All the facts with which we are acquainted, visible or invisible, internal or external, are connected together in a vast series of sequences which we call cause and effect; and the constitution of things is such, that men are able to infer from one fact the existence, either past or future, of other facts. For instance, we infer from a footmark on soft ground that a foot has been impressed upon it. From the fact that a man is planting his foot on soft ground, we infer that if he completes that motion a footmark will appear. Any specific fact, or set of facts, employed for the purpose of inferring therefrom the existence of any other fact, is said to be evidence of the fact. Suppose the question is whether John Smith is living or dead: A says, “I knew John Smith, and I saw him die.” B says, “I knew John Smith. I saw him in bed; he looked very ill. I shortly afterwards heard he was dead, and saw a funeral procession, which I attended, and which every one said was his funeral, leave his house and go to the churchyard, where I saw a coffin buried with his name on it.” C says, “Z told me that he heard from X that John Smith was dead.” D says, “I had a dream that John Smith was dead.” Each of these facts, if used for the purpose of supporting the inference that John Smith was really dead, would be evidence of his death. The assertions of A and B would, under ordinary circumstances, be convincing; that of C far from satisfactory, and that of D altogether idle, except to a very superstitious person. This would be usually expressed by saying that the assertions of A and B would be good evidence, that of C weak evidence, and that of D no evidence at all of the fact of the death. But this is not quite a correct way of speaking; whether one fact is evidence of another, depends on the way in which it is used. If people usually believed in dreams, the assertion that a man had dreamt of John Smith’s death would be evidence of his death. Whether or not it would be wise to allow it to be evidence of his death, would depend on the further question, whether in point of fact the practice of inferring the truth of the dream from the fact of its occurrence, usually produced true belief.
It would, unquestionably, aid the ends of justice if the real nature of evidence were better understood; which can only be assisted by the right use of reason.
The decision of fact, which constitutes in every civilized country the chief business of courts of justice; for experience will abundantly show that above a hundred of our lawsuits arise from disputed facts, for one where the law is doubted.
About twenty days in the year, says Blackstone, are sufficient in Westminster Hall to settle, upon solemn argument, every demurrer or point of law that arises throughout the nation; but two months are annually spent in deciding the truth of facts before six distinct tribunals, exclusive of Middlesex and London, which afford a supply of causes much more than equivalent to any two of the largest circuits. (3 Bl. Com. 320.) The state of things in our own days is substantially the same.—Stephen’s Commentaries.
In England, when the aspect of the French Revolution divided our public men into factions—in the evil time, when statesmen had talked complacently “of a vigour beyond the law,” when judges had tortured free speech into sedition, and when open violence and secret art were sapping the liberties we prize most dearly, English juries, with the approbation of the country, interposed frequently against political wrong, and vindicated the good cause that elsewhere had been abandoned. As for the loyalty and good sense of the nation as a whole, the mode in which it obeyed the Government attests this in a remarkable way; and though, of course, the Revolution in France stirred up some elements of disorder here, they were as nothing among the great mass of Englishmen. This truth is urged by Mr. Massey with more force than by any other historian, and it deserves to be put prominently forward, as several writers have asserted the contrary. In his very instructive summary of the state of English opinion at this period, he says:
“Because freedom had been abused at Paris, the liberties of Englishmen were assailed. The press was put under restraint; legions of spies were let loose upon the country, and no man could speak his mind in safety, or even do the most harmless act without fear of question. It is no wonder that the old English feeling was aroused, and that the State trials of 1794 were regarded with an intensity of interest which had not been equalled since that of the Seven Bishops. The public safety at that time depended on the trial by jury, and men were satisfied that their liberties were safe when it appeared that the great institution which had so often sustained them was still sound and unshaken.... Happily the prosecutions failed, and from their failure was derived that security which but for these trials would not have been ascertained.”—Times review of Massey’s History of England.
That sound and experienced judge, Sir John Coleridge, in a lecture delivered by him at the Athenæum, Exeter, stated that
He had been a judge for an unusually long period, and he should ever regard with admiration the manner in which juries discharged their duties. Again and again he had reason to marvel at their patience, and again and again he had observed questions put by a jury which had been omitted by counsel and judge, the answer to which had thrown a light that had guided them to the truth of the whole matter. He had often thought if he had the appointment of the magistrates in the country, that he would appoint those gentlemen who had served on petty juries on the Crown side for two assizes at least; for he was sure that a more practical knowledge of criminal law was learnt in that way than could be acquired by several months of careful reading. One thing should always be remembered, that stupid verdicts were no arguments against the institution, for no human institution, however wise in itself, could be expected to work perfectly. Let them improve their jurymen by raising the character of their national education; let them introduce into their panels all classes who by law were liable to serve; and when they had done that, and not till then, if they found it to fail, let them condemn the institution. They lived under a law which, though far from perfect, was framed in a wise and just spirit. They could not possibly overrate the blessing which they possessed, yet it was so much a matter of course that they were apt to think as little of it as they did of the sun that shone upon them from Heaven.
