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
Similar testimony is afforded by the celebrated Foljambe case
in 1602, when a court sitting in the Star Chamber incidentally
pronounced invalid a marriage which had been contracted after
separation from bed and board by decree of an ecclesiastical judge;
and this decision follows the advice of a council of the "most sage
divines and civilians assembled by Archbishop Whitgift at Lambeth,
declaring in harmony with the ancient law that remarriage after
judicial separation is null and void."[249]
[Footnote 249: The Foljambe case has given rise to much
controversy. It is commonly regarded as marking the formal
abandonment of the more liberal _law_ of the Reformation period
and a return to canonical principles. This view is mainly
traceable to the statements of SALKELD, _Reports of Cases in the
King's Bench_ (Philadelphia, 1822, from 6th London ed.), III,
137, who commits several errors, and is otherwise misleading.
He is followed by JEAFFRESON, _Brides and Bridals_, II, 324;
GEARY, _Marriage and Family Relations_, 12; MACQUEEN, _Practical
Treatise_, 470, 471; HARRISON, _Probate and Divorce_, 115; and
especially BISHOP, _Marriage and Divorce_ (5th ed.), I, §§ 661,
705. On the other hand, WOOLSEY, _Divorce_, 172, note, 310-13,
following the researches of CRAIK, _Romance of the Peerage_, I,
Appendix, regards the decision as merely confirming existing law.
He criticises Bishop for being misled by Salkeld, whereas the
facts appear to be more correctly given in NOY'S _Reports_, 100;
and particularly in MOORE'S _Cases_ (2d ed. folio, London, 1688),
683, which may be translated from the law-French as follows:
"Feb. 13, _anno_ 44 Eliz. In the Star Chamber it was declared
by all the court, that whereas Foljambe was divorced from his
first wife for incontinence of the woman [in fact, for his own
adultery], and afterwards had married Sarah Poge [Page], daughter
of Rye, in his former wife's life-time, this was a void marriage,
the divorce being _a mensa et thoro_, and not _a vinculo
matrimonii_. And John Whitgift, then Archbishop of Canterbury,
said that he had called to himself at Lambeth the most sage
divines and civilians, and that they had all agreed therein." It
is concluded, therefore, that this decision of the "sage divines
and civilians" must have been incidental to a case under trial in
the Star Chamber, and that the law was merely declared and not
changed. See, however, the sixth edition of BISHOP'S work, I, §
1498 n. 3, where the author insists on the essential correctness
of his original view. _Cf_. also _Law Review_ (Eng.), I, 361,
362; _Report of the Commissioners_ (Divorce), 1852-53, 4-6; and
MORGAN, _Marriage, Adultery, and Divorce_, II, 233.]
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