to the truth of this statement. The Marriage Law Commissioners distinctly pronounce against the farce. In populous places no really valuable publicity is obtained by banns, which afford no safeguard against improvidence, illegality, or fraud. And frequently, from their very great number they furnish an inconvenient and unseemly interruption to Divine Service. Lord Eldon observed, it has been uniformly said, especially as to marriages in London, that the clergyman cannot possibly ascertain where the parties are resident; but this is an objection which a court before which the consideration of it may come, cannot hear.* But what is the answer of the Marriage Law Commissioners? Although banns are intended as a security against clandestine marriages, the law has given the clergyman no express power to call for or compel any information, as to the age, kindred, history, or other circumstances of parties unknown to him; except that he may, if he thinks fit, require from them seven days' notice with a statement of their names, and places of abode, within the chapelry, and length of residence in such places of abode. No legal penalties, however, are incurred by the false statement even of any of these particulars. Many also procure their banns to be published in populous places where they do not usually live, and are not personally known, and where the clergy have neither the leisure to seek nor the means of obtaining accurate information concerning them.

The Commissioners conclude that although publication of banns may be had, when required, that they should not henceforth be required by law as a condition either of the lawfulness or the regularity of marriage. Every useful purpose which can be answered by the publication of banns may be equally answered by the mere fact of notice to the officiating minister; only arm him with a power, which the Superintendent Registrar enjoys of exacting a true declaration, accompanying with the penalties of perjury every false

* Dr. Phillimore's Ecclesiastical Law, chap, 1. 778; Cripps on Church and

Clergy, 645.

and fraudulent declaration so made. This would, in every probability, provide some check against the contraction of illegal marriages, and the statutory requirement of banns throughout the United Kingdom may be abolished without any public disadvantage.

Should licences be continued, every clergyman having care of souls should be made a surrogate, and have power to grant a licence for marriage for the same price as is paid for the publication of banns. If it be right that the rich may be married by licence, the same privilege ought to be brought within the reach of the poor. "Marriage is honourable to all" and God's blessing is not to be purchased by filthy lucre.

2. Clandestine The non fieri

In England, prior to the year 1753, 26 Geo. III. c. 13, the Idate of Lord Hardwicke's Act, there were three modes of celebrating marriages in England: I. Those in facie Ecclesiæ, either by licence or banns. marriages by clergymen episcopally ordained. debet, factum valet doctrine being Church Law, the May-fair and Fleet prison marriages were valid. Then a marriage, even in a church without banns or licence, was as valid as with; for, although they were requisite, fit, or proper to be complied with, yet they were not necessary to the validity of a marriage.* A regular trade in clandestine marriages was then carried on by degraded clergymen of infamous character, the inmates of prisons-persons indifferent to all social and ecclesiastical restraints. 3. There were consensual marriages, sponsalia de presenti, or sponsalia de futuro, before explained.

Now there was always this difference; that the first and second kinds of marriages were good ab initio : the latter only potentially good. If A contracted a consensual marriage with B and afterwards a marriage in facie ecclesiæ, or a clandestine marriage with C, the temporal courts would recognize the second, and not the first. But if B, went to the Ecclesiastical Courts when a prior contract of marriage

Wright v. Ellwood, 1 Curteis 53: Bac. Abr. c. Marriage.

was proved, the Spiritual Court would compel the affianced party to solemnize the consensual marriage in the Church; the temporal courts would then repudiate the second, and admit the first marriage.*

Lord Hardwicke's Act (26 Geo. III., c. 33) abolished clandestine and consensual marriages; and insisted on all marriages, Jews and Quakers excepted, to be solemnized in the Established Church. This statute was stigmatized by Mr. Fox, in his celebrated speech, as "tyrannical, unjustifiable, oppressive, and ridiculous ;" and by Sir James Mackintosh, as more like a measure of the grandees of Castile made to protect their moral and physical imbecility from the admixture of plebeian blood, than a measure in character with the mild and unoppressive dignity of English nobility." For eighty years the battle on this Act continued; and not without difficulty was it repealed in 1823. In 1836, the 6 and 7 William IV., c. 85, the Registration Act was passed, and civil marriages became legal in this country.

