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theory of marriage upon its double line of growth, matrimony being a sacrament with all the incidents of a sacrament and yet at the same time being a contract and one of the class of contracts made by mere consent, with all the consequences which the Roman law attached to consensual contracts.

The second part of the book takes up the developed theory as it had taken shape at the end of the twelfth century and as it remained substantially unaltered till the promulgation of the decrees of the Council of Trent in the sixteenth century. Chapter i. of the second title of the second part (the divisions are rather cumbrous) deals with the impediments to marriage, divided in the usual way between the absolute impediments (impedimenta dirimentia) and those which only oppose an obstacle to the correct solemnization of marriage (impedimenta impeditiva); the first as the most important taking the chief place.

The absolute impediments are subdivided: section 1 deals with those of general incapacity (pp. 216-220); and first among them with that rule forbidding marriages between Christian and nonChristian, the rule as to cultus disparitas, which though a matter of ecclesiastical custom only (see vol. II. pp. 267, 268), has taken firm hold upon the Church; and is in practice most important at the present day.

The distinction between the marriage of the heathen which is a true marriage, verum ac legitimum, but which is not ratum and may still be dissolved for certain causes, as for instance, by the conversion of one of the spouses and the refusal of the other to live on in union upon Christian terms, is incidentally elaborated at pp. 220 to 232. The question of polygamous converts to Christianity arises in this connection, and is discussed.

The other impediments of 'general incapacity,' age, impotence, and the already contracted engagements of a previous marriage, religious vows and holy orders are fully and most analytically treated of at pp. 232 to 301.

The very gradual growth of the legislation which prohibited marriage to the clergy and the continuing recognition by the Western Church of the lawfulness of the Eastern rule in this matter are clearly shown.

Section 2 (pp. 302-335) deals with those defects which the author calls defects of consent (vices du consentement): that is, actual absence of consent, force, and error as to the identity of the person married, or as to his or her condition, this error being limited to the case where a free man or woman espouses in ignorance a slave. Actual defect of consent seems a simple matter; but the Canonists drew a distinction between external and internal consent which (unless

report is slanderous) is used sometimes at the present day in the Roman Church as an instrument of dissolving ill-assorted marriages without recognising the power of divorce (see however vol. II. p. 209).

Section 3 (pp. 335-343) deals with all the impediments founded on a previous relation between the parties: the most difficult to understand is that of publica honestas, which makes an impediment of the previous betrothal of one of the spouses to the kindred (within the prohibited degrees) of the other. Then comes kinship (cognatio) which besides blood relationship includes kindred by adoption, i. e. the strict adoption of the Roman law, and spiritual kindred, where the parties are connected through sponsorship at the font (god-sil). This most curiously mystical prohibition, though its exuberances were retrenched by the Council of Trent (vol. II. p. 261), still exists in the Canon law.

Affinity by marriage or by sexual relation outside the pale of marriage constitutes the next prohibition. In this connection we may lament that dispensations, though treated of in Part III. Ch. vii. (vol. II. pp. 314–368), are less fully discussed, both historically and as matter of everyday practice, than the other subjects of the work.

Lastly comes a prohibition of the adulterer marrying the woman he has corrupted, if in order to make marriage possible he has killed, or, according to one view, has plotted the killing of the husband (criminis enormitas).

The second chapter of this second part is given to the procedure by which the validity or invalidity of a marriage is determined. What is most interesting in this procedure is the difficulty in which the canonists were placed by their ignorance or refusal of viva voce evidence and cross-examination. No doubt the latter art has largely improved in quite recent periods: and we can see how even in recent times and in this country the increase of cross-examination coupled with the admission of the parties themselves to the witness box has led to the substitution of evidence for presumption.

With the Canon law (unless there was documentary evidence) it. was all presumption or common fame. What the Scotch call 'habit and repute' and the French possession d'état was the only matter on which direct parol evidence seems to have been admitted.

In the second volume we come to the effects of marriage both as to the rights of each spouse in the person of the other, and as to the legitimacy of children. Here we have brought out the wellknown refinements of the Canon law by which the children of a 'putative marriage,' that is a marriage solemnized with apparent form, may be legitimate, though the marriage itself be void. In the

first chapter it is interesting in view of the Jackson case to note that the Canon law held that a husband might for good cause chastise his wife (vol. II. p. 7).

Chapter ii. in this volume deals with Divorce, a subject on which there is not much that is new to be said. It is evident that the Western Church early set itself to prohibit Divorce, and that it encountered great opposition and had in some cases to temper its decrees when dealing with the half Christianized Franks and other Teutonic tribes.

Part III. gives us in Chapters i. and ii. the discussions which led to the reforms made by the Council of Trent, and in Chapter iii. the reforms made by that Council-the great change being that by which clandestine marriages were rendered impossible. As the author says (vol. II. p. 154) marriage from being a consensual contract became a solemn contract-that is, one requiring forms as part of its essence.

