19. The same section enacts, that in a suit for divorce "the "court shall have the same power to make interim orders for "payment to the wife, by way of alimony or otherwise, as it "would have in a suit instituted for judicial separation." And by section twenty-four it is enacted, that the court may in all cases direct the alimony to be paid "either to the wife herself, or to any trustee on her behalf, to be approved by "the court, and may impose any terms or restrictions which "to the court may seem expedient, and may from time to "time appoint a new trustee, if for any reason it shall appear "to the court expedient so to do." The cases on alimony in Doctors' Commons are not likely to govern the new jurisdiction for this, amongst other reasons, that they are all without reference to the children.

20. As there was an ecclesiastical and a parliamentary liability on the husband to provide his wife with the means, when necessary, of suing against him, or of resisting his proceedings, so the new court will no doubt enforce a similar obligation; subject, however, it is to be hoped, to proper guards and modifications; otherwise the wife may fall into hands not unwilling to distress the husband by exposure, or to wear him out by expense. This has been the subject of complaint in Scotland. A writer in the Journal of Jurisprudence, published at Edinburgh in April 1857, speaking of divorce, says: "We have known cases where 800% of ex

penses have been paid to the wife's agents, and where the "husband has abandoned his action, and consented, during "the remainder of his life, rather to give his wife a separate "allowance."

CHAPTER XI.

OF JUDICIAL SEPARATION.

16. Petitioner's attendance.
17. Custody of the children.
18. Alimony.

19. When wife delinquent, settlement.
20. Wife's acquisitions and carn-
ings.

21. Her power of contracting,
suing, &c.

22. Remarks on her advantages.
23. Offspring of wife while separate.
24. Right of either party to ask a
reversal.

25. Appeal to full court.
26. Principles of relief.

27. The Attorney General's remark.
28. Example.

29. Bars to judicial separation.

30. Lord Lansdowne's suggestion.

31. Power to enforce or reverse recent ecclesiastical orders.

1. THE great jurist M. Portalis observes finely, that “ marriage does not subsist for the spouses alone, but for the "children, for society. It is in its esssence permanent. We "cannot prescribe a term to it."

2. Separation without the sanction of a judicial sentence is totally unknown to the Common Law of England. So says Mr. Roper. The countenance occasionally given to separations by private agreement was from the difficulty of obtaining them by judicial authority. When that difficulty disappears it will be found safer to insist on having the decision of a judge in every case, because in no other way can collusion and improper purposes be guarded against.

3. In Scotland private or voluntary separation does, indeed, take place occasionally, but it begets no legal obligation de futuro. It is treated by the judges with indulgence rather than with favour, and either party may put an end to it at

pleasure, the genius of Scotch law being all for durability in the married state.

4. In France there is no such thing recognized by law as separation without the sanction of a judge; nor is it allowed in Sweden, or in Denmark, or in Holland, or in Prussia, or in Austria, or in Bavaria, or in Sardinia, or in the two Sicilies, or in the Canton de Vaud, or in Louisiana.

5. But, on the other hand, judicial separation, as contradistinguished from voluntary, has been deemed a necessity in catholic and a convenience in protestant communities. It is accordingly retained by the Act "to amend the law relating "to divorce and matrimonial causes in England;" although the head of the government, on the 6th of August last, declared that "the position in which man and wife were placed by these judicial separations was most objectionable; and if marriage were dissolved at all, it should be dissolved alto"gether. Judicial separation, therefore, ought to be the "exception, not the rule." So said Lord Palmerston. This was also Napoleon's view. See infra, p. 138.

6. Formerly judicial separation was known by the imposing title of divorce à mensâ et thoro; but, for the sake of simplicity, and to mark it the more clearly from proper divorce, it is now and will be henceforth designated as judicial separation, liable, however, like divorce à mensâ et thoro, to be terminated by the reconciliation of the parties.

