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doctrines difficult to reconcile with the free disposition of property by all persons of competent age. These decisions are all since the Restoration, and have been supposed to have been a resumption of the urisdiction of the Star-Chamber. As a sample of political arguments in the times subsequent to the Restoration, in the case of Man v. Ballet, (1 Vern. 44) the Attorney-general, in arguing a case of charity, harped much upon it, that the lecturer appointed by the parishioners was a Presbyterian, and as soon as he had done in the church would run into a conventicle, was checked by the Lord Chancellor (North); but the argument would not have been used if it had not been on other occasions effective. So when a beneficed clergyman of the Church of England left a sum of money to be distributed by Mr. Baxter among sixty pious ejected ministers, adding, "I do not give it to them for the sake of their non-conformity, but because I know many of them to be pious and good men, and in great want,” in the reign of the same monarch as passed the Act of Uniformity, the charity was adjudged to be void, and the money given applied for the maintenance of a chaplain in Chelsea College. (1 Vern. 248.) But in a subsequent reign, and after the Revolution, the charity was established in the terms of the will. (2 Vern. 105.) And in Harvey v. Harvey, (2 Ch. C. 180.) a settlement made to evade forfeiture for treason in the time of Cromwell was set aside, on parol evidence of the intention of the settlor under James II., the success of one party having put an end to the fears of the other. In our own time, when the hand of a great northern heiress was to be disposed of by the Court of Chancery, is it impossible that political considerations may have had their weight in awarding her great estates and consequent influence to a suitor of the same party as the then Lord Chancellor? Sometimes the influence of political motives is only perceptible in the leaning of the Judge to the opposite principles to those professed by his party and himself, as in Alexander v. D. Wellington (2 Russ. & M. 54.).

Sometimes political rivals, as Lord Mansfield and Lord Camden, have viewed the judgments of each other with microscopic eyes, and magnified accidental flaws to gain the temporary triumph of a reversal. Instances of such jealous scrutiny and overruling upon very nice points may be found in Meres v. Ansell, (3 Wils. 275. Almon's Anecdotes, vol. i. 324.); and Rolfe v. Peterson, (Almon's Anecdotes, i. 393. 2 Toml. P. C. 436.).

Sometimes political expediency has outweighed all the arguments arising from precedent and principle, as in Buckinghamshire v. Drury, (Wilmot, 177. 3 Toml. P. C. 492. 2 Eden, 60.); Ffytche v. Bishop of London, (3 Burn. Ecc. Law, 356. 2 Toml. P. C. 211.);

Attorney-General v. Brazennose College, (8 Bligh, N.S. 377.) Attorney-General v. Smythies (2 Russ. & M. 717.). In former times, when the current of decisions was full and uniform, such judgments would have been left in silence on the banks; but for the last century, they have been permitted to remain, and form part of the islands, shoals, and quicksands among which the litigant is to navigate. An unreversed judgment is regarded with a reverence and respect to which the reasons supporting it are not always entitled. Religiosum est adeo, quod judices decreverunt; that there is no refinement or hairsplitting that will not be resorted to to distinguish a new decision from an established case. In general the more the passions and feelings of the people accompany any decision, the more is the soundness of its principles to be questioned. Lawyers of the present day regard Wilkes and his case, (19 State Trials, 81. 2 Wils. 151.) with very different eyes from his contemporaries, and would not be disposed, as they were, to huzza at his discharge. (2 Wils. 160.) Even Lord Kenyon's judgments have been held too much heated by the times in which he lived to be safely relied on. See Rex v. Flower, (27 Howell's State Trials, 985. 8 T. R. 314. Romilly's Diary, vol. ii. 310.); Rex v. Wright (8 T. R. 293.), referred to in the Sheriff's case, Q. B. 1840.

As it is unquestionable that for the last century, the power of the people has been progressively advancing, and that a popular influence more or less direct may be perceived even in the appointment of the Judges, — as the Judges, in political questions, may be expected to be in some measure influenced by the passions of the people of whom they form a part, and as the court of ultimate resort is composed of legal peers, who have attained that dignity as politicians, and who cannot be expected to throw off the habits of a life in the few cases of political magnitude which come before them, —it is incumbent on those who hold the reins of empire to provide such a tribunal as may command the general respect. This has been done, in some degree, in the case of appeals from the decisions of revising barristers, by referring them to the Court of Common Pleas, and might be effected in the House of Peers, by raising to the peerage lawyers of eminence, who have not been political partisans.

THE QUEEN V. MILLIS.

(IRISH MARRIAGES CASE.) 10 Cla. & Fin. 534.

Bigamy - Marriage by a Presbyterian Minister.

