Note 252 — Chapter XI · HISTORY OF SEPARATION AND DIVORCE UNDER ENGLISH AND ECCLESIASTICAL LAW (continued 2)

1 James I., c. xi: Stat. at Large (Pickering), VII, 88, 89.

However, inferences as to the law in the preceding period must be made with caution. The case of Stephens v. Totty, decided at the Michaelmas term, 44 and 45 Eliz., shows that a husband and a wife divorced a mensa et thoro were still married: Croke's Reports (Elizabeth), 908. Cf. on this act especially Hale, Hist. of the Pleas of the Crown (London, 1800), I, 691-93; also Woolsey, Divorce, 171; Law Review (Eng.), I, 362. Furthermore, Raynolds, a strong advocate of absolute divorce, in his Defence of the Judgment of the Reformed Churches (1609), appears to make no claim that his doctrine is sustained either by law or custom. So also in the quaint treatise, The Lawes Resolutions of Women's Rights (London, 1632), 64 ff., full divorce is not recognized; although, referring to the fact that legally "no crime dissolueth marriage," the compiler (67) seemingly approves Conrad Lagus who says, "seeing that in Contracts of Wedlock we regard as well what is decent and conuenient, as what is lawfull, I cannot tell why we be not bound in dissoluing of it to follow the like equitie; and for example, if a Wife cannot dwell with her husband without manifest danger of death ... why may not she be separated iudicis ordinarij cognitione precedente?"

On the other hand, Spence, Equitable Jurisprudence, I, 702, believes that the bond not to marry required by the canons of 1603 was the only hindrance to remarriage after divorce; and from this time onward he thinks it "not unlikely that the court of chancery decreed divorces a vinculo; and that the American courts of equity brought this doctrine (or right) with them." This view is rejected by Scribner, Treatise on the Law of Dower, II, 545-47, although he agrees as to the effect of the bond.