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destinely or temporarily. As to the benediction of a priest, they say marriage is a holy state, and if deemed necessary the blessing of heaven should be invoked on the union; but this is paralleled by what is done on going on a long journey, or to war. God's grace is called down on our battalions when engaged against the enemy, although they may be on the wrong side, just as the priest pronounces a benediction over a couple who may have joined themselves together with sordid or unholy views. The necessity for marriage before a priest arose from the rude state of the times. The church, after apportioning out lands for dioceses under episcopi, subdivided these for better rule into smaller districts, parochiæ, under parochi, or parish priests. This parochus was generally the only lettered man of his district, and was the head of all matters, whether concerning war or peace, and was the chief repository of facts and events that occurred within his knowledge and district. Though this parochus, before whom the ceremony was to be performed was in holy orders, according to the Canon law he was originally intended to be only the witness of the union of the contracting parties.* Perhaps the espousing couple sufficiently celebrated the sacrament in themselves when they mutually declared to take each other for better or for worse during the time of their natural lives, and all that was required of the parochus was to be witness of the espousals, and to be the repository of the fact; in reality he was there in an attesting and not ministerial capacity, but by degrees assumed the latter functions. That the priest served as a quasi district registrar in those times is proved by the husband at the marriage
* The ecclesiastical view that marriage is a sacrament does not necessarily call for the action of a priest. In the language of theology sacrament does not connote priest, sacrifice does. Therefore it is the doctrine of the Western Church that a lay man or woman may baptize, but that only a priest can consecrate the Eucharist. This distinction could admit the validity of marriages performed by a civil officer without deciding the point whether the benedic. tion in the marriage service is one that only a priest can pronounce.
taking him to witness that he dowered his wife of such and such lands, either specifying them, or generally describing them. This was done that the parochus should be enabled to testify exactly to what the widow was entitled in the event of a dispute on the subject.
Finally, the supporters of this view argue that the State in England claims direct control over marriage; and they adduce two reasons, exclusive of divorce.—(a) The marriage ceremony must be performed in a licensed or authorized place. This license implies a permission granted by the State for the purpose of holding marriage ceremonies. This licensed place need not necessarily be a church, because dissenting houses of prayer, which cannot be called churches, can be and are licensed for this purpose ; and while in no church which is not licensed can such ceremonies be performed, they may be in these more irregular buildings, and with any service that pleases the scruples and fancies of the worshippers. If the couple about to marry wish their nuptial rites to be solemnized at any particular time or place, by paying a considerable sum of money to either Archbishop, they may obtain a license to that effect. Publication of the fact of marriage is amply secured by the provisions of the law on the subject. (6) Marriage is capable of being contracted before a civil officer. Although this is very important as to the civil view of the question, yet it is hardly worth while to do more than state that by 6 and 7 William IV., c. 85, the officer, called the superintendent-registrar of a district, has the power conferred on him of marrying any couple who are not legally disqualified, and who declare their intention of marrying; and, though there may not be any religious ceremony performed over them, his certificate that they are married man and wife is sufficient in the eye of the law. This statute did away with those marriages to which a factitious fame was given by the fact of their being celebrated by the Gretna Green Blacksmith. They belonged to the category of " clandestine matrimony" in the classi
fication of Sir George Mackenzie (Institutions of the Laws of Scotland) because not celebrated “in facie ecclesiæ" after due proclamation of banns. But they were, down to the passing of the Act of William IV., perfectly valid marriages in Scottish Law, and it is the requirement of residence for twenty-one days which alone put an end to the romance of elopements.
The foregoing may be a sufficiently fair statement of the claims put forward by both sides, but it is not very easy to determine accurately what is the exact view held by English law as to the nature of the marriage contract, because in proportion as the Church and State are intimately blended, so is it difficult to say which element here predominates. On the Continent, where the temporal and spiritual governments are not united, the matrimonial question is removed out of the domain of doubt, for the State has declared it to be of a civil nature and so under its supervision, and makes any religious service to be optional but not necessary.
