Page images

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 soou 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 immelowing only half the charge for preparing diately concerns. The Preface and Index the briefs. The rest of the Court concur- remain to be published, and we wish the ring.-Rule refused. Bucknell v. Boydell, venerable author health to complete the 7 Scott, 171. .

latter with his accustomed precision,


CLERKS. Practical Forms and Entries of Proceedings Tn. Hilary Term Examination will probably

in the Courts of Queen's Bench, Common commence on Wednesday the 22d instant, Pleas, and Exchequer of Pleas. By Wm.

being the first of the ten days within which, Tidd, Esq., of the Inner Temple, Bar- according to the general rule of Court, the rister at Law. London, 1810: Saunders Examination must take place. We have & Benning, and H. Butterworth.

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 prerious 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 hav. ing 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 not appear that he made out a case of failure great service to the Practitioner:

from actual illness on the day of examination; Forms of Articles of Clerkship, Service and if a slight degree of ill health or and 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. I had become a subject of remark amongst


L1w us to Marriages abroad between English Subjects within the prohibited Degrees. 181 many of the young men preparing for exami- vigorous, and luminous exposition; and also nation, that there was nothing to apprehend that the measure of reinedy, proposed, if not regarding the result, and therefore, small altogether sufficient, is one deserving of great

respect and consideration. pains were sufficient to pass the ordeal.

In the present article it is not our intero Now, whatever difference of opinion may tion to follow his Lordship through the three remain, if any, on the utility of the exami- branches into which he has , naturally divided nation, it is unquestionable, that so long as his suliject-marriage, legitimacy, and divorce, it continues, it should be effective. We but almost entirely to confine ourselves to the have no notion that it will be made too first, and even to a part of the first of these severe, and it will be generally admitted that branches, and to discuss the law as affected

by Lord Lyndhurst's Act of 1835, rendering it ought not to be too lenient. It is very void marriages which were before only void probable that the recent appeal, terminating able to state soine of the inischiefs arising as it has, will produce much good.

from this part of the law, and the evasions of it still practised, and to point out some legis

lative remedies which it seems to us the evils ON THE LAW AS TO MARRIAGES

ABROAD BETWEEN ENGLISH SUB- growing up under the new stute of the law reJECTS WITHIN THE PROHIBITED quire. Before leaving Lord Brougham's proDEGREES,

posed measure, we may as well nication, how

ever, that it would, we think, have been better The present article has been written at the divided into three measures, one addressed to request of several country rcaders, in the hope each branch of the subject; and also that, as of directing the aitention of the profession to at present framed, it would le alınost inopethe necessity existing for soine further legisla. inutual bearings of the English and Scotch

rative from being altogether confined to the tive provisions on the subject.

Marriage Laws on each other, and not expbra. Whatever may be the opinion entertained of solemnized on the continent to evade the ope

cing the cases, now so coin mon, of inarriages Lord Brougham’s allaininents as a lawyer, and ration of our own very peculiar matrimoniale hio qualifications as a judge, it is impossible to regulations. withhold our admiration of the mode with

It is pretty well understood, and we believe which he has from time to time dealt with some accurately, that Lord Lyndhurst's Statute of of those mingled questions of law and juris- 1835 was directed to the cases of a nobleinan prudence to which he has always eviilently had of high rank, an attack on whose iwarriage with so much satisfaction in addressing himself. In the sister of a deceased wife was feared, and of our estimation, indeel, it is upon questions of some few other individuals whose naines are this sort that both be and Lord Lyndhurst have well known, and who were similarly circuminust distinguished themselves ; and certainly stanced. Though of course noihing could be the two ex-chancellors are those in particular inore natural, or less objectionable, than that ainong the eminent lawyers of the House of parties feeling, in their own persons, the inisPeers, that the profession looks to in cases of chievous effects of the then existing law as to condict between the laws of different countries voidable marriages, should be the moving paror of different parts of our owo country, cope-ties 10 a change ; yet it is certainly to be lacially between England and Scotlanıl, and from mented that measures professedly enacted on whom it expects the initiation of measures to public grounds should so often have, in their reconcile the great difficulties arising from this origin, a personal reference to some individual source. In no branch is this condict so re

