Chapter X: Rise of CIVIL Marriage (4)

The institution of banns, as already seen, is the ancient device of the church to secure publicity.[1446] During the ages it has served a useful purpose, though from its very nature, even under the most stringent regulations, it is capable of serious abuse. But there are unmistakable signs that it has about run its course and must soon yield to more effective methods, such as those prescribed by the civil-marriage act. The "unsuitableness of banns to the present state of society," remarks Mr. Hammick, appears as early as 1868 in the report of the Marriage Law Commissioners,[1447] They say that "in populous places it seems universally agreed that no real publicity is obtained by banns, which afford no safe-guard against improvidence, illegality, or fraud, and are frequently, from their great number, an inconvenient and unseemly interruption to divine service." The old sentiment against publicity is a strong motive for evasion. "The evidence which we have received," add the commissioners, "abundantly proves that the dislike of this mode of publication tends to promote clandestinity rather than to prevent it, by inducing many persons to resort for marriage to places where they are unknown."[1448] Nor does the testimony against the efficiency of banns come from lay sources alone. The bishop of Durham, in this same report, declares that "at present there is no punishment to any party making a false statement" in order to have banns published in a parish where he does not reside; "whilst it is quite impossible for the clergyman, who is now by law punishable for celebrating such marriages, to ascertain the falsehood of such statements, as his time, if his parish be large, is entirely occupied by his other necessary duties." Hence he believes that it would be "advantageous to assimilate the law to that which regulates the notice of banns at the registry, and to make a false statement in either case perjury."[1449] In like spirit the bishop of Ely refers to the difficulty of the clergyman's making suitable examination. "All such inquiries," he says, "are inevitably left to the parish clerk, whose interest it is to inquire as little as possible. Hence, if any persons desire to contract an illegal marriage, they choose one of the populous parishes of our large towns, where they readily escape notice."[1450] The uselessness of banns in such places is further made very clear "not only by ninety-nine couples being asked on one Sunday at St. Pancras, but also by 189 couples being asked in the cathedral church at Manchester on the 11th December, 1864, and 202 couples on the 10th December, 1865," while on this last-named day at St. Mary's, Lambeth, the banns of 125 couples were published. In many of these cases, merely the names were mentioned, "unaccompanied by any announcement of condition--whether bachelors, widows," or spinsters.[1451]

[1446] Above, chap. viii, sec. iv, pp. 359 ff.

[1447] HAMMICK, _op. cit._, 65. _Cf. Report of the
Royal Commission, 1868_, 53-58, 34, 36-38, for the responses of
various lay and ecclesiastical persons.

[1448] _Report_, xlii; in HAMMICK, _op. cit._, 65, note.

[1449] REV. S. C. WILKS, in his _Banns, a Railroad
to Clandestine Marriages_ (1864), proposed "a simple form
of declaration, to be incorporated with the Banns Book":
HAMMICK, _op. cit._, 66, note.

[1450] From suggestions made to the Marriage Law Commissioners,
and published in their _Report_, 1868: in HAMMICK, _op.
cit._, 354-62.

[1451] Suggestion of Major Graham, late Registrar General, in the
commissioners' _Report_: HAMMICK, _op. cit._, 356:

"Without proposing that banns should be prohibited, the
commissioners recommend that the publication should not be
required by law as a condition either of the lawfulness or of
the regularity of marriage, being of opinion that 'every useful
purpose which can be answered by the publication of banns in
the Established Church may be equally answered by the mere fact
of notice to the officiating minister.'"--HAMMICK,
_op. cit._, 65. In general, on the present law of banns, see
_ibid._, 62-80; ERNST, _Treatise of Mar. and Div._, 8;
GEARY, _Mar. and Fam. Rel._, 37-46, where the judicial
decisions are cited; and MOORE, _How to be Married_, 1
ff.

