QJarneU Hmoctattg Hihratg atljara, New ^ark FROM THE BENNO LOEWY LIBRARY COLLECTED BY BENNO LOEWY 1854-1919 BEQUEATHED TO CORNELL UNIVERSITY University Library arvi 11*1 The institution of marriage in }h%""^^^^ olin.anx 3 1924 031 172 319 a Cornell University y Library The original of tlnis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 924031 1 7231 9 THE INSTITUTION OF MAEEIAGE IN IBS UNITED KINGDOM: BEISO LAW, FACTS, SUGGESTIONS, AND By PHILANTHKOPUS. (J. A., LL.D.) liONDON : EFFINGHAM WILSON, ROYAL EXCHAJIGj;, ]879. AU rights reierved. ASA K. BUTTS 13 Dey St, New York. CONTENTS. Fbetaoe , . V Chapter I. — Preliminary 1 II. — Of the Nature of Marriage ...... 5 III. — Marriage and Love 15 rV. — Love and Morality 30 v. — Promises of Marriage 46 VI. — Qualifications and Conditions to marry . . . . 67 VII. — Formula of Marriage 83 VIII. — Irregular Marriages, Legitimacy, and Legitimation . . 110 IX. — Of the Property aid Liabilities of Married People . 128 X. — Conjugal Eights and Duties 168 XI. — Of Divorce in General 199 XII. — Divorce in the United Kingdom 237 XIII. — Development of which Divorce is susceptible . . 277 XIV. — Further and Ultimate Development of Divorce . . 309 XV. — Of Foreign Marriage and Divorce .... 335 Appendix A. — Draft Statute to amend the previous Acts passed upon Marriage, and matters connected therewith . . 369 B.— Statistics 382 C. — An Abstract of the Laws in Europe and America upon Divorce and Separations ..... 388 D. — Eficent and Bemarkable Cases of Divorce in England tried by the Special Court 406 E. — Law versus Nature and Reason in point of Paternity . 442 F. — Married Women's Property in Scotland . . , 445 A 2 PEEFACE. In introducing to my readers " The Institution of Marriage in the United Kingdom " I perform a some- what similar office to that of the chairman at a meeting called to hear a lecturer, whom he introduces without himself passing through the consecrated ordeal. The audience do not mind this seeming absurdity, expecting to have what is more substantial than formalities — a lecture which they may heartily enjoy or profit by. When I tell my public that I am about to address them upon marriage, they may at first yawn, remem- bering that hundreds of writings upon the same subject have preceded mine. But when I add that I intend to criticise the law upon marriage, they will very likely smile at my daring, and perhaps listen to my remarks in the expectation of becoming them- selves, in turn, critics of my criticism. I wish nothing better ; and should be flattered if I could raise a full discussion of the questions I propound. Old as the subject is, and handled as it Yl PREFACE. has been, it never loses its gigantic importance. Whether married or single, scarcely anybody fails or has failed to reflect upon the matter, and there are few, I take it, but would like to hear anything new that could possibly be said upon such a theme. If I were to announce that I had made any great discoveries in this much explored .land, people would with great reason demur and laugh at my pretension. I do not claim any such thing. But I may venture to say that there is novelty in the way I present old views, and that I not unfrequently draw new conclu- sions, which may startle those who, not being familiar with philosophy and logic, have never taken the trouble to see how their most simple principles work. As for the style of- my book, I have not intended to write exclusively or even mainly for the legal profession. I am sure it is in that quarter that I shall find least sympathy, because of the well-known reluctance and opposition to reforms which charac- terise that branch of the community. I address myself in preference, not to common readers,' but certainly to all those who may be able to understand ' and appreciate this sort of discussions. And here I have had to encounter and endeavour to overcome a special dif&culty. To keep alive through PREFACE. VU the book all the legal expressions and no others, would have made it both affected and unintelligible to such readers as I invite to examine into my views. But to exclude entirely those expressions would have been almost impossible without completely disfiguring and debasing the subject. Hence a medium which I have tried to maintain as well as possible. This course was the more necessary, since, to criticise the law, I had to expound it, and to expound it I was obliged to quote from statutes and from known expositors in their own words. I have done so freely, and with a sense of the gratitude it imposed upon me. In this wise the reader may rely upon at least a fair exposition, which may compensate for any difference between his views and mine with regard to the wisdom of standing legislation. Let my attempt to reform be deemed, as it is, bond Jide ; let ever so few, sharing my opinions, endeavour to spread them, and I shall not consider a waste of time the labour spent in preparing this volume.* LoiTDON, March, 1879. * Appendices E and r, which were not compiled early enough to be mentioned in their proper place, refer to pages 118-119, and to pages 147-161. THE INSTITUTION OF MAKKIAGE. CHAPTER I. PRELIMINAET. If we except industrial matters which appertain to the subsistence of individuals and families, there are probably no others that affect mankind in so serious and general a way as those relating to marriage and subjects connected therewith, for, in truth, they alike concern the two great instincts of man and of all animated nature, viz., sustenance and procreation. An individual who is once satisfied with the solution he has found to the questions of subsistence and family, reputes himself happy, and may take up at his leisure all other matters affecting his energies, such as politics, study, religion, &c. Hence arises the importance, recognised in all countries and at all times, of legislation in matters concerning the family, or in other words, marriage, with its antecedents, collaterals and consequences. An inquiry into its state or condition and the improvements of which it is susceptible appears to us so important an investigation, that we have been unable to resist the desire of pursuing it by means of the following pages, which spring from long meditation on the subject, from entire good faith, and a spirit essentially sympathetic. It is very probable that we may have fallen into grave errors, or that some of our conclusions may at B 2 PKELIMINARY. least be styled preconceived or exaggerated. Still •we would beg our readers to consider whether the surprise that some of our opinions will create may not be due in great part to defects of ordinary logic. Many views that do not meet with favour are simply the logical consequences of admitted principles ; and it would not be without interest to point this out in each branch of human knowledge whenever occasion should arise. In philosophy, for instance, it ia a truth that none to-day would venture to dispute, that the natural laws are general and constant ; yet how can we reconcile with this principle an invocation or prayer to heaven, which from its very nature admits the possibility of a change in those laws ? In like manner it is admitted as indisputable that every phenomenon is the effect of some cause prior to and distinct from the phenomenon, its effect. Nevertheless volition is put for- ward as the cause of actions, and yet has no cause itself. In courts of law, suicide is almost always attributed to temporary insanity, unless the would-be suicide escape death ; for in that case he is reputed sane, inasmuch as punishment is apportioned him. How often do the more fervent partisans of free trade fall into contradiction by admitting unjustifiable exceptions in an economic sense? And in the case of war we condemn it with our whole hearts, until some fine day when the demon of discord or of international zeal causes us to fancy our country in imminent peril, from which it becomes necessary to save her by war. And lastly, to cite an instance not less instructive tlian risible, do we not see religious sects clamouring each for toleration for itself, whilst attacking others without mercy t The contradictions in matters of legislation are not less flagrant, as we shall have but too frequent occasions to point out in the course of these pages. PRELIMINARY. 3 The matter which, they contain vDl therefore be essentially- practical, although our inferences may often widely differ from prevailing opinions. This very fact would therefore be a ground of opposition for the conservative spirit which distinguishes the English people— conservative, perhaps, more in the literal than in the political, monial or religious sense of the word. Nor will this be the sole source of opposition upon which we reckon. There are subjects upon which but few persons venture frankly to express their minds, and, among them, all that concerns marriage holds a place, it being connected with religion and conventional morality, where dissimulation or reserve merges easily into hypocrisy. So much the worse for the progress and triumph of truth. Fortunately, however, truth, in the way of pro- gress, is like the star of a certain constellation, towards which our planetary system is gliding without our being aware of it, and whither it will continue to glide, even against our will, if we could form any will upon such a subject. We have to wrestle likewise, in our endeavour to attain speedy reforms, with the legislative machinery of the Imperial Parliament, whose tardiness and obstructions have become proverbial ; indeed so evident even to itself, that a Select Committee of the House of Commons has been appointed to seek to amend its modes of proceeding. Even if the most urgent and useful of these reforms be adopted, there will still remain afoot permanent causes of dilatoriness for legis- lative measures of an ordinary character. The fact is that the Parliament of the United Kingdom has more than enough to do with questions of a purely national character ; and foreign affau-s, the army, the navy, finance, and other matter!?, take up a deal of time. Under this aspect — and we do not wish to consider it here B 2 4 PRELIMINARY. under any other — the pretension of the Irish Home Eiders might have some foundation if it were more clearly defined ; if, for instance, they proposed a complete autonomy for Ireland— not, certainly, because the British Parliament is ■wanting in the desire to consult the interests of the sister island, but besause it lacks material time and sometimes even local knowledge. When the question is looked at in this light, it is intelligible that the autonomy of Ireland might become a true privilege if the same prerogative ■were not extended to Scotland, perhaps to Wales ; and if, to complete the system, England ■were not divided into two or more sections, in the manner of its archiepiscopal dioceses, so as to form a true union of Federal States or Provinces. Such an arrangement would be the more logical and natural, as the British Parliament practically recognises the legislative independence of Scotland and Ireland, although it itself legislates upon each section whenever it is deemed advisable, not^withstanding that the special character of the laws thus promulgated is, in our opinion and on not a few occasions, absolutely wanting in foun- dation. Thus, for instance, in the very matters to ■which ■we intend devoting these pages we would remind our readers that Parliament, having been called upon fre- quently to legislate upon marriage, divorce, the property or goods of married people, &c., has never passed an Act for the -whole of the United Kingdoiii, but merely partial Acts for England and Wales, sometimes for Ireland, and very rarely for Scotland, a country which, as we shall shortly see, is greatly in need of reform upon such subjects. And why such a mode of proceeding is adopted we are at a loss to iinderstand. We can comprehend that in certain matters — such, for example, as the organisation of the municipal government of any section — ^it may be needful to make and PHELIMINABY. 