§ 2. CONSTITU- Now, it is material to take notice, that it was touching the facrament of marriage that the pope had been confulted: MARRIAGE which, therefore, he must have been speaking of, when he CONSENT faid confent alone conftituted it *. Council of SUCH Continued to be the cafe till the time of the council of Trent; which firft determined the nullity of clandeftine marriages. BUT the Council of Trent did not pretend to pronounce a declaratory act, founded upon any idea, fuch as that of lord Kames, of there being any a priore neceffity in the nature of the thing that rendered celebration in facie ecclefiæ, or the prieft's blefling, effential to the validity of marriage. Both parties affumed the reverfe; and concurred in putting the regulation upon the footing of the positive authority of the church alone. Nay, thofe who, on any other ground than this declaration of their nullity by the church, pretended to Heretical to deny the validity of clandeftine marriages, or marriages contracted by confent alone, without any folemnity, were ffages null. declared by the council to be guilty of a damnable heresy". call clandef tine mar k M. Pothier, taking notice of this very paffage, fays-" Que c'eft du mariage confidéré comme facrement, que le pape entend parler: "c'etoit fur ce qui étoit necessaire pour "le mariage comme facrement, que les "bulgares l'avoient confulté."-Pothier de Droit, &c. t. iii, p. 287. 1 The frequency of clandeftine marriages was one of the evils which that council attempted to remedy. Among various remedies proposed, one was to declare fuch marriages null. As the English house of commons has feldom been adorned with more animated eloquence than on occafion of the ftrenu ous oppofition to their marriage a&t, fo this celebrated council was hardly fo much divided on any other subject as this. Againft the motion for declaring fuch marriages null, there were no fewer than 56 prelates who anfwered by non placet. And it was ftrongly urged that it was not lawful, on account of the want of folemnities, to declare that marriage invalid, which at the time had been, foro poli, validly conftituted by the de prefenti consent of the parties. Tametfi dubitandum non eft, clandeftina matrimonia libero contrahentium confenfu facta, rata effe et vera Therefore, even in the very act of declaring clandeftine marriages mull, this council, as to the general point, is an au thority against the opinion of lord Kames. § 2. CONSTITU TION OF no power as In annulling clandeftine marriages, M. Pothier remarks, Clergy have that the council exceeded the province of clerical jurifdic- to the validtion; for it belongs to the fecular power alone to determine ity or inas to the validity or invalidity of marriages. validity of marriages. Trent alter THE Council of Trent was received in many parts of Eu- Council of rope; where therefore, of course, the priest's blessing be- ed the law came, thenceforward, effential to the validity of marriage; where it while, in those countries, again, which did not embrace it, ed. the law ftill continued as formerly. was receiv edicts. In France, however, where the Council of Trent was not In France received, king Henry the third judged it proper to make a paffed. ípecial enactment annulling clandeftine marriages"; which regulation was confirmed and farther followed out in the fubfequent reigns. In France, then, clandeftine marriages came to be null, and the prieft's bleffing neceffary, vi ftatuti. ities necef In England, in like manner, fimilar ftatutes have been in England pailed; and in particular the 26th of Geo. II, c. 33, common- alfo,folemnly called the marriage act, which Sir William Blackstone fary vi ftaterms an innovation on the ancient laws and conftitution o. IN Ireland, "the marriage act, 26 Geo. II, never was tuti. "enacted; but certain acts have paffed, particularly 9 Geo. CONSTITU- "II, c. 2, and 23 Geo. II, c. 10, to invalidate by fuit in MARRIAGE." the ecclefiaftical court (to be commenced within a year) TION OF "the marriages of perfons having eftates to a certain amount "therein specified, who marry under twenty-one, without "confent of parents or guardians "." • Brown's Civil Law, Lect. 1, p. 13. After taking notice of the great controversy concerning the expediency of the marriage act, the learned profeffor fays, " The act is not "fuppofed to extend to Scotland; "but lord Mansfield expreffed great doubts upon that point. But 18 exprefsly provides, "that "nothing in this act contained fhall "extend to that part of Great Britain called Scotland." Lord Mansfield, therefore, could not have entertained or expreffed any fuch doubt. Probably the learned profeffor alluded to an øbiter dictum of lord Mansfield's, when delivering his opinion in a question with respect to money won at play in France. His lordship said, "I admit "that there are many cafes where the "law of the place of the tranfaction 'fhall be the rule; and the law of England is as liberal in this refpe&t "as other laws are. It has been laid "down at the bar, that a marriage in " a foreign country must be governed by the law of that country where "the marriage was had, which in "general is true. But the marriages "in Scotland, of perfons going from "hence for that purpofe, were in"flanced by way of example. They દર over again; and fo the matter was "never brought to trial."