8. But the court, if it see fit, may direct that such alleged concubine shall be made a respondent; Sect. 28.

This provision was introduced by the Commons to protect the character of perhaps an innocent third party from being blasted behind her back, as occasionally happened in crim. con. actions.

The appearance of the paramour and concubine as litigants in suits of divorce, although it may complicate the proceedings, and greatly increase the difficulty of decision, will procure for the new court a considerable share of popular attention.

9. A petition is not necessarily a written document. But supposing it ruled to be a written document, Sect. 41 says, "every person seeking a dissolution of marriage shall, together "with the petition, or other application for the same, file an

affidavit, verifying the same, and stating that there is not any collusion or connivance between the deponent and the "other party to the marriage." But what if there is collusion with the paramour? what if he has contracted to pay the expense, as in Mr. Downe's case (Macq., H. of L., 584)?

10. Collusion, as laid down by Lord Chancellor Cranworth more than once, means a conspiracy or fraudulent concert to impose on the court and obtain judgment by putting forward a false case and keeping back or masking the true one. This was what the Duchess of Kingston and her husband did,—a juggle practised to deceive the court; and not unlikely to occur where married parties, regardless of morals and tired of each other, are both sighing for liberty.

The function of the preliminary affidavit is to rebut this suspicion or imputation, by averring solemnly and upon oath that there is no unworthy compact; that the suit is honestly brought; that it is real, and not fictitious; so that, whether well or ill founded on the merits, it is at all events fit that the court should entertain it. The affidavit, so to speak, is to open the portals of justice, but to have little and perhaps no weight in the ultimate decision.

Connivance or no connivance, on the other hand, is a question of merits; not preliminary, but to be investigated in the suit.

Why, therefore, the affidavit should negative connivance, and yet be silent as to other misconduct, it is perhaps not easy to explain.

To connive means to wink at a thing. This is not a con

spiracy or compact or joint act of two or more persons. Yet the affidavit is to state that "there is no connivance between the deponent and the defendant.”

The oath in Scotland "purges the petitioner of collusion in initio litis." The same thing is recommended by the Divorce Commissioners; but they do not advise that connivance shall be purged. Lord St. Leonards, too, in his popular Manual,* seems to confine the affidavit to "collusion" alone. It is not likely that the affidavit, however worded, will be of much service. Mr. Ferguson, speaking of the Scotch experience, says the oath is "of little avail as a check on fraudulent devices." This is a reason for making it harmless, if not of All oaths should be simple and plain; and there ought to be as few of them as possible.

use.

Every good purpose would be served by having the petitioner's signature, without any oath, attested by a solicitor on the spot, as is done in lunacy. But it has just been ruled by Sir Cresswell Cresswell, who regretted the necessity, that not only must there be an affidavit, but that it must be sworn coram judice at Westminster. The inconvenience will be

enormous.

The affidavit will be not only often a mere thing of form but sometimes worse than a form, for it may supersede inquiry as to the real facts. See Goldney v. Goldney, infra, p. 115, and Greenhill v. Aitken, infra, p. 116. In Dr. Lushington's evidence (Divorce Commissioners' Report, p. 46.), he says, "it is all but impossible to prevent the court from being deceived."

In Scotland things are apparently worse. Hear Lord Cockburn :-"I remember a case in which I was moved on Friday for an early decision; and the reason given was, that the adulteress and the paramour were to have their banns published on the Sunday." Lord Cockburn indeed goes on to say, that he refused the application and refused the divorce. But the bare fact, that such an application could be made at all, shows laxity in the minds of the practitioners; and the truth seems to be, that the Scotch system, though good in principle and luminous in decision, is occasionally, when beyond

* Handy Book, p. 75.

the eye of the court, not a little loose in administration. See second series of Scotch Reports, vol. 7. p. 560.

12. The new court is not merely to judge of what shall be brought before it by the parties litigant. Sect. 29 declares that it "shall be the duty of the court to satisfy itself so far

as it reasonably can as to the facts alleged." The same section has for its marginal note the following words :"Court to be satisfied of the absence of collusion." But in the section itself there is not a word about collusion. This defect, however, is rectified by the succeeding section; for there it is laid down that in case the court shall find that the petition is presented or prosecuted collusively it shall be dismissed.

