and wife, would be grievously injurious to society. But they are frauds relating to the identity of the person, and, it is believed, those only. (1 Bl. Com. 439, n (24); Wilson v. Brockley, 1 Phill. 137; Stayte v. Farquharson, 3 Add. (2 E. E. R.) 282; Bish. Marr. & Div. § 115, 116, 117, 120.) 2. Causes in Virginia for divorce a vinculo matrimonii supervening after Marriage.

The causes in Virginia for divorce a vinculo matrimonii which supervene after marriage are these four-namely, (1) Adultery; (2) Sentence of either party to the penitentiary; (3) Indictment of either party for felony, when such party is a fugitive from justice, and has been absent for two years; and (4) Wilful abandonment or desertion for five years. (V. C. 1873, c. 105, § 6.)

'W. C.

1'. Adultery.

The same general principles, as to adultery, prevail in Virginia as in England (see ante p. 255 & seq. 1), except that in Virginia it is a cause of divorce a vinculo, and not, as in England, merely of divorce a mensa, &c. It is specially provided that the divorce shall not be granted if the parties have voluntarily cohabited after knowledge of the adultery, or if it occurred more than five years before the institution of the suit, or if it was committed by the procurement or connivance of the plaintiff; and also, that in granting a divorce for adultery, the court may decree that the guilty party shall not marry again, in which case the bond of matrimony is not dissolved as to that party. But this restriction the court may afterwards, for good cause, remove. Nor, indeed, will it be imposed without reluctance, experience having proved how pernicious to society is the presence in it of a husband without a wife, or a wife without a husband. (V. C. 1873, c. 105, § 6, 11, 14; 2 Kent's Com. 100, &c.; 1 Bl. Com. 441, n (33).) 2. Sentence of either Party to the Penitentiary.

Where either party is sentenced to confinement in the penitentiary (which supposes conviction of a felony), a divorce a vinculo matrimonii may be decreed, and no pardon granted to the party sentenced shall restore his or her conjugal rights. (V. C. 1873, c. 105, § 6.)

How far this cause of divorce is warranted, by sound and politic regard to the morals and order

of society, well deserves the grave consideration of the Legislature. To the writer it seems as little to be reconciled with wise policy as with the precepts of the Scriptures. See Mat. v. 31, 32; Id xix. 5 to 10; Mark x. 7 to 12.

31. Indictment of either party for Felony, when such party is a fugitive from justice, and has been ab sent for two years.

Where either party charged with an offence, punishable by death or confinement in the penitentiary (that is, charged with a felony, V. C. 1873, c. 195, § 1), has been indicted, is a fugitive from justice, and has been absent for two years, a divorce from the bond of matrimony may be decreed. (V. C. 1873, c. 105, § 6.)

This belongs to the same category as the preceding, and is liable to the same observation. As a more recent instance of legislation, looking in the same direction, it is yet more to be deplored. It is vain to expect that individuals will conform their conduct to even the coarser rules of morality and virtue, when the laws of the land admit and encourage a license at variance with the spirit of Christian teaching, and hardly to be reconciled with its letter.

4. Wilful Abandonment or Desertion for five years.

Where either party wilfully abandons or deserts the other for five years, a divorce from the bond of matrimony may be decreed to the party abandoned; and if before the lapse of five years a divorce a mensa et toro be granted (as described, ante p. 260, &c. 3k), it may be converted after the expiration of that time into a divorce a vinculo. (V. C. 1873, c. 105, § 6, 15.)

Abandonment is so grave an offence against the obligations of marriage, and so mischievous, as tending, amongst other evils, to tempt the party abandoned, if not the other also, from the paths of virtue, as to merit severe reprobation, and to afford a somewhat more sufficient reason for dissolving the marital relation than some of those previously passed in review. The Saviour appears to refer to those pernicious consequences of desertion when he says (Mat. v. 32), "Whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery." At all events, such consequences do in fact frequently result. (See Reeves v. Reeves, 2 Phill. (E. E. R.) 125;

Sullivan v. Sullivan, 2 Add. (2 E. E. R.) 299; Morgan v. Morgan, 2 Curt. (7 È. E. R.) 679.) It ought to be observed, however, that so profound and judicious a moralist as Sir Wm. Scott was of opinion that desertion, unless in conjunction with acts of cruelty, was never a ground even of separation. (Evans v. Evans, 1 Hagg. C. R. (4 E. E. R.) 119.)

We have seen (ante p. 260, 3k), that to constitute desertion or abandonment there must be, first, the actual breaking off of matrimonial cohabitation, and secondly, an intent to desert in the mind of the offender, without legal cause or excuse. Both must concur to complete the desertion. A mere separation by mutual consent is not desertion in either, nor, as a matter of proof, can desertion be inferred against either from the mere unaided fact that the parties do not live together; though protracted absence, with other circumstances, may establish the original intent. It is obvious, however, and follows from the established principles of evidence, that when the two necessary elements of an actual separation, and an intent to desert, are once shown, the same intent will be presumed to continue until the contrary appear. (Bish. Marr. & Div. § 506, 511; 1 GreenÏ. Ev. § 41, 42; Gray v. Gray, 15 Ala. 779; Bailey v. Bailey, 21 Grat. 47; Carr v. Carr, 22 Grat. 172.) The abandonment or desertion, therefore, which is cause for a divorce a vinculo matrimonii, differs from that which is cause for a divorce a mensa, &c., in nothing save only duration. The fact of abandonment, with the intent to desert, must be established in either case; and when it has continued for five years it warrants a decree of divorce from the bonds of marriage.

