ment between the promise of marriage given in Scotland and the copula in that country. With the utmost respect to his Lordship, this seems to us to be an untenable position. The great question always, it must clearly be borne in mind, is, Has it been proved that the matrimonial consent was exchanged? Now, if the Irish ceremony made a valid Irish marriage, of course cadit questio. But assuming that it did not, then, to our humble thinking, so far from its derogating from the Scotch promise, it only made it still more abundantly clear that the engagement of the parties to marry remained unaltered; and, therefore, when copula did take place in Scotland, it must be held to have occurred between parties who, at that date, consented to be man and wife. This view, which is practically the same as that of the majority of the Court, seems to us to be the strength of the pursuer's case; and we have little doubt that upon it the House of Lords will decide in her favour.

Two points were assumed by all the judges in regard to the promise de futuro, both of which seem to us to admit of considerable discussion. The first of these, which their Lordships took for granted, was, that the promise must be in writing. This is very doubtful. Mr Erskine says (i. 6, § 4), Though the promise de futuro should be barely verbal, the Canonists (Decretal, L. iv., t. 1, c. 30)—and, upon their authority, both our judges and writers-are agreed that a copula subsequent to such promise constitutes marriage, from a presumption or fiction that the consent de præsenti, which is essential to marriage, was at that moment mutually given by the parties, in consequence of the anterior promise.' In the gauger's case, Stewart v. Lindsay, 6 March 1817-reported in a note to Campbell v. Honeyman, 5 W. and S. 151-no written promise was founded on, and yet the marriage was declared on the ground of promise subsequente copula. Again, the case of Campbell v. Honeyman itself, 3 March 1831, 5 W. and S. 92, decides, as plainly as one judgment of the House of Lords can do, that the promise or engagement may be proved pro ut de jure. In this latter case Lord Brougham said, ‘A promise, like all other acts, may be proved by two several ways-either by direct evidence or circumstantial evidence. . . . It may be proved, without either witnesses to support it, or the handwriting to remain on record against the party promising.' It is admitted that, in order to prove a promise of marriage with a view to claiming damages for breach thereof, the promise need not be proved scripto vel juramento, but may be in

ferred from circumstances only (Sinclair v. Rowan, 20 July 1861, 23 D. 1365). Why the object of proving a particular fact should affect the mode of proof is not very obvious.

The other point taken for granted is the necessity of the promise being made in Scotland. If you look upon the promise and subsequent copula as constituting a marriage ceremony, then probably both must take place in Scotland; but if the sounder view is, that it is the presumed de præsenti consent at the moment of copula that makes the marriage, then there does not seem any very strong reason why the promise might not be made anywhere, provided always it be made in such circumstances that the copula can fairly be attributed to it.

The Times newspaper has made a characteristic attack on the judgment in the present case, stigmatizing it as a 'sensation judgment,' accusing the judges of being 'eloquent,' and the audience in Court of giving vent to their feelings in a 'popular howl.' These charges are so absurd that we should not have noticed them, even to deny them, had they not been coupled with a demand for legislative interference in connection with the state of our law. We appeal to any one whether the opinions delivered were a whit more sensational than those spoken any time these fifty years from or around the woolsack itself. If Lord Deas' somewhat poetic nature once or twice caught fire from the inflammable materials with which he was dealing, no one can say that Lord Curriehill transgressed the constitutional sobriety of the bench; and it really is too bad to convert a very feeble cheer from perhaps a fourth part of the audience into a 'popular howl.' But the demand for legislative interference is a matter to which we can have no possible objection. We think a commission might, with great propriety, be appointed to consider the state of our marriage law, and its effect on the morality of the country; and if it is found to be so defective and so baneful as it is represented to be in some quarters, no man in Scotland will object to its reform.

VOL. VII.-NO. LXXIII. JANUARY 1863.

D

New Books.

A Treatise on the Law of Trusts and Trust Settlements: Including its Application to Practical Conveyancing. By John M'Laren, Esq., Advocate. In Two Volumes, Royal 8vo. Edinburgh: T. and T. Clark.

THIS is a work of very great and meritorious labour, which supplies a long felt want, and which will take rank among the best treatises on the law of Scotland.

It deals with a subject the proper treatment of which was surrounded by many difficulties. The law of Trusts is still in an immature condition in Scotland, and may be said (so far as native authority is concerned) to rest upon decisions pronounced within the last fifty years. The great quarry of the Roman law, from whence our elder judges extracted the simple and philosophical system now existing as the Scottish law, is, upon the matter of trusts, singularly deficient and fragmentary. To this, perhaps, may be attributed the little aid to a knowledge of the subject that can be procured from our early decisions. They were few in number, and are of little authority in the present day; and so, while Mr M'Laren had other obstacles to surmount, he had not to undergo the toilsome drudgery of a hunt for his materials in our ancient lawbooks, or in contracted manuscript.

