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Lord Penzance, Lord Mayo, Lord Lyveden, the Lord Justice General of Scotland, Mr. Monsell, Mr. Walpole, and Mr. Dunlop. They commenced their inquiries by issuing a circular letter to the ecclesiastical authorities of all persuasions, and received a very general response. They also examined learned witnesses, and extended their inquiries over three years. A report was prepared by Lord Selborne, which was generally signed: two Roman Catholic Commissioners, Lord O'Hagan and Mr. Monsell, dissenting as to the recommendations concerning the law of divorce. According to their creed, the marriage tie is held as indissoluble, and divorce, a vinculo, as contrary to the law of God. The Lord Justice General of Scotland expressed his settled conviction, founded on experience, and a patient study of the subject, that the marriage law of Scotland is preferable in theory and principle to the marriage law of England, as being exempt from harassing doubts, as to the validity of regular marriage in facie ecclesiæ in Scotland; thus preserving the security of titles and the peace of families. The Commissioners recommended that the whole of the enactments of the marriage law should be embodied in a single statute, and that all the existing statutes of the United Kingdom, thus embracing Scotland and Ireland, should be repealed.
Already mention has been made of the canon of Archbishop Lanfranc, in 1076: there is another utterly unsuited to a Protestant community, that of King Edmund in 945. It reads thus. “The mass priest shall be at the nuptials who shall, according to right, with God's blessing, celebrate their union (i.e., of the contracting parties) with all solemnity.”
The Commissioners also report, that great care should be taken, not to revive, by such repeal, any canon, or other law on the subject of marriage, which has been expressly or virtually repealed by former legislation.
It is now five years since the report of the Marriage Commission was presented to Parliament, and it must be a matter of regret, if not of reproach, that no action has been taken by the responsible advisers of the Crown.
tion now seriously attracts public attention, and probably, when dealt with, will be found through public sloth, not to be in such favourable circumstances for legislation as may be desired.
What the Commissioners aimed at was to give certainty to marriage, and reasonable time for the proper interested parties to prevent hasty and improvident marriages; and to reconcile the great and important principle of a civil contract with the sanction of religion. With this view the Commissioners proposed that, by enactment, every authorised minister of religion who is in the active exercise of official duty in his respective church or denomination, and who is, also, amenable to public responsibility as well as to the censure and discipline of his own religious community, should be rendered competent for civil purposes to solemnize marriage, and thus to perform the office of registrar, giving at the same time parties the option and right to be married by the ordinary registrar. The great object apparently of the Commissioners seemed to be to simplify the marriage laws of the three kingdoms, to make them uniform, to remove the cases of scandal and uncertainty which occurred so frequently in Scotland and Ireland, and utterly to sweep away that remnant of the sectarian system, by which the validity of marriage might be affected.
The Statute Book contains no less than twenty-seven Acts of Parliament relating to marriage in England, with their usual perplexing amendments, and partial repeal of other and parts of Acts. Nor are they confined exclusively to marriage ; they deal with matters auxiliary thereto, but logically distinct. Let all these be repealed, and the marriage code simplified and consolidated. At the present time in England there are no less than eight modes by which parties can be married. 1. By the ceremonies of the Established Church after banns. 2. In the same mode after license. 3. In the same mode by the Superintendent Registrar's certificate. 4. By purely civil marriage before the Registrar. 5. By Nonconformists' ceremonies in the presence of the Civil
Registrar. 6. By Jews or Quakers' ceremonies without presence of the Civil Registrar. 7. Quakers, in the presence of their registering officer. 8. By Jews, in the presence of the secretary of a Jewish synagogue. In Ireland there are six modes of marriage. 1. By the rites of the dis-established church after banns. 2. In the same mode after license.
3. In the same mode under the authority of a Registrar's certificate. 4. By a Romish Priest. 5. By Presbyterians, 7 and 8 Vict. c. 81). 6. By the purely civil ceremony under a registrar's certificate. It is observable that it is compulsory on the Clergy in Ireland, and not optional, as it is in England, to solemnize marriage under the authority of a Registrar's Certificate. As to Roman Catholic Marriages prior to Mr. Monsell's Act 26 and 27 Vict. c. 90, they were left to the operation of the Common Law without any statutory enactment; and so far as relates to the legal constitution of marriage between such parties, this is still the case : the provisions of the Act being merely directory, with a view to the registration only of such marriages. The Act 36 Vict. c. 16, relates to any religious community, who are not Roman Catholics, and who do not describe themselves as Protestants, such as the Irvingites, as to the Registration of their places of public worship in Ireland for purposes of Marriage.
