"tions by the laws of different communities.' These are the principles of marriage law generally prevailing in Europe. But the canon law subsists under very different modifications in different countries, according as the different institutions of the countries in which it is received operate upon it” (b). "In the Christian church marriage Intervention of was elevated in a later age to the dignity of a sacrament, a priest. in consequence of its divine institution, and of some expressions of high and mysterious import respecting it contained in the sacred writings; the law of the church, the canon law (a system which, in spite of its absurd pretensions to a higher origin, is in many of its provisions deeply enough founded in the wisdom of man), although in conformity to the prevailing theological opinion, it reverenced marriage as a sacrament, still so far respected its natural and civil origin, as to consider that where the natural and civil contract was formed, 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. It appears from the histories of that council, as well as from many other authorities, that this was the state of the earlier law, till that council passed its decree for the reformation of marriages. The consent of two persons, expressed in words of present mutual acceptance, constituted an actual legal marriage, technically known by the name of sponsalia de præsenti. At the Reformation, this country disclaimed, amongst other opinions of the Romish Church, the doctrine of a sacrament in marriage, though still retaining the idea of its being a divine institution in its general origin, and on that account, as well as of the religious forms that were prescribed for its regular celebration, an holy estate, holy matrimony, but it likewise retained those rules of the canon law which had their foundation not in the sacrament or in any religious view of the subject, but in the natural and civil contract of marriage. The Ecclesiastical Courts, therefore, which had the cognizance of matrimonial causes, enforced these rules, and amongst others that which held an irregular marriage, constituted per verba de præsenti, not followed by any consummation shown, valid to the full extent of avoiding a subsequent regular marriage contracted with another person" (c). (b) Lindo v. Belisario, 1 Consist. 230, 242, 260. (c) Dalrymple v. Dalrymple, 2 Consist. 64. If we except the very Regular and irregular marriages. "Different rules (says Lord Stowell, speaking of the canon law) prevailed relative to their respective effects in point of legal consequence to the three cases of regular marriages, of irregular marriages, and of mere promises and engagements. In the regular marriage, everything was presumed to be complete and consummated, both in substance and ceremony. In the irregular marriage, i. e., nire, no particular rites were required, as essential to the validity of the marriage, by the Roman law. It looked to the free consent of both parties as the essence of the contract. This consent was inferred from the nature of the social habitudes and domestic intercourse of the parties living together, as may be gathered from these remarkable words in the Digest, speaking of gifts made to concubines : "Donationes in concubinam collatas non posse revocari convenit, nec si matrimonium inter eosdem postea fuerit contractum ad irritam recidere quod ante jure valuit; an autem maritalis honor et affectio pridem præcesserit personis comparatis vitæ conjunctione consideratâ perpendendum esse respondi, neque enim tabulas facere matrimonium."* It seems also to have been as an evidence of such consent, that the custom of bringing the bride to the house of the bridegroom was generally prevalent. Thus in the Pandects, 1. 66, pr. De don. inter virum et uxorem, we read, Seja Sempronio cum certâ die nuptura esset, antequam domum deduceretur tabulæque dotis signarentur donavit tot aureos. Quæso an ea donatio rata sit? (Respondi.) Non attinuisse tempus an antequam domum deduceretur donatio facta esset aut tabularum consignatarum quæ plerumque et post contractum matrimonium fierent, in quærendo exprimi; itaque nisi ante matrimonium contractum, * Dig. 1. 32, § 13, De don. inter V. et U.; 1. 31, pr. D. De donat.; 1. 11, pr. C. De repud. Nov. 22, c. 3. quod consensu intelligitur, donatio facta esset non valere." See also De aquâ et igni uxores accipiendi consuetudine.† This deductio in domum might take place in the absence of the husband:‡ "Mulierem absenti per litteras ejus vel per nuntium posse nubere placet, si in domum ejus deduceretur; eam vero quæ abesset ex litteris vel nuntio suo duci a mariti non posse; deductione enim opus esse in mariti, non in uxoris domum, quasi in domicilium mariti." Justinian, however, in the 4th chapter of his 117th Novell, enacted as follows: "Jubemus eos qui maximis dignitatibus decorati sunt usque ad illustres non aliter nuptias celebrare nisi dotalia scribantur instrumenta." The following references to the canon law establish Lord Stowell's opinion, that the absence of the solemnities prescribed by that law did not vitiate a marriage once contracted; c. 3, § 2, x., De clandest. desponsat.; iv. 3, c. 30, 31, 32, x., Desponsatio verborum de futuro; c. 3, x., De sponsâ duor.; iv. 2, c. 12, x., Qui fil. sint legit.; iv. 17, c. 1-6, c. XXX. qu. 5. The innovation introduced by the Council of Trent is to be found in sess. 24, c. 1, De reform. matrimonii. For the existing law upon this subject in the Protestant states of Germany, J. H. Böhmer's Jus Eccl. Protest. lib. iv. tit. 3, § 38-50, and Scholt. Eherecht, § 158-167, should be consulted. Hotomanus, Observ. ad vet. rit. nupt. c. 18, opp. t. 1, p. 547. See the Pandects, 1. 