wages are offered as an inducement to | reference to the laws of Howel the Good, work, and the more wealthy and populous at the end of this article, it would seem a country becomes, the more extensive that in the early periods of English law must be the distribution of separate em- a divorce might be had by mutual conployments. To object to a division of sent; but all trace of such a custom is employments, therefore, is no less than to lost. We know however (3 Salk. Rep. object to civilization altogether; for the 138) that, until the 44 Eliz., a divorce à two conditions are inseparable. It is vinculo matrimonii might be had in the deeply to be lamented that many evils ecclesiastical courts for adultery; but in have hitherto clung to the progress of Foljambe's case, which occurred in that civilization, which are not its necessary year in the Star Chamber, Archbishop accompaniments. Many of them may be Bancroft, upon the advice of divines, held referred to the slow growth of political that adultery was only a cause of divorce science, and might be corrected by the à mensâ et thoro. application of sound principles of government; many may be attributed to the neglect of the religious and moral culture of an increasing population: but short indeed must be the sight of any man who would seek to correct them by applying to a civilized state the rude expedients of barbarism. (Adam Smith's Wealth of Nations, book i. chapters 1, 2, 3, with Notes by M'Culloch and Wakefield; M'Culloch's Principles of Political Economy, &c.) DIVORCE (from the Latin word divortium, a divertendo, from diverting or separating), the legal separation of husband and wife. In England, divorce is of two kinds: à mensâ et thoro, from bed and board; and à vinculo matrimonii, from the bond of the marriage. The divorce à mensâ et thoro is pronounced by the spiritual court for causes arising subsequent to the marriage, as for adultery, cruelty, &c.: it does not dissolve the marriage, and the parties cannot contract another marriage. [BIGAMY.] In fact it is equivalent only to a separation. The divorce à vinculo matrimonii can be obtained in the spiritual courts for causes only existing before the marriage, as precontract, consanguinity, impotency, &c. This divorce declares the marriage to have been null and void, the issue begotten between the parties are bastardized, and the parties themselves are at liberty to contract marriage with others. From the curious document preserved by Selden (Uxor Ebraica,' c. xxx., vol. iii. 845, folio ed. of his Works), whereby John de Cameys, in the reign of Edward I., transferred his wife and her property to William Paynel; and also, from the The history of the law of divorce in England may perhaps be thus satisfactorily explained. Marriage, being a contract of a civil nature, might originally be dissolved by consent; and probably the ordinary courts of justice asserted their jurisdiction over this as well as every other description of contract. At length, the rite of marriage having been elevated to the dignity of a sacrament by Pope Innocent III., A.D. 1215, the ecclesiastical courts asserted the sole jurisdiction over it. In the course of time the power of these courts was again controlled, and the sole jurisdiction for granting divorces for matter arising subsequently to the marriage was vested in the superior court of the kingdom, the House of Lords, where it was less likely to be abused than by the ecclesiastical authorities, who used to grant these and other dispensations for money. Marriage is now, by the law of England, indissoluble by the decree of any of the ordinary courts, on account of any cause that arises subsequently to the marriage; but divorce à vinculo matrimonii may still for adultery, &c. be obtained by act of parliament. For this purpose it is necessary that a civil action should have been brought by the husband in one of the courts of law against the adulterer [ADULTERY], and damages obtained therein, or some sufficient reason adduced why such action was not brought, or damages obtained, and that a definitive sentence of divorce à mensâ et thoro should have been pronounced between the parties in the ecclesiastical court. But this sentence cannot be obtained for the adultery of the wife, if she recriminates, and can prove that the husband has been unfaithful to the marriage vow; and further, to prevent any collusion between the parties, both houses of parliament may, if necessary, and generally do, require satisfactory evidence that it is proper to allow the bill of divorce to pass. The first proceeding of this nature was in the reign of Edward VI., and bills of Where the injured husband can satisfy divorce have since greatly increased. both houses of parliament, which are not bound in granting or withholding the indulgence by any of those fixed rules which control the proceedings of ordinary courts, a divorce is granted. The expenses of the proceeding are so considerable as to amount to an absolute denial of the relief to the mass of society; indeed from this circumstance divorce bills have not improperly been called the privilege of the rich. There is an order of the House of Lords