object of securing publicity and certainty. He then referred to the Wiltshire case of a mock priest having performed two marriages, and being sentenced to six years' penal servitude for the offence; and to the remark of Baron Martin, that he made the punishment the heavier on the ground that it was doubtful if the two marriages were legally valid. Now, he thought Baron Martin was wrong in the expression of that doubt, and that if the question came to be tried on appeal, it would be found that the marriages were perfectly valid. He believed that the bona fides of the parties in such a case would protect them.

Mr. JOHN M'LAREN said, there was no doubt that the applause which followed Mr. Smith's paper was rather due to the popular attractions of the subject than to the prejudices of the people of Scotland, as Dr. Waddilove seemed to think, in favour of their own law. He believed there was nothing the Scottish peoplehad more at heart on this subject than that somebody competent to settle the matter should consider the marriage law of the three kingdoms with a view to its assimilation; and he could have wished that Mr. Smith, instead of trying to exhibit the faults of the English system, had been at pains to show the improvements that had been made of recent years upon it. Nothing could be more deplorable than that within the limits of the United Kingdom there should be three systems of marriage law, leading to the result that a person might be married or legitimate in one portion of the kingdom and not in another. It was a great mistake to suppose that there were any radical differences between the two systems, which both proceeded on the basis of consent, the only difference being in the degree of proof required to establish the fact of consent. Nor was there any difference between the origin of the two systems, which both came from the canon law: the only difference being that in England a greater number of statutory changes had taken place. He thought they should deal with the question without immediate reference to those exceptional principles of Scotch law, such as the legitimation of the offspring by subsequent marriage, and cohabitation being necessary to complete the union. Reserving these points, the only difference was, that whereas the law of England required attestation by writing, the law of Scotland allowed proof in other ways. In sales of land, and many transactions of much less importance, writing was required, and he thought it reasonable and just that a contract of so great importance should be surrounded by those safeguards against uncertainty which the law of England afforded. The law of England had made great concessions of late years; a religious ceremony was no longer necessary; and the only essential difference between the two countries now was that in England the consent exchanged required to be entered in a registration book. As to the point of certainty, they knew that the learned judges of Scotland had often great difficulty in deciding whether a marriage had taken place; but, in England, under the recent statutes, he believed no case had occurred in which the validity of the marriage had been questioned on grounds affecting the form or mode of entering into it. Trying the question therefore by results, they had certainty in the one case and uncertainty in the other.

The SOLICITOR-GENERAL FOR IRELAND, after retorting on Mr. Smith the charge of involving the question in cloudy rhetoric, said, that no doubt the marriage laws of Ireland were, like those of Scotland, susceptible of great improvement. It was said that nothing but consent was wanted, but that was going too far. Marriage could not be constituted without consent, but when consent had taken place, the fact of marriage had still to occur. And was it unreasonable that they should exact of parties about to enter into a marriage contract a certain ceremony of authentication that consent had been given? It was not merely the interest of the parties that was involved, but that of society at large. There was the legitimacy of children, as well as both husband's and wife's rights of property, also involved. Was it unreasonable, then, that society should ask that the consent should be deliberate, and should be capable of authentication by legal proof? That was a much more wholesome state of things than to allow irregular marriages, as to the validity of which lawyers would differ, and the consequences of which were great danger to society, and the destruction of the peace and happiness of families. He

hoped that an agreement would be come to for the assimilation of the marriage laws of the country; but he did not think that was likely to be effected by adopting the law of Scotland.

