nistered in Greek. Sometimes an interpreter was employed, who, being out of the common stamp, and unskilled in the written Irish, was unable to give anything like a just translation. He did, however, give a paraphrastical clue to the meaning, the result of which was to make it much less palatable. What they did not understand they had no objection to sign, when required to do so by their masters; and my poor countrymen have a notion, that if the book be not actually kissed, the conscience is quite safe. Now there are two modes of evading perjury according to their spiritual logic-one is to approach the book to the mouth, but not touch it with the lips-the other to kiss the thumb. Hence nothing is more common in our Courts of Law, than to hear attorneys reprimand a witness for similar evasion. "Kiss the book, sir-not your thumb! My lord, that fellow is evading the oath!" In the particular case here recorded, as it was nobody's business to make objections—and the clerk of the crown or his deputy had too much business on his hands to lengthen it by unnecessary scruples, the boys were allowed to kiss as they pleased. Can it be necessary to do more than state this too faithful account of fortyshilling electorships in Ireland? Would it not be an insult on intelligence and integrity to employ words in proving what is so obvious a truth, that the measure was conceived in folly, born in ignorance, nursed in selfishness, and has grown up in iniquity? All, it is true, are not involved in the same sink of reproach; but that too many are, he knows little of Ireland who will not amply testify. Theory, I am aware, will never want sounding periods, and specious sophisms, to vindicate any measure whose plausible tendency is to give power to The People; but practice is the test of theory, and without the imprimatur of experience, her projects are but the baseless fabrics of a vision, with this difference, that they are not quite so harmless. One would think that the road to a just and fair representation of the landed interest of Ireland lay open to every moderate understanding. Actual possession of a competent portion of land, implying at once an independence of condition, and a degree of intelligence above the ranks of plebeian ignorance, and servility, is the principle on which the right of voting was originally established, and by which it should be regulated still. Will the patriotic advocates for the continuance of this blessed system in Ireland, find precedent or justification for it in the pages of that Magna Charta to which they are so fond of recurring? They know they will not. All I ask is a recurrence to the principle and the practice of their own great æra of political liberty. An equivalent for the rate of that period cannot be fixed on a lower scale than twenty pounds, and by such freeholders alone should county representative ever be returned. But I will do more towards enlarging and extending the elective franchise than those senators are probably aware of, for though Ireland is ever in their mouths, they are still strangers to her true interests and her real situation. In the present system, exclusive of what I have already observed, anomalies exist of a nature not less unjust than preposterous. Save and except the possessor of an estate in fee simple, no man can vote who has not one or more lives in the lease by which he holds his land. Thus A. B., possessed of an interest in lands of five hundred pounds per annum, under a lease of 99, or (as is often the case here) of 999 years, is not entitled to vote for a representative; while C. D., the petty occupier of a cabin and a single acre, though utterly ignorant of the language spoken in the senate, and though not worth one shilling over and above his lawful debts, shall march into an election-court, and have as efficient a voice as a gentleman of a thousand a-year fee simple estate!! And why? because he has produced at the registry sessions a scrap of paper intimating that his landlord has given him a forty-shilling freehold, during the life of Joan Carthy, widow, aged 77 years!! You will say, perhaps, that this is impossible; and truly, I should say the same thing, but that I know it to be true. A gentleman in this neighbourhood holds property in land to the amount of 1700 acres, on which, though there are numerous inhabitants, and some of them respectable, there is not a single freeholder, because it is held by a very old lease of 999 years! These things surely ought not to be so. I think no person should be excluded from voting who has real property in land to the amount required, and whose lease secures him a reasonable duration, say of 15 or 20 years. It is rather a firmer hold than that of the above-mentioned fortyshillinger, whose old lady's life could not be valued at more than two or three years' purchase. If the legislature wish, as no doubt they do, to put the elective franchise into hands of something like respectability, the present system must un questionably be changed. With an CORK, June 1, 1827. Edin. June 12, 1827. SIR,-The following observations on some particulars relative to the Scotch Law of Marriage, were written in April last, in consequence of the discussion which took place on the subject, in the course of the trial of Mr Wakefield at Lancaster. The evidence which was then given, as to what the law of Marriage in Scotland is, by the respectable counsel who was examined for Mr Wakefield, and the views which have since been expressed on the subject in an article in your Magazine for