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
Again, the relief granted by Parliament was effectively placed
beyond the reach of all save the plutocracy. The triple cost of
the law action, the ecclesiastical decree, and the legislative
proceedings was enormous. How utterly the luxury of divorce was
placed beyond the wildest dreams of the poor man clearly appears
when one understands that it could be obtained only through the
expenditure of a fortune sometimes amounting to thousands of
pounds.[320] The shameful injustice of the system has never been so
vividly brought out as in the often-quoted words of Justice Maule
in a case tried before him in 1845: "The culprit was a poor man who
had committed bigamy. The defence was that when the prisoner married
his second wife he had in reality no wife, for his former wife had
first robbed, and then deserted him, and was now living with another
man. The judge imposed the lightest penalty in his power, but he
prefaced it with some ironical remarks which made a deep and lasting
impression. Having described the gross provocation under which the
prisoner had acted, he continued: 'But, prisoner, you have committed
a grave offence in taking the law into your own hands and marrying
again. I will now tell you what you should have done. You should
have brought an action into the civil court, and obtained damages,
which the other side would probably have been unable to pay, and you
would have had to pay your own costs--perhaps 100 _l._ or 150 _l._
You should then have gone to the ecclesiastical court and obtained
a divorce _a mensa et thoro_, and then to the House of Lords, where
having proved that these preliminaries had been complied with, you
would have been enabled to marry again. The expenses might amount
to 500 _l._ or 600 _l._ or perhaps 1000 _l._ You say you are a poor
man, and you probably do not possess as many pence. But, prisoner,
you must know that in England there is not one law for the rich and
another for the poor.'"[321]
[Footnote 320: According to the writer in the _Law Review_, I,
367, two thousand pounds is not an overcharged estimate. "In
some cases even the preliminary proceedings in Doctors' Commons
will cost nearly as much. From the evidence of Mr. Swaby, the
Registrar of the Admiralty Court, before the Select Committee,
p. 33, it appears that even in an ordinary litigation, with
moderate opposition, and where the witnesses are at hand, the
expense of obtaining a definitive sentence of divorce _à mensâ_
may reasonably amount to 1700 _l._; and this merely to lay a
foundation for the proceedings before Parliament, and quite
independently of the action at law. It is well known that Lord
Ellenborough's divorce cost 5000 _l._"--_Ibid._, 367 n. 6. At
the same time the cost of a divorce _a vinculo_ in Scotland was
only 25 _l._: _ibid_., 367, 368. But in the _Evidence before the
Select Committee of the House of Lords, 1844_, 39, the expense of
getting a full divorce is then put at about 800 or 900 pounds.]
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