Chapter VII: Appendix: Great Precedence Question 287 (6)

The Laws are divided into Written and Unwritten law. The written is the statute law, and the decision of the judges constitutes the unwritten law of the land. The Statute Law[5] is in a great measure supplemental to the Common Law, and a knowledge of the common is necessary in order to enable a man to read and understand the statute law. The Common Law is only traditionary--it is supposed to reside in the breasts of the judges; accordingly, when it is necessary to ascertain it in the House of Lords, their lordships require the attendance of the judges, who are called upon to declare what that law is. In like manner, in the great court of equity to which belongs that large portion of natural justice which is repudiated by the common law, the judges have the power of determining what constitutes the rudiments of that law. This is, undoubtedly, a dangerous and a difficult trust. It is little less than legislative power, because the sources of common law are of the most varied character. It is probably derived in a great measure from customs and usages, recorded only in the memory of man; it is partly derived, no doubt, from old rules embodied in acts of which no record now exists. It is partly made up of relics of the old Roman jurisprudence which remained so long throughout the land; and it is partly the result of customs and maxims, handed down from one generation to another. The sources were so varied in ancient times that the custom of declaring the law also varied. In the old time it was impossible to know what the law was. The judges were not only legislators, but the worst of legislators--legislators _ex post facto_. Accordingly, at an early period, it became necessary for the protection of liberty, in order to get some kind of approach to uniformity, constancy, and regularity in the law, that the grounds and reasons of the judges’ decisions should be given. At first an attempt was made to do so by entering the reasons for the judgments in the rolls of the court; and our court rolls, preserved from the time of Richard I., contain repeatedly the reasons for the decisions and sentences. At the latter end of the reign of Edward II., or in the beginning of the reign of Edward III., the practice of reporting the decisions of the judges began, and from that period down we have a series of judicial reports of those decisions. That was a great security for the people, because it was an approach to certainty in the law. The origin and reason of it was a distinctive peculiarity in the English mind--namely, the love of precedent, a love of appealing to precedent rather than indulging in abstract reasoning. This was the only mode in which the law was recorded, and the only mode in which it became known. These reports were kept for a considerable period of time under the superintendence of the judges themselves, and great care was taken in sifting and ascertaining the grounds of the decision. The evil was, therefore, comparatively little; but in course of time, as the reports multiplied and as the personal superintendence and care of the judges were withdrawn, great complaints began to arise; and so much inconvenience was felt that, as early as the time of Lord Bacon, it became a subject of general dissatisfaction which attracted his attention, and led to his compiling and publishing his celebrated book for the amendment of the law of England. The Lord Chancellor, in his revision and expurgation, proposed to do little, if anything at all, more than revive the proposal of Bacon. “The wisdom and excellence of that proposal has been admitted from age to age; and the fact that nothing has been done to give effect to it we must attribute to the singular _inertia_ that characterized the English Legislature.”

_Curiosities of the Statute Law._[6]

Most people have a confused idea that as new laws are made old ones are repealed; and that the Statute-Book, bulky as it is, contains nothing but what every Englishman is bound to know and observe. Such, however, is not the case: for the old laws, instead of being cleared away to admit the new ones, have been allowed to remain, so that nine-tenths of this Statute-Law is really not law at all; and if the Statute-Book were freed from the enactments which have become obsolete, or ceased to be in force without being specifically repealed, it would be reduced from forty to four or five volumes. Enough of confusion, prolixity, and repetition would still remain within this compass to exercise the wits and fill the pockets of the lawyers; but the perusal of it would no longer occupy a lifetime, and this excuse for our ignorance of it would be very much weakened.

To show the necessity of the revision of our Statute-Book, we shall quote from the schedule of the Bill presented by the Lord Chancellor to the House of Lords in the Session of 1863, a few samples of useless or inoperative enactments, to show how curiously the history of a bygone age is reflected in its legislation.

Here in the midst of provisions confirming or modifying feudal
privileges and liabilities is, “The Sentence of Curse given by
the Bishops against the Breakers of the Charters.” No less out
of place in the Statute-book, according to modern notions, is
“The Award made between the King and his Commons at Kenilworth.”
Next, we light upon enactments prescribing “The Remedy if a
Distress be impounded in a Castle or Fortress,” and prohibiting
the custom of distraining upon one foreigner for the debt of
another. By the famous Statute _Circumspectè Agatis_ laymen are
restrained from laying violent hands on a clerk, while other
Acts warn “men of religion” against aggression on their lay
neighbours. Then we come to a whole series of sumptuary laws, and
laws for the encouragement or discipline of particular trades.
Bread and ale are placed under special protection; butchers and
cooks are forbidden to buy flesh of Jews, and sell the same to
Christians; exporters of wool are to give surety to import silver
in return; iron is not to be exported at all; “no shoemaker
shall be a tanner, nor any tanner a shoemaker;” yet (by a later
Statute) “shoemakers may tan leather till the next Parliament;”
all merchandises of a certain kind are to be carried to Calais;
gowns and mantles are to be worn of a specified length; salmon,
herring, and eels are to be packed in a specified manner;
long-bows are not to cost more than a specified sum; calves are
not to be killed at the will of their owners; the “breade of
horsys” is subjected to State control; and “the stuffynge of
feather-bedds” does not escape the vigilance of Parliament. Most
of these Acts, and a very large per-centage of all those which
are proposed for repeal, have reference to a state of society
which has little in common with our own. Instead of enacting that
“every one may put his child to school,” we debate now-a-days
as to whether he should not be compelled to do so; and, instead
of fixing the rate of workmen’s wages by Act of Parliament, we
tolerate a liberty of combination which sometimes enables them to
exact more than the market value of their labour. If the habit of
“telling slanderous Lyes of the Great Men of the Realm” is not
quite extinct, it is no longer checked by penalties, and we are
content to leave “fonde and fantasticale Prophesies” to refute
themselves.

