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Reports of some Recent Decisions, by was tried for bigamy, and found guil
the Consistorial Court of Scotland, ty ; the twelve judges having deliin Actions of Divorce, concluding vered an opinion on a reserved case, for Dissolution of Murriages cele- “that a marriage, solemnized in Engbrated under the English Luw. By land, was indissoluble in any other JAMES FERGUSSON, Esq. Advo- way than by an act of the Legislacate, one of the Judges. 8vo. pp. ture ;" and, in the third place, the 470. Constable and Co. Edin- Lord Chancellor, after making a speech burgh, 1817.
which indicated that he doubted
strongly of the power of the ConsisThe volume now before us con- torial Court of Scotland to dissolve tains a very able discussion of a most English marriages, remitted the case interesting and important question of of Lindsay and Tovey to the Court international law ;-—the question, we of Session to reconsider that point. mean, Whether the Consistorial Court These circumstances arrested the attenof this country does or ought to possess tion of the Commissaries, and pointed the power of dissolving marriages con- out to them the extreme danger of tracted in England, on account of adul- dissolving English marriages. They tery committed in Scotland ?
could not help viewing, with pain, In Scotland, marriage is held to the circumstance that, notwithstandbe merely a civil contract, constitut- ing their sentence, parties marrying ed by the consent of the parties, again in England were held to be liaand dissoluble by the Consistorial ble to punishment for bigamy, The Court on proof of adultery. In result was, that they bestowed upon England, on the other hand, mar- the question the most deliberate conriage cannot be constituted by the sideration, and came to the conclusion, mere consent of the parties; it re- that they had no power to dissolve quires the intervention and benedic- marriages contracted in England, betion of a priest, and, when once con- tween English parties, merely on their stituted, cannot be dissolved by judi- being found and cited in Scotland to cial sentence. In the event of infi- an action of divorce. delity in either of the parties, all that We do not mean to enter into a dethe Consistorial Court of England can tail of the particular cases reported in do, is to pronounce sentence of sepa- the volume now before us. It is our ration a mensa et thoro ;-the higher intention merely to give a general remedy of divorce a vinculo matrimo- view of the questions discussed relanii can only be obtained by a Legis- tive to the dissolution of English lative act, which it is both difficult marriages in Scotland. We refer and expensive to procure.
those who may wish more information The Consistorial Court of Scotland to the book itself, and have no hesihas, for time immemorial, possessed the tation in saying, that, from a perusal power of dissolving marriage; and till of the reports it contains, and from Iately, it exercised that power, with- the valuable appendix with which it out scruple, in the case of all persons is accompanied, they will receive found within its jurisdiction, whether much gratification and instruction upScotch or English, and whether the on a subject embracing a variety of marriage had been celebrated in Scots the most important questions of inland or in England. The attention, ternational law. however, of the Judges of our Consis- The first question to which the torial Court, was lately attracted, in Commissaries directed their attention a very particular manner, to the na- seems to be, Whether an Englishture of English marriages, and to man, who had been married in Engthe question, whether they ought land, and who had come to Scotland to be held dissoluble in a Scotch without any intention of taking up a court, by the following circumstan- permanent residence, became amenaces; In the first place, actions of di- ble to the Consistorial Court of Scotvorce, for the dissolution of English land in an action of divorce ? Almarriages, had become very nume- though this is not the most general rous; in the second place, Lolly, an and important question discussed in Englishman, who had married in Eng- the volume under review, yet it is one land, after having been divorced by of considerable difficulty. In Scotthe Consistorial Court of Scotland, land, there are two kinds of dorni. In Eng
cile; the one real, where the party But the great question which seems has made Scotland the place of his to have engaged the chief attention of permanent abode ; and the other
the Commissaries, and which is most sumptive, assumed by a fiction of law, amply discussed in these reports, is, from a forty days'' residence in it. Whether the Consistorial Court of The object of this presumptive domi- Scotland have power to dissolve a eile appears to be, to found jurisdiction marriage celebrated in England, beagainst foreigners in ordinary civiltween English parties domiciled here? suits. It does not seem to alter the It is impossible to give a correct nature of the obligations incumbent abridgment of the able opinions of upon him, or the duties he ought to the Commissaries on this very imperform in his own country. Hence, portant question ; but the general the Commissaries seem to have thought, outline may be stated thus :- There that, as marriage is indissoluble in is a radical difference betwixt the England, except by an act of the Le- law of England and of Scotland as gislature, the parties could not, by re- to marriage and divorce. moving to Scotland for a short time, land, marriage is indissoluble by judi. sequire a domicile, to the effect of en- cial sentence. The question must be titling the Consistorial Court of this decided either according to the law of country to convene them before it, for domicile, or the law of the place of the purpose of dissolving a marriage contract. In a question of this kind, which, by the laws of the country the lex