In the Canon Law, which is related on the one hand to the civil law, on the other to the modern matrimonial law of Europe, although marriage was not merely a contract but a sacrament, the validity of marriages by consent was nevertheless admitted. “When the natural and civil contract was formed,” says Lord Stowell, “it had the full essence of matrimony without the intervention of a priest. It had even in that state the character of a sacrament, for it is a misapprehension to suppose that this intervention was required as a matter of necessity even for that purpose before the council of Trent.” England.— Marriage may be the subject of an ordinary contract on which an action may be brought by either party. It is not necessary that the promise should be in writing, or that any particular time should be named. The parties were formerly inadinissible as witnesses in this action; but they are now competent to give evidence, subject to the condition that the plaintiff shall not recover “unless his or her testimony shall be corroborated by some other material evidence” (32 & 33 Vict. c. 68). The ordinary defences, e.g., fraud, discharge, minority, are available in these actions, and there are also special defences arising from the nature of the contract, such as the bad character of the plaintiff, the relationship of the parties within the prohibited degrees, &c. Promises to marry are not within the meaning of “agreement made in consideration of marriage” in the statute of frauds, which requires such agreements to be in writing. Contracts in restraint of marriage, i.e., whose object is to prevent a person from marrying anybody whatever, are void, as are also contracts undertaking for reward to procure a marriage between two persons. These latter are termed marriage brocage contracts.

Any man and woman are capable of marrying, subject to certain disabilities, some of which are said to be canonical as having been formerly under the cognizance of the ecclesiastical courts, others civil. The effect of a canonical disability as such was to make the marriage not void but voidable. The marriage must be set aside by regular process, and sentence pronounced during the lifetime of the parties. Natural inability at the time of the marriage to procreate children is a canonical disability. So was proximity of relationship within the prohibited degrees, which has been made an absolute avoidance of marriage by 5 & 6 Will. IV. c. 54. A pre-engagement to another person was at one time recognized as a canonical disability. Civil disabilities are (1) the fact that either party is already married and has a spouse still living; (2) the fact that either party is a person of unsound mind; (3) want of full age, which for this purpose is fixed at the age of puberty as defined in the Roman law, viz., fourteen for males and twelve for females; (4) proximity of relationship within the prohibited degrees, already alluded to. The statute which lawyers regard as establishing the rule on this last point is the 32 Henry VIII. c. 38 (repealed in part by 2 & 3 Edw. VI. c. 23, in whole by 1 & 2 P. and Μ. c. 8, but revived by 1 Eliz. c. 1, and so left as under the Act of Edward), which enacts that “no prohibition, God’s law except, shall trouble or impeach any marriage without the Levitical degrees.” The forbidden marriages, as more particularly specified in previous statutes, are those between persons in the ascending and descending line in infinitum, and those between collaterals to the third degree inclusive, according to the computation of the civil law, which reckons from one of the persons related to the common stock and so down to the other person. The prohibitions extend not only to consanguinei (related by blood) but to affines (related by marriage). A man may neither marry his sister nor his deceased wife’s sister, for both are related to him in the second degree; nor his sister’s daughter, nor his deceased wife’s sister’s'daughter, for both are in the third degree; but he may marry his first cousin, for she is in the fourth degree. Consanguinei of either spouse are related by affinity to the other; but the consanguinei of the one are not necessarily related to the consanguinei of the other. Hence two brothers may marry two sisters, or a father and son a mother and daughter. A husband is not related to the affines of his wife, and so a man may marry the widow Of his deceased wife’s brother. The. rule as to collaterals includes those related by the half blood and bastards (see Stephen’s Commentaries, book iii. c. 2). Other disabilities previously admitted were abolished by the statute of Henry. The Act of 5 & 6 Will. IV. c. 54 enacted that “all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void to all intents and purposes whatsoever.” They had previously, as already stated, been only voidable. The Act at the same time legalized marriages within the prohibited degrees of affinity (but not consanguinity)actually celebrated before the 31st August 1835.

