sacred and divine contract, which no unhallowed law was to meddle with. But the pope, by his dispensation, could make any marriage lawful; and by his decree he could dissolve the most regular and solemn marriage that was ever entered into, and that without so much as consulting the laws of the society or country were such marriage was to be, or had been solemnized; for the church, that is to say the Court of Rome, had then assuined the sole power of regulating and of judging of every thing relating to marriage; though we have the most authentic proof that this was not the practice during the first ages of Christianity; for among the Romans, divorces by mutual consent were allowed for a long time after the establishment of Christianity, as appears by several laws of the first Christian Emperors, and such divorces were prohibited by the law of the Emperor Justinian, and again introduced by a law of the Emperor Justin, without the intervention, and, for what appears, without so much as consulting any bishop or ecclesiastical assembly.(1) At the Reformation, this country disclaimed, amongst other opinions of the Romish church, the doctrine of a sacrament in marriage,(m) though still retaining the idea of its being of divine institu[ *16 ] tion 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 rule which held an irregular marriage constituted per verba de præsenti, not followed by proof of consummation, valid to the full extent of voiding a subsequent regular marriage contracted with another person.(n) The recent statute, 6 & 7 Will. 4, c. 85, recognizes marriage as a civil contract only; for by the 20th section of that act marriages may be solemnized in places registered for the purpose in the presence of some registrar and of two witnesses, according to such form and ceremony as the parties may see fit to adopt; provided each of the parties solemnly declare that they do not know of any lawful impediment to the marriage, and each of the parties call upon the persons present to witness that they take each other for husband and wife. The object of this provision is to enable those who may take different views of the religious nature of the contract, or who have other objections to the religious solemnization of marriage, to enter into its engagements according to their own views. Peculiarities of Marriage Contract.]—Marriage is a contract of a peculiar nature, and differing, in some respects, from all other contracts, so that the rules of law which are applicable in expounding and enforcing other contracts may not apply to this. The status of marriage is juris gentium, and the foundation of it, like that of all (1) Parl. History, vol. 15, pp. 8, 9. See Harris's Just. lib. 1, tit. 10, p. 3. (m) By the 25th article of the Church of England it is declared, "there are two sacraments ordained of Christ our Lord in the Gospel, that is to say, Baptism and the Supper of the Lord." (n) Dalrymple v. Dalrymple, 2 Hagg. C. R. 67; Dodson, 16; Brower, 1. 22, 12. other contracts, rests on the consent of the parties. But it differs. from other contracts in this, that the rights, obligations, or duties arising from it, are not left entirely to be regulated by the agreements of parties, but are to a certain extent, matters of municipal regulation, over which the parties have no control, by any declaration of their will. It confers the status of legitimacy on children. [ *17 ] *born in wedlock, with all the consequential rights, duties and privileges thence arising; it gives rise to the relations of consanguinity and affinity; in short, it pervades the whole system of civil society. Unlike other contracts, it cannot in general, amongst civilized nations, be dissolved by mutual consent; and it subsists in full force, even although one of the parties should be forever rendered incapable, as in the case of incurable insanity, and the like, from performing his part of the mutual contract. No wonder that the rights, duties, and obligations, arising from so important a contract, should not be left to the discretion or caprice of the contracting parties, but should be regulated, in many important particulars, by the laws of every civilized country; and such laws must be considered as forming a most essential part of the public law. of the country. As to the constitution of the marriage, as it is merely a personal, consensual contract, it must be valid every where, if celebrated according to the lex loci; but with regard to the rights, duties, and obligations, thence arising, the law of the domicil must be looked to.(o) SECT. 2. THE CANON LAW THE BASIS OF THE LAW OF MARRIAGE. Canon Law. The Canon Law is the basis of the law of marriage throughout Europe, except so far as it has been altered by the municipal law of particular states.(p) Although there are principles of marriage law generally prevailing in Europe, yet the Canon Law subsists under very different modifications in different countries. (q) Council of Trent.]-An important alteration was made in the law of marriage in many countries by the decree of the Council of Trent, [ *18 ] held for the reformation of marriage.(r) *The decrees of that council, which are the standing rules of the Romish (0) See Fergusson's Rep. 397, 398. (r) See Canones et Decreta Concilii Trident. sess. 24, c. 1. This celebrated council was held in the bishopric of Trent, a province of Germany, in the circle of Austria, situated upon the Alps. It sat with some intermissions from the year 1545 to 1563, when the doctrine of the Pope's infallibility tran. substantiation, &c. were confirmed. The council was first opened under Paul the 3d, on 13 December, 1545, continued under Julius the 3rd, interrupted under Marcellus the 2nd and Paul 4th by the wars and troubles of the continent, and terminated about the year 1563, and was confirmed by a bull signed by a legate of the Holy See, who, ac cording to the practice of all ages, presided at the assembly. Halkerstone's Dig. 69, n. See Hist. of this Council by Father Paul, fol. Lond. 1676; and Pallavicino. "There is, amongst the true believers, nothing more certain and undoubted than that the marriage contract has been elevated to the dignity of a sacrament; this is a truth inherent to the Roman Catholic tenets, established by the sovereign pontiff, Eugene IV., in his decree instituted for the Armenians, s. 7, repeated by the Holy Council of Trent, in section 24, Of the Reform of Marriage, chapter 1.' and learnedly upheld and illus trated by Bellarmino, in his book intitled 'Of Holy Marriage,' against the attacks of Luther, Calvin, and other heretics. In order, therefore, that the faithful should celebrate Church, were never received as of authority in England or in Scotland,(s) but are the law in several countries of [ *19 ] Europe at the present day.