5, on this title. "sponsalia per verba de præsenti, 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 promise or sponsalia de futuro nothing was presumed to be complete or consummated either in substance or in ceremony; mutual consent would release the parties from their engagements, and one party, without the consent of the other, might contract a valid marriage regularly or irregularly with another person; but if the parties who had exchanged the promise had carnal intercourse with each other, the effect of that carnal intercourse was to interpose a presumption of present consent at the time of the intercourse, and to convert the engagement into an irregular marriage, and to produce all the consequences attributable to that species of matrimonial connection. The reason of these rules is manifest enough. In proceedings under the canon law, though it is usual to plead consummation, it is not necessary to prove it, because it is always to be presumed in parties not shown to be disabled by original infirmity of body. In case of marriage per verba de præsenti, the parties there also deliberately accepted the relation of husband and wife, and consummation was presumed naturally following the acceptance of that relation, unless controverted in like manner. But a promise per verba de futuro looked to a future time; the marriage which it contemplated might never take place perhaps; it was defeasible in various ways, and therefore consummation was not to be presumed; it must either have been proved or admitted. Till that was done, the relation of husband and wife was not contracted; it must be a promise cum copulâ, that implied a present acceptance, and created a valid contract founded upon it. Such was the basis of the canon law, the known basis of the matrimonial law of Europe" (g). Practically speaking, the whole learning as to irregular marriages was swept away by 26 Geo. 2, c. 33 (h), and the subsequent acts. Scotland and Ireland (i) have their own laws as to the Marriage in (g) Dalrymple v. Dalrymple, 2 Consist. 65. (h) See Dr. Phillimore's note to the case of Baxter v. Buckley, in his edition of Sir G. Lee's Reports, vol. i. p. 42. (i) Dalrymple v. Dalrymple, 2 Consist. Rep. 54; 19 & 20 Vict. c. 96, as to when irregular mar riages shall be valid; Reg. v. Scotland and Requisites of marriage. Consent of parties. celebration of marriage. Marriages abroad may be lawfully celebrated according to the lex loci-in the houses of ambassadors in certain cases within factories and the lines of an army, and on board a Queen's ship, and by statute before British consuls abroad (k). The latter marriages, however, though by express enactment legal in this country, are not necessarily so holden by foreign countries, especially where the interests of foreign subjects are concerned (1). SECT. 2.-Conditions Precedent-Consent, Physical and According to the general law, which the reason of the thing, the practice of the early church, the legislation of the civil and the canon law, have combined to establish, certain conditions are requisite for the due completion of the contract of marriage. The municipal law of different states has embodied in different forms these conditions. First. Mutual free consent is the first condition of marriage. "Ubi non est consensus utriusque non est conjugium," "Consensus non concubitus facit matrimonium," are unquestionable maxims of jurisprudence upon this point. It has been considered, however, that this consent may be expressed by signs, and through procurators or agents when the principal parties are absent. The law of England has no provision for the latter case, but there is no doubt that deaf and dumb persons may duly express their consent (m). This condition excludes of course the insane persons and those acting under duress and constraint. Our old ecclesiastical law says " The ministers shall frequently denounce to those who are desirous to contract 10 East, 282; but the law as to (k) 12 & 13 Vict. c. 68, Act the same." (1) On the subject of marriages in ambassadors' houses, &c., see Lord Stowell's judgment in Smith v. Ruding, 2 Consist. Rep. 385. (m) Decret. c. xxx. q. 2, vide post; Decret. Greg. 1. iv. t. 1, c. 23, "Mutus et surdus, &c. Sufficit ad matrimonium solus consensus eorum, &c., &c., cum quod verbis non potest signis valeat declarare." Sexti Decret. 1. 1, t. xix. c. ix. "Procurator non aliter censetur ad matrimonium contrahendum quam si ad hoc mandatum habuerit speciale," &c. matrimony, that on pain of excommunication they do not contract matrimony, but in an open place, and before divers witnesses in public" (n). The law as to the incapacity of children is thus ex- Necessary age. pressed in the Decretum : "Ubi non est consensus utriusque non est conjugium. Ergo qui pueris dant puellas in cunabulis et e converso nihil faciunt, nisi uterque puerorum, postquam venerit ad annos discretionis, consentiat, etiamsi pater et mater hoc voluerint et fecerint." This constitution was by the council of Westminster, in the year 1175, made a portion of our law. The age of consent for espousals, of which our present law takes no notice, was seven years; when infancy in both sexes was supposed to end. As to the completion of the contract the age has been considered twelve in the woman, fourteen in the man (o). Previously to the passing of the first Marriage Act (26 Geo. 2, c. 33), consent given by males of fourteen years and females of twelve was holden to be valid (p). But this statute and all subsequent ones on the subject fix the legal age of consent for both parties at twenty-one years. By the first statute marriages between parties under this age without due consent were void. Later statutes require the consent of parents or guardians for minors, but do not go the length of invalidating a marriage solely on account of the absence of such consent (q). The previous consent of parents or guardians is, if we Consent of consider only the reason of the thing and the nature of parents. the institution, not an indispensable condition of the validity of the marriage bond. The early Christians apparently followed the law of Justinian with respect to marriages contracted without the consent of parents, and pronounced them invalid, because the Roman law required such consent as indispensable, at least for all children under the patria potestas (r). In the canon law the same doctrine is to be found (s). The Council of Trent, how (n) Reynolds, Lind. 271. (0) The canon law to be consulted on this subject will be found principally in Greg. IV. 1, De sponsalibus et matrimonio; IV. 3, De clandestinâ desponsatione; Sext. IV. 1, 2, De desponsatione impuberorum. See, too, Dig. 23, 1, 14; Cod. 5, 60, 3; 1 Inst. 79; ibid. 10. (p) Arnold v. Earle, 2 Lee's Rep. 521; Co. Litt. 33 a, 7, 8; (4) The language being direc- (r) Inst. i. 10, de nuptiis; par. 12, eod. "Si adversus ea quæ diximus aliqui coierint; nec vir, nec uxor, nec nuptiæ, nec matrimonium, nec dos intelligetur." (8) Decret. can. 5, causa 30, |