gislature with the general matrimonial law of the land. By the Canon Law, then, which was the basis on which alone these matters rested, the preliminaries for the solemnization of a marriage were, either the publication of banns, or the grant of a licence (that is, a faculty or dispensation from the publication of banns) from the proper authority. With regard to the first of these, the publication of banns*, the ancient constitutions of the church enjoined its ministers, while a mar. riage was contracting, to inquire of the people, by three public banns, concerning the freedom of the parties from all lawful impediments. (See Gibson's Codex, tit. 22, cap. 6.) The Council of Lateran first instituted, and the Council of Trent more particularly enjoined them. The 62d Canon of 1603 renews this injunction, on pain of three years' suspension; but the penalty was not dreaded, and the public announcement was but seldom made. With regard to the second of these preliminaries, the grant of licences, the dispensations were formerly of various kinds: some times exempting from one, or two, or all, of the publications of banns; and sometimes applying to time and place only. Thus Gibson quotes a register of Archbishop Arundel, permitting the solemnization of a marriage out of the proper parish, provided the parties obtained the consent of the Rector. The 101st Canon empowered the Bishops to grant these licences, on condition of their taking a bond of the party, and observing the requirements of the next two canons, in reference to impediments by reason of pre-contracts, affinity, or non-consent of parents or guardians. It was in consequence of the Banns, from an ancient Saxon word which signified to promulgate, publish, or proclaim. In barbarous Latin, bannire ineans to publish." inefficacy of these regulations, that an act of the legislature became necessary; and that, too, a penal act, armed with sufficient authority to enforce the observance of these wholesome laws. The requirements of the canons were regarded as weak, and were evaded with impunity; and the consequence was an amazing increase of clandestine marriages, to which we shall now have occasion to advert. Clandestine marriages* were of two kinds: one, where the interference of the church was disregarded; the other, where the church celebrated without the necessary consent. The irregular and clandestine marriages of the first of these classes, although frowned upon by the canon law, yet, if contracted, were ever held to be valid; and in regard to the second class, however much the restrictions imposed by a sense of duty and propriety, and a deference to parental authority, were to be commended, it never was contemplated by the church that contracts, however clandestine, if made between parties who had attained the age of consent, or on attaining that age had ratified a contract previously made, in whatever secresy, should be regarded otherwise than as perfect and indissoluble, or, as they were termed in popular language, "marriages in the sight of God." The only marriage, once solemnized, that could afterwards be annulled,was an incestuous marriage. Even this, however, was not de facto void, but only voidable by process in the spiritual court; and the power of procuring sentence was A statute of Edward II. had enact- ed that all marriages should be solemnized" in loco celebri ;" but it had fallen into neglect. One of Edward III. also had enjoined the celebration at due times, and in the parish church, on pain of a year's suspension; and the 17th of Elizabeth declared marriage lawful at all times, excepting Christmas, Easter, and Pentecost, or Whitsuntide: the penalty was enforced in but few instances. limited to the life of both the parties: because, as the contract was made in defiance of the law of God, and the church's power was exercised only for the correction of such an error "pro salute animarum," that object was placed by death beyond its reach, and the church could only punish the survivor for the incest: it could not annul the marriage. On the subject of parental consent, we must not be understood to object to the principle of its requirement, while we disapprove of the fatal results which, by the Marriage Act, we shall see were made to follow the absence of it. It had been a favourite principle in varieus parts of the world, and in very early ages. By the Roman law, the consent of parents to the marriage of children, in patriâ potestate, was considered indispensable, so that a contract without it was of no obligation. "Nuptiæ conNuptiæ consistere non possunt, nisi consentiunt omnes, id est, qui coëuntquorumque in potestate sunt." (Dig. lib. xxiii, tit. 2. §. 2; Cod. v. tit. 8. §. 25.) It appears to have been considered necessary among the Canaanites, from the conduct of Shechem, as mentioned in Gen. xxxiv. 6-8. The early councils and canons of the Church of Rome strongly up. held the same requirement, though they did not go to the length of nullifying the bond. In the long deliberations which took place in the Council of Trent on many subjects connected with marriage, and among others upon this, although many arguments were urged with consider able earnestness in favour of the doctrine of nullity, it was nevertheless relaxed. Out of two hundred and three Bishops who attended on that occasion, about fifty-eight argued for the nullity, but the rest were resolutely against it. The French ambassadors laid a request before the assembly, in the name of their sovereign, that children in the power of their parents might not marry without their consent, and that if they did, or even betroth themselves, it should be in the power of the parents either to make void the contract or to ratify it, as they pleased. The council, however, did not assent to the proposal. It went, indeed, so far as to declare that the church did always "detest" such marriages; but it anathematized all those who imputed to it an intention of annulling them. The Reformatio Legum, as projected in King Edward's time, was favourable to the principle of nul By the more modern laws of France, the sons cannot marry without the conthe daughters till 21. In Holland, sent of parents till 25 years of age, nor the sons are at their own