180 Notices of New Books: Tidd's Practical Forms.-Examination of Articled Clerks.

had been prepared with unnecessary haste, |ings on the Interpleader Act, &c.-Forms for the mere purpose of making costs, the relating to Evidence and Witnesses.— Procommission-day not being till the 6th of ceedings for the recovery and taxation of March. F. V. Lee moved that the Master Costs. might be directed to review his taxation. From two or three of these heads we Tindal, C. J.-It seems to me that this is might be disposed to make some extracts, very much a matter for the Master's dis- but the book either already is, or soon will cretion; and I cannot under the circum-be, in the possession of all our readers stances say that he has done wrong in al-whose professional avocations it immediately concerns. The Preface and Index remain to be published, and we wish the venerable author health to complete the latter with his accustomed precision.

lowing only half the the briefs. The rest ring.-Rule refused. 7 Scott, 171.

charge for preparing of the Court concurBucknell v. Boydell,

NOTICES OF NEW BOOKS.

Practical Forms and Entries of Proceedings in the Courts of Queen's Bench, Common Pleas, and Exchequer of Pleas. By Wm. Tidd, Esq., of the Inner Temple, Barrister at Law. London, 1840: Saunders & Benning, and H. Butterworth.

THE EXAMINATION OF ARTICLED

CLERKS.

THE Hilary Term Examination will probably commence on Wednesday the 22d instant, being the first of the ten days within which, according to the general rule of Court, the Examination must take place. We have again to remind those whom it may concern THE Common Law Practitioner will wel- that they should not wait for the circular come the appearance of this new Edition, which is sent as a matter of courtesy (not being the Eighth, of Mr. Tidd's Forms. We prescribed by the rule of Court), informing are glad to observe that the venerable the candidates of the day of examination, oracle of Common Law Practice has evi- and as a matter of precaution subjoining dently accomplished this part of his work the questions as to due service. The canwith unabated care and unwearied dili- didates should prepare their testimonials, to gence. The contents of the previous Edi-be left early in the Term, before the expitions have been revised and corrected with ration of the first seven days, in order that Mr. Tidd's well-known accuracy, and many any defects may be supplied in due time. new and valuable Forms have been incor- We briefly noticed last week the result porated in their fitting places. The Sta- of the meeting of the examiners on the aptutes and Rules of Court which have been plication of one of the candidates for an promulgated since the former Edition; vary-immediate re-examination, the Judges having in any respect the form of Legal Pro-ing authorized the examiners to proceed in ceedings, have been duly attended to both the particular case during the vacation, if they in the Forms and the explanatory Notes in their discretion deemed it proper to do so. and References. The whole work has been The candidate, by applying to the Court arranged with admirable method, and the to dispense with the term's notice, may be Notes are, as might be expected, par-examined next term at the usual time.— ticularly valuable. We think this determination of the ExaThe following, amongst other parts of miners was a prudent one, considered as a the work, have either undergone consider-precedent, and we have no doubt it was a able alterations since the previous Edition, just one as regards the applicant. It does or are entirely new, and will be found of great service to the Practitioner:

not appear that he made out a case of failure from actual illness on the day of examination; Forms of Articles of Clerkship, Service and if a slight degree of ill health or "nerand Examination of Clerks, and Forms re- vous timidity," would be sufficient to entitle lating to the Admission and Re-admission a party to a second trial the same term, we of Attorneys, &c.-Forms relating to the have no doubt several of the other unsucService of the Writ of Summons, and the cessful candidates would lay claim to the Execution of the Writ of Distringas, &c.-like indulgence, and that it would be diffiAffidavits to hold to Bail, and Warrant to cult for the examiners at any future time to Arrest, &c.; Proceedings by and against resist the importunities of the friends and Attorneys, and for the delivery and taxa- relations of those who did not obtain their tion of their Bills of Costs, &c.-Notices of certificates. Motion, Affidavits, and Rules of Court, &c. We hear from several quarters, that it for setting aside Proceedings, and Proceed-had become a subject of remark amongst

Law as to Marriages abroad between English Subjects within the prohibited Degrees. 181

Seeing, as his Lordship has so clearly, the weight and extent of the evils to which his measure was addressed, why has he been content merely to carry in and print a bill in 1835, and to do nothing more? Can the mere delivery of a speech in 1835, and the printing it The present article may be considered as a with a little prefatory matter in 1838, be enough review of this Discourse, and also of the Com-to satisfy Lord Brougham's mind that he has mentaries on Colonial and Foreign Laws, and done his duty to such a subject ?

