The Sun.
London, England, 1853-03-29 00:00:00

that one tribunal which can satisfy itself of the proper re-
lief to be given or withheld is better than three which dis-
trust each other. The verdict at law is practically value-
less ; and if the proceedings before the Legislature were as
regular and searching as those in a court of justice, the
ecclesiastical sentence would be so too.

XLVI. We are, therefore, of opinion that in this, as in
every case which has to be submitted to judicial investiga-
tion, one tribunal (subject to an appeal in the event of a
miscarriage) is or ought to be sufficient of itself for admi-
nistering to the suitors complete justice, without having
recourse to extraneous aid. But to prevent collusion great
care would be required. The testimony should be oral,
principally at least if not entirely, instead of being taken
as it is now in the ecclesiastical courts, upon written an-
swers to written interrogatories, where the second and
every succeeding question is propounded to the witness
without the propounder knowing what answer has been
given to the first ; and where the party who cross-examines
the witness knows nothing whatever of the examination
in chief, except so far as he is able to conjecture from the
plea upon which the witness is to be examined, and his
name. Although, however, it is desirable that the evi-
dence should be principally oral, there may be great advan-
tage in verifying tha facts in the first instance, either by the
affirmation of the party or by written depositions. In Scot-
land the prosecutor is bound to take an oath which is called
the oath de calumnid, pledging his belief to the correctness
of the suit, and disclaiming at the same time all collusion in
the matter. A condition of this kind might not unreason-
ably be required as a guarantee for the passing of a divorce
suit in England ; for when the Parliamentary safeguards are
taken away, collusion will be the mischief most easy to to
practise, and most difficult to guard against. If the evidence
is oral, it is equally important that it should be taken down
at the time by an officer of the court and in the presence of
the parties, " not ordinarily by question or answer, but
in the form of a narrative ;" and when completed it should
be read over to the witness and signed by him as his testi-
mony. In addition to the evidence so taken, the judge
should have the power of ordering other witnesses to be
produced, who might, in his opinion, throw light on the
subject, and also of examining the parties themselves.
XLVII. We propose to adhere to the rule that the mere
confession of the defendant, unaccompanied by other cir-
cumstances, should not of itself be sufficient proof of con-
jugal infidelity. This rule has been acted upon for ages in
courts of ecclesiastical jurisdiction, and forms the subject
of an express canon (No. 105) passed in 1603, for the regu-
lations of proceedings upon causes matrimonial. It has
been also recognised, and, in some instances, very rigidly
enforced, by the House of Lords ; but with this ra-
tional modification at the same time—that whenever
collateral circumstances appear, tending to the proof
of adultery, evidence by confession will be received in
confirmation. Such collateral circumstances, however,
must be primarily established, so as to lay a foun-
dation for the reception of the evidence by confession,
which, when so supported, is not only receivable, but is
indeed the strongest evidence that can be well imagined of
guilty consummation.
XLVIII. If the power of granting a divorce d vineulois
removed from Parliament, it will be necessary to determine
to what court the power shall be transferred. Your Ma-
jesty's commissioners have experienced great difficulty in
solving this question. The courts of law, the Privy Coun-
cil, the ecclesiastical courts, and the courts of chancery
have all been suggested. There are objections to each and
all of these proposals. Divorce is a subject which requires
care and time for the due investigation of it ; and, there-
fore, it should be referred to the calm deliberation of one
or more judges, rather than to the verdict of a jury. The
Privy Council is essentially a court of appeal, with differ-
ent judges sitting from time to time, and with no machi-
nery for conducting the investigation until the cause is
ripe for hearing. In the Ecclesiastical Court there would
be some advantage in having a bar well acquainted with the
subject ; but until those reforms and improvements are
made in them which have been so often recommended by
both Houses of Parliament, we doubt whether they would
be likely to give satisfaction if the determination of such a
question as that of divorce d vinculo matrimonii were] now
confided to them for the first time. The Court of Chan-
cery in its present state has all the elements of a good
tribunal for dealing with this matter. Its form of plead-
ings, and its mode of procedure, as regulated and improved
by the recent statute, would readily be adapted to all the
suggestions which we have pointed out above. But there
is one great objection to it—and that is, that the entire
dissolution of the 'marriage bond ought hardly to be left
to the unaided decision of a single judge. We feel the
force of the objection, and we think that in this matter a
new tribunal should be constituted, consisting of a judge
of the Court of Chancery, a common law judge, and a
judge of the Ecclesiastical Court. Such a tribunal would
combine the high principles of equitable jurisprudenCe
with the knowledge of the civil as well as of the common
law, and with that familiarity with the mode of taking
evidence which would be essential to the working of the
new system.
XLIX. We would, therefore, recommend that applica-
tions for divorces d vinculo matrimonii, and all causes ma-
trimonial, should be submitted in future to a new tribu-
nal, consisting of a vice-chancellor, a common law judge,
and a judge of the Ecclesiastical Court, and that they
should sit for the purpose of trying these questions at
specified times in different parts of the year. We would
also recommend that there should be no appeal from their
decision except to the House of Lords ; and we think there
would be convenience in directing that divorces d mend et
tlioro should likewise be referred to the same tribunal. Sir
John Stoddart's evidence on the subject is clear and im-
portant. Do you consider (he was asked) that a court con-
stituted of judges of the common law and equity, and in-
cluding consistorial civilian judges, would be a better tri-
bunal than any one individual judge for sifting cases of this
kind ?—Certainly I should think so.
And that the proper course of proceeding is by a viva
voce examination ?—Yes.

