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This act required all marriages to be solemnized in due form in a parish church or public chapel, with previous publication of the banns; and marriages not so solemnized were pronounced void, unless dispensation should be granted by special license. Some harsh provisions of this act were relaxed in the reign of George IV., but soon re-enacted.1 More recent legislation permits of a civil ceremonial before a register, to satisfy such as may have conscientious scruples against marriage in church. Such, too, is the general tenor of legislation in this country; the law justly regarding civil observances and public registration sufficient for its own purposes, while human nature clings to the religious ceremonial.3

Either celebration before a clergyman or with the participation of some one of such civil officers as the statute may designate is therefore at the option of parties choosing at the present day to marry. This is the law of England and America. And the only controversies ever likely to occur in our courts would be where the language of the statutes in some particular State left it doubtful whether marriages celebrated informally were to be considered absolutely null. It is to be borne in mind that Lord Hardwicke's Act is of too recent a date to be considered as part of our common law. Was, then, marriage in facie ecclesiæ essential in England before the passage of this act? It is admitted that the religious marriage celebration was customary previous to the Reformation. It is further allowed that the church, centuries ago, created an impediment, now obsolete, called "precontract," the effect of which was that parties engaged to be married were bound by an indissoluble tie, so that either one could compel the other to submit at any time to the ceremonial marriage. But whether precontract rendered children legitimate, and carried dower, curtesy, and the other incidents of a valid marriage, is not clear. In 1844 the question, whether at the common law a marriage without religious ceremony was valid, went to the English House of Lords, and re

1 3 Geo IV.; 4 Geo. IV. c. 76.

2 See 6 & 7 Will. IV. c. 85 & c. 88; 7 Will. IV., and 1 Vict. c. 22, and 3 & 4 Vict. c. 92.

8 See 2 Kent, Com. 88-90; 1 Bishop, Mar. & Div. 5th ed. § 279; Stimson's Am. Stat. Law, § 6120.

sulted in an equal division. And, curiously enough, such was the fate of a similar case in this country before the highest tribunal in the land. So that we may fairly consider the law on this point as doubly unsettled.3

Among most nations and in all ages has the celebration of marriage been attended with peculiar forms and ceremonies, which have partaken more or less of the religious character. Even the most barbarous tribes so treat it where they hold to the institution at all. The Greeks offered up a solemn sacrifice, and the bride was led in great pomp to her new home. In Rome, similar customs prevailed down to the time of Tiberius. Marriage, it is true, degenerated afterwards into a mere civil contract of the loosest description, parties being permitted to cohabit and separate with almost equal freedom.1 The early Christians, there is reason to suppose, treated marriage as a civil contract, yielding, perhaps, to the prevailing Roman law. Yet the teachings of the New Testament and church discipline gave peculiar solemnity to the relation. And religious observances must have prevailed at an early date, for in process of time marriage became a sacrament. In England, centuries later, it needed only Lord Hardwicke's Act to apply statute law to a universal practice; for although, in the time of Cromwell, justices of the peace were permitted to perform the ceremony, popular usage by no means sanctioned the change. Informal marriages are uncommon

219.

1 Reg. v. Millis, 10 Cl. & F. 534.
2 Jewell v. Jewell, 1 How. (U. S.)

* See full discussion of this question, with authorities, in note to 2 Kent, Com. 87; also in 1 Bishop, Mar. & Div. §§ 269282; Cheney v. Arnold, 15 N. Y. 345. The American doctrine is, that the intervention of one in holy orders was not essential at common law. This is the view of Chancellor Kent, Judge Reeve, and Professor Greenleaf, as expressed in their respective text-books, also the general current of American decisions. Mr. Bishop confirms these conclusions while suggesting new reasons for such an American doctrine; as for instance,

even in Scotland, where the

that in these colonies the attendance of one in holy orders, and more especially of an ordained clergyman of the established church, could not always be readily procured. See 1 Bishop, Mar. & Div. 5th ed. §§ 279–282, and decisions collated; 2 Kent, Com. 87; Reeve, Dom. Rel. 195 et seq.; 2 Greenl. Ev. § 460.

