as any one may see who will look into his essay, which Dr. R. Phillimore does not appear to have done. The passage relied upon affords no warrant whatever for the deduction attempted to be drawn from it.1 Similar liberties are taken with other great names as Burke and Mackintosh — to show how noxious a thing is divorce à vinculo. Now, we ask, would it be wise to commit the contemplated jurisdiction to the advocates of such opinions? How long might it be expected to live in such hands? What chance of fair play would it have? We verily believe that in a few years it would fall into entire disuse, and in the end be strangled. We have shown that the evils of the existing state of things are ascribable to the Canonists of the sixteenth and seventeenth centuries. Their successors and representatives of the present day seem resolutely prepared to imitate their example.2 Nothing, therefore, we apprehend, would argue a greater blindness to the lessons of experience than to entrust to tribunals whose maxims belong to the dark ages, a jurisdiction such as this of divorce à vinculo, which ought especially to be exercised in a spirit of liberal yet cautious attention to the altered constitution, opinions, and habits of modern society. The marriage law followed in the Ecclesiastical Courts is extracted from the opinions of the ancient Fathers, the decrees of general councils, and the epistles and bulls of the Roman pontiff; how far adapted to the wants of an enlightened Protestant community in the meridian of the nineteenth century those best can estimate who have looked into the impure and obscene Commentary of Sanchez. Furthermore, their rules of evidence are peculiar, and in some material respects contrary to the law of the land. This is pointed out in his usual sarcastic way by Blackstone. "One 3 1 See Mr. Poynter's useful book on the Practice of the Ecclesiastical Courts as to Marriage and Divorce, p. 174., where the passage from Hume is given in a form that appears to have misled Dr. R. Phillimore. There is nothing in Hume about indissolubility. His reverence for Canonists was not deep; and it is in truth rather ludicrous to find him quoted as an authority in Doctors' Commons. 2 In saying this, we must of course be understood to except that most eminent and enlightened judge, Dr. Lushington; whose common law education and constant intercourse with the world have preserved him from infection. 3 3 Com. 370. witness," says he, "if credible, is sufficient evidence to a jury of any single fact, although undoubtedly the concurrence of any two or more corroborates the proof. Yet our law considers that there are many transactions to which only one person is privy, and therefore does not always demand the testimony of two, as the civil law universally requires. Unius responsio testis omnino non audiatur.1 To extricate itself out of which absurdity the modern practice of the civil law courts 2 has plunged itself into another. For as they do not allow a less number than two witnesses to be plena probatio, they call the testimony of one, though never so clear and positive, semi plena probatio only, on which no sentence can be founded. To make up, therefore, the necessary complement of witnesses when they have one only to any single fact, they admit the party himself (plaintiff or defendant) to be examined in his own behalf, and administer to him what is called the suppletory oath; and if his evidence happens to be in his own favour, this immediately converts the half proof into a whole one: by this ingenious device, satisfying the forms of the Roman law, but acknowledging the superior reasonableness of the law of England, which permits one witness to be sufficient where no more are to be had; and to avoid all temptations to perjury, lays it down as an invariable rule, that nemo testis esse debet in propriâ causâ. Cases of adultery are of all others the very cases in which a penuria testium is most likely to occur. To require two witnesses of facts almost necessarily secret is, in most cases, to ensure a denial of justice. Of this constant examples are to be found in the records of the Ecclesiastical Courts. But we shall content ourselves with referring shortly to a very recent case, that of Evans v. Evans, which came before Sir Herbert Jenner Fust for judgment, in the Arches' Court of Canterbury, on the 21st of November last.3 The suit was instituted by the husband against his wife for divorce by 1 Cod. 4. 20. 9. 2 He means the courts canonical, spiritual or ecclesiastical, though these have not quite so much to do with the civil law of Rome as is generally imagined. 3 The case has not yet appeared in the authorised reports of the Courts. But there is an accurate report of it in the "Times" newspaper of the 22d Nov. 1844. reason of adultery; and the facts were, that having suspected his dishonour, he one day on his return from shooting proceeded suddenly, accompanied by a female servant, to the room of his wife, whom they found in bed in the arms of her paramour. Against that person the husband in due time recovered a verdict at the Anglesea Assizes for 500l. damages. The evidence of adultery in the Ecclesiastical Court depended on the testimony of the female servant. That evidence had satisfied the jury in the action-at-law. But it did not satisfy the learned judge of the Ecclesiastical Court; who rested his decision, not on any objection to the conduct of the husband, which had been altogether blameless, nor on any doubt of the veracity of the witness, whose character was