(t) The decree of the Council of Trent were never admitted as of authority in France. The ordinance of Blois, art. 44; the edict of Henry 4, of December, 1606; and the declaration of Louis XIII. 1639, art. 1, constituted the marriage law of the kingdom before the Revolution.(u) By that decree the presence of the parish priest and two witnesses are made requisite to the validity of a marriage. It also contained a prohibition against clandestine marriages, but such marriages, though illicit, are notwithstanding valid and indissoluble.(x) the marriage most religiously, which the Apostle, in his Epistle to the Ephesians, chap. 5, denominates a great sacrament in Christ;' and in the church, from the earliest times of the church itself, it has been instituted and held, that the marriage ought to be celebrated before the priest by whom it was validated with his benediction. However, whatever may have been the ancient discipline respecting the validity of those mar. riages which had been celebrated without the assistance of the rector, it is now beyond all doubt, that no marriage can at present be validly celebrated unless with observance of the forms prescribed by the Holy Council of Trent. That doctrine appears to be strictly established by the said council in section 24 Of the Reform of Marriage,' chap. 1, in which we find the following passage: Qui aliter, quam præsente parocho, vel alio sacerdote, de ipsius parochi seu ordanarii licentia, et duobus vel tribus testibus matrimonium contrahere attentabunt, eos sancta. Synodus ad sic contrahendum omnino inhabiles reddet et hujusmodi contractus irritos et nullos esse decernit, prout eos præsenti decreto irritos facit eta nnullat.'"-Concilii Trident, canones et decreta, p. 250, ed. 1615. "If any person shall presume to contract marriage otherwise than in the presence of the parish rector, or of another priest delegated by the said parish rector or the ordinary, and in the presence of two or three witnesses, the holy synod renders them unapt for so contracting; and it declares such contracts as null and void, as by this present decree it renders void and annuls the same. And it is hereby declared, that the marriage benediction shall be given by the proper parish rector, and that the license for so giving the said bene. diction cannot be granted to another priest by any other person than the rector himself or the ordinary." It is therefore quite clear, that in Rome, and in all other places where the Council of Trent is received, the marriage must be celebrated before the proper parish rector, and in the presence of two witnesses. By" proper rector" is to be understood the rector in whose parish the contracting par. JULY, 1841.-D ties have their residence; and as it may happen that the two contracting parties are resident in two different parishes, it will then be sufficient for the validity of the marriage, that the act be performed with the intervention of the parish rector of either of the parties. And this principle is so far a matter of strict rule, that even foreigners and travellers who may happen to be making but a temporary sojourn in some place where the Council of Trent is received, cannot validly contract marriage without observing that formality, as amongst other matters is laid down and explained by Pirking in the Decretal, book iv. title 3, s, 2. No. 10, in which is contained the following (from the Latin.) "Foreigners who are merely passing through a place in which a decree of the Council of Trent is received, cannot validly contract marriage unless it be done with the assistance of the parish rector, and before witnesses, even should the said decree not be received at the place in which they make their residence, because they are bound to observe the laws of the place through which they are then passing. In addition to this, neither the the parish rector or the ordinary himself, or any other superior authority, could grant faculty for uniting in marriage two persons who were not Roman Catholics, because it is an absurdity that those who are disunited from the church should be made participators of a sacrament of that same church."-From the deposition of Belloni, Doctor of Civil and Canon Law, stated in joint appendix to the case of Swift v. Kelly, before the judgment committee of the Privy Council, pp. 138, 139. (8) 2 Hagg. C. R. 82. (t) Ib. 272; 3 Phill. R. 63, 64. (x) Herbert v. Herbert, 2 Hagg. Cons. R. 274; 3 Phill. R. 64. The Council of Trent distinctly recognizes the validity of clandestine marriages, "Tametsi dubitandum non est clandestina matrimonia, libero contrahentium consensu facta, rata et vera esse matrimonia, quamdiu ea ecclesia irrita non fecit; et proinde jure damnandi sunt illi ut eos sancta synodus anathemate damnat, quia ea Source of the Ecclesiastical Laws of England.]-The ecclesiastical laws of this country have been for the most part derived originally from the authority exercised by the Roman pontiffs, in the different states and kingdoms of Europe.