that, in every divorce bill on account of adultery, a clause shall be inserted to prohibit the marriage of the offending parties with each other; but this clause is generally omitted; indeed it has been inserted only once, and that in alvery flagrant case. But it is not unusual for parliament to provide that the wife shall not be left entirely destitute, by directing a payment of a sum of money, in the nature of alimony, by the husband, out of the fortune which he had with the wife. By the divorce à vinculo matrimonii the wife forfeits her dower. [DOWER.] A Parliamentary return (354, Sess. 1844) gives the number of matrimonial suits instituted in each metropolitan and diocesan court in England, Wales, and Ireland, for the four years 1840-1-2-3; the number in the Court of Session, Scotland; the number of appeals before the Judicial Committee of Privy Council, or the House of Lords; and the number of divorce acts passed in the same four years. The following is an abstract of this re 1840 1841 · 1842 1843 5 In the Court of Arches the average_exthe average expense of 87 suits was 1201. pense of 32 suits was 1687.; in the Consistorial and Episcopal Court of London In appeals before the Judicial Committee the average expense of 6 suits was 5861; in appeals before the Lords (4 cases, all from the Court of Session, Scotland) the expenses varied from 231. to 531. The average expense (fees, House of Lords), of each act (27 acts) was 871. 16s. 10d. The causes admitted by various codes of law as grounds for the suspension or dissolution of marriage are various, and indicative of the state of society. According to the law of Moses (24 Deut. i.), "When a man hath taken a wife and married her, and it come to pass that she find no favour in his eyes, be cause he hath found some uncleanness in her, then let him write her a bill of divorcement and give it in her hand, and send her out of his house." After 90 days, the wife might marry again. But after she had contracted a second marriage, though she should be again divorced, her former husband might not take her to be his wife. About the time of our Saviour, there was a great dispute between the schools of the great doctors Hillel and Shammai as to the meaning of this law. The former contended that a husband might not divorce his wife except for some gross misconduct, or for some serious bodily defect which was not known to him before marriage; but the latter were of opinion that simple dislike, the smallest offence, or merely the husband's This is the opinion which the Jews genewill, was a sufficient ground for divorce. rally adopted, and particularly the Pharisees, which explains their conduct when they came to Jesus "tempting him, and saying unto him, Is it lawful for a man to put away his wife for every cause ?" (Matth. xix.) The answer was, "Moses, because of the hardness of your hearts, suffered you to put away your wives, but from the beginning it was not so." From this it is evident that Christ considered that the law of Moses allowed too great a latitude to the husband in his exercise of the power of divorce, and that this allowance arose from the hardness of their hearts;" by which we may understand that they were so habituated to the practice, that any law which should have abolished such practices would have been ineffectual. All it could do was to introduce such modifications, with the view of diminishing the existing practice, as the people would tolerate. The form of a Jewish bill of divorcement is given by Selden, Uxor Ebraica, lib. iii., ch. 24; and see Levi's Ceremonies of the Jews, p. 146. It is probable that the usages in the matter of divorce now existing among the Arabs, are the same, or nearly so, as they were when Mohammed began his legislation. An Arab may divorce his wife on the slightest occasion: he has only to say to her "Thou art divorced," and she becomes so. So easy and so common is that practice, that Burckhardt assures us that he has seen Arabs not more than 45 years of age who were known to have had 50 wives, yet the Arabs have rarely more than one wife at a time. By the Mohammedan law a man may divorce his wife orally and without any ceremony; when this is done, he pays her a portion, generally one-third of her dowry. He may divorce her twice, and take her again without her consent; but if he divorce her a third time, or put her away by a triple divorce conveyed in the same sentence, he cannot receive her again until she has been married and divorced by another husband, who must have consummated his marriage with her. By the Jewish law it appears that a wife could not divorce her husband; but under the Mohammedan code, for cruelty and some other causes, she may divorce him; and this is the only instance in which Mohammed appears to have been more considerate towards women than Moses. (Sale's Koran; Lane's Modern Egyp tians; Hamilton's Hedaya, and the Mishcat ul-Masábih; Selden's Uror Ebraica; and see the case of Lindo v. Belisario, 1 Hagg. 216, before Lord Stowell.) Among the Hindoos, and also among the Chinese, a husband may divorce his wife upon the slightest grounds, or even without assigning any reason. Some of the rules