disposal at 25, and the daughters at 20. In the French law, the requirement of parental consent has ever been regarded as a favourite principle. Not only was the declaration of the Council of Trent, rendering this consent unnecessary, protested against, but by the Ordonnance de Blois, in 1579, it was virtually disavowed, and has been more explicitly repudiated by the subsequent Royal Edicts of that country. The Code Civile of France, which was adopted in place of the ancien regime, and which substituted the civil magistrate for the ecclesiastical in matters of this kind, thereby decided the previously doubtful question, whether marriage, which before the Revolution was of a mixed character, was in essence a civil contract, or a religious rite, and gave the preference to the are conducted solely by the municipal officer of the commune. That law, in reference to the parental consent, not only requires it as indispensable until the age of 25 in the sons and 21 in the daughters, but even after that period, until the age of 30 in the former and 25 in the latter, requires that the parties shall present a formal demand of parental counsel and advice, to be renewed formally every three months, unless the required counsel be afforded; and after the lapse of a month from the last presentation, the marriage may be solemnized in its absence. This shews a strong adherence to the principle manifested at the Council of Trent, former. The forms of the celebration sient and misguided attachment might be sealed with the sacred, but then abused, authority of marriage. For this pernicious purpose there was a band of profligate miscreants, the refuse of the clergy, dead to every sentiment of virtue, and abandoned to all sense of decorum; for the most part prisoners for debt or delinquency, and the very outcast of human society; who hovered about the verge of the Fleet prison to intercept customers lity; for, to the prohibition of the 100th Canon, it added this sentence: "Quod si fecerint, tales nuptias, omnino non valere sancimus et ad nihilum recidere." (Art. iv. de Matrimonio.) The Church of England, however, did not go so far as to adopt this oppressive penalty, the weight of which falls most hea vily on the unoffending offspring; and, consequently, the period that intervened before the passing of the Marriage Act was one of great indulgence, or at least of a tolera-plying like porters for employtion that amounted to it, in reference to matrimony. Few or no difficulties lay in the way of the contract. So far as the consent of parents and guardians was required, the Act introduced a new rule; for although the Canon had enjoined it, yet it was not required de necessitate. Desirable in the highest sense it was, from motives of piety and prudence, from filial duty and family convenience; but, legally speaking, it was of imperfect obligation, and is solely the child of civil requirement. The consequence, however, of no penal results whatever attaching to the want of parental consent, was the multiplication, in an excessive degree, of secret, irregular, and clandestine marriages. These clandestine marriages, productive of so much misery to the parties themselves, as well as prejudicial to the peace of families, at length became so prevalent as to compel the attention of the legislature. We learn from the historians of the time, that the sons and daughters of great and opulent families, before they bad attained to any maturity of knowledge or experience, were every day seduced in their affections, and enveigled into matrimonial alliances pregnant with infamy and ruin: and these were greatly facilitated by the opportunities that were afforded of an instantaneous union, before the victim of the artifices of the crafty seducer had time to cool or deliberate on the subject. Every tran ment-who performed the ceremony of marriage, without licence or question, in cellars, garrets, or alehouses, to the scandal of religion and the disgrace of the clerical profession. The ease with which this ecclesiastical sanction was obtained, and the vicious disposition of these wretches, open to the practices of fraud and corruption, were productive of polygamy, indigence, conjugal infidelity, and every curse that could embitter the married state. It was in consequence of several very gross cases of this kind falling under the observation of the House of Peers, one of which was in the form of an appeal from an inferior tribunal, that the House ordered the Judges to prepare a new bill for the prevention of these abuses; and under the auspices of Lord Hardwicke*, at that time Lord High Chancellor of England, was framed the celebrated statute (26th Geo. II. c. 33) commonly called the Marriage Act. The provisions of this Act, which it is necessary to recite in order to shew the bearings of the late enactment, were as follow. * Lord Hardwicke's, however, was not the first bill. That which was first prepared was by the Earl of Bath, and was so objectionable that it was aban. doned; and even that which became the law we are not to ascribe exclusively to Lord Hardwicke, for the House of that, though Lord Hardwicke let it pass, Commons made so many alterations, he foretold the necessity of amending it when its operation should be traced: but unhappily he did not live to amend it. The preamble having recited the mischiefs and inconveniences which arose from those clandestine marriages, it is enacted, That the banns of an intended marriage shall be published in the church or chapel of the place where the parties dwell, three successive Sundays, in the morning, after the reading of the Second Lesson* (except where no morning service was performed). If the parties dwell in different parishes, the publication is to be in each; and if in an extra-parochial place, or where no Divine Service is usually celebrated, then in the parish church or chapel adjoining; and the marriage is to be solemnized where the banns were published. -The minister is not obliged to publish the banns, unless the parties give in writing their christian and sur-names, the places of their abode, and the time they have dwelt in them, a week before the first publication. Where the banns have been thus published, the minister shall not incur ecclesiastical censure for solemnizing the marriage, although the parties shall appear to have been under age, and not to have obtained the consent of their parents or guardians; unless he had previous notice of such dissent, and then he is to declare the banns void. No licence shall be granted to marry in any place where one of the parties has not dwelt at least a month, a special licence by the Archbishop excepted.