7. Judicial separation, however, is a great improvement upon divorce à mensâ et thoro.

8. In the first place, judicial separation may be granted by reason of desertion, a delinquency constantly overlooked in the ecclesiastical tribunals, sect. 16. Secondly, judicial separation will embrace the care of the children who, by the ecclesiastical tribunals, were left to their fate, sect. 35. Thirdly, judicial separation will bestow on the wife a new social status, giving her legal capabilities, and rendering her a feme sole as to after-acquired property, sect. 25 and 26.* And fourthly, arrangements may be made by the court on judicial separation which were never made on divorce à mensâ

*For this boon the women of England have to thank Lord Lyndhurst. After all, the law is but restored to what it was five centuries ago. See Lady Belknappe's case.-Lord Campbell's Lives of the Chief Justices, vol. 1, p. 113, and vol. 3, p. 47. See also infra, p. 122.

et thoro,―arrangements which will not fall to the ground on renewal of cohabitation, sect. 25.

9. Applications for judicial separation will be "heard and "determined by the judge ordinary, either alone or with one " or more of the other judges of the said court," sect. 9.

10. No decree shall hereafter be made for divorce à mensâ et thoro, but instead thereof, the court may pronounce a decree for a judicial separation, sect. 7.

11. A sentence of judicial separation may be obtained, either by the husband or the wife, on the ground of adultery, or cruelty, or desertion without cause for two years and upwards, sect. 16.

12. Application for judicial separation may be made, by either husband or wife, by petition to the court; and the court, on being satisfied of the truth of the allegations therein contained, and that there is no legal ground why the same should not be granted, may decree such judicial separation accordingly; and, where the application is by the wife, may make any order for alimony which shall be deemed just, sect. 17. See chapter x.

13. Any husband may in his petition for judicial separation claim damages from the adulterer, sect. 33. For the proceedings upon such a claim, see chapter XIII.

14. Every person seeking a decree of judicial separation shall, together with the petition or other application for the same, file an affidavit verifying the same, so far as he or she is able to do so, and stating that there is not any collusion or connivance between the deponent and the other party to the marriage, sect. 41. See supra, p. 39.

15. It shall be lawful for, but not obligatory upon, the court to direct questions of fact to be determined before itself, or any one or more of the judges of the said court, by the verdict of a special or common jury, sect. 36.

16. The court, if it think fit, may order the attendance of the petitioner for examination, sect. 43.

17. The court may make such interim orders, and in its final decree such provision as it may deem proper with respect to the custody, maintenance, and education of the children; and, if it shall think fit, may direct proceedings to be taken for placing such children under the protection of the Court of Chancery, sect. 35. See chapter XV.

18. In all cases in which the court shall make any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the court, and may impose any terms and restrictions which to the court may seem expedient, and may from time to time appoint a new trustee, if for any reason it shall appear to the court expedient so to do, sect. 24. See chapter x.

19. If, on judicial separation for the wife's adultery, it shall appear that she is entitled to any property either in possession or reversion, it shall be lawful for the court to order such settlement as it shall think reasonable to be made of such. property, or any part thereof, for the benefit of the innocent party, and of the children of the marriage, or either or any of them, Sect 45. See chapter XII.

20. The wife shall, from the date of the sentence and whilst the separation continues, be considered a feme sole with respect to any property she may acquire, or which may come to or devolve upon her; provided, that if she shall again cohabit with her husband, all such property as she may be entitled to when such cohabitation shall take place, shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband whilst separate, sect. 25.

21. The wife shall, whilst separate, be considered a feme sole for the purposes of contract, wrongs, and injuries, and for the purposes of suing and being sued in any civil proceeding, and her husband shall not be liable in respect of any engagement or contract she may have entered into, provided that where alimony has been ordered to be paid to her, and the same shall not be duly paid by the husband, he shall be liable for necessaries supplied for her use; and provided also, that nothing shall prevent the wife from joining, at any time during such separation, in the exercise of any joint power given to herself and her husband, sect. 26.

22. It is remarkable, that by these two sections (25 and 26 of the Act) the immunities and powers given to the wife are irrespective of the question, whether the sentence is to be for her husband's delinquency or her own, and irrespective of the other question, whether there are children or not of the marriage. In this way a culpable wife judicially separated