great misapprehension of the facts. Looking at the matter from a spiritual point of view, the only material one, the case stands thus: (i.) The Convocation of Canterbury, in the "Submissio Cleri" (to be carefully distinguished from the "Act of Submission"-the two may be seen for comparison side by side in Wake's "State of the Church," p. 548, Lond. 1703)-—was "contented" that an examination of the then existing Canons, "Provincial or Synodal," should be made by King Henry VIII. in person and other 32 persons to be chosen by the King in certain specified proportions from Clergy and Laity. These thirty-two with the King would then form-quoad Ecclesiam-what we should now call a Committee of Convocation with the addition of certain Laymen. (ii.) Item. That such of the said Canons as should be judged by the King personally, and by the majority of the thirty-two, to be contrary to the laws of God and the realm should be abrogated by the King "and the Clergy”—i.e.. by the Convocation itself; thus duly depriving them of all authority secular and spiritual. "sive (iii.) This Committee and its labours came to nothing, as the preface to the Edition of the "Reformatio Legum," A.D. 1571, says, temporum iniquitate, sive nimia eorum cessatione quibus tunc negotium committebatur" (Ref. Leg., p. xxiv., Ed. Cardwell). Whatever had been done lapsed at the King's death, and the Synodal authorization of the Committee determined, the King himself personally having been made a necessary member of it. (iv.) Under Edward VI. an Act of Parliament was passed, with no Synodal authority, for a very different purpose-viz., to appoint a Commission of thirty-two persons "to compile such ecclesiastical laws as should be thought by him [the King], his Council, and them convenient to be practised in all the Spiritual Courts of the Realm." (R. L. Pref. p. vii.) Nothing was done for two full years. Then (v.) The number of Commissioners "being deemed inconveniently great, a Royal Commission was issued intrusting the prosecution of the work to the Archbishop [Cranmer], Peter Martyr, and six others." But it appears that "the Archbishop and Martyr took the whole responsibility upon themselves, employing Dr. Haddon to see that their sentiments were expressed in proper language”—i.e., in good Latin (pp. vii., viii.) The " Reformatio Legum," then, so far was the work of Cranmer and Peter Martyr, the latter not being a member of the English Church ; consequently, in its relation to the Church, it was the work of Cranmer alone. But delays went on, and King Edward died re infectâ. "Nec (vi.) How far Cranmer's "Compilation" agreed with the work of the original Committee we do not know. We do know that they differed widely. Of the latter, the Preface to the edition of 1571 says:illaudandi fortassis eorum conatus, qui leges tum illas, licet his longe dissimiles, conscripserant" (Præfatio, p. xxiv.) We cannot argue from one to the other. (vii.) Cranmer's and Martyr's book appears to have undergone the personal examination and revision of Parker, in Queen Elizabeth's time. By some means, probably with Parker's consent, his MS., corrected by himself, got into the hands of the notorious John Foxe, by whom it was published in 1571 with a Preface by himself. But Parker's MS. "is not known to be in existence" (R. L. pref., p. xi). What became of it no one knows. (viii.) The " Reformatio Legum," therefore, as we now have it, represents a work by Cranmer and Peter Martyr, put into Latin by Haddon, revised by Parker, and edited by Foxe the "Martyrologist; the whole being founded to some unknown extent on the work of the Convocation Committee under Henry VIII. This seems to be its exact value, neither less nor more. We are now in a position to consider its recommendations as to divorce. (a) It allows the "re-marriage" of the innocent after divorce for adultery. "Judex ... quoties alterum conjugem adulterii condemnat, alteri sinceræ personæ libertatem denunciare debet ad novum matrimonium transeundi," after a delay of six or twelve months to allow of reconciliation. (De Adult. et Divort., c. 7.) (b) Also for desertion with refusal to return. "Perpetuæ carceris custodia dedatur, et deserta persona novarum potestatem nuptiarum ab ecclesiastico judice sumat.' If the deserter cannot be found, the deserted must wait two or three years before "re-marrying”; then—. "Nuptiarum vinculis liberabitur et novum sibi conjugem (si velit) assumet." If, after all this, the deserter returns, "In æternas carceris tenebras detrudatur, et secundum matrimonium plenissimo jure valeat" (cap. 8). (c) Also, "propter nimis longam conjugis absentiam." Where there is no desertion, a lawful absence of two or three years without any tidings being had or obtainable