35. The Courts charged with the Cognizance of Divorce Causes; W. C.

1. The Courts which in England have Cognizance of Divorce Causes.

They were formerly the Courts Ecclesiastical, which for many ages had jurisdiction of all matrimonial causes in that country. Originally the cognizance of such causes belonged to the temporal courts, but because matrimony by the Romish Church (which, until the Reformation, was the Church of England) was deemed a sacrament; because also it was celebrated (at least from the time of Pope Innocent III, A. D.

1200) by a person in orders, whose conduct was under the Diocesan's inspection; and because, lastly, in case of the Levitical degrees in particular the ecclesiastics were presumed to be the best judges of the true meaning of God's law, the jurisdiction has for several centuries been vested in the church courts. (1 Bl. Com. 434, 440, 441; 2 Burn's Eccles. Law, 485.)

But in 1858, by Stat. 20 & 21 Vict. c. 85, the jurisdiction over causes matrimonial was transferred to a new court, created by that statute, styled the "Court for Divorce and Matrimonial Causes," which governs itself by the same general rules and principles as formerly prevailed in the Ecclesiastical Courts. (Wms. Pers. Prop. 492; 1 Broom & Hadley's Com. (B. I) 358.)

2. The Courts which in Virginia have Cognizance of Divorce Causes.

There never having been any ecclesiastical courts in Virginia, matrimonial causes have always been of necessity committed to temporal courts. Except only in the instance of incestuous marriages, which are crimes, and like other crimes are cognizable (that is, when prosecuted as crimes) in the county and corporation courts, the depositary of this delicate and important jurisdiction is the circuit and corporation courts, on the chancery side thereof. (V. C. 1873, c. 105, § 18; Id. c. 192, § 3: Id. c. 154, § 5, 38; Id. c. 155, § 2; Acts 1874-'5, p. 364, c. 271)

But no such suit is maintainable in the Virginia courts at all, unless the parties, or one of them, is a resident of the State-that is, domiciled in it (Stor. Confl. L. § 225, 227) at the time of bringing the suit. (V. C. 1873, c. 105, § 8.)

Let us observe, (1), The circuit or corporation court of what county or corporation has cognizance of a divorce cause; (2), The modes of proceeding in divorce causes; and (3), The powers belonging to the court; W. C.

11. The Circuit or Corporation Court of what County or Corporation has cognizance of Divorce causes.

The statute prescribes that the suit shall be brought in the county or corporation in which the parties last cohabited, or (at the option of the plaintiff) in which the defendant resides; or if the defendant is not a resident, then in which the plaintiff resides. (V. C. 1873, c. 105, § 8.)

2. The Modes of Proceeding in Divorce Causes; W.C.

1. Mode of Proceeding in case of Incestuous Marriages.

An incestuous marriage is a crime, and for an offence so repugnant to decency and virtue, the parties are liable to be indicted in the law courts (with us the county and corporation courts), which have general cognizance of crimes. Each may be fined not exceeding $500, and imprisoned in the jail not more than six months, and the marriage is void from the time of the conviction. (V. C. 1873, c. 192, § 3; Id. c. 105, § 1; Acts 1874–25, p. 364, c. 271.)

But whilst this method is provided in order to punish and separate the parties, for the sake of society, to which the connection is offensive, either of them may apply to the proper circuit or corporation court in chancery, and procure from it a sentence of nullity. (V. C. 1873, c. 105, § 6, 4.)

2. Mode of proceeding in all other cases than those of Incestuous Marriages, treated as Crimes:

The application must be made in all other cases than incestuous marriages treated as crimes, to the circuit or corporation courts in chancery. It may be made by either party, and the suit is instituted and conducted like other suits in equity, except that the bill shall not be taken for confessed, and whether the defendant answer or not, the cause shall be heard independently of admissions of either party, in the pleadings or otherwise. And costs may be awarded to either party, as justice may require. (V. C. 1873, c. 105, § 9.)

The object of these provisions is to prevent a divorce from being obtained by the collusion of the parties; and they are no more than an enactment of principles which have always prevailed in matrimonial causes, as we have seen. (Ante, p. 256, 1*; Bailey v. Bailey, 21 Grat. 50; 2 Burn's Eccles. L. 504-5.) Neither the common law rule nor the statutory enactment excludes proof of the admissions and statements of the parties. Their only effect is to prohibit a sentence from being founded wholly upon such admissions. When collusion is proved not to exist, admissions, whether verbal or contained in letters, are peculiarly satisfactory evidence; and especially is it so when the letters were written, or the verbal statements made, without reference to the controversy touching the divorce. (Bailey v. Bailey, 21 Grat. 50, 51.)

31. The Powers of the Court; W. C.