182 Law as to Marriages abroad between English Subjects within the prohibited Degrees'.

as they should. The marriage law, of all branches of law, has been peculiarly unfortunate in this respect; for almost all the acts on this subject in the statute book, if their secret history could be traced, would from the earliest of them, be found to have had much of personal reference in their origin. There being but little consideration how far laws of this sort are adapted to the state of the public mind, as a consequence, when passed, they are looked upon like the revenue laws, as having been made to be evaded. Indeed here evasion is actually allowed by act of parliament and all the wholesome provisions for the protection of minors and their fortunes, and for the prevention of clandestine marriages, may, by express authority of the law itself, be broken through by taking a post carriage over the Tweed, or a steamer across the straits of Dover. Now any law on any subject systematically disregarded by the public, has beyond doubt a very bad moral tendency on the public mind,¶ The mere dead-letter-law brings a mischievous ridicule on law in general; but enactments, though good perhaps in the abstract, on subjects so connected with the moral and religious feelings of men, as that under consideration, if so far against the public sentiment as to be constantly broken, have an effect on the national character and tone of public principle, deeply and widely detrimental. No such law should be enacted without full consideration; nor should any bias from personal events be allowed to bear upon it and when enacted, (and it is to this point the present article will, so far as it may trench on the province of jurisprudence, be principally addressed) it should be a strong law, and not one nugatory, and by common consent to be broken without the slightest penalty. But if this be the desideratum, the law of marriage will appear to be everything

:

but what it should be.

On religious and moral grounds the marriage law enacts that which the religious and moral feeling of the country does not countenance, which its every day practice disregards, and of which the most easy evasion is, as we shall proceed to shew, allowed: and besides the case of evasion, the only legal penalty attached to the clearest infringement, is one which a simple testamentary disposition will remove. It expects to rest for its sanction on a moral penalty; and this, as we have said, the feeling of the

d In our view, perhaps the greatest, though least appreciated good to arise from the contemplated change in the Post Office regulations, will be the removing the cause of a breach of law so systematic as to be practised even by the most religious and scrupulous, as well as by all the rest of the country. It would seem strange to call the illegal conveyance of letters thieving. But if the law makes it a crime, why is it not? It is evident these disregarded rules break down the wall in men's ninds between right and wrong; and this remark is much more applicable to the subject we are on, than to the illegal carrying of

Jetters.

community will not, after all, impose. Marriages within the prohibited degrees of affinity, and between connections by affinity of the nearest kind, are of every day occurrence. The marriage of a sister of a deceased wife has not been stopped by the late act, and we believe cannot be stopped even among the higher classes; among the middle they are daily taking place; among the lower they have long been the commonest marriage which a widower with children makes, and the late act has made no kind of difference to the custom. Marriages between parties connected by affinity, but in remoter degrees, are less common, though by no means uncommon, and certainly unobjectionable, at any rate, except in point of taste. The case for which the Registrar General was taken to task last session, was a curious instance of such a marriage. It was that of a man marrying his own grand. mother, as she was called. An illegitimate son married the young widow of his grandfather, a woman of his own age, the marriage being, we have been assured, entered into at the particular dying request of the deceased husband. The registrar, by some mistake, considered the marriage was not prohibited. Had the wife been a great aunt by consanguinity, the husband's grandmother's own sister (perhaps not a very probable case) or had it been the case of a man marrying his great niece, though here there would have been a very objectionable connection by blood,—the marriage would have been good. Indeed, with respect to the marriages between persons nearly related by blood, did the feeling of the community allow,-and such marriages are greatly less frequent than those which we are more particularly treating of in this article,-it might well deserve consideration if some legislative obstacle should not be interposed. At present, if two brothers marry two sisters, their issue may intermarry, though certainly there are strong physicale reasons why it should not be so, and we should say stronger moral reasons than in the cases of affinity-certainly than in those remoter than a deceased wife's sister. A widower and widow, each with young children, intermarry. The children are brought up together as brothers and sisters; yet with all the same moral reason prevailing as in the case of actual relationship, they are not under the slightest legal restriction from marrying. A man, too, may marry his wife's sister-in-law, (i.e. her brother's widow) though this is almost as near a connection as the prohibited one.

We shall not, however, discuss the much debated question, whether these marriages are wisely discountenanced or not, further than to say that marriages which violate no physical laws, which are rather marriages of quiet calculation as to the future welfare of children, than marriages of passion—which

e We have heard from eminent medical authority, that the prevalence of albinos amongst the lowest classes, so remarkable in some densely crowded populations, is attributable to such connections as this, and indeed, we are sorry, to say to more objectionable ones

