Clemens of Alexandria mentions the case of a young woman, who being solicited concerning a lawful marriage, referred the matter to her mother". The reference proved the piety of the daughter, without establishing the nullifying power of the mother, which was not admitted even in the Roman law.

Ambrose explains the apostolic injunction, of marrying in the Lord, of the duty of a daughter to leave the choice of a husband to her parents. Even this extraordinary exposition is by no means conclusive of a right of nullity. The expressions of the pretended Ambrose, concerning the validity of marriages contracted out of the appointment of God, which when they are known require to be amended', have been also interpreted of marriages without consent. But the argument of the apostle and his commentator relate to the marriages of the faithful with the unbelieving, interdicted in both the Testaments; and it is vain to deny the continuance of this interdiction, and to ground upon the denial a right of nullity, not asserted in either Testament. Ambrose, in maintaining the alleged right, pleads for moderation in its use.

Basil denies the force of covenants, contracted by such as are in the power of another. The rule proceeds on the assumption, that in respect of marriage one person is in the power of another. He also calls the marriages of minors stolen, or married clandestinely and without the father's consent, not matri

mony, but fornication, of no validity, but null, unless they were ratified by the consent required. If they were null they could not be confirmed: and the assertion of their nullity, from want of consent, was the mere law of the empire.

Chrysostom exhorts parents to take seasonable. care for the marriage of their children, that they may not fall into debauchery; adding, as a reason, that if they shall be debauched before their marriage, they will fail in matrimonial constancy. The precept teaches the duty of parents: does it bear any evidence to the right of rescinding the marriages of their children?

Augustin speaks of a minor whom he could not give in marriage, even by her own consent, because she had an aunt, who ought to be consulted; and perhaps a mother, to whom nature gave the preference, before all others, in disposing of her daughter, unless she had attained the age in which she had free liberty to dispose of herself. The rule is unexceptionable, but it is inconclusive of the right of nullity, and it is inconsistent even with the Roman law.

In the Epistle ascribed to Evaristus, it is pretended to be an apostolical tradition, that there is no marriage, unless the wife be asked of those who have the dominion over her, and in whose custody she is, unless she be betrothed by her parents and relations, and lawfully endowed, and sacerdotally blessed. Parts of this pretended tradition are manifestly counterfeit, and probably not more ancient than the sixth century the right of nullity forms no part of it;

and it relates to the marriage of the woman, and not of the man.

There are other authorities alleged by the advocates of nullity, which it would be improper to overlook, but which are not of sufficient value to demand a distinct refutation. Thus the Pope Leo asks, What should that wife be, who is to be deemed according to the law a chaste virgin, betrothed in her virginity, lawfully endowed, and delivered by her parents to the bridegroom, and received by the paranymphs; and thus, according to the law and to the Gospel, taken by a public marriage for a wife? He also affirms, that women joined to husbands by the will of their parents are blameless. Pope Nicolas declares that nuptial contracts are formed by the consent of the contracting parties, and of the persons in whose power they are. The rule of Gregory is, that when a girl that has been ravished is restored to the power of her father, and the ravisher repents of his offence, they may marry, with the consent of the parents of both parties; and that if a woman shall be married by force, and without the will of her father, he is free to take her from her husband, and deliver her to whom he will'.

So weak and inconclusive are the testimonies of the fathers to the right of nullity: the decrees of councils produced by Gerhard, in favour of the right in question, are clear in affirming the duty of obtaining consent; but they fail to establish the power of annulling marriages contracted without consent. Thus it was ordained in the fourth council of Car

'Gerhard, s. 69.

thage: When the bride and bridegroom are to be blessed by the priest, they are to be presented by the parents or paranymphs to the priest. Again, in the third council of Toledo: Let widows marry whom they will: let the same be the condition of virgins: nor let them be constrained to marry against the will of their parents, or their own wills. So in the council of Orleans: If the girl who is ravished has a father, and she shall have consented with the ravisher, she may be delivered by the will of her father, and the ravisher is liable to make satisfaction to the father, if he be of superior condition.

There is no presumption in asserting the irrelevance of these authorities, and their incapacity of sustaining the right in question. Hotman, a very competent judge, has pronounced it to be most clear that the consent of parents is not required by the canon law, and the exceptions which have been alleged are such as confirm the opinion. That the fathers have not spoken more fully upon the subject may be accounted for by the prevalence of the Roman law at the time, under which it would have been impolitic to maintain a doctrine of which the practical consequences would have been so pernicious as the civil nullity of marriage, and which might have exposed its advocates to the frowns of the imperial law. But it is bold and gratuitous to assume, that the invalidity of marriages contracted without consent was held until the thirteenth century, when marriage was made matter of ecclesiastical cognizance, and the doctrine of its indissolubility

m Schott. ad s. 68. sqq.

was first inferred from the mystical union of Christ with his Church. This doctrine is derived from apostolical authority, and is one of the first and most continuous traditions of the Church. The validity of marriage in the time of Tertullian, if not of Ignatius also, depended on its public profession before the Church; and, notwithstanding the rigour of the ancient law of Rome, Ulpian, the contemporary of Tertullian, has affirmed, that the concord of matrimony cannot be disturbed by the paternal authority". The husband had also the right of demanding his wife of a parent in whose power she was,' and who detained her against her will: and hence results the axiom of equity and of law, that marriages are not lawfully contracted without consent of the persons in whose power the persons marrying are, but that being contracted they are not dissolvedo. They may be compared with irregular wills, which, notwithstanding their informality, are nevertheless wills and such marriages, although they are unjust in respect of the parents, may nevertheless, in respect of the parties, grow into good marriage, by their constancy in matrimony". These opinions of the old civilians are alone decisive of the question of nullity; and they proceed upon the ground that the public interest prevails over the private advantage of the parent, the only reason pretended for the right of nullity. It is at the same time necessary to observe, that the advocates of nullity do not impugn the doctrine of indissolubility of marriage, but insist

" Brisson de Ju. Con. Brisson.

Paulus in libr. Senten. apud P Fr. Hotman de Rit. Nu. et Matr. c. 3.