THE

CHURCH QUARTERLY REVIEW.

N° LXXIX. APRIL 1895.

ART. I.-DIVORCE.

By

1. Divorce and Re-marriage: Historical Evidence. HOLLINGWORTH TULLY KINGDON, D.D. Cantab., Bishop Coadjutor of of Fredericton. (Montreal and Fredericton: no date.)

2. Divorce. Report as received by the Lower House of the Convocation of York. (Helmsley, York, and London: no date.)

3. The History of Marriage, Jewish and Christian, in relation to Divorce and certain Prohibited Degrees. By HERBERT MORTIMER LUCKOCK, D.D., Dean of Lichfield. (London, 1894.)

4. Holy Matrimony: A Treatise on the Divine Laws of Marriage. By OSCAR D. WATKINS, M.A., a Senior Chaplain on her Majesty's Bengal Establishment. (London, 1895.)

5. Marriage and Divorce in the United States: as they are and as they ought to be. By D. CONVERS, S.S.J.E., Assistant at St. Clement's Church, Philadelphia. (Philadelphia, 1889.)

6. Notes upon some Points in Origen's Commentary on St. Matthew, xix. 3-11. By H. W. REYNOLDS. (Cambridge, 1894.)

7. Origen and the York Report on Divorce; being Notes upon some Points in Origen's Commentary on St. Matthew, xix. 3-11. By the Rev. H. W. REYNOLDS, Christ's College, Cambridge; Vicar of Christ Church, Bolton. (Cambridge, 1895.) (Revised edition of No. 6.)

8. A Brief Examination of the York Report on Divorce. By the Rev. H. W. REYNOLDS, Christ's College, Cambridge; Vicar of Christ Church, Bolton. (Cambridge, 1895.)

VOL. XL.NO. LXXIX.

B

9. Marriage of Innocent Divorcees. By the Right Hon. LORD GRIMTHORPE. The Nineteenth Century, February. (London, 1895.)

THE above list is a sufficient sign that the present is an appropriate opportunity for the examination of the painful but highly important question of Divorce. The subject is one which, in the existing state of law in England and foreign countries, thoughtful men who have interest and care for individual and social purity can never put very far out of mind, and just now it has been pushed into special prominence by the publication of the 'Report' which has been ' received by the Lower House of the Convocation of York' and the controversy which has ensued.

I. In such an inquiry as we have in view, mindful of words written in 1857 by the revered John Keble,' we naturally begin by asking what is the present law of the Church in England. For those who regard the branch of the Catholic Church in this country as a spiritual body, possessing as part of her inheritance powers of legislation which her members are bound to respect, there can be no doubt as to the answer. Such doubt might arise if she were the creation of the State, or if the decisions of the Crown or of Parliament in spiritual matters had any binding force upon her without her own legislative enactment, or if marriage. were a special case which, 'though of an ecclesiastical nature,' should be outside the control of the Church herself. But for those who are prepared to affirm that the control of Christian marriage, as based upon theological truth and necessarily connected with morals, was committed by Christ to His Church, and that the administration of it is part of the responsibility of the Church in any country, the answer 1 Keble, An Argument for not proceeding immediately to repeal the laws which treat the nuptial bond as indissoluble, p. 1.

2 This is Lord Grimthorpe's view. He says: 'I had better state here, what everybody knows who ever read a law-book or looks into Phillimore's Ecclesiastica! Law (1958-9), that one of the greatest Lord Chancellors and Chief Justices, Lord Hardwicke, and other great judges have declared "there are some things of an ecclesiastical nature which no canon can touch," and marriage was one of them' (p. 327). We do not dispute the general truth of this statement of the opinion of 'Lord Hardwicke and other great judges;' but, as a matter of fact, nobody who 'looks into Phillimore's Ecclesiastical Law (1958-9)' will find it there. It is instructive to compare Lord Grimthorpe's view of 'the great Act 25 Henry VIII., "for the submission of the clergy," with Dixon, History of the Church of England from the Abolition of the Roman Jurisdiction, vol. i. pp. 106-111, 189-194; Perry, History of the English Church, vol. ii. pp. 78, 82-3, 87-8.

is clear. That the Marriage Service in the Book of Common Prayer does not contemplate the possibility of the bond of marriage terminating as long as both the persons who are married live may perhaps have been pressed too strongly by some writers. If the Prayer Book stood by itself, it might perhaps be argued that the solemn words of the Service are ignoring a contingency which, among Christians, ought never to occur. Such an interpretation would indeed be difficult to reconcile with the marked emphasis on the phrases for better for worse,' 'till death us do part,' and on the declaration of the Priest, 'Those whom God hath joined together let no man put asunder;' but, as we have said, we think it might possibly be tenable if we had no light on the meaning of the Prayer Book from any other source.

