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were charged with sleeping with another man on a particular night at a distance from home, her husband could not be permitted to prove that on that night she slept in his own bosom; or the King himself could not prove on that night she was in the bosom of his family. There is wisdom in the rule, and true liberty in its being common and equal to every subject alike.
It has been said, that in the first Divorce Bill before the House of Lords, in the case of the Duke of Norfolk and his wife, a list of the witnesses was previously given by the Duke to his Duchess. It appears by the Journals of the House of Lords, that, after the Bill was brought into the House of Lords, and the Duchess had put in an answer to it, her Proctor demanded that the Duke's witnesses, when they came to be sworn, should give in their names, residences, and employments, as they do in the spiritual courts : this was granted; and on Saturday the 24th January, 1692, all the witnesses for the Bill were sworn, and they gave their names and descriptions; and on the following Tuesday they were examined, and their evidence taken down. Afterwards, the Duchess's witnesses were sworn' in like manner, and their evidence taken shortly afterwards. This was said, at that time, to be the practice of the spiritual courts.
But the case clearly proves, that at that time, in a Divorce Bill, there was no communication of the names or description of the witnesses on either side, till they came to be sworn ; and only one full day, besides Sunday, was allowed for making inquiries respecting them.
Since that time, the Lords, to prevent fraud and collusion by the husband and wife, in obtaining a Bill of Divorce to dissolve the marriage contract, require that the husband shall have gained a sentence of divorce from bed and board in the spiritual court, on account of the adultery of his wife ; and also a verdict for damages against the seducer of the wife, in an action at law. But a sentence in the Commons, and the verdict of a jury, may be dispensed with in the case of private families, where they are impracticable,
This being a very important part of the Bill of Pains and Penalties, I will insert what Sir William Blackstone has said upon the subject of Divorce, and what I have added in a note :
“ Divorce a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving it ; but for some supervenient cause, it becomes improper or impossible
for for the parties to live together : as in the case of intolerable ill temper, or adultery, in either of the parties. For the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of the nuptial tye, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. And this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another. The Civil law, which is partly of Pagan original, allows many causes of absolute divorce; and some of them pretty severe ones (as if a wife goes to the theatre or the public games, without the knowledge and consent of the husband); but among them, adultery is the principal, and with reason named the first. But with us in England, adultery is only a cause of separation from bed and board : for which the best reason that can be given is, that if divorces were allowed to depend upon a matter within the power of either of the parties, they would probably be extremely frequent; as was the case when divorces were allowed for canonical disa abilities, on the mere confession of the parties, which is now prohibited by the canons. However, divorces a vinculo matrimonii, for adultery, have of
late years been frequently granted by act of Parfament *."_BLACKSTONE, vol. I. p. 440. 26. i · A suit in the Commons, and an action, must be dispensed with in the case of the King. He could bring no action : in his case, the trespass would be merged in the treason. A divorce a mensa et thoro would be of no avail to him, for he could not
-- "To prevent divorces a vinculo matrimonii from being ob tained in Parliament by fraud and collusion, the two Houses not only examine witnesses, to be convinced of the adultery of the wife, but they require also that the husband shall have obtained a sentence of divorce in the spiritual courts, and a verdict with damages in a court of law from some one who bas had criminal intercourse with the wife.
“ This is not a standing order of the House of Lords, but it is adopted as a rule of caution ; and it may be dispensed with, where the circumstances are such that the adultery of the wife can be proved by satisfactory evidence, and where, at the same time, it is impossible for the husband to obtain a verdict in an action at law.
“ It was dispensed with in the case of a naval officer, whose wife had been brought to bed of one child, in his absence upon duty abroad; and upon his return was far advanced in her pregnancy with a second, and where he could not discover the father. So in another case, where a married woman had gone to France, was divorced there, and had married a Frenchman. ,
“ It would also be dispensed with, if the adulterer should die before the husband could obtain a verdict."— Note by Mr. Christian.
be sued for a restitution of conjugal rights. All that the spiritual courts can grant, is, to free the husband from the intrusion of a woman who has made herself obnoxious to him by criminality*. But a subject cannot have this benefit, if she has the power of recrimination. But recrimination in the case of a King is the greatest of all solecisms in the government of the country. The Sovereign never can be brought to a trial, either by crimination or recrimination. The laws of all nations' exempt the Sovereign from every animadversion in public courts. Even his representative, an ambassador, for wise public reasons, has the same exemption. This never can be suggested without conveying also to the mind an idea of a total subversion of the monarchy, and a dissolution of the government.
If the Illustrious Defendant should be proved, to the complete satisfaction of both Houses of Parliament, by nothing but legal evidence, that she has had an adulterous intercourse with a foreigner, her menjal servant, it may be presumed that every
* Milton, a strenuous advocate both for Religious and Civil Liberty, has written largely for the permission of divorce. between husbands and wives, where there is real reciprocity of unhappiness or incompatibility of mind and temper. Much of what he advanced is peculiarly applicable to Royal marriages.