(y) Spelman mentions the adoption of the decrees and canons of the Church of Rome, as they then existed, by the clergy and *people of England so early as the [ *20 ] year 605, soon after the establishment of Christianity in this country; and there were ecclesiastical councils in England, and canons passed therein before the conquest. From the middle of the 12th century, a system of laws, under the influence of successive popes, has been compiled and promulgated at different periods. This system has been generally diffused throughout Europe, and prevails with more or less authority in different countries under the title of the canon law. About the year 1150, that part which is called the Decretum was collected by Gratian, the monk, out of the fathers, doctors, and councils. In the next century, Pope Gregory IX. published five books of Decretals, collected from the Decretal Epistles of the popes; to which Boniface VIII added a sixth book, about the end of the same century. The Clementine constitutions were next compiled by Clement V., and published by his successor, John XXI., at Avignon, in 1317, who afterwards collected some further constitutions, which were published after his death, about the year 1340. A seventh book of Decretals, and a book of Institutes, were added by Gregory XIII., under whose sanction the Corpus Juris Canonici, containing all the above several parts, was published in 1580.(z) The pontifical law, so promulgated, says an eminent writer on the Law of Scotland, "extended to all persons and things belonging to the Roman Church, and separate from the laity; to all things relating to pious uses, to the guardianship of orphans, the wills of defuncts and matters of marriage and divorce; all which were exempted from the civil authority of the sovereigns, who were devoted to the see of Rome. So deeply has this law been rooted, that even where the pope's authority has been rejected, yet consideration has been had to these laws, not only as those by which church benefices have been erected and ordered, but as likewise containing many equitable and profitable laws, which, because of their weighty matter and their being received, may more fitly be retained then rejected."(a) In England, however, the authority of the canon law was at all times much restricted, being considered, in many [ *21 ] points, *repugnant to the laws of England, or incompatible with the jurisdiction of the courts of common law: so much of it as has been received having been obtained by virtual adoption, has been for many centuries accommodated by our own lawyers to the local habits and customs of the country; and the ecclesiastical laws may be now described in the language of our statutes, as "laws which the people have taken at their free liberty, by their own con (y) See 2 Hallam's Middle Ages, 286289, 8vo. ed. (z) 3 vols. fol. ed. 1620. vera et rata esse negant ; quique falso affirm. 1 Stair's Inst. p. 25, n. by Brodie. (a) Stair's Inst. lib. 1, tit. 1, 7; 1 Bl. Comin. p. 83. sent, to be used amongst them, and not as laws of any foreign prince, potentate or prelate."(b) In addition to these authorities of foreign origin, must be enumerated also the constitutions passed in this country by the pope's legates, Otho and Othobon, and the archbishop and bishops of England, assembled in national councils in 1237 and 1269; and a further body of constitutions, framed in provincial synods under the authority of successive archbishops of Canterbury, from Stephen Langton, 1222, to Archbishop Chicheley, 1414; and adopted also by the province of York in the reign of Henry 6.(c) The canon law appears to be the basis of the matrimonial law of Scotland, according to Craig, (d) totam hanc questionem pendere a jure pontificio. Lord Stowell, proceeding on this assumption, said, "Whether that law remains entire or has been varied, I take it to be a safe conclusion, that in all instances where it is not proved that the law of Scotland has resiled from it, the fair presumption is, that it continues the same; show the variation and the court must follow it; but if none is shown, then must the court lean upon the doctrine of the ancient general law; for I do not find that Scotland set out upon any original plan of deserting the ancient matrimonial law of Europe, and of forming an entire new code upon principles hitherto unknown in the Christian world."(e) The extent to which the canon law is at this day held as part of the law of Scotland, is a point of great difficulty, which was much discussed in a recent case, but has not been fully cleared up. Although on the one hand, the canon law cannot of itself be admitted to be intitled to the authority of law in Scotland, in all matrimonial cases and in questions of [*22 ] legitimacy, yet on the other hand, it does not appear that it never can be held to have been law, unless where it is mentioned in acts of parliament, or in express decisions. It is clear that the canon law is not obligatory upon Scotland in the same way as their own acts of parliament. Neither is it as strong as the decisions of the Supreme Court. But still it is quite clear that it is one of the sources from which the law of Scotland, in matters ecclesiastical and matrimonial, is derived; and it has been followed in the Commissary Courts, both before and since the Reformation. As to these cases, it is one of the sources of Scotch law in the same manner as the civil law is one of the great sources of that law, in almost all other matters.(g) Lord Justice Clerk said, "I know no authority which the canon law, or any other law, has in this country, except in so far as it has actually been adopted. But as to matters of marriage, I never thought at this day to have heard a doubt on the subject; for if the canon law is not our law of marriage, I would be glad to know what is our law. In all questions of marriage and legitimacy, the canon law is the law of Scotland." (h) (b) 25 Hen. 8, c. 21. (c) 1 Bl. Comm. p. 83. See Preface to Burn's Eccl. Law, by Tyrwhitt, p. 22, 23; Hale's Hist. C. L. 26-29. (d) Craig, lib. 2, dieg. 18, s. 17; 2 Hagg. Cons. R. 70. (e) Dalrymple v. Dalrymple, 2 Hagg. Cons. R. 81, 82. (g) Lord Robertson, Bell's case of Putative Marriage, 176; Lord Meadowbank, ib. 195; Stair, lib. 1, tit. 1, s. 16. See stat. passed 1567, c. 15. (h) Bell's case of a Putative Marriage, 203. |