Law us to Marriage abroad between English Subjects within the prohibited Degrees. 183

itself, but infringement on the liberty of conscience of all without its pale. On the continent, not only are these marriages generally allowed, but even very near connections of blood; uncle and niece, for instance, constantly intermarry, and from the great advisability of assimilating the marriage laws of civilized nations, the legislature ought certainly to have paused when bringing in a quia timet act for the benefit of past marriages, lest it widened more the breach between our own laws and those of the continent. Most professional readers of experience will probably be well

have been so widely contracted, and that ne- | are regulations well enough for the Church cessarily by persons (widowers) past the average age at which matrimony is contracted, require at least very clear reasons on which to ground their prohibition. The circumstance that Henry the 8th enacted the law soon after getting rid of his wife, on the ground that she had been his brother's widow, says but little for it; and now that marriage has become, in the eye of the law, to all intents a civil rite only, a misconstruction of Leviticus, or a reference to the later canons of the Romish Church, mere inventions to make a market for indulgencies, will not be enough to shield it from scrutiny. On this latter ground, in-aware that since the last act, very many of deed, we should much lament to see it supported. Such arguments would only raise up an outcry from the Dissenters, always of course glad of an opportunity to attack the canons of the Church; and it would be said as of church rates, and really with a shew of justice, that they

f See Hume, ch. 30, and his observations on the lawfulness of these marriages. See, too, Shakespeare's account of the matter:

Chamberlain.

these marriages have taken place, and are taking place, abroad. Many, like ourselves, may probably have been more than once consulted on the subject, and our wish and object is that the law should be made clear for the future, and that if these marriages are to be prohibited, it should be put beyond question that between British subjects, they are bad wherever they take place.

We will now come to the question which we have proposed to discuss, and proceed to

It seems the marriage with his brother's wife, consider the points on which the validity or inHas crept too near his conscience.

Suffolk.

No; his conscience Has crept too near another lady.

66

|

validity of these marriages turn. Before the late act, (the 5 & 6 W. 4, c. 54,) marriages, as it is well known, against the common law, were voidable only the late act declares that King Hen. VIII. Act 2, sc. 2. for the future they shall be void. Shortly after The objects of this periodical, and our own this act, some ecclesiastical lawyers of great time and space, prevent our going into the eminence doubted whether this provision might history of these opinions and laws, otherwise not prohibit marriages of British subjects within the transition from the moral views of the the prohibited degrees of affinity, though taking Athenian, who took in marriage sororem place in a foreign country, where such marsuam germanain, non magis amore quàm more riages were good. We had before us an opiductus" [Corn. Nep. vit. Cimon], to those nion of this sort very soon after the act passed. more modern, we suppose more enlightened However, since that time we believe it has been ones, which consider a marriage with a brother-pretty generally considered that a good marriage in-law's grandaughter right, but with his abroad will be held good here for all purposes. daughter incest, would be a curious story of We say for all purposes, because it has been inodd speculation. An account of the recent correctly imagined from the case of Birtwhistle writings on this subject, such as those in Hen. and Vardill (5 B. & C. 438, and 9 Bligh. N. R. VIII's day, and those again of the celebrated 44) that a marriage may be here good for the author C. Blount, who shot himself in 1693, because the Archbishop of Canterbury per- i Such marriages are far from uncommon suaded his deceased wife's sister it was cri- in Poland and in France, amongst the highest minal to marry him, [See Biograp. Brit. & classes of the nobility. In France, the Crown Bayle, art. Appollonius of Tyana, n. I.] and of may dispense with the law against marrying a other subsequent writings down to the present niece. Art. 163 & 164. One of Goethe's time, both here and in America, not over-plays turns on an attachment between an uncle looking the parliamentary speeches of 1835, would be valuable, though for purposes other than ours.

and niece, the mutual position of the parties being chosen for convenience to his plot, and certainly not at all as an uncommon relation for such parties.

The prohibition in Leviticus, c. 18, v. 14, is only of a marriage of a wife's sister during J We have been much surprised to find how the wife's life. Judge Story's Conflict of Laws, little the parties have been affected by the inp. 106, note. Polygamy was then allowed. The timation that their marriage would be quesJewish law required a brother to marry his bro- tionable. About ten or twelve cases have ther's widow. See the story of Ruth in the Old come to our personal knowledge since the Testament, and the parable of the woman mar-last act; and in every one we believe the marrying seven brothers one after another in the New.

riage has been solemnized. In none, as far as we have known, has it been any thing but a h" Certe, canonibus antiquissimis qui Apos- quiet and deliberate engagement between the tolici dicuntur, qui duas sorores alteram post parties. In most, there has been a young faalteram duxisset aut adeλpion id est fratris aut mily to be taken care of. Most of the parties sororis filiam, tantum a clero arcetur." Gro-have been in the upper ranks of the middle tius de Jure, lib. 2, c. 5, s. 14.

classes.

194 Law as to Marriages abroad between English Subjects within the prohibited Degrees.

The decision proceeds on the well-known rule of law, that hores est quem nuptiæ de- But if we once adopt a general principle monstrant. It seems to be approved of by applicable to international law, and apply it Judge Story in his masterly work on the Con-under one set of circumstances, we must flict of Laws. We had ourselves been formerly satisfied with the ground on which it proceeded. On reconsidering the sub. ject, however, with reference to the precent article, we have been led to entertain great doubts; and if the principle of the Scotch appeal decision we are about to state is to be upheld, we are at a loss to see how the doctrine of the Common Law Judges can stand. We quite admit with Judge Story that every country may in its own ideas of