Art. 11.-ENGLISH CHURCH LAW AND DIVORCE.

1. Reformatio Legum Ecclesiasticarum. London, 1571. 2. First Report of the Commissioners appointed by Her Majesty to enquire into the Law of Divorce and more particularly the mode of obtaining Divorces â vinculo Matrimonii. [1604.] London: Wyman, 1853.

FOR many centuries, not only in England, but throughout Christendom, the matrimonial relation general consent treated as within the proper cognisance of the ecclesiastical authorities. Marriage law was department of Church Law; and, until well within living memory, divorce, so far as it existed at all in this country, belonged exclusively to the jurisdiction of the Ecclesiastical Courts. For further relief than they could grant it was necessary to invoke the legal omnipotence of Parliament and seek a special Act. It is plain that the day is long past when the right of the Christian Church to dictate to its members-it never in theory claimed jurisdiction over others-as to marriage and the dissolution of marriage can be taken for granted. One inevitable result of the Divorce Commission now sitting must be the production of either a reasoned defence of the Church of England's long recognised authority in marriage questions, or else a re-statement of what is the true function of the Church of Christ with regard to defining the nature and legislating on the incidents of the social relations of Christians. This is one of the matters-perhaps the most momentous of themwhich the Divorce Commission has indirectly brought to the front. But we pass it by as altogether too big for adequate discussion in this place, in order to deal with another and an easier question. What has been the law and practice of the Church of England as to divorce, in its restricted sense of dissolution of marriage?

This is another of the questions which have emerged from the discussions stimulated by the Divorce Commission. It may seem strange that there should be any question at all about such a matter. But, explain it how we may, it cannot be denied that discordant answers are being given to it. On the one hand, we are told by those who, a little rashly perhaps, accept the authority of the Royal

Commission on Divorce of 1853, that for the first halfcentury after the Reformation the Church of England granted divorces a vinculo and allowed persons to remarry. On the other hand, such phrases as 'the law of the Church' not allowing divorce pass from mouth to mouth, as if they must be true because they are familiar, although behind them is nothing but a vague and uninformed impression.

It is scarcely necessary to discuss at length the position of the divorce question in the first ages of the Christian era, or in the following centuries, during which ecclesiastical law was, so to speak, in the making.* It cannot be disputed that, in the West, the Church held, from the earliest time as to which we possess evidence, to the indissolubility of marriage as a principle. That individuals, even amongst the Fathers, regarded marriage as dissoluble, especially on the ground of adultery, and that the practice of the Church everywhere was looser in dealing with individual cases than when framing general statements of what was expected of its members, is also indisputable. The laws of the State under the Roman Empire, and in later times under the Frankish kings, in favour of divorce, were the cause of concessions made by ecclesiastical authorities in particular cases. The Books of Penitentials compiled by individuals for the guidance of clergymen in dealing with penitents show the same tendency to a practical leniency in applying a strict theoretical standard. To mention the most conspicuous English instance, Archb. Theodore, in the Canons of Hertford (A.D. 673), enacts as follows (Canon 10):

'Let no one relinquish his own wife, but for fornication, as the Gospel teaches. But if any man divorce a wife to whom he has been lawfully married, let him not be coupled to another, but remain as he is or be reconciled to his wife, if he will be a right good Christian.'†

Yet in his Penitentials ‡ Archb. Theodore directs that, if a

*To those who desire a safe guide in this region, and one whose authority and independence are admitted, we would venture to recommend Esmein's Le Mariage en Droit Canonique' (Paris, 1891). Part ii, tit. 3, cap. 2 is entitled 'Le divorce et la séparation des époux.'

+ Johnson's Ecc. Laws,' vol. i.

Haddan and Stubbs, 'Councils,' vol. iii, p. 198.

man's wife commits adultery, he may dismiss her and marry another; and that even the guilty wife, if penitent, may remarry after five years. Thus, in the West the Church's law was clear, but was imperfectly carried into execution. In the Eastern Church divorce with power to remarry has always been permitted; and the grounds of divorce are by no means confined to adultery.

Gratian's 'Decretum' was published about 1140; and by the end of the twelfth century Church Law had become consolidated. Thirty years later Gregory IX published his collection of Decretals. From that time we are on firm ground, so far as the law of the Western Church and its practice in Ecclesiastical Courts are concerned. That it declared marriage to be indissoluble during the joint lives of husband and wife scarcely needs to be stated. The Decretum' (part ii, causa xxxii) contains something like a code on separation and divorce, in which the indissolubility of marriage is both expressed and implied. The 'Decretum' was a mere private work which, although it acquired great authority, never received formal sanction. But the law as stated in the 'Decretum' was so well established that, when we come in the middle of the thirteenth century to the Decretals, which are the edited records of actual legislation, although we find a title 'De Divortiis' (lib. iv, tit. xix), indissolubility is treated as axiomatic, and the legislator confined his attention to questions which, given this starting-point, had emerged and required to be decided.

