Reports of some Recent Decisions, by the Consistorial Court of Scotland, in Actions of Divorce, concluding for Dissolution of Marriages celebrated under the English Law. By JAMES FERGUSSON, Esq. Advocate, one of the Judges. 8vo. pp. 470. Constable and Co. Edinburgh, 1817.

THE Volume now before us contains a very able discussion of a most interesting and important question of international law-the question, we mean, Whether the Consistorial Court of this country does or ought to possess the power of dissolving marriages contracted in England, on account of adultery committed in Scotland?

In Scotland, marriage is held to be merely a civil contract, constituted by the consent of the parties, and dissoluble by the Consistorial Court on proof of adultery. In England, on the other hand, marriage cannot be constituted by the mere consent of the parties; it requires the intervention and benediction of a priest, and, when once constituted, cannot be dissolved by judicial sentence. In the event of infidelity in either of the parties, all that the Consistorial Court of England can do, is to pronounce sentence of separation a mensa et thoro;-the higher remedy of divorce a vinculo matrimonii can only be obtained by a Legislative act, which it is both difficult and expensive to procure.

The Consistorial Court of Scotland has, for time immemorial, possessed the power of dissolving marriage; and till lately, it exercised that power, without scruple, in the case of all persons found within its jurisdiction, whether Scotch or English, and whether the marriage had been celebrated in Scotland or in England. The attention, however, of the Judges of our Consistorial Court, was lately attracted, in a very particular manner, to the nature of English marriages, and to the question, whether they ought to be held dissoluble in a Scotch court, by the following circumstances: In the first place, actions of divorce, for the dissolution of English marriages, had become very numerous; in the second place, Lolly, an Englishman, who had married in EngJand, after having been divorced by the Consistorial Court of Scotland,

was tried for bigamy, and found guil-
ty; the twelve judges having deli-
vered an opinion on a reserved case,
"that a marriage, solemnized in Eng-
land, was indissoluble in any other
way than by an act of the Legisla-
ture;" and, in the third place, the
Lord Chancellor, after making a speech
which indicated that he doubted
strongly of the power of the Consis-
torial Court of Scotland to dissolve
English marriages, remitted the case
of Lindsay and Tovey to the Court
of Session to reconsider that point.
These circumstances arrested the atten-
tion of the Commissaries, and pointed
out to them the extreme danger of
dissolving English marriages. They
could not help viewing, with pain,
the circumstance that, notwithstand-
ing their sentence, parties marrying
again in England were held to be lia-
ble to punishment for bigamy. The
result was, that they bestowed upon
the question the most deliberate con-
sideration, and came to the conclusion,
that they had no power to dissolve
marriages contracted in England, be-
tween English parties, merely on their
being found and cited in Scotland to
an action of divorce.

We do not mean to enter into a detail of the particular cases reported in the volume now before us. It is our intention merely to give a general view of the questions discussed relative to the dissolution of English marriages in Scotland. We refer those who may wish more information to the book itself, and have no hesitation in saying, that, from a perusal of the reports it contains, and from the valuable appendix with which it is accompanied, they will receive much gratification and instruction upon a subject embracing a variety of the most important questions of international law.

The first question to which the Commissaries directed their attention seems to be, Whether an Englishman, who had been married in England, and who had come to Scotland without any intention of taking up a permanent residence, became amenable to the Consistorial Court of Scotland in an action of divorce? Although this is not the most general and important question discussed in the volume under review, yet it is one of considerable difficulty. In Scotland, there are two kinds of domi◄

cile; the one real, where the party has made Scotland the place of his permanent abode; and the other presumptive, assumed by a fiction of law, from a forty days' residence in it. The object of this presumptive domieile appears to be, to found jurisdiction against foreigners in ordinary civil suits. It does not seem to alter the nature of the obligations incumbent upon him, or the duties he ought to perform in his own country. Hence, the Commissaries seem to have thought, that, as marriage is indissoluble in England, except by an act of the Legislature, the parties could not, by removing to Scotland for a short time, acquire a domicile, to the effect of entitling the Consistorial Court of this country to convene them before it, for the purpose of dissolving a marriage which, by the laws of the country where it was constituted, and to which the parties must be held to have had reference, was indissoluble. As to marriages constituted in England, the parties stood bound to fulfil the obligations incumbent on them only in that country, and hence redress fell to be sought according to the law of the place where they stood bound to perform their engagements. Accordingly, they found in the case of Tewsh, that as the defender had not taken up a permanent residence in Scotland, they had no jurisdiction to dissolve his marriage, which had been contracted in England. The Court of Review, however, entertained a different opinion of this question. The Judge of that Court (the Court of Session), who remitted the case to the Commissaries, with instructions to alter their judgment, held, that the relation of husband and wife is a relation acknowledged by the law of nations, that the duties and obligations incident to that relation, as recognised by the law of Scotland, and the right to redress wrongs thence arising, attach on all married persons living within the territory subject to that law, without regard to the place where their marriage may have been celebrated, and that the right and duty of the Consistorial Court to administer justice in such a case over persons not natural-born subjects, arose from their voluntarily rendering themselves amenable to the laws of the country, by living within its territory at the time of citation,

