1

Northampton was referred, made answer to the queries put to them, "that the band of wedlock being broken by the mere fact of infidelity, the second marriage was lawful." The parliament of 1551 confirmed this answer, by declaring the marriage of Northampton with Elizabeth Brooke to be valid; but, as this statute was repealed by a law passed in the following reign, nothing is left of these proceedings but the advised and lasting belief of Cranmer and his associates in reformation, that a more extensive liberty of divorce ought to be allowed.

'The law of England is now, in its letter and theory, conformable to the ancient principle of the Roman Catholic church, which regarded marriage as indissoluble. It was not till a century and a half afterwards that a practice gradually crept in of dissolving marriage for infidelity, by acts of parliament specially passed for each separate case,-a rude and most inconvenient expedient, which subjects proceedings which ought to be judicial to the temper of numerous and open assemblies, while, by its expense, it excludes the vast majority of men from the relief which, by long usage, it may be considered as permanently holding out to suitors who are not themselves uncommonly faulty. The reader needs not to be reminded, that whatever requires an act of legislature to legalize must in its nature be illegal.

'It must be admitted, that the intrinsic difficulties of the subject are exceedingly great. The dangerous extremes are, absolute and universal indissolubility, which has been found to be productive of a general connivance at infidelity, and, consequently, of a general dissolution of manners on the one hand, and on the other, of a considerable facility of divorce in cases very difficult to be defined-a practice, to say nothing of other evil consequences, which would be at variance with the institution of marriage, intended chiefly to protect children from the inconstancy of parents, and next to guard women against the inconstancy of husbands, who, if divorce were procurable for any but clearly defined and most satisfactorily proved facts, would be enabled, as soon as they were tired of

their wives, to make the situation of the helpless female so uneasy that they must consent to divorce. To make the dissolution of marriage in the proper case alike accessible to all, is one of the objects to which, in great cities and in highly civilized countries, it is hardest to point out a safe road.' vol. ii. 227-230.

In examining the justice of the detention of Mary, Queen of Scots, by Elizabeth, Sir James uses the following language, breathing sentiments, which it is to be hoped will animate those who shall be called upon to administer the Law of Nations, though at the same time, vindicating the measures taken against the unfortunate queen.

'It must be owned that it is hard to deny that the necessity of self-defence, which is the only just foundation of the rights of war and of criminal justice, may not, in extreme emergencies, warrant violence to individuals, even though the principle of defence be not embodied in antecedent rules of law. Yet the methods by which men may be regularly and legitimately deprived of life or liberty are sufficiently comprehensive. The seasons at which exceptions present themselves, are commonly those in which fear and anger render just judgment most improbable. If they be considered as warranted in cases of minor severity, it will be found impossible to assign any limits to them, other than the conscience and mercy of the possessors of power. Their opinion of what is necessary to ward off danger from themselves must become the sole measure of their conduct. The immense range of moral colors, from a fraudulent pretension through a considerable convenience, or the removal of an impediment or an accession to safety, up to the very confines of a struggle for existence, is more than enough to dazzle and bewilder the eye of the mind. A restraint on personal liberty, which seems to be the mildest and most strictly defensible of all irregular measures, has yet evils peculiar to itself, arising from the circumstance that it must often be long in order to be effectual. The danger is forgotten by the sufferer and the spectators; the anomaly alone stedfastly continues to glare on the eye. The prisoner complains often only

from the irritation of his condition, sometimes with a purpose to provoke. Impartial bystanders embrace his cause, in proportion as his vexations are prolonged. The inferior agents in his detention, sometimes justly displeased, sometimes to pay their court to their employers, become more harsh. The process is sometimes cut short by the death of the prisoner, which generally earns for his memory the fellow-feeling of after ages. In other cases it proceeds from complaint to conspiracy, which exasperates the sovereign more and more, until a government is provoked into a deed of blood, which leaves an indelible stain on its name.

