bigamy under the statute of James I.; and he was tried and convicted accordingly.*

What decision the English courts would pronounce in other cases depending on the solution of the above question, where the laws of the two countries may be supposed to interfere, such as an action for alimony brought against the husband in England, notwithstanding a previous divorce obtained by him in the Scottish courts, or the still more important claims of children, the issue, by another marriage, of a person so divorced, in questions of legitimacy and competition for patrimonial rights, does not appear from the present discussions, and is yet probably undetermined. The only point of civil right hitherto agitated, which has received an adjudication in the Scotch courts, is the competency of the divorce; but it is evident that, among a people so closely incorporated as the inhabitants of Britain, many other matters of deep concern are involved in that question, and many considerations arise which invest it with importance.

When we attend to the great interest which this inquiry must create, and the consequences which may follow in its train, there is reason to lament that none of the cases which form the subject of the present Reports were carried by appeal to the ultimate resort in the House of Lords; since it is impossible, perhaps, to imagine an occasion where it would have been more desirable to obtain a decision from the highest judicial authority in the empire. Unhappily for the settlement of the law, and the satisfaction of the public mind, that tenaciousness of right and privilege which invigorates the suitor in almost every other judicial contest is, in many cases of the present description, altogether wanting. Here alone the litigious spirit is weak, and the ingenuity, if roused at all, is usually exercised in extenuating some relevant plea; or, perhaps, in the still more reprehensible endeavour, by mutual if not concerted efforts, to obscure the facts and mislead the judge. Should the object of the suit be agreeable to the secret wishes of both parties, although no collusive acts may be discovered, and perhaps none have taken place, all that is done or thought of on either side is to go through the necessary forms and ceremonial of law, so that the decree of the judge may proceed with somewhat of the wonted solemnity. So far from being a real adversary, the defendant is at best but a willing victim of the law. Whatever obstacles may occur are usually interposed, not by the suitors, but the court, who will, as far as depends upon them, guard against abuses of their authority, by receiving no concession at the expense of the law, and by thwarting all attempts

In the case of Lolly at the Lancaster Assizes. The precise date does not appear.

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to defraud it. But, even though wisdom wake,' the means which it can thus employ fall short of that ample security which is afforded on other occasions. No sooner is a judgment obtained which suits the view of the parties than all procedure suddenly stops: no desire is shewn to have the case reviewed, no redress sought by the losing side, no complaint to superior courts; all is silent and acquiescing. Some of the most important cases which form the subject of the present Reports, and some of the leading points discussed in them, appear to have been decided by a single judge of one division of the Court of Session, in a preliminary stage, at which few if any cases of magnitude or interest are ever permitted to rest; and would not probably have reached that court of review at all, had not the decree of the primary tribunal been unfavourable to the claimant.

The reader,' says Mr. Fergusson, in his introduction, will not fail to perceive that the judges in the primary tribunal have in these causes been obliged to struggle with difficulties of no ordinary kind. For there is but one instance in all the actions that have been maintained before them for the dissolution of English marriages where the lex loci contractus has been seriously pleaded by the defender, and not one where the lex domicili has ever been really maintained at the bar. Indeed, all the parties, in all their pleadings, have with the greatest anxiety excluded from view a point which, to the radical court, has seemed extremely material; namely, whether a distinction does not exist between those circumstances which are necessary to found jurisdiction, and those which determine whether the municipal or the foreign rule of law is to be applied. If this conduct has proceeded from a mutual wish of both pursuers and defenders that the divorce should take place, it is evident that they had a joint interest to suppress the objection arising from the want of a real domicil here; and they have certainly accomplished their purpose with singular ability and address.'

In these circumstances, and in the obvious expediency which exists that this part of the law should be clearly understood by the nation at large, it is evident that a publication of the cases themselves must be highly useful; and the execution of this task by one whose opportunities, station and professional knowledge, particularly qualify him for the undertaking, was, in our opinion, at once a duty and a service to the community.

The present work seems to be the first publication of any decisions pronounced in the Scottish Consistorial Court, or of decisions pronounced by any except the supreme courts of justice in that kingdom; and the author has, in his preface, satisfactorily shown, that owing to the circumstances which attended these actions of divorce, and the nature of the court into which they came, there is, on one hand, much of the proceedings which could not appear in the reported decisions of the Court of Session, which

acts as a court of review; and that, on the other, a full account of what took place in the original court could only be expected from one of the judges in that tribunal itself.* We conceive, indeed, that there are other and very powerful reasons which give a peculiar value to this publication; namely, that the subject of which it treats may be expected almost necessarily to attract the attention, not of lawyers and courts only, but of the legislature: for if those points, which have already been determined by the courts of justice in the two parts of the united kingdom, shall be considered as ultimately fixed, some measures, not within the province or the power of such tribunals, would appear to be requisite for reconciling the opposite rules by which they are severally bound to administer the law-measures which would, in that case, be essential for the happiness of individuals, and the peace of families, throughout the nation.

Had this been strictly a subject of law, or requiring to be treated in a forensic style, we should not have selected it for general notice; and, in the account which we think it our duty to give of the questions discussed in the volume before us, we shall endeavour, as far as possible, to avoid the use of technical language, and the formalities of legal disquisition. Before stating those particular cases which the learned author has selected for his Reports, we shall premise a few observations respecting the court in which they have been determined, and the nature of its jurisdiction.

