A History of Matrimonial Institutions, Vol. 2 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 2 of 3
Howard, George Elliott
Families; Marriage -- History
[Footnote 299: HANSARD, 3d series, CCLXXX, 1675. This was Lord
Hatherley: see _Tracts Issued by Mar. Law Defence Union_, II,
161, 162, where he repeats the statement. Compare the views of
the bishop of Exeter, in the same _Tracts_, I, 19, who predicts
an orgy of incest if the law be changed: "At the present, no
doubt, there is a strong natural instinct against the marriage
of a man with his own mother. It is awful to think of. The
marriage of a man with his own blood sister is fearful. But this
instinctive protection of our domestic purity, how far does it
go if we begin to pare the edges off." The Metropolitan (1880)
indulges in like forebodings: _ibid._, I, 97, 98.]
[Footnote 300: LECKY, _Democracy and Liberty_, II, 221-23.]
_c_) _Parliamentary divorce._--More than twenty years were yet to
pass before the appearance of the first English statute providing
for divorce through regular civil process. Proximately the act of
1857 owes its origin to the anomaly of parliamentary divorce, whose
glaring inconsistency but served to accent the evils fostered by
the canons of 1603. In theory marriage continued to be absolutely
indissoluble. Only by giving bond not to marry again could a person
secure even a judicial separation. No matter how grave the offense,
or how notorious the breach of the nuptial vow, the parties in
most legal respects were chained for life. At most they might be
suffered to dwell apart. Obviously the proper remedy would have
been a general law of civil divorce whose benefits should be placed
within the easy reach of rich and poor alike. Instead, a resort
was had to special acts of Parliament whose advantages could be
enjoyed only by a fortunate class.[301] The practice originated
in the last years of the seventeenth century, though it may have
been suggested by prior instances of legislative intervention in
matrimonial questions. As early as 1436 a marriage obtained by force
was declared void.[302] More clearly analogous is the opposite case
of Lord Northampton, already mentioned, whose second marriage after
decree of separation was pronounced valid in 1552. This, however,
is not an instance of parliamentary divorce.[303] Nor, strictly
speaking, is that of Lord Roos in 1670, which Macqueen regards as
the first "genuine example;" for the bill is entitled merely "an act
for John Manners, called Lord Roos, to marry again;" and does not as
alleged expressly effect a "rescission of the contract."[304] The
earliest clear precedents are the case of the Earl of Macclesfield
in 1698 and that of the Duke of Norfolk, two years later, in each
of which the act provides for a dissolution of marriage.[305]
Ultimately (1798) a standing order of the House of Lords requires
that "all bills of divorce shall be preceded by a sentence of
separation _a mensa_, issuing out of the ecclesiastical court;"[306]
and usually such bills must be preceded also by the action at law
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