Leviticus, chap. xviii. and xx., and as regards affinity as well as consanguinity. By 32 Henry VIII., c. 38, it is declared that every marriage contracted between lawful persons, to wit, such as "be not prohibited by God's law to marry when solemnized in the face of the Church, and consummated with bodily knowledge, or fruit of children, shall be good and indissolvable," and that no prohibition, "God's law except," shall impeach any marriage without the Levitical degrees. As to such degrees, vide Leviticus, chaps. xviii. & xx.

Legitimation by Subsequent Marriage.

Here, another important difference between the Marriage Laws of England and Ireland and of Scotland deserves attention. By the Law of England and Ireland, all children born after marriage are presumed to be legitimate until the contrary is proved. According to the Law of Scotland, all the children of married persons, whether born before or after marriage, are held to be legitimate on the principle of the Canon Law that the subsequent marriage of parents legitimates the birth of children born before the marriage. But, says Bell, Principles, section 1,627, there must be no legal impediment to the marriage. He says, however, that it is undecided whether an intermediate marriage between the birth of the first child and the subsequent marriage of the parents of such child made such child legitimate or illegitimate. But, if a child had been born in the first lawful marriage, surely such child of such first marriage would not be disinherited by the legitimated offspring of the second marriage! By the Roman Law, children who were bastards, or born out of lawful wedlock, were legitimated by letters of legitimation from the sovereign, at the desire of their natural father, who had no lawful issue-Vide Nov. 89, c. 9-or by the subsequent intermarriage of the mother of the child with the man by

whom it was procreated. The Law of Scotland, in ancient times, did not agree with the Roman Law on this latter point as it now does. It now gives to children born before the marriage of their parents the full rights of legitimate children. Succession to an English Peerage must be by legitimate issue according to the rules of English Law, and not according to those of Scotch Law, and the same rule holds good in England as to the succession to real or personal estate. But, if there should be uniformity in the Marriage Laws of England and Ireland and of Scotland, the rule in Scotland as to legitimation per subsequens matrimonium should either be clearly and expressly extended to England and Ireland, or as clearly and expressly abrogated in Scotland. Although the English nobles, when the English clergy, at the Council of Merton, 1236, wished to make the Laws of England the same on this point as in the Canon Law, cried out "Nolumus leges Angliæ mutari," perhaps the Parliament, as now popularly constituted at Westminster, might be inclined to adopt the rule of the Canon Law and of the Law of Scotland in this particular. Provided no equitable rights have intervened, I for one do not see why the Canon and Scotch Laws on this point might not justly be adopted in England. In some of the States of the American Union, the law goes beyond the Law of Scotland, and gives to bastards a share of the real and personal estate of their parents.

As the begetting of children is the great and primary object of marriage in the Civil as well as in the Divine law, so the protection of the just and equitable rights of children as regards legitimacy and succession ought to be one of the great and primary objects of the laws of every civilised country. The custody, education and maintenance of children, whether legitimate or illegimate, are of vital importance to the State, and therefore may rightly be made the subject of Legislative enactment. But, if people

wish to be considered as legally married, they should be obliged to give some public notification of the fact at the time when the marriage was constituted.

Promise of Marriage followed by Sexual Intercourse.

In the Law of Scotland, there exists another rule which does not exist in the Laws of England, or of Ireland, namely, that a promise of marriage-in writing, or admitted on reference to oath-when followed by sexual intercourse, entitles a woman to sue for and obtain a declarator of marriage, placing her in the position, with all the rights and under all the obligations of a married woman. Bell says, section 1,518, "That a marriage in Scotland by a promise of marriage, subsequenti copula, the sexual intercourse is not presumed, but being proved, the consent to the marriage is inferred. Consensus non concubitus facit matrimonium." Few cases of this kind are ever heard of in the Scottish Law Courts. But when they are raised, the rule here mentioned is rigorously and justly enforced. For my own part, I can imagine no civil wrong against maidenly chastity and womanly virtue greater than the deprivation of a woman's honour under a promise of marriage, and a subsequent refusal to perform the promise. Here is a principle in which the Law of Scotland is more conformable to justice and equity than the Laws of England and Ireland. Will the English or the Irish people adopt the rule of Scotch Law on this point? I venture to assert that they should do so.

In passing, I may here observe that, while I am not in favour of the entire abolition of all actions for breach of promise of marriage, I am of opinion that the abolition of all actions for verbal, but not for written, promises of marriage, would be a public as well as a private advantage. Completely to deprive parties of the right of action for breaches of promise of

marriage would often lead to gross injustice. In order to prevent frivolous and groundless actions for breach of contract of marriage, the Legislature might fairly enact that to support an action for breach of promise of marriage the promise must be in writing. Marriages should be free and voluntary between the parties. Matrimonia debent esse liberè. By the Roman Law, an action for damages was enforceable against the party making the promise, and refusing to perform it. The Canon Law, even although the promise was made on oath, allowed, and rightly allowed, the parties to resile from their promise.

Action for Seduction.

There is an important distinction between the Law of Scotland and the Laws of England and Ireland as to seduction. By the Law of Scotland, a woman, if of age, and if not of age by her next friend, can sue in her own name against her betrayer for damages for seduction. But, by the Laws of England and Ireland, a woman must sue her seducer for damages, by means of her father, or employer, on the fiction that the one, or the other, has suffered damage by the defendant's wrong! This instance shews the essentially different aspects from Scotland and the Laws of England and Ireland view wrongs inflicted by men on women. In justice, equity, and morality, I submit that the Scotch Law, deriving its great principles of justice, on this point, from the Civil Law, or from the Canon Law, is greatly superior to the Laws of England and Ireland in relation to the rights and obligations of the sexes towards each other.

Rule Nisi in Divorce.

which the Law of

When a Decree of Divorce is granted by a Judge in Scotland, it becomes absolute, at once, subject to appeal, as in ordinary cases, to the First or Second Divisions of

the Court of Session, and thereafter to the House of Lords. But, when a Decree of Divorce is granted by a Judge in England, it does not become absolute till six months thereafter, and is subject to appeal to the Court of Appeal in Matrimonial Causes, and to the House of Lords. I have to suggest that the decree nisi in English divorce cases should be abolished, and that the decree should be, at once, made absolute, but subject to appeal as in ordinary cases to the Court of Appeal, and subsequently to the House of Lords.

Conclusions.

I have now come to the end of my proposals for the reform of the Marriage Laws of England, Scotland, and Ireland, and submit to the reader's consideration-1st. That our Marriage Laws should be made uniform in all the three kingdoms. 2nd. That contumacious desertion, for four years, by a husband or wife, in England or Ireland, should, as in Scotland, be a sufficient ground of divorce. 3rd. That simple adultery by a husband as by a wife in England or Ireland should also, as in Scotland, be a sufficient ground for divorce. 4th. That the Civil constitution of marriage in England, Scotland, and Ireland should be made the same. 5th. That a husband should be entitled to marry his deceased wife's sister, and a wife her deceased husband's brother. 6th. That, consistently with the recognition of existing rights, the children of married persons, whether born before or after marriage, should be held to be legitimate. 7th. That a promise of marriage, followed by seduction, should be sufficient in law for a declaration of marriage. 8th. That a woman of full age, or, if in minority, by her next friend, may obtain damages against a seducer, without proving loss of service. 9th. That a Decree of Divorce or Judicial Separation in England or