Chapter XII: The English Law of Marriage

The influence of the Roman system was, of course, less in England than in countries where, as in France and Italy, the Roman law had maintained itself in force, either as written law or as the basis of customary law. But now that we come to consider the course which the English law of marriage has taken, let us note that this law has flowed in two distinct channels down till our own time. So much of it as pertained to the marriage relation itself, that is to say, to the capacity for contracting marriage (including prohibited degrees), to the mode of contracting it, and to its dissolution, complete or partial, belonged to the canon or ecclesiastical law and was administered in the spiritual courts. So much of it as affected the property rights of the two parties (and especially rights to land) belonged to the common law and was administered in the temporal courts. This division, to which there is nothing parallel in the classical Roman law, was of course due to the fact that mediaeval Christianity, regarding marriage as a sacrament, placed it under the control of the Church and her tribunals in those aspects which were deemed to affect the spiritual well-being of the parties to it. Nevertheless the line of demarcation between the two sides was not always, and indeed could hardly be, sharply or consistently drawn. The ecclesiastical courts had a certain jurisdiction as regards property. The civil courts were obliged, for the purposes of determining the right of a woman to dower and the rights of intestate succession, to decide whether or no a proper and valid marriage had been contracted. Their regular course apparently was to send the matter to the bishop’s court, and act upon the judgement which it pronounced. But this was not always done. They often had to settle the question for themselves, applying, no doubt, as a rule the principles which the bishop’s court would have followed, and (as has been explained by the latest and best of our English legal historians[201]) they often evaded the question of whether there had been a canonically valid marriage by finding that, as a matter of fact, the parties had been generally taken to have been duly wedded, and by proceeding to give effect to this finding.

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Footnote 201:

Messrs. Pollock and Maitland, in their admirable _History of English
Law_, to which the reader curious in these matters may be referred.

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The ecclesiastical lawyers were not successful in their treatment of such questions as fell within their sphere. The effort to base legal rules on moral and religious principles leads naturally to casuistry, and away from that common-sense view of human transactions and recognition of practical convenience which ought to be the basis of law. They multiplied canonical disabilities arising whether from pre-contract, a matter to which they gave a far greater importance than had previously belonged to it, or from relationship, either of consanguinity or of affinity; and they indeed multiplied these impediments to such an extent as to make the capacity of any two parties to enter into matrimony matter of doubt and uncertainty, giving wide opportunities for chicane, and an almost boundless scope for the interposition of the Roman Curia, whose sale of dispensations became a fertile and discreditable source of revenue. Their treatment of divorce will be presently examined. In their zeal to keep Christian people out of sin they recognized many clandestine unions as valid, though irregular, marriages, while at the same time applying strict rules of evidence which practically withdrew much of the liberty that had been granted by the lax theory of what constituted a marriage. These tangled subtleties regarding pre-contracts and prohibited degrees were at the time of the Reformation swept away by a statute of 1540 (32 Henry VIII, c. 38), which declared that all marriages should be lawful which were ‘not prohibited by Goddis lawe,’ and that ‘no reservation or prohibition, Goddis lawe except, shall trouble or impeche any marriage without the Levitical degrees.’

Two principles, however, remained unaffected by the legislation of this period in England. The one was the indissolubility of marriage, a topic to which I shall presently return. The other was the freedom of entering into it, consent, and consent alone, being still all that was necessary to make a marriage valid[202]. England, of course, did not recognize the decrees of Trent, so the old law continued in force after that Council, though motives like those which had guided the Council induced the ecclesiastical courts to lean strongly in favour of the almost universal practice of marrying before a clergyman, and to require in all other cases very strict evidence that a true consent, directed to the creation of lawful matrimony, had in fact been given. Moreover, where the marriage had been irregular, the spiritual courts might compel its celebration in the face of the Church. So things went on, with much uncertainty and some confusion between the act needed to constitute marriage and the evidence of that act, till the middle of the eighteenth century, when a statute was passed in A.D. 1753 (26 Geo. II, c. 33) which required all marriages to be celebrated by a clergyman and in a church (unless by dispensation from the Archbishop of Canterbury), and prescribed other formalities[203]. These provisions remained in force (except as to Jews and Quakers) until 1836, when a purely civil marriage before a Registrar was permitted as an alternative to the ecclesiastical ceremony[204]. During the Commonwealth marriages had been contracted before justices of the peace, but the Restoration legislation, while validating the marriages so formed, abolished the practice. The old law remained in Ireland, and that was how the question what kind of marriage ceremony was required by the common law came before the House of Lords in the famous case of _Reg._ v. _Millis_, which was an Irish appeal, and the decision in which, declaring that by the common law the presence of a clergyman was required to make a marriage valid, seems to have been erroneous.

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Footnote 202:

The House of Lords was equally divided upon this point in the case of
_Reg._ v. _Millis_, in 1843; but historical inquiry tends to confirm
the view of Lord Stowell, that the presence of a clergyman was not
essential (see _Dalrymple_ v. _Dalrymple_, 2 Haggard, p. 54).

Footnote 203:

The English Dissenters soon began to complain of this Act, as they
were thenceforth (until 1836) obliged to be married in church. Charles
James Fox used to denounce the Act as ‘contrary to the Law of Nature.’

Footnote 204:

A civil marriage is not, however, compulsory in England as it is in
France and some other continental countries. In Scotland it has now
become fashionable for Presbyterians to be wedded in church, but the
Scottish law, as every one knows, does not prescribe either a
clergyman or a registrar.

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