respect, a solemnity of the same kind as the authentication of a deed by witnesses or by notarial subscription. We do not see, therefore, why parties in England should not be permitted to contract marriage by deed, to be afterwards registered, if they prefer that to going before the registrar.

The idea of marriage by written contract is in harmony with the Scotch doctrine of marriage as founded upon expressed consent. The simplest declaration in writing ought to be sufficient for the purpose of constituting a civil marriage, though a regular contract would be the form resorted to among persons who had property to settle. It has never been doubted that a signed contract of marriage, followed by cohabitation as husband and wife, constitutes a binding and regular marriage according to the law of Scotland. In the case of parties not professing the religion of the country, and who therefore would not choose to be married by a minister of religion, the execution of a contract of marriage would seem to be the most appropriate and reputable mode of celebrating the constitution of the marriage relation. At all events, it is one that ought, we think, to be made the basis of civil marriage, leaving the parties to add such religious ceremonies as might be agreeable to feelings or binding on their consciences.

Nor can it be said that the requirement of a written contract or declaration of consent as a requisite of the constitution of marriage, would be inconsistent with the principle of the English law of marriage as now established. During the interval between the enactment of Lord Hardwicke's Act and the more rational legislative provisions of the present reign, marriage in the sense of the law of England was a religious ceremony. But the religious sanction is no longer essential. The interchange of consent in presence of a registrar or of a clergyman, and the subsequent registration of the marriage, are, as the law now stands, the only requisites of the contract of matrimony. In effect, the addition of a religious ceremonial is optional, and the form of the ceremonial wholly immaterial. Without going further into the minutiae of the English system, we are entitled to assume that the expression in writing (i.e., in the register of marriages) of a consent to marry is, under the existing law of England, the basis of the marriage relation, Registration may or may not be the most convenient mode of putting the consent of the parties upon record. The reasons for requiring it may be demonstrably sound, or the reverse. But clearly there is no question

of principle involved in the distinction between a written consent entered in the registrar's books, and a written consent expressed in a formal but unregistered writing. No one will assert that there is a difference in the principles according to which it is required by the laws of England and Scotland that the titles to landed property must be in writing, although in the one country registration is essential to the acquisition of a real right, while in the other it was optional in some districts, and, until the passing of the Real Property Act of last session, unknown in others.

It must not be supposed that our object in the preceding observations is to establish a paradoxical similarity between the marriage laws of England and Scotland. What we do assert is, that they have this element in common, namely, the recognition of marriage proved by written evidence of consent. That common element affords, as we think, a basis upon which a marriage law applicable to the whole United Kingdom might be established, without introducing any new principle into the jurisprudence of England or Scotland. But of course the establishment of a uniform system of marriage law would necessitate the relinquishment, on both sides, of other modes of constitution which are not in harmony with the general principles of jurisprudence; and the question which the jurists of each country have to consider is simply, whether there are any such advantages to be derived from the maintenance of existing usages, as would compensate the manifest inconvenience and occasional injustice which result from the recognition of local and exceptional laws in relation to marriage. It is natural that the lawyers of each country should regard with reverence the laws and usages which have been inherited from an ancient period in their history. As regards Scotland, the idea of the constitution of marriage by consent, manifested in whatever form, recommends itself to our favour by the breadth and simplicity of the doctrine; while the variety of the distinctions which have been recognised, with reference to the mode of proving consent, lend to this department of the law the interest which an artificial and elaborate system has in the eyes of those who have made it an object of study. But the days are gone by when lawyers could urge the abstract perfection of a code, or its fertility in questions calling for the exercise and display of legal ingenuity, as a reason for its maintenance, in opposition to the dictates of utility and justice. The fact that the law of the constitution of marriage gives rise to many difficult and

interesting problems,-that, in short (for it comes to this), the exquisite generality of the legal principle affords a variety of instances in which it is extremely difficult to determine whether a marriage has or has not taken place,-is, in the view of common sense, not a reason for retaining the principle on its present footing, but rather for modifying it so as to give it greater certainty and precision. With this view, we should propose that marriages, unless celebrated in facie ecclesiæ, should only be capable of proof by written de præsenti acknowledgment. The notion of establishing a marriage inferentially by allusions in correspondence to a supposed interchange of consent on some previous occasion, is too indefinite a mode of constitution to form a proper ground of judicial decision. The opinions delivered in Leslie's case, where for the first time this mode of proof is distinctly recognised, savour too much of the canon law doctrine of precontract, which had never been admitted, in its full extent, by our own lawyers.