domicilii is not a safe rule of where it was constituted, and to which decision. There is a wide difference the parties must be held to have had betwixt a domicile sufficient to found a reference, was indissoluble. As to jurisdiction, and a domicile sufficient marriages constituted in England, the to regulate the decision of a question parties stood bound to fulfil the obli- of permanent situation. The real dom gations incumbent on them only in micile of the parties is in Englandthat country, and hence redress fell the domicile acquired in Scotland is to be sought according to the law of merely sufficient to found jurisdiction. the place where they stood bound to If the law of domicile, therefore, is perform their engagements. Accord- to be the rule, the question falls to be ingly, they found in the case of Tewsh, decided according to the principles of that as the defender had not taken up the English law. The preferable rule, a permanent residence in Scotland, however, by which to decide the ques they had no jurisdiction to dissolve tion, is the law of the place of contract. his marriage, which had been con- The principle of comitas, in virtue of tracted in England. The Court of which foreign contracts are expounded Review, however, entertained a dif- according to the law of the country in ferent opinion of this question. The which they are entered into, ought to Judge of that Court (the Court of Ses- extend the length of inducing the sion), who remitted the case to the Court to decline to do what the courts Commissaries, with instructions to al- of England could not do. The genius ter their judgment, held, that the re- of the law both of England and Scotlation of husband and wife is a rela- land favours the perpetuity of martion acknowledged by the law of na- riage; hence there is nothing in the tions, that the duties and obligations law of Scotland to prevent the Court incident to that relation, as recognised from respecting the indissoluble quaby the law of Scotland, and the right lity of an English marriage. The law to redress wrongs thence arising, at- of nations is acknowledged in Scotland tach on all married persons living to regulate all foreign contracts; and within the territory subject to that there is nothing in the nature of a lax, without regard to the place where marriage contract to prevent the aptheir marriage may have been cele- plication of that principle, As to exbrated, and that the right and duty pediency, it is quite obvious that it is of the Consistorial Court to admini- hostile to the interference of the Court ster justice in such a case over persons with marriages contracted in countries not natural-born subjects, arose from where they are held to be indissoluble their voluntarily rendering themselves by judicial sentence, An opposite Amenable to the laws of the country, construction would amount to a public by living within its territory at the invitation to all married persons in the time of citation.
sister kingdom, tired of their union, and profligate in their manners, to were, from the unpleasant circumcome into Scotland, and outrage the stance that occurred in Lolly's case, moral feelings of the people, for the called upon to reconsider the question purpose of regaining freedom. These most deliberately, yet, that, after they are alarming consequences, and which had become acquainted with the opiought to induce the Court to refuse nions of the Court of Review, they to do more than could be done by the appear to us to have persisted too long courts in England.
in their own views, and to have framOn these grounds, the Commissa- ed their judgments with by far too ries refused to sustain their jurisdic- much anxiety and caution. Mr Fertion in several cases; but the Court gusson's Reports form, indeed, an able of Session, after deliberately review. apology for their conduct; but it does ing their judgment, remitted the cases, not seem to us to be the duty of a with instructions to the Commissaries judge to look to the consequences of to sustain their jurisdiction, and pro- his decisions ; he is merely called ceed in the divorces. The principles upon to declare the law, be the con maintained by the Court of Session, sequences what they may; for it will in opposition to the views of the be difficult to find any general law Commissaries, seem to have been to the which may not appear to be attended following effect :-Indissolubility is with evil consequences in particular in reality no part of the contract in cases. The question, however, is one an English marriage. The English of great nicety and difficulty; and we courts give a separation a mensa et beg again to refer those who wish to thoro, and Parliament gives a divorce. study it thoroughly, to the work beThe Parliament acts as a court of fore us, for the publication of which law, deciding in a particular form a Mr Fergusson is well entitled to the particular case. The general rule thanks, both of professional men and therefore applies, that the state of per- of the public at large. sons falls to be determined according to the law of the country where they reside, whether it be permanent of Aistorical Account of Discoveries and temporary. The Scotch courts give Travels in Africa, by the late Join effect to the law of the place of colle Leyden, M. D.; enlarged, and comtract only in conformity with its pleted to the present time, with Ilown law. The doctrine of comitas lustrations of its Geography and Nadoes not apply, because, although tural History, as well as of the Moeffect was to be given to the law ral and Social Condition of its Inof the place of contract, it would habitunts. By Hugh Murray, Esq. fall to be controlled by the subse- F. R. S. E. 8vo, pp. 512, 536. Equent offence, which would be judg- dinburgh. Constable and Co. 1817. ed of according to the law of the place where the offence had been coinmitted. An ardent spirit of inquiry after It would be morally injurious to give unknown countries, is one of