5 pasd Acts of a local character j but as regards matters of a general nature, where the principles of convenience or abstract justice are the same, we are of opinion that any laws that are enacted should be general, and extended to the entire kingdom. Far be it from us to dream of proposing here a constitu- tional reform that should aim at a division of the United Kingdom into autonomous provinces having each a legisla- tive power. Not only would such a proposal be out of place, but we do not think there would be the slightest probability of popularising in this country that federative system whose inconveniences, not less than its advantages, are clearly patent to our eyes. But we cannot see why Parliament does not legislate generally and uniformly, on behalf of the three great sections of the kingdom, upon the matters which form the subject of the present work. Under all circumstances we are fully aware that a long time must elapse before the reforms we here propose are carried out, even if we succeed in producing a conviction of their neces- sity or convenience. But although we may have to wrestle with more than one obstacle, which will considerably lengthen the period of discussion, it is absolutely needful that a beginning should be made, and that is at least a glory to which we aspire. In order to give unity and precision to the reforms we venture to bring forward, we have summarised them in the draft of a Bill which, as may readily be understood, cannot . PROMISES OF MARRIAQB. Providence, which does not always allay his well-founded apprehensions, and is rendered permanently unhappv through not perceiving in time that his choice of a partner for life has been an unlucky one and the law not allowing him to alter his mind. Although no special act may be discovered which precisely lowers a betrothed in the opinion of the other, still the latter may have been drawn into the promise in a moment of excitement, cleverly prepared, and presently become per- suaded that the party selected had been so through a blind instantaneous passion, and not through a reasonable convic- tion, that the person who had obtained an indiscreet promise would render her lover happy when she became his wife. In arguiug against the action at law, now under investigation, the Dail'y News, in a leader of the 9th March, 1878, says, among other things : " In very many cases the so-called promise of marriage should never have been made, and it would be the height of folly to keep it. A woman of thirty- five entraps a boy of twenty, and by the time he could afford to marry she is old enough to be a grandmother. Is he to make himself wretched for life by such a union, or is he to be made ridiculous in open court and fined a heavy sum for a moment of boyish weakness ? There is a primdrfacie presumption against the character for feminine delicacy of a woman who brings one of these suits. Her action as good as proves that marriage with her must be miserable." A case tried in New York in 1864 before Mr. Justice Jones confirms in a noteworthy manner the foregoing remarks. Miss or Mrs. Caroline Brower, a seamstress, divorced from a Mr. Sheldon, and aged forty-one years, brought an action for breach of promise against a young and wealthy merchant, Mr. Ch. E. Flemming, placing her damages at $25,000. There appeared to be no other proof PROMISES OF MARRIAGE. 49 of the promise than the word of the plaintiff, according to which, -whilst she was waiting its fulfilment, she observed that the defendant avoided her, and to her great surprise she received one day a card of invitation to the marriage of Flemming with Miss Caroline Sandford. After this union had taken place Miss B. asked for and obtained an interview with Mr. F., whom she reproached, and from whom she obtained for reply that she was suffering under an illusion, since he had never promised her marriage. The defendant swore that he had never made such a promise, that Miss B. was constantly after him, had sat him on her lap, and led him on to kiss her, and that in fact she laid snares for him. Notwithstanding, the jury gave credence to the first story, and awarded the plaintiff $1,000 damages. Another case, which was heard at Devizes, in the West Circuit, on the 4th April, 1878, appears to us opportune for quotation, in justification of certain of our previous remarks. Mr. Eolton, a Cambridge student, made the acquaintance of Miss May, the sister of a college friend, and before three days were over found himself under a promise to marry her. He, however, broke with her some months afterwards, and being pressed to explain the cause, said that his intended was untruthful, a fact which endangered the confidence that ought to exist between husband and wife. The charge was indignantly denied, but as E.. refused all arrangement, an . action was brought against him. Meanwhile his father had died, leaving him £3,000, which, be it remarked, was his entire fortune. Although the judge, Sir James Fitzjames, summed up somewhat unfavourably for the plaintiff, the jury granted her £1,000 damages. K at once applied to have judgment stayed on the grounds "that the first juiy had unduly admitted certain proofs ; that their verdict was against the weight of evidence; that there had been a 60 PROMISES OF MAIlRIAGr:. release fi-oin the promise, and that the damages were ex- cessive." The Court of Queen's Bench ruled accordingly. We do not pretend to accept as indubitable the arguments upon which E. founded his breach of the engagement. But it is easy to understand that in such cases, and when, in fact, certain qualities are discovered which " endanger con- fidence between husband and wife," proof becomes exces- sively difficult ; and moreover, when it is not a question of impure actions, mere qualities, however adverse they may be, do not authorise the breaking off an engagement. And how many disappointments may not be experienced after an engagement is entered into ! It is true that neither men nor women should lightly make such promises ; still many do, and it is but little use to ignore human nature. We are not blind to the fact that occasionally the conduct of the party breaking an engagement, generally the man, is most blameworthy, and we shall seek occasion later on to do justice to such cases. But the greater part of them spring really from legislation on the subject, and would never occur if that legislation were reformed. In countries where there is no legal action for breaches of promise the betrothed con- duct themselves with reserve, foresee constantly the pos- sibility of a rupture, and so far from spreading abroad news of their engagement, keep such intelligence a secret until the moment approaches for converting it into a marriage tie. By such means they not only feel less poignantly an un- expected breach, but avoid in great part the ciiticism or censure of their relations, friends and acquaintances. Second. — " If one of the parties be of full age and the other a minor, the former binds himself and may be compelled to fulfilment ; but the latter is not so bound, nor can be so tinless, on attainment of majority, the promise be ratified." It is a general rule in all contracts, and those connected PROMISES OF MABRIAOE. 51 with betrothal are no exception, that the obligations con- tracted are bi-lateral, and not on one side only j that is to say, both the contracting parties bind themselves, for other- wise there would be no contract at all. But it is just the contrary in the case of a person of full age and a minor who have engaged to marry, and we cannot see the justice which determines this exception. If in any other contract the minor is bound when holding the permission of the father or guardian, but not otherwise, why in the matter of espousals is the minor to be always free whilst the other party is bound ] The cause must lie in the determination to protect marriages. The reasonable principle would be to declare that promises of marriage where a minor is concerned shall be always null. To bind only the party who is of full age is unjust ; to bind the minor would be cruel. Third. — " It is not necessary that the engagement be express, or even in a certain form . It is sufficient if the reciprocal promise be shown or appear by letters, words, or even actions indicating the intention." It is easy to under- stand how many errors and how much injustice may be committed in certifying to acts which hint at a tacit promise to marry. Mere attentions dictated by politeness, or mere acts of flirtation, may betray into an engagement some thoughtless individual who never even dreamed of marriage. The difficulty of estimating the significance of certain acts in a matter of this nature is frequently made evident in the cases which are brought before the Courts. Fon/rth. — Through a departure, difficult of explanation, the rules on evidence which govern in these actions are not identical with those obsei'vable in others. Formerly the parties were prohibited from giving personal testimony; they are now permitted, but are not compelled to do so, and this leads to trickery. "As the new law rendering E 2 62 PROMISES OF MARRIAGE. plaintiffs and defendants competent and compellable to give evidence does not extend to actions for breach of promise of marriagOj the evidence on both sides, as might be expected, has a tendency to be extremely ambiguous and imperfect." " In order to fix a man with liability, the promise or acceptance need not be in words, but may be in acts and behaviour. But if a woman be defendant in the action, there must be distinct evidence of a promise or consent on her part." " The contract by deed is so formal and solemn that it is not necessary in this, as in the ordinary contract above treated of, that there should be any consideration for the covenant of one party or any mutual engagement binding upon both parties. So that if one party covenant by deed to many the other, the former will be bound, though the latter do not execute the deed , or enter into any correspondent covenant." — {The Law of Hushand and Wife, " Wilson's Legal Handy Book," by James W. Smith, Esq., LL.D.) In continuation of the last paragraph quoted, the author recognises the danger of such a doctrine to women inexperienced in business and open to deception on the part of speculators who take advantage of their affection. He, however, considers as invalid a clandestine and unilateral deed wrested from a woman ; but it would be better to abolish entirely the principle of such an obligation binding upon one party only, whether it be verbal or in writing, and whether the party be or be not a minor or a woman. Fifth. — " To found an action for damages on a breach of promise of marriage it will suflBce to have the evidence of the plaintiff, corroborated by other important proof." In the year 1877 there was a case tried wherein the plaintiff brought forward, in addition to her own evidence, the testi- mony of a sister, and obtained a verdict with, if we remember rightly, ;£1,000 damages. We do not for a moment in- PROMISES OF MARRIAGE. 