how far the alteration could affect him the petitioner, humbly submitting, that after the judgment was given, engrossed, signed, and read in the House, after parties had acted on the footing that no costs were to be allowed, after the appellant had become insolvent, and assigned his property for the benefit of creditors, after the appeal was dismissed, and there was, consequently, no appeal or party before the House; under all these circumstances, he humbly submitted, that no amendment could be made on the judgment so as to affect him; and therefore prayed their Lordships that the order for amending the said judgment might be rescinded, or at least, that the said order should not be allowed to affect the petitioner by reason of the said recognisance, and that the said recognisance should be ordered to be held as cancelled from the time the said judgment was pronounced by the House, and that the petitioner might be heard by himself or his counsel on the matter of his petition. Referred to the Appeal Committee, and ordered that the order made yesterday be not delivered out till further orders. 2 June, 1840. It was moved, That the judgment of this House, of the 15th July, 1837, and which judgment was, by order of this House, of the 14th August, 1838, amended, by adding, at the end thereof, the following words, [And it is further ordered, that the appellant do pay or cause to be paid to the respondents the costs incurred in respect of the said appeal ; the amount thereof to be certified by the clerk assistant]; but the delivering out of which judgment was, by order of this House, of the 15th August, 1838, suspended,-be taken into further consideration. Consideration being had thereof, it was moved to add at the end of the said amendment the following words [not exceeding £150]. The question was put thereupon. It was resolved in the affirmative ('). () See Mr. Moore's Privy Council Reports, vol. i. p. 133, where some cases of an early date, upon rehearings in the House of Lords, are cited. THE PRACTICE ON BILLS OF DIVORCE. Entroduction. Judicial and Legislative Divorce, 465-Early attempts to reform the Law of Divorce in England, 467.-Their failure, ib.-Case of Marquis of Northampton, 468.-Opinion of Cranmer in favour of Dissolubility in certain cases, 470.—That opinion overruled, and Doctrine of Indissolubility established, 471.-Consequent necessity of Legislative Divorce in special cases, ib.-Case of Lord Roos, ib.-Of Earl of Macclesfield, 471.-Of Duke of Norfolk, ib.-Bills of Divorce by the Wife, 475.-Case of Mrs. Addison, ib.-Of Mrs. Turton, 478.-Of Mrs. Battersby, 479.-Of Mrs. Teush, ib.-Of Mrs. Moffat, 481.General Reflections as to the claim of the Wife, 482.-Observations by Lord Brougham, 485. In this country we have two distinct species of divorce; the one Judicial, the other Parliamentary ("). Of these, the former is limited to tribunals of ecclesiastical jurisdiction; while the latter, as its name imports, can only be obtained from the legislature. Judicial divorce is granted, either on the ground of legal impediments, or on the ground of conjugal transgression. Legal impediments obstruct the constitution of the (a) These distinctions are not strictly stood acceptation, and will answer for accurate; but they have a well-under- practical purposes. HH matrimonial contract; as, for example, undue consanguinity or affinity, physical incompetency, mental incapacity, &c. When any one of these impediments exists, the marriage is invalid ab initio; and the Court Spiritual will pronounce what (with questionable propriety) is termed a sentence of divorce a vinculo matrimonii (1). Conjugal transgression, on the other hand, assumes the legal constitution of the contract. Thus adultery, and all other descriptions of matrimonial delinquency, necessarily pre-suppose a marriage of original validity. In such a case, the court spiritual has no power to dissolve the contract, but administers redress by the mild sentence of divorce a mensa et thoro; a sentence involving mere separation; which may cease at the joint volition of the parties, whose reconciliation is, in fact, contemplated by the judgment of the court. Separantur, sed remanent conjuges, is the maxim of ecclesiastical tribunals. The truth appears to be, that the rules of these courts are based upon the canons of the Roman Catholic Church, by which marriage, once duly constituted, is considered indissoluble. This attribute of indissolubility was not displaced at the Reformation; for the law, in causes matrimonial, notwithstanding the change in our religion, continued to be administered conformably to the ancient system; a system which still governs the decisions of our spiritual tribunals. From the binding authority of the canon law, those courts have never been released. "The whole of our matrimonial law, in matter and form, is constructed upon it. Some canons of our own may have varied it; and the legislature itself has (b) It is surely an inaccurate use of language, to call that a sentence of divorce a vinculo, where there is in fact no legal vinculum to be dissolved. The sentence of divorce a vinculo matrimonii, as granted by the ecclesiastical courts of this country, is really no more than a judicial ascertainment of the nullity of the marriage. |