the cir. effect, in a question of this kind, to the cumstances by which Britain has been law of the place of contract, because it most honourably distinguished during would be putting it in the power of the present reign. The enterprise of foreigners to live in Scotland, with scientific curiosity, seconded by the impunity, in open profligacy. Be resources of an enlightened governsides, this principle of comitas is not ment, has included within the limits of universal application. It does not of geographical knowledge a new portake place in contracts regarding real tion of the globe; and what is of still estates-nor where the parties had in greater importance, has caught from view at the time the law of another its own progress an impulse which kingdom-nor where it would be at- is not likely to cease, while any one tended with injustice-mor where it region of the world remains unknown. would be injurious to the interests of When successive voyages of discovery civil society:
had reduced the fancied Southern Having thus laid before our readers Continent, to which geographers had the opposite arguments of the Inferior fondly assigned the name of Terra and Superior Courts on this great Australis Incognita, to that important question, we have only to add, that group of islands now called Australaalthough we think the Commissaries sia, and had detailed the numerous
isles which lie scattered over the bo« eastern and western shores; and the soms of the Southern and the Pacific Dutch had regularly colonized the Oceans, the views of scientific men Cape of Good Hope. ' But these setwere naturally directed towards Afri- tlements had introduced Europeans to ca, where nearly a whole continent a very trifling distance from the coast, remained to be explored. Hitherto while they seemed to shut up the inthe knowledge of Europeans, with re- terior more closely than ever from gard to that immense continent, ex- European curiosity. By their avarice tended little beyond its coasts. The and oppression, the settlers had exnorthern regions, indeed, were tolera- cited the natural indignation of the bly well known, both from the ample natives against Christians ; and the description given of them by Leo Afri- arts of the slave merchant, by increascanus, early in the sixteenth centu- ing the frequency of their wars, heightşy, and from the intercourse to which ened the ferocity of their various tribes, their vicinity invited the southern na- and thus rendered it more dangerous tions of Europe. The Portuguese, who for a white adventurer to appear ahave the glory of being the first mo- mongst them. dern nation that explored its western and eastern shores, had established “ The geography of Africa,” says Ley. many factories, particularlyon therivers den,“ extended very little within its coasts; in the west, and in their attempts lines traced on the margin of the map;
a few positions were ascertained, and a few to penetrate into the interior, they while the interior was a charta rasa, an ex. becarne acquainted with several king- tended blank of immense size, where every doms and countries, which had never thing was unsettled and uncertain. On before been heard of by any individual this desart space, the geographer, following north of the Mediterranean. On the blindly the steps of Edrisi the Nubian, Western coast, the kingdoms of Benin, traced the uncertain course of unexplored Congo, Angola, Matamba, and Loan rivers, and a few names of towns equally go; on the eastern, Sofala, Mozam- unknown. The course of the Niger, the bique, Quiloa, Mombaza, and Melin- rise and termination, nay, the separate ex. da, besides the great empire of Abys. istence of that stream, were equally unde. sinia, were first made known to Eue termined. Since De la Brue and Moore, ropeans by the Portuguese, whose mis- half a century had clapsed, but the Senesionaries, had they been men of intel gal had not been explored beyond the falls
of Felu ; nor the Gambia beyond those of ligence and science, possessed ample Baraconda.” (First Edition, Chap. I.) opportunities of collecting information concerning the customs, laws, govern- The scanty knowledge which was ment, and religion, of these various obtained of some parts of the interior, kingdoms. The Portuguese monarch had been derived chiefly from the exhad assumed the additional title of ertions of a few enterprising indiviKing of Guinea ; and the advantages duals who had penetrated in different which he was supposed to derive from directions these generally, forbidding his settlements in Africa, would pro- regions. Caffraria, which had been bably have directed to the same quar- partly traversed by Dr Sparmann beter the spirit of enterprise and activity tween the years 1772-6, and by Mr which then began to prevail in Eu- Paterson 1777-8, was afterwards more rope, had not the doubling of the fully explored by M. Vaillant, who has Cape of Good Hope opened to the described the situation, political state, merchant more alluring prospects in customs, and manners of various naIndia; while the recent discovery of tions, till then unknown to Europeans America presented a new world to the even by name; though the indulgence cupidity, or curiosity, of the adven- which he seems to give to his fancy turer. The profits arising from the considerably impairs the authenticity detestable traffic in slaves, had in- of his narrative. Nubia and Egypt duced some of the European States to had been visited by Norden, whose form settlements
on the western coast picturesque and interesting journey of Africa. The English, French, and was published in 1755; and Bruce, Spaniards had, for this purpose, es after a long residence in Abyssinia, tablished factories to the north of the published in 1788 his minute but enequator ; from the equator to the tro- tertaining account of the geography, pie of Capricorn, the Portuguese had the government, customs, and man. similar establishments, both on the ners, of that singular kingdom.