-Burrow's Reports, 1079. Lord Mansfield doubted, therefore, not whether the English marriage act extended to Scotland; but whether a couple refident in England, and pur. pofely going to fome other country, (no matter which), to get married, were not to be confidered as facientes fraudem legi, which is agreeable to the opinion of many continental writers on the law of nations. This diftinction obtained in France. "Tout ce que nous avons dit jusqu'à "préfent fur la nullité du mariage "célébré hors de la préfence et fans "le confentement du curé des parties, "a lieu, quand même le mariage au"roit été célébré en pays étranger "par des François, lorfqu'il paroît que c'eft en fraude de la loi qu'ils y font "allés. Il en feroit autrement d'un "mariage qu'un Francois qui fe trou"veroit avoir, fans fraude, fa réfi«dence dans un pays étranger, où il "n'y à pas d'exercice de la religion catholique, auroit contraЯé avec " une femme catholique, et qui auroit "éte célebré dans la chapelle d'un "ambaffadeur catholique par l'aumô"nier."-Pothier, t. iii, p. 297. § 2. CONSTITU In those countries, pofitive enactments have altered the law which was there formerly the same as it still is with us P. TION OF "The intervention of a priest," judge Blackstone, obferves, MARRIAGE. ❝ to folemnize this contract, is merely juris pofitivi, and not The mar " juris naturalis aut divini." "to riage law of thofe countries for merly the do fame with its but altered ourselves, enactments. In Scotland, no such statutes have ever pafled; nor the acts against clandeftine marriage interfere with validity. And on the common law of this country, the by fpecial Council of Trent could not have any virtual operation which it had not in popith countries. Neither can it be imagined that previously thereto the common, civil, or ecclefiaftical, law of Scotland was in this particular different, or stricter and more fcrupulous than in the rest of Christendom. REGULAR $3. III. A REGULAR marriage requires two folemnities. The one is, that its celebration be preceded with banns, or pro--BANNS. claimed. Banns are a public intimation of the intended marriage, and notification to those who know any objections P Blackflone fays.exprefsly, " that any contract made, per verba de prefenti, or in words of the prefent tenfe, "and in cafe of cohabitation. per verba "de futuri alfo, between perfons able to contract, was, before the late act, "deemed a valid marriage to many "purposes."-Black. b. i, c. 15. So chief-juftice Holt, in fpeaking of a marriage, per verba de prefenti, says, "this is a marriage, and they cannot "punish for fornication; but only for "not folemnifing the marriage ac"cording to the forms prefcribed by "law, but not fo as to declare the "marriage void."-Burn's Eccl. law, vol. ii, p. 30. Yet this principle, how just soever in theory, the English courts do not appear to have deemed it fit to apply to the conftruation of a flatute fo unpopular, and of fuch dubious policy, a their marriage act. Such marriages" are not winked at merely; the court of king's bench have deciled in favour of their validity. "The appellant and refpondent, both English fub"jects, and the appellant being under age, ran away without the confent "of her gaurdian, and were married " in Scotland; and, on a fuit brought "in the fpiritual court to annul the "marriage, it was holden that the "marriage was good."-Compton & Bearcroft, ft Dec. 1768. Butler's Nifi prius, p. 113. a Banns, from ban Teutonic, a proclamation or publication. REGULAR $3. thereto, to divulge them. Banns were introduced by the -BANNS. Lateran Council in 1216, under the pontificate of Innocent III. This ordinance of the Lateran Council was renewed, and more particularly regulated by the Council of Trent. THE fame ordinance was adopted by our provincial councils, held at Perth in 1242 and 1269. Though of popish original, it was retained by the prefbyterian church. The holidays being abolished, the proclamation was required to be made on three feveral Sundays. The prefbyteries at firft Difpenfing were in the practice of dispensing with banns; but have not with them. exercised fuch a power fince the Revolution ©. Where is the pro clamation, THE proclamation must be made in the parish churches of the parties. If the ceremony is to be performed by an epifcopal clergyman, the proclamation must be made in the epifcopal congregation alfo. Of course, if the parties belong to if the par- any other diffenting congregation, the proclamation fhould ties are dif- take place there as well as in the parish church. "A certi"ficate of the clerk of the kirk-feffion, that the banns were duly published, is received as legal evidence that they were "proclaimed on three different Sundays; not to be travers"ed by positive proof that all the three proclamations were "made on the fame day d." As a part "of the laudable "order and constitution of this kirk," banns are mentioned fenters. Legal evidence of the bans. b" In a reformed kirk," fays the first book of Difcipline, marriages "ought not to be fecretly used, but "in open face and public audience of "the kirk; and, for avoiding of dan$6 gers, expedient it is, that the banns "be publicly proclaimed three Sun"days, unless the perfons be so known "that no fufpicion of danger can arise, " and then may the time be shortened "at the difcretion of the ministry. "But no ways can we admit marriage "to be used fecretly, how honourable "foever the perfons be. The Sunday, "before the noon, we think most ex"pedient for marriage, and it be used "no day elfe without the confent of "the whole ministry.” Erfk. b. i, t. 6, § IQ. d Ibid. |