those present. In 1677, so strict was the discipline among the Quakers in regard to marriage, that the nuptials of persons, one of whom had lately come forth from England," and neglected to bring her certificate from Friends' Meeting, had to be postponed therefor, after notice of intention to become husband and wife. The same particularity has been shown among them. to the present time.

Marriage in the Roman Catholic Church, since the twentyfourth session of the Council of Trent, has been regarded as a sacrament, and the Friends, called Quakers, as if in emulation, while denying the efficacy of all forms, have been at special pains to hedge the marriage ceremony in the strictest manner. Their example has not been without its salutary effect in this behalf with other denominations of Christians. Its privileges, with publicity after their mode, cannot be unduly assumed, and parents, on a question of moment for the congregation, are not apt to be the very last consulted. It is an institution sui generis, on which the security of the social system must rest, and Catholics and Protestants are alike interested in providing a formal and legal mode. A failure of publication, enjoined in a Quaker marriage, would vitiate it after the order established among them, and the Jewish ceremonial, long conceded as of right in every country, needs no

comment.

The decisions of the Supreme Courts, in the several States of the United States, must not be regarded in the light of evasions of the respective Marriage Acts. Even the vigorous rules of the English Marriage Act (Lord HARDWICKE'S) had in many instances to be relaxed; and under the Act of 6th & 7th William IV., amended and corrected by supplementary acts of the present Queen, parties may treat marriage at their option as a civil contract. It has been stated that colonial statutory regulations for marriage were more than a century in advance of the English Act of 1754, and also that these early colony acts had recognised, as settled usage and custom, just as parties preferred, the celebration of the marriage ceremony either according to some Church or religious form, or before some order of the magistracy. The want

of regularly ordained ministers, Catholic or Protestant, in the new settlements of America, had first led to the adoption of the rule of the Canonists, making marriage valid as a mere contract, when made in the presence of a magistrate, or some member of a colo nial council of state; but a return to the Church form may be traced in the earliest legislation. The Marriage Act of the Jamaica Legislature that of 33 Charles II.-prescribed penalties for the non-observance of its provisions, and as these were only aimed at Church ministers, the inference is irresistible that the solemnization before the magistrate had ceased at that period there. The Commonwealth Act of 1653 had been repealed in England, and the usage of marriage before a magistrate was thus sought in Jamaica to be discountenanced. The Barbadoes Acts of 1734 and 1739 are to like purpose, seeking to restore a religious form. Our commentator, Chancellor KENT, has expressed the opinion that the intervention of a clergyman is not essential to a marriage, and, following Sir WILLIAM BLACKSTONE, he has laid down the further principle that no peculiar ceremonies, before a clergyman or a magistrate, are requisite for a valid marriage; mere words, evidencing consent, being sufficient. But in qualifying his statement by presuming "an absence of any civil regulation" (Vol. 2d, page 86), he refutes his own argument.

It will have been noted that in most of the States of the United States, marriage, in order to be valid, had, under usage and custom, to be celebrated under one of two forms-before a magistrate or with some religious sanction. This usage was the civil regulation, and one full as binding as any statute law. Jamaica, wrested from Spain under Cromwell, had its marriage law imme diately after its annexation, and though subsequently restricted to a religious ceremonial, the twofold form had there grown into usage at one period. This early Jamaica legislation proves how very cautious the British Parliament has been in adapting the marriage law to the exigencies of a distant colony. Every English colony, afterwards a State of the United States, will be found to have faithfully maintained these sanctions of marriage. through usage and other civil regulations. In the State of New

York no statute can now be found on record, though known to have existed in 1691, as to this mode of celebrating marriage, still retained there under usage. In fact, a common law regulating the forms of marriage had fastened itself upon each community over all the Colonies. In South Carolina no layman, under the penalty of £100, could join persons in marriage. But laymen did venture, claiming right under usage, and hence alone the statutory penalty. It was the known custom to marry before a magistrate when some incident had occurred to prevent the ceremony before some Church minister, or the canon law learning of some planter had made him recusant. In Georgia, by Act of 1799, clerks of Courts were to issue marriage licenses to judges. and justices, as well as to ministers of the gospel. The earliest marriage act of Maryland, 1692, like the recent and latest English marriage acts, gave parties the option of going before a magistrate or having the ceremony in facie ecclesiæ. This did not discredit the marriage of the Quakers, for in 1661 a marriage between them, according to their own ceremonies, was held valid in an ejectment cause, and their foothold in Maryland was rather too firm a one to be ousted by legislation on a religious tenet of their sect. The law of Maryland now exacts some religious sanction for marriage, and in case of banns, when marrying without license, in a house of religious worship previously recorded as such, Maryland has not reached the point gained by following out the recent English provisions of the Act of William IV. Marriage is not a civil contract, disjoined at the option of parties from all religious form.

