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second marriage was voidable, yet "that the same doth remain in force until it be dissolved; and that issue born during such second coverture, is lawful issue to inherit land."
The current of decisions is admitted to flow the other way; and the reason of this has been found in the reluctance felt by the law to disturb an engagement to which religion has lent so solemn a sanction.* In the reports of Noy, a second marriage was declared void; and it is further stated, that a plea of Divorce, causâ Adulterii, is no bar of dower, showing that the marriage was considered undissolved.†
In the year 1694, in the reign of William and Mary, the subject of Adultery and Divorce was discussed at considerable length by Parliament. It was on the occasion of the Duke of Norfolk, who had proved his wife guilty of Adultery, moving for an Act of Parliament,
*" Vinculum matrimoniale semel perfectum non potest ab homine dissolvi nisi morte naturali. Separantur sed remanent conjuges." Oughton. Tit. 215.
+ Noy, pp. 100, 108.
Burnet's History of his Own Times, vol. iv. p. 184.
dissolving his marriage, and allowing him to marry again.
Bishop Burnet, in relating this case, notices the state of the law, and the customary practice on the subject. He traces the opinions of the later ages of popery in regard to the indissolubility of marriage, to the placing of marriage among the number of the sacraments. He then refers to the case of the Marquis of Northampton, which has been already considered. The reformation of the ecclesiastical laws as prepared by Cranmer, in King Edward's time, has also been noticed, wherein this second marriage was allowed to follow a Divorce for Adultery. Thus, Burnet remarks, the matter had rested for near a century, till Lord Roos, afterwards Duke of Rutland, moved for this liberty. This was in the time of King Charles, when, in addition to the loose and libertine sentiments which prevailed in relation to the marriage contract and all such obligations, there was a wish on the part of the King to extend an indulgence of this nature as a remedy for the unpleasant differences that existed between himself and his Queen. It was from an apprehension of the consequences to which such a step might, at that time, have led, that the Bishops strenuously opposed every part of
Lord Roos's Divorce, though many of them were persuaded, that Adultery, when fully proved, would admit of a second marriage.
In the case of the Duke of Norfolk, the Duchess was a Papist, and a strong party was made for her; but the proofs were too full to admit of a question respecting her guilt. But the main question was on the subject of the Duke's second marriage, and the Bishops were desired to deliver their opinions with their reasons. And here a division of sentiment appeared on the episcopal bench. The Prelates of William's reign considered a second marriage after Adultery to be lawful and scriptural, conformable both to the words of the gospel, and the doctrine of the primitive Church, and that the contrary opinion was started in the dark ages; but the Bishops of the two former reigns were of another opinion, though they hardly could tell why.
The Bill was let fall, and the dispute also; and it does not appear that any books were written on the subject.
But it is time to quit the consideration of England: too much space has perhaps been allotted to it; but it was deemed advisable to bring the course of remarks to the late
period just noticed, in order to introduce the important case of the Duke of Norfolk.
A few observations on Scotland and Ireland shall close the fourth section of this Essay.
By the laws of Scotland a similar distinction to that noticed in an earlier part of the Essay, appears to prevail on the subject of Adultery. One is called simple, the other notour Adultery. The punishment of the former is left to the discretion of the judge, and fine is the usual mode of visitation. That of the latter, or notour Adultery, by which is meant the conduct of open and incorrigible adulterers, unreformed by the censures of the church, where they keep company publicly together, and procreate issue; is a capital punishment.
This severity appears to have had an early origin. In the ecclesiastical laws of Keneth, King of Scots, anno 840, (Can. 14, 15.) the deflowering of a virgin is punishable with death," unless she desires him for a husband;" and "he who adulterates another man's wife, she not dissenting, shall, together with the adulteress, suffer the severest punishment; if she were under force, she shall be acquitted."
In relation to Divorce, the writers on the Scotch law reason with great acuteness on the caution which should be employed in the permission of it, the just cause for it which Adultery furnishes, and the necessary consequences of re-marriage which flow from it. Those, say they, who would prohibit the guilty parties from marrying, ground their reasoning on incorrect legal principles: whatever moral aspect the case wears, both parties must be placed on the same ground. Either they are married, or they are not; if married, they cannot enter into a second engagement, for this would be bigamy; if not married, they are both at liberty to marry whom and when they please.* This liberty with them has indeed been abridged by special statute, for, though the law of Scotland, after the Divorce for other grounds, allows the guilty as well as the innocent person to contract a second marriage, yet, in the case of Divorce upon Adultery, such marriage is specially prohibited between the two adulterers; but the force of the general reasoning remains the same.
With the other Divorces by the Scotch law, on the ground of wilful desertion, (or non
* Erskine's Institutes. pp. 118 and 835.