The law on this subject has been thus concisely explained by Mr. Under-Sheriff Burchell. At the present period, persons who claim to be excused from attending as jurors should get their names removed from the jury-list. In July, within the first week, the Clerk of the Peace is to issue his warrant to the high constable for the overseers to prepare and make out a list of persons qualified as jurors. For three weeks in September the list is to be exhibited on the doors of churches and chapels, with a notification where objections are to be heard. Within the last seven days of September the justices are to hold a petty sessions to hear objections. If persons having exemptions do not attend to the subject, they may be returned and be liable to serve until the list is corrected in the September following. Some complaints are made of persons being returned by parish officers who had either removed or been dead for years. The law as stated prevails throughout the counties of England.
It would be useless to attempt to define, within our limit, the principles of the Law of Libel—it would be attended with fruitless results; but we may be permitted to give such an outline of the subject as may be useful for reflection and research, if not for immediate practice. Now that the old saying, “The greater truth the greater libel,” is no longer applicable even to indictments for defamation, the popular idea of what is and what is not actionable is correct, so far as it goes. It is now generally understood that a false and malicious attack upon another man’s character is in all cases illegal; that a somewhat less offensive imputation than would support an action for mere words will render its author liable in damages if it be conveyed in writing, but that the law deems all statements of this kind to be justifiable which can be shown to be true. For the ordinary intercourse of life these rules and cautions are sufficient. No one can speak ill of his neighbour with impunity, unless he is prepared to make good his words to the letter; or, at least, to prove that they were spoken without malice or on a lawful occasion. With regard to the Press, it has been proclaimed again and again from the judicial Bench, that “fair comments” in a journal or periodical are not within the Law of Libel; but, then, what is to be the test of “fairness”? It is quite possible that a journalist’s comments may be made bonâ fide and out of a regard for the public welfare, and yet may be incapable in their very nature of legal proof. In the case of Campbell v. Spottiswoode, the former obtained a verdict against the printer of the Saturday Review for an alleged calumny against himself as editor and part-proprietor of the British Standard and Ensign. The defendant’s counsel relied at the trial, and in his argument before the Court of Queen’s Bench, on the “general privilege” of all who discuss public questions without actual malice. The Lord Chief Justice and the Court decided against him, on the ground that there is no such general privilege; and that the imputation of base motives throws upon a public critic, as it would upon a private detractor, the necessity of bringing them home to the party maligned. According to this doctrine, the jury is not to be allowed to compare the comments with the evidence before the writer, and to say whether they were “fair” and justified by appearances. Nothing short of their being strictly true in fact, and proved to be so in open court, will relieve the latter of his liability.
Nevertheless, we have the authority of the Lord Chief Justice (Erle) of the Common Pleas (Turnbull v. Bird, 1861), for the principle that very strong and injurious language, if provoked and employed “for the purpose of maintaining the truth,” “without any corrupt motive,” may be innocent in the view of the law. We have the sanction of the same eminent Judge that “a man may publish defamatory matter in defence either of his private or his public rights. Every subject of this realm has a right to comment upon the acts of public men, for they concern him as such subject; but he must not make his commentary a cloak for malice. Such a commentary, however libellous, is justifiable if the defendant honestly believes that he is writing what is fair and just; but if he makes wilful misrepresentation, or misstatement that might have been avoided by ordinary care, his protection ceases.” We find it assumed by Chief Justice Erle, and stated in plain terms by Mr. Justice Willes, that there is such a thing as a “privilege of fair discussion on a matter of public interest,” though two of the learned Judges of the Queen’s Bench were at much pains to show that a right belonging to all her Majesty’s subjects cannot properly be called a “privilege.” Moreover, we have the general but most emphatic testimony of Lord Ellenborough, that where the “object” is “to correct misrepresentations of fact, to refute sophistical reasoning, to expose a vicious taste in literature, or to censure what is hostile to morality,” there can be no libel.