The celebration of marriages is now regulated wholly by statutory legislation. The most important Acts now in force are the 4 Geo. IV. c. 76 and the 6 & 7 William IV. c. 85. The former regulates marriages within the Church of England, but was intended to be of universal application, Jews and Quakers only being excepted by section 31. It requires either the previous publication of banns, or a licence from the proper ecclesiastical authority. As to banns, the rule of the rubric, so far as not altered by the statute, is required to be observed. They must be published on three successive Sundays at morning service after the second lesson, in the church of the parish in which the parties dwell; the bishop may, however, authorize the publication of banns in a public chapel. Seven days’ notice must be given to the clergyman of the names of the parties, their place of abode, and the time during which they have lived there. If either party is under age, the dissent of the parents or guardians expressed at the time of publication of banns renders such publication null and void. Licence in lieu of banns may only be granted by the archbishop, bishop, or other authority, for the solemnization of a maιτiage within the church of the parish in which one of the parties shall have resided for fifteen days before. Before a licence can be granted an oath must be taken as to the fact of residence and that the necessary consent has been obtained in the case of persons under age. The father, or lawful guardian, or mother if unmarried, or guardian appointed by the court, is each in order of substitution the proper person to consent to the marriage of a minor, and the place of any such person incapacitated mental ly is taken by the lord chancellor. The absence of such consent does not, however, avoid a marriage once solemnized. But if persons wilfully intermarry (unless by special licence) in a place not being a church or public chàpel, or without due publication· of banns or proper licence, or before a person not in holy orders, the marriage is null and void tα all purposes. Marriage must be celebrated within three months after banns or licence, and between the hours of eight and twelve in the morning.

For the relief of the great body of dissenters the Act 6 & 7 Will. IV. c. 85 was passed. It permits marriage to be solemnized in two additional ways,—viz. (1) by certificate of the superintendent registrar of a district without licence, and (2) by such certificate with licence. In the first case, notice must be given to the registrar of the district or districts within which the parties have resided for seven days previous, which notice is inscribed in a marriage notice book, open to public inspection at all reasonable times, and thereafter suspended for twenty-one days in some conspicuous place in the registrar’s office. The notice must be accompanied by a declaration as to the absence of impediments, necessary consent, &c. Any person whose consent is necessary to an ecclesiastical licence may forbid the issue of a certificate, but in default of such prohibition the certificate will issue at the end of the twenty-one days. The marriage may then take place on any day within three months of the entry of notice, and in one of the following ways :—(1) in a certified place of religious worship, registered for the solemnization of marriage; in that case a registrar of the district with two witnesses must be present, and the ceremony must include a mutual declaration of assent by the parties and a disavowal of any impediment; (2) at the superintendent registrar’s office, with the same declaration, but with no religious service; (3) in a church according to the usual form, the consent of the minister thereof having been previously obtained; (4) according to the usages of Jews and Quakers. The place of marriage in all cases must have been specified in the notice and certificate.

In the second case, when it is desired to proceed by licence, notice must be given to the registrar of the district in which one of the persons resides, together with a declaration that he or she has resided for fifteen days therein, that there is no impediment, and that the necessary consents if any have been obtained. The notice is not exhibited in the registrar’s office, and the certificate may be obtained at the expiration of one whole day after entry, together with the licence. No registrar’s licence can be granted for a marriage in church or according to the forms of the Church of England,—the ecclesiastical authorities retaining their monopoly in that respect. It is also provided that in the case of persons wilfully intermarrying in a place other than that mentioned in the notice and certificate, or without notice or certificate, &c., the marriage shall be null and void. And, as under the former Marriage Act of Geo. IV., a valid marriage between persons one of whom is under age, brought about by fraud or false oath, subjects the offendingparty to a forfeiture of all property that otherwise might accrue to him from the marriage, a like penalty is provided in like cases under the later Act.

11 will be observed that the various rules as to consent of parents, &c., to the marriages of minors are regulations of procedure only. The absence of the necessary consent is not a disability invalidating a marriage actually solemnized.