53 sinuate that these ■women committed perjury ; it is, however, certain that the defendant denied his having ever promised marriage, and that if not in this, at least in other cases, it is very possible that two persons, more especially when kindred, may conspire against a third, charging upon him an unfulfilled promise of marriage. And the danger is the, clearer, as it is not necessary for the witnesses to depose otherwise than to facts which in their opinion prove the engagement or intention to marry. In other terms, the qualifying of such facts is left almost entirely to the wit- nesses, and we may be pretty sure that many of them will not be found too scrupulous when, under the tempting influence of an easy guerdon on behalf of a friend, or when they may probably have to share the profits. Sixth. — " If no fixed time be appointed, the promise must be fulfilled within a reasonable period." The expression "a reasonable period " is a very vague one, and it is exceedingly difficult to estimate the circumstances on which it may de- pend. A man may be compelled to marry if his promise be held too long in its fulfilment, although he may not in his opinion have sufficient means to support a family in the position he would desire. " If the parties are young, a long engagement will be valid in law ; but if they are elderly, it will be void, as being in restraint of marriage, and therefore- regarded by the law as contrary to public policy." — (Wilson's Handy Book.) What is meant by young and what by long ? Here the qualification of the terms is left to the jury, and it is one of those cases which, as we shall observe hereafter, are not really within their province, and need not be sub- mitted to them, as it is not a question of proof, but one con- cerning the controverted facts themselves. Seventh. — " When the parties proceed tacitly as if the encagement had been broken ofi", it must be so reputed, and 64 fhouises of marriage. the demaud for its fulfilment be refused." Here we have a vast field for conjecture and arbitrariness. Few indeed will be the cases in which it may be confidently asset ted that both parties have abandoned their right, whilst still re- maining unmarried. The very fact on which might most commonly be based the presumption, viz., the not making the claim, is swept away by its presentation, against which therefore it is not adducible. Whatevei-, moreover, may be the persuasion and conduct of one of the parties, there are facts which imply a tacit rescission, and which should very naturally imbue the other with a similar belief and authorise him or her to take tlio same course. Such, for example, is the case of Jones v. Fildew, tried on the 2ud May, 1878, before the Court of Common Pleas. Mr. Daniel Fildew and Miss Amelia Sophia Jones, both of mature age, and the former a widower with several children, were engaged and on the point of marriage, when Miss J. thought it advisable to have a settlement, in order to reserve to herself the proceeds of her earnings in a little business which she carried on. She employed counsel to drav/ up the documents, had trustees appointed, and only communicated the fact to her intended husband through those trustees, who informed her that if he was no party to the arrangement he might annul it. The draft settlement being prepared, Mr. F. discovered therein two clauses which displeased him : one as to Miss J's. relations succeeding to her little fortune in a certain event (we presume the ab- sence of children, issue of the marriage) ; and another whereby the children of the marriage, if any, were to be brought up in a particular way, the trustees being authorised to see that the provisions were carried out, and even to in- tervene for that purpose. Mr. F. objected, mainly to the second clause, which he PROMISES OF MARRIAGE. 55 called an opprobrious one, as it implied want of confidence in himself; that he had brought up respectably a large family, and was to be now subject to the control of two quite youug men, such as the trustees were. Miss J. ap- peared disposed to ha^e the clause altered ; as a matter of fact, however, it was not so altered, and the draft settlement remained intact. Under these circumstances Mr. F. wrote to his intended : " As the point in dispute shows no likeli- hood of being settled, I presume that I may consider the entire matter as at an end ; " and shortly after Mr. F. mar- ried another woman. Both the jury and Mr. Justice Grove were of opinion that the engagement was not broken by mutual consent, and that the plaintiff had always been ready to marry the defendant, and therefore condemned him to pay her £300. We have no doubt but that the plaintiff per- sisted in , marrying the defendant, but her terms made the union practically impossible and of necessity induced a tacit rescission. She insisted upon a settlement which could not be carried out without the consent of the other party, by whom the terms were not approved. In such a case a pre- text for a rupture miglit possibly have been sought ; but it is just as possible that the party acted in pure bond fides and from the most honourable motives. The Court followed the literal tenour of the law, but it is precisely that tejiour which we consider vicious. Eighth. — " The fulfilment of a promise of marriage may legally be refused, provided any prior act be discovered or any act subsequent to the promise occur which, as being im- putable to the other party, lowers his or her character, or may frustrate the just hopes of the party breaking the en- gagement." Both such acts may be very numerous and differ from each other in kind and in degree. It would not be possible to examine here even a tithe of them ; but, with 56 PROMISES OF UARRIAOE. few exceptions, they are wanting in j)recision, which gives the jury power to qualify not merely the proof thereof, but the very acts themselves —a task which juries do not usually perform very well. Let us at least consider certain exam- ples taken from Wilson's Handy Book : — (a) '' Any fraud practised by one party vipon the other as to what was considered material between them would be a proper reason for breaking off the match.'' If there had been a previous understanding as to what should be con- sidered important and necessary for the subsistence of the engagement, the matter would be simply one of an express condition, the want of which would authorise the rescission of this contract, as it would any other whatsoever. In the ab- .sence of this understanding, it would be for the jury to deter- mine the importance of those matters on which the fraud hinged. A woman who states her fortune at £100,000, which upon investigation is found to be only £50,000, or even less. A stranger who introduces himself as a marquis or duke, and who turns out upon examination to be nothing more than a tailor or a barber. Are these or are they not frauds of sufficient magnitude to justify a breach? (b) " If a unanimity of opinion, for instance, on religious subjects had been insisted on as necessary either by the man or his intended wife, a want of such unanimity dis- covered after the engagement would be good ground for one party to break off the match if the other had concealed his or her views.'' What constitutes unanimity of opinion on religious subjects? We can readily conceive it-to be want- ing as between a Protestant and a Catholic ; but we are not so sure about its being wanting — for the effects now attri- buted to it — between two members of the Established Chiirch, one of whom is a Ritualist and the other is not ; or between two Catholics, one of the old and the other of the new PROMISES OF MARRIAGE. 57 standard. The divergence between certain sects, the TJni- taiians, for instance, is so slight that a jury might well be at a loss to determine whether it is or is not substantial. (c) " If a man who had appeared and had been repre- sented as a man of steady habits, after the engagement embraced a drunken, dissipated, or profligate career, and in fact showed that he was not the man he appeared to be, that would no doubt be a defence for the lady if he brought an action against her for breach of promise. But the law would not require that a man should preserve the same rigorous propriety as would be expected in a woman." What are the limits of toleration that should be laid down in respect of the man's conduct? What is to be held as constituting dissipation or profligacy on his part ? Although the woman's liberty is more reduced, it would not be easy, even in her case, to define what should be considered as improper in her behaviour to the extent of authorising the man to break off a match. It would depend, we take it, on the personal feeling and perchance the fancy of each individual juryman. (d) " But though a fraud or a concealment of material circumstances practised by one party on the other will enable the latter to put an end to the engagement, yet no such right arises merely because a misfortune takes place, which entirely alters the position of the parties. For example, the loss of personal beauty or of fortune, or the death of an influential friend, would not give either party the right of breaking off the match." There is not the same ambigviity or difficulty in the proposition here laid down. The difference of the facts in respect of their kind is well established, and there is no obscurity whatsoever in respect of the degree of each fact. But we do not admit the justice of the general principle. A man who might perhaps be indifferent as to whether his 58 PROMISES OF MARRIAQB. promised bride's fortune were exaggerated or not, might on the other hand care a great deal about her loss of personal beauty through some destructive disease ; or, on the other hand, if a cliange of feature did not affect him so deeply, he might attach great impoi-tance to the death of a relative of his intended, on whom great hopes had been raised, not merely of great advancement, but of positive means of subsistence. A woman who might give but little heed to the discovery of certain bacchanalian proclivities on the part of her future husband, might deem of vital importance his having failed in his business ; whilst another, who would hear with patience the intelligence of a slight infidelity on the part of her lover, might revolt against the idea of being compelled, through events subsequent to her engagement, to reside after her marriage in a remote district or foreign country. Ninth. — Before 1753 an unconditional promise of marriage had to a certain extent the efficacy of an actual marriage. Any subsequent union with another person was null and carried with it the illegitimacy of the oflfspiing, whilst those who knowingly contracted it were reputed adulterers. But an Act of that year (Lord Hardwicke's Act) " laid down as sole compulsory effect of the breach by one of the parties only, the right of the other party to make a claim for damages." It was a step in the direction of liberty against the incon- siderate jirotectionism of the institution of marriage. The damages to be awarded in such actions are to be measured by the loss which the plaintiff (male or female) has sustained in a social and pecuniary point of view, by being disappointed of the marriage ; and juries are always informed that the law does not intend the damages to be a solace for the plaintiff's injured feelings." — (Wilson's Handy Book.) In another book, entitled " Every man his own Lawyer, by a PROMISES OP MARRIAGE. 