-Surrogates are to take the oath of fidelity, and give security in the sum of 1001. • Notwithstanding this Act has been in force for nearly seventy years, the rubric in our Prayer-books enjoining the publication of the banns after the Nicene Creed not having been altered and transferred to its right place by the proper authorities, some clergymen have been led into the error of publishing banns as enjoined by their copies of the Prayer-book, and of course illegally, and under the penalties of the Act. Some, but not all, the modern Prayerbooks correct the rubric, but we know not under what sanction. If marriage shall be solemnized in any other place than a church or public chapel without a special licence, or in a church or chapel without the publication of banns or a licence obtained from the proper authority, the marriage shall be void, and the person who solemnized it be deemed guilty of felony, and incur seven years' transportation, if prosecuted within three years.-Marriage by licence, where either of the parties, not being a widower or widow, is under age, and proper consent has not been obtained, shall be null and void. The Act then defines the requisite consent, and states it to be that of the father of the minor, if living, or, if dead, of a guardian or guardians properly appointed-that is, as judicial decisions have interpreted it, of testamentary guardians appointed by the father's will, or guardians appointed by the Court of Chancery; or, if there are none such, of the mother, if living and unmarried, or, if otherwise, of guardians to be specially appointed in Chancery for the purpose. If the consent of a mother or guardian shall be capriciously refused, or if the mother or guardian shall be non compos mentis, or beyond sea, the Court of Chancery shall relieve in a summary way*. If a marriage be once solemnized, whether by banns or licence, no evidence as to the correct description of the residence of the parties shall be required to support it, nor shall any as to its incorrectness be received to invalidate it.-No suit shall be allowed to compel a celebration of marriage upon pretence of any contract, whether worded • Most probably the Reformatio Legum furnished this hint. "Quod si parentes vel tutores in providendis nup. tiarum conditionibus nimium cessave rint aut in illis proponendis nimium duri et acerbi extiterint, ad magistratum ecclesiasticum confugiatur, à quo partes eorum in hujusmodi difficultatibus agi voJumus, et ejus æquitate totam causam transigi." Fol, 20. in the present or future tense *. -Every marriage is to be before two witnesses besides the minister; and an entry to be made in a book kept for that purpose, expressing whether it was by banns or licence; and if by licence, and either of the parties be under age, the consent of parent or guardian shall also be entered, to be signed by the minister, the parties, and the witnesses. -False entry, liceuce, or certificate, or destroying register-books, is felony, both in principal and accessary, and to be punished with death. The was Act not to extend to the Royal Family, Quakers, or Jews, nor to affect any marriage in Scotland or beyond the seas. Such was the substance of this celebrated Act. Little doubt was entertained of its efficacy to prevent the disastrous fruits of clandestinity, but various questions arose respecting the possibility of its occasioning new and greater evils than those which it was intended to remove. In the lower House, particularly, it awakened some animated debates, in which the members appeared to be divided rather according to their real sentiments, than by the rules of any political distinction. Several of the principal servants of government freely differed in opinion from the minister who countenanced the bill; while, on the other hand, many members of the opposition were with him; and the disputes were characterised by an extraordinary eagerness and warmth. The grounds of opposition to the measure were not in general the same, though some few were, which have recently been taken for its repeal. The chief objections were,-That the legislature had assumed a power to which no human tribunal could lay claim, that of dispensing with vows and obligations of the most solemn kiud, ratified in the sight of Heaven This was the clause we alluded to as having swept away all the irregular contracts of marriage. -a precedent this, it was said, of the worst kind, as it would tend to render the marriage contract less sacred, even when it had received the sanction of the laws of the land, and had been pronounced politically correct;―That it would discourage the marriages of the poor, among whom marriage, however necessary to political purposes, is generally an imprudent act with respect to themselves; and as by this Act they would be prevented from doing it without great deliberation, many would not do it at all*;-That many of the poor it would subject to exceeding inconveniences and very heavy expenses, from the nature of the forms to be observed: and some, such as seamen, soldiers, bargemen, waggoners, &c. if they could not afford a licence, could not be married at all, because their residence ju any one place a sufficient time was incompatible with their profession; -That it would damp the spirit of affection, since proclamation of banns and public marriages are against the very genius of our people. The young woman cannot, without extreme confusion, suffer it to be proclaimed through the whole parish that she is going to be married; and the man is unwilling to endure for so long before band the jeers of his companions. In proof of the aversion to public marriages, the argument appealed to the disproportion between the marriages at Keith's (the clergyman against whom particularly the bill against clandestiuity was levelted, |