Mr. Rogers then proceeds1 to give a chronological abstract of all the cases on this subject, with the opinions of the judges in the Banbury Peerage case, noticing however in the outset a dictum, that the presumption of real issue was always open to discussion centuries before Pindrell v. Pindrell had exploded the doctrine of "extra quatuor maria." Assuming that this opinion applies to Foxcroft's case, 10 Ed. I.; Roll. Abrid. 359, and Radwell's case, 18 Ed. I., and Co. Litt. 123 b, Hargrave's note, 190,-he proceeds to show that those cases do not apply, and that Pindrell v. Pindrell, 2 Strange, 925, was in truth the first case which, by admitting evidence of actual paternity, did get rid of the confessedly absurd doctrine of the extra quatuor maria." In passing, however, he exonerates Lord Coke from a charge brought against him by Lord Redesdale in his speech on the Banbury Peerage case,-that, when Lord Coke stated that if the husband were within the four seas the legitimacy of the son could not be disputed, he made the law and did not declare it. Mr. Rogers refers to several cases in the Year Books, showing that the law had been so declared and acted upon long before the time of Lord Coke. In mentioning Foxcroft's case, he notices the observations of Sir H. Nicolas, in his able book on Adulterine Bastardy, that the illegitimacy established in that case arose out of the insufficiency of the marriage, and that it could not have turned on the question of paternity, because the case itself states as a fact that the woman to whom Foxcroft was married was pregnant by himself. Mr. Rogers adds, what seems to have escaped observation before, that, whether Foxcroft was the father of the child or not, still, having married the woman when enceinte, he would be held, not only by our law, but by the canon and civil law, to have adopted the child with which she was pregnant.

3

2

Radwell's he contends to have been the case of a posthumous child, in which the heir is entitled to a writ to ascertain whether the widow is or is not pregnant at her husband's death, but is not entitled to an inquiry whether the child be the husband's or not; and he cites a case from the Year Book, 43 Ed. III., in which the heir tendered an issue that the widow

1 P. 81.

P. 81, 82.

3 P. 83.

was not with child by her husband. Thorpe, C. J., said, you cannot have such an issue to bastardize the child; and therefore issue was taken generally whether she was with child at her husband's death or not.

In speaking of the period of gestation, with the rule of the Scotch law and of the Code Napoleon, he notices the Gardner Peerage case, and makes the following observations:1 "If a man in sound health were to die suddenly, and his widow not to be confined till even more than three hundred days after, as it seems by no means physically impossible that gestation may have been so long protracted or even longer; and if the conduct of the wife afforded no ground for suspicion, it would be hard to say that such a child was not legitimate until the uniform opinion of scientific men shall affix a period of possible gestation. The mere circumstance of a child being born some time after the usual time of gestation has expired, could not, standing alone, decide the question; but where there are circumstances in the case leading to a strong suspicion that the husband was not the father, the additional fact of gestation protracted beyond the ordinary period would be strongly confirmatory, and indeed almost conclusive of illegitimacy. It must be remembered that forty weeks is the rule; an extension beyond that period, the exception; and though where the woman is of general unimpeached character, and no circumstance appears in the case to excite suspicion, the legal presumption in favour of legitimacy will sustain the excepted case up to the bounds of physical impossibility; yet, where the general character of the woman destroys that legal presumption, or where her conduct in the particular case raises a contrary suspicion, then the improbability that the child could be the husband's, from the birth being out of the ordinary course of nature, so far from being counteracted and rebutted by the other facts in the case, is supported and confirmed by them."

Canon Law. Under this title is given a short history of the origin of the canon law, of what it consists, and how far it is to be considered as binding upon the laity; and the author cites the opinions of Lord Hale, Hist. Common Law, 27; of Lord Hardwicke, in Middleton v. Crofts, 2 Atk. ! Page 100.

2 P. 134-136.

650, Stra. 1056, 1060; and of Sir J. Nicholl, in Norton v. Seton, 3 Phill. 162, to show, that, unless it has been adopted and so become part of the common law, or been recognized by statute, it is not binding on the laity; though when canons have been confirmed by the king, the clergy are bound by them.

