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

humble confidantes; her complaints, aggravated by their reports, are carried to her relations, and meet perhaps with a facility of reception, from their honest but well-intentioned minds. A state of mutual irritation increases; something like incivility is continually practising; and, where it is not practised, it is continually suspected; every word, every act, every look, has a meaning attached to it; it becomes a contest of spirit, in form, between two persons eager to take, and not absolutely backward to give, mutual offence; at last the husband breaks up the family connection, and breaks it up with circumstances sufficiently expressive of disgust: treaties are attempted, and they miscarry, as they might be expected to do, in the hands of persons strongly disaffected towards each other; and then, for the very first time, a suit of cruelty is thought of; a libel is given in, black with criminating matter; recrimination comes from the other side; accusations rain heavy and thick on all sides, till all is involved in gloom, and the parties lose total sight of each other's real character, and of the truth of every one fact which is involved in the cause.

Out of this state of darkness and error it will not be easy for them to find their way. It were much to be wished that they could find it back again to domestic peace and happiness.-Judgments in the Consistory Court.

4. On Western and Eastern Society.

WHEREVER even a mere factory is founded in the eastern parts of the world, European persons trading under the shelter and protection of those establishments, are conceived to take their national character from that association under which they live and carry on their commerce. It is a rule of the law of nations, applying peculiarly to those countries,

and is different from what prevails ordinarily in Europe and the western parts of the world, in which men take their present national character from the general character of the country in which they are resident; and this distinction arises from the nature and habit of the countries. In the western parts of the world alien merchants mix in the society of the natives; access and intermixture are permitted; and they become incorporated to almost the full extent. But in the East, from the oldest times, an immiscible character has been kept up; foreigners are not admitted into the general body and mass of the society of the nation; they continue strangers and foreigners as all their fathers were-Doris amara suam non intermiscuit undam; not acquiring any national character under the general sovereignty of the country, and not trading under any recognized authority of their own original country, they have been held to derive their present character from that of the association or factory, under whose protection they live and carry on their trade.-Cases determined in the High Court of Admiralty— The Indian Chief.

5. Duty of the Judge in Questions of International Law.

I TRUST that it has not escaped my anxious recollection for one moment, what it is that the duty of my station calls for from me; namely, to consider myself as stationed here, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nations holds out, without distinction to independent states, some happening to be neutral and some to be belligerent. The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of

« VorigeDoorgaan »