The Right Hon. JOSEPH NAPIER said, that he presided over this Section at the Dublin meeting, when they had a long discussion on this subject, and had come to a very harmonious conclusion. There were, in his opinion, two aspects of the marriage question to be considered-first, What constitutes marriage in the sight of God? and, second, What conditions the State ought to impose for its own purposes? He thought the Scotch law was right in holding that consent truly constituted the relation between husband and wife. The consent of parties qualified so to consent, and intending to create a relation of Divine appointment, did so as in obedience to the law of God. All beyond that was matter of the positive law of man, and therefore, in his view, the marriage was not invalidated because the officiating clergyman was an im postor; because, though that was matter of the positive law of man, the intervention of a clergyman was not essential to the marriage. The Church of Rome no doubt considered that intervention was essential, and the Churches of England and Scotland had instituted a religious ceremony, as being appropriate to the occasion, though not of the essence of it. The law of man affected not the moral question but the rights of property. It stepped into say that for the protection of society certain conditions were reasonable; and that though non-compliance with these conditions might not invalidate the marriage in the sight of God, yet that should disentitle the parties to claim the benefits of the law to the conditions to which they would not conform. He thought this view had commanded the assent of nearly all the gentlemen present at the Dublin meeting. And that view did not interfere either with the consent of individuals or the regulations of Churches, and no affront was even put upon the law of Scotland. That part of the law of Scotland which appeared to him most objectionable was, that the result should take place, which occurred in the case in which Mr. Smith had cited a passage from Lord Brougham, in persons of young and tender years being enabled to contract a marriage to the ruin of their life's happiness. He thought the contract should only be between parties competent to enter into it. Marriage was no doubt a civil contract, but it was a civil contract to complete a divinely-appointed relation. Though it may not be competent for any human tribunal to undo what had been done under the law of God, yet for public purposes that human law might impose conditions of publicity to protect the public interest, even though these might be too short to reach the annulling of a relation of divine appointment, which must depend on the free and deliberate consent of parties. He recollected that on expressing this view to the Bishop of Killaloe, he said— Your view is so reasonable and sensible that I am confident it will never be adopted.

Lord BROUGHAM said, there was one subject which he wished should be taken into consideration-namely, the difference between the Scotch and English marriage law in respect to the consent of parents and guardians. They knew that Lord Hardwicke's Act was intended to throw protection round a child by requiring publication of banns, or, in the case of marriage by licence, that there should be the consent of the parents or guardians. But the result of that Act was that whenever anybody chose to marry against the Act, and without the consent of parents and guardians, they had only, if their finances would allow it, to take a journey across the Border. There they contracted a marriage, which at first was held doubtful, but was afterwards held of undeniable and unquestionable validity-to be just as valid as if it had been done by publication of banns, and consent of parents and guardians. It had been often said that there were very few instances on record of this expedient being resorted to. In a celebrated trial in Lancaster, in which he (Lord Brougham) was counsel for the defendant-Lolly, who had been married in England, had gone to Scotland to get a divorce, and returned to England to be married again. Baron Wood said that very few ever did contract these marriages. He (Lord Brougham) replied-Allow me to mention that at this particular moment the three following persons of the highest station had

contracted an irregular marriage in Scotland-namely, the Archbishop of Canterbury, Lord Chancellor Eldon, and Lord Privy Seal Westmoreland. These three eminent persons had all made runaway marriages, and were married in Scotland without the consent of their parents. Now, certainly that was a most grievous state of the law-that the consent of parents should be requisite in all cases except where the parties could afford to go to Scotland and be married there, or rather that by crossing the Border parties should be enabled to defeat the law. Accordingly, Parliament passed an Act a few years ago requiring a certain residence beforehand. The law still required great improvement in these matters, and he could have wished that that point had been more fully discussed.