is declared to be enough; "alteri conjugi novas concedi nuptias æquum est," provided that if the absentee return and can give good account of his absence, "uxor illum rursus ad se recipiat." As to what is to be done with or for the second" husband "nothing is said. But if the husband cannot give the fullest and most reasonable excuse for his absence he shall be imprisoned for life. "Nullum ad uxorem reditum habeat, et illa secundis in nuptiis rite permaneat" (cap. 9). (d) Enmity endangering life is also made a sufficient cause of divorce, as soon as it is legally proved, on the ground 'Majorem enim conjugi facit vitam oppugnat, quam ea quæ ex corporis sui potestatem alteri facit. juxta Pauli doctrinam matrimonium dissolvi par est" (cap. 10). injuriam personæ, quæ salutem et consuetudine se conjugis eximit, aut Cum igitur una non possint esse, ... On this and all similar pleas in ancient or modern times one remark may be made. That it is by no means proved that there is such "major injuria" as is pretended, because we do not know what the full "injuria of adultery may be; but if it be so, it follows that our Blessed Lord, by disallowing every cause but one, could not have made the real or supposed greatness of the injury the principle and reason of His permission. We must look deeper for it, (e) What is now called insuperable "incompatibility" of temper is another permitted reason. "Quapropter divortii remedio periclitanti succurrendum erit, non minus quam si vita manifeste fuisset oppugnata. Et hoc teneri placet, ut solutæ personæ novas (si velint) nuptiarum conditiones legant (cap. 11). Cap. 12 declares that minor contentions or dislikes are not sufficient reasons for divorce. The title of the chapter, however, inserts the suspicious words "nisi perpetuæ sint." These five grounds of divorce, with leave to re-marry," the "Reformatio Legum" recognizes; and whether we owe them to Cranmer, or Martyr, or Parker, or Foxe (for we may be sure that they are no relics of the work of the Committee of Convocation), it is plain that four of them at least are as devoid of Christian principle as of ecclesiastical authority. Then follows, in Chap. xix., a very observable provision as to the only divorce then, as now, recognized by the Church. "Mensæ societas et thoro solebat in certis criminibus adimi conjugibus : salvo tamen inter illos reliquo matrimonii jure. Quæ constitutio cum a sacris literis aliena sit, et maximam perversitatem habeat, et malorum sentinam in matrimonium comportaverit, illud authoritate nostra totum aboleri placet" (cap. 19). This Chapter, with its strong animus against the then existing law of the Church, is very important to the present inquiry. Because I would now specially invite attention to the way in which this whole subject was dealt with by the Church herself when she took it up. As has been already said, it was in 1571 that the "Reformatio Legum assumed its present shape under the auspices of Parker and Foxe. The Canons of 1571 make no mention of divorces properly so-called; but they contain a highly important and much overlooked condemnation and prohibition of pseudo-marriages within the Levitical Degrees, and, above all, " maxime vero," in the specific case of the sister of the deceased wife (Cardwell's "Synodalia," Vol. i., p. 130). This fact I do not remember to have seen mentioned in any of the arguments on the subject. All these incestuous unions are ordered by the Canons to be "dissolved by the authority of the Bishop." In 1597, however, the Provincial Synod, under Archbishop Whitgift, took in hand matters of marriage and divorce; and, entirely ignoring all the recommendations of the "Reformatio Legum," and especially its somewhat violent denunciation of the "separatio a mensa et thoro," proceeded to legislate about this as the only true divorce known to the Church, using the terms "separatio" and "divortium" in its strict sense as equivalents. "The utmost caution," it says, must be used "cum matrimonium in ecclesia solemnizatum prætextu aliquo separari vel nullum pronunciari postuletur." Separation" and "nullity" are the only alternatives. The heading of the Canon, it may be observed, includes both under the general term "divorce:"-" De sententiis divortii non temere ferendis." 