THE MARRIAGE LAW OF THE THREE KINGDOMS.

THE Yelverton case having again appeared in the House of Lords, naturally draws attention to the anomalous condition of the Marriage Law of the Three Kingdoms, and suggests reflections not flattering to the uniformity of legislation. As, however, a Marriage Commission has been sitting to receive evidence of skilled and competent persons, we may hope that the report, when laid on the table of the House, will be the foundation of a carefully considered and uniform measure on the subject of the Marriage Laws of the United Kingdom, and that a contract so momentous may be rendered easy of proof and intelligible without the aid of experts. It is only they who have been professionally engaged in the consideration of the law of marriage, as expounded in courts, who are aware of the intricacies of the apparently simple tie uniting man and woman in true matrimony. To be told that in Scotland you may be married before the process of an ordinary flirtation is begun, whilst in England or Ireland you have to publish banns, or obtain license, or get the certificate of a marriage registrar, with a variety of notices and entries in books, is a slur on our state politics.

The Scottish people have, with their wonted tenacity, adhered to the ancient system founded on the civil law as to marriage, whereby a contract per verba de præsenti, or a promise de futuro cum copula, is considered sufficient to constitute a legally valid marriage, whereas by the common law of England down to the Marriage Act (the 26 George II.

cap. 33), it was essential to the constitution of a complete marriage that there should be a religious solemnity; that both modes of obligation should exist, the civil and the religious; that beside the civil contract (as in Scotland per verba de præsenti), which has always remained the same, there should be a religious ceremony, not always the same, but varying from time to time according to the variations of the laws of the

Church.

The law of Ireland was founded on the common law of England, and was what the English law was prior to the passage of the Marriage Act; but thenceforward divergencies, according to the ecclesiastical systems in operation in either country, took place.

It is difficult, however, to realize this state of things-that a child may be born in Scotland of unmarried parents domiciled in that country, which parents may afterward intermarry in Scotland, that such child may be capable of inheriting lands in Scotland, and yet be incapable of inheriting lands in England or Ireland, and this because of the anomalies of the Marriage Law operating in countries under the same government and the same sovereign. Prior to the English Marriage Act it was generally supposed that it was not requisite to have any peculiar religious ceremony to constitute marriage, and this because of the ceremony resting on the ancient common law, which, as in Scotland, only required the consent of the parties; but there was this distinction, that to make a full and complete marriage in England, an application might be made to the spiritual court to compel the solemnization of an actual marriage; and hence originated the notion that it was always necessary to have the ceremony performed in presence and with the intervention of a minister in holy orders. But the common law of England did not require the consent of any person to render valid the marriage contract, save that of the parties themselves, and so far was in accordance with the civil law but abuses springing up, the Council of Trent intervened to prevent the spread of clandestine marriages, and such was also the object of the English Marriage Act. Before that Act a marriage was valid though celebrated in a private

house instead of in the church, as the rubric prescribes; valid too even though no witness was present other than the clergyman, instead of in face of the congregation; valid though no person was present to give the bride away, valid without banns or license, without the use of the ring, without the repetition of the Marriage Service. All that was then necessary was that the parties took one another for husband and wife by words in the present tense, and before a priest, or, since the Reformation, before a deacon. But the Marriage Act, known as Lord Hardwicke's Act, enact ed that thenceforward (1753) all marriages should be celebrated in a church and by banns or license, and no proceedings should be had in any spiritual court to compel the celebration of any marriage in fucie ecclesiæ, by reason of any contract of matrimony, whether per verba de præsenti or verba de fu

turo.

"The general law of Western Europe before the Council of Trent seems clear," says Mr. Justice Willes in the House of Lords' Cases, 306. "The fact of marriage that is, the mutual consent of -competent persons to take one another for man and wife during their joint lives -was alone considered necessary to constitute true and lawful matrimony in the contemplation of both Church and State." To the same effect are the observations of Lord Lyndhurst-"that a contract per verba de præsenti was, prior to 1753, considered to be a marriage, that it was, in respect of its constituting the substance and forming the indissoluble knot of matrimony, regarded as verum matrimonium, is, I apprehend, clear beyond all doubt."