May, as well as the doctrine which has still more recently, in the course of the discussion in both Houses of Parliament, been assumed to be law in Scotland, appear to me to be contrary, both to the legal principles and authorities of our law; and therefore, though my observations were not written with a view to publication in any shape, I now send them to you, that you may, if you think proper, give them a place in your columns. In Scotland, marriage is regarded merely as a civil contract, which is constituted by the interposition of the consent of parties. Consent is the essential and indispensable quality of the contract; and if the parties are capable of contracting marriage, and there is sufficient evidence of the interposition of that consent, that is quite enough to constitute a marriage. It does not require the sanction of the church, or any civil ceremony, to give it validity; nor is it requisite that the consent should be adhibited in any set form of words. The contract may legally be entered into by the parties exchanging missive letters, whereby they explicitly acknowledge having taken each other for husband and wife -or the consent may be interchanged in presence of witnesses; or a marriage SENEX. may legally be constituted by facts and circumstances, as by the parties living together, and acknowledging each other as man and wife. It is the unquestionable evidence of consent, in whatever form given, that is essential to the constitution of the contract; and it is merely because, in marriages which are performed by clergymen in presence of their congregations, there is the most undoubted proof of that consent which the law requires, that they are held to be beyond all question valid and effectual. Copula, or carnal knowledge, is not required to constitute marriage; that is only the consummation of it. The legal maxim is, Consensus, non concubitus, facit matrimonium. But though this, the most solemn of all contracts, is perfected solely by consent, and may thus easily be entered into, it will be observed that the consent which the law requires, implies the existence of some essential qualities, and the absence of other qualities, in order to render the marriage binding. In the first place, the law requires that the parties be capable of consenting; for one who cannot consent cannot marry; and therefore idiots, furious persons, and pupils, are incapable of marrying. The age of pupilarity in Scotland is twelve in females, and fourteen in males, after the attainment of which, the sexes are respectively presumed to be capable of entering into the married state, and that, too, even without the consent of parents or guardians. In the second place, the consent must be true and genuine, not nominal and apparent only. An idiot may give an apparent consent; but if in truth he is incapable of giving a real and genuine consent as a party to any contract, it would be absurd to hold him bound, more especially to a contract of such magnitude and importance as that of marriage. Accordingly, the Court of Session has found, where an idiot had entered into a marriage, and a child had been born before the validity of the marriage was challenged, and where, too, the idiot had not been previously cognosced; that the marriage was nevertheless null and void.—Blair v. Blair, June 1748. In the third place, the consent must be full, free, and explicit, such as to leave no doubt of the deliberate and solemn intention of the parties to enter into the married state with each other, independently of the mere form or manner of giving the consent. 1st. A marriage is not binding, how ever formal the manner in which the consent has been interposed, if it can be shown that it was given by either of the parties through compulsion, or in consequence of such a degree of violence as would compel the assent of a person of ordinary consistency. 2d. A marriage is not binding where the consent to enter into it has been given through Fear; and in this term, I apprehend, there is included not merely the fear of violence to the individual herself, but of violence or even disgrace to those with whom she is most nearly and dearly related. Fear may be induced in a vast variety of ways, which it is unnecessary to mention, independently of the mere fear arising from actual or threatened violence to the person of the individual. Lord Stair says, "Just fear is inferred not only by positive acts inferring constraint, but by restraint, as by long and unlawful imprisonment, or by hindering of necessary food, sleep, rest, clothing, or by affording only corrupt meat and drink, &c." Consent given under such circumstances cannot be considered free and deliberate; and therefore, to hold that the party who gave it, is, in any contract, bound as effectually as if she had given her free and deliberate consent, appears to be contrary to every principle both of law and reason. 