But in several States the contrary is declared to be the common law. 1 Bishop, ib. And statutory forms are declared requisite, and the doctrines of informal marriage denied more or less emphatically, as the foregoing pages have shown. Supra, § 26, note. 4 Smith's Dict. Antiq. "Marriage;" supra, Part I.

civil law prevails. In our own country it is not surprising that local jurisprudence should have exhibited some signs of reaction against ancient canon and kingly ordinance. Yet, even with us, the almost universal custom repudiates informal and civil observances; and, secured in the privilege of choosing prosaic and business-like methods of procedure, Christian America yields its testimony in favor of marriage in facie ecclesiæ.1

§ 29. Same Subject; Formal Celebration. - But, out of consideration for what may be termed the public, or natural and theoretical law of marriage, many American courts have, to a very liberal extent and beyond all stress of necessity, upheld the informal marriage against even legislative provisions for a formal celebration. Marriage being a matter of common right, it is lately held by the highest tribunal for harmonizing the rule of States, that, unless the local statute which prescribes regulations for the formal marriage ceremony positively directs that marriages not complying with its provisions shall be deemed void, the informal marriage by words of present promise must be pronounced valid, notwithstanding statutory directions have been disregarded.2

Whether we must absolutely accept this doctrine or not, in its full pernicious extent, and thus put legislators to the use of express words of nullity in statutes which might otherwise as well have been omitted, the main purpose of enforcing upon civilized and populous communities marriage rites

1 See 2 Kent, Com. 89, and authori- solemnized in church." Reeve, Dom. ties cited.

We do not mean to imply that marriage is a sacrament, or that religious ceremonies are essential to its due observance. We are speaking only of the universal testimony as to the fitness of peculiar and in general religious observances. Judge Reeve, exhibiting his contempt for "Popish" practices, says, "There is nothing in the nature of a marriage contract that is more sacred than that of other contracts, that requires the interposition of a person in holy orders, or that it should be

Rel. 196. At the time he wrote, was
not the practice prevailing in New
England contrary to his theory, as it
was before and as it remains still?
And who has ever proposed in modern
times to perform a business contract in
church?

2 Meister v. Moore, 96 U. S. 76,
citing this as the rule in Michigan ;
Hutchins v. Kimmell, 31 Mich. 128; 88
Mich. 279; Londonderry v. Chester,
2 N. H. 268; Hebblethwaite v. Hep-
worth, 98 Ill. 126.

1

appropriate to so solemn an institution being surely desirable, it will be readily conceded that English and American tribunals tend, in construing the marriage acts, to uphold every marriage, if possible, notwithstanding a non-compliance with the literal forms. And this is right; for while formal celebration is a shield to honest spouses and their posterity, rigor in the details of form, especially in inconvenient or trivial details, or those which it is incumbent rather upon third persons to respect, exposes them to new dangers. Thus is it as concerns place; and as to the due proclamation of banns, collateral points concerning ecclesiastical authority are inappropriate.2 Presumptions cannot be indulged against the continuance of a bona fide marriage relation. A consistent reputation of being married carries its full weight as to cohabiting parties, who appear to have lived together as husband and wife.4 And though the parties may have failed to observe certain formalities of license or registry, their marriage will generally be held good in both England and this country, even though the magistrate or clergyman be subject himself to a penalty for the irregularity. On the other hand, our ceremonial statutes of marriage, which require fulfilment at all, must, in fundamental

1 Queen v. Cresswell, 1 Q. B. D. 446. And see Stallwood v. Tredger, 2 Phillim. 287.

2 See Hutton v. Harper, 1 H. L. App. 464; Sichel v. Lambert, 15 C. B. N. s. 781; Prowse v. Spurway, 26 W. R. 116; Cannon v. Alsbury, 1 A. K. Marsh. 76; Askew v. Dupree, 30 Ga. 173; Blackburn v. Crawfords, 3 Wall. 175; Holmes v. Holmes, 6 La. 463; Stevenson v. Gray, 17 B. Monr. 193.

