purpose, it does not necessarily follow, that a marriage so contracted in Syria would be equally incompetent, by the common law; and we trust, that we have offered some not inconclusive reasons for holding, that it might be competent.

2. But another point arises from the judgment in the Exchequer, which, we humbly conceive, is entitled to most grave and serious consideration. Were the proceedings in the House of Lords, in Millis's case, of such a nature, as to bind the House itself, or any subordinate Court, to the observance of any general rule or doctrine in the law whatever? We ask in no captious spirit, but with most deferential feelings to the high authorities concerned; and with an earnest desire to ascertain the safest and best rules of practice, in the administration of the law.

"It is not in the nature of the minds of men, (says Lord Kenyon,) always to see every part of an intricate argument in the same light." Therefore, in the opinions of collective tribunals, differences will sometimes arise: and the votes on a given point may be equally divided. In such a case, different systems of procedure have resorted to very different measures. In the civil law, the decision was for the defendant, or for the minor sum, or for the more favourable object.2 In some tribunals, the president has a casting vote.3 In some, the number of members is augmented; as in the old afforcement of the assize 4; or in a commission of adjuncts to the suppressed Court of Delegates, of which a remarkable instance occurred within our recollection. The Court, at the first hearing, being divided 3 and 3, adjuncts were added; it was then divided 4 and 4; afterwards 7 and 7; and at last, a majority of 10 to 5 being obtained, judgment was given. In the Queen's Bench, when the votes are equally divided, the Judges think it right to state publicly the grounds of their respective opinions, but give no judgment. On writs of error in the Exchequer Chamber or the House of Lords, the course is to affirm the judgment below, on the ground stated in the minutes of

6

5

17 T. R. 580.

3 Voet. Pand. 42. 1. 18.

5 Henshaw v. Atkinson, 1 Lee, 240.

2 Paulus, D. 42. 1. 38.

4 Bracton, 4. 19.

67 T. R. ut sup.

the Queen v. Millis. Let us consider, how this ought, in sound reason, to operate on future cases.

The august assembly of the Peerage sits judicially, as a Court of ultimate appeal, the oracle of all subordinate jurisdictions, to ascertain the law, by which they must be governed. But when the House is equally divided, the oracle is dumb. In the particular case, it declines to interfere, and the cause reverts to the inferior jurisdiction, to be there dealt with according to the wisdom of the lower Court. In this there is nothing remarkable; but it would be strange indeed, if, because the House was equally divided, such division should settle the law, according to the wisdom of the Court appealed from. In Millis's case the majority of the Court below held the conviction wrong; it might have happened that they had held the conviction right, and then the very same division of the House of Lords, which actually took place, would have settled the law directly contrary to what it is now taken to have done. We ask, with great respect, would such a settlement of the law have bound the House itself? If so, the legal oracle is removed across the Irish Channel: and the Four Courts in Dublin are paramount to the judicial supremacy of the Peerage of the Empire.

The judgment of the Lords (if judgment it must be called) was professedly a mere presumption-"Præsumitur pro negante." Suppose the same point of law raised between other parties to-morrow in the Queen's Bench at Westminster, and there decided by a majority the other way. Upon a new writ of error, there would be presumption against presumption. Must the House of Lords be for ever equally divided? And if so, must it stand like Garrick between Tragedy and Comedy, casting an eye alternately at the two rival benches, and sighing "How happy could I be with either?" Or must it alternately discard the Irish Lucy and the English Polly, according as successive writs of error afforded contrary presumptions, in favour of opposite denials? The subject is too grave for levity. If the affirmance in Millis's case is to have the binding effect ascribed to it, the same rule must be applied to every other equal division of the House, in its judicial capacity; and eventually

the casting vote of a single Irish judge (possibly the least learned of a very learned body,) may give law to the empire, even though it should be contrary to the clear and unanimous opinion of the whole English Bench and Bar.

We are not aware, whether the House itself has ever laid down any rule for its guidance, in a case like that we are contemplating. We know not, that it is precluded, by any positive ordinance, or recognised custom, from examining to-morrow a doubt, which it has been unable to solve to-day; or from disturbing a doctrine, which Irish judges may establish, in opposition to the settled law of their predecessors and contemporaries. But if any such regulation or usage exist, we trust, that some noble and learned peer will bring it under their Lordships' revision; so that it may, at all events, be distinctly known, whether an exact equilibrium of the scales of justice, within the House, amounts to a permanent and irrevocable preponderance beyond its walls.

