man are more obdurate, more fixed and unalterable than are those of a boy, who can hate to-day and love to-morrow; and if I had ever loved or ever breathed affection for your daughter, you might justly accuse me of boyish caprice and want of steadiness; but, my dear sir, you know well that such was not the case, but the very reverse. As to a separation to which you have more than once alluded, I can only say that we are as much separated now as if she were living under the roof of her parents; we have separate apartments, separate feelings, and, I may add, separate interests separate correspondence, for we know not to whom the other writes or from whom they hear, and are constantly guilty of writing the same day to the same parties, ignorant alike of the facts or the contents. This you will admit is by far a more discreditable separation than if distance were added. .. I therefore openly avow the truth, and declare at once the utter impossibility of my ever again returning to her apartment. There can be no restoration of happiness which never existed."

....

In another letter he admits that "there is an actual separation existing.

By the evidence of the servants, and, it may be added, by that of admissions in his own pleadings in the cause, it was proved that Paterson and his wife never met except at meals, when he never spoke to her, but addressed all his conversation to his sister, who lived with him; that he was in the habit of walking out with his sister, but never with his wife; that Mrs. Paterson, though entrusted with the keys of the house, never received the slightest attention from her husband; she appeared wretchedly unhappy, and was frequently seen in tears. On one occasion he had been absent from home for several months; and, when on his alighting from the carriage which had conveyed him home, she held out her hand to him, he refused to take it, and passed by without any recognition. He would not allow her family to visit her; and threatened them with violence if they attempted to enter his house.

Matters got worse, until at last the poor woman became so miserable that, after about nine months residence with her unfeeling husband, she was obliged to leave his house, and seek for protection among her own friends. She, accordingly, in order to vindicate herself and assert the rights of her position as a married woman, brought this suit for separation à mensâ et thoro, and for a suitable aliment.

Such a case is, from its nature, peculiarly one of circumstances. It is difficult to draw the line, and to lay down any general rule as to the domestic conduct which will warrant this suit. Some nice speculation on the subject is to be found in the Scotch books.

Paterson pleaded to the suit, admitting a considerable portion of the summons, but denying several of its averments.

The case was very fully argued in Scotland, the present Lord Advocate and Dean of Faculty being the leading counsel on either side; and after hearing these learned gentlemen and their juniors at great length, the Scotch court, in very emphatic terms, decided in favour of Mrs. Paterson, finding that she was entitled to live separately from her husband, and ordaining him to separate himself from her à mensâ et thoro in all time coming; and as to the aliment, ordering the husband to give in a special condescendence of the amount of his means and estate.

The court were not unanimous, however, and it is but fair to Lord Brougham to state, that Lord Fullerton, unquestionably one of the ablest and most esteemed of the Scotch judges, dissented from his brethren, on the ground that, while in point of morality and good feeling, the conduct of the husband was indefensible, the facts were not so tangible as to bring them within the compass of legal rule. The opinions of the other judges were very decided, demonstrating a violent conflict of opinion with the House of Lords.

The Lord President said that,

"This appears to me a most extraordinary case, for which_no parallel can be found in the law of either Scotland or England. It is a case of sui generis, and he hoped it might be truly said Mr. Paterson is a husband sui generis. The action has been brought by the lady to effect her deliverance from the unparalleled sævitia with which she was treated while under the roof of her husband. . . . He proposed marriage to this poor girl to relieve himself from pecuniary embarrassments. It is clear from his correspondence that he never entertained any feeling of affection for her, but regarded her with feelings of alienation. She was the object of his hatred and disgust, and he avows in his letters that such were his feelings towards her from the first moment of their acquaintance. He would not trouble their lordships by reading these letters, but a perusal of them puts this matter beyond doubt."

His Lordship then emphatically said,

"A case of this sort is perfectly unparalleled; and the question comes to be, whether in a case in which, although no actual personal violence has been established, there is the most complete proof of a long course of contumely, an utter disregard of all the decencies of society, a total desertion of all the duties which a husband owes to his wife, and an express and avowed determination to persevere in this course of conduct,-in such circumstances as these, can the court give no remedy to the aggrieved party?"

Lord Mackenzie said,

"I concur in thinking this a most peculiar case. No such cases ever yet appeared in our practice, and I trust none like it will appear again. The defender avows that he contracted marriage with most interested motives. He admits that he not only felt no affection for his wife, but that he actually regarded her with feelings of aversion,-of hopeless aversion which he knew he would never overcome. He made no attempt to overcome that feeling. If this remedy is not competent, the wife must maintain herself; for it is plain that she cannot continue to live with her husband Before I conclude I cannot help asking what is the motive of this defence? Does the defender say that his happiness will be destroyed by the separation? On the contrary, he says he has no pleasure in his wife's society; that he is miserable, that it is not his marriage, but the presence of his wife that makes him so. He wishes to torment himself because at the same time he torments his wife; or else he means, miserable as her presence makes him, paying her aliment will be still greater misery.'

Lord Jeffrey concurs with the Lord President and Lord Mackenzie. His Lordship observed,—

"We find that in the law of England nothing short of violent or imminent danger to the person is a ground for insisting on a separation à mensâ et thoro. We are all agreed, for even Lord Fullerton does not even dissent on this point, that such is not the law here. In the neighbouring country a peremptory line is drawn between injuries to the body and injuries to the mind; but it is impossible to maintain that any such impassible bar exists in this country; and therefore so far our ground of decision is clear..