The civil-marriage act of 1836 owes its adoption mainly to the influence and exertion of Lord John Russell, by whom it was proposed. In a measure, however, the way had been cleared for it by the bill of the preceding year introduced by Sir Robert Peel. This was received in a spirit of conciliation and compromise, showing that the period of harsh intolerance was fast approaching its end.[1452] The bill failed of passage, mainly because as a half-way measure it did not satisfy the non-conformists. For it permitted the civil form of marriage only to those declaring their unwillingness to accept the established rites; and thus, it was asserted, a stigma would be put upon the dissenters to whom matrimony was not less holy than it was to the adherents of the English church.[1453] Moreover, the magistrate of the hundred before the marriage was solemnized was required to send the certificate to the clergyman of the parish for registration.[1454] But it is highly significant that in the debate proposals were made involving the essential elements of the two great measures of the next year. A system of civil registration of births, deaths, and marriages was suggested; while it was urged, either that the civil form of solemnization should be made optional for all, not merely restricted to non-conformists; or else it should be made obligatory for all, leaving it free to the parties in every case, after the lay ceremony, to avail themselves of the rites of their own religious body.[1455]

[1452] On asking leave to present the bill, March 17, 1834,
Sir Robert Peel delivered an elaborate speech explaining the
need of reform and giving a history of the attempts to remedy
the hardships arising from the existing marriage laws since
1753. His speech was well received by all parties: see the
summary of Peel's speech and of the debate on the bill in
OPPENHEIM, in _ZKR._, I, 19-33. In general on the
struggle for relief of dissenters see MAY, _Const.
Hist._, II, 362-64, 392-95; FRIEDBERG, _Eheschliessung_,
391-401; FISCHEL, _Eng. Const._ (London, 1863), 84.

[1453] Lord John Russell's speech: OPPENHEIM, in _ZKR._,
I, 34; _cf. ibid._, 31; and BEARD, _Notes on Lord
John Russell's Mar. Bill_ (London, 1834), demanding full civil
marriage for dissenters, not mere "relief" through the Church of
England.

[1454] MOLESWORTH, _Hist. of Eng._, I, 339;
WALPOLE, _Hist. of Eng._, IV, 71, 72.

[1455] OPPENHEIM, in _ZKR._, I, 31, 32. The bill was not
satisfactory to Lord John Russell; hence it was dropped when he
superseded Peel as prime minister.

Nevertheless the act of 1836 was adopted only after a prolonged contest in the House of Commons.[1456] By this statute the religious celebration prescribed by the Anglican rubric is preserved, and two additional methods of procedure are created: (1) by certificate of the superintendent registrar without license; (2) or by such certificate with a license.

[1456] For a contemporary account of the debate on the
bill see the _Annual Register_, LXXVIII, 122-34; a
summary by OPPENHEIM, in _ZKR._, I, 33 ff.;
also MOLESWORTH, _Hist. of Eng._, I, 386-88;
WALPOLE, _Hist. of Eng._, IV, 69-73. See
HANSARD, _Debates_, as cited above.

When procedure is by the first method,[1457] notice must be given "to the superintendent registrar of the district within which the parties shall have dwelt for not less than seven days" previous. This notice is then entered in a marriage notice book "open at all reasonable times without fee to all persons desirous of inspecting the same;" and thereafter for twenty-one days the notice or a true copy is to be suspended or affixed "in some conspicuous place in the office" of the superintendent.[1458] "In the body or at the foot" of the notice a "solemn declaration" as to residence, necessary consent, and the absence of impediment of any kind must be subscribed by one of the parties.[1459] After twenty-one days,[1460] if no valid objection be filed by parents or others, a certificate is issued by the superintendent, and the marriage may be celebrated at any time within three months of the entry of the notice.[1461] After issuing the certificate the marriage may be celebrated in either of the following forms: (1) Before the superintendent registrar, in the presence of a district registrar and two witnesses--a mere declaration of assent and no religious rites whatever being required. (2) In any registered building by a minister of any sect according to the religious rites of the same. Here also the registrar of the district and two witnesses must be present. (3) According to the rites of the Jews and Quakers in duly certified buildings. A building may be registered by the superintendent registrar on receipt of a written petition from "any proprietor or trustee," accompanied by a certificate signed in duplicate by twenty householders at the least, that such building has been used by them during one year at the least as their usual place of public worship and that they are desirous that the place shall be registered.[1462] (4) Marriages may also be solemnized by certificate in lieu of banns in an Anglican church or chapel, if the consent of the minister be obtained.[1463] In all cases the place of marriage must be mentioned in the certificate, and the celebration must occur between the hours of 8 in the forenoon and 3 in the afternoon.[1464]