Such was the state of African geo- sible of the defect, had undertaken a graphy, when a few gentlemen of rank new edition of his work on a more exand learning, considering our igno- tended scale, to embrace the whole rance of that continent as a reproach continent. His departure for India to an age distinguished by the suc- prevented the completion of this decess of its researches in the remotest sign: the task devolved upon Mr Murregions of the world, formed them- ray, by whom the plan has been selves into an Association for promote still farther extended, so as not only ing the Discovery of the Interior Parts to include the whole of Africa, of Africa. Nothing can be more lau- but to trace the progress of discovery dable than the zeal with which they from the earliest ages; and the ability have pursued the grand object of their with which he has accomplished this association; yet the obstacles to their arduous undertaking leaves the public success are still so numerous and so no room to regret that it has fallen informidable, that, aided though they be to his hands. If Dr Murray's pages do by government, we dare hardly join not glow with the same animated eloMr Murray in the pleasing anticipa- quence as those of his illustrious pretion, “ that, in the course of fifteen or decessor, they never fail to please us twenty years, Africa will lose its place by perspicuity of narrative, and elein the list of unknown regions.' At gance of style. If he do not, with the all events, the progress of discovery same kindred enthusiasm, identify in that continent will continue to be himself with the traveller whose ad an object of peculiar interest to the ventures he is relating,-he relates friends of religion and science, and them at least with a warmth of inthe humane exertions in its behalf terest in which his readers very readily which have succeeded to the atroci- sympathize. If his reflections do not ties of the slave-trade, will, we may always indicate the same comprehenventure to hope, rapidly diffuse over sive grasp of mind, tley indicate at this hitherto unfortunate portion of the least a judgment clear, correct, and globe the blessings of knowledge and perfectly well-informed. His work is civilization.
a most valuable accession to our geoDr Leyden, entering with the en- graphical knowledge, and, if we may thusiasm of genius and philanthropy decide from the pleasure and informainto the views of this benevolent as- tion which it has imparted to oursociation, undertook to “ exhibit the selves, we do not hesitate to pronounce progress of discoveries at this period in it one of the most agreeable and inNorth and West Africa, by combining structive collections of adventures and a delineation of the appearance of the discoveries which have, for many country, an account of its native pro- years, been presented to the public. ductions, a description of the peculiar It was his original wish,” Mr manners of the African tribes, with a Murray informs us, " to preserve the detail of the adventures of the travele portion of the narrative composed by lers by whom these researches were Dr Leyden distinct from the addiaccomplished.” It was a subject in tions made to it. On considering, which his whole inind and soul were however, the general enlargement engaged; and for which he was pecu- which it was necessary to give to the liarly qualified, not merely by the ro- work, it appeared that such a plan mantic turn of his imagination, but would have broken down entirely its by his unweariel patience of research, unity and connection. It seemed of and by a vigour of intellect before more importance to the public, to rewhich every obstacle gave way. His ceive a distinctly arranged view of work, accordingly, soon attracted ge- the subject, than to be able to distinneral admiration, and obtained a guish, at a glance, the contributions of wide circulation not only in this coun- its respective authors. There appeartry, but over the continent. It was ed a necessity, therefore, for taking translated into German, and is enu, down, as it were, the parts of Dr Leymerated by Eichhorn among the most den's performance, and arranging them valuable materials for the African part anew in the more comprehensive plan of his learned work, entitled “ History which is now adopted.” In this Mr of the Three Last Centuries.” It was Murray certainly acted judiciously ;* only to be regretted that his plan was at the same time, to gratify the cua too contracted ; and he himself, sen- riosity of his readers, he subjoins a