Imágenes de páginas
PDF
EPUB

and proctors as well as common-law lawyers or common-law students. Any exclusion indeed would be not only invidious but impossible.

The only question is, whether any share in the government of the University should be given to attornies and solicitors. As a good understanding between the different branches of the profession is in an eminent degree desirable, being greatly for the benefit of each, there seems no harm in allowing an eighth member to be added to the council, the head of one of the Inns in Chancery, taken in rotation, or one yearly elected by the three heads of these Inns. This would be agreeable to that branch of the profession, and would be also of great use in the conduct of the University's affairs.

A question may arise if this University ought to grant degrees of bachelor of laws. It is not very material. But one thing seems clear: a certificate of two years' attendance at different classes being given by the professors respectively, and also a testimonial of good conduct, ought to have the effect of saving the party from two of the five years required by three of the societies1 previous to admission as a barrister. At present the degree of master of arts at Oxford, Cambridge, or Dublin, wholly unattended with a certificate of ability, and without any regard to legal education at all, saves these two years at all the Inns of Court. Yet the being a Scottish barrister has no such effect. There is in this a great inconsistency, which the benchers might in each Inn easily remove, and the certificate above proposed appears to be the proper

course.

How far certificates of study should be made necessary to being admitted barristers is scarcely a question. Either such certificates or actual examination seems to be indispensable, else the establishment of a University would be a mere form. Perhaps the best course would be, considering the intimate connection between the proposed institution and the four societies, to leave the regulation of this important and delicate matter to the deliberations of the council. Such are our opinions upon this subject; all which is respectfully submitted to the bench, the bar, and the public.

1 In the Middle Temple, we believe that three years are now sufficient, provided the person to be admitted is twenty-three years of age.

ART. VII. — DIVORCE.

1. Minutes of Evidence taken before the Select Committee of the House of Lords appointed to consider of the Bill for the better Administration of Justice in the Judicial Committee of the Privy Council, and to extend its Jurisdiction and Powers. Session 1844.

2. Thoughts on the Law of Divorce in England. By ROBERT PHILLIMORE, Advocate in Doctors' Commons, and Barrister of the Middle Temple. 1844.

FROM an early period in the history of the Catholic Church marriage was considered a sacrament. Consequently no human authority could rescind it; unless perhaps the Pope, as God's Vice-gerent upon earth, had the power of dissolution, a power which he but rarely, if ever, exercised. The law of divorce therefore in this island, as in the rest of Europe, acknowledged throughout the cardinal principle of indissolubility.

[ocr errors]

To set aside a marriage in the Catholic times it was necessary to show that the marriage itself was invalid. Conjugal infidelity furnished a ground for separation. But nothing short of death itself could release the nuptial bond. The course therefore was to assert some obstructing antecedent impediment, as a previous betrothment, undue consanguinity or affinity, physical incompetency or mental incapacity. Any one of these points established, the marriage thereupon was declared null ab initio. But if originally valid, it was under all circumstances positively and absolutely indissoluble. The hardship of such a state of things would have been great, or rather would have been intolerable, were not the Catholic tribunals, we are well assured, in general very liberal and indulgent in their construction of legal impediments to matrimony. Every one knows how much it was the policy of the Roman Church to multiply these

impediments;—the power of dispensation having been for many centuries a fruitful source of ecclesiastical revenue. To this end the spiritual lawyers, the Canonists, invented many ingenious fictions, distinctions, and refinements, which made it in most instances no very difficult matter to annul a marriage. The most remarkable of all their contrivances in this kind was that by means of which the legitimate impediments of consanguinity and affinity were extended to a preposterous extreme. For not only did they forbid marriage with a seventh cousin, but they held that the relation of affinity might be contracted by mere commerce between the sexes. And having once established this position, they deduced from it many startling conclusions. Thus if a man had carnally known one sister, it would have been incest in him to marry or to have sexual intercourse with the other sister or even with any of her relatives to the seventh degree; because, said the Canonists, an affinity resulted from the commerce with the first sister which affected all her relatives standing within the scope of the seven proscribed degrees. Fornication therefore according to these authorities was as much the parent of affinity as matrimony itself. In proof of which assertion we may refer to the notable case of Margaret widow of James IV. of Scotland'; who after the King's death having intermarried with Lord Methven, attempted to get rid of that nobleman by a sentence of the Ecclesiastical Court on the ground that before the marriage she had been, (as the record expresses it), carnaliter cognita by her husband's fourth cousin the Earl of Angus. And to the same effect is the case of Henry VIII. and Anne Boleyn. For when the cruel parent of the English Reformation invoked the aid of the spiritual court to divorce his second wife, he did so, not on the ground of her alleged adulteries, but on the ground of two distinct canonical impediments, namely her pre-contract with Northumberland, and his own pre-intercourse with her sister Mary, whom we are told by Catholic writers the first Defender of the Faith had maintained for years as his concubine. Attempts have been made to vindicate Henry from this stain upon his

