It need hardly be said that English law considers the pecuniary loss only, in giving damages for defamation.

By Scotch law marriage is a consensual contract requiring no particular solemnity nor even written evidence, but deliberate and unconditional consent alone. There is no absolute necessity for publication, or solemnity, or celebration, or particular place or time of celebration1. Marriages may be regular, clandestine or irregular. Certain forms defined by statute have to be observed in order to constitute what is called a regular marriage. A regular marriage is one celebrated by a clergyman before two witnesses after the publication of banns or notice to the Registrar. It may be celebrated in a private house, at any hour of the day or night, and no particular form of words is necessary. A marriage celebrated by a clergyman without publication of banns or notice to the Registrar is called a clandestine marriage, and both the parties and the clergyman are liable to penalties. The marriage, however, is perfectly valid. A marriage may also take place by mere consent without a clergyman. Such a marriage is called an irregular marriage. It may be constituted (1) by declaration de praesenti before witnesses or by written acknowledgement of the parties, or (2) by promise subsequente copula, or (3) by cohabitation with habit and repute, or in other

1 In England till 1753 the contract of marriage was as little encumbered with forms as in Scotland. Hence arose the notorious Fleet' marriages, which became so great a scandal, that in 1753 the Act 26 Geo. III. c. 33 was passed with the view of putting an end to them. A number of clergymen who were confined in the Fleet prison for debt, supported themselves by marrying any couple who applied to them, without licence or banns. The clergyman was liable to a penalty of £100, and to suspension, but the marriage was good. The Fleet clergy were not likely to be deterred by fear either of the penalty or the suspension. They had nothing to lose, and the marriage was valid whether the clergyman was suspended or not. Many of the marriages were entered into by unmarried women or widows, who wished to transfer the burden of their debts to their husbands. The parsons were quite willing to manipulate the register if the parties so desired. After the abolition of the Fleet marriages, the registers, such as they were, passed from hand to hand till 1821, when they were purchased by Government. Prior to the purchase by Government the possessors of many of these registers made a business of advertising them as open to the search of parties interested. Some curious entries are to be found. One parson records that the parties stole my clothes-brush.' In the case of another marriage, 'the woman ran across Ludgate Hill in her shift,' in pursuance of a popular but erroneous belief that a man was not liable for his wife's debts if he married her in this dress. In another instance there was a 'Mare upon Tick.' In yet another case the supposed husband was discovered after the ceremony was over to be in person a woman.' In case of a successful imposture of this kind the wife got rid of her debts without being burdened with a husband. In a certain bigamy trial it was sworn by one of the witnesses that anybody might have a certificate at a certain house for half-a-crown without any ceremony of marriage whatever, and have their names entered in the book for as long time past as they pleased. The parties were sometimes married by their Christian names only. It is said that heiresses were occasionally abducted and married by force. The clergymen were often men of good breeding and education. One Fleet parson, Dr. Gaynam, popularly known as 'the bishop of Hell,' appearing as a witness in a bigamy trial, and being asked if he was not ashamed of his vocation, replied, with a bow, Video meliora, deteriora sequor.' In 1753, by the passing of the Act 26 Geo. III. c. 33, these Fleet marriages came to an end.

words by the parties living together as reputed husband and wife. In the case of the first class of irregular marriages, the consent of both parties must be clearly expressed or implied. Thus if A says in presence of witnesses, 'this is my lawful wife,' and she curtsies in assent, this is sufficient. The consent may also be implied from such conduct as the man's living with the woman, or putting her at the head of his table. It is not clearly settled whether a promise cum copula sequente amounts to marriage, or is merely a ground for a suit to declare marriage. It is probably the latter. Such was the opinion of Lord Fraser, one of the highest authorities on Scotch matrimonial law. In order to constitute marriage by cohabitation with habit and repute, there must be cohabitation as well as repute, and the parties must mean and intend marriage, and be free from any legal impediment to marry 1.

The ease with which the matrimonial knot can be tied in Scotland led to the notorious Gretna Green marriages, which were such a source of trouble to parents in the good old days. There were several villages on the Scottish border to which fugitive English lovers were wont to direct their flight, but Gretna Green was of course the most notorious. The parties simply admitted before witnesses that they were husband and wife. The officiating functionary, who at Gretna Green was generally the blacksmith, signed a certificate of marriage which was also signed by two witnesses, and the marriage became by Scotch law absolutely indissoluble. The statute 19 & 20 Vict. c. 96 put an end to these Gretna Green marriages, by requiring that one of the parties should have resided in Scotland for twenty-one days 1.

A curious custom existed on the borders of Scotland in former times known as 'handfasting.' Readers of Scott's romance, The Monastery, will remember the description of the custom given by the Baron of Avenel (chap. xxv): 'We bordermen are more wary than your inland clowns of Fife and Lothian-no jump in the dark for us-no clenching the fetters around our wrists till we know how they will wear with us-we take our wives, like our horses, upon trial. When we are handfasted, as we term it, we are man and wife for a year and a day, that space gone by, each may choose another mate, or at their pleasure may call the priest to marry them for life-and this we call "handfasting." The custom arose partly from the want of priests. While the convents subsisted, monks were detached on regular circuits through the wilder districts to marry those who had lived in this species of connexion.