59 Barrister,'' where speaking of breach, we find the adJitional remark that " an. action will lie and compensation in damages may he obtained, in proportion to the fortune or means and other circumstances of the party breaking the promise." That the compensation is not intended to be a solace for injured feelings is a mere theory of which juries make little account, they rather putting themselves in the place of the jilted plaintiff, and imposing upon the party they deem liable a true penalty for his cruelty. Such at least may be consi- dered the case in the matter of Kriowles v. Verschoyle, tried on the 20th of June, 1877, before the Court of Common Pleas in Dublin. Mr. Th. Knowles, a butcher of that city, f-ngaged himself to Mrs. Verschoyle, a widow residing in Ireland, and who was said to be a countess of one of the Con- tinental countries. After taking together certain journeys to remove the obstacle to the marriage, arising from difference of religion, they at length arrived in London, and put up at an - hotel in this city, where Mr. K. remarked a certain change in Mrs. Y's. manner. She explained to him that her friends ridiculed her projected union with a tradesman, although it would not appear that she gave up the match. Shortly afterwards K. met at the hotel two of the said friends, and having arranged with them about a settlement which K. agreed to make on behalf of his future wife, she left the hotel with her said friends to seek, as they said, a solicitor; but they never returned, though K. waited for them for the space of ten days. An action was brought by him in the said Court, to which there was no defence, and the jury pronounced a verdict in favour of the plaintiff with £15,0 damages. On what ground was any compensation given 1 Not because he had lost a fortune, as Mrs. V. was not rich, and not even so well off as K. Not either because he had failed to gain a high social position, inasmuch as Mrs. Vs. 60 PROMISES OF MAEKIAGE. was never an object of investigation, and K. would have had to abandon his shop if he desired to mix with his wife's equals ; so that what he might have gained on the one hand he would have lost on the other. The compensation there- fore was a penalty that Mrs. V. had to pay as a salve for K's. wounded feelings, the sensitiveness of his nature being further proved by an action for libel he brought against the Irish Times for having commented on the case in ridiculous terms. If the fault were with the jury, it must be admitted that at least the nature of these actions lends itself to their commission. At the first blush there is a certain contradiction between the two texts above quoted relative to the degree of pro- portion in the compensation for damages according to the presumptive loss of the plaintiff or the means of the defendant. It is not so, however, in fact, or at least the jury know very well how to conciliate the two interests, reasoning, probably, on the supposition that the greater the fortune of the defendant the greater the loss sustained by the plaintiff through the bieaking off of the engagement. The verdict of the jury in the case oiMay v. Rotton, hereinbefore quoted for another object, may be looked upon as a model in this respect. The defendant's ybriMJie amounted to £3,000, and the compensation he was made to pay was £1,000, as if E.'s future wife should be entitled, from the mere fact of her becoming so, to one-third part of the capital of her husband, which capital would scarcely have sufficed, under the most able management, to maintain the family of a village curate. This facility for acquiring a sum of money, occasionally not inconsiderable in amount, cannot do otherwise than in- fluence the mind of certain unscrupulous individuals so as to induce them by artifice, cajolery, and even caresses, to obtain from some inexperienced young man or woman, in a moment PROMISES OF MAREIAQE. 61 of enthusiasm, a promise of marriage which must in any case be profitable. Men and women would be much more circumspect in their ordinary behaviour towards each other if those possessed of a speculative character were wanting in this resource — if they knew, for instance, that the breach of a promise of marriage were judged solely by social and religious sanctions. And being more circumspect, the occasions of contrariety would be far less frequent, as en- gagements would be wanting in the ingredient of " art," and would be of a more solid and durable character. Nor would this precarious and even dangerous state, under more than one aspect, hovering as it does between an engage- ment and the actual marriage, be so disproportionately pro- longed, a prolongation which has much to do with the loss of youth, beauty, and even good name, which, valued in money, is fostered in. law, but upon which the parties interested would always have their attention fixed when such compensation was wanting. Upon this we based our argu- ment when, at the beginning of this chapter, we averred that the disappointments and contrarieties suffered at the present day, and which induce the bringing the action for breach of promise, are to a great extent due to the very law which allows it. Whenever one of these actions exhibits features of an odious character, there is scarce a person but condemns them; and it is probable that the jury, evading the law, sometimes reject it even when not illegal. A case of this kind occurred at the beginning of March, 1878, and was tried in the competent court in London. A Mr. Heap, second master of the grammar school at Caistor, and a Miss Heap, the daughter of an attorney in the neighbourhood, in 1872 made a written contract of betrothal. According to this deed, if the lady did not fulfil her promise by the 62 PROMISES OF MAnRIA.OE. 1st January, 1875, she was to pay to Heap one-third part of what she inherited from her parents. If she still continued reluctant, she was to forfeit besides, £20 at the end of 1875, £40 at the end of 1876, and so on, doubling the sum, which would have yielded at the end of ten years moro than £10,000. But Heap, finding it, doubtless, dangerous to wait so long, brought his action at the date first above mentioned. The lady, apprehensive that her letters to Heap would be published, which would undoubtedly have been the case had the suit gone on, determined to compromise the matter privately by paying Heap a round sum of £1,000. It is not possible to presume how so singular a contract would have been interpreted had the trial been allowed to take its course. There are, on the other hand, cases where all the sympathies are in favour of the plaintiff ; such, for instance, as where direct pecuniary loss has been sustained, and the more so if the defendant has been wanting in generous feeling. A very mitable example of this phase was likewise brought before the London Couii on the 20th March, 1878. A Mr. Hutchings, a chemist, and Miss Allen, a school- mistress, were under a long engagement. In the course of it the lady, with the help of her mother and sister, supplied Hutchings with pecuniary resources, to enable him to com- plete his studies as a medical man, which moneys he subse- quently repaid. Miss Allen, with a view to her marriage with the plaintiff, gave \vp her school and pi-epared htr tioussean. But Hutchings, being then in the employment of a country doctor, mai-ried the daughter of his principal, who, not unlikely, would make him a partner in his practice. The plaintiff therefore, not only had to suffer her dis- appointment, but the positive loss of the revenues of her school and her wedding trousseau. There was no defence to PB0MISE3 OF MARRIAGE. 63 the action, uor did the defendant even put in an appearance, but the juiy could not agree as to the amount of damages to award her. In commenting upon the foregoing case, and, in connection •with it, Mr. Herscheli's proposed Bill for the abolition of such actions as we have now under review, the Daily News of the 24th March, 1878, says : " There undoubtedly are cases when a very definite pecuniai-y loss, quite independent of the mere pecuniary advantages which a wife as such would receive, is sustained by the deserted party, and as the whole cast of thought of a lawyer leads him to respect a definite contract assuring definite advantages, it is not wonderful that as applied to these cases at least Mr. Herschell's proposal should be regarded as too sweeping. In noticing it before, we have ourselves suggested that these cases of definite loss should be considered apart, and such a case seems to have occurred in A V. //." The answer to this, however, appears in the same article, where the writei' expresses himself as follows : — " On the other hand, the loss of the school, given up at the defendant's instigation and with a view to his fulfilment of a promise which he failed to keep, is a matter in which, as the promoters of a change in the law would say, the argument goes exactly the other way. In no other case would the law fail to give a remedy for such a complaint, and there can be no possible reason why it should fail to give it in this. If there had been no promise of marriage between Mr. H. and Miss A., and the lady had been induced to inflict upon herself a pecuniary loss to be compensated by some advantage which he contracted to give her, the breach of the arrangement should not have been allowed to pass with impunity. Why, therefore, should it be allowed to pass with impunity here ? " 6i PROMISES OF MARRIAQE. la fact, any definite loss caused by one person to another must be mdemnifi.ed by tbe former, and not only so when arising from an unfulfilled contract, but even where no contract preceded. Such is the principle both of law and of equity, and it renders unnecessary the establishing any exception whatsoever to the abolition of actions for breach of promise, but at most the declaring as coming within the general and common losses that should be indemnified those which, being computable, may spring from such breaches. Nevertheless it is far preferable not to lay down any express exception, which might be susceptible in practice of an amplification incompatible with the new principle. Be it observed that the injury here referred to is a positive loss, caused not by the breach of the engagement, but by a prior event imputable to the party that does not fulfil the promise. The party subjected to the loss suflFered it before- hand, but knowingly and of free will, in consideration of the marriage looked forward to as a compensation. Failing this, the loss remains subsistent and should be compensated by the party causing it But this can be obtained by an action founded in equity. What the action for breach of promise of marriage seeks and obtains at the present day is, compensation for the negative injury presumed to be caused by the want of the marriage, to which is assigned — perhaps without reason — a certain importance. There is therefore a great difierence between the two cases. We ourselves entirely agree with Mr. Herschell, and think that actions for breaches of promise of marriage are injurious and should be put an end to. If we are not mistaken, they do not exist, at least in the form they take here, elsewhere than in this country and its actual or previous colonies. On the European continent they are either expressly PBOMISES OF MARRIAGE. 