THE account given of the decision in this important cause occupies 373 pages of Messrs. Clarke and Finnelly's Reports. An abrégé, therefore, of so voluminous a detail will, we trust, be acceptable. The result is now chiefly curious and interesting as matter of legal history; and the characteristic feature of the case is this, that the final decision of the House of Lords displaces an opinion first promulgated by Sir William Scott, and in deference to his great authority adopted by the legal profession in all parts of the island for more than thirty years past, namely, that as regards the constitution of the matrimonial contract, the law of England, before Lord Hardwicke's Act, was precisely the same as the general continental law before the Council of Trent'; a theory which must now be regarded as entirely erroneous.

1 The admirers of Sir William Scott's celebrated judgment in Dalrymple v. Dalrymple, (2 Hagg. Cons. Rep. p. 54.) will at once remember that this pro.

Prior to the Council of Trent marriage throughout the continent of Europe was looked upon as a purely consensual contract, capable of being completed by the parties without any interposition of ecclesiastical authority. It was, indeed, regarded as a sacrament; but that sacrament might be mutually administered by the contracting parties to each other; and neither the aid nor the presence of any one clothed in holy orders was required. But in the year 1563 the Council of Trent made a decree whereby, after admitting that clandestine marriages had previously been valid, they proceeded to enjoin that for the future no marriage should be effectual unless celebrated duly in facie ecclesiæ. This decree, be it observed, had authority only in those countries which acknowledged the papal supremacy. It had no reception in England, being dated nearly thirty years subsequent to the breach between Henry VIII. and the Pope. The matrimonial law of England, therefore, continued on its former footing. By that law clandestine marriages were allowed. But they were not attended with the same effects as marriages solemnised in facie ecclesiæ. And herein lies the peculiarity of English law, when viewed in contradistinction to the ancient continental law. By the continental law, prior to the Council of Trent, a private marriage was as good as a public one. By the law of England a private marriage, that is to say, a marriage not solemnised in facie ecclesiæ, was good only for certain purposes. Thus a private or clandestine marriage, or, as it was sometimes called, a verbal contract, (which might either be by words of present consent or by words of promise, followed by cohabitation,) was in the first place not sufficient to give the woman the right of a wife in respect to dower; nor, secondly, to give the man the right of a husband in respect of the woman's property ; nor, thirdly, to render the issue begotten legitimate; nor, fourthly, to impose upon the woman the disabilities of coverture; nor, fifthly and lastly, to make the marriage of either of the parties, living the other, with a third person void :—all these consequences being confined exclusively to marriages solemnised in facie ecclesiæ.

Nevertheless, the effects of clandestine marriages were very remarkable, though falling greatly short of those which attached upon regular matrimony; for it is now agreed, and has, indeed, been decided, that before Lord Hardwicke's Act, a contract entered

position formed the staple of his whole argument. On looking again at that splendid (perhaps unrivalled) effort of judicial eloquence, we think some symptoms of misgiving and hesitation are here and there observable. The student will do well to read the Dalrymple case first, and then to peruse and study the elaborate report of the Queen v. Millis by Messrs. Clarke and Finnelly.

into between man and woman by words of present consent was indissoluble. The parties could not release each other from the obligation. Either party, too, might by a suit in the Spiritual Court compel the other to solemnise the marriage in facie ecclesiæ. It was so much a marriage that if they cohabited together before solemnisation they could not be proceeded against for fornication, but merely for contempt. If either of them cohabited with another person the parties might be proceeded against for adultery. The contract too was considered to be of the very essence of matrimony, and was therefore, and by reason of its indissoluble nature, styled in the ecclesiastical law verum matrimonium, and sometimes ipsum matrimonium. Another, and a most important effect of such a contract was, that if either of the parties afterwards married with another person, solemnising such marriage in facie ecclesiæ, the same might be set aside, even after cohabitation and after the birth of children; and the parties might be compelled to solemnise the first marriage in facie ecclesiæ.

So a contract of marriage per verba de futuro, followed by cohabitation, produced precisely the same consequences as a contract per verba de præsenti. For where a copula ensued upon the promise, the present consent essential to matrimony was supposed to be at that moment exchanged between the parties; a presumption which, though but slightly founded in reality, was held to be abundantly recommended by its equity, and the just check which it imposed on perfidy.

The ancient law of England, therefore, with respect to the constitution of marriage, was very peculiar, and no more to be understood by reference to the continental system than the law of real property or any other branch of our jurisprudence. And this we take to be the great point established in the above case by the court of last resort; which, though carried with infinite difficulty, and in spite of many strong and, as some may think, invincible arguments opposed to it, must henceforth be regarded as a point settled and concluded in all legal reasoning on the subject. The short general proposition derivable from the adjudication is, that by the ancient law of England, although a marriage by private contract was good for certain purposes, it could not be absolutely legitimate and perfect without the intervention of a person in holy orders that is, orders conferred by episcopal ordination.

Lord Hardwicke's Act, the 26 Geo. 2. c. 33. "for the better preventing of clandestine marriages," enacted that no suit or proceeding should be had "in any ecclesiastical court to compel a celebration of any marriage in facie ecclesiæ by reason of any