Lord Hardwicke's Act abolished pre-contract marriages. A pre-contract marriage, per verba de præsenti or per verba de futuro, was a marriage by the civil law, and the canon law of Europe. The English law had been partially changed in England by 32 Henry VIII. c. 38; was restored by 2 and 3 Edward VI. c. 23, and abolished by Lord Hardwicke's Act; and when this Act was repealed by George IV. c. 76, it was reenacted by the 27th clause: That in no case whatsoever shall any suit or proceedings be had in any ecclesiastical court, in order to compel a celebration of any marriage in facie ecclesia, by reason of any contract of marriage whatever whether per verba de præsenti, or per verba de futuro, any law or usage to the contrary notwithstanding. In Ireland as to this state of law, a contract per verba de præsenti was first modified by 12 George I. c. 3, s. 6 and 7, afterwards abolished by 58 George III. c. 81. In Scotland such marriages are valid, but with this difference as to that which was once valid

Baxter v. Buckley, 1 Lee's R. 42. Oughton, tit. 209 et seq.

in England, that it is legally binding from the beginning, and not merely after regular solemnization enforced by process in the spiritual courts. In Scotland a clandestine marriage is simply a marriage without banns. Non-compliance with the legal condition of regular marriage, as to banns or otherwise, may subject the parties to statutory penalties, but cannot affect the validity of the intercharge as constituting marriage, the utmost effect of such non-compliance being to make the marriage irregular.

Lord Russell's Act, in 1834 (4 and 5 William IV. c. 28) enabled marriages to be solemnized by Roman Catholic priests or other ministers (not belonging to the Established Church of Scotland). It is not necessary in Scotland that marriages should be solemnized in any particular form, or at any particular place or time. The presence of any minister of religion at the time of solemnization, except Quakers and Jews, before their proper officers, entitles the contract to the character of marriage. The question of mutual acceptance must be solemnly put, and an answer required, as in the Roman stipulatio, and there must be a declaration made by the clergyman that the parties are married. Except in the cases of Roman Catholics and Protestant Episcopolians, the general practice is to marry in their churches and chapels; those marriages are, in fact, usually solemnized in private houses, and indiscriminately at all hours of the day.

No provision is made by the Scottish Registration Acts for enabling the Civil Registrar to give the character of a regular marriage to any contract of marriage entered into in his presence without any religious ceremony; nor is the presence of a Civil Registrar required at any regular marriage, though his attendance, if the parties desire it, may be secured, on payment of twenty shillings. There should not only be a power, but a compulsion of a registration of all marriages in Scotland. As to Roman Catholic marriages in Ireland, they may be as hasty and clandestine as any which formerly took place at the Fleet or Gretna Green; nothing but the priest being necessary. Mr. Monsell's Act (26 and

27 Vict. c. 90) is only directory, with a view to the registration only of such marriages.

The registration of such marriages should be as obligatory upon Roman Catholic priests as on anybody else. The small expense for Registrars the nation would cheerfully contribute; and, therefore, the expressed concern for the national exchequer, and the abhorrence of centralization on the part of the Roman Catholic clergy, must give place to a compulsory record of marriages in the Romish community in Ireland. Make the Romish priest, in every instance of the marriage of Roman Catholics, the Registrar of Marriage. He should keep duplicates of registers of marriages furnished for him by the Registrar-General, making the priest and not the husband of the marriage the party to communicate with the Registrar-General.

All this confusion of the Marriage Laws is worse confounded, when we consider that a lawful heir in Scotland is not necessarily an heir of land in England. That was decided by the House of Lords; but more especially by the differences in the Law of Divorce as administered in the three kingdoms severally.

An Irish marriage can only be dissolved by Act of Parliament unless the parties have an English or a Scotch domicile. The Act constituting the Divorce Court (20 and 21 Vict. c. 85) being confined to England.

Again, what are grounds for divorce in Scotland are no grounds for it in Ireland or England; and these grounds and the proper procedure to be based upon them are settled for England by statutes, which do not extend to Scotland or Ireland.

There is a conflict of the Law of Divorce in the separate kingdoms of Great Britain or Ireland. The House of Lords may be compelled on appeal to hold a marriage bigamous in England or Ireland, to be lawful in Scotland. Such a conflict should be removed by legislative enactment. And the legal effect and validity of a sentence of dissolution of marriage. pronounced in a bona fide suit by a Court having proper