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We have express authority for saying that the Church of England was governed in this respect by the same rule which prevailed elsewhere in Western Christendom; for John de Burgh, Chancellor of the University of Cambridge, and author of Pupilla Oculi' (1385), the most celebrated manual of English Ecclesiastical Law before Lyndwood wrote his 'Provinciale,' tells us (part viii, cap. xiv, fol. cxl, ed. 1516) that a husband can dismiss his wife for adultery (and similarly the wife her husband), but that he cannot marry another while his wife is alive. Although it is satisfactory to be able to quote an English canonist, it is not intended to imply any doubt that the Decretum and the Decretals had as much binding authority in the English Church Courts as elsewhere. The Canons made by the English Provincial Synods were supplemental

only to the general Canon Law, and apart from it were entirely inadequate to provide an independent code or system of law, for the simple reason that they did not purport to cover the ground. They assumed the general Canon Law and merely filled in details.

The theory embalmed in the preamble of one of Henry VIII's statutes (25 Hen. VIII, ch. 21), that the only sanction of the Roman Canon Law was long use and custom,' and that no obedience was paid to the Pope's laws as such, cannot now be regarded as historically sound. The late Prof. Maitland's brilliant and learned essays on Roman Canon Law in the Church of England (London, 1898) are, as to this, their main thesis, decisive. Lyndwood, who was Dean of the Arches under Archb. Chicheley, and John of Athon the canonist, who edited the Legatine Constitutions of Otho and Ottobon, treat the power of the Pope to legislate for Christendom as axiomatic, and throughout their commentaries do not 'deny, dispute, or even debate the binding force of any decretal' (ib. p. 8). Lyndwood, although he has a section (lib. iv) entitled De Sponsalibus et Matrimonio,' finds little amongst the English provincial constitutions about marriage and nothing about divorce to form the text on which to make his notes. Lyndwood tells us in terms that the Decretals stand on a level with the Canons of Councils.'* Archb. Arundel, in his Constitutions against the Lollards (Johnson's Ecc. Laws,' ii, A.D. 1408), declared (to quote Maitland's paraphrase, p. 17) that 'to dispute the authority of a Decretal is to be guilty of heresy.'

There is no doubt then that, until the breach with Rome in the sixteenth century, the Church of England and the English Ecclesiastical Courts knew nothing of divorce in the sense of a dissolution of marriage with a right of remarriage conceded to either or both of the parties. Sentences of divorce a mensa et thoro, or separation from bed and board, were indeed granted in England as elsewhere; but they seem always to have contained a clause limiting their operation so as to determine the legal separation on reconciliation. Further, this was not one of the matters in which the State prohibited the Church from carrying the ecclesiastical law into effect.

* Maitland (p. 17) citing Lyndwood, lib. v, tit. 5, 'Decretalibus.'

Marriage was recognised as a proper subject of ecclesiastical jurisdiction; and there was no Act of Parliament providing for the divorce and remarriage of people on grounds approved by the State.

We come now to the Reformation period. The repudiation of the Pope's jurisdiction fundamentally affected the whole basis of Church Law and its operation in the Church Courts. Until 1532, the Church Courts administered a law which emanated from Rome. That law was so intimately interwoven with the papal power in its operation that the Canon Law, with the Pope merely cut out, ceased to be a coherent system. Until then an appeal had lain to Rome certainly in testamentary and matrimonial cases, and probably in other ecclesiastical matters also. The 'Præmunire' Statutes, which made it treason to take any suit to a foreign tribunal which could be dealt with by the king's, that is the secular, courts, did not prevent an appeal to Rome in any purely spiritual case, unless the king was interested in the subject-matter. Even so, the 'Præmunire' Statutes were constantly, and often with State connivance, evaded. Finally, the Pope had, long before the Reformation, established his position as universal ordinary, with power to interpose his jurisdiction at any stage of an ecclesiastical suit, to oust the court of the bishop or archbishop, and to reserve the matter for the hearing and decision of papal delegates. Thus the Pope not only entertained appeals, but made himself judge of first instance, to the exclusion of the regular tribunals. Here again the Præmunire' Statutes presented only a partial, fitful, and feeble obstacle to the constantly invoked papal power. Then, almost suddenly, the papal authority disappeared from English Church Law and judicature. To understand how the crisis was met and what changes were made, both of theory and practice, we must look at the Submission of the Clergy, the momentous document to which, under pressure, but nevertheless quite definitely, the Convocation of Canterbury agreed on May 15, 1532. It was accepted by the Convocation of York in 1533, so that its synodical character as it affects the Church of England was complete.

By this submission the clergy bound themselves (1) not to enact or put in use or execute any new canon without the royal assent and authority; (2) to submit the existing