Mr. Torrens' Bill, be recorded until valid and legal proof of the change of ownership was produced; and therefore it was incorrect to say that the recorder would have to exercise judicial authority, or perform anything more than an administrative act. As regarded the desirableness of the proposed reform, he thought it was greatly needed in Ireland, where agriculture suffered much from the legal difficulties which rendered the union of land and capital most difficult, and frequently impossible. He could testify to this want, and the growing feeling among all classes of the urgency of removing the legal difficulties to dealings with land by way of mortgage, lease, or otherwise. It would, he thought, be a great mistake, even if practicable, to confine the reform in conveyancing to land situated in towns. Merchants and manufacturers, no doubt, as had been justly observed, very strongly felt the advantages of a free transfer of land, and the evils of the existing system. But the landed proprietors of Ireland-it might be said to their credit-were becoming sensible of the advantage and duty of contributing to the progress of agriculture by making those permanent improvements-houses and farm buildings, roads, drainage, and fences-which require a considerable outlay. Wherever he had met with an improving owner of land he heard complaints of the legal difficulties in dealing with land, and the obstacles they placed in the way of progress.

Lord CURRIEHILL said, that the conveniences and advantages of his system had been fully set forth in the paper read by Mr. Torrens, but the discussion which had taken place just showed that the old difficulty which affected all questions of jurisprudence arose here-the conflict between abstract justice on the one hand and expediency on the other. The abstract justice of every man who had become the owner of property, being insured that that property should remain his, and his right to it be protected in all future time, was a matter that was the primary object of all jurisprudence to establish; but then, in all countries, and particularly in a commercial country, it was also the object of jurisprudence so to modify these abstract principles of justice that commerce might not be impeded. In reference to the introduction of the system referred to into Scotland, it ought to be carefully inquired how far the law of Scotland, as it existed, had not gone in the direction already, and how far it did not afford protection. Having already gone so far, he thought that in this, as in all reforms, it was very desirable to ascertain whether the end could not be substantially obtained by giving more efficiency to existing institutions, instead of wiping them out, and commencing a new system altogether.

THE MARRIAGE LAW.

Mr. J. CAMPBELL SMITH, advocate, read a paper on this subject, of which the following is a condensation. The laws of the three countries all require proof of consent to marry as the essential of the contract of marriage. The Scotch law allows this consent to be proved by all competent and reliable evidence, but the English and Irish laws limit the mode of proof, and hold that proof of interchange of consent before a hundred witnesses is of no effect; but that it must be interchanged in a church or a licensed chapel, or a registrar's office, between eight and twelve of the day; and after the preliminary of proclamation of banns, or after the obtaining a licence or special licence. The purpose of all the forms which the English law of marriage enjoins is to secure evidence of the contract. But it is plain that justice demands the fulfilment of a contract, however informal it may be, provided it can be clearly established as a fact, and that the contract of marriage can be distinctly proved as a fact by other evidence than that to which the English law limits the proof. Expediency, then, at the risk and to the detriment of justice, is the practical

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doctrine of the English Marriage Law. There may be contracts, such as those relating to the sale of land, which are entered into only by those who can pay for legal advice, and coolly and deliberately, and the falling through of which gives rise to money loss alone, in which the civil law may be justified in requiring certain solemnities as safeguards against fraud and as preventives against litigation. But the contract of marriage is not one of them; as it is entered into by many who cannot pay for legal advice, and seldom coolly or deliberately, but under the coercion of emotions and sentiments that more or less obscure the reason and give wings to the impatience of passion. I cannot admit the right of the English law to set aside clear and distinct contracts of marriage for the sake of technical rules of evidence and expediency; and, if marriage be a religious vow as well as a civil contract, I utterly deny the right of the legislator to step between any man and his God, and to declare the wife he has taken to be his in the sight of Heaven to be no wife. I further deny the expediency of the English Marriage Law, which is its only show of justification, on the broad ground that its precautions, in so far as not mischievous, are useless. It is said that by publicity and registration it prevents bigamy. That this is so is supported by strong assertion, but by no proof that I have seen, and it has no reasonable probability in its favour. If the effect of the English system is to prevent bigamy, do statistics show that it does so, and that bigamy is less frequent in England than in Scotland? The population of the British Islands is now above twenty-nine millions, and the publicity that is hoped to be attained, and is boasted of as attained, among all these millions is by proclamation of banns in a parish church among a few dozens or hundreds, and by registration in a book which is seldom or never seen by anybody. The registration of a marriage is, I venture to think, of little or no use at all as a means of publication. The registers of actual marriages are not open for inspection without payment of a fee. And who would spend time reading registers, although they were accessible without any fee? Is it to be supposed that every woman about to marry is to inspect all the registers in the kingdom to see whether the man who proposes to marry her was married before? And if she does find the name she is in quest of once or twice, or ten times, is she to seek out all the witnesses and confront them with the man? In short, and not to multiply questions, the whole matter becomes quite complicated and impracticable.