It may have been found difficult to procure evidence of the consent or contract after the celebration, and hence the presence of a priest became essential, to have trustworthy proof of the celebration, independent of another suggested reason for his presence-that if he were aware of any lawful impediment he could prevent the ceremony. Now, to render valid a marriage, in addition to consent, there must be some previous notice or proclamation of banns, or license, and a clergyman must be present, or the marriage registrar of the district, and the marriage must be in an

authorized place and at authorized hours. In Scotland it is still sufficient if both parties mutually declare themselves married; but this must be in presence of witnesses, or the consent must be expressly or impliedly declared by writing.

From that first English Marriage Act (26 George II. cap. 33) no legislative interference on the subject took place for seventy years; but thenceforward, and down to the 4 George IV. cap. 76, several statutes were passed, all considering a religious ceremony as essential to the validity of the marriage contract. Later statutes have been framed enabling marriages to be solemnized according to any form or ceremony the parties see fit to adopt; but the 4 George IV. cap. 76, though qualified as to marriages solemnized according to the Established Church, is not repealed by any subsequent statute. By that statute the banns are to be published in the parish church or an authorized chapel on three Sundays, according to the rules prescribed by the rubric prefixed to the office of matrimony in the Book of Common Prayer. A book is to be kept for the registration of the banns, to be signed by the officiating minister; and by this means accurate evidence is forthcoming of the solemnization of the ceremony, because, in addition to the presence of the minister, two witnesses must be present, who also sign the entry.

This statute, however, did not affect the marriages of Quakers or Jews. Subsequent legislation dealt with the marriage contract, where no religious ceremony is considered by the parties necessary to its validity, beginning with an Act of Parliament of 6 & 7 William IV. cap. 85, and ending with 3 & 4 of the Queen, cap. 72. These Acts provide for general registries, for the appointment of marriage registrars, for enabling them to grant licenses, and for the celebration of marriage according to forms there specified by the registrar himself. Entries of these marriages are preserved in books provided for the purpose, the names of the parties, the date of the celebration of the ceremony, and the witnesses present; again, by this means is evidence furnished of the fact of the marriage, and that all due forms have been complied with.

Such is the law of England. As be

fore stated, the general marriage law of Ireland was identical with that of England before Lord Hardwicke's Act, but it has been modified by some statutes of the Irish legislature. The common law of that country did not consider the consent of parents necessary to the validity of the contract; but by a statute of 9 George II. cap. 11 of the Irish Parliament, the marriages of minors were void, if made without the consent of parents or guardians, and if the minors were entitled to a certain amount of property. It further inflicted penalties for the celebration of marriage between Roman Catholics and Protestants, and its provisions were extended by a later statute of the same reign, which made the celebration a felony in the celebrant. Both these statutes were repealed by the 7 & 8 of Victoria, cap. 81. But other statutes dealt with other offences in reference to the ceremony. An Act of 32 George III. cap. 21, authorized clergymen of the Established Church to marry Protestants and Roman Catholics, but it prohibited a Roman Catholic priest celebrating the ceremony unless it had been previously performed by a Protestant clergyman. An earlier statute of 19 George II. cap. 13 (Irish), annulled all marriages celebrated by a Roman Catholic priest between Protestants, or persons professing to be such, within twelve months previous to the ceremony, and Roman Catholics a statute passed to counteract the effect of an occasional profession, and a statute made remarkable by reason of its being the statute on which the alleged Irish marriage of Major Yelverton rested. In answer to the priest, he stated he was a Catholic Protestant; and the evidence of clergymen and others proving that the Major had gone to the Established Church and was still a professing Protestant within twelve months, the lady being a Roman Catholic, the Irish marriage was not legal. By an Act of 33 George III. cap. 21, a penalty of £500 was inflicted on a Roman Catholic priest marrying two Protestants, or a professing Protestant and a Roman Catholic; but this Act was repealed, so far as the penalty was concerned, by 3 & 4 William IV. cap. 102, though it left the prohibition against the validity of the marriage untouched. Now, however, by

the 5 & 6 of the Queen, cap. 28, any Roman Catholic priest celebrating such marriage, unless the ceremony have been previously performed by a Protestant clergyman, is liable to transportation for seven years. Such, in Ireland, is still the law of mixed marriages, which, however, are now much discountenanced by the Roman Catholic Church; and we doubt not but that legislation will remove the penalty still existing on the Roman Catholic priest; but if it do so, that Church should be obliged to keep and furnish, when required, an accurate register of its marriages. Strange to say, there is no legal prohibition against minors marrying in that Church; whatever ecclesiastical rules there may be on that head, there is no statute prohibiting them.