The accurate student of our early social history will be sustained in the convictions that Lord HARDWICKE (Burrows's Sess. Cas. 25), eighteen years prior to his Marriage Act in 1754, was better advised upon the law of the solemnization of marriage than the American Commentator KENT, when he assents to a dictum of BLACKSTONE. Prior to the first English marriage act, it had been decided that at common law, confessions and acknowledgments, in the presence of witnesses, did not make a valid marriage. How marriage was regulated in England before 1754, is a ques

tion on which there is some disagreement. Upon Upon a narrow inspection it will probably appear that usage and custom had there sanctioned just such rules for solemnizing marriage as were adopted here in this country through all the Colonies, so as to have become, in the absence of statutory provisions, the American Common Law. The accidental neglect of some directions in these statutes would not render the intended marriage a nullity, while the delinquent parties would be subjected to prescribed penalties for an offence against morals. Yet some form would be requisite to meet the mandates of our statutes, or the civil regulations established, time out of mind, under general usage.

RECENT AMERICAN DECISIONS.

In the Supreme Court of New York.

HERBERT T. MOORE vs. WILLIAM A. LITTEL.

In New York, where the rule in Shelley's Case is abolished, where land is granted to A. for life, and after his death, then to his heirs and their assigns for ever, the persons who, at the termination of the life estate, are the heirs of A., take as purchasers, and not by descent.

The remainder so limited is contingent, and the heirs apparent of the tenant for life have a future contingent estate, which under the statute of New York, making "future estates descendible, devisable, and alienable in the same manner as estates in possession," will pass by their grant of the land in fee. The child of an heir apparent whose mother dies before her ancestor, will not in such case be estopped by covenants of warranty in her mother's deed.

The facts of the case appear in the opinion.

N. B. Morse, D. E. Wheeler, and Everett P. Wheeler, for the appellant (defendant below).

D. P. Barnard, for the respondent (plaintiff below).

The opinion of the Court was delivered by

LOTT, J.-This action was commenced in the City Court of

Brooklyn, on the 22d day of May, 1861, for the recovery of a lot of land lying in the city of Brooklyn, being a part of a large tract formerly owned by Samuel Jackson. He, by a deed bearing date the 15th day of February, 1832, granted and conveyed the whole of said tract to John Jackson, named therein as party of the second part, "for and during his natural life, and after his decease to his heirs and their assigns," with a habendum clause in the following terms, viz.: "To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, for and during his natural life, and after his death, then to his heirs and their assigns to their own proper use, benefit, and behoof for ever."

This deed contains the usual covenants of seisin, and for quiet possession, and against incumbrances, and also contains a covenant by the grantor for the further assurance of the premises intended. to be granted "to the said party of the second part, his heirs and their assigns, after the natural life of the said party of the second part for ever," and a covenant of general warranty thereof "unto the said party of the second part for and during his natural life, then to his heirs and their assigns for ever."

The said John Jackson, on the 25th day of April, 1848, had eleven children, who if he had then died would have been his only heirs at law, and he on that day executed a deed with full covenants and warranty to those children, purporting to convey a large tract of land, including that in question, for the consideration of one thousand dollars.

Subsequently, and on the 14th day of August, 1848, those children made a partition among themselves of the land so conveyed by their father, and executed deeds to each other with covenants of quiet and peaceable possession, to carry the same into effect. A number of lots, including that sought to be recovered in this action, were thereupon conveyed to Parmenus and Edward Jackson, two of the sons, by their brothers and sisters, and other lots were in like manner conveyed to Rosetta Jackson and Fanny Jackson, two of the daughters.

The said Parmenus and Edward Jackson afterwards, and on the VOL. XII.-10