[1457] On marriage by certificate without license see
MOORE, _How to be Married_, 60 ff.; GEARY,
_Mar. and Fam. Rel._, 80 ff., 85 ff.; HAMMICK, _Marriage
Law_, 118 ff., 127 ff.

[1458] By 19 and 20 Vict., c. 119, secs. 3-5.

[1459] By 19 and 20 Vict., c. 119, sec. 2. _Cf._
ROBERTSON, in _Britannica_, XV, 566; BURN,
_Eccl. Laws_, II, 433 _x-y_; HAMMICK, _Marriage Law_, 89
ff., 319, 320; GEARY, _Mar. and Fam. Rel._, 80-85.

[1460] In the interval the notice was originally to be read
by the clerk of the Board of Guardians at their sessions for
three successive weeks: FRIEDBERG, _Eheschliessung_,
416; BURN, _Eccl. Laws_, II, 433_y_. This provision is
repealed by 19 and 20 Vict., c. 119.

[1461] _Cf._ 19 and 20 Vict., c. 119, sec. 4. The form of
certificate is given by HAMMICK, _Marriage Law_, 333,
334; MOORE, _How to be Married_, 148. All the forms are
given by MOORE, _ibid._, 120-63.

[1462] 6 and 7 Will. IV., c. 85, sec. 18. _Cf._ BURN,
_Eccl. Laws_, II, 433_bb._; BOHN, _Pol. Cyc._, III, 329;
FRIEDBERG, _op. cit._, 413-15; HAMMICK, _op.
cit._, 118 ff., 122 ff.

[1463] BURN, _Eccl. Laws_, II, 433_x_;
ROBERTSON, in _Britannica_, XV, 567; FRIEDBERG,
_op. cit._, 416; BOHN, _op. cit._, III, 322.

[1464] Between 8 and 12 in the forenoon by 6 and 7 Will. IV., c.
85, sec. 20. This was changed by 49 and 50 Vict., c. 14, sec. 1.

If the parties wish to avoid delay and so great publicity, they may proceed by the superintendent's certificate and license. These may be obtained on one[1465] full day's notice to the registrar of "the district in which one of the persons resides, together with a declaration that he or she has resided for fifteen days therein, that there is no impediment, and that the necessary consents if any have been obtained. The notice is not exhibited in the registrar's office."[1466] After obtaining the license, the marriage may be celebrated in either of the first three modes above mentioned; but no superintendent's license may be issued for a marriage according to the forms of the English church, that right being still an "ecclesiastical monopoly." Any person guilty of wilfully making any false statement in procuring certificate or license is liable to the penalties of perjury;[1467] and if any persons "knowingly and willfully intermarry," in any place other than that mentioned in the certificate or without notice, certificate, or license, as required by law, or in the absence of the registrar where his presence is required, their marriage, except in certain specified cases, is null and void.[1468] False statements as to consent subjects the offender to the penalties of perjury, but does not invalidate the marriage.

[1465] Original act said "seven days": BURN, _op. cit._,
II, 433_aa_, changed by 19 and 20 Vict., c. 119, sec. 9. _Cf._
GEARY, _Mar. and Fam. Rel._, 87; HAMMICK, _op.
cit._, 324.

[1466] ROBERTSON, in _Britannica_, XV, 567;
BURN, _op. cit._, II, 433_z-bb_.

[1467] Re-enacted by 19 and 20 Vict., c. 119, sec. 18.

[1468] By 6 and 7 Will. IV., c. 85, sec. 42. _Cf._ BOHN,
_Pol. Cyc._, III, 324; BURN, _op. cit._, II, 433_ii_;
HAMMICK, _op. cit._, 295.

