The English Divorce Act of 1857 refused divorce when there was collusion, as well as when there was any countercharge against the petitioner, and the Matrimonial Causes Act of 1860 provided the machinery for guaranteeing these bars to divorce.  This question of collusion is discussed by G.P.  Bishop (op. cit., vol. ii, Ch.  IX).  “However just a cause may be,” Bishop remarks, “if parties collude in its management, so that in real fact both parties are plaintiffs, while by the record the one appears as plaintiff and the other as defendant, it cannot go forward.  All conduct of this sort, disturbing to the course of justice, falls within the general idea of fraud on the court.  Such is the doctrine in principle everywhere.”

It is quite evident that from the social or the moral point of view, it is best that when a husband and wife can no longer live together, they should part amicably, and in harmonious agreement effect all the arrangements rendered necessary by their separation.  The law ridiculously forbids them to do so, and declares that they must not part at all unless they are willing to part as enemies.  In order to reach a still lower depth of absurdity and immorality the law goes on to say that if as a matter of fact they have succeeded in becoming enemies to each other to such an extent that each has wrongs to plead against the other party they cannot be divorced at all![342] That is to say that when a married couple have reached a degree of separation which makes it imperatively necessary, not merely in their own interests but in the moral interests of society, that they should be separated and their relations to other parties concerned regularized, then they must on no account be separated.

It is clear how these provisions of the law are totally opposed to the demands of reason and morality.  Yet at the same time it is equally clear how no efforts of the lawyers, however skilful or humane those efforts may be, can bring the present law into harmony with the demands of modern civilization.  It is not the lawyers who are at fault; they have done their best, and, in England, it is entirely owing to the skilful and cautious way in which the judges have so far as possible pressed the law into harmony with modern needs, that our antiquated divorce laws have survived at all.  It is the system which is wrong.  That system is the illegitimate outgrowth of the Canon law which grew up around conceptions long since dead.  It involves the placing of the person who imperils the theoretical indissolubility of the matrimonial bond in the position of a criminal, now that he can no longer be publicly condemned as a sinner.  To aid and abet that criminal is itself an offence, and the aider and abettor of the criminal must, therefore, be inconsequently punished by the curious method of refraining from punishing the criminal.  We do not openly assert that the defendant in a divorce case is a criminal; that would be to render the absurdity of it too obvious, and, moreover, would be hardly consistent with the permission to claim damages which is based on a different idea.  We hover uncertainly between two conceptions of divorce, both of them bad, each inconsistent with the other, and neither of them capable of being pushed to its logical conclusions.