à vinculo. The remedy in Scotland and in other Protestant countries is granted as readily to her as to the husband. We apprehend, however, no such proposition would obtain favour in this country. It would be unwise to suggest it. But it is equally plain, on the other hand, that, there are cases of not unfrequent occurrence in which a refusal of relief to the wife would not only be unreasonable and unjust in itself, but of infinite mischief as matter of example. To define these cases is exceedingly desirable, but we fear impracticable. One distinction must always be kept in view-the distinction between cases of accidental and cases of systematic infidelitythe one admitting, the other excluding, all reasonable hope of permanent reformation; for so long as a husband is merely chargeable with occasional delinquencies, we agree with Dr. Johnson that a wife should endeavour rather to reclaim her erring spouse than try to get rid of him.

After this long exposition, it is fitting that we should say a few words, and but a few, on the subject of the plans which have been suggested to remedy the evils of the existing system of divorce; for we apprehend the rational part of mankind are of opinion that those evils ought not much longer to be endured. There seems to be an approximation to agreement on the following points:-1st. The absolute necessity of a surrender by Parliament of this jurisdiction. To this we believe the majority of the prelates have at last assented. The scruples of the episcopal bench, always formidable impediments, have therefore been got over. Opposition we think need not be feared from the unprejudiced mind of the Chancellor. His clear and powerful intellect, long accustomed to resist the glosses of sophistry, yields an immediate assent to facts where no party politics are involved. Witness the Bill for allowing counsel to prisoners. A thousand arguments did not move him. But one example-the hard case of Lord Lovat-converted him at the eleventh hour; and he became from thenceforth the warmest and most eloquent supporter of the measure. We augur a

similar result with respect to divorce.

In the second place, we think all are pretty nearly agreed that the action at law and sentence ecclesiastical ought no longer to be considered indispensable preliminaries to divorce

à vinculo. If the jurisdiction to dissolve marriages be entrusted to a court competent wisely to exercise it, why should parties be compelled to go through a useless prefatory ordeal? Why clog the administration of justice with unnecessary expence-delay-annoyance-and humiliation to the suitors?

Holding, then, that there is at least an approach to unanimity on these two points - the question remains, and it is one of some difficulty-to what court ought this important, critical, and delicate jurisdiction to be committed? Some propose the Judicial Committee of the Privy Council. Others the Ecclesiastical Courts of London.2

We prefer the Judicial Committee; because the transfer of the jurisdiction to that tribunal would involve a change less violent and safer. The Privy Council was formerly, and, to a certain extent, is still, ancillary to Parliament. It is composed of the highest legal authorities. The masters of Equity, the oracles of Law, the heads of the Ecclesiastical Courts, and some even of the Reverend Prelates themselves, are there assembled. The course of proceeding in this high Court is governed by the principles and maxims of the law of the land. The rules of evidence too are the same as those of the Queen's other Courts; and when witnesses are examined, the examination is vivâ voce. The Judicial Committee moreover has power to direct issues for trial at law ad informandam conscientiam, as in the Court of Chancery. And we apprehend the remedy of divorce à vinculo might well be granted upon bill and answer

a form

1 Lord Brougham brought in a Bill for this and other purposes last session. It was referred to the select committee, whose minutes of evidence form one of the headings of this article.

2 Dr. Elphinstone is one of these. This gentleman has made several meritorious efforts to awaken the attention of the House of Commons to the subject of divorce. He contends that as the Ecclesiastical Courts are allowed to grant divorce à mensâ et thoro, they ought therefore to have the higher jurisdiction conferred upon them. Without offering any opinion upon the validity of this argument, we should be glad to know what is the precise extent of the existing jurisdiction of these Courts as regards the matrimonial contract. Is it quite clear that, as organs of the bishops, they have authority to deal with any marriages other than those celebrated in facie ecclesia? Not only Sir W. Scott but Sir W. Wynne have thrown out something more than a doubt on this head. (Lindo v. Belisario, 1 Hagg. Cons. Rep. 140.) Quære, have the Ecclesiastical Courts jurisdiction in the case of a marriage by dissenters before the Registrar in pursuance of Lord John Russell's Act?

of proceeding which was anciently the common course of the Privy Council. To give this jurisdiction to the Judicial Committee would only be reviving an ancient establishment: for the Privy Council throughout the Tudor reigns took cognisance of the higher description of causes matrimonial.1 Finally, the Judicial Committee is an open court-a Forum Commune. All professional men may practise before it; an advantage of unspeakable importance to litigants. For these reasons we think the experiment ought at all events to begin with the Judicial Committee.

It

The arguments in favour of the London Ecclesiastical Courts are stated in Dr. R. Phillimore's pamphlet2, which we regard as a collegiate manifesto indicating but too plainly the agitated throbbings of the pulse of Doctors' Commons. is in one respect a very curious performance; for while the learned writer maintains, with much apparent earnestness, that there ought to be no divorce à vinculo, even for adultery, he does not, as one would naturally expect from such reasoning, proceed to recommend that the jurisdiction to grant this remedy should cease altogether; but he advises that it ought to be forthwith conferred on the spiritual tribunals of the metropolis. He cites the philosophic Hume as an advocate for indissolubility; whereas Hume merely opposes polygamy and voluntary, that is to say capricious, divorces,1 This is well known to all who are conversant with the publications of the Parliamentary Record Commissioners.

2 In this pamphlet Dr. R. Phillimore states that the Duke of Norfolk's was the first divorce case in which a sentence ecclesiastical" had not been previously obtained." The first case so circumstanced was not the Duke of Norfolk's but the Earl of Macclesfield's-which last case, however, is not even mentioned by Dr. R. Phillimore. Again, he says Lord Roos's bill did not pass "till after three or four sessions." It passed the very session in which it was presented, and in the short space of five weeks. So in another place he would lead his readers to infer that a statute for the reform of the ecclesiastical laws was first enacted in 1549, whereas we have already seen that the first statute for that purpose was passed in 1533. The statute which Dr. R. Phillimore mistakes for the first, instead of being the first, was the fourth and the last legislative provision on the subject. The pamphlet altogether, though not ill written, is more rhetorical and declamatory than accurate or argumentative. It evinces little care, and less reflection. There is a plaintive tone about it, too, quite out of place in this discussion. The allusion to the "graceful melancholy" of the late Lord Auckland we do not understand. Neither do we entirely approve of the neglect of referential acknowledgment with which the learned doctor propounds as discoveries of his own some things pointed out by authors who have preceded him.

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 courts2 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. 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.