instances of clergymen deprived of their benefices in consequence of Adultery.*

But Adultery was never considered as a capital offence in this country, after the time of the Conquest, either by common or statute law, except in the time of the Commonwealth and Protectorate. It was regarded, and indeed it is still, as a civil injury, for which a compensation or damages could be obtained at common law, and an offence of ecclesiastical cognizance, for which a suitable remedy was provided by the Canons of the Church but by an ordinance of Cromwell, in 1650, Veneri, martique timenda ;" it was made felony, without benefit of Clergy, to commit either Adultery or fornication, and this both in man and woman. The first offence was punished with three months' imprisonment, and the second with death.

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* This deprivation in the Romish Church was often associated with a pretty severe penance. In a clergyman, it was for ten years; in a layman, only seven; but it might be commuted for money. The Apostolical Canons had enjoined deposition, but Pope Sylvester dispensed even with this for a fine. The gradations of this penance, between sackcloth, incarceration, lying on the ground, bread and water, hard eggs, &c. are singularly stated by Ayliffe, in his Parergon, pp. 47 and 136.

Blackstone accounts for this enactment, on principles not very creditable to Cromwell. "The then ruling power," he states, "found its interest in affecting extraordinary strictness and moral purity, but the licentiousness of the succeeding reign, unable to endure the rigidness of these enactments, soon repealed them." The acute Daines Barrington observes, these statutes could not have continued long unrepealed, even if Charles the Second had not succeeded to the throne.

But this period is as late, perhaps later, than the terms of the Thesis require the considerations of the crime of Adultery to be brought; and on the whole then, with respect to the punishment of this offence, by the laws of England, it may be in general remarked, that it is at present characterized by too much lenity. Regarded under a two-fold aspect, it is treated accordingly by the respective jurisdictions. The temporal courts notice it only as a private inquiry, and inflict a mulct, or compensation. The spiritual courts, which examine its most criminal complexion, themselves possess but a feeble coercion. Their estimate is formed by the rules of the canon law, and these have manifested an indulgence towards it, which is

chiefly to be accounted for by reference to the constrained celibacy of its early compilers.

It remains, that we notice the ancient state of the laws of Britain in respect of Divorce.

Selden is of opinion, that those parts of Great Britain, which were subject to the Romans, and complied with their laws, retained Divorce even after their conversion to Christianity. This he proves, by reference to the laws of King Howel-dha, whereby a man was allowed to put away his wife, if she conversed too familiarly with another man; and to marry again afterwards. But from the letters of Pope Gregory to Austin, (the apostle of Britain, and also from the laws of the kings of the Anglo-Saxons, he thinks, that the discipline and decrees of the Church of Rome upon this point, were then received in England, where they have been observed ever since.

In the first year of Lotharius, King of Kent, (A. D. 683,) it was decreed in Concilio Herudfordiæ, that the permission of Divorce for Adultery, being given by Christ, might be received, but that no dissolution of the marriage took place; indeed, he, it appears,

would have scarcely been thought a Christian, who, when separated from his wife, could presume to marry another.

"Nullus conjugem impropriam nisi (ut sanctum Evangelium docet) fornicationis causâ, relinquet; quod si quisquam propriam expulerit conjugam, legitimo sibi matrimonio conjunctam, si Christianus esse recte voluerit, nulli alteri copuletur; sed ita remaneat, aut propriæ reconcilietur conjugi."

In 1199, King John, being divorced from the Duke of Gloucester's daughter, was, in the same year, re-married to Isabel, the heiress of a noble family. And, indeed, King John's first wife had been, previously to her marriage with him, divorced from Henry de Leon, Duke of Saxony.

Matthew Paris makes mention of the case of Simon de Montford, in Henry the Third's time, in which the Pope, in opposition to the laws and canons of the Church, granted dispensation, and then ratified his second marriage.†

Of course, the same distinction which we have before noticed, in the two-fold nature of Divorce, obtained likewise in England: the

Spelm. Concil. Herudford. Art. 10.

+ Matth. Paris. Hist. p. 455.

one a separation à mensâ et thoro merely, the other, a dissolution of the marriage vinculum ; and this latter was, by many in the reformed Church of England, held to open to the parties the liberty of re-marriage.

By the Canons of 1597, great caution is recommended to the courts, in pronouncing sentences of separation, and after such sentences, (to the case of mere separation, not Divorce a vinculo, we allude,) bond was taken of the parties not to marry again.

"Prohibitio fiat ut à partibus ab invicem segregatis caste vivatur nec ad alias nuptias alterutro vivente convoletur: denique sententia non pronunciabitur anteaquam qui eam postulaverint, cautionem fide jussoriam sufficientem interposuerint, se contra prohibitionem nihil commissuros."*

It was otherwise in the case of a dissolution of marriage; and this it was that occasioned a great division of sentiment with the Church of Rome, and had called for the statute of Henry VIII. which enacted, that no appeal should be made to Rome in matters of Divorce. With his own Divorce from Catherine, his brother's relict, the Essay has no connexion,

* Sparrow Coll. Anc. Stat. p. 251.

These cautions also found their way into the Canons of 1603.