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under a minister, and with forms agreeable to their private notions of religious doctrine and discipline. It has been strongly urged, that the religious celebration of marriage is as congenial to the common sense of Englishmen as the trial by jury; that no father would consent to the marriage of his daughter, that no woman who respects herself would submit to be married, without a religious ceremony; and that, if under any change of the law the necessity of marrying in the Church should cease, the religious service would not be abolished but transferred.
It is asserted by Blackstone, that it is held to be essential to a marriage, that it be performed by a person in orders, though the intervention of a priest to solemnize this contract is merely juris positivi, and not juris naturalis aut divini : it being said, that Pope Innocent III. was the first who ordained the celebration of marriage in the Church, before which it was totally a civil contract.” It is obvious to remark, that the learned commentator states the fact on the authority, not of his own investigation, but of general report, which, it has been remarked“, that he has so far invalidated, as to acknowledge in another place the earlier practice of the dos ad ostium ecclesiæ, which was the ecclesiastical recognition of the espousals. It is but a disputable fact, therefore, which is the origin of the opinion, that the intervention of a priest in the celebration of marriage is juris positivi : the universal use of at least some form of religious ratification seems to justify the
Chr. Remembrancer, vol. iv. p. 294. • 1 Bl. Com. c. 15. * Shepherd's Elucidation of the Common Prayer; Office of Solemnization of Matrimony.
opinion that it is juris naturalis : and it was the doctrine of the Church, affirmed by Isidore of Se. ville', long before the existence of any thing which bears the name of common law of England, that it was juris divini. The doctrine that it is essential to marriage that it be performed by a person in orders, is founded, not on the statute, but the common law, the unwritten, unrepealed law of the remotest antiquity, and applies equally to the present form of solemnization, which is undisputed ; to the celebration in the face of the Church or the congregation, under the law of Henry VIII, and the ritual of Edward VI. and to the ancient dos ad ostium ecclesiæ. The publication of banns, which might be as reasonably attributed to the council of Trent as the solemnization of marriage to the council of Lateran, has made marriage always an ecclesiastical act.
Lord Hardwicke's bill' makes no mention of orders, because the practice was too common to require a declaration of the law. The last Act does only not set aside the marriage which is contracted in good faith of the orders of the minister.
It is nevertheless necessary to distinguish the civil
* De Div. Off. 1. ij. c. 19. Quod in ipsa conjunctione connubii a sacerdote benedicuntur, hoc est a Deo in ipsa prima conjunctione hominis factum ... Hac ergo similitudine fit nunc in Ecclesia qua tunc factum est in Paradiso.
'Blackstone (Com. b. i. c. 15.) calls this Act, “ an innovation upon our ancient laws and constitution," with manifest allusion to the nullifying power given to guardians and the court of chancery. In Dalrymple v. Dalrymple the description is most inaccurately applied to the subject of irregular marriages, and the necessity of resorting to a public and regular form, which was no innovation.
effects of marriage from its divine origin and religious ratification, and to admit, that under the provisions of national law, the one may be obtained without the intervention of the other. In Scotland and in France marriage is a merely civil contract, conveying civil rights, and regulating the legitimacy of children and the descent of property, without a religious celebration. In England also, under the Marriage Act, the religious ratification was nullified by the neglect or contravention of the forins prescribed by the law: and there is also an intermission of the customary office in the case of the Quakers and the Jews, with a legal reservation of their civil rights: but these are exceptions to the general tenour of English law and of English feeling, traditionally delivered from the remotest periods of English history. It is acknowledged, that by the laws of France, so early as the beginning of the ninth century, (A. D. 820.) the use of the sacerdotal benediction, and the contract of marriage in the Church in the presence of the priest, was not only common, but that no other marriage was deemed legitimate, and that under this customary form of nuptial benediction, the second of our English sovereigns, Ethelwolf, was married to the daughter of Charles the Bald. The practice of our Anglo-Saxon ancestors is further explained by the laws of king Edmund, in the following century, (A. D. 940.) requiring the presence of a priest at the espousals, who, by delivering the blessing of God, might promote the union of the parties in all sanctity, and in all fulness of happiness: and the council of Winchester, in the next century, (A. D. 1076.) declares it to be no less than the prostitution
of a daughter, to give her in marriage without the benediction of the priest. Other councils of the same age require the celebration in the face of the Church, and prohibit the celebration in private and unhallowed places. In a great council held in Ireland, (A.D. 1171.) it was ordered, that the laity, who wished to have wives, should unite them to · themselves by the ecclesiastical law : for many of them had as many wives as they liked, and were accustomed to take wives of their relations, and even their sisters, if germanas is here to be so understood". The rule of this council recognizes the ecclesiastical law as a known and settled rule: and the neglect of that law resulted in the prevalence of polygamy, and probably of incest. The marriages which were contracted without the sanction of that law may be supposed to have been of the same nature, as the union of slaves in feudal times, which was not solemnized by any religious ceremony or sacerdotal benediction, and was not called nuptiæ or matrimonium, but contubernium'.
These synodal authorities were all previous to the council of Lateran, and may be alleged in proof of the antiquity and necessity of the religious ratification of marriage. The same necessity was enforced in the Act, 32 Hen. VIII. c. 38. requiring the celebration of marriage in the face of the Church; and the revised Office of Matrimony, concerted in
* Ux. Ebr. 1. ii. c. 29. Comber, Intr, Office of Matr.
"Gent. Mag. vol. 94. pt. ii. p. 427. from the Decem Scriptores, col. 1071.
i Robertson's Charles V. vol. 1. note ix.
the reign of his son, and reestablished in the reign of Elizabeth, speaks of the ministration of the priest and the curate, and of the assembly of the parties in the presence of God and of the congregation. The constant effect of the religious ratification is thus expressed in the quaint language of a lawyers, in the reign of James I. in shewing “how baron and fême are said to be one person.
If Titus and Sempronia, by words de presenti, in a lawful consent contract marriage, they are man and wife before God. But they cannot do all that married persons may: ye know my meaning : id possumus, quod de jure possumus : but they may, saith Parkins, infeoffe one another: for they are not yet una persona in the eye of the law. If it fall out, that the woman chance to die before nuptials celebrated, he which is no more but betrothed, shall not have her goods, except it be by her last will and testament, which she might, without craving licence of any body, have ordained according to her pleasure. . .
... Public celebration, therefore, according to law, is that which inaketh man and wife. In plain view of law, consensus non concubitus facit matrimonium. But one naile keepeth out another, and a firm betrothing forbiddeth any new contract; yet they which dare play man and wife only in the view of heaven and closet of conscience, let them be advised how they shall take the advantages or the emoluments of marriage, in conscience or in heaven : for on earth, if the priest
* The Woman's Lawyer, written about 1632, as is supposed by Justice Lawrence, and recited by Mr. Shadwell, in Beer v. Ward, as reported in Times, Nov. 22, 1823.