The Act 26 Geo. II. c. 33, commonly known as Lord Hardwicke’s Act, which forbids the solemnization of marriage without banns or licence, also enacts that “in no case whatsoever shall any suit or proceeding be had in any ecclesiastical court in order to compel a celebration in facie ecclcsiae, by reason of any contract of matrimony whatsoever whether per verba de presenti or per verba de futuro." Blackstone observes that previous to this Act “any contract made per verba de presenti, or in words of the present tense, and in case of cohabitation per verba de futuro also, was deemed valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiae." In his celebrated judgment in the case of Dalrymple v. Dalrymple, which turned on the effect of promises exchanged between the parties in Scotland, Lord Stowell laid it down “as the basis of the canon law, the known basis of the matrimonial law of Europe,” that “in the irregular marriage, i.e., sponsalia per verba de presenti, everything was presumed to be complete and consummated in substance but not in ceremony; and the ceremony was enjoined to be undergone as a matter of order. In the sponsalia de futuro, nothing was presumed to be complete or consummated either in substance or in ceremony, but if the parties who had exchanged the promise had carnal intercourse with each other the effect was to convert the engagement into an irregular marriage.” On the other hand, in the case of the Queen v. Millis in the House of Lords on appeal from the Irish Queen’s Bench, the position of Lord Stowell was strongly criticized. Lord Lyndhurst’s conclusion was that, ‘ ‘ although a marriage contracted per verba de presenti was indissoluble, though it could not be released even by the mutual consent of the parties, though either of them might enforce it and compel solemnization, though it had the effect of rendering voidable a subsequent marriage solemnized in facie ecclcsiae, even after the cohabitation and birth of children, though it was considered to be of the essence and substance of matrimony—yet by the law of England it did not confer those rights of property or the more important right of legitimacy consequent on a marriage duly solemnized according to the rites of the church.” The lords were equally divided in their decision, and the question has since been agitated not so much with reference to England, where after the Act of Geo. II. it had a merely historical interest, as to the colonies and the United States (see below), where the common laλv of England prevails unless changed by legislation. Dr Lushington in the case of a marriage in New South Wales declared that, when there has been a “fact of consent between two parties to become man and wife,” such is “sufficient marriage to enable me to. pronounce when necessary a decree of separation.” In the cases noticed the promises had been exchanged before ministers of religion not technically “in holy orders,” and the question has accordingly sometimes been put in the form whether, according to the common law, the intervention of a clergyman was necessary to a valid marriage.

Royal Marriages in England have been subject to special laws. The Royal Marriage Act of 1772 (12 Geo. III. c. 11), passed in consequence of the marriages of the dukes of Cumberland and Gloucester, enacted that “no descendant of his late majesty George II. (other than the issue of princesses married or who may marry into foreign families) shall be capable of contracting matrimony without the previous consent of his majesty, his heirs and successors, signified under the great seal. But in case any descendant of George II., being above twenty-five years old, shall persist to contract a marriage disapproved of by his majesty, such descendant, after giving twelve months’ notice to the privy council, may contract such marriage, and the same may be duly solemnized without the consent of his majesty, &c., and shall be good except both Houses of Parliament shall declare their disapprobation thereto.”

Scotland.— The chief point of distinction, as compared with English law, is the recognition of irregular marriages above noticed. (1) “A public or regular marriage,” says Fraser, “is one celebrated, after due proclamation of banns, by a minister of religion; and it may be celebrated either in a church or in a private house, and on any day of the week at any hour of the day.” The ministers of the national church at first alone could perform the ceremony; but the privilege was extended to Episcopalians by 10 Anne c. 7, and to other ministers by 4 & 5 Will. IV. c. 28. (2) A marriage may also “be constituted by declarations made by the man and the woman that they presently do take each other for husband and wife.” These declarations “may be emitted on any day at any time and without the presence of witnesses,” and either by writing or orally or by signs, and in any form which is clearly expressive of intention. Such a marriage is as effectual to all intents and purposes as a public marriage. The children of it would be legitimate; and the parties to it would have all the rights in the property of each other, given by the law of Scotland to husband and wife. (3) A promise followed by copula does not, according to Fraser, constitute marriage, unless followed either by solemnization in facie ecclesiae or declarator. On the other hand, in Lorimer’s Handbook it is urged that the promise and copula are mere tokens of consent recognized by the law, and that “the date of the marriage is the date of the copula.” However this may be, Lord Moncreiff’s opinion in the case of Brown v. Burns is admitted on both sides to be good law, viz., that declarator is essential to the constitution of a marriage of this kind, so that, if no such declarator be brought in the lifetime of both parties, the marriage can never be established afterwards. The copula is presumed to have reference to the promise, but evidence may be adduced to show that such was not the case.

By 19 & 20 Vict. c. 96, it is enacted that no irregular marriage shall be valid in Scotland, unless one of the parties has lived in Scotland for the twenty-one days next preceding the marriage, or has his or her usual residence there at the time.

“Habit and repute” has sometimes been spoken of as constituting marriage in the law of Scotland, but it is...