The jus connubii in our legal system is of very wide extent, and we have scarcely any parallel to the social and political barriers that we find in Roman law. Natives and aliens, Christians, Jews, Turks, Infidels, and heretics may all intermarry, and there is nothing to prevent them; and we know that it is not an uncommon thing for gentlemen in high position to exalt from the basement to the drawing-room those who have ministered to their bodily wants. There are two kinds of disabilities, canonical and civil; the first making the contract voidable; the latter, void ab initio. The canonical disability is incapacity to procreate. The civil disabilities are (a) a prior marriage; (b) want of reason; (c) proximity of relationship by consanguinity and affinity; (d) want of age. There is one other limitation of the jus connubii in the case of the descendants of the body of his late Majesty King George II., who are incapable of contracting matrimony without the previous consent of the reigning
sovereign.* As the Canon Law incorporates a great amount of Biblical and Roman Law we shall find that the prohibited degrees are now-a-days almost the same as those in the times of the later Roman Empire. The prohibition is based upon nearness of blood and nearness of relationship entered into by marriage; this last is confined only to the parties to a marriage, and does not exist between their respective relatives; a man may not marry his wife's sister, but there is nothing to prevent his brother from contracting a marriage with her. On looking over the Table of Kindred and Affinity, we see that marriage is prohibited between ascendants and descendants ad infinitum ; but collaterally only as far as the third degree ;t thus by the letter, if not by the spirit of the law, a man might, were he so disposed, marry his great aunt. The prohibition of the connection of affines in our law is also the same as that which existed in the Roman Law after Christianity became the religion of the Empire, and through which such unions as between uncle and niece, and brotherin-law and sister-in-law were pronounced to be contrary to morality.
In conclusion, we will sum up the preceding observations. Among the Romans, marriage, whether of the category of real or consensual contracts, was of a civil nature, akin to ordinary commercial transactions, and in no sense a religious rite. The most important ceremony or formality that testified to the bargain was the deductio in domum
12 Geo. III., c. 9. By section 2 those of the royal family who, being over the age of twenty-five, wish to contract a marriage disapproved of by the sovereign, may give notice of their intention to the Privy Council ; and twelve months after may contract a valid marriage, unless both Houses of Parliament within such twelve months expressly declare their disapprobation of such intended marriage.
+ To find out in what degree any two people stand to each other, the common ancestor of both must be found, and the intermediate persons, if any, up to and down from the common ancestor (including the person whose degree to the one or the other side of the column is wanted) reckon each as a degree. Thus, uncle and nephew stand in the third degree to each other ; first cousins in the fourth, and second cousins in the sixth.
mariti of the woman. In early times, and among the nobler classes, the result of the marriage was to bring the wife into complete subjection to her husband; but at no very late period she obtained considerable liberty, and, finally, was in her person and property completely independent of her husband; which liberty by the time of Juvenal had, in many instances, developed into unbridled licence. The right to marry was, if we may use the expression, very artificial; and it took centuries of disintegrating influences finally to break down the barriers that hampered and harassed free intermarriage. Though there exists among us a large and important section which regard marriage as a purely religious rite, and completely ignores its civil side, it cannot be doubted for a moment that the State regards it as a purely civil bargain, over which it is competent to exercise its unfettered control. On reflection this will be found to be natural, for from marriage flow so many important results other than those of a religious or spiritual character; and it is not too much to say that upon marriage, to a large extent, depend the security of property, and the well ordering of Christian communities. While we have not had the innumerable bars to free intermarriage to contend with, the position of our wives in this present century is much less independent than that of the Roman ladies in the later times. The theory that they twain are one flesh, which flesh is the husband's, still largely obtains; and notwithstanding recent legislation in favour of married women, their position is not yet materially altered. Lastly, we would not wish anything in this article to be taken as denying the “holy state” of matrimony, or its divine origin ; our aim has been to show that the contract, as affecting persons other than those entering into it, concerns society and the ordering of the community, and is therefore within the province of the State, as representing society.
W. P. EVERSLEY.