Note 249 — Chapter XI · HISTORY OF SEPARATION AND DIVORCE UNDER ENGLISH AND ECCLESIASTICAL LAW (continued 2)

The Foljambe case has given rise to much controversy. It is commonly regarded as marking the formal abandonment of the more liberal law of the Reformation period and a return to canonical principles. This view is mainly traceable to the statements of Salkeld, Reports of Cases in the King's Bench (Philadelphia, 1822, from 6th London ed.), III, 137, who commits several errors, and is otherwise misleading. He is followed by Jeaffreson, Brides and Bridals, II, 324; Geary, Marriage and Family Relations, 12; Macqueen, Practical Treatise, 470, 471; Harrison, Probate and Divorce, 115; and especially Bishop, Marriage and Divorce (5th ed.), I, §§ 661, 705. On the other hand, Woolsey, Divorce, 172, note, 310-13, following the researches of Craik, Romance of the Peerage, I, Appendix, regards the decision as merely confirming existing law. He criticises Bishop for being misled by Salkeld, whereas the facts appear to be more correctly given in Noy's Reports, 100; and particularly in Moore's Cases (2d ed. folio, London, 1688), 683, which may be translated from the law-French as follows: "Feb. 13, anno 44 Eliz. In the Star Chamber it was declared by all the court, that whereas Foljambe was divorced from his first wife for incontinence of the woman [in fact, for his own adultery], and afterwards had married Sarah Poge [Page], daughter of Rye, in his former wife's life-time, this was a void marriage, the divorce being a mensa et thoro, and not a vinculo matrimonii. And John Whitgift, then Archbishop of Canterbury, said that he had called to himself at Lambeth the most sage divines and civilians, and that they had all agreed therein." It is concluded, therefore, that this decision of the "sage divines and civilians" must have been incidental to a case under trial in the Star Chamber, and that the law was merely declared and not changed. See, however, the sixth edition of Bishop's work, I, § 1498 n. 3, where the author insists on the essential correctness of his original view. Cf. also Law Review (Eng.), I, 361, 362; Report of the Commissioners (Divorce), 1852-53, 4-6; and Morgan, Marriage, Adultery, and Divorce, II, 233.