66 The Canon decrees "In hujusmodi divortiorum et nullitatis matrimonii processibus deliberate procedatur." Then "Nullæ posthac sententiæ vel separationis a thoro et mensa vel nullitatis matrimonii ferantur, nisi publice ac pro tribunali, et de scientia et consensu vel Archiepiscopi . . . . vel Episcopi . . . . deinde ut in sententiis, quando ad separationem thori et mensæ tantum interponuntur [that is, in sentences not of nullity but only of divorce], monitio et prohibitio fiat, ut a partibus ab invicem segregatis caste vivatur, nec ad alias nuptias alterutro vivente convoletur," &c. Immediately afterwards "Judex autem qui sententiam separationis seu divortii tulerit, et præmissa omnia non præstiterit. . . suspendetur, et sententia separationis pro nulla habebitur, ac si omnino lata non fuisset" ("Synodalia," Vol. i, pp. 154, 155). Here the words "separationis seu divortii” refer certainly to one and the same subject, the conjunction "seu" being used, as the Lexicons inform us," "when with reference to one and the same subject a choice is given between several names” (Riddle and Arnold, Eng. Lat. Lex). 66 Now, as it is practically impossible that Whitgift and his Synod should have been ignorant of the divorce regulations proposed in the Reformatio Legum," published in 1571, this Canon can hardly be considered as anything short of a complete and deliberate repudiation of them all, made even more emphatic by the avoidance of any direct reference to them by name or otherwise. A careful comparison of this Canon and its wording with Canons 105, 106, and 107, of 1604, both in the Latin and English, will fully corroborate these conclusions.* Particularly it will show that in Can. 107 "sentences pronounced only for divorce and separation a thoro et mensa are not contradistinguished from sentences for divorce a vinculo but only from "sentences for annulling of pretended matrimony (Can. 106), and that, therefore, the title of Canon 107 is strictly accurate when it says that "in all sentences for divorce [properly so called] bond is to be taken for not marrying during each other's life.” "" The foregoing considerations will also, I think, show that the reason why "sentence of divorce a vinculo matrimonii has never been pronounced by the Courts of the Church of England," as the Report of the Bishops' Committee truly alleges, is that the Church of England recognises no such divorce, and that "her Canons are silent on the subject," not with a dumb silence but with one most eloquent. D. Consideration No. 7 of Bishops' Committee. THAT THE GREEK CHURCH RECOGNISES DIVORCE [VOLUNTATE DEI CÆTERA DESunt.] JOHN WALTER LEA. * "There can be no harm in mentioning, if the fact be thought to possess any value, that these Canons of 1597, these Capitula sive Constitutiones Ecclesiasticæ," were "Per ipsam Regiam Majestatem approbatæ et confirmatæ," and thus had exactly the same Provincial status as the Canons of 1604. Like them also they were ordered by Royal authority to be observed in both Provinces. The Provincial Synod of York appears to have taken no notice of this assumption in 1597. In 1604 as is well-known, it resented the like, and enacted the Canons for itself by its independent authority, and "commanded them to be firmly observed in and through the whole Province of York." (Synodalia, Vol. i., pp. 147, 166). REPORT BY SIR WALTER G. F. PHILLIMORE, BART., D.C.L. I was directed at one of the late meetings of the Council before the Vacation to prepare a paper upon the Report of the Committee of the Upper House of Convocation of Canterbury on Divorce. I have not been able to give as much time, or go as fully into the matter as I could have hoped; but possibly even this imperfect paper may be of some use to members of the Council. It is clear that, at any rate, since the Norman Conquest, the law of the Church of England has been in accord with the law of the Continental Western Church, and that law forbad the re-marriage of one who had either divorced, or been divorced from, his or her partner in marriage, and whose partner was still living (I shall call such an one for shortness a "divorced person"), and this whether such an one was man or woman, innocent or guilty. That law was, after considerable hesitation in the first periods of the Reformation, distinctly re-adopted by the Church of England, and, though in a somewhat roundabout manner, proclaimed in Canon 107 of 1603. At the same time it is well-known that the Western Church (at any rate in darker ages) gave in practice a large freedom of divorce by the introduction and acceptance of technical causes of nullity of marriage; and a decree of nullity was called, as it often in fact was, a divorce (Lancelot's "Institutiones Juris Canonici," printed as part of the "Corpus Juri Canonici," Lib. II., Tit xvi., § 1, 6, 7). The phrase, "divorce by reason of nullity," was technical at Doctors Commons. But, in modern times, such a divorce has, of course, been only granted for real causes of nullity. On what ground the Western Church rested its prohibition of the re-marriage of a "divorced person," I am not sure. I should have said upon Our Lord's words, and upon the broad Sacramental principle; only that I |