tions, enriched alike his literary work and his familiar conversation.

Failing health had obliged him to resign his Professorship of Jurisprudence in the Inns of Court. But his mind was active to the last, and he had very recently brought out a new edition, revised to date, of his well-known History of the Ottoman Turks. While Professor of History in University College, London, he published the work which first gave him literary fame, “The Fifteen Decisive Battles of the World," his preface to the first edition of which is dated from "Mitre Court Chambers, Temple, June 26th, 1851." This was followed within a couple of years by his "Rise and Progress of the English Constitution," which speedily became a standard work on that important subject.

Sir Edward was called to the Bar by the Honourable Society of Lincoln's Inn in Hilary Term, 1837, and went the Home Circuit. He took his degree in 1835, and proceeded M.A. in 1838. He was appointed Chief Justice of Ceylon in 1860, and received the honour of knighthood. In 1846 he married Mary, daughter of G. Cottam, Esq., C.E., who survives him. Born in 1812, the age which he had attained was not so great, but for his service in the East, as to prevent our hoping to see yet another "monumentum ære perennius" from the pen of Sir Edward Creasy.

Reviews of New Books.

Treatise on Husband and Wife according to the Law of Scotland. By PATRICK FRASER, LL.D., Advocate. Second Edition. Vol. I. Edinburgh: T. & T. Clark. 1876.

Among living Scottish Law writers, Mr. Fraser has conquered for himself so eminent a position on the Law of Marriage and the Family Relations, that a Second Edition of his well-known work would have been certain of receiving the attention of professional readers, even if it had not been announced as practi

cally re-written. But the novel views which this re-writing has developed call for a closer inspection at our hands than we can usually give to a new edition of a Text-book. For it is evident on studying Mr. Fraser's language that if he is right a great many jurists of the highest distinction have been wrong, and the Marriage Law of Scotland has been misrepresented and misunderstood. It would also seem, if Mr. Fraser be right, that the General Canon Law of Western Europe has been misinterpreted, as well as the National Canon Law of England and of Scotland. This is, in itself, a sufficiently startling position, but some of the consequences which Mr. Fraser draws from his theory are still more startling. Thus, at p. 120, we are told that "if a man married a woman, and she dropped dead after the ceremony in the church or drawing-room where she was married, the man could on the morrow legally marry her mother. This," says Mr. Fraser, "is the law obtained from the Canonists, and it is the law of Scotland." What good news for those who may wish to marry their mothers-in-law! It so happens that the question what constitutes marriage according to the General Canon Law is of interest at the present moment in France, a country which, like Scotland and England, never received the decrees of the Council of Trent. It will, therefore, be quite "ad rem" to quote from one of our able French contemporaries, the "Revue Générale du Droit" for Sept. and Oct. 1877 (Paris, E. Thorin), the words of M. Thézard, Professor of Law in the Faculty of Poitiers, and author of "Répétitions écrites sur le Droit Romain." While admitting, as of course must be admitted, that the nuptial benediction was generally sought by Christians in the 3rd and 4th centuries, M. Thézard yet asserts, with Pothier, that it was not necessary to the marriage, which could be validly contracted without it. This position he strengthens by quoting the Law "De Nuptiis " (C. Lib. V. Tit. IV., xxii.) of Theodosius and Valentinian, Si donationum ante nuptias vel dotis instrumenta defuerint, Pompa etiam, aliaque nuptiarum celebritas omittatur, nullus existimet. ob id deesse recte alias inito matrimonio firmitatem, vel ex eo natis liberis jura posse legitimorum auferri, inter pares honestate personas nulla lege impediente consortium, quod ipsorum consensu atque amicorum fide confirmatur." Similarly Justinian (Nov. 74, cap. 4), “ Antiquis promulgatum est legibus, et à nobis ipsis sunt hæc eadem constituta, ut etiam nuptiæ extra dotalia instrumenta, ex solo affectu valeant et ratæ sint."

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In regard to the order by Justinian for declaration of marriage

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"in aliqua orationis domo," the fact that it was only issued for persons below the rank of "Illustris," and that the declaration was to be made in the presence of the "Defensor," who was very often, if not usually, a layman, suffices to show that there was no idea in Justinian's mind of the necessity of the Nuptial Benediction. We must turn from the East to the West, from the Slav Uprauda to the Frank Karl, before we find the true era of this injunction, which first appears in the Capitularies of Charles the Great, and is confirmed by Councils (e.g., Trosli, A.D. 907), nearly a century after his death. It was, therefore, the State and not the Church which, to avoid the inconveniences attending upon marriages effected without publicity, laid down this law. "Not the Church," says Prof. Thézard, "for else she would have denied the authority of one of her Pontiffs, and the Dogma of Infallibility now proclaimed by her would be shaken." More than one Pope, indeed, may be cited in defence of the proposition consensus facit matrimonium; " Alexander III. and Innocent III. both decided that the formula "Ego te recipio in meum, ego te recipio in meam," without any of the usual Church formalities, constituted a valid marriage, from which neither party could withdraw. On this point, it may be said that there was a concurrent establishment of identical doctrine by the State and the Church, but that as a security for publicity the State enforced the ceremonies of the Church as the authentic form. In France, it was the Royal Power which prescribed marriage "in facie ecclesiæ," and by the Parish Priest of the parties, through the Ordonnance of Blois, 1579, after the Council of Trent had made that discipline the rule of the Latin Church. But the Council itself anathematised those who should deny that "matrimonia clandestina, libero contrahentium consensu facta, rata esse et vera matrimonia." What is meant by clandestine marriages in the sense of the Conciliar Decree, may be expressed in the words of Sir George Mackenzie of Rosehaugh, "His Majestie's Advocat." "Marriage is either regular and solemne, or clandestine; the regular way of marrying is by having their names proclaimed in the church three several times, which we call Proclamation of Banns, without which, or a dispensation from the Bishop, the marriage is called a clandestine marriage; and the parties are finable for it; but the marriage is still valid. (Car. II., Parl. I., Sess. 1., Act 34.)" And it is clear that the doctrine which Pothier tells us was taught in the Sorbonne by Hennequin was identical with that of the Jesuit Sanchez, who admits that the matter of the Sacrament of Matrimony is a civil

