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ment of the island, and for which he sees only one remedy, namely, the restoration of the ancient constitution. We certainly think that he has made out a primâ facie case for inquiry; and although we are far from imputing to the Colonial Office any wish to tyrannize over this handful of the Queen's German subjects, or to hold them in a state of slavery, it really does seem as if their case had not received that full investigation to which it is fairly entitled. According to the speech delivered by the Earl of Carnarvon at Edinburgh on the 5th of November last, the Secretary of State, who does his duty, is now to be considered by British colonists as a friend to whom they may always appeal for the redress of their wrongs. "The evils of despotism,” observed his Lordship, are sufficiently notorious. Imperialism must rest upon the sole foundation upon which all true things must rest, namely, that which is sound and moral. We ought not to, and cannot, divorce our system of politics from our system of morals."
IV.-THE MARRIAGE TIE IN ROMAN AND
BENTHAM, in his “ Theory of Legislation,” commences
his remarks on marriage by calling it a “noble contract, the tie of society, and the basis of civilization.” This description, which very fairly sums up the important characteristics of the matrimonial tie, must commend itself to all those who have devoted any attention to the subject. Marriage has played an enormously important role in the world's history, and to trace out fully its influences, would be to fill volumes. The wideness of its range, and the interest attaching to it, make the subject difficult of treatment in an article like the present. If prolixity be avoided, there is risk that a mere skeleton may be presented to our view. As the term “marriage" has been already used, it may be as well at the outset to venture on a definition. By marriage we mean the union of a man and woman for an unlimited time, accompanied with some form or ceremony-religious, legal, or social-expressive of the consent of the parties themselves, or of those on whom they are dependent.
In discussing this more than merely temporary union of man and woman, we are considering in part, as a result, a form of society which, by many jurists, is deemed to be the earliest. Out of marriage grew the family, and for marriage the highest antiquity is claimed-even the antiquity of Divine appointment. Notwithstanding the fact that this bond has at times sat lightly upon mankind, yet the necessity for it has never been totally denied by any nation or people who have desired to perpetuate themselves. Even in the first dawn of civilization, the union in marriage of man and woman must have assumed a regard and importance which have not decreased, but rather have increased with the advance of Christianity and general enlightenment. The reason is
that a want of cohesion in the relations of individuals acts with tenfold force upon the interests of the tribe or nation composed of those individuals; for where there is no common bond for the units of a people in private, it will be too much to expect them to make common cause in public matters, not affecting life and death. This elementary cohesion must have been supplied by the Family, and the existence of the family undoubtedly depended on a ceremony which may be called marriage, although it may not be identical with what we now understand by the term.
As in the course of this article we shall notice marriage both from its religious and civil side, a probable reason for this double view of the question may be here put forward. Marriage, in the abstract, does seem to belong to the civil institutions of a tribe or nation, but there can be no doubt of the tendency shown by the nuptial rite to be inseparably bound up with a religious ceremony. This is explicable on two grounds, (1) from an idea of drawing an invidious distinction between regular marriage and unsanctioned intercourse, or concubinage, with the idea that obloquy should rest on the latter; and (2) from the combined legal and religious character of the priesthood in early ages. In all countries, from the earliest times, that order which takes care of the religious element has assumed the authority to settle and manage this question. Though the sacerdotal class acquired from this fact great power, as its members, from their education and pursuits, were better able to appreciate what was conducive to material prosperity than the lay and unlearned classes; yet its power was not generally abused in early times, as is proved by the wide acceptance of its rules. In process of time priests became lawyers, not, however, by neglecting religion for the law, but because while they ministered in holy things they dispensed justice. The people brought the priests hard questions to decide ; the latter claimed in their judgments to be inspired by Heaven,
and as such demanded the respect of the suitors. These decisions were preserved by oral tradition and formed precedents for subsequent and similar cases. Gradually there arose a portion of the priestly class who gave themselves up to study these decisions, and to deliver like on similar occasions, leaving to their brethren the care of purely religious matters. This portion became ministers less of religious than legal mysteries, and devoted themselves so entirely to the latter that their sacerdotal character was lost and only their legal survived.* This new body would not altogether forget and lay aside the peculiar line of thought with which it had been familiar, but would introduce rules and regulations embodying the spirit of the whole class of which they formerly were a part. This theory we put forward as a probable one to account for the fact that marriage, among other subjects, has a twofold aspect-religious and legal—the first as conducing to better morals, the latter as concerning the temporal welfare of the nation, and to explain how in modern times both Church and State claim it to be under their respective jurisdiction and supervision. It would be extremely interesting, if space would permit, to theorize on the matrimonial relations existing between primeval man and woman, and to discuss the subject of “comparative marriage," setting forth the ideas on this subject prevailing in different countries with the respective rites and ceremonies, for every country has had its own notions on this subject, and all of them worthy of attention. There is, however, one nation which has shown such a remarkable pre-eminence in defining and settling all matters which involve legal conceptions, and which has exercised such a considerable influence over modern institutions and modern thought, that it is not possible, when discussing such a matter as we have in
* Compare the History of Jewish Legal Institutions, and the evolving of the Lord Chancellor out of the Keeper of the King's Conscience, i.e., his Confessor.
hand, to pass it by in silence; of course we mean the Roman nation. No relation of life seems to have escaped the observation of these people, and whatever came under their view, if it could exercise their legal bent, was certain to be treated of in a methodical and exhaustive manner. With the Roman law on marriage we intend to compare the English, as offering a clearer contrast than that of any other system-pace the learned author of "Ancient Law,” who holds that our marriage ideas are essentially Roman. We would premise, however, that, since some portions of the English subject must deal with controversies, we shall offer no one-sided opinion as to which party is right or wrong, but endeavour to set out the views of both.
WHAT IS MARRIAGE ?-Roman Law.-Modern writers have entered into an unnecessary discussion as to whether the Roman marriage should be ranged under real or consensual contracts, two sub-divisions of obligations arising ex contractu by pollicitatio and conventio. This is not essentially an important question ; and the Romans themselves did not attempt to define marriage as a regular contract, because they were perfectly well aware that the marriage state was, in ordinary cases, the result of feelings which refused to be analysed by the hard and fast qualifications of commercial contracts. Those who hold it to be a consensual contract base their arguments on the dictum " nuptias non concubitus, sed consensus facit;” but we shall, further on, attempt to show that the consensus was to be put into opposition to cohabitation, or, as Mr. Poste * expresses it,“ to the use of certain words or certain documents, or to the solemn and graceful ceremonial with which custom has surrounded the matrimonial union.” Consensual contracts could be formed when the contracting parties were not present to each other; whereas a marriage required the presence of both parties, except under certain circumstances, and then the woman
The Elements of Roman Law, Gaius, p. 55.