"It is clear that mere distaste or dislike will not do, but here we have admission under the husband's own hands that he has all along entertained a rooted aversion to his wife. It may be that he cannot help his aversion; but the law will not allow him to say that he cannot help his manifestations. Another man might as well say that he could not help manifesting his by blows, which most probably give less pain. Since he insists upon living with her, he is surely bound to treat her with civility, and not entitled to indicate disgust and aversion in the whole course of his conduct.

Nor can I understand what the defender's interest can be to resist this action. He says in his letters, we cannot be more completely separate than we are now. This separation is more discreditable than a judicial separation would be.' I do think it was more discreditable to him. He says at one time that her going on a long visit to her relations would be an unspeakable relief to him. He does not now pretend an unwillingness to break up the conjugal society. He is quite willing in short that there should be a separation, but he will not consent to pay aliment. Therefore on the whole matter, though agree that the whole case is a novelty (and I trust that it will also be a singularity), and while we proceed on no new legal principle, or

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any thing but what has been fixed before, viz., that bodily violence is not necessary, I think there are circumstances proved here, which, if they should ever be proved again as clearly, will be a sufficient ground for a judicial separation."

Such were the emphatic and expressive terms in which the Scotch judges declared the protection which their jurisprudence afforded to an insulted wife. The principles on which they proceed we cannot but cordially applaud, not more as lawyers than as members of society.

But the husband is unwilling to part with the wife he detests; and he appeals to the House of Lords, of whose legal authority at the time Lord Brougham was the judicial impersonation. And we now beg our readers to observe the manner in which this affecting case is treated, and the judicial comity conceded to the Scotch judges. Doctors' Commons is brought at once to

bear on the Scotch suit.

Mr. Rolt and Dr. Harding appear for the appellant, and Mr. Rolt is about to open the appeal, when he is thus interrupted by Lord Brougham:

"LORD BROUGHAM.-There is no allegation whatever on which the judgment can be supported. The House would rather hear the other side, as at present there is nothing for it to attend to. We will hear Dr. Harding in reply, should it be necessary."-(We quote from the last number of Mr. Sydney Bell's House of Lords Cases.)

Mr. Turner and Mr. Andrews accordingly proceed to argue for the respondent, and, in what we are assured is a moderate and clear statement of Scotch law, they cite the following strong and pointed dictum of the then Lord Justice Clerk of Scotland, the present universally esteemed and venerated Lord Justice General:

"I never can accede to the proposition that the only legal ground of matrimonial separation must rest upon personal violence. That is not the law of the country, and I will venture to say that it is not the law of any civilized land. A train of mal-treatment may occur in the married state to be viewed and weighed according to the status of the parties in society, perfectly sufficient to found a claim of judicial separation, without an approach to personal violence.”

His (the appellant's) conduct, observed these learned counsel, is one of silent cruelty, intended sooner or later to break the heart of the respondent.

"It never can be said (they proceed to say), where a husband refuses cohabitation with his wife, or to hold conversation or any kind of society with her, that he is performing the contract of marriage."

On the 30th July Lord Brougham pronounced the supreme

judgment of the House of Lords. After explaining the view he took of the facts, his lordship speaks of the wife as "the innocent sufferer in this case; and with respect to her, the feelings of the court below appear to have been not unnaturally, I may say almost unavoidably, awakened. In these feelings I heartily concur; but, my lord, a judge has no right to indulge his feelings; no right to entertain any feelings which can, in any, the slightest degree, affect his judgment. He must not feel for one party or the other, nor know any desire, any sentiment, except a fixed resolution to administer justice, stern and unbending, between the two; justice according to the stern and unbending letter of the law, whose organ he is."

With the greatest deference to Lord Brougham, we humbly and respectfully venture to suggest that the judicial, not less than the juridical principle he would lay down in this passage, may be calculated to mislead the student of consistorial law. A judge is not a mere machine, but a rational being, and is not permitted-justice does not permit him-altogether to ignore his own feelings. He may feel judicially in consequence of that which is brought before him judicially; and where evidence is such as necessarily to address the feelings, the judge is bound to feel intellectually, and, in matters between man and wife, equitably, and even benevolently. The expression of "the stern and unbending letter of the law," we had thought to be quite beside the case. The law to be sure must rule; but the spirit rather than the letter should, we think, be sought.

Such being the hard canon of construction applied by Lord Brougham to the circumstances of the case, we cannot be surprised at his lordship affirming "that the court below has widely departed from an accurate view of it." Lord Brougham then proceeds with an exposition of his legal opinions; and we believe that we faithfully represent these, in saying that a case, to ground separation à mensâ, must fall under one of the three following heads:-1st. Actual personal violence; 2nd. Threats of personal violence; or, 3rd. Mal-treatment direct, or the necessary consequence of the conduct complained of, by which the health is injured or put in danger. In considering this third principle, his lordship applies to it such nice metaphysics as excludes unfortunate Mrs. Paterson from legal shelter. that this poor lady's health was in danger-the health of her mind as well as the health of her body-there can, we should think, be no doubt. But even were it otherwise, we declare it to be a scandal to the law of a civilised country, that a wife should be compelled to live under the same roof with her husband in the outrageous circumstances here disclosed.

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