcely been thought a Christian, who, when separated from his wife, could presume to marry another.
"Nullus conjugem impropriam nisi (ut sanctum Evangelium docet) fornicationis causâ, relinquet; quod si quisquam propriam expulerit conjugam, legitimo sibi matrimonio conjunctam, si Christianus esse recte voluerit, nulli alteri copuletur; sed ita remaneat, aut propriæ reconcilietur conjugi."
In 1199, King John, being divorced from the Duke of Gloucester's daughter, was, in the same year, re-married to Isabel, the heiress of a noble family. And, indeed, King John's first wife had been, previously to her marriage with him, divorced from Henry de Leon, Duke of Saxony.
makes mention of the case of Simon de Montford, in Henry the Third's time, in which the Pope, in opposition to the laws and canons of the Church, granted a dispensation, and then ratified his second marriage.†
Of course, the same distinction which we have before noticed, in the two-fold nature of Divorce, obtained likewise in England: the
Spelm. Concil. Herudford. Art. 10.
+ Matth. Paris. Hist. p. 455,
one a separation à mensâ et thoro merely, the other, a dissolution of the marriage vinculum ; and this latter was, by many in the reformed Church of England, held to open to the parties the liberty of re-marriage.
By the Canons of 1597, great caution is recommended to the courts, in pronouncing sentences of separation, and after such sentences, (to the case of mere separation, not Divorce a vinculo, we allude,) bond was taken of the parties not to marry again.
"Prohibitio fiat ut à partibus ab invicem segregatis caste vivatur nec ad alias nuptias alterutro vivente convoletur: denique sententia non pronunciabitur anteaquam qui eam postulaverint, cautionem fide jussoriam sufficientem interposuerint, se contra prohibitionem nihil commissuros."*
It was otherwise in the case of a dissolution of marriage; and this it was that occasioned a great division of sentiment with the Church of Rome, and had called for the statute of Henry VIII. which enacted, that no appeal should be made to Rome in matters of Divorce. With his own Divorce from Catherine, his brother's relict, the Essay has no connexion,
Sparrow Coll. Anc. Stat. p. 251.
These cautions also found their way into the Canons of 1603.
as its occasion was affinity, and not Adultery.
By the 105th of the Canons of 1603,* and in conformity with the earlier decrees of the Church, no Divorce was allowed to be founded on the mere confession of the parties;† many instances of this had occurred before that period, and great corruption had been introduced in consequence: strong proofs were required to support the sentence.
With the sentences of nullity of marriage, where the contract was pronounced invalid, by reason of such causes as impuberty, (marrying infra nubiles annos,) or reasons which preceded the contract, this Essay has nothing to do.
The Divorces pronounced for Adultery, at
Sparrow, Coll. Anc. Stat. p. 317.
+"Propter confessionem tantum vel rumorem vicinæ, separari non debet: cum et quandoque nonnulli inter se contra, matrimonium velint colludere, et ad confessionem incestûs facile prosilirent, si suo judicio crederent per judicium Ecclesiæ concurrendum. Rumor autem vicinæ non adeo est judicandus validus, quod, nisi rationabiles et fide digna probationes accedant, possit bene contractum matrimonium irritari." Decretal Epist. Pope Celestine III.
"Nec partium confessioni, quæ in his causis sæpe fallax est, temere confidatur.” Sparr. Coll. Stat. p. 251.
the period of the Reformation, enabled the party to marry again.
Holland, Friesland, and other Protestant countries concurred in this, by allowing it to one party, the innocent one; but this showed that they regarded the marriage as dissolved, and some of the ablest of the reformers assented to this, Luther, Melancthon, Amesius, and others.*
It was thus the Church of England thought in Elizabeth's time; but in the Star Chamber, a case occurred, where that opinion was changed; and Archbishop Bancroft, by the advice of the divines, held, that Adultery was only a cause of Divorce, à menså et thoro.
It was the case of Foliambe, divorced from his wife by reason of her incontinency. He married again. The second marriage was declared null and void. This, they argued, was the doctrine of the common law. "Nec illi nubere conceditur vivo viro à quo recessit, neque huic alteram ducere viva uxore quam dimisit." That decree of the Church, in the Council of Hertford, which has been
Luther de Div. Melancth. in Matt. v. Ames. de Cas. Cons. v. 38.
+ 3 Salk, 138.