65 abolished or have fallen into such desuetude that they no longer form a part of the legislation enforced by the tribunals. We do not doubt but that they will one day disappear from these islands also ; still, as our national character is averse to sweeping reforms and prefers arriving at a fixed goal by suc- cessive stages, each of slow progression, should the Bill now pending before Parliament be rejected, it would be possible to amend it by another that would at least diminish the grave inconveniences at present felt through the actual state of the law. We would, for instance, propose : — (a) First of all, and as a measure of rigorous necessity, that no promise of marriage should be biuding on either party, unless shown by a formal deed wherein both parties mutually engage them- selves ; for although this precaution allows other dangers to subsist, as we may see from the case of Heap v. Harris, it at least suppresses all those which spring from doubt as to the reality of the promise. (6) That no contract to marry, whereto one of the parties is a minor, should be binding upon .either of them : such promises should be held as neither made nor accepted, (c) That the time within which the engagement is to be fulfilled should be expressed, and should never exceed a twelvemonth. The party who cannot fulfil id before does an evident injury to the other, who loses time and opportunities to become settled, and the law can to a^ great extent prevent this by insisting upon a term that shall not be too long, (d) That the sum should be stated which, by way of compensation or fine, the defaulting party ought to pay to the other, if disposed to keep the engagement. In this way the debt would become the same as an ordinary debt, arising out of an ordinary transaction, free of all doubt and question. 66 PROMISES OF MARRIAGE. Even with the foregoing reform there would still subsist the evils arising from fraud or abuse, want of foresight or repentance on the part of one of the lovers, without reckoning the chance of suicide, as occurred to a Mr. White, who preferred death to one of those ridiculous or unseemly trials, authorised under the present system. And Mr. Herschell would, ten years later, have a fresh opportunity of bringing forward his Bill, whose final success will scarce admit of doubt. With the law as it stands, taken in con- junction with divorce, the action for breach of promise stands upon the horns of a dilemma. If divorce be difficult, as it is at the present time, the absolute want of liberty to many until the very moment of the ceremony is cruel ; and if divorce be easy, as we hereafter propose to have it made, the obligation to fulfil a promise of marriage becomes nugatory. quALiFicATiosra and conditions to marry. 6T CHAPTER VI. QUALIFICATIONS AND CONDITIONS TO MASRY. In view of tlie social welfare, the law requires certain qualifications in the person of those who intend to marry, and certain conditions which they must comply with, independent of the ceremony which constitutes the contract. The qualifications are essential to the validity of the marriage, and when absent there is a disability in the person. But the conditions we allude to are not essential, and when omitted through fraud or any other circumstance the marriage contract is not invalidated. The qutilifications and their corresponding disabilities are of two kinds : first, absolute, which refer to all marriages with whomsoever contracted ; second, relative, which only refer to a man-iage between certain persons. The absolute qualifications are connected with the physical power, the free will of the contracting parties, and their freedom from previous bonds. As against t;ie physical power there are these disabilities: (a) want of puberty, i.e., of the age of fourteen years in the man and of twelve years in the woman ; (6) impotence, or inability to procreation. There is no free will in thB following cases : (a) violence sufficient to induce to an act otherwise refused ; (5) insanity, or wanting in right reason ; (c) error of one consoit in regard to the person of the other. And the third disability attaches to those per.sons who are linked by a previous mairiage not dissolved by death or divorce. 68 QUALIFICATIONS AND CONDITIONS TO MARKT. The relative qualifications point to relationship, there being a disability resulting from consanguinity or affinity ■within certain degrees. As for the conditions, there are two not immediately connected with the ceremony of marriage, viz. : (a) the permission of parents or guardians when one of the spouses is a minor ; (b) the residence of the parties within the district where the marriage is to take place, for a certain number of days previously. In a general sense all the qualifications, or most of them, are founded on philosophical grounds, and we have nothing here to object to them. What we have to say in regard to the ab.-olute qualifications and to the conditions will be stated further on, as it is somewhat connected with the following chapter. For the present we must go into some details about the relative disabilities, in order to fix them with precision. These impediments (as they used to be named) were very numerous according to the canonic law as it stood in England until about 1540 ; but many of them were dispensed by the Pope or his delegates, as is yet the case in several Koman Catholic countries, by paying a fee ; and this practice was one of those which attracted most censure against the Pontificate by the Protestants at the time when the ontcry-for a Reformation began to be heard. It was forcibly argued that if the impediments were necessary they should not be dispensed, and if unnecessary they ought to be supi ressed. And in fact some were virtually suppressed in EnglHnd, that had been a matter' of dispensation, by several statutes which restored the Levitical precepts (called the law of God). Among those Acts there still subsists the 32 Hen. 8, c. 38, which, having been passed after others wherein mention had been made of the for- QUiLIFICATIONS AND CONDITIONS TO MAERT. 69 bidden degrees of relationship, only refers to them aa a whole. It is necessary, however, to look at those precepts in their proper light of a mere civil law, subject to reform as if thoroughly passed by Parliament. As the Israelitish government was theocratic, the law we are now discussing must be regarded as both religious and civil, a distinction which among the Jews was out of place, whereas it is important in modern countries and times, whose governments are limited and secular, besides being exercised on subjects who profess various religions. Mariiage being a mere civil contract in England, the Levitical law, rendered binding as afoi-esaid by statute, is a mere civil law. But even regarded as a religious law, it would not bind the civil power of a State wherein various religions are professed, to the extent of restraining its action when legislating on matrimonial disabilities. It would bind the conscience of those who reverence it, and that and no other would be its effect. We find in accordance to our manner of viewing the question the following extract from Blackstone (Kerr) : " The ' civU ' disabilities, 'among which may now be numbered affinity and consanguinity,^ are those which are created, or at least enforced, by the municipal laws, and though some of them may be grounded on natural law, yet they are regarded by the laws of the land not so much in the light of any moral offence as on account of the civil incon- veniences they draw after them. These • civil ' disabilities make the ' contract ' void ah initio, and not merely voidable." There was a time when some Christian sects, subsequent to the Reformation, held the ancient Jewish law to be per- petually binding, even regarded as a social institution. Hence Luther and Calvin considered the penalty of death to 70 QUALIFIC.VTIOKS AND CONDITIONS TO MARRY. be applicable to adultery, as imposed by the books of Leviticus and Deuteronomy ; but we are not aware that they made it extend to less heinous cases, in which the ancient law also imposed it : as that of a woman who marries, passing herself off as a virgin without being so ; copulation of a damsel betrothed in marriage with any other man than her betrothed ; carnal connection of a man with his daughter- in-law ; stubbornness of a child towards his jjarents ; and many others, which would be too numerous to quote. From the same pi-inciple arose the obligation of the seducer to marry the virgin with whom he had carnal con- nection, according to Deutei-onomy xxii. 28, 29, which imposed on him the like obligation (even prohibiting him ever to separate himself from his wife), in addition to paying a sum of money to the father of the girl ; and since all these provisions have at length disappeared from our modern laws, it seems evident that they are not regarded as obligatory, at all events on governments. Even in the very point now under notice, a change has taken place. The law that governs us in the matter of impediments to marriage by reason of relationship is not exactly the Levitical law restored by Henry VIII. A rule prevails now which it has been in vain attempted to reconcile with the Levitical law, though it does not differ therefrom by defect^ but by excess of prohibitions against carnal connection. The law, as practised in this country, ia the ancient canonical law somewhat curtailed and coupled with the computations of the degrees of relationship according to the civil (or Roman) law. The canonical law imposed numerous prohibitions contained in certain queer Latin verses commencing thus : " Error, conditio, cognatio, -crimen, ia the first place, fall on the husband, who by his future earnings is to meet them, unless he should be physically or mentally incapable of work. XIV. Should the wife be able to undertake business or labour of any kind whatsoever, or should she derive remune- ration fiom her industry, then she may pursue any calling subject to the approval of her husband, but not otherwise, should he provide sufficient means to defray the family expenses ; but in the event of his not providing sufficiently, the wife shall have the right to employ herself in such way as she may be able, without neglecting her domestic duties, and shall be bound to do so, subject to the same restriction, when the deficiency on the part of the husband arises from his inability. XV. No portion of the wife's property is transferred to the husband by virtue of the marriage. Each consort shall possess the free and exclusive right to dispose inter vivos and by will of his or her property or acquisitions of any kind whatsoever, saving the obligation referred to in the two preceding clauses ; but both consorts being of age, one may intrust to the other the administration of his or her pro- perty, by means of a special power of attorney, revocable at any time. The agent is to be held responsible to his or her consort giving such power, or to his or her successors, in like manner as if the constituent was a stranger. XVI. The wife being of age, may of herself transact any kind of business wherein she is judicially or extra- judicially concerned. In matters of an official character, whether judicial or otherwise, the husband may represent her, without express authority, when she does not object thereto. 