Under such rules as to examining upon the libel as they
might think fit to lay down for their practice ?—Yes.
What would be the use of having two courts, one to
divorce a, menus et thoro, and the other to divorce a vin-
culo Y—l do not know that two courts would be necessary,
but I say that the present mode of proceeding to obtain a
separation a rung et thoro is not sufficiently stringent, in
my opinion, to obtain a divorce d vinculo. Whether there
should be any alteration or not in the present proceeding
for a divorce a mend et Moro is a separate question, but
if there were a proceeding for a divorce a vincula before a
single judge, or even before several judges, I think the pro-
ceeding should be very different from that which is now
followed in the spiritual courts."
L. We cannot bring this report to a close without advert-
ing to two questions of immense importance, which are
closely connected with the subject submitted to us, though
they do not fall within the terms of the inquiry proposed
for our consideration. The one is, whether here, as in Scot-
land, the parties whose guilt has occasioned the divorce
a vinculo matrimonii shall be restrained from intermarry-
ing. The other, whether a Scotch divorce, upon grounds
not allowed by the laws of England, shall operate as a dis-
solution for all purposes of an English marriage. With
regard to the former question, there is a standing order of
the House of Lords, which makes it imperative on any
person petitioning for a bill for a divorce a vinculo to in-
sert a provision in it prohibiting the person whose marriage
with the petitioner shall be dissolved to intermarry with
any offending party, on account of whose adultery such
marriage shall be dissolved ; but this clause, notwithstand-
ing many struggles to save it retained, is usually struck
out without resistance in the committee. With regard to
the latter question, a Scotch divorce of an English mar-
riage, where the parties are bond fide domiciled in Scot-
land, will be binding and valid in the courts of that coun-
try upon any question of Scotch law affecting themselves,
their children, or their property ; but the courts of Eng-
land will not recognise, in some cases, the binding validity
of a Scotch divorce, since an English marriage, being a
contract which, like other personal contracts, must be in-
terpreted according to the law of the country in which it
was made, cannot be dissolved. by any proceeding in the
courts of any other country for English purposes. The
anomalies arising from this conflict between the law of the
two countries are strange and distressing to many families,
and a remedy, if possible, ought speedily to be provided
for them. We feel, however, tkat both these, questions
involve so many and such important considerations of
national policy, and they relate to matters which, in some
respects, are so far removed from the scope of our inquiry,
that we forbear to do more than call attention to them.
LI. Having now considered the law of divorce in its
different bearings, it may be convenient to sum up briefly
the alterations and improvements which we think may be
made in it with prudence and safety.

Our suggestions are—
That the distinction between divorce a menstl et thoro
and divorce a vinculo matrimonii shall still be maintained.
That the grounds for divorce d mens& et thoro shall be
conjugal infidelity and gross cruelty.
That wilful desertion shall also be a ground for divorce
a mend et thoro, or else shall entitle the abandoned wife
to obtain from her husband a proper maintenance by way
of alimony.
That divorces a mend et thoro may be obtained by the
wife for the above-mentioned causes, as well as by the hus-
band.
That divorces d vinculo shall be allowed for adultery,
and for adultery only.
That divorces d vinculo shall only be granted on the suit
of the husband, and not (as a general rule) on the suit of
the wife.
That the wife, however, may also apply for a divorce d
vinculo in cases of aggravated enormity, such as incest or
bigamy.
That recrimination, contrivance, and condonation shall,
if proved, be deemed and treated as bars to the suit.
That recrimination shall include any of the grounds for
which divorces may be obtained d mend et thoro.
That the existing mode of obtaining a divorce a
shalt no longer be continued.
That a verdict at law, and an ecclesiastical sentence,
shall not be considered as preliminary conditions which
must be complied with before it can be obtained.
That a new tribunal shall be constituted to try all ques-
tions of divorce.
That all matrimonial questions also which are now deter-
mined in the Ecclesiastical Courts shall be transferred to
the same tribunal.
That this tribunal shall consist of a vice-chancellor, a
common law judge, and a judge of the Ecclesiastical Courts.l
That the party who seeks a divorce, whether it be a di-
vorce a mend et thoro or a divorce a vinculo matrimonii,
shall pledge his belief to the truth of the case, and that
there is no collusion between himself and wife.
That the evidence shall be oral, and taken down in the
presence of the parties.
That in general the process, practice, and pleading shall
conform to the process, practice, and pleading of the Court
of Chancery, as recently improved, with such additions as
may be beneficially derived from the ecclesiastical system.
That the rules of evidence shall be the same as those
which prevail in the temporal courts in the kingdom.
That the judges shall have the power of examining the
parties, and also of ordering any witnesses to be produced,
who, in their opinion, may throw light on the question.
That the court shall be intrusted with a large discretion
in prescribing whether any and what provision shall be
made to the wife, in adjusting the rights which she and
her husband may respectively have in each other's property,
and in providing for the guardianship and maintenance of
the children.
That there shall be only one appeal from a decree of the
court, and that the appeal shall be carried to the House of
Lords.
We humbly submit this, our first report, to your Ma-
jesty's royal consideration.
CAMPBELL.
STEPHEN LUSHINGTON.
BEAUMONT.
SPENCER HORATIO WALPOLE.
WILLIAM PAGE WOOD.
EDWARD PLEYDELL BOUVERIE.

LORD REDESDALE'S OPINION ; AND STATEMENT OF HIS
REASONS FOR NOT ENTIRELY CONCURRING IN THE

PRECEDING REPORT.
In considering the present state of the law of divorce, it
appears that the law of England holds marriages to bein-
dissoluble ; that a divorce d vinculo can only be obtained
by getting an exceptional law made for each case ; that this
most objectionable mode of proceeding has been allowed
little more than 150 years ; and that it has necessarily been