The cause célèbre on the Scotch law of marriage is the Dalrymple case, and though some of the dicta enunciated by Lord Stowell, the great jurist who decided it, have been questioned, his judgment is ever referred to as the exponent of the principles which should guide tribunals dealing with the law of marriage.

Mr. Dalrymple was a member of a Scotch family, but was brought up from early years in England. At the age of nineteen, being then a cornet in the Dragoon Guards, he accompanied his regiment to Edinburgh, where it was quartered in March or April, 1804. Shortly after his arrival in Edinburgh, he met in the ordinary intercourse of society a Miss Joanna Gordon, the daughter of a gentleman of respectable condition in life. Mr. Dalrymple was in the habit of visiting at the lady's father's house, both in Edinburgh and at his country seat at Braid, near Edinburgh. Besides the ordinary visits, it appeared he and the lady had clandestine interviews at the father's house, and for several nights they had remained together. But there was no evidence of cohabitation, save what existed in the surmises of the servants and of the lady's sister. Mr. Dalrymple left for England in 1805, and having sailed for Malta, continued abroad till 1808, in which year he returned to England. His father having died, Miss Gordon thought it time to establish her marriage, and she accordingly sent to a friend of Mr.

Dalrymple copies of what she termed her marriage lines. At this period Mr. Dalrymple was on the eve of a marriage with the sister of the then Duchess of St. Albans, and ultimately celebrated with the English lady in a formal and regular manner, in facie ecclesia, the ceremony of marriage. Thereupon Miss Thereupon Miss Gordon applied to the Consistorial Court of London to compel Mr. Dalrymple to the performance of the marriage contract into which she alleged he had entered with herself. The evidence was that of persons who deposed as to the interviews at her father's house, of nocturnal meetings, and of his visiting the house at unusual times. But unhappily for him, she produced letters and documents written to her, in which he called her his wife; and amid these exhibits was one or two of this kind:

No. 1.

A Sacred Promise.

The social position of the parties, Mr. Dalrymple being heir presumptive to the earldom of Stair, Miss Gordon being the daughter of a gentleman of position, and Miss Manners being the sister of a duchess, awakened great interest at the time; but the parties are forgotten, the somewhat romantic incidents of the case have faded from memory, and nothing remains but that unrivalled judgment of Lord Stowell tracing the marriage law from its earliest authentic period, and affording to every student of our country's history an admirable summary of the principles which have regulated the enforcement of the marriage conMiss Gordon was successful; Mr. Dalrymple was ordered to restore to her

tract.

conjugal rights, and Miss Manners, as far as the law was concerned, remained Miss Manners. From that judgment may be deduced these positions: Marriage is a contract of natural law-the parent, not the child of civil society-and in civilized countries, acting under a sense of the force of sacred obligations, it had the sanction of religion superadded, and then it became a religious as well as a civil and natural contract; it then came under the cognizance of the Church, and it was elevated to the dignity of a sacrament; and so the law of the Church, the canon law, though it recognized it as a sacrament, so far regarded the natural and civil origin of marriage as to hold that where the natural and civil contract was formed it had the full essence of matrimony without the intervention of a priest.

