MAXIM XIX.

Consensus non concubitus facit matrimonium: (6 Co. 22.)— Consent not concubinage constitutes marriage; and, Consentire non possunt ante annos nubiles: (Ibid.)—They are not able to consent before marriageable years.

MARRIAGE, under this rule of the civil law, is a civil

:

contract, such contract being the present consent to the present marriage, as differing from the present consent to the future marriage, of the parties; without which consent there can be no valid marriage, but with which consent the marriage is at once complete and indissoluble and to give such consent the parties must be of proper age, as in the latter maxim, otherwise the marriage is void as to such one who is not of such proper age, at his or her election, on attaining such proper age. The marriageable age in this country is of males fourteen, and of females twelve years.

That consent should constitute marriage, is the rule adopted by the whole human race, civilised and uncivilised, and this consent can be controlled only by some infirmity of body or mind. Different countries have different usages with regard to the ceremonies to be performed at the celebration of marriage; but consent is everywhere, and only, absolutely necessary to constitute a natural and legitimate union.

With regard, however, to the rights of persons contracting marriage, and their offspring, to property, and the benefits of the laws of the nation of which they are members, those rights are governed by those laws; and those laws differ more or less in every nation. The law of England, though treating marriage as a civil contract, has at all times (until recently) required, in addition to such contract, the observance of certain religious ceremonies in the celebration of it, the principal of which was that the service should be performed by a clergyman of the

Church of England, and also that the relationship of the contracting parties should be limited within certain degrees of kindred. The prohibited degrees of kindred are those set out in the Book of Common Prayer, and the ceremonies to be observed in the celebration of marriage are those also there set out; and they do now form part of the civil or common law of the country, being such as are observed by the members of the Church of England.

The Legislature has, however, at all times been ready to interfere to relieve the consciences of the weak; and for this purpose many statutes have been passed whereby the ecclesiastical or religious part of the ceremony is rendered unnecessary, and the marriage is, for those persons, simply and truly a civil contract ; subject as to both person and property, however, to the ordinary common and statute laws of the realm.

The law of marriage in Scotland differs materially from that in England. In Scotland the present consent, per verba de præsenti, serious, deliberate, and mutual, constitutes a valid and binding marriage. So does a future promise with a subsequent copula connected with that promise and taking place on the faith of it, per verba de futuro subsequente copula; both the promise and copula must, however, be in Scotland. And this consensus in Scotland may be proved either by evidence of the actual exchange of consent or by the aid of a presumption of law; as, where there is proof of an antecedent promise of marriage, followed by copula which can be referred to the promise, which is a presumptio juris et de jure that at the time of the copula there was matrimonial consent.

6 Co. 22; 2 Bla. Com.; The Queen v. Millis, 10 Cl. & Fin. 534-907; Honyman's Case, 5 Wils. & S. 144; Dalrymple's Case, 2 Hag. 105; Brook v. Brook, 30 L. T. 183; Beamish v. Beamish, 6 Ir. Law Rep. 142; Inglis v. Robertson, 3 Craigie, S. & R. 53; 26 Geo. 2, c. 33; 4 Geo. 4, c. 76; 6 & 7 Will. 4, c. 85; Hoggan v. Craigie, McLean & Rob. 942; Thelwall v. Yelverton, 14 Ir. C. L. Rep. 188; Yelverton v. Longworth, 11 L. T. (N.S.) 118.

MAXIM XX.

Consensus tollit errorem: (Co. Litt. 126.)-Consent takes away error.

THE HE old cases given in illustration of this maxim are—where dower ad ostium ecclesiæ, or ex assensu patris, was made to a woman within the age of nine years; it being by consent of the parties, was good; so, where a venire facias was awarded to the coroner when it ought to have been to the sheriff; and, where the jury came out of a wrong place; yet these irregularities being by consent of the parties, and so entered of record, the trials had thereupon were held good. Whatever is pleaded and not denied, shall be taken as admitted, and the jury cannot find to the contrary; as, if the defendant in an action of covenant does not plead non est factum, the execution of so much of the deed as is on the record is admitted. Suffering judgment by default is an admission on the record of the cause of action; as, in an action against the acceptor of a bill of exchange, the defendant, by suffering judgment by default, admits a cause of action to the amount of the bill.