3d. A marriage is not binding when the consent of one of the parties has been obtained by means of gross fraud and imposition. Lord STAIR, the greatest authority in the law of Scotland, says, that Fraud is excepted in all human actions." Mr ERSKINE, in like manner, says, " Marriage is truly a contract, and so requires the consent of the parties, of which infra b. iii. tit. 1. $16." Of the essentialia of that consent which is necessary to give validity to marriage, and every other contract, he says, in the passage to which he before expressly refers," There can be no consent where the words or writings by which it is said to be expressed, are drawn from either of the parties by fraud, against his real inclination. Fraud or dole is defined a machination or contrivance to deceive; and when it appears that the party would not have entered into the contract had he not been fraudulently led into it; or, as it is expressed in the Roman law, ubi dolus dedit causam contractui, he is justly said not to have contracted, but to be deceived. Hence, if he who has been guilty of the fraud, shall sue for performance, the other party may be relieved by an exception of dole," &c. The consent to marry, therefore, must be full, free, and deliberate. In other words, it must not have been obtained by force, fear, or gross fraud. Lord Stair goes even farther; for he says that "Error also in the substantials makes void the consent, unless future consent intervene, as it did in Jacob, who supposed that he had married and received Rachel, but, by mistake, got Leah, yet was content to retain her, and serve for the other also." Fraud and error are commonly united; and accordingly, in treating of what his Lordship calls "the congenerous alledgeances," errore lapsus et dolo circumventus, he says, "it were a hard thing to determine whether Jacob were errore lapsus or dolo circumventus, when Leah came to his bed instead of Rachel; but certainly he might have repudiated Leah, as not being his wife, if he had not ratified the marriage by continuing therein; and no doubt he was not only dolo cireumventus by Leah and her father, but he was also errore lapsus; yet it was by his own fault; for though she came to him in the dark, yet if he had but spoken to her, her voice could not but have discovered who she was to him, who had so long conversed with her." Lord BANKTON goes so far as to say, that "when a man ignorantly marries a woman that is with child to another at the time, it would seem lawful for him to insist that the marriage be declared void, as being fraudulently contracted on the part of the woman. This is conform to the Mo saic law, the civil law, and that of other Protestant countries at this day; and there is little doubt of our following these authorities strongly founded on the common sense of mankind," &c. It is not, however, I apprehend, every species or degree of fraud that will annul a marriage. A man believing the wife he had chosen to be chaste, and she turns out otherwise; or that she was possessed of a large fortune, which turns out comparatively nothing, is nevertheless bound by the marriage; for these are qualities which are not essential to the existence of the contract; and were such circumstances as morals, fortune, or temper, held sufficient to annul a marriage, it would be in the power of either party to break the connexion at any time, and involve society in the most calamitous confusion. Whether that full, free, and deliberate consent which the law requires to constitute a valid marriage, has been interposed, is a question of circumstances. What is sufficient proof that has been given in one case, may not be sufficient in another. For example, when the contracting parties are both of mature age, and of course less liable to compulsion, fraud, or fear, very different evidence will be requisite to set the marriage aside from what will be sufficient for that purpose when one of the parties is in the prime of life, and knowing in the ways of the world and arts of fraud and deception; and the other so young and inexperienced as merely to be legally capable of entering into the bonds of matrimony-the more especially if the minor be the female. It is a fit question for a jury to decide, in each particular case, and on a complex view of all its circumstances, whether the consent to marry has been given with all the essential qualities which are requisite, or whether, though the form of consent had been given, it was not extracted by means of fraud and circumvention, fear, or violence, and when in truth there was no real intention or disposition on the part of one of the individuals to enter into the alliance. The jury must be satisfied not merely of the existence of fraud, but that the fraud, fear, or compulsion was of such a nature and extent as to exclude the idea of deliberate consent on the part of one of the individuals to become the wife or husband of the other. Each of the grounds which have been mentioned, if fully and distinctly proved, will, I apprehend, be sufficient to exclude the idea of a true consent having been given, and therefore sufficient to set a marriage, obtained by its means, aside. But it may happen that the consent has been obtained by the instrumentality of more of these qualities than one, through a combination of them, and therefore, though any one, per se, might not be sufficient to set aside the marriage, the whole taken together would have that effect. There may be restraint to a certain extent-fear, though not of violence to the person, yet for the reputation, honour, and happiness of parents, forgery and gross fraud, all combined, to obtain consent; and upon a complex view of the whole circumstances, it may appear clear, that but for the use of such a combination of illegal means not even the form of consent would have been given. And if, so soon as the means used were discovered by their victim, she cut the connexion, there is an additional circumstance of proof of the consent having been nominal, and not real and true. Accordingly, it is upon a complex view of the whole circumstances of each particular case that the Court decides; and in order to show the length