13. One of the methods whereby collusion may be ascertained will be by examining the petitioner under sect. 43, which, in conformity with the practice of Parliament (Macq., H. of L., pp. 529, 537, 587, 606, 624, 633), requires the attendance of such petitioner when the court shall so order.

14. It would seem that a petition for divorce may pray alternatively for judicial separation; and it may occasionally be expedient that it should do so, because the Court may hold the case sufficient for the temporary remedy, though not pro dirimendo matrimonii vinculo.

15. The parties, or either of them, may insist on having the contested matters of fact tried by a jury; Sect. 28. We fancy it will not be often "that the parties, or either of them," will claim this privilege. But the Court, when it lists, may throw on a jury the labour of investigation and the perils of decision; Sect. 36. When the judges differ in opinion on material facts, this course may well be taken.

16. When there are children of the marriage the Court will take cognizance of them. On this head see Chapter XV.,

infra, p. 79.

17. With respect to a provision for the wife on divorce, and interim orders, and other payments to her, see Chapter X., infra p. 55.

18. An appeal lies to the House of Lords against the decision of the "full Court," on any petition for divorce. But it must be presented within three months if Parliament be sitting, and if Parliament be not sitting, then within fourteen days next after its meeting; Sect. 56.

1. THE bars to divorce under the Act seem divisible into peremptory and discretionary.

2. The peremptory bars, that is to say, those which cannot be got over, are four; namely, 1, The having been accessory to the adultery; 2, Connivance; 3, Collusion; and 4, Condonation.

3. The first peremptory bar may be called Lenocinium. This word, though not in the Act, is a known and expressive term of art used in Scotland, and borrowed from the Roman law. It applies to those cases where the husband has prostituted his wife for gain or otherwise, and where he has been, in the language of the 29th, 30th, and 31st sections, "in any manner accessory to the adultery." In such case the court "shall "dismiss" the petition for divorce; Sect. 30.

The phrase "accessory to " was represented in the House of Commons as belonging to the vocabulary of the Ecclesiastical Courts; but it savours more of the Old Bailey. It applies to the wife as well as the husband.

Some authorities as to Lenocinium are collected infra. See p. 112.

4. As to connivance, the second peremptory bar, a good deal has been said already in considering the affidavit which negatives it. Supra, p. 39. When connivance appears, the court "shall dismiss" the petition for divorce. Sect. 30.

Some authorities as to connivance are collected infra. See p. 113.

5. As to collusion, the third peremptory bar, we must refer to what has been said in considering the affidavit which

negatives it. Supra, p. 39. When collusion appears the court "shall dismiss" the petition for divorce; Sect. 30.

Some authorities as to collusion are collected infra. See p. 114.

6. Condonation (remissio injuriæ, as the Scotch call it), the fourth peremptory bar, means forgiveness and reconciliation. Divorce is privati juris. When the injury is deliberately and knowingly condoned by the party injured, there is an end of all claim to redress, unless the injury be repeated, in which case the original offence will revive.

When condonation is established the court "shall dismiss the petition for divorce; Sect. 30.

Some authorities as to condonation are collected infra. See p. 116.

7. The discretionary bars are seven, namely, 1, Recrimination; 2, Cruelty; 3, Desertion; 4, Wilful Separation; 5, Wilful Neglect; 6, Misconduct; and 7, Unreasonable Delay.

8. Then, first, as to Recrimination. This plea is not admitted in Scotland. It was not admitted in the old law of France. It is not admitted in the Code Napoleon. If divorce is granted on the adultery of one party, is it to be refused because both are guilty? This is the reasoning of Scotland; but it assumes that adultery is cognizable as matter of police; whereas the injury is private and the relief private, and it ought only to be granted where the petitioner is himself blameless.

The Ecclesiastical Courts say that recrimination is founded on the principle of set-off. But set-off implies equality. Between the offence of adultery by the husband and the same offence by the wife there is no equality. "The difference," says Dr. Johnson, "is boundless." Accordingly the legis lature does not go on set off, or compensation. Hence recrimination is merely one of the discretionary bars to divorce. It is not peremptory.

When the plea of recrimination or countercharge is established, the course to be pursued by the court is not defined; the only direction in the Act being that it "shall inquire into any counter-charge which may be made against the peti