Mr. MUIRHEAD said he would not enter into the general question, though he entertained a very strong opinion that neither the Scotch, Irish, or English marriage law was nearly so perfect as the necessities of the public and the advanced state of jurisprudence demanded. But he could not allow the idea to remain in the minds of strangers that the people of Scotland, however averse they, or at least a portion of them, might be to having their law interfered with, were yet favourable to irregular marriages, and had as great respect for them as for those regularly celebrated in facie ecclesiæ. Since Lord Brougham's Act the number of irregular marriages was extremely small; and he referred to statistics collected for the General Assembly of the Church of Scotland, which showed that for some years prior to the date of that Act, there were in the twenty-six border parishes of Scotland, eighteen in twenty such marriages contracted between natives of England for one between natives of Scotland. It was to a very small extent, therefore, that the people of Scotland took advantage of the facilities which existed for irregular marriage; these were rather taken advantage of by people from a distance, who thought their own law too stringent. While an irregular marriage was in law admittedly a valid one, yet in ninety-nine cases out of a hundred the people of Scotland did not consider a marriage to be good unless it was contracted in the face of the Church. He thought that the three marriage laws in observance in the United Kingdom were one and all defective, and in need of amendment. But piecemeal legislation would only make them worse. What was wanted, and he believed it quite practicable, was assimilation; the proper course was to have a Royal Commission to inquire into the whole subject, and see whether it was not possible to have a uniform marriage law for the whole kingdom.

Mr. SMITH said, that it was scarcely necessary to reply, for he thought he had in his paper answered all the objections that had been that day stated to the Scotch law. As to Mr. Hastings' complaint that he had not treated the subject in a proper way, he was quite unable to answer it, that gentleman not having specifically stated what his objections were. A great deal had been talked about the principle of certainty, but certainty is not a principle of law. It may be the result of the operation of a principle or a combination of principles; but to call certainty itself a principle is to confound cause and effect, for certainty is no more a principle of law than a red nose is a principle of port. All human laws are uncertain, and the only question is between a greater or a less degree of certainty. He averred that the marriage law of Scotland was more certain than the marriage law of England. He had adduced statistics to show that bigamy was more prevalent in England than in Scotland; and what was the use of a certain marriage law when the very purpose of its certainty was not attained? He was surprised to see Mr. M'Laren come forward as a defender of the English marriage law, and he had complained that he (Mr. Smith) had not taken any notice of the improvements which had taken place in it. The reason of that was that he was not aware of any great improvements in the English marriage law, for he thought the old law of England was a great deal better than the new; and that what had of late been doing in the way of improvement was simply returning, like the prodigal son, to the place whence they had set out. The English law, he admitted, avoided questions; but the business of law was not to avoid questions but to solve them according to justice; and in England many questions were left unsolved and justice was denied. It was very inconclusive to say as Mr. M'Laren did, that there had

been no questions under the recent English statute as to the "form" of the marriage ceremony, for very few of the marriages contracted under these statutes had been dissolved by death, and no contest for the property of the supposed married parties had arisen; but in Scotland no question ever had arisen or could arise as to the "form of the ceremony." Mr. Hastings' reference to the Wiltshire case was entirely against his own doctrines, as showing that the English marriage law had its uncertainty as well as the Scotch. He could show a dozen points in which uncertainty might arise in the English law, and he therefore held that the Scotch law was by far the most certain in its theory and in its results.

Lord BROUGHAM said, that in the case of two of the three parties whom he had mentioned previously, they were remarried when they returned to England. It was rather reckoned an extraordinary thing that every one of them, the Archbishop, the Lord Chancellor, and the Privy Seal, had to swear that they were single at the time they remarried. The new marriage ought to take place immediately, because a very awkward question arose if there was a birth of a child after a Scotch marriage. The child so born was as legitimate as if it had been the produce of an English regular marriage, the Scotch marriage being perfectly valid; but, if the child were born before the new marriage, it raised the question of the Scotch marriage not having been valid.