The law in such a case, vecessarily is inarkable as in the law relating to marriage ; inore imperfect in its future bearings anıl opeand on no other subject du we recollect any rations. 'If a law be really started for some legal prelections of the two learnedd Lords we

personal and individual purposes ; 10 quiet, for bare just nained, inore interesting than those instance, the title of the son of the Earl of A., they have given in two recent cases on the or the conscience of the Duchess of B., it is marriage law, to which we shall presently have impossible that its workings on society and on to advert. Of the intricacies of this subject, international rules can be so fully considered and of the perplexities and misfortunes to which it gives rise, it must be acknowledged, their Conflict, by William Burge, Esq., Q. C. too, that the essay and speech namned at the Vol. I, Chaps. 2, 3, 4, 5, and 8. 1833; and of foot of this articleb contain a inost interesting, the Act 5 & 6 W. 4, c. 54, to render certain

Marriages valid, and to alter the Law witla a Birtwhistle v. Vardill, and Warrender v. respect to certain voidable Marriages. Warrender, both in 9 Blighi’s Rep.

c Seeing, as his Lordship has co clearly, the • Discourse on the law of Marriage, Divorce, weight and extent of the evils to which his and Legitimacys and Speech on a proposed measure was addressed, why las he been conScotch Marriage and Divorce Bill. 'By Lord tent merely to carry in and print a bill in 1835, Brougham. Lord Brougham's Speeches, vol. and to do nothing more? Cau the imere deli3, p. 431, &c. 1838.

very of a speech in 1835, and the printing it Tle present article may be considered as a with a little prefatory inatter in 1838, be enougla review of this Discourse, and also of the Com- to satisfy Lord Broughain's mind that lie has mentaries on Colonial and Foreign Laws, and done his duty to such a subject ?


a steamer

It was

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

, as they should. The marriage law, of all, coinmunity will not, after all, impose. Marbranches of law, has been peculiarly unfortu- riages within the prohibited degrees of allinity, nate in this respect; for almost all the acts on and between connections by affinity of the this subject in the statute book, if their secret nearest kind, are of every day occurrence. The líistory could be traced, would from the earliest marriage of a sister of a deceased wife has of thein, be found to have had much of perso- not been stopped by the late act, and we nal reference in their origin. There being but believe cannot be stopped even among the little consideration how far laws of this sort are higher classes ; among the mid they are adapted to the state of the public mind,-

1,--as a daily taking place; among the lower they have consequence, when passed, they are looked long been the cominonest marriage which a upon like the revenue laws, as having been widower with children makes, and the late act made to be evaded. Indeed here evasion is has made no kind of difference to the custom. actually allowed by act of parliament : and all Marriages between parties connected by affithe wholesome provisions for the protection nity, but in remoter degrees, are less common, of minors and their fortunes, and for the pre- though by no means uncommon, and certainly vention of clandestine marriages, may, by ex- unobjectionable, at any rate, except in point press authority of the law itself, be broken of taste. The case for which the Registrar Gethrough by taking a post carriage over the neral was taken to task last session, was a Tweed, or

across the straits of curious instance of such a marriage. Dover. Now any law on any subject syste- that of a man marrying his own grand. inatically disregarded by the public, has be- mother, as she was called. An illegitimate son yond doubt a very bad moral tendency on married the young widow of his grandfather, a the public inindd The mere dead-letter-law woman of his own age, the marriage being, brings a mischievous ridicule on law in gene- we have been assured, entered into at the ral; but enactments, though good perhaps in particular dying request of the deceased husthe abstract, on subjects so connected with the band. The registrar, hy some mistake, conmoral and religious feelings of men, as that sidered the marriage was not prohibited. Had under consideration, if so far against the the wife been a great aunt by consanguipublic sentiment as to be constantly broken, nity, the husband's grandmother's own sister have an effect on the national character and (perhaps not a very probable case) or had it tone of public principle, deeply and widely been the case of a man marrying his great detrimental. No such law should be enacted niece,-though here there would have been a without full consideration ; nor should any very objectionable connection by blood,—the bias from personal events be allowed to bear marriage would have been good. Indeed, upon it: and when enacted, and it is to this with respect to the inarriages between persons point the present article will

, so far as it may nearly related by blood, did the feeling of the trench on the province of jurisprudence, be community allow,—and such marriages are principally addressed) it should be a strong greatly less frequent than those which we are law, and not one nugatory, and by common inore particularly treating of in this article,-it consent to be broken without the slightest might well deserve consideration if some lepenalty. But if this be the desideratum, the gislative obstacle should not be interposed: law of marriage will appear to be everything At present, if two brothers marry two sisters, but what it should be.