mentioned by the Abbé Dubois, as laid down in the Padma Purana,' one of the books of highest authority among the Hindoos, show their manner of thinking concerning the conduct of their wives. "In every stage of her life, a woman is created to obey. At first she yields obedience to her father and mother; when married, she submits to her husband and her father and motherin-law; in old age, she must be ruled by her children. During her life she can never be under her own control. If her husband laugh, she ought to laugh; if he weep, she will weep also; if he is disposed to speak, she will join in conversation. When in the presence of her husband, a woman must not look on one side and the other; she must keep her eyes on her master, to be ready to receive his commands. When he speaks, she must be quiet, and listen to nothing besides. When he calls her, she must leave every thing else, and attend upon him alone." And in the Hindoo code it is said, "The Creator formed woman for this purpose, viz., that children might be born from her." The reasons for which, according to the Brahmanic law, a man may divorce his wife, may be seen in Colebrooke's Digest of Hindoo Law, vol. ii. p. 414, &c., 8vo. edit.; and Kalthoff, Jus Matrimonii veterum Indorum (Bonn, 1829, 8) p. 76, &c. The laws in the several Grecian states regarding divorce were different, and in some of them men were allowed to put away their wives on slight occasions. The Cretans permitted it to any man who was afraid of having too great a number of children. Among the Athenians either husband or wife might take the first step towards dissolving the marriage. The wife might leave the husband, or the husband might dismiss his wife. Adultery on the part of the wife was apparently in itself a divorce; but the adultery, we may pre sume, must have been legally proved | husband from divorcing his wife on light first. The Spartans seldom divorced grounds. their wives; indeed the ephori fined Lysander for repudiating his wife. Ariston (Herod. vi. 63) put away his second wife, but it seems to have been done rather to have a son, for his wife was barren, than according to the custom of the country. Anaxandrides (Herod. v. 39) was strongly urged by the ephori to divorce his barren wife, and on his not consenting, the matter was compounded by his taking another wife: thus he had two at once, which Herodotus observes was contrary to Spartan usage. As the children of a Roman marriage were in the power of the father, and belonged to him alone, there was no difficulty in divorce as to this point. Whether the marriage continued to subsist or not, the children were alone at the disposal of the father. But a constitution of Diocletian and Maximian empowered a competent judge to declare whether the children should stay with the father or with the mother (Cod. v. tit. 24). In some cases, where the wife was to blame, as for instance if she had committed adultery, a sixth part of the dos might be retained by the husband. As to the form of divorce, it was necessary that there should be some distinct declaration of the intention of the husband or wife, or of both, to separate. In some cases, a written notice was delivered. The Lex Julia de Adulteriis required seven witnesses to the divorce, and a freedman of the person who made the divorce. One object of the Lex Papia et Poppaa, which, as well as the Lex Julia de Adulteriis, was passed in the time of Augustus, was to impose some restraint on divorces. The practice of divorce continued under the Christian Emperors, but subject to the observance of certain forms, and cerIn tain penalties. The common Roman term for Divorce is Divortium. It is said that the word Repudium, corresponding to which we have the word "repudiate," applied only to the dissolution of a contract of marriage (sponsalia), and not to an actual marriage (Dig. 50, tit. 16, s. 101): but Divortium and Repudium are sometimes used indifferently. Plutarch states (Romulus, c. 22) that originally the husband alone had the power of effecting a divorce, which may be true, but it was not so in the late period of the Republic and under the Empire. When the wife was in manu viri, a technical term that implied she was in the relation of a daughter to her husband, it is not easy to conceive how the wife could effect a divorce. other cases, it is easily conceivable. The essence of the nature of a Roman marriage was abiding consent, and if either party expressed a dissent to the union, it followed that it was at an end. The first instance of a divorce at Rome, according to Gellius (iv. 3), was the case of Sp. Cervilius Ruga, who put away his wife because she was barren. As to this story, see Savigny, Zeitschrift der Geschichthe Rechtswissenschaft, v. 269. Divorces were common at Rome in the time of Cicero, as we may collect from his writings; and Cicero himself divorced his aged wife Terentia and took a young wife in her place. The portion (dos) which the wife brought with her to support part of the matrimonial expenses, was as a general rule returned to the wife when she was divorced by the husband, or when they separated by consent: this condition tended somewhat to check