The PRESIDENT referred to a case where a party-a man or woman-after having been married, whether regularly or irregularly, having gone to a distance, conceals the marriage, and induces another party to enter into the marriage state. There was no possibility of preventing parties from concealing marriages that have been entered into in different localities, and getting innocent parties into a state of bigamy. He therefore thought, in comparing the laws of the two countries, that class of cases should be left out of view altogether. With regard to the chief question that was before them-What constituted marriage?—he thought that all parties were agreed that the essence of marriage was the consent of the parties. That was a principle of our law, and it was the principle of the law of all other countries; and though a religious ceremony was deemed proper for their consideration, it was not part of its essence. Now, while all parties were agreed that the essence of the contract was consent, that did not solve the difficulty, because the consent of the parties was an act of the mind. It was not palpable to the senses, and therefore it must be proved by proper evidence that will prove that there is consent to marry between the parties; and how was that proof to be obtained? It was there that the difficulty arose, from two reasons-one, that it was an act of the mind, not palpable to the senses, and therefore must be expressed in some way or another; and, in regard to the other, unfortunately there had been too many cases in both countries, and in every country, where, although parties were living together nominally as husband and wife, yet there had been no consent. The consent is simulated for a purpose of their own. For these two reasons it was very desirable that there should be some established mode of ascertaining whether the consent was actually passed or not. In Scotland there is nothing of the kind. It was a very great evil, and they should take care, in avoiding it, to do so without a greater evil. If they had established anything as a solemnity that was indispensable as evidence of the transaction, this difficulty arose, that if there was any omission in the solemnity, it went for nothing. Dealing with it as a question of jurisprudence, he would suggest that the turning point was this, that they should, if possible, have some determined mode of getting as a matter of evidence certificates presented of the consent as passed, but not hold a very slight omission in the solemnity as annulling the marriage.

Lord BROUGHAM said, he had inadvertently omitted to express his concurrence in the suggestions of Mr. Muirhead, that a Royal Commission should be appointed to take the whole matter into consideration, collect the opinions of those known to have turned their attention to the subject, and report upon the practicability of assimilating the three discordant systems in observance in the three divisions of the kingdom. He believed that to be the only wise and prudent mode of attempting to remove the difficulties which that discordance occasioned.

The PRESIDENT was of the same opinion. Legislation without such preliminary inquiry was not unlikely to aggravate rather than diminish the mischief.

THE LAWS OF PROPERTY AND THE DWELLINGS OF THE
WORKING-CLASSES.

Mr. THOMAS HARE laid before the Department the draft of a Bill having four main objects-first, to facilitate the work of obtaining sites for the erection of buildings greatly more capacious than at present; secondly, to provide for the erection of those buildings, in larger and smaller tenements, so as to be within the reach of all classes, especially the poorer; thirdly, to regulate by by-laws, adopted by the proprietors themselves, the relations of each to the rest for the common maintenance and good condition of the whole property, and the prevention of anything which might interfere with its enjoyment; fourthly, for a cheap system of local registration of titles, so that tenements might be transferred from one owner to another without deeds, readily and inexpensively, thus making it an investment in which earnings might as conveniently be placed as in a savings bank. The Bill will be printed and presented to Parliament in the course of next session.

THE LAW OF MASTER AND SERVANT.

A PAPER was read by Mr. GEORGE NEWTON, Secretary of the Council of United Trades, Glasgow, on the law relating to breach of contract by workmen, complaining of the statutes which give power to Justices of the Peace, in determining disputes between masters and workmen, to send defaulting workmen to prison for three months. It was stated that the mode of procedure is for the aggrieved party (always an employer or his foreman) to lodge an information that in his opinion the workman has been guilty of a breach of contract; upon which the party complained against can be at once arrested and brought to summary trial before other employers in the capacity of justices, and on conviction be sent to prison. In many cases the proceedings are very expeditious. It was stated that in a recent case in Glasgow a man was taken from his work, tried, found guilty, and put in Bridewell in about an hour. It was also stated that above 10,000 cases of this kind were tried in England alone during the past year. It was pointed out that the law is one-sided in this matter, inasmuch as in the case of the master, the contract is viewed simply as a commercial transaction, and he is only liable for breach in civil damages; and it was suggested that the same rule shall apply to both parties, and the master be left to recover for any loss he may have sustained through the default of his workman.

The Editor is anxious to add that this subject has not been passed by with neglect by the Association. At our Bradford Meeting, in 1859, a Paper was read by Mr. Andrew Edgar, pointing out the inequality of the law, and employing the same arguments as are used in the Paper under notice. Mr. Edgar's Paper will be found at p. 687 of the Transactions for 1859.