In theory this superaddition of necessary form is explained as being a restriction upon the personal capacity of the contracting parties. As one may not marry under the age of puberty, or if madness has deprived him or her of reason, so a subject of the Roman Church is not now capable of contracting marriage except in the presence of his parochus, parish priest or deacon, or of some other priest deputed by the parochus or the Ordinary, and in the further presence of two witnesses. As before, the sacrament is celebrated and the contract is made by the spouses. The priest is but a necessary witness (p. 182). He must be there and know what is going on; but he may be an unwilling witness. Still the effect of this reform is enormous. Unless the country is in such disorder that you can kidnap your priest, you must have him there of his own will. Not only will he refuse his presence, unless the proper publications (our banns) have been made; but it will be his duty to do so if the marriage though valid when made ought not for some Church reason to be made, or not to be made at that time or season, or without dispensation. Practically under this system impedimenta impeditiva become impedimenta dirimentia (vol. II. p. 288).

Chapter iv. gives with much refinement of inquiry the after effects, répercussions, of the decree of the Council of Trent. In this chapter and in the next the author has largely availed himself of the judicial decisions which have construed the decree, referring constantly to the reports of causes decided by the standing Congregation of Cardinals appointed to interpret the acts of the Council.

In conclusion four matters of interest may be noticed. It is well known that in pre-Revolution France the place of our writ of

prohibition as applied to an Ecclesiastical Court was taken by the appel comme d'abus. But it is not so well known that this appeal lies not only from judicial decisions, but from ministerial or official acts or refusals; and that by such an appeal the act of a priest in celebrating an illegal or invalid marriage might be quashed, and in this way the marriage itself brought within the cognizance of the temporal court, and be by it declared void (vol. I. p. 42).

The origin of our damages for breach of promise may be traced in damages for refusal to proceed from betrothal to marriage (vol. I. pp. 52, 136, 142).

The institution of the Defensor matrimonii (vol. II. p. 292) may have suggested our intervention by the Queen's Proctor. The Defensor has however a wider and higher sphere of duties. It would be well if our Queen's Proctor had the like.

Lastly, the book is full of instances of that division which has cut so deep in the Roman Church, and which explains many of the phenomena of the fifteenth and sixteenth centuries-the division between theologians and canonists (see vol. I. pp. 79, 300, 304; vol. II. pp. 243, 327).

Altogether the book is a mine of interesting information, and its arrangement is excellent.

WALTER G. F. PHILLIMORE.

REVIEWS AND NOTICES.

Short notices do not necessarily exclude fuller review hereafter.

A Treatise on the Specific Performance of Contracts. By the Right Hon. Sir EDWARD FRY. Third Edition. By the AUTHOR and EDWARD PORTSMOUTH FRY. 1892. London: Stevens & Sons, Lim. La. 8vo. x and 836 pp.

Ir the subject of specific performance does not occupy much space in the reports of judicial decisions published during the last two years, we cannot help thinking that this is partly due to the excellent exposition of the law contained in the former editions of this standard work. Of the new cases which have been reported, a careful use has been made in the present edition, and this, as might have been expected, has been done without any disturbance to the lucidity of arrangement, accuracy of statement and refined sense of proportion, with which the former editions have made us familiar. A text-book writer cannot, as a matter of course, make the law appear more logical or consistent than it is, and the law of specific performance is not satisfactory on all points, but when the difficulties are clearly pointed out, as difficulties, the student is always on firm ground and the practitioner knows that he must be cautious. Such warnings are not infrequent in Lord Justice Fry's book. Thus the unsatisfactory position of the doctrine derived from Lumley v. Wagner-already referred to in the last edition and since then judicially noticed by the Lord Justice (then Mr. Justice Fry) in Donnell v. Bennett, 22 Ch. D. 835, 840-is again brought out with increased emphasis (on p. 396-where the words used by Lord Justice Lindley in his judgment in Whitwood Chemical Co. v. Hardman, '91, 2 Ch. 416, to the effect that he looks upon Lumley v. Wagner as an anomaly which it would be dangerous to extend,' are quoted with approval). In the same way the observations as to the inconsistencies in the course of the authorities on the question, as to how far payment of money may be considered as part performance of a contract, had to be retained in the present edition, Nunn v. Fabian havirg in the meantime been followed in Conner v. Fitzgerald, 11 L. R. (Ir.) 106, notwithstanding Lord Esher's dictum in Humphreys v. Green (10 Q. B. D. 148, 160).

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The question whether the Judicature Acts have extended the applicability of the doctrine of part-performance has been repeatedly discussed by the courts since the appearance of the last edition. The cases are summarised and partly criticised on p. 276, and it is worth while to call attention to the passage as a pattern of terseness and pregnancy of expression.

The paragraphs on the effect of the Married Women's Property Act are another instance of that combination of brevity and accurate completeness which marks the master hand. The author is of opinion that a judgment directing a married woman to do something other than the payment of money can be enforced by attachment, but as yet there is no reported decision on the subject.

The observations on p. 259 with reference to some recent cases, in which

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