this country now, with a rigour unknown in Catholic times; the various devices and refinements, which then afforded so many loopholes of escape from its severity, having been each and all put an end to at the Reformation. So that matrimonial iniquity, however flagrant and persevering, is at present subject to no other legal redress than a spiritual sentence of separation, which leaves the parties bound as before, except that they need not cohabit. But while the law is thus stinted in its remedy, the practice of Parliament (t) is more liberal; for it supersedes the law in particular instances, by passing special enactments in favour of those who make out a case strong enough for its interference, and who are rich enough to pay the price by which alone that interference can be purchased. The poor, nay even the moderately opulent, are excluded from the benefit of this truly aristocratic indulgence. In other words, justice is denied to the bulk of the Queen's subjects; whose long submission to this state of things is a conspicuous proof of the patient qualities which distinguish the English nation. Undue facilities in obtaining divorces are to be deprecated. But an unreasonable stiffness on the other side is contrary to justice, unwarranted by Scripture, and of the worst possible consequences to public morality (u). (t) For the practice of Parliament on Bills of Divorce, see Macqueen's House of Lords. (u) Our Right Reverend Prelates assent in Parliament to the passing of Divorce Bills. We have therefore the highest ecclesiastical authority for holding that marriage under certain circumstances may and ought to be dissolved. Then are those circumstances confined to the higher or wealthier orders of society? This LAW OF DIVORCE. SECTION II. HUSBAND'S RIGHTS WHEN COMPLAINANT. Property clauses in divorce bills. Divorced wife considered as dead. HUSBAND'S RIGHTS WHERE HE HAS BEEN THE SUITOR In all Divorce Acts it is now the settled usage of Parliament to introduce certain clauses, which may be called property clauses, in order to regulate the rights and liabilities of the parties after the nuptial tie has been dissolved. Let us therefore inquire, in the first place, what are the husband's rights under an act passed to free him from his connection with a wife whose misconduct has been established to the satisfaction of Parliament. After enabling the husband to marry again, a clause will be inserted for the purpose of providing that, should he so marry again, he will be entitled to all the rights of a husband as regards the property of his after-taken wife; and that she, on the other hand, will, as regards his property, be entitled to all the rights of a wife, precisely as if her predecessor, instead of being divorced, had departed this life. The object of this enactment is plain. The clause itself is usually expressed as follows: And be it enacted, that the said A. B. (the husband) shall be entitled to be tenant by curtesy of the manors, messuages, lands, tenements, and hereditaments of any such wife or wives as he may hereafter marry; and that such wife as he may so hereafter marry shall, if she survive him (unless barred by jointure or otherwise), been titled to dower, freebench, and thirds of his estate, as fully as if the said C. D. (the divorced wife) had died before the marriage of the said A. B. (the husband) with such future wife. This clause is not happily framed, but it has received the stamp of a long-continued legislative sanction. It would be safer and equally effective if expressed in general terms. Some attention to grammar too might, perhaps, be recommended. And there would be no harm in ascertaining what is meant by the word "thirds," as contra-distinguished from dower and freebench. If it refer to the widow's interest in her husband's land, it is a pleonasm. And if it refer to personal estate, it will be often inapplicable. The apparent intention of the next clause is to deprive the divorced wife of the rights which, (but for the act), would accrue to her as a widow out of the husband's property, in the event of her survivorship. The clause has the usual fault of being too special. It is as follows: : And be it enacted, that the said C. D. (the divorced wife) shall be, and is hereby, barred and excluded of and from all dower, freebench, and thirds at the common law, by the custom or otherwise; and all other rights, titles, inheritances, claims, and demands by common law or by custom, which she might claim by, or through, or in consequence of her marriage with the said A. B., of, in, to, or out of all and every or any of the manors, messuages, lands, tenements, or hereditaments, or other estates whereof or wherein the said A. B., previously to, and at the time of, his said marriage with the said C. D., was, now is, or since his said marriage hath been, or at any time hereafter shall or may be seised for any estate of inheritance, and all claims and demands into, or upon, or out of the personal estate and effects of which the said A. B. now is, or at any time hereafter shall be possessed of or entitled to. The last property clause in a divorce act, where the HUSBAND'S RIGHTS WHEN COMPLAINANT. Divorced wife would have widow. loses rights that accrued to her as HUSBAND'S RIGHTS WHEN husband is complainant, deprives him of all claim on any COMPLAINANT. property which may come to his divorced wife after the dissolution of the marriage. This reasonable object is sought to be attained by the following clause : Husband has no claim on divorced wife's after-acquired property. And be it enacted, that the said A. B. (the husband), and all persons claiming, or to claim, by, from, or under him, is and are, and shall for ever be, barred and excluded of and from all rights, claims, titles, and interests of, in, to, or out of, any real or personal estate which the said C. D. (the wife) shall or may at any time or times hereafter acquire, or become seised or possessed of, or entitled to, by descent, gift, devise, purchase, or otherwise howsoever, and that the said C. D. (the wife), her heirs, executors, and administrators, shall hold and enjoy the same for all her or their estate and interest therein, for her and their own use, benefit, and advantage, exclusive of the said A. B. (the husband), his heirs, executors, and administrators, and all and every other person and persons whomsoever, claiming, or to claim by, from, or under him. Now it is observable that while, by these clauses, the divorced wife is excluded from all claim upon her injured husband's property, whether enjoyed by him before the divorce, or coming to him after it; his claim upon her property is not excluded in the same general terms. The exclusion of the injured husband's claim upon the divorced wife's property, is limited to property acquired by her after the passing of the Act. This being so, has the injured husband a right to receive the rents and profits of the divorced wife's real estate during their joint lives; and is he entitled to be tenant by the curtesy, after her death, supposing that he would have been so entitled had there been no divorce? Of her chattels real, has the injured husband the same right of enjoyment and disposition as if the Act had not been passed? Or do they, when undisposed of at the date of the Act, go to the divorced wife as they would do by ordinary survivorship? Again, what becomes of her choses in action which, during the coverture, the injured husband had a right to reduce into possession? Does this right continue in him, or do her choses in action belong to the divorced wife in the same way as they would do in the common case of survivorship? And where her estates were, during the coverture, mortgaged for her husband's debts, is he, or is he not, on the passing of the Act, entitled to resist her demand of redemption and exoneration? These questions, whether solid or merely plausible, it would be well, and not difficult, to obviate hereafter by express and appropriate enactments. They are not merely fanciful difficulties; for some of them form the subject of an existing litigation. HUSBAND'S RIGHTS WHEN COMPLAINANT. SECTION III. WIFE'S RIGHTS WHERE THE HUSBAND HAS BEEN THE WIFE'S RIGHTS SUITOR FOR DIVORCE. THE subject of this section has been, in a great measure, anticipated by what is said in the last. WHEN HUSBAND destitute, It may, however, be remarked, that it is not the practice wife not left of Parliament to cast the divorced wife upon the world in a state of destitution; for there is in the House of Commons a functionary called the "Lady's Friend" (an office generally filled by some member distinguished for his attention to the private business of the House), whose duty it is to see that the husband petitioning for divorce makes some suitable but moderate provision for the divorced wife; which, however, she will forfeit on proof of her continuance in, or renewal of, misconduct. The wife is not, in express words, enabled to marry again during her husband's lifetime, the permissive clause |