to which our Judges have gone in setting aside marriages where the consent was apparently most solemnly adhibited, and where there was no allegation even that force or violence had been used, I shall quote a case which is reported by Lord Kaimes. "CAMERON v. MISS MALCOLM, 29th June, 1756. "Cameron of Kinnaird, living in the neighbouring of Mrs Malcolm, widow of James Malcolm, merchant, cast his eyes upon her daughter, Miss Malcolm, A CONSIDERABLE FORTUNE, as an advantageous marriage for his son. The two families set out together from Fife, in order to pass the winter at Edinburgh. Upon their landing at Leith, Mrs Malcolm and her daughter were invited to the house of Mrs Cousnen, Kinnaird's mother-in-law. They supped there, and after supper, without any previous concert, a minister was brought in by Mr Cameron, in order to marry his son to the said Miss Malcolm, at that time just turned of twelve years of age. The mother, for what reason was not made clear by the witnesses, left the room. The ceremony went on, and was completed; AND THE MARRIAGE LINES WERE SUB SCRIBED BY MISS MALCOLM AS WELL AS BY YOUNG CAMERON. After this the mother returned, and a bedding being proposed, she struck out, whether dissatisfied with what had been done, or thinking her daughter too young, is uncertain. This occasioned a sort of squabble among them. The mother and daughter went home in a sort of pet, and from that time refused to stand to the marriage. "The Commissaries, upon a declarator of marriage brought before them, found the marriage proved. This oc casioned an advocation on the part of Miss Malcolm, in which the Court of Session were of a different opinion: They remitted to the Commissaries to assoilzie from the declarator of marriage, (that is to say, they found there was no marriage,) and even to find Cameron, the pursuer, liable in expenses." Lord Kaimes observes, that " This was an extreme nice case. That the ceremony of marriage was perform ed, is certain; nor was any force proved, or even alleged, sufficient to render the ceremony ineffectual. And if there was a marriage, however irregular or improper, it was not in the power of any Court to give redress. The Court, however, moved with indignation at so gross a wrong, gave the above-mentioned judgment upon sentiment rather than upon principle. The only legal footing it can stand upon, seems to be what follows:-A girl of 12 years of age is no doubt capable of marriage; but then, as a girl of that age is extremely susceptible of undue influence, and to be unjustly trepanned, a marriage in this circumstance requires more accurate evidence of consent than is necessary betwixt adult persons. The present case is similar to that of a testament on deathbed. A bare subscription in liege poustie, is sufficient; but in extremis, a proof is required of orders given by the testator to write the testament, or, at least, that it was read over to him before subscription.. In the present case, the parties went to Cousnen's house without any design of marriage; 2do, the mother not present at the celebration; 3tio, a squabble the moment the ceremony was over, and some evidence of repentance on both sides; 4to, proved upon old Cameron, that he endeavoured to bribe one Mally Hay to swear to an antecedent courtship, which presumes he was conscious of some defect in the celebration of the marriage. These circumstances laid together, may justly infer a suspicion that matters were not carried on so as to make an effectual marriage; and, therefore, in a case of this extraordinary kind, the Court, I think, took the safest side to refuse to give their sanc tion To THIS marriage." It is true, the learned reporter, in the first part of his observations on the case, says, that the Court gave their judgment more from sentiment than principle; but in the end he arrives at the conclusion, that "the circumstances laid together" may justly infer a suspicion that matters were not correctly carried on so as to make an effectual marriage, and," therefore," his Lordship approves of the judgement of the Court, refusing to sanction the marriage. Now, it will be remarked, that consent was apparently in that case given by one capable by law of consenting; it was admitted that no force or violence was used; and yet, because it ap peared to the Court that "the whole circumstances laid together" did not afford that evidence which is necessary of a true and deliberate consent ha ving been given, the marriage was set aside, and the judgment of the Court of Session was acquiesced in. It is more than probable, however, if the parties had both been adults, that the judgment would have been different. I cannot discover, that the deci sion in the case of Cameron has been held in any subsequent case to have been an erroneous one. On the contrary, a case occurred in 1773, (not reported,) in which the Commissaries and the Court of Session pronounced a similar judgment. Mr Hutchison mentions it in a note to his Treatise on the Office of a Justice of the Peace. After quoting the case of Cameron v. Malcolm, he says, "In the case of Allan, schoolmaster in Edinburgh, against Anne Young in 1773, a similar decision was given. The marriage ceremony had been regularly performed by a clergyman, and the girl turned twelve years of age; but she was under Allan's care as a teacher, and it appeared from the proof, that undue influence and a train of fraud and imposition had been used in order to obtain her consent. No consummation had taken place." It has been said, and that too by |