He has given us all our native decisions, with a careful fingerpost erected here and there to guide the reader on his way, so as to avoid overruled and unauthoritative judgments. But along with this he has furnished, within a manageable compass, and with a clearness and precision worthy of all praise, as admirable a commentary as could be wished upon the vast mass of decisions of the English Courts, which, upon the subject of trusts, are exceedingly interesting and instructive. We did not need the English Courts to give us our law of contracts, of succession, and of real property. But, undoubtedly, we are indebted to English lawyers, and particularly to the House of Lords, for the leading authoritative precedents in the law of trusts; and great is our gratitude to a writer who has placed so clearly and concisely before us the principles of a thousand decisions buried in volumes accessible to few Scottish lawyers. Even as regards the decisions of the Scotch Courts, Mr

M'Laren's book will save many a weary search for authorities. The cases are hidden under the oddest titles in our digests,-' succession'—' testament'-'provisions to heirs and children'—and even 'jus tertii' and 'member of Parliament.' Any one who brings these scattered precedents into daylight, does a service not merely to the profession, but to the law itself.

We are not going to criticise in detail a practical treatise on law. Its merits can only be appreciated by experience; and we will be much disappointed if every day's experience will not add to the estimate of its value. It seems to be all conscientiously done. The author has no pet chapter on which he expended all his force, while he left other parts to the fate of taskwork. Having tested the references at various places, and in reference to different matters, we have found every place characterized by originality of labour and research. He has resisted, too, the very strong temptation of long quotations from his authorities. This is sometimes necessary, but the practice is too often abused; and hence we have many books which are if not a collection of rubrics-a collection of reports in extenso, under the guise of an original treatise.

The range of ground over which the author has gone is great. Of course we expected a treatise on all kinds of trusts, the trust disposition and settlement,-the trust for behoof of creditors,charitable trusts; but we were not prepared for a commentary on the law of legacies, marriage contracts, the separate estates of married women, and the Conjugal Rights Act. As, however, these collateral subjects are handled with the same care and the same precision as the rest of the book, the profession can only be grateful that they have got more than they had a right to expect.

Altogether, this book is creditable to the bar. It is the work of one who first mastered his subject, and then reduced his materials to order and method. Not a word is thrown away, and therefore it is one of the best examples of a practical law-book. We have little doubt that the author will find, in his future career, that it was one of the most fortunate circumstances for himself, that he spent some of the years of his early professional life in writing such a work as this.

There yet, however, remains one word of remonstrance that must be said. The author has dug so much among English decisions, that some of the legal terminology of the English Courts has stuck to him. We object to this when we have Scottish law language as

good, if not better, to express the same idea. Is 'election' better than approbate and reprobate?' Why should we have 'secus' or 'semble?' Neither are we acquainted with equitable interests' under trusts, nor with conversion' or 'reconversion.'

P. F.

THE MONTH.

Privilege of the Confessional.-The commitment of a Roman Catholic priest by the Justice of Peace Court in Glasgow, for refusing to divulge a confession made to him by an accused party, raises two very important questions of law,-the one having relation to the supposed privilege of spiritual advisers; the other, concerning the power of inferior magistrates to imprison for contempt of Court.

We must admit our inability to sympathize with, or even to comprehend, the distinction taken by the learned Assessor between confessions made in the confessional of a Roman Catholic chapel, and confessions made elsewhere to clergymen either of the Roman Catholic or any other persuasion. It will be admitted, we suppose, that the creeds of all denominations of Christians recognise and inculcate the duty of seeking spiritual advice and consolation from their ministers; and in the case of a penitent, whose conscience is afflicted with the burden of a crime for which he is amenable to the law and for which he is desirous of making atonement, a confession of the fault, whether absolutely enjoined by the Church or no, comes fairly within the scope of the relations which ought to subsist between the penitent and his spiritual adviser. If, therefore, the Assessor to the Lanarkshire Justices was right in holding that there was a custom binding on the Court to respect the secrets of the confessional, the reason of the custom ought in equity to have protected a communication which was substantially a confession, although not made in the formal manner enjoined by the canons of the Roman Catholic Church. To hold otherwise, is simply to allow Roman Catholic priests to usurp a privilege not conceded to ministers of other denominations who may receive confessions, but who have not the institution of the confessional.

The tendency of the later English authorities has been to recognise the privilege of clergymen in regard to confessions. In Rex v. Gilham (1 Moody, C. C. Res. 186), it was decided, by the unani