COMMISSARY COURT.-When the judicial power which came to be vested in the Roman Catholic clergy was, in common with the other privileges which they held under authority of the Pope, abolished at the time of the Reformation, there would have been either a general failure of justice, or an assumption of jurisdiction by some other tribunal, in those causes and matters of which the bishops and their officials had gradually acquired an exclusive cognizance, if an immediate provision had not been made for the dispatch of such cases. This was accordingly done in Scotland under royal authority; first, by a new nomination of Commissaries, one for each diocese; and again, soon after, by the establishment of a Commissary (or Consistorial) Court at Edin

It is observed by Mr. Fergusson, in his Introduction, that no professed institute of Consistorial law, or body of Decisions by the Scotch courts in consistorial causes, has been yet published; and we cannot help viewing this as a very considerable defect, in a department of the law so important, and at the same time so peculiar, as that committed more immediately to the jurisdiction in question. As the records of the Commissary court are stated to be extant from an early period, and the reports of cases adjudged in the Court of Session are published in continued series for more than 200 years, the materials cannot be supposed wanting for the compilation of a more enlarged digest of the consistorial law and decisions, than the present work could be expected to furnish, or appears to have hitherto been attempted.

burgh,

burgh, consisting of four judges, with more ample powers, which were defined by subsequent instructions or ordinances, and ratified by various acts of the legislature. To this court in particular was committed, in 1666, the power of deciding in all suits for declaring nullity of marriage, and in all actions of divorcement, to the exclusion not only of other civil courts in the first instance, but also of the inferior or provincial commissaries by whom that jurisdiction had been possessed during the papal government. And further, by their original constitution, in 1563, the commissaries of Edinburgh were authorized to review the sentences of all other commissaries within Scotland. These powers they have possessed ever since. Again, when the right, or practice rather, of taking appeals to the Bishop of Rome was prohibited at the Reformation, all parties engaged in such appeals were, by act of parliament, in 1560, authorized to sue or defend the same before the Court of Session, or other temporal judges of the realm: and by a later statute, in the reign of James VI. (1609. chap. 6.) it was provided that the Court of Session should have power to judge of all decrees and sentences of the Commissaries of Edinburgh, alleged to be wrongously pronounced by them;' and his majesty grants them a supreme commission for this purpose, authorizing them to advocate causes to themselves, (assume jurisdiction,) from any of the Commissaries, on lawful complaint made to them, but not otherwise. On this footing the jurisdiction still continues. In those which were formerly termed spiritual causes, the Commissaries possess a privative or exclusive jurisdiction; in certain other cases, not necessary to be here mentioned, they hold a concurrent jurisdiction with other civil courts. They are a supreme court, in respect of the review exercised by them over the other commissariats; but, so far as they are themselves subject to review by the Court of Session, they are inferior and subordinate. As, however, the Session had no original jurisdiction in consistorial causes prior to the statute 1609, they can only judge of them upon appeal, and do not entertain such actions in the first instance. Nor do they, even upon appeal, pronounce the sentence themselves, but send the case back to the Commissaries, instructing them what judgment to give, or in what manner to proceed.

JURISDICTION OF THE COMMISSARIES.-The nature of that jurisdiction which is vested in the Consistorial Court is peculiar and anomalous; of which the reasons might easily be found in the character of those tribunals which they superseded, and the circumstances out of which they originally grew. Whatever pretensions were made by the Roman Catholic clergy in support of their jurisdiction, and under whatever names they found it conve

nient to shelter its exercise, it appears to have been little else than a system of encroachment on the civil power.

When the Reformation put an end in both countries to the popish courts and authority, the jurisdiction was not claimed by the civil or ordinary courts, nor had it ever been vested in such of them at least as were then established. In England, where the episcopal form of church government continued, the chief alteration then made was in the manner of appeal from the ecclesiastical courts, which were now subjected to the regal in place of the papal authority. Accordingly, by 25 Henry VIII. c. 19. an appeal lies from the court of the archbishop to the king in chancery, as supreme head of the church, and who exercises this jurisdiction by delegates appointed under the great seal. In Scotland, where the episcopal was abolished for the presbyterian church government, the jurisdiction exercised formerly by the bishops was, as already observed, committed in the first instance to Commissaries named by the crown; and their decisions were made subject to review by the Court of Session, as the king's supreme court of civil jurisdiction in Scotland.

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As to the extent or sum of jurisdiction possessed by the Consistorial Courts within the two countries, and particularly in causes matrimonial, which is the only subject of concern at present, it is of course regulated by the several laws of each kingdom. When the Council of Trent, in 1563, pronounced a curse on those who maintained the dissolution of marriage by judicial sentence, this doctrine, it is well known, did not obtain a reception in all Catholic countries; and, although the discipline respecting marriage, as prescribed by that council, was in the end adopted by the English church, there is some reason to suppose that, down to the beginning of the seventeenth century, divorce, or dissolution of marriage, for adultery, might be obtained by law in the courts of England; and that the opposite rule was adopted on the authority of Archbishop Bancroft and other divines, in the case of Foljamb, decided by the Star Chamber in the 44th of Elizabeth. According to the law of England, however, as now completely settled, no divorce can be pronounced by any court of law of a marriage which has been legally constituted; but the

A divorce for adultery was anciently a vinculo matrimonii, and, therefore, in the beginning of the reign of Queen Elizabeth, the opinion of the Church of England was, that after a divorce for adultery the parties might marry again. But in Foljamb's case, anno 44 Elizabeth, in the Star Chamber, that opinion was changed, and Archbishop Bancroft, upon the advice of divines, held that adultery was only a cause of divorce a mensa et toro.'-Salkeld. Title, Divorce.

But see Milton's Doctrine and Discipline of Divorce;' from which it would appear that the latter rule was not conclusively established in the English aw, even at a much later period—an inference which may, perhaps, be supported by the terms of the statute mes I. chap. 11.

sole