But the great question which seems to have engaged the chief attention of the Commissaries, and which is most amply discussed in these reports, is, Whether the Consistorial Court of Scotland have power to dissolve a marriage celebrated in England, between English parties domiciled here? It is impossible to give a correct abridgment of the able opinions of the Commissaries on this very important question; but the general outline may be stated thus:-There is a radical difference betwixt the law of England and of Scotland as to marriage and divorce. In England, marriage is indissoluble by judicial sentence. The question must be decided either according to the law of domicile, or the law of the place of contract. In a question of this kind, the lex domicilii is not a safe rule of decision. There is a wide difference betwixt a domicile sufficient to found a jurisdiction, and a domicile sufficient to regulate the decision of a question of permanent situation. The real do micile of the parties is in England— the domicile acquired in Scotland is merely sufficient to found jurisdiction. If the law of domicile, therefore, is to be the rule, the question falls to be decided according to the principles of the English law. The preferable rule, however, by which to decide the question, is the law of the place of contract. The principle of comitas, in virtue of which foreign contracts are expounded according to the law of the country in which they are entered into, ought to extend the length of inducing the Court to decline to do what the courts of England could not do. The genius of the law both of England and Scotland favours the perpetuity of marriage; hence there is nothing in the law of Scotland to prevent the Court from respecting the indissoluble quality of an English marriage. The law of nations is acknowledged in Scotland to regulate all foreign contracts; and there is nothing in the nature of a marriage contract to prevent the application of that principle, As to expediency, it is quite obvious that it is hostile to the interference of the Court with marriages contracted in countries where they are held to be indissoluble by judicial sentence, An opposite construction would amount to a public invitation to all married persons in the sister kingdom, tired of their union,

isles which lie scattered over the bosoms of the Southern and the Pacific Oceans, the views of scientific men were naturally directed towards Africa, where nearly a whole continent remained to be explored. Hitherto the knowledge of Europeans, with regard to that immense continent, extended little beyond its coasts. The northern regions, indeed, were tolerably well known, both from the ample description given of them by Leo Africanus, early in the sixteenth century, and from the intercourse to which their vicinity invited the southern nations of Europe. The Portuguese, who have the glory of being the first modern nation that explored its western and eastern shores, had established many factories, particularly on the rivers in the west; and in their attempts to penetrate into the interior, they became acquainted with several kingdoms and countries, which had never before been heard of by any individual north of the Mediterranean. On the western coast, the kingdoms of Benin, Congo, Angola, Matamba, and Loan go; on the eastern, Sofala, Mozambique, Quiloa, Mombaza, and Melinda, besides the great empire of Abys sinia, were first made known to Europeans by the Portuguese, whose missionaries, had they been men of intelligence and science, possessed ample opportunities of collecting information concerning the customs, laws, government, and religion, of these various kingdoms. The Portuguese monarch had assumed the additional title of King of Guinea; and the advantages which he was supposed to derive from his settlements in Africa, would probably have directed to the same quarter the spirit of enterprise and activity which then began to prevail in Europe, had not the doubling of the Cape of Good Hope opened to the merchant more alluring prospects in India; while the recent discovery of America presented a new world to the cupidity, or curiosity, of the adventurer. The profits arising from the detestable traffic in slaves, had induced some of the European States to form settlements on the western coast of Africa. The English, French, and Spaniards had, for this purpose, established factories to the north of the equator; from the equator to the tropie of Capricorn, the Portuguese had similar establishments, both on the

eastern and western shores; and the Dutch had regularly colonized the Cape of Good Hope. But these settlements had introduced Europeans to a very trifling distance from the coast, while they seemed to shut up the interior more closely than ever from European curiosity. By their avarice and oppression, the settlers had excited the natural indignation of the natives against Christians; and the arts of the slave merchant, by increas ing the frequency of their wars, heightened the ferocity of their various tribes, and thus rendered it more dangerous for a white adventurer to appear amongst them.

"The geography of Africa," says Leyden, "extended very little within its coasts; a few positions were ascertained, and a few lines traced on the margin of the map; while the interior was a charta rasa, an extended blank of immense size, where every thing was unsettled and uncertain. On this desart space, the geographer, following blindly the steps of Edrisi the Nubian, traced the uncertain course of unexplored rivers, and a few names of towns equally unknown. The course of the Niger, the rise and termination, nay, the separate ex. istence of that stream, were equally unde termined. Since De la Brue and Moore, half a century had elapsed, but the Senegal had not been explored beyond the falls of Felu; nor the Gambia beyond those of Baraconda." (First Edition, Chap. I.)

The scanty knowledge which was obtained of some parts of the interior, had been derived chiefly from the exertions of a few enterprising individuals who had penetrated in different directions these generally forbidding regions. Caffraria, which had been partly traversed by Dr Sparmann between the years 1772-6, and by Mr Paterson 1777-8, was afterwards more fully explored by M. Vaillant, who has described the situation, political state, customs, and manners of various nations, till then unknown to Europeans even by name; though the indulgence which he seems to give to his fancy considerably impairs the authenticity of his narrative. Nubia and Egypt had been visited by Norden, whose picturesque and interesting journey was published in 1755; and Bruce, after a long residence in Abyssinia, published in 1788 his minute but entertaining account of the geography, the government, customs, and manners, of that singular kingdom.