374 APPENDIX A. The wife sliuli be prohibited : 1st, From forming com- njercial or industrial partnerships with particular persons without the husband's a2)proval; 2nd, From following any pursuit calculated to interfere with the proper discharge of her dom^estic duties. XVII. By the fact of the marriage the wife, when not of age, shall be free from paternal control, and receive a guardian for the sole purpose of administering her property. The father or the husband may be appointed guardian ad bono, and shall be held reponsible to the minor in the same way as to a stranger. Th.e husband shall always exercise the same authority over the wife, during her minority, as a guardian. XVIII. Neither of the consorts shall be answerable for the debts of the other contracted, before or after marriage, unless he or she may have covenanted to that effect in writing. With regard to other civil actions, no liability is hence- forth to attach to the husband on account of his wife's wrongful acts; nor is the wife in future to be presumed, with respect to criminal offences, that she acted under his coercion ; nor can the wife claim any privilege whatever, either in civil or criminal proceedings, from the marriage state. XIX. Are void ; . 1st. All sales of property or any portion thereof, effected by either of the consorts to the other during the existence of the marriage, or prior thereto when it is already projected. 2nd, Donations made inter vivos during the same periods by either of the consorts to the other, exceeding one-tenth of his or her property at any time during the marriage, the value thereof being estimated at the period when it may have been the largest. Stipula- tions in regard to maintenance contracted under clause xiii. shall not be reputed as donations. APPENDIX A. 375 Any inheritance or legacy bequeathed by either consort to the other by virtue of a will known to the heir or legatee previous to the death of the testator shall be also void. XX. After the decease of her husband, whether intes- tate or not, the wife shall become entitled to one-third of his entire free property in case he has had issue by her who are alive, or to one-half should he die without issue. The husband, should he survive his wife, and be in want of the means of subsistence by reason of age or ill-health, is entitled to one-third of her free property, provided she die without issue. Neither of them shall leave to the other, by will, more than a moiety of his or her free property, when the testator has issue. XXI. Children under twenty-one years of age shall have a claim on the property of their deceased parents, to what- ever amount may be required for their support and education until -they attain their majority, in proportion to the obligation entered into by the parent in pursuance of clause xiii. XXII. In case of any dispute arising between married parties, but- not of sufficient gravity or importance to lead to divorce, then and in every such case the opinion of the husband with respect to such matters is to prevail. As regards the person of the wife, he is not to employ coercion, but may use admonition if necessary. XXIII. For all penal effects, whether it be a question of attacks on the person, the honour, or property, the consorts shall be inter se independent of each other, and may be charged with the crimes or faults committed by one against the other ; but the fact of the accused being a consort shall be considered an extenuating circumstance in matters of verbal insult, or theft, or abuse of property. 376 APPENDIX A. XXIV. Children born of the -wife any time after the marriage has been contracted, or ten months at most after it has been dissolved, shall be presumed to be the children of the husband. The husband may protest against this presumption, by ■public instrument ; and such protest shall release him from all obligation towards the child of the wife, should he do so ■within thirty days of the birth being known. XXV. Pari-nts may correct their children moderately. The police courts must take care that their chastisement be not excessive ; and whenever they find it has been abused, the acciised incurs a penalty not exceeding £20, or may be committed to prison fur not more than two months, when the abuse does not amount to acts specified and punishable as crimes or misdemeanours under pre-existing laws. In serious cases such courts may remove the children so ill-treated from the paternal or maternal control, and entrust them to relations or particular establishments licensed to receive such children according to law. XXVI. Ou the death of either of the consorts the sur- vivor, should he or she be bound to support and educate the children in accordance with clauses xiii. and xiv., shall continue to do so until they come of age. Should the obli- gation have attached to the deceased consort, the offspring common to both shall always remain under the care of the survivor ; and respecting the cost of maintenance and education the provisions of clause xxi. shall be observed. XXVII. Judicial separation is hereby abolished. The Fifth Division of the High Court of Justice in England, and the Court of Session in Scotland, shall not henceforth try causes of that nature, nor of divorce ; nor shall the Court of Matrimonial Causes in Ireland deal with cases of separa- tion between married parties. APPENDIX A. 377 The consorts shall be at perfect liberty to obtain divorce in any section of the United Kingdom, either if both parties be Villing or only one of them ; and the fact shall be expressed ■without mention of cause, before the Superintendent Regis- trar, or a Special Registrar, who shall make an entry thereof in the Divorce Register, subject to the same formalities enacted for marriage (so far as the difference between the two institutions may allow), and according to the formula that may be established in either case by the Home Secre- tary of State. "When all formalities for a divorce have been complied ■with, a copy of the minute shall be forwarded to the Registrar-General to file such in his office, as is done "when the registering of births, deaths, and marriages takes place. XXYIII. When the divorce occurs with the express will of both consorts, as proved by the minute referred to in the preceding clause, it shall be thereby deemed perfected, and the marriage dissolved as by death. Should the divorce take place in compliance with the express wish of one consort only, it shall remain in abeyance during the term of one year for the following effects : — 1st. Notice shall be given of the act to the consort whose express wish is not stated, unless the endeavour to find him Or her, after issue of the ordinary summonses or citations, left at his or her usual place of abode, prove unavailing, for which purpose the respective Registrar shall apply for the assistance of the administrative authorities, as the Home Secretaiy may direct. 2nd. The consort who may have declared his or her desire to be divorced shall be allowed twelve months within which to alter his or her intention ; and should he or she do so, the former declaration will thereby prove of no effect^ 378 APPENDIX A. provided, however, that within the same period the other consort should not appear in person, or by a written instru- ment duly attested, and declare his or her consent to the divorce. 3rd. The consort whose will alone has been expressed shall not be allowed to contract another marriage within, the year, unless the acquiescence of the other consort be first shown by some one of the means named heretofore; and subject to the like exception, he or she shall be bound to prove the marriage whereto the divorce relates. 4th. The consort whose express wish is not stated at the time of drawing up the act of divorce shall not contract marriage until the twelve months allowed have expired, unless he or she should first give notice to the Registrar of his or her consent to the divorce, as above provided. XXIX. In the Divorce Register, and after each act wherein the consent of one only of the consorts is stated, a sufficient space shall be left to make an entry, subject to the same formalities as in the previous one, expressing either the perfection of the divorce under any of the circumstances specified in the preceding clause, or the revocation of the intention at first declared, unless it should appear that the consort who had not applied for the divorce was willing that it should be gi anted. XXX. The divorce shall be null and have no effect, by reason of non-compliance with the conditions imposed by clauses xxvii., xxviii., and xxix. XXXI. Either in the deed alluded to in clause xiii., or in any other public instrument, whatever is desired may be covenanted in reference to the maintenance of the consorts and children, and as to which of the former shall take the custody of the latter in case of divorce. It may also be stipulated that when the divorce takes place according to APPENDIX A, 379 the wish of one only of the consorts, lie or she shall pay'tp the other a specified annuity or a fixed sum in discharge of all futiu'e claims ; hut in this latter case the sum shall not exceed a moiety of the free property of the party liable to payment thereof, and in his or her possession at the date of such agreement. XXXII. If nothing should have been agreed upon, the obligation of maintenance shall be arranged according to the provisions of clauses xiii. and xiv. Children common to both parents, under three years of age, shall