contract. Sanchez says, "Nec obstat principis sæcularis potestati matrimonium esse sacramentum, quia ejus materia contractus civilis;" and the Professor of the Sorbonne taught "Christus matrimonium instituendo sacramentum, nihil in illo ut contractu civili immutavit." Yet, in Mr. Fraser's eyes, "to call such an institution as this (i.e., marriage) a contract, is simply to ignore almost every element of it, and to overlook its history in all ages and countries." (Husband and Wife, p. 157.)

In his account of a Medieval English "cause célèbre,” that of Richard de Anesty against Mabel de Francaville, Mr. C. H. Pearson (Hist. of England, 1867, I. 583) mentions that a document emanating from the Roman Curia was produced, which "stated explicitly the true doctrine of Roman law that marriage lay in the voluntary promise before witnesses," and in commenting on this case Mr. Pearson merely says, "It must be remembered that the Canon Law of the Church, like the Roman Civil Law, regards marriage in its secular aspects simply as a parol contract before witnesses." It did not appear necessary to the historian to do more than remind his readers of an acknowledged fact, or what he assumed they would acknowledge as such. Space warns us that we cannot go at greater length into the minute details and elaborate arguments with which Mr. Fraser has built up the theory which is the keystone of his interesting volume. We have given some Mediæval reasons against his view from Imperial and Canonical Legislation. We will conclude with another quotation from a contemporary source, to show that Mr. Fraser's theory seems to conflict no less with the acceptance of the latest phase of Roman Catholic doctrine. "The Church," says M. Thézard, "found marriage a Civil Contract; she made it the matter of the Sacrament, and it sufficed for this that the marriage should, in the words of Pope Nicholas I., be contracted secundum leges. The celebration before the Church is not of the substance of the Sacrament; if it was not so formerly, it is not so to-day; else there would be a challenge to the immutability of dogma, and the infallibility of the Holy See. Canonists still affirm energetically the earliest view of the Church, by saying that the spouses are themselves the ministers of the Sacrament. The Council of Trent, it is true, prescribed celebration in face of the Church, under penalty of nullity. But in what sense? As a matter of external discipline, as a form to be observed. Now it is established that the form of marriage is submitted to the law, and holds (relève) of Cæsar, while the Sacrament holds of God. The decision of

the Council of Trent could only be the expression of the jurisdiction in regard to marriage delegated to the Church in [Roman] Catholic States; it is only so far as those States consented to receive the rules of the Canon Law that it could have a binding force."

We could have wished that Mr. Fraser's unquestionable erudition which, we are glad to observe, has recently received a fitting recognition by his appointment to the high position of Dean of the Faculty of Advocates, had been devoted to a subject more worthy of his pen than the attempt to establish a theory the application of which he admits would bastardise two generations of Anglo-Indians, and we will not reckon how many generations of his own countrymen.

A Digest of the Law of Partnership. By FREDERICK POLLOCK, of Lincoln's Inn, Esq., Barrister-at-Law, late Fellow of Trin. Coll. Cambridge. Stevens and Sons, 1877.

Mr. Frederick Pollock, who is already favourably known in legal literature by his book on the Law of Contract, essays in this little volume to apply to Partnership the method of exposition adopted in the Indian Codes, and recently applied by Sir James Stephen to the Law of Evidence and the Criminal Law. Not the least valuable portion of Mr. Pollock's book is the rather long Introduction in which the merits of the Anglo-Indian method are described. The essential feature of that method is that the law, instead of being left to be gathered from a multitude of single instances, is stated in the form of general propositions, to which practical examples are appended by way of illustration-the example being in many cases the leading authority for the principle. This, which Mr. Pollock considers the greatest advance made in modern times in the "mechanics of law-making," is really the product of the fresh and vigorous intellect which Macaulay brought to the business of his Indian Office. Macaulay has told us how slight was his legal training in England; had it been greater it may be doubted whether he would ever have escaped from the trammels of professional prejudice which still make the method distasteful to many English lawyers. As it happened, Macaulay's suggestion remained long inoperative in India, and it was only the accident of Sir James Stephen's short connection with Indian legislation which gave it a new life in England.

One of the main objects both of Sir James Stephen and Mr.