their issue inay intermarry, though certainly Ou religious and moral grounds the marriage there are strong physicale reasons why it should law enacts that which the religious and moral not be so, and we should say stronger moral feeling of the country does not countenance, reasons than in the cases of affinity-certainly which its every day practice disregards, and of than in those remoter than a deceased wife's which the most easy evasion is, as we shall pro- sister. A widower and widow, each with young ceed to shew, allowed : and besides the case of children, interinarry. The children are brought evasion, the only legal penalty attached to the up together as brothers and sisters; yet with all clearest infringement, is one which a simple the saine moral reason prevajling as in the case testa!nentary disposition will remove. It ex- of actual relationship, they are not under the pects to rest for its sanction on a moral penalty; slightest legal restriction from marrying. A and this, as we have said, the feeling of the man, too, may marry his wife's sister-in-law,

(i.e. her brother's widow) though this is almost d Jn our view, perhaps the greatest, though as near a connection as the prohibited one. least appreciated good to arise from the con- We shall not, however, discuss the much templated change in the Post Office regula- debated question, whether these marriages tions, will be the removing the cause of a are wisely discountenanced or not, further breach of law so systematic as to be practised than to say that marriages which violate no even by the most religious and scrupulous, as physical laws, which are rather marriages of well as by all the rest of the country. It quict calculation as to the future welfare of would seemn strange to call the illegal convey- children, than marriages of passion-which ance of letters thieving. But if the law makes it a crime, why is it not? It is evident these

e We have heard from eminent medical aqdisregarded rules break down the wall in men's thority, that the prevalence of albinos amongst ininds between right and wrong; and this the lowest classes, so remarkable in sonue remark is much more applicable to the subject densely crowded populations, is attributable We are on, than 10 the illegal carrying of to such connections as this, and indeed, we are Jetters.

sorry, to say to more objectionable ones

Law as to Marriage abroad lelween English Subjects within the prohibited Degrees. 183 have been so widely contracted, and that ne- are regulations well enough for the Church cessarily by persons (widowers) past the ave- itself, but infringement on the liberty of conrage age at which matrimony is contracted, science of all without its pale. On the contirequire at least very clear reasons on which to nent, not only are these marriages generally ground their prohibition. The circumstance allowed, but even very near connections of that Henry the 8th enacted the law soon after blood; uncle and niece, for instance, constantly getting rid of his wife, on the ground that she intermarry,i and from the great advisability of had been his brother's widow, says but little assimilating the marriage laws of civilized nafor it; and now that marriage has become, in tions, the legislature ought certainly to have the eye of the law, to all intents a civil rite paused when bringing in a quia timet act for only, a misconstruction of Leviticus,s or a the benefit of past marriages, lest it widened reference to the later canops of the Romish more the breach between our own laws and Church, mere inventions to make a narket those of the continent. Most professional for indulgencies, will not be enough to shield readers of experience will probably be well 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 sup- these marriages have taken place, and are takported. Such arguments would only raise up ing place, abroad. Many, like ourselves, may an outcry from the Dissenters, always of course probably have been more than once consulted glad of an opportunity to attack the canons of on the subject,j and our wish and object is the Churcb; and it would be said as of church that the law should be made clear for the rates, and really with a shew of justice, that they future, and that if these inarriages are to be

prohibited, it should be put beyond question f See Hume, ch. 30, and his observations on that hetween British subjects, they are bad the lawfulness of these marriages. See, too, wherever they take place. Shakespeare's account of the matter:

We will now come to the question which Chamberlain.

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.

validity of these marriages turn. Before the Suffolk.

late act, (the 5 & 6 W. 4, c. 54,) marriages, as

No; his conscience it is well known, against the common law, Has crept too near another lady.

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 miglit 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 “ sororein 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 enarriage 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. Vill'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 inarriages 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. 1.] 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 sime, both here and in America, not over- plays turns on an attachment between an uncle looking the parliamentary speeches of 1835, and piece, the mutual position of the parties would be valuable, though for purposes other being chosen for convenience to his plot, and than ours.

certainly not at all as an uncommon relation 8 The probibition in Leviticus, c. 18, v. 14, for such parties. is only of a marriage of a wife's sister during 1 We have been inuch 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. Polygainy 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 riage has been solemnized. In none, as far as New.

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 ådeApionu id est fratris aut inily to be taken care of. Most of the parties sororis filiam, tantum a clero arcetur.” Gro- bave been in the upper ranks of the middle tius de Jure, lib. 2, c. 5, s. 14.


