Page images

and the State largely acknowledged the soundness of her claims, yet the latter strongly asserted it to be within its own proper province; and that, primarily, matrimony was a civil contract, and a civil status, into which the persons marrying entered. The social results of marriage —the position of the spouses to each other, and to the rest of the world-their liability to the criminal law by endeavouring to contract a second tie while the first yet subsists—and their mutual derivation of the rights of property, would warrant this claim of the State. The whole law of succession to property, as well as the position of the offspring, depends upon the union being marriage and lawful, or promiscuous and unrecognized. From whatever point of view we may regard it, marriage must always be important and interesting; and a very, if not quite the most, important point is, that the contract should be as public as possible. The entry into such an engagement and undertaking ought to be fenced in with safeguards against fraud, secrecy, or clandestinity. “It is the duty of the State to discourage and place obstacles in the way of sudden and clandestine marriages, both for the sake of inducing forethought and deliberation generally in the formation of indissoluble relations upon which the happiness, usefulness, and morality of life depend, and also for the special purposes of preventing incest and polygamy, and enabling parents and guardians to protect minors from improvident and unsuitable connexions."'* We may take a hint on this point from recent legislation. After the passing of the Irish Church Act, and by 33 & 34 Vict., c. 110, the heads of certain denominational bodies in Ireland were granted the privilege of issuing special licences, to marry anywhere and at any time within three months, to persons who were both of the same persuasion as the head or chief of the sect; but in the following year, by 34 & 35 Vict., c. 49, this privilege

* “Report of the Royal Commission on the Marriage Laws,” p. xxv.

was fenced in by the proviso that such licence should be preceded by a Registrar's certificate. Do the marriage laws of the United Kingdom really conduce to proper publicity and security ? We think that, individually, they fall very far short of these desiderata ; but harmoniously blended, they would, to a considerable extent, ensure these needful objects. The three kingdoms, England, Scotland, and Ireland, though politically forming a whole, are in many ways widely different from each other; the laws and customs found on one side of the border not only have vanished as you step across, but their very opposites and contradictories take their place. The task of assimilating the laws of the three countries, preserving the good of each, casting away the worthless, and supplying what is wanting, would be one that a legal or philosophical Herakles himself might well decline. The laws which deal with the formation of the marriage contract afford a striking example of this diversity. That course of conduct which in one country is evidence of marriage, and goes to prove a contract, is in another utterly powerless to impress upon a connexion, however vital it may be to the interests of many, the stamp of a valid marriage, if the intention of the parties is that their connexion should not be marriage. The law of the land here in England secures a greater amount of publicity in more instances both before and at the time of the marriage ceremony than that of Scotland or Ireland, certainly than that of Scotland, as we shall shortly see. In Ireland the law that governs the marriages of Roman Catholics is different from that which regulates the union of those of other denominations, and is the common law of the country in such matters; and as the marriages under it form a large majority of all that take place, in treating of our present subject we must regard it as the law prevailing in the country. The evil of this diversity of laws has been an ever present one, and from time to time attempts to grapple with it have been made; but like all reforms which

most nearly and dearly concern the good estate and happiness of the people, they have been for a time unsuccessful, and the matter has been shelved to a more convenient season. Legislation on marriage has been of the usual piece-meal and patchwork order-correcting from time to time flagrant abuses in England, then in a few years trying to assimilate the law of Ireland, with every now and then at lengthy intervals a tinkering up of the Scots law; harking back to dig up a fresh crop of scandals that flourished in England; then after an appropriate lapse of time weeding the Irish garden; and winding up with a feeble attempt to make the Scotchman's field something like that of the other two countries. A good sound judicious and universal piece of law-making was more than was to be expected ; and, we are afraid, is not yet to be realized; but hope still remains.

In 1865, a Royal Commission, presided over by the late Lord Chelmsford, was appointed “to inquire into and report upon the state and operation of the various laws now in force in the different parts of the United Kingdom with respect to the constitution and proof of the contract of marriage, and the registration and other means of preserving evidence thereof.” The Commission finally made their Report in July, 1868, and it is to this Report that we are largely indebted for much information and many useful suggestions in the following article. We shall not concern ourselves about the registration of marriages, because that is a matter that is only the effect of a cause, and happens after the event, and does not fully secure publicity or check fraud and improvidence in the inception of the tie. We shall treat only of the preliminaries of marriage which may best secure regularity and publicity of the fact. We shall not touch upon such questions as the capacity or ages of the contracting parties ; nor will divorce come within the scope of our suggestions. In a word, to sum up the gist of our remarks before whom, as an official witness, shall the

consent of the parties to become man and wife be declared ? We propose to divide our subject under the following heads:

I. A statement of the marriage laws of the three kingdoms.

II. Desirableness of uniformity of laws, and of making a civil ceremony compulsory.

III. Criticisms on certain objections which may be offered to such a proposal.

IV. A sketch of the proposed plan to ensure proper publicity and notification of the fact of marriage.

I. We will first set out the laws of England which deal with the preliminaries of marriage, then those of Ireland, and lastly those of Scotland.

Marriage Laws of England. 1. Marriages according to the Rites and Ceremonies of the Established Church.

(i.) By Publication of Banns under 4 Geo. IV., c. 76.Banns must be published in an audible manner, on three consecutive Sundays preceding the marriage, in the parish church or public chapel of the parish or chapelry, in which they may lawfully be published (or of each parish or chapelry, if more than one], in which the persons intending to marry shall reside, who must be named in such church or chapel (or one of such churches or chapels], except their proper church or chapel is rebuilding or under repair. Before publishing banns the clergy can, but very seldom do, require seven days previous notice of the names and residence of the persons to be married. Such publication of banns is absolutely void if the clergyman publishing them has notice of dissent at the time of publication from those entitled to dissent ; or, if the marriage is not solemnized within three months of last publication; or, if the marriage is without good reason not solem nized in the

sec. 4:

proper church or chapel. Publication of banns can lawfully take place only in parish churches, and in other churches or chapels specially authorized by episcopal licence, or Order in Council.

(ii.) By Special Licence.—This is granted by the Archbishop of Canterbury alone under 25 Hen. VIII., c. 21,

Its price is prohibitive; and it is a luxury in which only the wealthy can indulge; and but very few are issued in the course of the year. It is granted only on special grounds; its privileges are that the marriage can take place at any time and any place within three months of its issue.

(iii.) By Common Licence. This is granted by the Archbishops through their vicars-general for their respective provinces, and by the Bishops through their Chancellors and surrogates, for their dioceses, under 4 Geo. IV., c. 76. One of the persons wishing to be married by such licence must appear in person before the surrogate, and state upon oath :-(a.) That he or she has, for the preceding fifteen days, had his or her usual place of abode within the parish or district in the church or chapel of which the marriage is to take place. (b.) That he or she does not know of any impediment of kindred or alliance, or any other lawful cause why the marriage should not be. (c.) That the consent of the proper persons has been obtained. [This last is required where either party is a minor, and has not been previously married.]

A marriage upon a licence must take place in a church or chapel named in the licence within three months from the date of its grant. A caveat may be lodged against such licence, in which case it must not be issued until the judge, out of whose office the licence is to issue, certifies to the Registrar that such licence ought to issue, or the caveat is withdrawn.

(iv.) On Production of the Registrar's Certificate, under 6 & 7 Will. IV., c. 85, and 19 & 20 Vict., c. 119.—This certificate

« PreviousContinue »