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quoted from Spelman, appeared to reason in the same way: "Si quisquam propriam expulerit conjugem, si Christianus esse voluerit, nulli alteri copuleatur, sed ita permaneat." And the Canons of Archbishop Egbert; "Ita maneant, aut sibimet reconcilientur." But the answer to this would suggest that these separations were for other causes, and less than Adultery. That cause is specially excepted in the gospels, and also specially permitted in the Reformatio Legum, and there re-marriage is open to the injured party, and only withheld in cases where guilt shall appear to attach equally to both.
The passages are; "Cum alter conjux Adulterii damnatus est, alteri licebit innocenti novum ad matrimonium (si volet) progredi. Nec enim adeo debet integra persona crimine alieno punire, celibatus ut invitus possit obtrudi; quâpropter integra persona non habebitur adultera, si novo se matrimonii revinxerit, quoniam ipse causam Adulterii Christus excepit:" and again; Si persona quæ fuerit Adulterii convicta, crimen in altero conjuge possit idem ostendere et ostenderit, priusquam conjux ad novas nuptias diverterit, utriusque conjux culpa par in pares inci
* 1 Cor. vii. 7.
det pœnas, et prius inter illos firmum manebit matrimonium."
On this construction of reciprocal offences we shall say a word afterwards. Meantime we may remark, that the interpretation put upon the words of Christ appears the most natural, that the Adultery of the one party does so violate the matrimonial engagement as to leave the other at liberty, ad alteras nuptias volare. Indeed the Reformatio Legum contains a passage expressive of astonishment at the ingenuity which could for such a crime as this separate the parties from all the intercourse and duties of marriage, while at the same time the bond itself remained in force; "salvo tamen inter illos reliqui matrimonii jure. Quæ constitutio, cum à sacris literis aliena sit, et maximam perversitatem habeat, authoritate nostrâ totum aboleri placet."
We must here notice the celebrated case of the Marquis and Marchioness of Northampton. This happened soon after the Reformation.
The Marchioness had been convicted of Adultery in the reign of Henry VIII. and the Marquis was thereupon divorced from her in the beginning of the reign of Edward VI. A commission was granted directed to Arch
bishop Cranmer, and nine other divines, to certify whether she continued his wife, notwithstanding a Divorce à menså et thoro, and whether, by the word of God, he might marry again. But before this matter was determined, he married again; at which the Privy Council were offended, because, according to the canon law, the first marriage continued good even after such a Divorce. The Marquis insisted, that, by the law of God, the very bond of marriage was dissolved for Adultery; and that marriage was never thought to be indissoluble till the Romish Church made it a sacrament. But yet, that Church, by the help of the canonists, invented such distinctions as made it easy to be avoided. He contended that it would be very inconvenient if a marriage were not dissolved on account of Adultery, because then the innocent person must live with the guilty, or be tempted to commit the like sin, if the bond of marriage still subsisted.
Soon afterwards the delegates gave sentence in favour of the second marriage; and, among other things, they founded it on Christ's definition of marriage, that two should be one flesh. So that where that was divided, as it must be by Adultery, the marriage itself was dissolved.
This sentence of the delegates was, by a private Act of Parliament, confirmed about four years afterwards, (to which only two Peers and two Bishops dissented,) and the second marriage was declared to be good by the law of God, any canon or ecclesiastical law to the contrary thereof, in any wise notwithstanding. And although, in the next year (1553) this Act was repealed, yet the reason mentioned in the preamble, (and a French writer has properly remarked, "C'est dans le préambule des loix qu'on puise leur esprit, et qu'on découvre les motifs de leurs decisions,") was because it was obtained upon private views, and was an encouragement for licentious persons to procure Divorces upon false allegations.
In 1554, we find a petition of the Clergy in Convocation, addressed to the Parliament, requesting that the innocent woman, when divorced, should enjoy the goods and lands that were her own before marriage. What became of this petition does not appear. But in the case of a separation obtained at the suit of the wife, for the crime of the husband, she is clearly entitled to her alimony. This is allotted her, even where she is the party complained of during the dependence of the suit, (pendente lite,) as, until the sentence is given,
the presumption is in favour of her innocence, and the marriage union is considered unbroken; but, after that period, it ceases, unless it be the crime of the husband, in which case, a permanent allotment is made to the injured wife ;-if she is the offender she loses all: for, as Adultery amounts to a forfeiture of dower after his death, it is also a sufficient reason why she should not be partaker of his estate while living.
With regard to the power of re-marriage, in the 10th year of James I., an Act was passed to restrain it in the one party while the other was alive; but one of the provisions of that Act specially excepted from its operation the cases in which sentences of the ecclesiastical courts had pronounced Divorce. Coke explains this to mean both sentences à vinculo and à mensâ; as it was adjudged in the cases of Porter, 3 Coke, 461; and, afterwards, in that of Middleton, 14 Car. II. in the first of which, a Divorce causâ sævitiæ, in the second, Adulterii, were allowed to be good discharge from the felony.
But there is a further case noticed by Coke, that of Webster and Bury, (Instit. part 5. 98,) in which he states it to have been adjudged, that, in a Divorce, a marriage being dissolved à vinculo, even on the admission that a