In a case against the Lincolnshire Chronicle, the Judge, Mr. Justice Coleridge, laid down the law as follows:
“In discussing the public conduct of a public man, a journalist might certainly use the most unceremonious freedom, and juries should not be nice in criticising the language in which the censure might be conveyed, if they could see that the motive and spirit of the whole were public and honest. On the other hand, no newspaper was justified in commenting upon the private life even of a public man; but the present appeared to be an intermediate case. The plaintiff filled a public situation, but it could hardly be said that the paragraph was merely a comment upon his conduct as alderman, neither did it relate to a strictly private matter. The most objectionable paragraph appeared to him to be that which imputed to the plaintiff ‘confused notions on the important matters of meum and tuum,’ but the jury must look at the whole, and say whether in their opinion it exceeded the bounds of fair comment upon the conduct of a person filling the position which the plaintiff filled. The jury found a verdict for the defendant.”
But, by the judicial dicta in Campbell v. Spottiswoode, no greater latitude is allowed in comments on public topics than in remarks on private affairs. Any theoretical indulgence to the former, whether it be called privilege or not, is a worthless boon if truth, or rather legal demonstration, is to be the only test of “libel or no libel” for literary critiques. As Mr. Bovill well pointed out, no privilege is wanted where truth can be successfully pleaded. On the other hand, no privilege is demanded where malice can be established against the writer, or inferred by the jury from the tone and spirit of the composition. It is where a public critic, with the best and purest intentions, has injured the good name of a public man that the question arises. The great difficulty is to render the Press harmless to individuals, and yet to leave it powerful for good.—Abridged from the Times.
With regard to the propagation of Libel, “it may be some doubt in the eye of morality, whether the purchaser of a satirical libel does not share in the guilt of the author; and whether the pleasure in reading it is not of a criminal sort, and a proof of the malignity of human nature. There would be no thieves nor stolen goods, experience tells us, if there were no receivers; and no scurrilous writings nor libellous prints would be published, to corrupt the ear or gratify the impudence of the eye, if there were no purchasers.” These sentiments are from Bayle’s Essay on Defamatory Libels; and we remember Lord Brougham to have once expressed himself in almost the identical words of Bayle, in a speech on the Newspaper Stamp Duty.
The ceremony of inducting a clergyman to his benefice is briefly as follows: the instance being the induction of the Rev. Pascoe Grenfell Hill, Feb. 9, 1863, to the benefice of the united parishes of St. Edmund the King and St. Nicholas, Lombard-street. The Rev. Mr. Hill brought with him the Rev. J. Lupton, who performed the office of induction. The reverend Chaplain, therefore, accompanied by the Rev. Mr. Hill, proceeded to the church-door in Lombard-street, and the Clerk having put the key into the lock of the door, the Chaplain took Mr. Hill’s right hand, and placing it on the key thus inserted in the lock, said, holding the archdeacon’s mandate in his hand, “By virtue of this instrument, I, James Lupton, Rector of St. Michael’s, Queenhithe, induct you into the real, actual, and corporal possession of the United Rectory of St. Edmund the King and Martyr with St. Nicholas Acons, with all its fruits, members, and appurtenances.” The new Rector then opened the church door, and having entered the church, shut himself in, and then pulled one of the bells, so as to assure the public that he was in the church and had taken possession of it. He then returned to the church-door, opened it, and let his friends and the officials in.
The privilege of Benefit of Clergy,—Privilegium Clericale—arose in the pious regard paid by Christian princes to the Church in its infant state, and consisted of—1st, an exemption of places consecrated to religious duties from criminal arrests, which was the foundation of sanctuaries; 2nd, exemption of the persons of clergymen from criminal process before the secular judge, in particular cases, which was the original meaning of the privilegium clericale. In the course of time, however, the benefit of clergy extended to every one who could read, for such was the ignorance of those periods, that this was thought a great proof of learning; and it was enacted, that from the scarcity of clergy in the realm of England, there should be a prerogative allowed to the clergy, that if any man who could read were to be condemned to death, the bishop of the diocese might, if he would, claim him as a clerk, and dispose of him in some places of the clergy as he might deem meet; but if the bishop would not demand him, or if the prisoner could not read, then he was to be put to death. 3 Edward I., 1274.—Benefit of Clergy was abolished by statute 7th and 8th George IV., c. 28.
“The King’s Book,” so frequently mentioned in connexion with the value of church livings, is the Return of the Commissioners appointed under 26 Henry VIII., c. 3, to value the first-fruits and tenths bestowed by that Act upon the King. The valuation then made is still in force, and the record containing it is that commonly known as the Kings’ Book (the Valor Ecclesiasticus, &c.) which has been printed by the Record Commission.