The most formidable argument that I have heard or seen advanced against the Scotch Marriage Law is one of which Lord Brougham is the author. He stated at the discussion in the Dublin meeting as the "principal defect" of that law, that parties could marry validly without any deliberation; and long before, as Lord Chancellor, in the case of Campbell v. Honeyman, he drew a vivid picture of the great disaster and its results, of a nobleman under age marrying a prostitute in a fit of boyish folly, and being bound to her for life. My first answer to that argument is, that whatever the consequence to an individual may be the law is right; because law ought to bind parties

to abide by the consequences of their acts, whatever these consequences may be. My second is, that the English law requires as little deliberation as the Scotch. The special licences granted by the Archbishop of Canterbury, or by his authority, require no deliberation, and are granted in consideration of money alone; and under them valid marriages may be celebrated at any time and at any place. Other episcopal licences are granted immediately on an affidavit being sworn and a sum of money paid, and after them a marriage may be validly celebrated in a church. A registrar's licence requires. one whole day's" notice to him, and on the walls of his office, and, therefore, requires the deliberation of one of the parties for not less than twenty-four hours; but it requires no deliberation on the part of the other, and as it continues valid for three months a man has that length of time to circumvent any woman whom he may have made up his mind to entrap, and she may be led to the registrar's office and validly married without a moment's notice, however great her fortune and aristocratic her relations.

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The case of Dalrymple is the favourite illustration of those who complain of the injustice of the Scotch law to the second wife. Dalrymple, a young Englishman, who lived to be Lord Stair, at the age of nineteen, when here in Edinburgh, as a cornet of dragoons, fell madly in love with Joanna Gordon, a wit and beauty of that day, ⚫ with large expectations in the matter of fortune, and in every way a suitable match for him, except that she was two years older; and they privately married each other. He wrote passionate letters to her for a year after he left Edinburgh; then he ordered her letters to be intercepted, and in another two years he returned from the Continent, and within a few days after his return, and after the strongest advice to the contrary, he married Miss Laura Manners, sister to the Duchess of St. Albans. It is not true that Joanna Gordon "concealed her marriage" any further than Dalrymple had pledged her to do it; and it is not true that she had any means of hearing of and preventing his second marriage which she did not use, for she never heard of his return from the Continent till she heard of his marriage, he having returned from the Continent in the end of May, and married Miss Manners on the 2nd of June. But, then, was Miss Manners quite circumspect? How many days or weeks had she known Dalrymple? His relations knew of his intimacy with Miss Gordon; his father removed him from Edinburgh on account of it. Could not she have found it out if she had cared to try? Was not her marriage with him rather hasty, and gone about without much inquiry into his history? Was there any publication of her intended marriage in Scotland, so that Joanna Gordon could have warned her of her peril? Could a regular marriage in Scotland, or in some of the countries in which Dalrymple had travelled not have escaped her knowledge quite as easily as this irregular one? I think it could; and I have a strong conviction that she knew of it, and that her marriage was hurried on in the belief that the English Courts would not set aside a regular marriage in

England for an irregular marriage with a woman in Scotland. I believe also that she was tired of Dalrymple, and was glad to get rid of him; and that she left him before the final decision, by the Court of Arches, on the validity of the first marriage. The true solution of this matter is not that the Scotch law is bad, but that Dalrymple was bad. He could have concealed a regular marriage in England, or Ireland, or France from Miss Manners just as easily as the irregular Scotch marriage, supposing that he did conceal it.

In reference to the "opinion" set forth in the introduction to the Transactions of the Association for 1862,* "That the laws on this subject in the three parts of the United Kingdom, though they might continue to differ in detail, ought to be brought under one uniform principle; that principle being the certainty of the marriage contract, so far as is attainable," he maintained, first, that certainty is not a principle of law at all, but is a result of the operation of a principle or some combination of principles; second, that, as a matter of fact, the Scotch law of marriage is more certain in its operation, and less open to doubt than the English; and, third, that Mr. Hastings' argument against the 17th section of the Statute of Frauds, at the First Meeting of the Association, was an answer to his own views on the marriage law, because the principle of the English marriage law is just the principle of that objectionable section of the Statute of Frauds applied to marriage.

