arbitrary.

CHAPTER II.

England.

Introduction.—The law of England regards marriage as a contract, a status and an institution. As a contract it is in its essence an expressed consent on the part of a man and woman, competent to make the contract, to cohabit with each other as husband and wife, and with each other only. As Lord Robertson says: “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 agreement 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.”

As a status created by contract, marriage confers on the parties certain privileges and exacts certain duties under legal protection and sanction.

From the earliest period of the recorded history of England it has always been accepted doctrine that marriage as an institution is the keystone of the commonwealth and the highest expression of morality.

The men of the law in England were anciently persons in holy orders, and the judges were originally bishops, abbots, deans, canons and archdeacons. As late as 1857 the clergy in their ecclesiastical courts had exclusive jurisdiction of matrimonial causes. They administered the Canon Law of the Western Church affecting marriage and ruled that in marriages lawfully made, and according to the ordinance of matrimony, the bond thereof can by no means be dissolved during the lives of the parties.

By the passage of the Divorce Act of 1857 the jurisdiction in matrimonial causes was transferred to a new civil tribunal, and absolute divorce was sanctioned, with permission of remarriage on proof of adultery on the part of the wife, or adultery and cruelty on the part of the husband.

It is seriously contended by some eminent churchmen that in spite of this legislation the Church of England still has as its definite existing law the old rule which obtained before the Reformation, namely, that marriage is indissoluble; that a limited divorce from bed and board may be permitted, but that an absolute divorce which leaves either party free to remarry during the lifetime of the other is forbidden. This supposed conflict between the civil and ecclesiastical laws of the realm furnishes an academic topic and engenders bad feeling, but it has no real existence.

The Church of England exists by Act of Parliament and manifestly has no power to nullify statutes enacted by the legislature which established it as the official religious organization of the Kingdom.

The civil courts of England have never considered marriage as a sacrament or religious ordinance, but have held that the dogmas and precepts of Christianity do not affect the civil status of marriage, but simply add to it a religious character. In this respect the law of England is in exact harmony with the attitude of the primitive Christian Church.

Lord Stowell tells us that “in the Christian Church marriage was elevated in a later age to the dignity of a sacrament, in consequence of its divine institution, and of some expressions of high and mysterious import concerning it contained in 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 the 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.”

The English courts only recognize as a true marriage one which, in addition to being valid in other respects, involves the essential requirement that it is a voluntary union of one man and one woman for life to the exclusion of all others, which is substantially the definition of marriage given by Lord Penzance in the leading case of Hyde v. Hyde.

No marriage is recognized which is founded on principles which are in conflict with the general morality of Christendom. The term Christendom is used as a matter of convenience only. It includes all those nations generally recognized to be civilized, whatever may be their prevailing religion.

Lex Loci Contractus.—It is a well-established rule that the law of the place where the contract of marriage was concluded, that is, the lex loci contractus, or, as it is sometimes termed, the lex loci celebrationis (law of the place of celebration), alone governs the court in ascertaining whether or not the marriage is regular. All the formal preliminaries, such as publication of banns, or license, and consent of the parties entitled to give or withhold consent according to the lex loci contractus, must be complied with.

Legal Age.—The legal age for marriage in England and Wales is fourteen for a male and twelve for a female. The consent of the father of each of the contracting parties is required of those under twenty-one. If the father is dead the consent of the mother is required unless there is a guardian appointed by the father.

Formal Requirements.—There are certain formal preliminaries to a valid marriage in England, such as the publication of banns, or the procurement of a common or special license which operates as a dispensation with the banns.

Banns.—The banns must be published on three Sundays in the parish in which the parties reside, and if they reside in different parishes the banns must be published in each parish. The marriage ceremony must be celebrated in one of the churches where the banns have been published. If they are published in two different parishes the clergyman of one parish must give a certificate of publication, which must be delivered to the clergyman who solemnizes the marriage.

The parties must reside in the parish for fifteen days prior to the publication of the banns, and the marriage must take place within three months of the last publication. Where a man has procured the banns to be published in false names, or has concealed his true name, he will not be allowed to annul the marriage on that account only. A party cannot take advantage of his own fraud for the purpose of invalidating a marriage.

License.—No publication of banns is necessary in the case of a marriage under a bishop’s license. Licenses may be obtained at the offices of the bishop’s registrars, and full information as to procuring a license may be obtained through the local clergy. A license granted by a bishop is only available in his diocese, and one of the parties must have resided for fifteen days immediately preceding the issue of the license in the parish in which the marriage is to take place. The cost varies in different dioceses, but it is usually between £2 and £3. The Archbishop of Canterbury has power to issue a special license enabling a marriage to be solemnized at any time or place. The cost of this is from £20 to £30, and it can be obtained at the Faculty Office, Doctors’ Commons, London, E.C.

Certificate of Registrar.—A marriage by the certificate of the registrar of marriages