a Among the antient Britons, it may be collected from the laws of Howel the Good that the husband and wife might agree to dissolve the marriage at any time; in which case, if the separation took place during the first seven years of the marriage, a certain specified distribution of the property was made, but after that period the division was equal. No limit was set to the husband's discretion in divorcing his wife, but the wife could only divorce her husband in case he should be leprous, have bad breath, or be impotent, in which cases she might leave him and obtain all her property. The parties were at liberty to contract a fresh marriage; but if a man repented of having divorced his wife, although she had married another man, yet if he could overtake her before the consummation of the marriage, or, as the law expresses it, "with one foot in the bed of her second husband, and the other out- | ground of adultery committed by the side," he might have his wife again. other; for outrageous conduct, or illusage; on account of condemnation to an infamous punishment; or to effect it by mutual consent, expressed under certain conditions. By the same code a woman could not contract a new marriage until the expiration of ten months from the dissolution of the preceding. The law of Scotland relating to divorce differs widely from that in England: there, a divorce à vinculo matrimonii is a civil remedy, and may be obtained for adultery, or for wilful desertion by either party, persisted in for four years, though to this a good ground of separation is a defence. But recrimination is no bar to a divorce, as it is in England. In the Dutch law there are only two causes of divorce à vinculo matrimonii, adultery and desertion. In Spain the same causes affect the validity of a marriage as in England, and the contract is indissoluble by the civil courts, matrimonial causes being exclusively of ecclesiastical cognizance. (Instit. Laws of Spain.) The law of France, before the Revolution, following the judgment of the Catholic Church, held marriage to be indissoluble; but the legislators of the early Revolutionary period permitted divorce at the pleasure of the parties, where incompatibility of temper was alleged. In the first three months of the year 1793, the number of divorces in the city of Paris alone amounted to 562, and the marriages to 1785, a proportion not much less than one to three; while the divorces in England for the previous century did not amount to much more than one-fifth of the number. (Burke's Letters on a Regicide Peace.) Burke further states that he followed up the inquiry through several subsequent months till he was tired, and found the results still the same. It must be remembered however that Burke wrote in the spirit of an advocate; that the period he chose was that immediately following the promulgation of the law, when all couples previously discontented with each other obtained divorces; and that if his calculations had fully borne out his statement, he would have given them in his pamphlet, which was written for a political purpose, and he would not have rested satisfied with indefinite allegations. It was generally admitted however that the licence was too great. The Code Napoleon accordingly restricted the liberty, but still allowed either party to demand a divorce on the On the restoration of the Bourbons a law was promulgated (8th May, 1816), declaring divorce to be abolished; that all suits then pending for divorce, for definite cause, should be for separation only, and that all steps then taken for divorce by mutual consent should be void; and such is now the law of France. In the United States, marriage, though it may be celebrated before clergymen as well as civil magistrates, is considered as a civil contract. The causes of divorce, and the facility or difficulty of obtaining it, are by no means the same in the seve ral States. The more general causes of a divorce à vinculo matrimonii are, former marriage, physical incapacity, or consanguinity; by the Connecticut law, fraudulent contract; and by the New York code, idiotcy and insanity, and either party being under the age of consent. Adultery is also a cause of divorce à vinculo matrimonii; and the laws of some of the States prohibit the guilty party from marrying again. If the husband or wife is absent seven years, or by the laws of some States, three years, and not heard from, the other is at liberty to marry again; and in some States, if the husband desert the wife, and make no provision for her support during three years, being able to make such provision, the wife can obtain a divorce. Extreme cruelty in either party is also generally a cause of divorce à vinculo matrimonii. In many of the States applications to the legislature for divorce, in cases not provided for by the statutes, are very frequent. In New York and New Jersey divorce is a subject of Chancery jurisdiction, from which, as in other cases, questions of law may be referred to a jury for trial. In New Hampshire, joining the religious society of Shakers, who hold cohabitation unlawful, and continuing in that society for three years, is sufficient ground for a |