CONSENT. When we state that C. is the foundation of all contracts and legal obli gations of every kind. we state a proposition often in the mouths of lawyers, but the vast magnitude and importance of which is by no means always apparent even to them. The doctrine that the free C. of the parties bound, and not the will of any earthly legis lator, or the form in which that will is expressed, constitutes the binding element in contracts, flows as an inevitable logical consequence from the doctrines of personal and political freedom. And yet we continually forget it, and not only speak but act at variance with it. We talk of persons being married by the priest, and divorced by the proctor, whereas it is obvious that a valid marriage, like every other contract, can be made and unmade only by the contracting parties; and that all that either civil or eccle siastical authority can do, is to ascertain, at the instance of one or other of them, whether it has been made or unmade. From overlooking this point of view, differences between legal systems, which are merely external, are often supposed to be funda mental. The law of Scotland, which admits several ways of proving matrimonial C. which the law of England rejects, is on this account supposed to differ from it in principle. The only question between them, in reality, is, as to whether the circumstances which the law of Scotland admits in proof of the existence of C. do or do not prove it in point of fact. If it be true that the only means by which it can be ascertained that two persons do agree to be man and wife, is by their declaring their agreement either before a clergyman or before a parliamentary registrar, then the law of England does right in rejecting all other evidence. If, on the contrary, the fact can be established, as is
believed in Scotland, by other means, such as a declaration before witnesses, or an exchange of writings, then the law of Scotland is right in admitting these means of proving it, and making the question of marriage or no-marriage, as it does, one of simple proof. The difference between the two systems is thus seen to be not one of principle, but one of expediency—a question, not in the law of marriage, or of con tracts, which is the same in both countries, and in every country, but in the law of evidence.
Yet so strangely illogical are mankind, that in Scotland it is still asked whether or not a marriage can be constituted, in certain circumstances, without a declarator of the court of session; and in England, until very recently, no marriage could be dissolved without an act of parliament. The practical question as to how C. shall be proved, is one surrounded at all times with the greatest difficulty. That its absence may be assumed in the case of all persons of imperfect understanding, and, consequently, that the power of contracting should be denied to idiots, madmen, and pupils, helps us but a very small way. The real difficulty consists in distinguishing, in the case of grown and sane men, between such real C. as may be safely assumed to be a deliberate act of the reason, taking that word in its widest sense, and such apparent 0. as may have had its motive in caprice, passion, ignorance, or any temporary and accidental aberration of mind.