If it shall eventually appear, that the Court of Exchequer was not bound by the proceedings in the Lords; or that the Lords did not mean to lay down the rule, which the learned Barons understood them to have laid down, the remedy of the party aggrieved is simple. On the other hand, if the judgment in Mr. Catherwood's case be wholly unimpeachable, still, as it professedly related to his marriage, only in the character of a marriage de facto, the question of its validity as a marriage de jure remains still open, and the legal remedy is to be sought in the Ecclesiastical Court, which always had, and still has, exclusive jurisdiction of the lawfulness of marriage, when not under a statute, and when the question of its lawfulness is directly in issue. In that Court, there are various kinds of procedure, to which the injured gentleman might resort. If, for instance, he should institute a suit for nullity of marriage, it would be to be seen, whether Dr. Lushington or Sir Herbert Jenner Fust would pronounce for the nullity, independently of the law of Syria, which may be laid out of the present argument. To hold it null de jure, by the law of England, would, we humbly apprehend, be in direct opposition, not only to Lord Stowell, but to every eminent judge of that Bench, to every author of repute in their Courts, and probably to every opinion, which the learned

Dean of the Arches and Judge of the Consistory themselves ever gave on the point, as counsel at the bar.

Finally, if upon the fullest investigation, it shall be found (contrary to the numerous authorities we have cited) that marriages contracted on or beyond the seas, in places where no local law is known, and where an episcopally-ordained minister is not present, are void, both de jure and de facto, we can only call, with the greater earnestness, on members of the Legislature to rescue British jurisprudence from so gross an inconsistency; and to give Her Majesty's subjects in such situations, the same freedom, which the statute law of their country secures to them at home.

ART. IX.-LORD WYNFORD.

THE subject of this memoir was too distinguished a man to fear the biographer. It is not our intention to write his panegyric, far less to use unnecessary censure. We shall endeavour, in this brief sketch, to trace the chief incidents of his life, and point out his main characteristics; but in attempting this it will be our duty to bring into view as well the shadows as the lights.

William Draper Best was born in the parish of Hasselbury Plucknett, near Crewkerne, in the county of Somerset, on the 13th of December, 1767. He was of a respectable family of that part of the country: the early name of which, it is said, was Basset. He was well connected on both sides. His mother was the daughter of Sir William Draper, immortalised as the antagonist of "Junius."1 He commenced his education at Crewkerne school, and was sent to Wadham College, Oxford, at an early age. He was originally designed for the church, and had a view to a fellow

It is to him that the happy Letter VII. is addressed, which thus commences:-" An academical education has given you an unlimited command over the most beautiful figures of speech. Masks, hatchets, racks, and vipers, dance through your letters in all the mazes of metaphorical confusion."

ship; but succeeding, somewhat unexpectedly, by the death of a cousin, to a competent estate, he abandoned all thoughts of taking orders, and chose the law as his profession. He entered himself at the Middle Temple, was called to the bar in 1789, and selected the Home circuit, where he soon obtained practice, and in 1800 took the rank of serjeant, and in 1806 that of king's serjeant. His name occurs first in the Term Reports, in the case of Shakespeare v. Peppin1, a case as to the lord's right to approve, in which it is said Lord Kenyon paid him many compliments on his judicious and learned argument. According to those imperishable records, however, the case seems to have been decided rather by the industry of that great judge than by the merits of the advocate.

As a lawyer Mr. Serjeant Best had no great fame,—as an advocate he stood high. He had even enough of law for use in the common occurrences of nisi prius, and comparing him with his most distinguished contemporaries, though very inferior in this respect to either Gibbs, or Shepherd, or Law, and also to a less profound though sufficient lawyer, Erskine, he stood greatly above Garrow, who was, on the other hand, a far more eminent advocate. Best had many showy, and some useful and even solid qualifications, purely forensic. His activity was unwearied. He was alive, he was wide awake, at every instant of each case, from the cause being called on to the close of the judge's charge, through the whole of which, when not suffered to interrupt, he was by no means a passive listener, for he would, while reading another brief, keep up an intercourse of dumb show with the gentlemen of the jury. But in the management of the case he never slumbered. Naturally of exceeding quick parts, always well acquainted with his brief, never deeming one cause less important or less interesting than another, he gave his client the satisfaction, to all clients, as to all patients, the most pleasing, that of feeling that they were in the hands of one who had no other thought in his mind than their case. Hence few advocates of the day were more popular than he. But this was far from being his only qualification to lead.