Further light removes any possible ground of doubt. The canons of 1603, besides their other uses, may on this point be rightly taken as showing what the Prayer Book means. They decisively teach that in no case of a marriage valid from the first does the bond of marriage cease to exist while both the parties live, and that in no such case may either of them contract a fresh 'marriage' in the lifetime of the other. The words of Canon 107 are:

'In all sentences pronounced only for divorce and separation a thoro et mensa, there shall be a caution and restraint inserted in the act of the said sentence, That the parties so separated shall live chastely and continently; neither shall they, during each other's life, contract marriage with any other person. And, for the better observation of this last clause, the said sentence of divorce shall not be pronounced until the party or parties requiring the same have given good and sufficient caution and security into the court, that they will not any way break or transgress the said restraint or prohibition.'

In an enigmatical sentence in his article in The Nineteenth Century (p. 328) Lord Grimthorpe appears to imply that the phrase in this canon, 'sentences pronounced only for divorce and separation a thoro et mensa,' denotes that the obligation not to contract a fresh 'marriage' was not meant to apply in the case of the 'complete or irrevocable divorce' known as a vinculo. A reference to Canon 106 shows that such an interpretation cannot be maintained, that the distinction of Canon 107 is between a divorce a thoro et mensa' and a declaration 'for annulling of pretended matrimony,' and that no divorce a vinculo' is regarded as possible.

On a practical point of this kind the traditional opinions of English Divines are valuable indications of the meaning of

the Prayer Book. If further proof were needed that a second 'marriage' of either party of a valid marriage in the lifetime of the other is regarded as being under any circumstances impossible, it might be found in a consensus of writers. While it may be regretted that more pains were not taken in the chapter in the Report of the York Committee on 'the mind of the Church of England' (pp. 82-90), and that there was not a much more careful treatment of several writers, notably Bishop Jeremy Taylor,' the argument of the chapter will bear investigation and hold good. On the other hand, not one of the three famous instances of great English divines consenting to divorce a vinculo and subsequent 'marriage' can be rightly used in an opposite direction. It is true that Bishop Andrewes was one of seven members of the commission of 1613 who voted in favour of the dissolution of the marriage of the Earl and Countess of Essex. But, in the first place, this was a 'decree of nullity' of a marriage said to have been always void because of 'latens et incurabile impedimentum,' not the dissolution of a valid marriage. And, secondly, Bishop Andrewes himself in his careful investigation of the question declares that there cannot be a second marriage after sentence of divorce in the lifetime of the other party. It is true, also, that Archbishop Laud, when he was thirty-two years old, 'married' the divorced wife of Lord Rich to the Earl of Devon. But the Archbishop deeply repented of what his patron the Earl of Devon had persuaded him to do. He put down in his diary on the day of

1 Mr. Reynolds (Brief Examination, pp. 10-11) is right in saying that the passage quoted in the Report from The Marriage Ring refers to the union between Christ and the Church. Only inferences from it, therefore, not the words themselves, apply to marriage. We cannot, however, agree with Mr. Reynolds that Bishop Taylor is really 'misrepresented' in the Report. The words 'dissolved and broken,' 'an eternal separation of society and friendship,' in the passage he quotes from part ii. of The Marriage Ring, do not appear to mean more than such a separation as does not allow of a fresh 'marriage,' and this view of them is supported by a consideration of the whole lengthy discussion whether a wife may continue to live with a husband of whose adultery she knows in Ductor Dubitantium, Book I. chap. v. rule 8, §§ 6-18. In this discussion some sentences in §§ 13 and 15 must be considered in connexion with the theory of marriage underlying the whole treatment.

2 Ottley, Lancelot Andrewes, pp. 72-5. Dean Church wrote of the 'surprise and disappointment' it is to find Andrewes one of the majority in pronouncing for a divorce in the shameful Essex case.' See Masters in English Theology, p. 69.

3 Andrewes, A Discourse against Second Marriage after sentence of divorce with a former match, the party then living. (Library of AngloCatholic Theology, Andrewes' Minor Works, p. 106)