There are also six modes of securing marriage in Scotland. 1. By the Established Presbyterian Church of Scotland. 2. By the Episcopal Clergy. 3. By Ministers of all persuasions. 4. By verba de præsenti. 5. By verbai subsequent copula. 6. By habit and repute. I. Before 1o Anne, c. 7, and 4 and 5 Will. IV. c. 28, the solemnization of marriage by any other than a minister of the Established Church of Scotland, was prohibited under severe penalties, and deemed clandestine and irregular. 2. By 10 Anne, c. 7., the first relaxation was in favour of Protestant Episcopal Clergymen duly ordained by Protestant Bishops. 3. By ministers of all persuasions. The Act 4 and 5 Will. IV. c. 28, extends the privileges accorded to the Episcopal Clergy to all other recognised ministers of religion ; and the penalties imposed by the older
statutes upon the Celebration of Marriage in Scotland by Roman Catholic Priests or other ministers, not belonging to the Established Church were repealed, though even now the banns of parties of every denomination must be published in the parish Kirk. The three other modes by which marriages may be effected in Scotland. 4. Per verba de præsenti ; the parties either with or without witness exchanging their mutual consent to be henceforth man and wife. 5. Per verba subsequenti copula ; that is, where a promise of future marriage is made, and then cohabitation of the parties following ; this is held to constitute a valid marriage, though there has never been a present contract. By the Judgment in the Dalrymple case and in the subsequent case of in McAdam the House of Lords, de præsenti, in Scotland, was elevated to the position of marriage. Cohabitation need not be proved. But marriage de futuro subsequenti copula, must be proved by writing or oath of party. The latter cannot be required if it would invalidate a subsequent marriage. Also, it is controverted by high authorities whether such marriage is valid without being so pronounced by some high judicial sentence in the life-time of both parties. 6. By habit and repute, that is, where the parties have for a length of time lived together as man and wife, and have been generally reputed to
In Scotland there is no provision for civil marriage ; but divorce, a vinculo, is allowed.
Under the Act 19 and 20 Vict. c. 96, commonly called Lord Brougham's Act, it is necessary for the validity of any marriage contracted in Scotland, that one of the parties should either have his or her usual place of residence in Scotland at the date of the marriage, or have lived in Scotland for twenty-one days next preceding such marriage. Be fore this Statute, it was very common for English persons to contract clandestine marriages in Scotland, at Gretna Green, and other places, immediately after crossing the border; a practice which this Act has effectually suppressed.
Nevertheless, although an English man is prevented from
he may m
marrying one of his own country-women in Scotland for twenty-one days, unless she had domiciled so long in Scotland
rry a Scotch woman the hour after he sets his foot in Scotland. A Scotchman may now run away with an English heiress, and immediately marry her irrevocably per verba de præsenti. Clandestine marriages
Clandestine marriages in Scotland may, however, be registered either by the process prescribed by the Registration Act, 17 and 18 Vict. c. 80., or by Lord Brougham's Marriage Act, 19 and 20 Vict. c. 96, although the strictly penal Clandestine Marriage Acts, 1661, C. 34, and 1698, c. 4, are still unrepealed. In either case of Registration, an extract of the marriage from the Registrar's book, is received as evidence of the marriage without further proof, over all Her Majesty's dominions.
From this detail we discover that, contrary to public policy, there is an exceedingly undesirable want of uniformity as to the mode in which the marriage contract may be accomplished in the United Kingdom. As to Scotland, Lord Hailes, a great authority, declared in 1772, that the law of Scotland regarding marriage was derived from the rules of the Canon Law, as that law stood before the era of the Council of Trent. Thus, what was the law of all Europe, while Europe was barbarous, is now the law of Scotland only, when Europe has become civilized. The recommendation of the Commissioners is, as the conclusion of their reasonings upon this point of view, that the law of consensual marriage, and of marriage by promise subsequente copulâ, as it now exists in Scotland, ought not to continue.
The conflict of the laws of marriage in the different kingdoms of this realm is fearful, and most disastrous in its results. The marriage law of each country is supreme within its own domain ; and a man or a woman, without the commission of an indictable offence, may be legally married at one and the same time to two persons, the law in one part of the kingdom regarding the first, and the law in the other part of the kingdom regarding the second marriage as valid, or the laws so contravening might subject parties to very