As to the form of civil contract, it is only essential that somewhere in the ceremony the following declarations be introduced. Each of the parties must say:

"I do solemnly declare, that I know not of any lawful impediment why I, A. B., may not be joined in matrimony to C. D."

And each must say to the other:

"I call upon these witnesses here present to witness that I, A. B., do take thee, C. D., to be my lawful wedded wife (or husband)."[1469]

[1469] 6 and 7 Will. IV., c. 85, sec. 20. _Cf._ BURN,
_op. cit._, II, 433_cc_; BOHN, _op. cit._, III, 323;
HAMMICK, _op. cit._, 289, 145; MOORE, _How to
be Married_, 49.

Thus English marriage ends, as it began, in a simple contract; but the state has succeeded in imposing upon it the condition of publicity--a task which the church first attempted, but failed to accomplish.[1470]

[1470] By the act of 7 and 8 Vict., c. 81 (1844), supplemented
by 34 Vict., c. 110, and 26 and 27 Vict., c. 27, the essential
features of 6 and 7 Will. IV., c. 85, were adopted for Ireland,
the proximate cause being the excitement aroused by the case
of the Queen _v._ Millis, 1843: see chap. vii, sec. ii, p.
316, above; and also HAMMICK, _Marriage Law_, 232-39;
GEARY, _Mar. and Fam. Rel._, 557 ff.

In Scotland except as restricted by 19 and 20 Vict., c. 96,
the principles of the canon law are still in force, "subject
only to such modifications as it has undergone from time to
time by the application of the rules of evidence established
in that country, and the course of judicial decisions"
(HAMMICK, _op. cit._, 221). But in 1856 by 19 and 20
Vict., c. 96, called Lord Brougham's Act, for a contract to
be valid, the parties must have resided in Scotland at least
twenty-one days preceding the ceremony. This put an end to
"Gretna Green" weddings, but otherwise private contracts are
still legal. Thus three kinds of marriages are recognized: (1)
"regular marriages" before a minister according to custom or
statute; (2) "irregular marriages" _per verba de praesenti_; (3)
"irregular marriages" _per verba de futuro, subsequente copula_;
but in this case the contract must be written or proved by
confession on oath: HAMMICK, _op. cit._, 221 ff. That
Scotch marriages are binding in England was established by the
celebrated judgment of Lord Stowell in Dalrymple _v._ Dalrymple
in 1811: DODSON, _A Report of the Judgment_, 1 ff.,
97 ff.; STEPHENS, _Laws of the Clergy_, I, 672, 688;
FRIEDBERG, _Eheschliessung_, 426, 427; KENT,
_Commentaries_, II, 87. In general, see GEARY, _op.
cit._, 531 ff.; FRIEDBERG, _op. cit._, 428, 437-59;
_idem_, _Geschichte der Civilehe_, 18 ff.; MOORE, _How
to be Married_, 85 ff.; ROBERTSON, in _Britannica_,
XV, 567; TEGG, _The Knot Tied_, 216-23 (Gretna Green);
JEAFFRESON, _Brides and Bridals_, II, 203-16 (Gretna
Green); GLASSON, _Histoire du droit et des inst._, VI,
162-69; WHARTON, _Laws Rel. to Women_, 265-98 (present
English law), 298-303 (Scotch law); STEPHENS, _Laws of
the Clergy_, I, 671-779; CARLIER, _Mar. aux États-Unis_,
41 ff.

* * * * *

Transcriber's note:

Minor typographical and punctuation errors have been corrected without note. Irregularities and inconsistencies in the text have been retained as printed.

Mismatched quotes are not fixed if it's not sufficiently clear where the missing quote should be placed.

The cover for the eBook version of this book was created by the transcriber and is placed in the public domain.

In the Table of Contents: III. The Evils of the Spiritual Jurisdiction 351-359"--350 was changed to 351.

Page 170: The closing quote is missing--'the custom "in accordance with which every woman'