insisting on the perpetuity of marriage, the courts are compelled to throw equal suspicion on the most irregular and the most formal celebration, and tacitly to connive in collusive agreements for divorce which no circumspection can penetrate, and no power can resist. The natural result is extreme uncertainty in the contract of marriage, and extreme facility in the practice of divorce. Such flexibility of the law is unknown in England, where every man is assured of the validity of his own marriage, and few men venture to speculate on the possibility of its dissolution.

In these respects England may derive a lesson of useful admonition from the sister kingdom: but the Scotch principle of the dissolubility of marriage demands not the faint contemplation of the theorist, but the immediate interest and interposition of the legislator, from the jurisdiction which has been claimed to the Scottish courts for the dissolution of marriages not contracted under the Scottish law. Persons married in England or Ireland, and pledged under the law and ritual of those countries to an indissoluble engagement, or at least not entertaining at the time of the contract the remotest views of its dissolution, have by an accidental or intentional residence in Scotland placed themselves under the jurisdiction of her courts, and laid claim to the redress which those courts are competent to afford. Hence arises an important question, whether respect is due to the law of the place of contract, which holds the indissolubility of marriage, or to that of the place of actual residence, in which the offence is committed, the redress is claimed, and the dissolu

tion of marriage is approved". On this point the courts are divided, and the question is agitated with all the acuteness of legal erudition. The question has been submitted to the House of Lords, but not in such a form as to obtain a decision. An opinion only of high authority has been delivered, that nothing short of an Act of the legislature can dissolve an English marriage, and the opinion has been confirmed by the sentence of the twelve judges on a point reserved from the court of Assize at Lancaster, in which a man divorced by the sentence of the Scotch court for adultery and married to another woman was indicted for bigamy and convicted. If the same man, having been divorced in Scotland, had been again married, and continued to reside in Scotland, the law of that country would have recognized the marriage, and protected its civil effects, which the English court was so far from respecting as to admit the proof of bigamy'.

It is less necessary to enter into the principle of the legal question, than to state its practical operation and effects.

"It must be evident, that the claims to mutual

The Scotch courts also entertain the suit of the woman, which has been very seldom admitted in the parliamentary divorces of the English law, and thus entitle her to a remedy to which she has no right in her own country, on which she could not have calculated, and in the refusal of which she is deprived of no privilege, but is merely debarred from taking an accidental advantage which must have been always foreign to her thoughts. Quart. Rev. No. xlix. p. 253.

Fergusson, p. 108, 390. Quart. Rev. No. xlix. p. 267.

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forbearance and respect, which the jus gentium supports between independent nations, were infinitely strengthened and augmented in this case by the peculiar nature of the connexion between the kingdoms of Great Britain. It is equally evident, that there is no subject upon which it is so essential that these claims should receive due attention, as the municipal laws of marriage and divorce: for while the three nations of England, Scotland, and Ireland, politically form one people, their several municipal rules are so discordant as to afford great temptation to married parties of the other countries to seek the dissolution of their conjugal relation in Scotland, and thus to defraud the law of England. It has been seen in the case of Lolly, that a divorce a vinculo of an English marriage would not protect an English party from the pains of bigamy for marrying again in England. But a second marriage of such a party in Scotland is valid by the law of this country. Hence the most distressing collision must frequently arise, and endless contests of the most painful and injurious description are to be apprehended upon the rights of legitimacy and succession among the descendants of such parties". The spouses might still be held as bound to each other in England, although declared free in Scotland: subsequent marriages might thus be considered valid in one country and null in the other, to the great danger of the parties, and with the most fatal effects to their offspring and to the good order of society."

Fergusson, p. 154.

'Fergusson, p. 38. Compare p. 41. Thus "persons may at the same time be married in one place and unmarried at another;

"It is at the same time but too plain, that the dissolution of English marriages by the Scottish divorce for adultery must operate as a public and general invitation to all the married of the sister kingdoms, who are tired of their union and profligate in their manners, to come into Scotland and pollute the country with their crimes for the very purpose of regaining freedom. The records of the consistorial courts within the last ten years afford too much reason for believing that the danger is not ideal, and it is easy to foresee, that, if the practice of granting such divorce in these cases shall be once fully established, the evil must increase to a degree infinitely prejudicial to the purity of morals among the people of Scotland". There is no injury that can result from the denial of divorce to persons in this situation which can in any degree equal the shock which the public decency and the moral feelings of the country must infallibly sustain, by accustoming its inhabitants to the spectacle of crime under a new and unheard of aggravation. Among the cases, which have of late years occurred, of divorces sued for in this court, it is much to be feared, that they have witnessed this crime, the commission of which they had hitherto been led to consider as originating in the impulse of guilty passion, rise a step higher in the scale of moral depravity, and actually perpetrated with wilful, deliberate, and daring

be entitled by this law to important privileges, be obnoxious by that to degradation and punishment-a situation productive of unspeakable distress and disorder inextricable. Quart. Rev. No. xlix. p. 256.

Fergusson, p. 110.

profligacy, for the express purpose of obtaining an object denied to the parties by the laws of their own country. This is to exhibit a specimen of depravity so shameless and so utterly abandoned, as to admit of no adequate terms of reprobation; and were the case at issue on this point alone, I think a court would do well to pause before it pronounced a decision that could lead even indirectly to such alarming and revolting consequences*."

The strong predilection for the dissolubility of marriage, which prevails in Scotland, would render it highly impolitic to interfere with that principle under the proper jurisdiction of the Scottish courts, or to accelerate its amendment, except on the suggestion of her native writers, and in accordance with the improved apprehension of the people on the true state and law and doctrine of marriage and divorce. But on the question of English marriages, the unseemly division of court against court and judge against judge; the official execution of sentences of divorce, rather dictated by the higher than approved in the inferior courts; the jealousy with which such suits are entertained; the collusion with which they are conducted; and the fatal effects which they are reported to produce ;-all agree in recommending the necessity of revision and reform: and without balancing or compromising the principles of dissolubility or indissolubility, respectively maintained by the Scotch and English laws; without waiting the contingency of a decision in the House of Lords, and the accumulation of disputed and doubtful cases in

* Fergusson, p. 356.