Page:Encyclopædia Britannica, Ninth Edition, v. 15.djvu/595

declaration, but with no religious service ; (3) in a church according to the usual form, the consent of the minister thereof having been previously obtained ; (4) according to the usages of Jews and Quakers. The place of marriage in all cases must have been speci fied in the notice and certificate. In the second case, when it is desired to proceed by licence, notice must be given to the registrar of the district in which one of is not exhibited in the registrar s office, and the certificate may be obtained at the expiration of one whole day after entry, together with the licence, No registrar s licence can be granted for a marriage in church or according to the forms of the Church of Eng land, the ecclesiastical authorities retaining their monopoly in that respect. It is also provided that in the case of persons wilfully intermarrying in a place other than that mentioned -in the notice and certificate, or without notice or certificate, &c., the marriage shall be null and void. And, as under the former Marriage Act of Geo. IV., a valid marriage between persons one of whom is under age, brought about by fraud or false oath, subjects the offendingparty to a forfeiture of all property that otherwise might accrue to him from the marriage, a like penalty is provided in like cases under the later Act. It will be observed that the various rules as to consent of parents, &c., to the marriages of minors are regulations of procedure only. The absence of the necessary consent is not a disability invali dating a marriage actually solemnized. The Act 26 Geo. II. c. 33, commonly known as Lord Hardwicke s Act, which forbids the solemnization of marriage without banns or licence, also enacts that "in no case whatsoever shall any suit or proceeding be had in any ecclesiastical court in order to compel a celebration iii facie ccdcsise, by reason of any contract of matrimony whatsoever whether per verba dfi presenti or per verba defwturo." Blackstone observes that previous to this Act " any contract made per vcrba de presenti, or in words of the present tense, and in case of cohabitation per vcrba defuturo also, was deemed valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ccdesise." In his celebrated judgment in the case of Dalrymple v. Dalrymple, which turned on the effect of promises exchanged between the parties in Scotland, Lord Stowell laid it down "as the basis of the canon law, the known basis of the matrimonial law of Europe," that " in the irregular marriage, i.e., sponsalia per verba dc presenti, everything was presumed to be complete and consummated in substance but not in ceremony; and the ceremony was enjoined to be undergone as a matter of order. In the sponsalia defutiiro. nothing was presumed to be complete or consummated either in substance or in ceremony, but if the parties who had exchanged the promise had carnal intercourse with each other the effect was to convert the engagement into an irregular marriage." On the other hand, in the case of the Queen v. Millis in the House of Lords on appeal from the Irish Queen s Bench, the position of Lord Stowell was strongly criticized. Lord Lyndhurst s conclusion was that, "although a marriage contracted per verba de presenti was indissoluble, though it could not be released even by the mutual consent of the parties, though either of them might en force it and compel solemnization, though it had the effect of ren dering voidable a subsequent marriage solemnized in facie ecdcsix, even after the cohabitation and birth of children, though it was considered to be of the essence and substance of matrimony yet by the law of England it did not confer those rights of property or the more important right of legitimacy consequent on a marriage duly solemnized according to the rites of the church." The lords were equally divided in their decision, and the question has since been . agitated not so much with reference to England, where after the Act of Geo. II. it had a merely historical interest, as to the colonies and the United States (see below), where the common law of Eng land prevails unless changed by legislation. Dr Lushington in the case of a marriage in New South Wales declared that, when there lias been a fact of consent between two parties to become man and wife," such is " sufficient marriage to enable me to pronounce when necessary a decree of separation." In the cases noticed the promises had been exchanged before ministers of religion not technically " in holy orders," and the question has accordingly sometimes been put in the form whether, according to the common law, the inter vention of a clergyman was necessary to a valid marriage. Royal Marriages in England have been subject to special laws. The Royal Marriage Act of 1772 (12 Geo. III. c. 11), passed in consequence of the marriages of the dukes of Cumberland and Gloucester, enacted that " no descendant of his late majesty George II. (other than the issue of princesses married or who may marry into foreign families) shall be capable of contracting matrimony without the previous consent of his majesty, his heirs and suc cessors, signified under the great seal. But in case any descendant of George II., being above twenty-five years old, shall persist to contract a marriage disapproved of by his majesty, such descendant, after giving twelve months notice to the privy council, may con- 567 tract such marriage, and the same may be duly solemnized without the consent of his majesty, &c., and shall be good except both Houses of Parliament shall declare their disapprobation thereto." Scotland. The chief point of distinction, as compared with English law, is the recognition of irregular marriages above noticed. (1) " A public or regular marriage," says Fraser, " is one celebrated, after due proclamation of banns, by a minister of religion ; and it may be celebrated either in a church or in a private house, and on any day of the week at any hour of the day." The ministers of the national church at first alone could perform the ceremony ; but the privilege was extended to Episcopalians by 10 Anne c. 7, and to other ministers by 4 & 5 Will. IV. c. 28. (2) A marriage may also " be constituted by declarations made by the man and the woman that they presently do take each other for husband and wife." These declarations " may be emitted on any day at any time and without the presence of witnesses," and either by writing or orally or by signs, and in any form which is clearly expressive of intention. Such a marriage is as effectual to all intents and purposes as a public marriage. The children of it would be legitimate ; and the parties to it would have all the rights in the property of each other, given by the law of Scotland to husband and wife. (3) A promise followed by copula does not, according to Fraser, constitute marriage, unless followed either by solemnization in facie ecclesix or declarator. On the other hand, in Lorimer s Handbook it is urged that the promise and copula are mere tokens of consent recognized by the law, and that " the date of the marriage is the date of the copula." However this may be, Lord Moncreiffs opinion in the case of Brown v. Burns is admitted on both sides to be good law, viz., that declarator is essential to the constitution of a marriage of this kind, so that, if no such declarator be brought in the lifetime of both parties, the marriage can never be established afterwards. The copula is presumed to have reference to the promise, but evidence may be adduced to show that such was not the case. By 19 & 20 Viet. c. 96, it is enacted that no irregular marriage shall be valid in Scotland, unless one of the parties has lived in Scotland for the twenty-one days next preceding the marriage, or has his or her usual residence there at the time. " Habit and repute " has sometimes been spoken of as constituting marriage in the law of Scotland, but it is more correctly described as evidence from which marriage may be inferred. The repute must be the general, constant, and unvarying belief of friends and neighbours, not merely the controverted opinion of a section of them. The co habitation must be in Scotland, but in one case proof of cohabitation in another country was allowed, as tending to throw light on the nature of the cohabitation in Scot land. The consent of parents is not necessary to the validity of the marriage, even of minors, but marriage under the age of puberty with or without such consent is void. United States. The absence of ecclesiastical courts has suggested difficulties as to the extent to which the law of England on this subject continued to prevail after the revolution. Bishop holds it to be the universal fact running through all the cases that everywhere in the country the English decisions on marriage and divorce are referred to with the same apparent deference which ^ is shown on other subjects to the decisions of the English common law and equity tribunals. The same author observes that "all our marriage and divorce laws, and of course all our statutes on the subject, in so far as they pertain to localities embraced within the limits of particular States, are State laws and State statutes, the national

power with us not having legislative or judicial cognizance