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in a court of common law. Yet it is confessed, that, under Justinian, you might have made an incomparable Prætor.— It is remarkable enough, but I hope not ominous, that the laws you understand best, and the judges you affect to admire most, flourished in the decline of a great empire, and are supposed to have contributed to its fall.—Letters of Junius.
WILLIAM SCOTT, LORD STOWELL.
WILLIAM SCOTT, Baron Stowell, the elder brother of Lord Eldon, was the eldest son of a coalfitter of Newcastle. He was born October 8th, 1745, at the time when the insurgents under Charles Edward were advancing into England. He was fortunate in his first teacher at the Grammar School of Newcastle, and after an honourable career at Corpus Christi College, Oxford, he became a Fellow of University College. At Oxford he remained until 1799, and filled several College and University offices with great distinction. Eleven years before he finally quitted the University, he had been elected a member of 'The Club,' which Johnson and Burke had made famous. He attached himself to the Doctors' Commons bar, and rapidly rose into eminence as an advocate. Promotion followed in due course. In 1798 he became Judge of the Admiralty Court. In 1801 he was elected member for the University of Oxford, and retained the seat until his elevation to the peerage in 1821. In 1828 he retired. The last part of his life was clouded by imbecility. He died in 1836, in his ninetyfirst year.
Lord Stowell, as an authority in the particular branch of the law with which he was conversant, stands unrivalled. His judgments have been praised by those most qualified to pronounce an opinion, as masterpieces of sagacity and penetration. His grasp of principles is comprehensive. He possesses, moreover, the power of seizing on the essential points in cases abounding in detail, and of presenting the main features of an intricate question in a way which the most careless or unlearned reader can
easily comprehend. His style, though sometimes diffuse, is always elegant and graceful. He was familiar with the masters of English prose, and it is his especial distinction to have woven into the fabric of his Judgments, passages which will bear comparison with many of the best known specimens of our literature.
1. The Contract of Marriage.
MARRIAGE, in its origin, is a contract of natural law; it may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind. It is the parent, not the child, of civil society, Principium urbis et quasi seminarium Reipublicae. In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil consequences. In most civilized countries, acting under a sense of the force of sacred obligations, it has had the sanctions of religion superadded: it then becomes a religious, as well as a natural, and civil contract; for it is a great mistake to suppose that, because it is the one, therefore it may not likewise be the other. Heaven itself is made a party to the contract, and the consent of the individuals, pledged to each other, is ratified and consecrated by a vow to God. It was natural enough that such a contract should, under the religious system which prevailed in Europe, fall under ecclesiastical notice and cognizance, with respect both to its theological and its legal constitution; though it is not unworthy of remark that,' amidst the manifold ritual provisions, made by the Divine Lawgiver of the Jews for various offices and transactions of life, there is no ceremony prescribed for the celebration of marriage. In the Christian Church marriage was elevated
in a later age to the dignity of a sacrament, in consequence of its divine institution, and of some expressions of high and mysterious import respecting it contained in the sacred writings. The law of the Church, the canon law (a system which, in spite of its absurd pretensions to a higher origin, is in many of its provisions deeply enough founded in the wisdom of man,) although, in conformity to the prevailing theological opinion, it reverenced marriage as a sacrament, still so far respected its natural and civil origin, as to consider, that where the natural and civil contract was formed it had the full essence of matrimony without the intervention of the priest; it had even in that state the character of a sacrament; for it is a misapprehension to suppose, that this intervention was required as matter of necessity, even for that purpose, before the Council of Trent.-Judgments in the Consistory Court.
2. Places, and Rites, of Sepulture.
THE practice of sepulture has also varied with respect to the places where performed. In ancient times, caves seem to have been in high request-then gardens, or other private demesnes of proprietors-inclosed spaces out of the walls of towns-or by the sides of roads (siste viator)—and finally, in Christian countries, churches and church-yards, where the deceased could receive the pious and charitable wishes of the faithful, who resorted thither on the various calls of public worship. In our own country, the practice of burying in churches is said to be anterior to that of burying in, what are now called, church-yards, but was reserved for persons of pre-eminent sanctity of life. Men of less memorable merit were buried in inclosed places not connected with the sacred edifices themselves. But a connection, imported from
Rome by Cuthbert, Archbishop of Canterbury, took place about the year 750; and spaces of ground adjoining the churches were carefully inclosed, and solemnly consecrated and appropriated to the burials of those who had been entitled to attend divine service in those churches; and who now became entitled to render back into those places their remains to earth, the common mother of mankind, without payment for the ground which they were to occupy, or for the pious offices which solemnized the act of interment.
In what way the mortal remains are to be conveyed to the grave, and there deposited, I do not find any positive rule of law, or of religion, that prescribes. The authority under which the received practices exist, is to be found in our manners, rather than in our laws-they have their origin in natural sentiments of public decency and private affection-they are ratified by common usage and consent; and being attached to a subject of the gravest and most impressive nature, remain unaltered by private caprice and fancy, amidst all the giddy revolutions that are perpetually varying the modes and fashions that belong to the lighter circumstances of human life.-Judgments in the Consistory Court.
3. The Story of an Unhappy Marriage.
THE truth of the case, according to the impression which the whole of it makes upon my mind, is this:-Two persons marry together; both of good moral characters, but with something of warmth, and sensibility, in each of their tempers; the husband is occasionally inattentive; the wife has a vivacity that sometimes offends and sometimes is offended; something like unkindness is produced, and is then easily inflamed; the lady broods over petty resentments, which are anxiously fed by the busy whispers of