point argued that the marriage was not good for want of a clergyman; but this was overruled, and the plaintiff recovered a verdict.

There is, however, a much more material fact on this head: the number of persons belonging to the Society of Friends and to the Jewish persuasion who have obtained administration from the Ecclesiastical * Court, and ob- *737 tained it without a struggle. I might, indeed, add the number of cases in which titles must have been made and deduced through the issue of Quaker and Jewish marriages; nay, the number of cases of persons who, born of such marriages, have been allowed quietly to take estates, real and personal, without any relative claiming or thinking of claiming to their exclusion; and also the numberless instances in which the Crown would have been entitled; no claim having, however, been made in any one instance by any one Attorney-General. Were the doctrine of the learned Judges well founded, not a single Jew or Quaker could have departed this life without an inquisition of office, and a finding to entitle the Crown; but so entirely was the law concealed from all former times, that no instance has ever occurred of any such attempt being made.

Finally, the law as laid down in 1811 by the Consistory Court of London, and confirmed in 1814 by the delegates, has ever since been acknowledged as the governing rule on this most important question; that decision only repeating more explicitly what the same learned Judge had pronounced more succinctly, but as distinctly, in 1795. For near half a century, therefore, it has been held as established and settled law in England; and not only have the other Courts decided other cases upon its authority, never questioned by them; not only must the discovery of the present day be held to subvert those other decisions, and to hold that they were all wrongly pronounced; not only have all the learned civilians been so assuming the laws, and so advising their clients uniformly, until the present opinion respecting Sir W. Scott's decisions carrried consternation into the vicinity of St. Paul's; but marriages innumerable have been contracted both by sectarians in this country, and by *738

persons of all descriptions in our vast possessions beyond the seas, possessions on which the sun never sets, all of which are now found out to be void, all these parties fornicators and concubines, all their issue bastards. Into the sad details of such a subject I will not enter; from so painful a prospect I will avert my eyes. But this I must add before I leave it, that every Quaker and every Jew born of a marriage had before the year 1835, is by the learned Judges pronounced to be a bastard; the mother of each and every of these to be living in concubinage; every married pair of these sects may separate, and marry again without committing a felony; and every title to an estate, wheresoever situated out of Scotland, that is traced through a pedigree any link of which is a Quaker or a Jewish heir, must be shaken to its foundation, unless propped up by the Statute of Limitations and the lapse of long time.

The Marriage Act, in exempting those marriages and the marriages beyond seas from its operation, seems to assume their previous validity, and therein to assume the universal validity of lay marriages before it was passed; but this inference the Judges will not suffer to be drawn, and they declare all such marriages void by the effect of their doctrine. It is in vain for these learned persons to seek an escape from this conclusion, so far as it affects the Jews, by setting up the notion, destitute of all warrant from analogy, and repugnant to every principle of law, that the Jews are quasi foreigners, and that therefore they are a law unto themselves. The Jews are no more foreigners than we ourselves, or the learned Judges are foreigners; and if they were, their laws and their

usages could no more exempt them from the operation *739 * of our law than any admitted foreigner could be

suffered in England to set up a marriage void by our law, as good by the foreign law of the country he belonged to. Not to mention, that even were we to admit their doctrine as to the Jews, the Quaker marriages would remain annulled; and that is quite enough for my argument.

Surely it required such a doctrine to be not only reasonably clear, but to be free from all possibility of doubt, to warrant the authoritative promulgation of it in this place by such

venerable authority. Surely nothing can justify the giving vent to a proposition of law so frightful in its consequences, if it is encumbered by any difficulty, if it is confessed to be "involved in much obscurity," if those who have discovered it are obliged to allow that they have only been able faintly to descry it through a "still deeper obscurity" than veiled it "from the eyes of their predecessors," and to acknowledge that its form and proportions are so ill defined in the darkness which shrouds it, that they feel "unable to trace out and define its boundaries."