3 Wiseman v. Wiseman, 89 Ind. 479. 4 Lauderdale Peerage, 10 App. Cas. 692; Hynes v. McDermott, 91 N. Y. 451. See 28 Hun, 235; Northrop v. Knowles, 52 Conn. 522. The presumption of marriage arising from matrimonial cohabitation, declaration of the parties, and reputation, is not rebutted by proof of a subsequent actual marriage. Betsinger v. Chapman, 88 N. Y.

487.

Marriage certificates and copies of

marriage records are treated with especial favor as proof. 60 N. H. 418; 78 Me. 20. The testimony of the person who performed the ceremony or of some witness present is otherwise desirable. The presumptions are in favor of bona fide marriage, while reputation alone will not establish that no marriage existed.

5 Upon this point, see, further, Schouler, Hus. & Wife, § 35, and cases cited; 1 Bishop, Mar. & Div. §§ 283, 287. There are various local statutes to the effect that where parties consummate a marriage in good faith before a justice of the peace or minister, &c., the marriage shall not be deemed void on account of the want of authority of such person. Stimson, Am. Stat. Law, § 6137. And a marriage among the Friends or the Jews is also allowed to be solemnized after their peculiar customs. Ib., § 6135.

respects at all events, be complied with. Thus, the essence of forinal marriage seems to consist in the performance of the ceremony by or in the presence of some responsible third person. And hence, unless parties can take refuge in natural law and an informal marriage, they are not permitted to tie their own knot.1

§ 30. Consent of Parents and Guardians. The consent of parents and guardians is one of those formalities which marriage celebration acts now commonly prescribe in the interest of society, as they do banns or the procurement of a license generally for better publicity. Such consent was not necessary to perfect a marriage at the common law. But Lord Hardwicke's Act made the marriage of minors void without consent of parents or guardians first obtained. This proved intolerable. A bona fide and apparently regular marriage was in one instance set aside, after important rights had intervened for no other cause than that an absent father, supposed to be dead, but turning up unexpectedly, had failed to bestow his permission, and the mother had acted in his stead. Gretna Green marriages, on Scotch soil, became the usual recourse for children with unwilling protectors. Hence the law was afterwards modified, so that, without the requisite consent, marriages, although forbidden, might remain valid; and these features are found to characterize most marriage acts in the different States of this country.6 Clandestine marriages are

1 Commonwealth v. Munson, 127 Mass. 459. And see Milford v. Worcester, 7 Mass. 48; Tholey's Appeal, 93 Penn. St. 36; Norcross v. Norcross, 155 Mass. 425. But in Beamish v. Beamish, 1 Jur. N. s. Part II. 455, it was held in Ireland that a clergyman might marry himself. See 1 Bishop, § 289. A verbal reservation just previous to a marriage ceremony by one of the parties is not readily supposed to invalidate the marriage. Brooke v. Brooke, 60 Md. 524.

2 26 Geo. II. c. 33. See 2 Kent, Com. 85; Rex v. Hodnett, 1 T. R. 96; 1 Bishop, Mar. & Div. 5th ed. §§ 293295, and cases cited.

3 Hayes v. Watts, 2 Phillim. 43.

4 Stat. 19 & 20 Vict. c. 96, to stop these runaway matches, enacts that no irregular marriage contracted in Scotland shall be valid unless one of the parties had his or her usual residence in Scotland, or lived there for 21 days preceding the marriage. Lawford v. Davies, 39 L. T. N. s. 111.

5 Rex v. Birmingham, 8 B. & C. 29; Shelf. Mar. & Div. 309-322; Stat. 4 Geo. IV. c. 76.

61 Bishop, Mar. & Div. §§ 341-347, and cases cited; Smyth v. State, 13 Ark. 696; Wyckoff v. Boggs, 2 Halst. 138; Bollin v. Shiner, 2 Jones (Pa.), 205. And see Wood v. Adams, 35

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