2 The looseness of Scottish notions about marriage is in strong contrast to the ideas prevalent in England. In spite of the permission accorded by law to celebrate marriages in dissenting places of worship, a very large proportion of English dissenters prefer to be married by the clergy of the Anglican Church. The clergy, it is said, perform about seventy per cent. of English marriages. There is a suggestion of permanency about a marriage in the Established Church, which a marriage elsewhere lacks. It is an involuntary homage paid to the antiquity of an institution which has nearly twenty centuries of life behind it. It was so even when the Church of England was disestablished during the Commonwealth. Such a sturdy nonconformist as Oliver Cromwell was not free from this prejudice. Clarendon in his History of the Rebellion (bk. xv, par. 51), writing of the marriage of Cromwell's daughters, relates that though they were married first according to

6

In Scotland, the husband's adultery alone, without cruelty, entitles the wife to divorce. Wilful desertion, by either party, if obstinately persisted in for four years, is also a ground for divorce in Scotland. In the eye of Scotch law mutual guilt is no bar to a divorce. It entitles the parties to mutual divorces, the effect of which appears to be that neither party can claim any interest in the estate of the other. In granting divorce to parties who are mutually guilty, the Scotch law differs not only from the English law, but from the Canon law and the Roman law as well. If a respondent has been divorced for adultery with a co-respondent named in the decree of divorce, the respondent and co-respondent cannot subsequently marry. This rule of law is not confined to Scotland. According to the Scotch case of Beattie v. Beattie in 1866, it is or at any rate was the law of Lower Canada. It is well known that by Scotch law, as by the Roman law, the child is legitimatedby the subsequent marriage of parents. In the reign of King Henry III an effort was made to import this excellent rule into the English law, but the barons of England refused. Nolumus leges Angliae mutari,' said they. Even in cases of bigamy, bona fides in one of the parents, though it does not render the marriage valid, seems to make the children legitimate. In Scotland a man can only dispose of a limited part of his moveable property by will. He cannot pass over his wife or children in the testamentary disposition of his moveable estate. The wife is entitled to her jus relictae, being one third or a half of the moveable estate, according as there are children or not, and the children are entitled to their legitim or 'bairn's part,' being one third or a half, according as there is a widow or not. A similar rule seems to have prevailed at one time in many parts of England. The shares of the wife and children were called their 'reasonable parts,' rationabiles partes. There is some doubt as to whether the rule was part of the common law or whether it was a custom peculiar to certain counties. Glanvil, Fracton, Fitzherbert, and Sir Henry Finch all speak of it as part of the common law of the land. Lord Coke, on the other hand, asserts that there must be a custom alleged in some county to enable the wife and children to the writ de rationabili parte bonorum, and that it had been so resolved by parliament. Lord Coke is probably correct. The custom continued in use in the province of York, the principality of Wales, and the city of London till modern times. By the statute I Vict. c. 26, however, it was enacted that

the rites and ceremonies then in use, they were afterwards privately married by Episcop al ministers according to the form of the Book of Common Prayer, and this with the privity of Cromwell, who pretended to yield to it in compliance with the importunity and folly of his daughters.'

every person should be at liberty to devise and bequeath all his real and personal property as he pleased.

In Scotland there is no division into felony and misdemeanour. Grand juries are unknown, except in cases of treason. It is the duty of the public prosecutor to see that there is a prima facie case against a prisoner. Coroners are also unknown in Scotland, but the procurator fiscal, who is a sort of local public prosecutor, makes an ex parte inquiry into any case of suspicious death. The right of private prosecution exists, but is seldom or never exercised. Every prisoner, however poor, is entitled by statute (Scots Statutes, 1587, c. 91) to have a counsel to defend him. If the prisoner has not previously applied for counsel, the Court will, as a matter of course, assign one to him, as soon as the diet is called. If no counsel are present, the sheriff of the county, who is always a counsel, and generally in active practice, and who must give his attendance at circuit, is named by the Court to defend. The jury numbers fifteen in criminal cases. A majority is sufficient to convict a prisoner. The jury may return three verdicts, ' guilty,'' not guilty,' and 'not proven.' The verdict of 'not proven' does not, as many people seem to think, allow of the prisoner's being brought up for trial on the same charge a second time. After the verdict of not proven is given, the matter becomes res judicata, and further proceedings on the same charge are barred.

J. A. LOVAT-FRASER.

THE

THE INSTITUTE OF INTERNATIONAL LAW.

HE Institute of International Law was holding its fifteenth session when the last number of this REVIEW was appearing. As its next meeting is to be held at Cambridge, a short account of its origin and work may be welcome to those who are interested in the Law of Nations and the efforts made to bring states to a wider and more effective respect for the rules and proprieties of conduct which civilized nations are agreed in considering right.

The Institute came into existence in 1873. Dr. Lieber, the American publicist, M. Moynier, a distinguished Genevese, and M. Rolin-Jaequemyns, then a well-known Belgian advocate, afterwards Minister of the Interior at Brussels, and at present legal adviser to the King of Siam, conceived its formation immediately after 1870, at a time when the horrors of war were still vividly present to men's minds, and the desirability of fixing the humane principles which should govern it when inevitable, and of seeking in common the means of avoiding or settling disputes where possible without it, struck publicists in Europe and America as an object worth a great effort. M. Rolin-Jaequemyns, who had then just founded the Revue de Droit International, took the lead with singular energy. He communicated confidentially with twenty-two of the best-known publicists of Europe, and set forth his scheme of a 'conférence juridique internationale' in view of creating a 'corps permanent ou académie pour l'étude et le progrès du droit international.' The conference was held at Ghent, on September 8, 1873, and the Institute was the result. All precautions were taken in the rules framed for its government to preserve the international character of the body, and though the language adopted as that of the deliberations was French, the meetings of the Institute were to take place in different States of Europe. Its next meeting, in 1874, took place at Geneva. It has since met at the Hague, Zürich, Paris, Brussels (twice), Oxford, Turin, Munich, Heidelberg, Lausanne, and Hamburg. It has met twice at Geneva, Brussels, and Paris.

The idea of the founders of the Institute was not that by appeal