194 Law as to Marringes abroad between English Subjects within the prohibited Degrees. purpose of title to personalty, but not for that convenience and propriety, lay down rules of title to land. This, however, is evidently a militating against the regulations of oiber mistake. Tine very interesting case referred nations, with reference to any contracts, esto never pretended to assert the validity of a pecially those of marriage and divorce; and Scotch marriage, but only the application to that such other nations ought to recognize English real estate of its legal effect in legiti- these rules, as in force in that country. The matizing previously-born issue of Scotch pa- laws respecting the freedom of slaves when in rents, domiciled there. This case is now under England, are an instance. Before the late re-consideration of the Judges, after a re-ar- Emancipation Act, nothing was inore comgument before the House of Lords, ordered at mon than litigation in our Courts about the Lord Broughuin's instance. The reports of personal property in slaves in the Colonies, Lord Lyndhurst'o and Lord Brougham's who, if they had once touched our shores, speeches in moving the re-argument will be would have been held free. We adjudicated found in Bligh, and will amply repay the peru- upon rights existing elsewhere, which we yet sal. The case was re-argued last June. We declared to be abhöreni to our law to allow are not awarc what transpired on this re-argu- the existence of here. We recognized the ment, but look wiih great interest to its deci- law as existing abroad, and applied it to the sion. This case is so closely connected with adjudication of property abroad, on the narrow the subject we are about to examine that a few ground that it was the law there, and without remarks upon it will be proper.

setting up any principle which could militate The decision proceeds on the well-known against our own rules. rule of law, that hæres 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 bis masterly work on the Con- under one set of circumstances, we must fiict of Laws. We had ourselves been for- apply it under the converse set of circuin. merly satisfied with the ground on which stances. The same principle must be carried it proceeded. On reconsidering the sub. throughout. This has in part been done in ject, however, with reference to the pre- the present case. It has been decided by the sent article, we have been led to entertain House of Lords on appeal in a Scotch case great doubts; and if the principle of the (Ross's case, 4 Wilson & Shaw), that the illegi. Scotcli appeal decision we are about to state timate son of a Scotchman, domiciled in Engis to be upheld, we are at a loss to see how land at the birth, could not be legitimatized the doctrine of the Common Law Judges can for Scotch inheritance by a subsequent marstand. We quite adınit with Judge Story riage in Scotland ; thus laying down a rule that every country may in its own ideas of that, even with reference to a country where

legitimation per subsequens matrimonium was k One story connected with this re-argument, allowed, the status of bastardy attached to a perliaps rather characteristic of the learned man by the circumstance of his domicile of and eloqnent Lord last named, has reached as. birth being in a country where the legitimation The case at luw had decided that the legitima per subsequens matrimonium was not allowed. ted Scotch heir could not inberit in England. This principle has been also acted upon by the Lord Broughain we hear, in opening the case, Lords in the Strathmore peerage case, and in stated that he had been counsel in the first ar. another Scoich case. But if this principle gument of the case for the Englislı heir, and be true, so also shouid the converse; and in had, against his own private conviction, suc- Birtvhistle and Pardill the status of bastardy ceeded for him ; the Scotch heir's counsel not being, by the domicile of origin, removable by knowing the real points of his case. That the prevalence of the law as to subsequent now he belonged to their Lordships, he was inarriage, in the country of birth ;-it should bound to speak his real views, and to try to be held removed with reference to a couvtry get the cause set right. Lord Brougham was where that law does not prevail. The House counsel on the first argument, but (and see of Lords might in these Scotch cases have Bligh. 34 for this) he was counsel for the Scorch taken up the narrow ground if they had licir, not the English.

pleased. They might, even if they had been i We are no great admirers of the general sitting not as Scotch lawyers, could such a productions of American literature. But, case have arisen, hare set up the comitas genamong legal writers, soine of their text-books tium, and declared that they should follow the deserve a very high rank. At the very head rule of Scotch law, which plainly was to treat of the should be placed the very able and all issue, wherever born, as rendered inheritable learned anthor we have just quoted. His to Scotch property by a subsequent marriage; other works are of the highest order. We but they chose to proceed on a broader prinhave licard one of the most eminent of our ciple, and to lay down a rule of status of birth equity draftsmen mention that he considered applicable equally to all countries. Sitting his Treatise on Equity Pleading, &c. as the best even as Scotch lawyers they said, “Having for even English students, and that he always been born in England his bastardy is ir-replaced it in his pupils' hands. We are happy vocable.” When they had laid down this to have, in the views taken in this article, the broad rule, to be consistent, they should go support, as we believe we have throughout, of|through with it, and say, sitting as English one so judicious, acute, and profound as Dr. lawyers, “ Having been born in Scotlaud his Story.

bastardy is re-vocable.” We do not say this

« EelmineJätka »