We do not find any very early regulations made to enforce the observation of festivals among Christians. The Middle Ages are somewhat more prolific. Attendance at church on the principal festivals was made a subject of inquiry, about A.D. 900, in Abbot Regino’s articles; and by that of Clovishoff, in 905, the clergy are enjoined to be more diligent in teaching, and the people to be more regular in their attendance. This observance is also enjoined by the laws of Canute, about 1032, which decree “all divine rites and offices, let every one studiously keep and observe; the feast-days and the fasts, let him celebrate with the utmost ceremony.” After the Conquest, the synod of Exeter, 1287, includes the “festival days,” with the Lord’s days, among those when the people ought specially to attend the churches. And Ascension Day, the feast of Corpus Christi, the high feast of the Assumption of our blessed Lady, and All Saints’ Day, are included with the Lord’s days, in the 27th Henry VI. (1450) in the list of days whereon the holding of fairs is prohibited.
The Acts by which at the Reformation it was attempted to secure the due attendance of the people upon the remodelled services include “the other days ordained and used to be kept as holidays.” But the application of their provisions to the attendance upon other holidays than Sundays, seems to have been pretty soon dropped. The statute of James the First, re-enacting the penalty of 1s. for default in attendance at church, is limited to Sundays; and the latter day alone is mentioned in the Acts of William and Mary, and George III.; by which exceptions in favour of dissenters from the Church of England were introduced. Mr. Neale, however, cites several cases which appear to settle that the ecclesiastical courts have not the power to compel any person to attend his parish church, because they have no right to decide the bounds of parishes.
The repeal of the Act enjoining attendance at church on the 5th of November, so far as Roman Catholics are concerned, by the 7 and 8 Victoria, c. 102, removing the penalties to which they stood exposed up to the year 1844, must be looked upon more as a piece of consistency in legislation than as the removal of a possible grievance. And a somewhat similar remark may be made in respect to members of the Church of England, upon the total repeal of the 1st of Elizabeth, so far as concerns the penalty of 1s., for non-attendance at church on holidays. As the statute of James applies solely to Sundays, there is now no civil punishment left for this neglect: though it would appear to remain punishable, under the 5th and 6th of Edward VI., by ecclesiastical censures.—Neale’s Feasts and Fasts, p. 307.
Among the recent cases of prosecution, in a Treatise on Sir Matthew Hale’s History of the Pleas of the Crown, by Professor Amos, the following passage occurs under “Repealed Statutes:”
“In the year 1817, at the Spring Assizes for Bedford, Sir Montague Burgoyne was prosecuted for having been absent from his parish church for several months: the action was defeated by proof of the defendant having been indisposed. In the Report of Prison Inspectors to the House of Lords, in 1841, it appeared that in 1830, ten persons were in prison for recusancy in not attending their parish churches. A mother was prosecuted by her own son.”
The old Danish laws made it obligatory upon those who could not write to affix their bomærke (house-mark); and the Russians required a mark, or a cross. The probable reason why the cross was always used in the Middle Ages in the testing of ecclesiastical charters was not only that it was a sacred symbol, but that Justinian had decreed it should have the strength of an oath.—B. Williams, F.S.A.; Archæologia, xxxvii. p. 384.
Sir Henry Spelman tells us that “The Saxons in their deeds observed no set forme, but used honest and perspicuous words to express the thing intended with all brevity, yet not wanting the essential parts of a deed: as the names of the donor and donee, the consideration, the certainty of the thing given, the limitation of the estate, the reservation if any were, and the names of the witnesses, which always were many, some for the one part, and some for the other. As for dating, it was not usual amongst them. Seals they used not at all, other than (the common seal of Christianity) the sign of the Cross, which they, and all nations following the Greek and Roman Church, accompted the most solemn and inviolable manner of confirming.”
On the 17th of March, 1835, Dr. Lushington, in the House of Commons, stated the history and principle of the Marriage Law of England thus—“By the ancient law of this country as to marriages, a marriage was good if celebrated in the presence of two witnesses, though without the intervention of a priest. But then came the decision of the Council of Trent rendering the solemnization by a priest necessary. At the Reformation we refused to accept the provision of the Council of Trent; and in consequence, the question was reduced to this state—that a marriage by civil contract was valid. But there was this extraordinary anomaly in the law, that the practice of some of our civil courts required, in certain instances and for some purposes, that the marriage should be celebrated in a particular form. It turned out that a marriage by civil contract was valid for some purposes, while for others—such as the descent of the real property to the heirs of the marriage—it was invalid. Thus, a man in the presence of a witness, accepting a woman for his wife, per verba de præsenti, the marriage was valid, as I have said, for some purposes, but for others to make it valid it was necessary that it should be celebrated in facie ecclesiæ. This was the state of the law till the passing of the Marriage Act in 1754.”