unimpeached, but simply and solely on this ground, that the testimony of a single witness, however positive and distinct, did not of itself constitute that full degree of proof that plena probatio required by the Ecclesiastical Courts. He therefore held that Mr. Evans had failed in his case; and he accordingly dismissed Mrs. Evans from the suit. Mr. Evans may indeed appeal to the Judicial Committee of the Privy Council. But in the exercise of its appellate jurisdiction the Judicial Committee, when reviewing the sentences of the Ecclesiastical Courts, is itself governed by ecclesiastical law; so that an appeal on so clear a point could lead to no other result than an affirmance with costs. Mr. Evans, therefore, is precluded from all relief. One other word, and we have done. The only mode of taking evidence in the Ecclesiastical Courts is by commission and written deposition. There is no vivâ voce examination of witnesses. This of itself is a sufficient objection to these tribunals; although Dr. R. Phillimore seems to think it their highest recommendation. We will not argue this question with him. The opinion of the profession has long been made up on it. But we desire our readers once for all to consider whether it is reasonable that a party, in one of the most trying It is said that in the case of a Cardinal the probatio in order to be plena must be established by no less than seven eye-witnesses - so improbable does the canon law consider it, that a member of that high order can be guilty of incontinence. predicaments of domestic life, should be obliged to forego the comfort of confiding in the friendly assistance of his own confidential solicitor, on whose honour and discretion, in all difficulties, he has perhaps for years relied? Why drive him to a stranger ignorant of his affairs, his plans in life, his connections, his interests, his resources? Yet this will be the consequence if the jurisdiction of divorce à vinculo be consigned to the narrow and exclusive precincts of Doctors' Commons. Why, moreover, should not an aggrieved husband or an injured wife have the privilege of selecting counsel from the bar at large? Why restrict the choice to a handful of civilians? The learning and ability of these gentlemen we have no wish to disparage. On the contrary we readily admit the important services which in many instances they are capable of affording; and we desire to see them act frequently in concert and co-operation with their brethren of Westminster Hall. Who can doubt that in the trial of Queen Caroline Dr. Lushington and Sir C. Robinson proved most valuable coadjutors? But, to indulge an extravagant supposition, let us for a moment imagine that the House of Lords had made an order in that case excluding all but civilians from the forensic argument appointed for hearing on the Bill of Pains and Penalties, which in effect was a divorce bill. What would the authors of the prosecution and the unhappy Princess who was the object of it have said to such a limitation, compelling them to surrender their own chosen and peerless advocates, to relinquish a Copley, a Brougham, and a Denman,—- and to seek for substitutes in the gloomy vicinity of St. Paul's Churchyard. All this would have appeared unjust, arbitrary, and preposterous in 1820: yet such, or something very like it, is the grave proposal now advanced by Dr. R. Phillimore and his colleagues; an experiment on the public patience which we have endeavoured to treat as it deserves. 382 ART. VIII. CONVEYANCING, ITS EARLY HISTORY AND PRESENT STATE. 1. Principles of the Law of Real Property, intended as a First Book for the Use of Students in Conveyancing. By JOSHUA WILLIAMS, Esq., of Lincoln's Inn, Barrister-at-Law. Sweet. 1845. 2. Concise Precedents in Conveyancing adapted to the Act for simplifying the Transfer of Property, 7 & 8 Vict. c. 76. with Practical Notes. By CHARLES DAVIDSON, of the Inner Temple, Esq., Barrister-at-Law. Maxwell. 1845. THE connection of the clergy with the state and the extent of clerical influence on the general constitution of the country have already formed the subjects of considerable antiquarian and historical investigation; but the precise relationship of the priest to the lawyer has not yet been accurately determined, or even formed, so far as we are aware, the subject of separate investigation. It would be, however, an important and highly interesting chapter in the history of the profession and of our legal institutions. Into the more general question we shall not at present enter, especially as much of it would be familiar to our readers. They will all remember, among other things, Blackstone's vivid description1 of the attempts of the ecclesiastics to make laws for this country, by the introduction of the civil and canon law, and the constant struggles of the laity to rescue themselves from their thraldom in this respect. The result was that the good old common law was handed down in a great degree intact, and was at any rate guarded with contemptuous jealousy by the judges of the courts of Common Law: the civil and canon law were confined to the Ecclesiastical Courts, and in the end the clergy (to whose body the great bulk of the advocates belonged) were early in the reign of Henry III.2, expressly forbidden by episcopal con 1 1 Black. Com. 19. et seq. 2 Dugdale says ( Orig. Jur. 21.) that the professors of the law till 2 Hen. III. were usually of the clergy; to which Selden adds, (Disser. ad Fletam, 519.) "or rather till the year 1164, temp. H. II., when by a canon in the Synod of |