HOSACIC'S CONFLICT OF THE LAWS OF ENGLAND AND SCOTLAND.
IT is curious how sharpsighted and censorious a people is in "foreign affairs," while it entirely overlooks the same kind of evil at home. The contradictions and anomalies that arise in America from the inde- pendence of the different States, in Spain from the "privileges" of cer- tain Provinces, in Germany from the various police and other regulations of many Principalities, are matter of frequent remark, and, when any practical inconvenience arises, of no small outcry on the part of those who have to suffer front it. Yet the principle is substantially the same (and with greater reason in its existence) as that which subjects a man living West of Temple Bar to different regulations from those who live Eastward of it, or enabled a debtor to defy the bailiff by crossing some arbitrary line into another county. In truth, Warburton's defini- tion of" orthodoxy" and " heterodoxy ' applies to a great many things. In conflicts of laws and customs the inhabitants are "native and to the manner born." They are a chance of profit to some, of pride to many, and of indifference to all save a reflective few, unless when they happen to 'smart under their operation • to which, however, they are in some mea- aure indurated as to a law Of second nature. Neither are these " con- flicts" so obvious to natives. As a man in a wood can see nothing but trees, and not many of them at once, a native is so acted upon by the details and commonplaces of life, that the effect of the aggregates escapes him except when they are forcibly impressed. On the other hand, the anorpalies at once stand out in a foreign country, and strike the mind of the observer.
Were it not for these counteracting circumstances of daily life, England and Scotland could not have gone on so long without serious collision or extensive change, since in some points of view the conflict in their laws is as great as anything in the before-named countries, if not greater. A bargain for land in Scotland, not made there or in the forms pre- Beriberi_ by Scottish law, will be held binding if Y framed according to the law of the place where it is made. The law of England, on the other hand, requires that contracts relating to that species of property shall be framed in a certain manner, or they become void. The laws differ, too, in various questions of property relating to courtesy, dower, distribution, and almost all other matters. But questions of property, however important, do not concern the many; and points of criminal law, in their direct Operation, only concern a select few. The law of marriage affects the great body of the-community; and while other subjects are limited to One class of interests, marriage in its consequences extends to many in- terests, and is likely to extend to all, involving the social status of indivi- Ilualat.their-legallighte and privileges, their claim to rank and honours,
and to property as well personal as real. • Those who have been in the habit of considering, however slightly, the "perfection of reason," at least as interpreted by fallible and too often capricious man, will not be sur- prised at finding conflict and contradiction when the laws of marriage are compared together, as well as no small amount of absurdity when they are considered absolutely in themselves. By the common law of both countries, marriage is considered a clad
contract ; and the Scotch law is throughout consistent in maintaining that view. In England we have a mass of contradictions. The Com- mon Law Courts treat marriage as a civil contract, even to the extent of giving the husband an action for damages against an adulterer ; or, ac- cording to an incidental dictum of Lord Denman lately, an action would lie against the attempt under certain circumstances. Both Common and Equity Courts in England stop short of rescinding the contract, be the legal or moral necessity what it may. That business is handed over to the Ecclesiastical Courts, which are governed by the Canon that is the Popish Church law : and here a grosser inconsistency exists. The Eel. clesiastical Courts will pronounce a divorce a mensa et thoro—from bed and board; separating the parties, relieving the man from the legal liabilities of marriage, and illegitimizing any children the woman may subsequently have, but not authorizing, which is in fact forbidding, either party to marry again. Under the Popish law, this was consistent. In that Church marriage is a sacrament ; any lay power can no more be permitted to set it aside than an apostate could be permitted to renounce his baptism and yet claim the privileges of the Church : the infallible Head of the Church alone can under special circumstances, dispense with the sacrament of marriage, and restore the parties to their antenuptial rights. The Anglican Church and the English law both reject the sacramental view of marriage : to maintain it, is, we believe, an ecclesiastical offence, punishable, at least in a clergyman. Yet, while denying the principle in theory, we act upon it in fact ; handing over divorce to the-Church Courts, yet stopping short of the legitimate conclusion. To be consistent, the Convocation or the Archbishop of Canterbury should be the''wee
totally to annul a marriage : but it is done by Parliament, the uses acting in a judicial and legislative capacity both at once. If this were simply inconsistent, it would be simply absurd ; but it is oppressive :
"Laws grind the poor, and rich men ride the low."
If a thousand pounds is no object to a man, he may get a divorce—and probably for something less : if otherwise, he must remain as he is ; for, in spite of Magna Charta, we both sell and deny justice.
The English law of marriage has undergone various changes, which we
need not enter into. Since the Marriage Act of Lord Hardwick; it has required compliance with certain forms designed to give publicity to the contract, and in case of minors to secure the consent of parents or guardians. The Scotch law requires nothing of the kind ; neither form of word or deed, nor the presence of some recognized officer, (analogous to our clergyman or registrar,) nor the consent of parents or guardians. All that it requires is an intention to marry • and it recognizes twts kinds of marriage, but without affixing any disadvantage to the " irre- gular " over the "regular" marriage. The law of legitimacy is as conflicting as that of marriage ; but each country is more consistent. By the English law, every one born out of wedlock is illegitimate ; and if the parents are domiciled in England the bastardy is indelible. The Scotch law adopts the principle of the Roman and Canon law, which recognizes the doctrine of legitimation by subse- quent marriage ; but, by a logical consistency which though intelligible seems over-refined in a practical sense, requires the capacity for legal matrimony to exist at the time of the child's birth : thus if either parent was then married, the child cannot be legitimated. In Scotland, the legi- timated children stand upon the same footing in all respects as those born in wedlock : till the Union they could even take the crown; the Stuarts themselves, indeed, were illegitimate according to English notions. From this conflict of the law of the two countries various nice cases have arisen ; but as they are special, we need not notice them further than to observe that the domicile of the father at the time of the birth seems to govern the decision. But there Ss a general rule worth mentioning : the
law of England acknowledges the legitimated son of Scotch parente for every purpose except the inheritance of land. His legitimate status is granted ; he may take personal property ; it appears he could succeed to a title: but land he cannot touch—the dirty acres are tabooed.