be put under the custody of the mother, and those above that age shall be divided, the mother taking the females and the husband the males. Whenever, owing to particular causes, the interests of the children should require a difierent distribution, the police courts may, on the application of one or both of the consorts, intrust the children common to both of them, what- ever he their sex, to the care of the consort who may appear best fitted to undertake their management and education. , XXXIII. Either of the divorced parents may visit or demand the visit of such children as- may be in the custody of the other, except in cases of madness, contagious disease or outrageous misconduct of the consort deprived of the children. Whenever any difference may arise in reference to any point in connection with such visits, the police courts shall lay down rules, whereto the parents will be bound to submit. XXXIV. Marriages celebrated abroad according to the laws of that country, both in point of the capacity of the contracting parties and in regard to the external ceremonies, shall be recognised as valid in the United Kingdom, or in any of its possessions, whether the contracting parties be foreigners or British subjects, and whether they be domiciled 380 APPENDIX A. or not in the United Kingdom or in its possessions. But the rights so conferred shall be none other than those of & marriage celebrated in the place wherein it is sought to enforce them. XXXV. Consorts whose marriage may have been celebrated in a foreign country, or in any of the British possessions, may apply for divorce in the United Kingdom pursuant to this statute, provided both, or at least one of them, should have resided in the said United Kingdom for a period of not less than six months. XXXVI. Every divorce obtained out of the United Kingdom shall, for all intents, be valid and have force therein, pursuant to the laws under which it was obtained, whatever the country wherein the marriage to which it relates may have been celebrated, and whatever the nationality of the husband and wife. But to produce the effects of this statute, the divorce must be executed in the United Kingdom. XXXVII. The provisions of this statute are applicable to marriages already contracted, in so far as they relate to future rights and obligations. It does not repeal any previous provision as to obligations between parents and children that may not be contrary thereto ; but it repeals all provisions relating to rights and obligations between consorts. XXXVIII. Registrars shall receive for every act of marriage or divorce a fee of five shillings and no more. They shall give to every one who may apply for it, an authentic copy of the written acts appearing in their re' gisteis, and receive for each copy half-arcrown. XXXIX. Consorts may be represented by a special proxy in acts of marriage, as well as in those of divorce. The revocation of the power of attorney shall be void, APPENDIX A. 381 unless it be made known to the other consort before the re- spective act of marriage or divorce is perfected. XL. The present statute is extended to all the United Kingdom, and repeals all formei; ones relating to espousals, marriage, divorce, property of married persons, and duties of consorts towards each other and towards third persons. 382 APPENDIX B. APPENDIX B. STATISTICS. I. Ma/rriages and Judicial Separations f Separations de Corps) in FroMce, hy decennial periods from 1840 to 1874, the figures showing the average per yea/r. Dates 1840-1849. 1850-1859. 1860-1869. 1870-1874. 1* iMarriages 278,625-2 794-5 1:371-6 288,626-8 1,204-5 l;239-6 299,622-2 1,961-5 1:152-7 292,737-2 1,924-4 1:151-9 2. Judicial Separations... 3. Proportion of Separa- tions to Marriages... TI. Marriages, Judicial Separations (Separations de Corps) and Divorces in Bdgiwm,,from 1841 to 1874, hy decennial periods, tlie figures showing the average per year. Dates . i. Marriages r.. 2. Judicial Separations... 3. Divorces 4. Proportion of Separa- 1 tions and Divorces r to Marriages. ^ 1841-1850. 28,967 22-2 28-1 1:575-88 1851-1860. 33,486 43-6 38-6 1:407-37 1861-1870. 36,309 59-7 46-1 1:343-18 1871-1874. 47,135-75 20-8 45-7 1:720-71 N.B. — These tables have been compiled from data fur- nished by M. Naquet's book, Ze Divorce. APPENDIX B. 383 .1 -* r~ ou <-• o »n «> 00 * »— 1 f -s *» ^ . rH 00 t O -^ CO ^ M £ So 1 J?- -^ 6q -i 1 io »b CT lis « M' »^ t^ r^ OS lO OO CO t>. ^ -^ CO -* rH J>* 00 i-l OO oa CO CO Cq ri CO Cq ?D O 00 -^ Cq lO CO i-H CO iH CO OO tH r^ I-l (M CO CM (M g4 Cn OO rH iH CM i^ CO (N (M t* O t- f-1 O CO CN CO I-H CO I-l rH 1-4 IQ OO CD : en -* o la X -' r CO 00 (M *^ r-i *(n« ^) 891 w to CO OO U5 "* I>- i-H CO i-l •(ttb ni) gsx r-t v> OO 1-i »0 « ^ -a a l^^(^ tliHs^« rH Cq CO -* lO CO t^ CO OS joj snoj^^BojtdiJv joj sjuBjg > « s. 5 **, B S ^''J 1 1 •5 1 (M (M '■« 03 ■^ US ^ <:» t^ •<^ f/1 '« ?: ^ V j3 »o (3 OO g 1— ( SJi 1 .1 J 00 e s ^ 5-s s li I Si 8 I i I ^ e CO 384 APPENDIX B. IV. Some Datm upon Ma/rriages and Divorces in connection with Population, collected for the most part from tlie Reports of the Registrar-General. 1 . The population of England and Wales in the year of the last census (1871) was 22,856,164, of which 11,202,832 were males (army and both navies included), and 11,653,332 females, or little more than 4'70 per cent, of women over men. Considering that the population of the same area in the middle of 1878 is estimated at 24,854,397, it may be conjectured that it was about 23,855,280 in 1874. Now, the marriages in 1874 were 202,010, which is equiva- lent to y&ry nearly 85 (or 1,7 persons) in one thousand of the population. 2. In France the population in 1872 (the last census) w^as 36,102,921, and the average of marriages from 1870 to 1874 being 292,737-2, the proportion is 8-20 in one thou- sand people. In Belgium, population in 1872,, 5,087,105, and marriages about 47,135'75; proportion nearly 8-30 marriages for every one thousand people. Thus the propor- tion of marriages to population in the three above-mentioned countries is almost the same. 3. Of the 202,010 marriages in England in 1874, 150,819, or 75 per cent., were solemnized according to the rites of the Establishment ; and 51,191, or 25 per cent., not according to the rites of the Establishmerit. Roman Catholics were 8,179, and other denominations 2:1,253. At the Superintendent Registrar's Office 21,256. 4. The ages of both parties were stated in the returns in 149,848 instances, and omitted or only imperfectly stated in the remaining cases. The number of men who [married in APPENDIX B. 385 1874 under 21 years of age was 16,919, and the number of women not of full age was 45,859 ; so that of every 100 men married 8-4 were not of full age ; and of every 100 women who were maixied 22-7 were not of full age. The proportions differ but little from those of the previous year, but are nearly double those of the year 1844, when they were 4*2 and 13'2 per cent, respectively. In the year 1872, out of 145,507 instances in which the ages of both parties were mentioned, the number of bachelors and spinsters who married under 21 years of age was ; — Ages. 15 16 17 18 19 20 Men Women... 1 34 3 300 89 1,825 851 6,d41 il20 12,8S5 9,847 16,615 5. The mean age at marriage as determined from that number, including the remarried, was 27 "9 years for men and 25-7 for womenj For 130,965 bachelors it was 25-7 years, and for 135,458 spinsters 24'3 years A com- parison of these results with those in 1867 shows that the mean age at marriage is slightly lower than it was. 6. The number of persons who married a second time in 1874 was 48,230. There is but little fluctuation in the proportions fi'om year to year. The number of marriages of divorced persons in the same year was 61, viz., 59 in which one or other of the contracting parties is stated to have been previously divorced, and two in which divorced men mar- ried divorced women. Of 34 divorced men who remarried, 27 married spinsters, 5 married widows, and 2 married divorced women. Of 29 divorced women who i-emarried, 18 were married to bachelors, 9 were married to widowers, and 2 were married to divorced men. The number of these mai-riages is increasing. Only 29 were registered in the c c 386 APPENDIX B. year 1862, whereas ia 1868 there were 40, and in 1873, 62. la the 14 years 1861-74 there were 537, viz., 5M in which one or other of the contracting parties had been previously divorced, and 13 ia which divorced men married divorced women. 7. The number of married couples who slept under the same roof in England on the census night was 3,672,011. 211,352 husbands were returned apart from their wives, and 276,516 wives apart from their husbands; so 65,164 husbands must have been out of the country, including army and navy. | 8. In the census of 1871 the number of boys under 14 was 3,886,668 ; that of girls under 12 was 3,397,983, The total number of males being 11,202,832, and that of females 11,653,332, thefe were apparently 15,571,513 who might h ave married. The real number of married people was 7,831,890. Consequently the number of those who were nubile and un- married was 7,739,627, or nearly as high as the former. Of the latter number 774,801 were men of 60 years and up- wards, and 1,766,983 were women of 50 years and upwards : total 254,784; which deducted from the general nubile population, leave 5,197,843. If we allow 5 per cent, of this number (259,892) to be indifferent to love, there remain 4,937,951 who are sensitive to that feeling, but have not the legal means to gratify it. Considering that the population in England and Wales is computed at 24,854,397 at the middle of 1878, the proportional number of Zo»e-destitute people must exceed by far 5,000,000. 9. Very few men marry under the age of 18 years. Of 100 men of each age, 77 are bachelors at 20-25 ; 39 at 25- 50; 23 at 30-35; 15 at 35-40, and 12 at 40-45 : after that age bachelors dwindle down from 10 to 7. Out of the same numbers, the spinsters under 20 are 97 ; at 20-25 APPENDIX B. 387 they are 65 ; and in the successive five-years' periods 36, 22, 17, and 1 4 : after the age of 45 the spinsters gradually de- cline from 12 to 10 in 100 women, living, of the respective ages. In sixteen English counties and in all North Wales, from 40 to 45. per cent, of the women of the reproductive age (20-40) are spinsters. 10. In England the number of unmarried women of the age 15-55, who bear children, is about the same as in France ; and does not exceed one in sixty. The number of childi-en registered as bom in wedlock during the ten years 1861-70 was 7,043,0&0. From unmarried women there were registered 457,006 children during the tea years, and 47,540 in 1871. The real average number must be a great deal larger ; 1st, because many of these children are not registered ; 2ndly, because several are registered as legiti- mate children. 