“Marriage, in its origin, (says Lord Stowell,) is a contract of natural law: it may exist between two individuals of different sexes although no third person existed in the world, as happened in the case of the common ancestors of mankind. In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil consequences. In most civilized countries, acting under a sense of the force of sacred obligations, it has had the sanction of religion superadded. It then becomes a religious as well as a natural and civil contract; for it is a great mistake to suppose that, because it is the one, it may not likewise be the other.”—(2 Hagg. Cons. Rep. 63.)
In the feudal times, the lord might object to the marriage of a bondman’s daughter with a stranger, even of her own condition; and by marriage with a freeman she became free during coverture, if not free for ever; this and the lord’s approval of her marriage being purchasable by fine. At Swincombe, in Oxfordshire, the bondman could not get a husband for his daughter, and could not take to himself a wife, without the lord’s permission.
Although a fine used to be paid by a freeman in the occupation of bond-land, on the marriage of his daughter, there was no more degradation in such a fine than there now is in the Archbishop of Canterbury’s charge for a marriage-licence. At Southfleet, Friendsbury, Wouldham, and other places in their neighbourhood, a tenant who wished to give his daughter in marriage had to announce the marriage to the warden or bailiff of the village, and to invite him to the wedding; the girl could not be married to any one out of the manor without the lord’s good-will; an heiress could not be married even to a neighbour without the lord’s consent. A tenant at Headington, Oxon, paid no fine on the marriage of his daughter within the manor—he paid two shillings for leave to give her in marriage to a stranger; but we are told that payment was on account of the chattels which might be removed out of the manor with her. When we consider the lord of a manor to be the patron and protector of all within it, there seems to be nothing very offensive in this arrogation of assent to the marriage of his tenant’s daughter.
Little more than a century ago, a common notion prevailed that the performance of the marriage ceremony by a person in holy orders rendered it sacred and indissoluble, without regard to any other condition. Hence arose the scandals and indecencies of the Fleet Marriages, i.e., marriages performed in the Fleet prison, and its neighbourhood, by a set of drunken, swearing parsons, and their myrmidons, who wore black coats, and pretended to be clerks and registrars to the Fleet. Those malpractices were put an end to by the Marriage Act of 1754: the register-books were purchased by Government in 1821, and deposited in the Bishop of London’s Registry. A similar abuse flourished at May Fair, until it was abolished by the Act of 1754, when the register-books were deposited in St. George’s church, Hanover-square.
The “Border Marriages” were also of this class of abuses, and arose from nothing formerly having been necessary in Scotland to constitute a man and woman husband and wife save a declaration of consent by the parties before witnesses, or even such a declaration in writing without any witnesses: a marriage which was considered binding in all respects. Still, a marriage in Scotland, not celebrated by a clergyman, except these “Border Marriages,” was rarely or never heard of. They were performed at Lamberton toll-bar, about three miles north of Berwick-upon-Tweed; and at Gretna Green, the nearest locality accessible to strangers actually within the territory of Scotland.[7] The preliminaries of such a marriage used to be a long purse in hand or in prospect, for the purpose of meeting heavy posting expenses, and bribes to secure speed. In the course of time, facility of travelling by railway, and of obtaining licensed carriages from the stands in towns, increased; and the farm-servants and the servants generally in the Border counties began to avail themselves of what was deemed a lawful practice by their superiors from other places. During the holidays for farm-servants, at Whitsuntide and Martinmas, the times of the statute-hirings, parties generally under the influence of drink, and too often tipsy, would hire carriages in Carlisle, and drive, by the two or three couples in a carriage, over the Border to get married in Scotland; they would live together for two or three days, then go to their services, and perhaps never again think of their having been married at all; or not till circumstances might arise making it worth the while of one of the parties to claim conjugal rights, with a view to participation in an inheritance of property—a not uncommon accident among the natives of the Border Counties.