Mr. Rogers notices an observation by the court in the case of The Bishop of St. David's v. Lucy, 1 Salk. 134, that "though the canons of 1640 had been questioned, no doubt ever existed about those of 1603." With regard to these canons of 1640, it is said in Rushworth's Collection, vol. iii. 113, that on the 15th December, 1640, it was resolved by the House of Commons, nem. contr. that "they do contain in them matters contrary to the king's prerogative, to the fundamental laws and statutes of the realm, to the rights of parliament, to the property and liberty of the subjects, and matters tending to sedition and of dangerous consequence." The previous debate, though marked throughout by sound sense, is strangely disfigured by the dogmatical pedantry of the day. Take, for instance, Sir Edward Deering's speech, who opened the discussion:1

"The pope, they say, has a triple crown, answerable thereunto; and to support it, he pretends to have a threefold law; the first is, jus divinum, episcopacy by divine right; and this he would have you think to be the coronet next his head, that which doth circle and secure his power. The second is jus humanum, Constantine's donation, the gift of indulgent princes, temporal power. These two crowns being obtained, he (the pope) doth make and frame this third crown himself, and sets that upmost on the top. This crown hath also his law, that is, jus canonicum, the canon law, of more use to his popeship than both the other."

Again: "They have charged their canons at us to the full, and never fearing that they would recoyle back into a parliament, they have rammed a prodigious ungodly oath into them."

In a note under title " Church," the author seems to combat the opinions of those who in the recent discussions on church rates, with reference to the ancient tripartite or quadripartite division of tithes, contend that a portion of tithes 1 Page 100. 2 Page 163.

ought still to be devoted to the repairs of churches. He contends, on the contrary, that the above division existed only at a period when the whole of the tithes and other pious contributions were paid to the bishop, who sent forth his clergy throughout his "parochia" or diocese to preach and distribute the sacraments to those districts which were too remote from the principal church of the parochia to enable the inhabitants to attend it; and that these, like our stipendiary curates, were paid by stipends for so doing. He denies that any such division ever existed after the country had been completely allotted into parishes and parochial endowments had been made; and he shows, by reference to the laws of Canute in Wilkins's Collection of Anglo Saxon Laws, that, when this period had arrived, the duty of repairing churches was treated of as a public burthen on the inhabitants, in the same general way as the duty of repairing the public roads.

We observe that in a note to the word "parochia," p. 613, Mr. Rogers complains of Ayliffe, for deriving that word from TagExw, probeo, whereas Dufresne and others derive it from Tagonia. Now though it may be true that our word "parish" is derived from the French paroisse, which doubtless comes from the Greek Tagoxia, yet the word parochia having reference only to the particular district within which certain sacred offices were performed, seems more correctly derivable from παρέχω.

Afterwards he gives a summary of the law of pews,1 which may be useful in practice; and by an examination of the cases, shows that there is no authority for any supposed custom for the churchwardens to dispose of the seats in a church, independently of the authority of the bishop.

In a note at the commencement of the title " Divorce," he gives a sketch of the law as it existed under the provisions of the civil and canon law, and as it now prevails in different countries of Europe, as well as of the varying provisions of different states of the American Union on this subject. He considers our own system of granting absolute divorces by means of special acts of parliament (which adopts the principle of indissolubility of the canon law, but has transferred 1 Page 171.

2 Ib. 323.

from the pope to the legislature the extraordinary power of dissolving the vinculum) to have arisen out of the differences of opinion which existed on this subject at the Reformation, and the unsettled state of the law consequent upon such differences.

Marriage, as might be expected, is the subject of an elaborate article, distributed under ten heads: 1. The Contract; 2. Marriages by Banns; 3. By Licence; 4. The place and hour of Marriage in cases of Marriages by Banns or a Surrogate's Licence; 5. Marriages under 6 & 7 Will. IV. c. 85; 6. Dissent to Banns, forbidding Certificates and of Caveats to Licences; 7. Consent in cases of Minors; 8. Void and voidable Marriages; 9. The consequence of irregular Marriages; 10. Foreign Marriages. In speaking of the contract of marriage, the author questions the opinions of those distinguished persons who seem to have considered that marriage by the common law of England was only a civil contract. This inquiry, as he observes, has been most ably pursued by Mr. Jacob in a note to his edition of Roper's Law of Husband and Wife.

Mr. Rogers discusses the question on narrower grounds than Mr. Jacob. The argument of those who insist that the civil contract amounted to complete matrimony, is stated nearly in the words of Lord Stowell in Dalrymple v. Dalrymple, 2 Hag. Com. 64,-that though the canon law, which is the basis of our law of marriage, required solemnization, it so far respected the origin of marriage as to consider that, where the natural and civil contract was complete, it had the full essence of matrimony without the necessity of religious solemnization: that till the Council of Trent the intervention of a priest was not necessary even in the Church of Rome; and that in England, where the authority of that Council was never acknowledged, a church ritual was framed for the more solemn celebration of matrimony, a neglect of which exposed the parties to ecclesiastical censure, but did not render the marriage invalid.

By way of answer, Mr. Rogers takes up rather bold and apparently new ground, and affirms that the intervention and sanction of a priest were necessary to the validity of marriage