The consent therefore of two persons expressed in words of present mutual acceptance constituted an actual and legal marriage, and consummation was At the Reformation, England disclaimed presumed as following that acceptance. the doctrine of a sacrament in marriage, retaining, however, the rules of the canon law that were founded in the natural and civil contract of marriage. As we have observed, the marriage law of Ire land was considered the same as that of England prior to the Marriage Act of George II., but in 1840 there was raised a question on an indictment for bigamy, which resulted in a protracted legal battle, ending in the House of Lords. This case was the origin of the existing statute law in Ireland now regulating the marriage ceremony in that country; but this statute does not affect the Roman Catholics, Quakers, or Jews. That statute is the 7th & 8th of the Queen, and became necessary by reason of the following incidents:

In 1840 Dr. Miller, the Surrogate in the Consistorial Court of Armagh, having to decide a question raised before him, on the validity of a marriage between a Presbyterian and a member of the Episcopal Church solemnized by a Presbyterian minister, had declared such contract to be null and void. In the North of Ireland, where such marriages had been of frequent occurrence, this judg ment aroused great hostility. The intensity of the indignation was increased,

when it was known that the decision was rested on a Saxon canon of the tenth century, requiring the presence of a "priest" necessary to validate a marriage; and the Presbyterian minister not being episcopally ordained, was held not to come within the canonical requirement of one in holy orders. The question before the Consistorial Court was as to the right of administration to the property of a deceased individual, and in the conflict amongst the next of kin the legality of the marriage was disputed. Shortly after the judgment of Dr. Miller was pronounced, a man being indicted for bigamy in the county of Antrim, pleaded that though he had been previously united in wedlock by a Presbyterian minister, such was no valid contract, because he was an Episcopalian. A special verdict was found by the jury, under the direction of the judge who tried the prisoner, and the question came before the Court of Queen's Bench in Ireland. The judges were divided in opinion as to the validity of the marriage, and the case was taken to the House of Lords. Lords Brougham, Campbell, and Denman were for reversing the judgment of the Irish Court; Lords Abinger, Cottingham, and the Lord Chancellor were against the reversal; and so, according to the rule presumitur pro negante, the judgment of the Queen's Bench in Ireland was affirmed, and the prisoner acquitted; thus deciding that to validate a marriage in Ireland the ceremony must be in presence of a priest in holy orders. To justify this decision there was cited a decretal of Edmund, promulgated in 940, directing that "at the nuptials there shall be a mass priest by law who shall with God's blessing bind the union to all posterity." But it was rather pointedly asked, If this be law, why not all the Saxon enactments law? why was not the law of King Ina not part of the Statute Book, which imposed the penalty of forfeiture of goods on a man who had not his child baptized; or the law of King Alfred, which inflicted a graduated scale of fines for criminal conversation, according to the rank of the parties? In truth, it would appear that the enact ment of Edmund simply recommended a more formal ceremony, but it did not annul a marriage contracted with

This case,

out sacerdotal benediction. which is known as The Queen v. Millis, has been more or less questioned, and it is generally assumed that though it is a binding authority of the highest appellate tribunal, yet if the question involved in it were reopened, the decision would be different. The effect of it was somewhat alarming, for the legitimacy of many Presbyterian families in the North of Ireland was assailed by it; and so in the same session of Parliament in which it was decided, the Act of 7 & 8 of the Queen was passed, validating previous marriages that had been solemnized by Presbyterian ministers between members of different communions, and providing in future for the registration of all marriages depending on the civil contract as well as the religious. In fact it is an analogous statute with those applicable to England dealing with Nonconformists and persons who object to a religious ceremony. It came into operation on the 31st March, 1845, and was amended by 9 & 10 of the Queen, cap. 72, and by 12 & 13 of the Queen, cap. 99, but not altered in any essential. Now, therefore, in Ireland all the rules prescribed by the rubric concerning the solemnizing of marriages continue to be observed by every person in holy orders of the United Church of England and Ireland, but the giving of notice to the marriage registrar of the district, and the issuing of his certificate, may be used instead of the publication of banns; and Presbyterian marriages may be solemnized in Presbyterian churches according to the form used therein. But the Act does not affect Roman Catholics, whose rights are not interfered with if the marriages celebrated by them were legal previously to the Act passing; nor does it alter the contract of marriage as solemnized by Quakers and Jews, for such marriage performed according to their usage is good in law, if both parties be Quakers or profess the Jewish religion. These persons, however, must give notice to the registrar and obtain his certificate before the ceremony.

Scotland then remains as before, the marriage being unaffected by any statute, the law only requiring the consent of the parties to take each other as husband and wife; but this consent is re