In conclusion he observed: I defend the marriage law of Scotland not very much because of its antiquity; not because the experience of centuries has shown that it accords with the character of the Scottish people; not because it is known to them, and because it is better to bear evils known and avoidable than to fly to those that are unknown and unavoidable; but chiefly because that law is a just law. And I condemn the marriage laws of England and of Ireland, not so much because they are a jumble of poor experiments of yesterday; not because they demand an amount of legal knowledge which few possess, and which the mass of those who marry can never be expected to acquire, but because they prefer expediency to justice. I make bold to believe most firmly as a man, and I am sorry when I require to endeavour to forget it, as a lawyer, that justice is the highest expediency, and will continue so to be so long as "the great soul of the world is just."

DISCUSSION.

Dr. WADDILOVE said he had hoped Mr. Smith would have seen cause to change his views since he read his paper in Dublin two years ago. He thought he had expressed himself in too controversial a spirit. Nobody denied the proposition that consent made matrimony; but what was wanted to establish matrimony was proof of consent. Hasty consent would not do; they wanted deliberation, and therefore they had surrounded marriage with all these formalities. To show the uncertainty of the Scotch law, it was only necessary to refer to the Yelverton case; in which, in the Irish trial, the most opposite view was expressed by Scotch barristers as to what made marriage in the law of Scotlandone saying that witnesses were necessary, and the other that they were not. The * p 42

Law Amendment Society had had under their consideration the great importance of an assimilation of the law of the three countries in this matter, but the question had not yet been brought forward in Parliament, it being considered desirable to wait till the Yelverton case was heard in the House of Lords; and he trusted that when that case was heard some remedy would be devised for the flagrant evils of the Scotch system. He admired the pertinacity of the Scotch in adhering to the customs of their ancestors, though they did not always in that matter show their discretion. In Ireland they had also evils to contend with, chiefly owing to the Roman Catholic element; but there the law had been greatly improved by recent statutes.

The Rev. Dr. RUNCIMAN said, that all moral law emanated from God; and all that man had to do was to administer the law. The question was, Was marriage of man or of God? If from God, they were bound to receive it as God gave it. No doubt marriage commenced in Paradise by the consent of parties, and, in consequence, the consent of parties before God was marriage, for they had no second institution of it. Of course, consent was to be proved to make it valid. In following it out among the model people of antiquity, the Jews, it was carried out as a bargain, and the Bible gave no instance of any marriage celebrated in presence of the priest or magistrate as such. There was first the betrothal, which took place privately in the house of the bride, and then the public ceremony of coming together. There was a provision of the Roman law, which said that consent, not concubinage, made marriage; but the Jewish law said concubinage infers consent. We had this plainly stated in Exodus and Deuteronomy, and it proceeded on this principle, that woman was the head of the man, that she was the weaker party, and the man was bound to protect her. The Mosaic law was simply this: Inasmuch as he hath humbled her, he shall not be entitled to put her away all his days." In the apostolic canons formed after the Council of Nice, it was declared that a man who had dishonoured a virgin should put her away, but she should be his wife all his days; and this law prevailed in the small canton of Glaris, in Switzerland; and many eminent commentators have stated that society was much damaged by the want of this law. The Scotch law, he thought, was admirable so far as it went, but it did not allow that simple concubinage inferred consent, and therefore there was a moral deficiency in it. The whole marriage laws of the land were an anomaly, and till we came back to the Divine Statute-book, we should come to no conclusion in this matter.

Mr. HOUSTON, Glasgow, praised the paper of Mr. Smith, and upheld the law of Scotland as the most righteous and humane. He strongly desired an assimilation of the law on the principle of the law of Scotland, and said the Yelverton case would not have created a difficulty but for the complication of the Irish marriage. Mr. HASTINGS said, with all personal courtesy to Mr. Smith, he thought it would have been better had he avoided entering into some of the topics which he dealt with. He hoped this Association would always take a calm and dispassionate view of the questions that came before it. The question for the Association to consider was not what was the law of Scotland, England, or Ireland, but what was the best law; and he could not see what there was so exciteable in the marriage law as to prevent its being dealt with in a juristical way. Mr. Smith observed that in England such a thing as bigamy occurred. No doubt women would sometimes be deluded by bad and designing men, and men by women; but the question was, Which was the law that most effectually provided against that evil, and reduced it to the minimum? Now, it seemed to him that a law which provided that a marriage contract should be made in some recognised place, in presence of witnesses, and at certain hours, and above all, that it should be registered, was a law which gave much greater certainty than a law which left the contract in such a state as that it became matter of litigation or of question whether the parties were married at all. It was idle to say that the Yelverton case depended on the Irish marriage, when the question whether Major Yelverton had been married in Scotland or not had to go through all the courts of the kingdom. Mr. Hastings gave a short history of the marriage law of England, of Lord Hardwicke's Act, and subsequent statutes, and maintained that that law, improved as it was by recent statutes, did efficiently carry out the