We find but few laws in the books of Moses concerning the institution of marriage. Though the Mosaic law no where obliges men to marry, the Jews have always looked upon it as an indispensable duty implied in the words, Increase and multiply,” Gen. i, 28; so that a man who did not marry his daughter before she was twenty years of age, was looked upon as accessary to any irregularities the young woman might be guilty of for want of being timely married. Moses restrained the Israelites from marrying within certain degrees of consanguinity; which had till then been permitted, to prevent their taking wives from among the idolatrous nations among whom they lived. Abraham gave this as a reason for choosing a wife for Isaac from among his own kindred, Gen. xxxiv, 3, &c. But when his descendants became so exceedingly multiplied, this reason ceased; and the great lawgiver prohibited, under pain of death, certain degrees of kindred as incestuous. Polygamy, though not expressly allowed, is however tacitly implied in the laws of Moses, Gen. xxxi; Exod. xxi, 10. This practice likewise was authorized by the example of the patriarchs. Thus Jacob married both the daughters of Laban. In respect to which custom, Moses enjoins that, upon the marriage of a second wife, a man shall be bound to continue to the first her food, raiment, and the duty of marriage. The Jews did not always content themselves with the allowance of two wives, as may be seen in the examples of David, Solomon, and many others. However, they made a distinction between the wives of the first rank, and those of the second. The first they called _nashim_, and the other _pilgashim_; which last, though most versions render it by the words concubines,” harlots,” and prostitutes,” yet it has no where in Scripture any such bad sense. There is a particular law called the Levirate, which obliged a man, whose brother died without issue, to marry his widow, and raise up seed to his brother, Deut. xxv, 5, &c. But Moses in some measure left it to a man’s choice, whether he would comply with this law or not; for in case of a refusal, the widow could only summon him before the judges of the place, when, if he persisted, she untied his shoe, and spit in his face, and said, “Thus shall it be done unto the man who refuses to build up his brother’s house.” A man was at liberty to marry not only in the twelve tribes, but even out of them, provided it was among such nations as used circumcision; such were the Midianites, Ishmaelites, Edomites, Moabites, and Egyptians. Accordingly, we find Moses himself married to a Midianite, and Boaz to a Moabite. Amasa was the son of Jether, an Ishmaelite, by Abigail, David’s sister; and Solomon, in the beginning of his reign, married Pharaoh’s daughter. Whenever we find him and other kings blamed for marrying strange women, we must understand it of those nations which were idolatrous and uncircumcised. It appears almost impossible to Europeans, says Mr. Hartley, that a deception like that of Laban’s could be practised. But the following extract, from a journal which I kept at Smyrna, presents a parallel case: “The Armenian brides are veiled during the marriage ceremony; and hence deceptions have occurred, in regard to the person chosen for wife. I am informed that, on one occasion, a young Armenian at Smyrna solicited in marriage a younger daughter, whom he admired. The parents of the girl consented to the request, and every previous arrangement was made. When the time for solemnizing the marriage arrived, the elder daughter, who was not so beautiful, was conducted by the parents to the altar, and the young man was unconsciously married to her. And ‘it came to pass, that in the morning, behold, it was the elder daughter.’ The deceit was not discovered, till it could not be rectified; and the manner in which the parents justified themselves was precisely that of Laban: ‘It must not be so done in our country, to give the younger before the first-born.’ It is really the rule among the Armenians, that neither a younger son nor daughter be married, till their elder brother or sister have preceded them.” I was once present at the solemnization of matrimony among the Armenians; and some recollections of it may tend to throw light on this and other passages of Scripture. The various festivities attendant on these occasions continue for three days; and during the last night the marriage is celebrated. I was conducted to the house of the bride, where I found a very large assemblage of persons. The company was dispersed through various rooms; reminding me of the directions of our Saviour, in regard to the choice of the lowermost rooms at feasts. On the ground floor I actually observed that the persons convened were of an inferior order of the community, while in the upper rooms were assembled those of higher rank. The large number of young females who were present, naturally reminded me of the wise and foolish virgins in our Saviour’s parable. These being friends of the bride, the virgins, her companions, had come to meet the bridegroom, Psalm xlv, 14. It is usual for the bridegroom to come at midnight; so that, literally, at midnight the cry is made, Behold, the bridegroom cometh! go ye out to meet him,” Matt. xxv, 6. But, on this occasion the bridegroom tarried: it was two o’clock before he arrived. The whole party then proceeded to the Armenian church, where the bishop was waiting to receive them; and there the ceremony was completed. See DIVORCE and BRIDE.