In any project of assimilation of the marriage laws of the United Kingdom, the abrogation of the doctrine of marriage by promise subsequente copula is a first requisite. The theory is, that consent to marriage is given before consummation; but this theory is a mere arbitrary presumption, incapable of being supported by any tenable argument. It would be a mere waste of time to argue the question, whether the presumption of the canonists is founded on common sense, and in the experience of mankind. No writer on jurisprudence has directly maintained that a promise of marriage ought, under any circumstances, to found an action for specific implement. Indirectly, the proposition has been defended under the guise of the presumption or legal fiction which we are now considering. But, substituting for that presumption its equivalent in fact-a promise of marriage followed by an illicit connection, let it be asked, whether there is any principle in morals or jurisprudence in virtue of which parties who have not declared their consent to marry, ought to be pronounced married persons? This simple consideration ought, we think, to be sufficient to dispel the halo of sanctity which has, in the eyes of Scotch jurists, invested the doctrines of the canon law in relation to sponsalia de futuro. To an inhabitant of England or France, the dogma assumes the aspect of a self-evident absurdity, which neither demands nor admits of serious refutation. Familiarity with the use of legal language in a nonnatural sense, the acquiescence in legal fictions which are neither

founded in fact nor in sound principle, may disguise from the jurists of our own country the real nature of the fallacy couched in the presumption under consideration; but such considerations cannot affect the verdict of public opinion outwith the circle of the legal profession.

THE NEW REGISTRATION COURT OF APPEAL.

THE Court of Appeal established under the recent County Voters (Scotland) Act, 24 & 25 Victoria, c. 83, has just held its first sessions. It consists of two members-the Senior Lord Ordinary, and the Lord Ordinary in Exchequer. By a curious accident, when the Act came into force in autumn last, both these characters concurred in the person of Lord Ardmillan; and the result was, a question as to whether the tribunal had not been extinguished in consequence of the want of a quorum. The statute provides, sec. 34: If any person whose name shall have been struck out of the register by the Sheriff, or who shall claim or object before the Sheriff at any Court, shall consider the decision of the Sheriff on his case to be erroneous in point of law, he may, either himself or by some person on his behalf, in open Court, require the Sheriff to state the facts of the case, and such question of law, and his decision thereon, in a special case; and the Sheriff shall prepare and sign such case, and deliver the same in open Court to the Sheriff-clerk; and such person, or some person on his behalf, may thereupon, in open Court, declare his intention to appeal against the said decision, and may within ten days of the date of such case lay a certified copy thereof before the Senior Lord Ordinary and the Lord Ordinary in Exchequer Causes in the Court of Session, for their decision thereon; and the said judges shall with all convenient speed hear parties, and give their decision on such case, and shall confirm or reverse the decision of the Sheriff,' etc. Appeals having been taken against the decisions of several of the Sheriffs, the mode in which the appellants endeavoured to comply with the statutory provisions was by laying certified copies of the cases before Lord Ardmillan as the Senior Lord Ordinary, and duplicate copies before him as Lord Ordinary in Exchequer. Ob majorem cautelam copies were also laid before Lord Mackenzie as next Senior Lord Ordinary. On 13th November 1862, Lord Ardmillan took his seat in the Inner

House, and was succeeded as Senior Lord Ordinary by Lord Mackenzie, and as Lord Ordinary in Exchequer by Lord Ormidale. Intimation having been given in the rolls, on 12th December, that Lords Mackenzie and Ormidale were to hold an Appeal Court under the 24 & 25 Vict., c. 83, a note of suspension and interdict was presented by the respondents in the appeals against the Judges holding the Court, or the appellants proceeding with their appeals before it. The argument of the suspender was, generally, that at the date of the appeals, and for more than ten days thereafter, there did not, and from the circumstances there could not, exist the statutory tribunal for entertaining and disposing of them. The First Division, adhering to the judgment of the Lord Ordinary on the Bills (Barcaple), held that the note was competent at all events against the appellants, but that it must be refused. The Lord President observed: 'I don't mean to say whether a single judge could have held the Appeal Court, neither whether the judge in Exchequer, when senior Lord Ordinary, could have sat with the Lord Ordinary who was senior next to the Exchequer Judge. But though it were held that there was a temporary disability in the Court, that disability did not annihilate the tribunal. I am of opinion, therefore, that the appeal was competent, and that when the Court came to consist of the proper number of judges, they could go on to explicate the jurisdiction given to it. The jurisdiction was not annihilated, but only the explication of it suspended.' This seems a sound construction of the statute. Lords Deas and Ardmillan are, however, reported to have rested their judgment on the ground that the provision for laying the copies of the cases before the Judges is not imperative, but directory only. We cannot assent to this doctrine. Could it be said, that if no copies of the cases had been laid before the Judges, or, in the present case, before the Judge who held both the statutory characters, until beyond the ten days from their date, the appeals could have been sustained? Where a statutory privilege is conferred, it can only be exercised in compliance with the statutory directions; and if these are neglected, the privilege is lost.

The first difficulty which beset these appeals having thus been removed, no sooner had the Appeal Court met than it appeared that most of them were liable to still more fatal objections, for which the appellants were no more responsible than they were for that curious incident in the chapter of accidents which we have mentioned, as