"Whoever with calmness reviews these melancholy portions of history, after temporary passions have subsided, will find it impossible to repress a wish that no exceptions from the rules of moral and even of legal justice towards individuals may hereafter be countenanced by historians or moralists. This might at length contribute to banish such direful expedients from the practice of states. The least reflection will enable a reader, even if he only glances over the surface of history, to perceive how surely such stretches of power render their authors for ever odious, and how seldom (if ever) they were necessary to the safety of communities.' vol. iii. 133, 134.

A note is appended to the text just quoted, which contains a more solemn expression of the judgment of Sir James Mackintosh, in the case of Mary Queen of Scots, illustrated by a reference to that of Napoleon. It is as follows:

'About 250 years after Mary had crossed the Solway, another case of exception from ordinary rules arose in England, opposite to hers in moral circumstances, yet resembling it in the dry skeleton of legal theory.

Napoleon Bonaparte, probably the most extraordinary man who has appeared in the world since Julius Cæsar, whom he surpassed in genius for war as much as he and all other warriors must yield to the great dictator in the arts and attainments of peace, having raised himself to the sovereignty of Europe by his commanding faculties, when he was hurled

from that eminence by his insolent contempt for mankind, sought for refuge in the ships and territories of the only nation who had successfully defied his power. When he applied with that view to the commander of a British ship of war, he was answered, as Mary had been by the governor of Carlisle, that an officer had no authority to promise more than an hospitable reception in his own ship. The course of events obliged Mary to rush into shelter before the answer of Mr. Lowther arrived. Napoleon was compelled to take refuge in the ship before any answer could be obtained from a competent authority. Both affected to act voluntarily, though they were alike driven by necessity to the first open asylum. Neither of them was born an English subject, or had committed any offence within the jurisdiction of England: consequently, neither of them was amenable to English law. Neither of them could be justly considered as at war with England; though, on that part of the subject, some technical but unsubstantial obstacles might be opposed to Napoleon, which could not be urged against Mary. The imprisonment of neither was conformable to the law of England or the law of nations. But the liberty of Mary was deemed to be at variance with the safety of the English government; as the enlargement of Napoleon was thought to be with the independence of nations, and with the repose for which Europe sighed after long bloodshed. The imprisonment, though in neither case warranted by the rules of municipal or international law, was in both justified by that necessity from which these rules have sprung, and without which no violence can rightfully be done to a human being.

Agreeably to this view of the matter, the detention of Napoleon was legalized by an act of the British parliament.1 By the bare passing of such act, it was tacitly assumed that the antecedent detention was without warrant of law. This evident truth is more fully admitted by the language of the stat

156 Geo. III. cap. 22. A. D. 1816.'

ute, which, in assigning the reason for passing it, alleges, that "it is necessary for the preservation of the tranquillity of Europe, and for the general safety, that Napoleon Bonaparte should be detained and kept in custody;" and it is still more explicitly declared, by a specific enactment which pronounces, that he "shall be deemed and taken to be, aud shall be treated and dealt with, as a prisoner of war;" a distinct admission that he was not so in contemplation of law until the statute had imposed that character upon him.'

The very able author,-who can be no other than Mr. Macauley; aut Morus; aut Diabolus,-of the notice of the life, writings and speeches of Sir James Mackintosh, prefixed to his Fragment on the Revolution of 1688, criticizes some expressions of this opinion with great acuteness He also says, that in the text, quoted above, Sir James reasons indirectly against the judgment given in the note, until he reaches the following inference, Whoever with calmness reviews these melancholy portions of history, after temporary passions have subsided, will find it impossible to repress a wish that no exceptions from the rules of moral and even of legal justice towards individuals, may be countenanced by historians or moralists.' What warrant, the writer then asks, had Sir James to give those 'exceptions,' that countenance, as an historian and moralist, which he interdicts to the historians and moralists who may come after him?

But a few pages in the History of England, after our last extract, the labors of Sir James Mackintosh ended. He was arrested by the arm of death, in the very midst of that work, -the completion of which had been fondly desired by his friends, and eagerly expected by the public,-which he proposed as his title-deed and recommendation to the regard of future ages. He died almost with his pen in his hand-the very chapter upon which he was engaged at the time, being left unfinished.

In the notice we have given of Sir James Mackintosh, we have confined ourselves to a history of his legal career and an