The law of divorce is equally confficting, and gives rise to more eaten,- sive consequences. Considering marriage as a civil contract, and ob- serving a consistency throughout, the Scotch law rescinds the contract when either party has destroyed its object by adultery or continued deser- tion; and it will grant a divorce when the marriage has been contracted elsewhere. All it requires is a Scottish domicile, and proof of the.fact on which the divorce is claimed. In theory, the domicile must be bona fide ; but it does not appear that in practice the law is very particular in raising the point ; parties going to Scotland pro hay vice have obtained divorce. The English law is contradictory on the subject of Scotch' divorces.
" In the year 1812 an opinion was delivered by the twelveJudges in England op a very important question, which brought the laws of the two countries into direct collision. W. Lollop, a native of England, and domiciled there, was indicted fdr bigamy, at the Lancaster Assizes, for having married, at Liverpool, a second wife, his first wife being then alive. The case was proved; but it was urged in hip defence, that before his second marriage, he had been divorced for adultery hy the Consistorial Court in Scotland; andthe sentence of divorce, duly authenticated, was produced. The point was reserved for the opinion of the Judges; who, after bearing counsel, were, in the language of the report,' unanimously of opinion that no sentence or act of any foreign country or state could dissolve an English marriage ii venculo mairintonii, for ground on which it was not liable to be dissolved, is vinculo matrimonii in England.' Loney had been found guilty, and he under- went a portion of the punishment awarded to him." Llte was sentenced to he transported, but was sent to the hulks for a shorter period.]
If this judgment be considered rationally, Lolley was unjustly punished by being sent to the hulks ; for the divorce was granted for adaltay, which is the ground of English divorces. If the apparent intent be
looked to, no divorce can be obtained in Scotland, or practically in most other countries, since an act of supreme legislature would be required to give it validity. This, however, is single inconsistency. There is a further clashing from the decision of the House of Louts in the case of Warrender versus Warrender, which was decided some twenty years after. A. divorce had been obtained in the Scotch Courts by Sir George War- render, on the grounds of alleged adultery committed in France. An appeal to the House of Lords confirmed the decision ; notwithstanding a long speech from Lord Brougham, putting in his extreme way all the probable and possible contradictions and consequences. " ' It must be admitted,' said Lord Lyndhurst, that the legal principles and decisions of England and Scotland stand in strange and anomalous conflict on this important point. As the laws of both now stand, it would appear that Sir George Warrender may have two wives; for, having been divorced in Scotland, he may again marry in that country: he may live with one wife in Scotland most lawfully, and with the other equally lawfully in England; but only bring him across the Border, his English wife may proceed against him in the English courts, either for restitution of conjugal rights, or for adultery committed against the duties and obligations of the marriage solemnized in England. Again, send him to Scotland, and his Scottish wife may proceed in the courts in Scotland for breach of the marriage-contract entered into with her in that country. Other various and striking points of anomaly alluded to by my noble and learned friend (Lord Brougham) are also obvious in the existing state of the laws in both countries: but however individually grievous they may be, or however apparently clashing in their principles, it is our duty as a court of appeal to decide each case that comes before us according to the law of the particular country whence it origi- nated, and according to which it claims our consideration; leaving it to the wis- dom of Parliament to adjust the anomaly, or get rid of the discrepancy, by im- proved legislation.'" Surely it is time for "improved legislation." Surely it is time that we should abolish from our law the remnant of Popish error which we do not consistently carry out, and give to some one court the power of pronouncing a final divorce in the case of adultery (if we do not extend it to cruelty and desertion); seeing that after all a divorce is ever granted by the Peers to those who can pay for it. This similarity of law would prevent appeals by Englishmen to the Scotch law, and put an end to the "strange and anomalous conflict on this important point," by rendering a divorce in either country valid in the other. And for this as for va- /ions other reforms of a similar kind, there is only wanted a Minister with a mind to it.
Mr. Ilosack's Treatise is a useful addition to our liberally professional `books. The idea, as Mr. Hosack states, is derived from the celebrated Work of Professor Story ; from which, as well as from the Commentaries of Mr. Burge, considerable assistance has been drawn. The limitation of the book, however, to England and Scotland, while it gives to it a more practical character, naturally brings it more home to the business of British readers. It will also, when completed, have the useful effect of giving the reader of each country an insight into the laws of the other, and the more distinctly from the contrast they offer to his own. The present part is personal,—relating to Domicile, Status, Marriage, and Divorce, with their direct consequences upon property : the next and con- cluding part will rather concern things,—embracing Real and Personal Succession, Contracts, and Bankruptcy. A complete view of the law of either country is of course not designed; but it will, apparently, give a coup d'ceil of the whole, that is as regards civil law. While this general character does not detract from the utility or the purpose, it adds to the general interest of the work, which in many law-books is too often merged m the technical character. The Treatise on the Conflict of the Lams of England and Seotlarul is a desirable book for the law reformer and politician, as well as for the law student who is pursuing his studies in a liberal spirit.