any

*

In other cases, where a grave doubt has long prevailed on matter of law, even where an admitted error had crept into the decisions of Courts and the proceedings of practitioners, the safer course has been held, when that error was discovered, to abide by it, and not to revert to the sounder principle which it is admitted should never have been departed from. I remember, when I sat on that woolsack, a case occurred which was eminently calculated to illustrate this wholesome, judicious, and humane course of decision. For a long period of time the maxim had prevailed, that in point of law a real estate could be tied up by a strict settlement for the duration of the lives in being, and for *twenty-one years longer. The origin of the error, 740 for it clearly was an error, was this, that in point of fact a fine never could be levied to bar the issue in tail, or a common recovery suffered to bar the remainders over, until the son of the last tenant for life was of age. Now, when the matter came to be questioned in the case of Cadell v. Palmer (a) before me here, in 1833, when I had the assistance of the learned Judges, we all were agreed that the doctrine of adding twenty-one years, as a term in gross, to the duration of the existing lives, was a mere mistake, and the more clearly a mistake because we so plainly saw how it had arisen; yet we all agreed that after the Courts had so long acted upon it, and the conveyancers had so long proceeded upon the assumption, reverting to the true principle would be most pernicious, and would shake the titles to many estates

VOL. X.

(a) Ante, Vol. I., p. 372.

40

[625]

all over the country. I make bold to think that a shock given to all the titles in England would not have been more fatal to the peace and happiness of society, than the shock which disturbs numberless families, affects the character of parents, and deals out to their progeny the portion and the name of bastard, besides shaking also an almost equal number of titles to real estates.

Human legislation is exposed, is necessarily liable, to three great imperfections: the lawgiver cannot foresee and provide for all possible cases; his provisions may in their application become inoperative or frustrated by the destructive operations of time, the powerful and sleepless enemy of all human works; and his commands, how carefully soever framed, may be erro

neously interpreted. There is no good or safe remedy *741 for the first of these evils, but a resort to the legislative power for new provisions. For the second there is a remedy, and human wisdom has applied it. "Time" (as was most eloquently said by Lord PLUNKET) "is the great destroyer of evidence, but the law has wisely and humanely made him the protector of title. If he comes with a scythe in one hand to mow down the muniments of our possession, he bears in the other an hour-glass, whence he metes out incessantly those portions of duration which are to render unnecessary the muniments that he has destroyed." Thus far the wisdom of the lawgiver.

A like remedy has been applied to the third evil by the wisdom of the Judge, who, after men have been suffered for a length of time to misconstrue the lawgiver's commands, will not permit advantage to be taken of their innocent mistake to work their ruin. What once was crude error becomes sound law by the humane wisdom of the Judge, as by the healing power of nature an ulcerous mass becomes a vital part of our bodily frame. If ever there was an instance in which a common error (supposing, which I deny, that it was an error) might be permitted, mercifully towards its victims, to make the law, it surely is that case in which the supposed misapprehension of the law, sanctioned by such illustrious names as HOLT, and COмYN, and SCOTT, and KENYON, has involved the dearest interests, the security, the station, the fortunes, the

fame of thousands; in which the victims of such a mistake are not even those who were beguiled into it by those venerable authorities, but their offspring, wholly guiltless even of the venial offence of falling into the error.

My Lords, I humbly move you to give judgment for the plaintiff in error; but if you shall not feel prepared at present to take this step, I then beseech you, I ear- *742 nestly beseech you, not to give judgment for the defendant in error. I recommend you to delay your final award in this great cause, until you have an opportunity of receiving the useful and needful assistance of the learned Judges who preside in the consistorial and other civil-law Courts of the realm. To those Courts, properly speaking, the cognizance of the question belongs which this writ of error raises, and upon which alone its decision turns. The argument of the learned Judges in the Courts of Common Law, alone now consulted, admits, nay asserts, the peculiar dominion of the Courts Christian over such questions. In the other Supreme Court of Appeal, the Privy Council, we always have in such questions the inestimable benefit of that assistance. This House has undeniably a right to call for it, and I trust you will call for it, if you are not now prepared to reverse the judgment below.

LORD ABINGER. It can hardly be expected of me that I should, in the short time that I have had for deliberating, put the argument I have to submit to your Lordships into the form to which my noble and learned friend has reduced his; or that I should enter upon any elaborate discussion in answer to the very ingenious and the very learned and profound argument which he has just delivered; but yet I think I ought not to shrink from delivering my opinion upon this question, which unfortunately differs from that of my noble and learned friend. When we have so large a majority as we have of the Irish Judges, who heard this subject discussed in the most full and deliberate manner, and when we have the additional authority of almost all the English Judges, after the most elaborate arguments on both sides, I should think myself 743 indeed very bold, if, without an investigation which I

*