566 M A R R I A G E essence of matrimony without the intervention of a 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." 1 England. Marriage may be the subject of an ordinary contract on which an action may be brought by either party. It is not necessary that the promise should be in writing, or that any particular time should be named. The parties were formerly inadmissible as witnesses in this action ; but they are now competent to give evidence, subject to the condition that the plaintiff shall not recover "unless his or her testimony shall be corroborated by some other material evidence " (32 & 33 Viet. c. 68). The ordinary defences, e.g., fraud, discharge, minority, are available in these actions, and there are also special defences arising from the nature of the contract, such as the bad character of the plaintiff, the relationship of the parties within the prohibited degrees, &c. Promises to marry are not within the meaning of "agreement made in consideration of marriage " in the statute of frauds, which requires such agreements to be in writing. Contracts in restraint of marriage, i.e., whose object is to prevent a person from marrying anybody whatever, are void, as are also contracts undertaking for reward to procure a marriage between two persons. These latter are termed marriage brocage contracts. Any man and woman are capable of marrying, subject to certain disabilities, some of which are said to be canonical as having been formerly under the cognizance of the ecclesiastical courts, others civil. The effect of a canonical disability as such was to make the marriage not void but voidable. The marriage must be set aside by regular process, and sentence pronounced during the life time of the parties. Natural inability at the time of the marriage to procreate children is a canonical disability. So was proximity of relationship within the prohibited degrees, which has been made an absolute avoidance of marriage by 5 & 6 Will. IV. c. 54. A pre-engagement to another person was at one time recognized as a canonical disability. Civil disabilities are (1) the fact that either party is already married and has a spouse still living ; 2 (2) the fact that either party is a person of unsound mind; (3) want of full age, which for this purpose is fixed at the age of puberty as defined in the Roman law, viz., four teen for males and twelve for females ; 3 (4) proximity of relationship within the prohibited degrees, already alluded to. The statute which lawyers regard as establishing the rule on this last point is the 32 Henry VIII. c. 38 (repealed in part by 2 & 3 Edw. VI. c. 23, in whole by 1 & 2 P. and M. c. 8, but revived by 1 Eliz. c. 1, and so left as under the Act of Edward), which enacts that " no prohibition, God s law except, shall trouble or impeach any marriage without the Levitical degrees." The forbidden marriages, as more particularly specified in previous statutes, are those between persons in the ascending and descending line in infinitum, and those between collaterals to the third degree inclusive, according to the computation of the civil law, which reckons from one of the persons related to the common stock and so down to the other person. The prohibitions extend not only to consanguinei (related by blood) but to affines (related by marriage). A man may neither marry his sister nor his deceased wife s sister, for both are related 1 Some restrictions on marriage peculiar to the canon law are noticed at the end of tins article. 2 A divorce nisi does not enable the parties to marry until it is made absolute. 3 A marriage in which either of the parties is below the age of con sent is, however, said to be not absolutely void ; if the parties agree to continue together at the age of consent no new marriage is necessary, but either of their xnay disagree and avoid the marriage. to him in the second degree ; nor his sister s daughter, nor his deceased wife s sister s daughter, for both are in the third degree ; but he may marry his first cousin, for shs is in the fourth degree. Consanguinei of either spouse are related by affinity to the other ; but the consanguinei of the one are not necessarily related to the consanguinei of the other. Hence two brothers may marry two sisters, or a father and son a mother and daughter. A husband is not related to the affines of his wife, and so a man may marry the widow of his deceased wife s brother. The. rule as to collaterals includes those related by the half blood and bastards (see Stephen s Commentaries, book iii. c. 2). Other disabilities previously admitted were abolished by the statute of Henry. The Act of 5 & 6 Will. IV. c. 54 enacted that " all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void to all intents and purposes whatsoever." They had previously, as already stated, been only voidable. The Act at the same time legalized marriages within the prohibited degrees of affinity (but not consanguinity) actually celebrated before the 31st August 1835. The celebration of marriages is now regulated wholly by statutory legislation. The most important Acts now in force are the 4 Geo. IV. c. 76 and the 6 & 7 William IV. c. 85. 4 The former regulates marriages within the Church of England, but was intended to be of universal application, Jews and Quakers only being excepted by section 31. It requires either the previous publication of banns, or a licence from the proper ecclesiastical authority. As to banns, the rule of the rubric, so far as not altered by the statute, is re quired to be observed. They must be published on three successive Sundays at morning service after the second lesson, in the chun h of the parish in which the parties dwell ; the bishop may, however, authorize the publication of banns in a public chapel. Seven days notice must be given to the clergyman of the names of the parties, their place of abode, and the time during which they have lived there. If either party is under age, the dissent of the parents or guardians expressed at the time of publication of banns renders such publication null and void. Licence in lieu of banns may only be granted by the archbishop, bishop, or other authority, for the solemnization of a marriage within the church of the parish in which one of the parties shall have resided for fifteen days before. Before a licence can be granted an oath must be taken as to the fact of residence and that the necessary consent has been obtained in tho case of persons under age. The father, or lawful guardian, or mother if unmarried, or guardian appointed by the court, is each in order of substitution the proper person to consent to the marriage of a minor, and the place of any such person incapacitated mental ly is taken by the lord chancellor. The absence of such consent does not, however, avoid a marriage once solemnized. But if persons wilfully intermarry (unless by special licence) in a place not being a church or public chapel, or without due publication- of banns or proper licence, or before a person not in holy orders, the marriage is null and void to all purposes. Marriage must be celebrated with in three months after banns or licence, and between the hours of eight and twelve in the morning. For the relief of the great body of dissenters the Act 6 & 7 Will. IV. c. -85 was passed. It permits marriage to be solemnized in two additional ways, viz. (1) by certificate of the superintendent regis trar of a district without licence, and (2) by such certificate with licence. In the first case, notice must be given to the registrar of the district or districts within which the parties have resided for seven days previous, which notice is inscribed in a marriage notice book, open to public inspection at all reasonable times, and there after suspended for twenty-one days in some conspicuous place in the registrar s office. The notice must be accompanied by a decla ration as to the absence of impediments, necessary consent, &c. Any person whose consent is necessary to an ecclesiastical licence may forbid the issue of a certificate, but in default of such prohi bition the certificate will issue at the end of the twenty-one days. The marriage may then take place on any day within three months of the entry of notice, and in one of the following ways : (1) in a certified place of religious worship, registered for the solemnization of marriage ; in that case a registrar of the district with two wit nesses must be present, and the ceremony must include a mutual declaration of assent by the parties and a disavowal of any impedi ment ; (2) at the superintendent registrar s office, with the same 4 A complete list of the acts regulating the solemnization of marriage or confirming marriages which through some defect might be void will
be found in Phillimore s Ecclesiastical Law, vol. i.