On the sale of lands and tenements, whenever any third person having any right or title to such lands or tenements when about to be sold, knowing of his own title and of the sale, neglects to give the purchaser notice thereof, he shall never after be permitted to set up such right to avoid the purchase; for it was an apparent fraud in him not to give notice of his title to the intended purchaser; and in such case infancy and coverture shall be no excuse. Again, where a judge acts in a matter not within his jurisdiction, the parties attending and consenting, or not. objecting, are bound by his decision; as, where a judge made an interpleader order which he had not authority to make without consent, and there was no express consent, but the parties attended the hearing and making the order without objection, it was held,

that they by their conduct must be taken to have consented to abide by his decision.

The practice of the courts, both of law and equity, has also at all times been in accordance with this rule, as a convenient and proper mode of settling disputes. It is in the nature of a contract between the parties, and one which the courts will not willingly disturb, and indeed will not disturb, if injury or loss has been or is likely to be sustained by one or other of the parties in consequence of such consent; and with regard to which it may be said, "Modus et conventio vincunt legem." And indeed, where the agreement does not violate any positive rule of law, nothing can be more consonant with justice and natural equity than that all parties should be permitted, by acquiescence or positive agreement, to settle their disputes without being required to observe any particular form of procedure, and according to their own free will, and that, having so settled them, should be bound thereto.

Consent of the parties will cure error in proceedings for want of form or other irregularity, but it will not cure a nullity or an illegality. Consent is as much given in standing by without objection as in actual expressed assent. This rule should be cautiously observed, as in all proceedings, legal or otherwise, where consent or refusal is required, in the absence of positive refusal, consent will be implied; as, Qui tacet consentire videtur ubi tractatur de ejus commodo"-He who is silent seems to consent where his advantage is under consideration; and, "Qui non improbat, approbat"-He who does not blame, approves.

3 Inst. 27; Plowd. 48; Jenk. Cent. 32; 5 Co. 36, 40; Co. Litt. 37, 126, 294; Shepp. Touch. 35, 40; Savage v. Foster, 9 Mod. 38; Green v. Hearne, 3 T. R. 301; East India Company v. Glover, 1 Stra. 612; Martin v. Great Northern Railway Company, 16 C. B. 179; Fernival v. Stringer, 1 B. N. C. 68; Andrews v. Elliott, 6 E. & B. 338; Lawrence v. Willcock, 11 A. & E, 941; Harrison v. Wright, 13 M. & W. 816; Carne v. Steer, 5 H. & N. 628 ; Murish . Murray, 13 M. & W. 56.

MAXIM XXI.

Contemporanea expositio est optima et fortissima in lege: (2 Inst. 11.)—A contemporaneous exposition is the best and strongest in law.

WHERE the language of a document, of whatever descrip

tion, is doubtful, its meaning is best understood by reference to, and consideration of, the circumstances attending its original formation.

All deeds, wills, contracts, statutes, &c., are made to effect some particular object, existing and in view of the parties at the time they are made; and the circumstances attending their creation are, therefore, the best guides to their interpretation. Where, however, the language of the instrument is in itself clear and distinct, and capable of bearing a rational construction, no extrinsic circumstance of time, place, person, or thing will be permitted to be adduced in aid under this maxim; for that would be to make a contract, &c., for the parties which, it plainly appeared, they themselves had not made.

The mode of construing our Acts of Parliament is the best illustration of this maxim; and it is, according to Lord Coke, and as since adopted, as follows :—' -To consider what was the common law before the Act, what the mischief or defect to be remedied, and what the remedy Parliament had resolved to adopt to cure the mischief or defect. The true reason and remedy whereof being ascertained, such construction should be made as will suppress the mischief and advance the remedy; avoiding and suppressing subtle inventions and evasions, advanced pro privato commodo, and giving life and vigour to the remedy proposed pro bono publico. The preamble of a statute usually gives, or ought to give, this necessary information, and where it does so it forms part of the Act for the construction of it. unlearned in the law, it is absolutely necessary that he should

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