1 Riddell's Scots' Peerage Law, p. 187.

memory. The story of his connexion with Mary Boleyn is denied by all good Protestants. But whether true or false, it serves to throw light upon the point now under consideration; and shows that the institutions of the canon lawyers ministered well to the passions of any husband who might happen to combine the character of a libertine and a tyrant. In fact parties who sighed for their liberty did not often in those days sigh in vain; for wherever a marriage became hateful to one or other, or both, of the spouses, the Canonists rarely failed to demonstrate that it was invalid; the only proof required by the court being the mere confession of the parties.1 Yet these impediments, with the long train of sublimated subtleties which attended them, were not always oppressive to the laity. They were occasionally found to be a real accommodation and convenience. Thus in cases of adultery the injured party had no more stringent remedy than divorce à mensâ et thoro· a sort of insult rather than a satisfaction to any man of ordinary feelings and understanding. But if by the fertile exercise of canonical ingenuity some antenuptial disability could be suggested, complete redress would be given; for the contract would be pronounced invalid, and both parties would then have their freedom. The labours of the Canonists therefore in this department ought not to be the subject of indiscriminating censure; since by means of them the community was in a great degree protected from the harsh and unbearable consequences which would otherwise have followed an undeviating adherence to the iron doctrine of indissolubility.

Such was, and perhaps still continues to be, the Roman Catholic system of divorce à vinculo matrimonii; a system objectionable and mischievous in many ways, but chiefly so in this, that it almost invariably did something essentially different from that which it professed to do. For while the true object in most cases was to rescind, the avowed object in all was to annul the matrimonial contract; thus effecting covertly

The statute 32 Hen. 8. c. 38., speaking of the canonistic devices, states in its recital, "that no marriage could be so surely knit and bounden, but it should lie in either of the parties' power to prove a pre-contract, a kindred and alliance, or a carnal knowledge, to defeat the same."

and indirectly a purpose which, when sought on proper grounds, required no disguise, being at once reasonable in itself and unequivocally permitted by Divine authority.

At the Reformation marriage ceased to be regarded as a sacrament; and the doctrine of indissolubility fell speedily to the ground. It had, in fact, no support either in the Old Testament or in the New. "Be thou expelled from me, and free for any one else," were the words of divorce under the Jewish theocracy.' By the modern dispensation the same liberty was continued; for when the Scribes and Pharisees came to tempt our Saviour with the question whether it were lawful for a man to put away his wife for any cause, (as they said Moses had permitted them to do,) the Divine Teacher answered that it was not lawful, "except for adultery;" evidently intimating that for that offence it was lawful. No one, indeed, can read the 5th and 19th Chapters of St. Matthew's Gospel without being convinced that adultery is a scriptural ground of divorce. In the same way it soon became apparent that the restrictions of consanguinity and affinity, when pushed to the absurd extreme which has just been pointed out, were unwarranted by any thing to be found in the Sacred Writings. And it was agreed that there ought to be no prohibition of matrimony beyond the limits of God's law, as unfolded in the 18th chapter of Leviticus; while, on the other hand, all marriages within those sacred boundaries were adjudged incestuous and illegal, and utterly above the reach of ecclesiastical dispensation.o

In this state of public opinion, it became necessary to institute a general revision of our ecclesiastical jurisprudence; with which view an Act was passed in 15333, authorising

1 See Bishop Cozens' argument in Lord Roos's case, 13 State Trials, 1833. It is also given in Macqueen's Parliamentary Divorce, p. 554.

2 32 Hen. 8. c. 38.

3 25 Hen. 8. c. 19. s. 2. That the King's Highness shall have power and authority to nominate two-and-thirty persons, whereof sixteen to be of the clergy and sixteen to be of the temporalty of the Upper and Nether House of Par. liament, and that the same two-and-thirty shall have power and authority to view, search, and examine the canons, constitutions, and ordinances, provincial and synodal, heretofore made, and such of them as the King and the said two-and-thirty, or the more part of them, may deem worthy to be continued,

« AnteriorContinuar »