Under this state of affairs, at the Spring Assizes at Carlisle, in 1856, there were three trials for bigamy; upon the increase of which crime the Judge made some serious remarks to the Grand Jury, in his charge. A magistrate of Cumberland, having leisure time, and a sufficient acquaintance with the Marriage Laws of England and Scotland, to avoid falling into any gross error, set to work to frame Petitions to Parliament and the Home Secretary, reciting that such petitions were from the Magistrates of Cumberland, charged with the suppression of vice and immorality in their county; that a state of irregularity which had formerly been permitted in the Law of Marriage had grown into an abuse, under a change of circumstances; that the Petitioners thought that the young people of their county acted more out of levity and under excitement, than from any real want of good principle; and that they submitted the exigencies of the case might be met by requiring all parties, not being natives of Scotland, and wishing to be married in Scotland, to acquire domicile in Scotland, by a residence of a fixed number of days, prior to being considered entitled to the privilege of the laws relating to marriage in Scotland; and prayed that the parties petitioned would authorize such measures, &c. The Bench of Magistrates mostly approved of the petitions, one alone declining to sign. The clerical magistrates generally abstained from signing, urging that if they did sign, it might be objected that they had been instigated through interested motives. The petitions were signed by all the lay magistrates attending the Session at Whitehaven, and were forwarded to London for presentation; the Hon. Charles Howard taking charge of the petition to the Commons, but with misgivings as to its success; his only hope being that the substance of it might be passed in a clause of the Dissenters’ Marriage Bill, then before the House. Nor was the Home Secretary, Sir George Grey, more sanguine: he promised to look over the petition, adding the state of the feeling of the House was such that it could not be made a Government measure.
The petition to the Lords was taken charge of by Lord Brougham, who was selected because, at the commencement of the Session squibbing speeches had passed between him, with Lord Campbell on his side, and Lord Aberdeen joined by Lord Minto, relative to the laws of Scottish marriages. Such had also been the case in several sessions prior to the one of 1856: bills had been threatened to be introduced for altering the laws of marriage in Scotland entirely; but always, after Easter, the matter had been dropped.
At the above interview, Lord Brougham entered upon the state of the case with the Cumberland magistrate, who knew beforehand that a civil marriage between English in Scotland was not deemed valid for the inheritance of the offspring of real estate in England.[8] Lord Brougham confirmed this knowledge by citing instances in which real estates in England had not passed to the issue by marriages in Scotland; and he also mentioned that children born before marriage could be legitimized to the inheritance of estate and title in Scotland, by the subsequent marriage of the mother to the father; and Lord Brougham named, in the House of Lords, an instance of the fact. His Lordship added that the Law of Scotland ought to be changed, and must be changed, when it was replied that his Lordship would find that the object of the magistrates of Cumberland was not to change the Laws of Scotland, but to oblige natives of England to obey the Laws of England. We mention this to show how widely the ideas were astray from the real object in view.
A Bill founded on the principle of the petitions was introduced by Lord Brougham: it was quickly supported by petitions signed at large meetings convened in the Border Counties; at one of which, in Carlisle, a solicitor mentioned an instance wherein clients of his own had not only been married, but, in the woman’s opinion (she having succeeded to some property), had been divorced in the course of two or three days, by one of the officiating marriers of Gretna. One of these marriers, Murray, of Gretna, admitted that he had married between 700 and 800 couple in a recent year; and as there were two or three other marriers in good practice, the number of couples married at Sark toll-bar, and at Gretna, may safely be estimated at upwards of 1000 in the year.[9]
When the Bill came to its critical point in the House of Commons, the Lord Advocate for Scotland stated that “seeing that it did not interfere with the Law of Scotland, he should not object to its progress.” Thus, the Bill went through its third reading, and passed, within three months from its introduction; and thus was a stop put to a state of affairs threatening the rapid demoralization of the lower classes in the Border Counties and North-Western parts of England.[10]
The great facilities for Marriage afforded by the present state of the law will be apparent from the following recapitulation of the various forms and authorities, from the 20th Annual Report of the Registrar-General:
| “Marriages may be solemnized— | Authority. |
| 1. According to the rites of the Established Church. |
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| 2. In registered places of worship not of the Established Church. |
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| 3. In the District Register Office. |
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| 4. Between Quakers and between Jews. |
|
“By the English law as it stood before the passing of the Act of 6 and 7 Will. IV., c. 85, no marriage could be lawfully solemnized (except where both the parties were Quakers or Jews respectively) in any other place than a church or public chapel wherein banns might be published, unless by special licence from the Archbishop of Canterbury. This law was enforced by severe penalties; and if any persons intermarried without licence from a competent authority, or without the previous publication of banns, the marriage was null and void to all intents and purposes. Thus all persons (with the exception of Jews and Quakers), whether conforming to the Church of England or not, were compelled to resort to the Established Church in order to have their marriages lawfully solemnized. The boon conferred upon Roman Catholics and Dissenters generally by the amended law of 1836, which enables them to marry in their own places of worship and according to their own forms, may well be appreciated. The Act of 1856, besides abolishing the objectionable practice of reading notices of marriage before boards of guardians, has sanctioned marriage out of the district in the ‘usual place of worship’ of one of the parties, and reduced the interval between the giving of notice of marriage by licence and the grant of the licence from seven days to one clear day.”