The expurgation by which it was proposed to rid the Statute-book of this lumber was originated some 250 years ago, by Bacon, as stated in pp. 104-105; but the statutes which he marked, before the Restoration or the Revolution, before the Union of Scotland or Ireland, before the abolition of the feudal tenures, before the passing of the Habeas Corpus Act, still encumber the Statute-book; and the plain, sensible, and unanswerable suggestions which he threw out for the heroic work of consolidating the statutes have remained without effect. Each succeeding generation has employed itself in adding something more to that mass of evil which the great philosopher felt and denounced. If the mind of Bacon was shocked at the tangled labyrinth of our Statute Law in the reign of James I., if Sir Matthew Hale occupied his mind with the same subject in the reign of Charles II., what would they have said could they have foreseen the 10,000 statutes passed in the reign of George III., and the Ossa which the industry of the last forty-five years has piled upon the shoulders of that mighty Pelion?

_Secret of Success at the Bar._

Sir Thomas Buxton relates that he once asked Sir James Scarlett what was the secret of his pre-eminent success as an advocate. He replied that he took care to press home the one principal point of the case, without paying much attention to the others. He also said that he knew the secret of being short. “I find,” said he, “that when I exceed half an hour I am always doing mischief to my client; if I drive into the heads of the jury important matter, I drive out matter more important that I had previously lodged there.”

_Queen’s Serjeants, Queen’s Counsel, and Serjeants-at-Law._

To remove certain doubts of very recent growth (cast upon a matter previously deemed plain enough), the following statement is the result of a very careful inquiry:--Queen’s serjeants are sworn to “serve and counsel the Queen and duly to minister the Queen’s affairs, and sue the Queen’s process after the course of the law and after their cunning, and they are to take no fee of any one against the Queen.” Queen’s counsel, as distinguished from Queen’s Serjeants, are appointed by Letters Patent under the Great Seal, giving them precedence “in our courts as elsewhere.” The oath administered to Queen’s counsel is precisely the same as the oath administered to Queen’s serjeants. Next after Queen’s counsel come serjeants-at-law, who, on taking their degree, swear that they shall “serve the Queen’s people and truly counsel them that retain them, after their cunning.” Sometimes a serjeant-at-law applies for a “Patent of Precedence,” which gives him precedence next after the last of the Queen’s counsel previously appointed. No oath is administered on the grant of a patent of precedence, as it implies no special service or duty to the Crown.

_Do not make your Son an Attorney._

Apart from the heavy expenses which must, even under the most favourable circumstances, attend the introduction of a youth into the legal profession, the fact must never be lost sight of that the examination which articled clerks are now called upon to pass before they can be admitted is of such a rigorous nature that perhaps not one in ten of the established practising attorneys could undergo the ordeal. Then, if we consider that the legal profession is at the present moment vastly overstocked, and reflect upon the fact of numbers of clever young men, who finding it impossible to beat out a connexion for themselves, either make for one of the colonies, or settle down at home in managing clerkships, at salaries scarcely equal to the remuneration paid to skilled mechanics, there is quite enough to make us hesitate before placing our sons in law offices. Nor must the fact be overlooked, that the tendency of our legislation has been, and will continue to be, to simplify legal procedure as much as possible; to lower the scale of fees payable to attorneys and solicitors, and even to dispense in many instances, with the necessity for employing professional men at all.--_S. Warren, Q.C._

_Appellate Jurisdiction of the House of Lords._

The proper constitution of the Supreme Court of Appeal justifies the utmost solicitude of the legislature and the country. The difficulties surrounding its reconstruction were found too great to admit of solution during the session of 1856, unexpectedly complicated as they were by the creation of that very distinguished judge, Baron Parke, a peer for life only, as Lord Wensleydale. The greatest constitutional lawyers in the House of Lords, supported by a considerable majority of peers, declared that the Crown had no power to create a peer for life only, with a right to sit and vote in that house; that such an act was illegal, and that the very essence of the British peerage consisted in its hereditary character. Issuing out of these discussions a Bill for reconstructing the appellate jurisdiction was sent down from the Lords to the Commons, but so late in the session that they declined then to entertain it. Whatever may be the ultimate fate of this measure, it is still practicable, even without adopting its special machinery, to preserve the appellate jurisdiction of the House of Lords--itself an object of the highest importance--by providing for more assistance from the legal and equitable judicial force of the country. In the meantime a well-earned hereditary peerage was conferred on Lord Wensleydale, under which he took his seat before the session closed.--_Blackstone’s Commentaries_, edited by Warren.