11. The number of verdicts of murder in the cases of infants of one year and under (infanticides) in 1875 was 110, against 127 in 1874 ; 138 in 1873 ; 148 in 1872 ; 131 in 1871 ; 149 in 1870; and 165 in 1869 : average 138-28. The attempts to procure miscarriage of women in 10 years (66-75) brought 73 prosecutions, an average of 7'3 per year. There were in 1875 104 prosecutions for concealing the birth of infants, and ont of them 72 convictions. c c 2 S88 APPENDIS: & APPENDIX C. An abstract of the Laws in Europe a/nd America upon Divorce amd Sepwrations, [N.B. — ^Witli tlie exception of the United Kingdom, the information about the European countries has been substan- tially gathered from M. Naquet's book, Le Divorce.] I. — KoMAN Catholic Countries. 1. In thoroughly Roman Catholic countries, most of them, viz. ; Italy, Hungary, Spain, -Portugal, and the old colonies of these two latter nations in America, divorce a vinculo matrimonii was never allowed. According to the canonical law prevalent on the subject, a separation of married people is granted, a mensd et tlioro, for adultery of the wife or cruel treatment to her by the husband. We shall mention after- wards, as an exception, the few among such countries which allow to both partners a real divorce. Let us remark mean- while that the new Italian code of 1865 grants the judicial separation {sepa/ration de corps et de Mens) by mutual consent of the parties. 2. In some of the Roman Catholic countries where there is a large population either Protestant, Greek, Jewish, or any other non-Christian denomiaation, there are different rules according to the religion of the partners to a marriage. So, for instance, in Austria if both husband and wife are Roman Catholic, they are not permitted to divorce, but APPENDIX C. 389 are entitled to what is called in England judicial sefparation, . on several grounds, and even by mutual consent. A similar state of things existed in Switzerland, before 1874, in the Protestant cantons, but thenceforth a national legislation and a general rule have prevailed. 3. Prance has been subject to great changes in this matter as in everything else. Maniage once declared a mere civil contract at the end of the last century, the National As- sembly, acting on that principle, passed a law on the 20th September, 1792, by which a divorce was granted to married couples : (as) for certain special causes, (6) by mutual consent, (c) by the mere will of either partner persisted in, when there was an incompatibility of tempers between the two. The Legislative Assembly in the year II. (1793) went further, doing away with some restrictions, for instance, the prohibition to marry before a year's time after the divorce had been pronounced; and even by a decree dated ^fioreal, allowed the divorce whenever the parties to a marriage had notoriously lived de facto apart from each other during six months. The Convention repealed these Acts and restored that of 1792. In the year V. (1797) the Five Hundred and the Elders, on the 28 prairial and 27 thermidor respectively agreed upon a slight restriction to the right of divorce for incompatibility of tempers. After the 18 hrumawe, year XI. (1803), everything went back to the good old times; but the right of divorce was kept, only greatly modified. The law of the 21st March, 1803, suppressed the ground of incompatibility of tempers, reduced to more narrow limits that of mutual consent, and diminished the definite causes. This law was shortly afterwards inserted in the Civil Code whereof it formed the "VI. title. Article 295 of the Code forbadethose who were divorced to marry each other again. The legitimate mmwrchy once restored in 1815, and along 390 APPENDIX C. witli it Catholicism as a State religion, attempts were soon made in the Chamber of Deputies to abrogate divorce, and by a law passed on May the 8th, 1816, the VI. title of the Civil Codewas suppressed. Ever since, there has onlyremained in France the right of separation de corps et de Mens; and a few attempts made to re-establish divorce have proved hitherto unsuccessful. The latest one is a Bill moved by M. Naquet on June 6th, 1876, which is still pending, and which, if the Republican Government last, may Succeed in the end. II. — European Countries where a True Divorce is Allowed. 1. — Scotland. In consequence of the Eeformation being Carried out since 1560 by John Knox, the courts acknow- ledged the right to divorce as scriptural, on the ground of adultery. Subsequently it was regulated by statute, and in 1S73 it was further allowed for wilful or unjustifiable deser* tion as long as four years, if an order for adherence was disregarded by the guilty party. It may be opposed in case of collusion or condonation ; but not, as in England, for recrimination. Both spouses have absolutely the same rights in sueing for a divorce. By statute 1600, c. 20, the adulterer husband or wife cannot marry his or her paramoui". 2. — England and Wales. Although the Reformation was finally accompli.shed in England under Elizabeth at about the same time as in Scotland, i.e., in 1560, it was not so distinctly considered in the former as in the latter country, that the right of a spouse to divorce, even in case of adultery committed by the other party, was a necessary consequence of the new religious doctrines. It was nevertheless the most general opinion, that, in case of adultery, the separation granted by the ecclesiastical courts, which continued to be APPENDIX C. 391 the only competent ones for the piirjjose, carried -with it the right to remarry, though the statute 32 Hen. 8, c. 38, declared a consummated and fruitful marriage indissoluhle. But in the year 44 of Elizabeth, Archbishop Bancroft decided that only a separation a mensd et thuro was rightful. Ever since, divorce could only be obtained from Parliament, as a special grant, at a great expense and after long, tedious, and often scandalous proceedings. This state of thini^s being highly unsatisfactory, steps were taken after 1850 for a new- legislation, until at last the statute 20 & 21 Vict. c. 83 instituted a special court for divorce and matrimonial causes, which was afterwards incorporated as Division 5th in the High Court of Justice. According to that statute and several supplementary ones, a true divorce or separation a vinculo may be granted : (a) to the husband on the ground that his wife has been guilty of adultery ; (6) to the wife on the ground that her husband has been guilty of incestuous adultery, or of rape, or sodomy, or bestiality ; or of adultery coupled with either bigamy, cruelty, or desertion without reasonable excuse for two years and upwards. " But the court shall not be bound to pronounce such decree (of dissolution) if it shall find that the petitioner has during the marriage been guilty of adultery, or if the petitioner shall, in the opinion of the court, have been guilty of unreason- able delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage, or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable cause, or of such wilful neglect or misconduct as conduced to the adultery." The bars to divorce are : (a) condonation of the offence, (6) connivance therein, (c) collusion between the parties. Usually a decree nisi is pro- nounced by the court, which is not made absolute before six 392 APPENDIX C. months ; and in the meantime anybody may interpose against the divorce being declared complete, on the plea of any of the above-mentioned causes having taken place. The Queen's Proctor has the same right in any state of the proceedings. Besides divorce, the parties to a marriage have the remedy of judicial separation on the grounds of adultery, or cruelty, or desertion without cause for two years and upwards. The spouses get a complete independence from each other, but neither is allowed to marry again on the strength of such separation. 3. — Belgium. Was a portion of the French Empire in 1803, and had as such the same legislation on divorce, viz., the law and title VI. of the Civil Code passed in the same year. After her separation in 1815 "she kept the same statutes, and was not liable to the effects of the change brought about in France by the law of 1816. This fact is the more remarkable since Belgium is an essentially Eoman Catholic country ; but is not the only one where such a cour.^e is being pursued. Two States of the German Empire, which partook of the fate of Belgium, are similarly situate to-day — Rhenish Prussia and Baden. 4. — Austria. Those of her subjects who are not Catholics may claim a divorce on these grounds, common to both parties : (a) adultery, (6) sentence to five years' imprison- ment or upwards, (c) abandonment of the conjugal home, {d) absence in a legal sense, (e) snares to the risk of life or health of the other party, (/) frequent ill-treatment, and (a) uncontrollable and mutual aversion (which amounts to mutual consent). As for the Israelites, there are but two causes : (a) adultery, (6) mutual consent, which the law submits to special formalities, borrowed from the Mosaic institutions. In cases of mixed marriages, the spouses may severally apply to the ecclesiastical court of his or her denomination APPENDIX C. 393 and have the proper remedy granted, according to the different religious principles. 5. — Switzerland. Before 1862 all marriage questions ■were regulated by the law of each canton. The Catholic ones only allowed separation de corps et de hiens ; the Pro- testant ones allowed the divorce on the ground of some definite causes, and even othera not specified, according to the discretionary judgment of the court. A federal statute, passed in 1862, enacted that even in the Catholic cantons a Catholic spouse could apply for a divorce to the federal courts if he or she turned Protestant. The federal statute of December the 24th, 1874, took entirely in hand this subject, and since January 1st, 1876, the rules for all the cantons are as follows : 1st. If the divorce is applied for by both parties, it must be gi-anted whenever it appears that their living together is incompatible with the nature of marriage. 2nd. The divorce is to be granted at the request of one of the spouses on these grounds : (a) adultery, (6) cruelty, insults, attempts againsts life ; (c) sentence to any defaming punishment, {ct) malicious desertion, (e) incurable mental disease. 3rd. In the absence of any of the aforesaid causes, if, notwithstanding, it appears that the conjugal bond is seriously impaired, the court may pronounce a de- cree either of divorce or of mere separation for a period of not over two years. If in the meantime there would be no reconciliation, and the petition for a divorce be renewed, the court shall freely and conscientiously decide. 4th. In case of a divorce on the ground of a definite cause, the guilty party cannot marry again before a year's time, and even a longer period within three years if the court think fit. 6. — Germany. Before 1876 the Protestant States al- lowed divorce on these grounds : (a) adultery, (6) desertion, (c) cruelty, (<^ snares, (e) sentence to any punishment bearing 3,94 APPENDIX C. infamy and loss of liberty. Some States, as electoral Hesse, Schleswig-Holstein, Mecklenburg, Brunswick, Wei- mar, Coburg-Gotha, Meiningen, and Anhalt, permitted besides the chief of the State to grant a divorce by a special decree, even when the aforesaid causes were wanting. Prussia, who