The Publishers’ Circular gives the following summary of facts respecting the Copyright Laws:—In our own country, the copyright lasts 42 years absolutely for the author’s life, and seven years after his death. In Greece and in Sardinia it lasts only 15 years from the date of publication. In the Roman States it extends to 12 years after the author’s death. In Russia it lasts for 25 years after the author’s death, and for ten years more if a new edition has been published in the last five years of the first term. In Belgium and Sweden it lasts 20 years after the author’s death, with a provision in Sweden, that, should the representative of the author neglect to continue the publication, the copyright falls to the State. In France it lasts for the benefit of children or widow (that is, to the widow if she be what is called in France en communauté de biens, a peculiar arrangement in French marriage settlements, which establishes between husband and wife a perfect community in each other’s property) 30 years after the author’s death, but to other representatives only 10 years. In Spain it lasts 50 years, reckoning from the author’s death. In Austria, Bavaria, Portugal, Prussia, Saxony, the Kingdom of the Two Sicilies, Wurtemberg, and the States of the Germanic Confederation, it lasts 30 years from the author’s death, to all his heirs and assigns without distinction; and in Denmark, so recently as 1858, it lasted an indefinite period, provided the work was kept in print; now, however, it is restricted to a period of 30 years after the author’s death, with a provision that republication by others is permitted when five years have elapsed in which a work has been out of print. In the United States, copyright lasts for 28 years, and an extension of 14 years granted to the author if he lives, or to his widow, children, and grandchildren. With regard to lectures, sermons, &c., the law of France appears to be that professors and preachers have the sole right of reproducing their lectures and sermons in print; but that advocates and political speakers, while they alone have the right to publish their speeches in a collective or separate form, cannot prevent their being published in the journals of the time as news.
The doctrine is well established—viz., that where a tenant by lease holds over after the determination of the term, and pays rent, he becomes a tenant from year to year, under all the conditions of the expired lease consistent with such a tenancy. Baron Watson remarks—“It is important that no doubt should be thrown upon a question of such very general importance, as a great many of the houses in London and throughout the country are occupied by tenants holding over.”
The 15th September, 1862, dates the freedom of English Hops from Excise impost, and the abolition of Customs duties upon foreign Hops. Time alone can show the effect so serious a change will have on the average prices of a produce of increasing importance throughout the world. The general opinion is that under perfect freedom of trade hops will vary in price in each district of production only in proportion to their quality and the cost of transport; and that consumers will find prices more uniformly even than has hitherto been known, since the simultaneous failure in the crop at home and abroad is beyond probability.
This tax was first imposed by Mr. Harley in the year 1711; and its removal will make the hopgrower in future free from those heavy losses which the Duty inflicted on him in years of large crops and small prices. Hopgrowing has now become a simple farming operation, left to natural causes. It might be that, owing to the costly nature of the production and the precarious nature of the crop, it would always remain a somewhat more speculative branch of business than any other branch of farming. It is, however, thought that the supply of hops will be more abundant, and, above all, more steady and uniform from year to year. The consequence will be that the beer we drink will be more wholesome. Burton, in his Anatomy of Melancholy, says: “Beer made without hops is productive of heaviness and melancholy; but that well hopped is an antidote to it.”