_Payment of an Advocate._

In 1863, Chief Justice Erle gave judgment in the case of Kennedy _v._ Broun, which involved the right of the plaintiff, a barrister, to recover the sum of 20,000_l._, alleged to have been promised by Mrs. Broun, then Mrs. Swinfen, for professional services rendered in the matter of the Swinfen estates; the trial at Warwick having been compromised by Lord Chelmsford, then Sir Frederick Thesiger. An action was brought by Mr. Kennedy to recover the 20,000_l._ in question, and a verdict was given in his favour. A rule was obtained to set aside that verdict and enter it for the defendant. The Chief Justice, in a most elaborate judgment, said that the relation of the parties, as advocate and client, incapacitated the latter from making any promise of remuneration which could be recovered as a debt. The payment to an advocate was as _honorarium_ not _merces_--and the opinion of all the judges, from the days of Justinian to the present time, supported that view. The rule for a new trial to enter the verdict for the defendants was therefore absolute. This of course quashed Mr. Kennedy’s claim.

_Utter-Barristers._

“The term ‘Utter-Barrister’ occurs for the first time in the reign of Henry VIII. It is mentioned in the ‘Orders and Customs’ of the Middle Temple, where it is applied to one who, having continued in the house for five or six years, and profited in the study of the law, has been called by the benchers ‘to plead, argue, and dispute some doubtful matter before certain of the benchers,’ which ’manner of argument or disputations is called _motyng_; and this making of Utter-Barristers is as a preferment or degree given him for his learning.’”

Fifty years ago no junior barrister presumed to carry a bag in the Court of Chancery, unless one had been presented to him by the King’s counsel, who, when a junior was advancing in practice, took an opportunity of complimenting him on his increase of business, and giving him his own bag to carry home his papers. It was then a distinction to carry a bag, and a proof that a junior was rising in his own profession.

_What was Special Pleading?_

From a period of very remote antiquity down to the passing of the Common Law Procedure Act, 1852, the pleadings in our Law Courts were of a highly artificial character, and had been elaborated, by the care of judges and practitioners during many successive centuries, into a regular system or science, called _pleading_, or more properly, _special pleading_, which constituted a distinct branch of the Law, with treatises and professors of its own. It was a system highly rated by our ancient lawyers, and had at least the merit of developing the point in controversy with the severest precision. But its strictness and subtlety were a frequent subject of complaint; and one object of the Common Law Procedure Act, 1852, was to relax and simplify its rules. Whether the effect of this will be to impair its value or not in other respects, experience alone can decide.--_Stephen’s Commentaries_, note.

Lord Campbell studied, at Lincoln’s Inn, the mysteries of special pleading, under the guidance of Mr. Tidd, through whom he traced his legal pedigree up to the celebrated Tom Warren, father of this wondrous art. Tom Warren begat Serjeant Runnington, Serjeant Runnington begat Tidd, Tidd begat Campbell, and Campbell begat Dundas and Vaughan Williams. “Tidd,” writes his grateful pupil, “lived to see four sons sitting together in the House of Lords--Lord Lyndhurst, Lord Denman, Lord Cottenham, and Lord Campbell. To the unspeakable advantage of having been three years his pupil, I chiefly ascribe my success at the bar.”

_What is Evidence?_

Mr. Stephen, in his able Treatise on the Criminal Law of England, gives the follow definitions of Evidence:

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.

_What is Trial?_

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._

_Trial by Jury._

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.

_Attendance of Jurors._

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.

_The Law of Libel._

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.

_Induction of a Rector._

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.

_Benefit of Clergy._

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._

“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.

_Compulsory Attendance at Church._

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 Mark of the Cross._

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.”

_Marriage-Law of England._

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.)

_Marriage Fines._

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.

_Irregular Marriages._

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]

_Solemnization of Marriage._

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. Special licence from the
{ Archbishop of Canterbury.
{
{2. Licence from a Surrogate,
{ &c.
1. According to the rites of the {
Established Church. {3. Publication of banns.
{
{4. Certificate from the
{ Superintendent Registrar.

{1. Licence from the
{ Superintendent Registrar.
2. In registered places of worship {
not of the Established Church. {2. Certificate from the
{ Superintendent Registrar.

{1. Licence from the
{ Superintendent Registrar.
3. In the District Register Office. {
{2. Certificate from the
{ Superintendent Registrar.

{1. Licence from the
{ Superintendent Registrar.
4. Between Quakers and between {
Jews. {2. Certificate from the
{ Superintendent Registrar.