The well-known treatise, entitled “The Common Law of Kent; or the Customs of Gavelkind, with the Decisions concerning Borough-English,” by Thomas Robinson, with additions by J. D. Norwood, comprehends everything relating to the subject, embracing all that is useful in Somner, Tayler, and Lambarde, as well as a full account of both tenure and custumal. The work contains chapters on the etymology and significations of the word Gavelkind; on the antiquity and universality of partible descents in England; on the places out of Kent where the custom of gavelkind may be alleged and maintained; on the manner of pleading the custom, and the difference between that and other counties, and between the general and special customs; on what lands and tenements in Kent are of the nature of gavelkind; of the effect of the alteration of the tenure and of the disgavelling statutes; on the nature of gavelkind in reference to descent and partition, and the remedy for and against parceners by the custom; on the special customs incident to gavelkind lands in Kent, tenancy by the courtesy; of dower, of customary wardship, and of alienation by any infant tenant in gavelkind; the father to the bough and the son to the plough, and the custumal of Kent with precedents. The principal peculiarities which distinguish socage lands subject to the custom of gavelkind from free or common socage are—1. That the lands descend to all males in equal degree, in equal shares. 2. That the husband is tenant by the courtesy of his deceased wife’s lands, whether there were issue born alive or not. 3. That the widow is dowable of one-half instead of the third. 4. That an infant may alien by feoffment at the age of fifteen. 5. That upon a conviction of felony, there is no escheat by reason of corruption of blood; corruption of blood only occurs now in cases of treason, petit treason, and murder—see 54 G. 3, c. 145. These peculiarities do not recommend themselves as possessing so great advantages as to induce us to continue a system of law in Kent different from the rest of England. One of its great disadvantages is the difficulty of deducing the title, on account of the complicated subdivisions of the estate.
Treasure Trove (from the French trouver, to find, trouvé, found) is the law by which money, or other treasure, found hidden, is adjudicated to the legal claimant.
In 1863, Mr. F. Peel, (one of the Secretaries to the Treasury,) stated in Parliament:
It was by no means an unreasonable or absurd law that when an article of gold or silver, belonging to an unknown owner, was found, it should be held to be the property of the Crown. The rights of the Crown in that respect were not, however, rigidly enforced. The articles found were usually returned to the person who was declared to have the best claim to them; or, if they were of historical interest, they were deposited in the British Museum or some local collection, and their intrinsic value was paid to the finder. What the Treasury desired was to obtain speedy information of the discovery of any treasure trove. The Circular which was issued some time ago was intended to instruct the finders of any treasures how to communicate with the Crown on the subject.[11] That Circular was subsequently withdrawn because it laid claim to antiquities which were not exactly treasures and did not belong to the Crown, and because it directed a reference to the wrong tribunal in cases of dispute. The draught of another circular was prepared; but so many difficulties beset the subject that it was not deemed advisable to issue it. If occasion should arise for a new order it would of course be made, but there appeared to be no necessity for one at present.
Sometimes, the right to the property is confirmed by the special conditions of the holding of the property whereon it is found. Thus, at the above date, Lord Palmerston related in Parliament that about two years ago some workmen, when digging a drain on one of his farms, found a gold torque, which his Lordship purchased of the man who discovered it, the value being about 30l. Lord Palmerston, however, had an investigation made of the original grant of the farm several centuries ago, and ascertained that it conferred on the grantee all the treasure-trove on the property; wherefore his Lordship felt entitled to keep the relic in question.
In January, 1863, eleven pounds’ weight of ancient gold ornaments were ploughed up in the neighbourhood of Hastings, and were sold as old brass, to a man who had been a Californian gold-digger, and recognised the metal as solid gold. He was taken into custody, but discharged, the magistrates having no jurisdiction in the matter, the power of making such an investigation being vested, according to an old statute, (4th Edward I.) in the coroner; the jury returning a verdict that the gold, (value about 530l.) the owner or owners not being known, was the property of the Queen, and that the persons accused had concealed the finding from the Queen and the coroner. This discovery of gold ornaments, and their almost total destruction, render it desirable that the law of Treasure-trove should be made clear to popular comprehension: that if it is not just, as seems to be the common impression, it should be amended, and the practice of the Crown, in exercising its conventional rights, defined. At any rate, so long as finders do not know that they will receive full value for discoveries, and have not confidence in their appraisement, it is in vain to expect country-folk will yield Treasure-trove to an authority they contemn. In some parts a belief is held that such discoveries entail condign punishment upon the finders: it was formerly a capital offence; it is now a misdemeanour, punishable by fine and imprisonment.
It is difficult to make the peasantry comprehend manorial rights. A man who finds a treasure in his own ground, and that treasure one which can have no living owner, naturally looks on himself as its rightful possessor. He has probably never heard of King Edward’s law of Treasure-trove, and a natural sense of justice does not guide him rightly in the matter. If a liberal reward were given—nearly the metal value of the trouvaille—it is quite possible that we might have become possessed of many precious relics which now are broken up and consigned to the melting-pot.
In France, the right is more practically understood. Thus, in July, 1863, a pot of louis-d’ors was found in the Rue Lafayette, in Paris, when the following adjustment was made.