MARRIAGE. 91 MARRIAGE. majority. In .some of llicso li'f^islations, the only rcsnlt altaclied to ])ar('iital ojiposition after ma- jority is to delay the marriage. In Germany, if the oi)position of the parent-s appears unreason- able, tile necessary consent can be {^iven by the court. The Roman rule forbiddin-ir remarriajie of a woman within th<! ten montlis followinf,' 1lie dissolution of the previous niarriaf;e is generally retaiiK'd in modern legislations. The hindrances based on consanguinity and allinity vary con- sideraldy in dill'crent States. In Germany con- sanguinity is a bar only in the direct line and between brothers and sisters; aliinity is a bar only in the direct line. In France uncle and niece, aunt ami nephew, and brother-in-law and sister-in-law are forbidden to intermarry, but dispensation may be granted by the head of the State. Even in the more conservative Catholic countries there is a tendency to limit the impedi- ments of consanguinity and aifinity. In Spain marriages within the fourth degree are pro- hibited, but for non-Catholics the fourth degree is computed civilly, so that the restriction reaches no further than to first cousins. As regards lack of consent, the doctrines of the canon law are generally followed in the modern civil legislations. Fraud per se does not gener- ally invalidate a marriage, but in the German Code fraud by which consent has been induced has this efi'ect. ExGLi.su Common Law, and Acts of Parlia- ment. That the general ecclesiastical law of Western Christendom ])revailed in the British Islands until the Reformation, and that it contin- ued to |)revail after the Reformation until changed by Parliamentary enactments, was not .seriou'dy questioned by the courts until 184.3. In that year the House of Lords decided, in Queen vs. ^Nlillis (10 Clark and Finelly. .534). that, even before the Reformation, there was a special ecclesiastical law of England and Ireland, which was not in all points identical with the Roman canon law; that, in particular, the Roman doctrine that parties could contract a valid marriage by consent alone had never been a rule of English ecclesiastical law; that, on the contrary, the assistance and benediction of a priest had always been essential to a perfect marriage in England and Ireland. This decision denied, accordingly. that the form of marriage which is still known in the United States as the 'common-law marriage' had ever been a perfect marriage at English common law. The correctness of this decision (which was rendered by a divided court) has been widely questioned, and further historical in- vestigation has strengthened the opposite opinion (see Pollock and ilaitland. Uistoni of Eniilish Law. II., 372, and Maitland, Canon Lair in England). The opposite theory has always been held by the courts of the I'nited States, and the decision in Queen vs. Jlillis has not been accepted by the courts of Canada. The marriage of which the validity was denied in Queen vs. Jlillis was an Iri.sh marriage. As far as England was concerned, the question had been settled by the acts 26 Geo. II.. c. 33 (Lord Hardwieke's Act) and 4 Geo. IV.. 76. which re- quired a church marriage i)rcceded by the publi- cation of banns, except when .a special license was secured, and which declared any other form of marriage invalid. Churcli marriage meant marriage according to the forms of the Estab- lished Church, and from 1753 to 1836 no exceptions Vol. XIIL— 7. were made except in the cases of Quakers and Jews. Lord Russell's Act, and 7 Villiam I'., c. 85, supplemented by Acts 1 Vict., c. 22, and 19 and 20 Vict., c. 119. furnished a choice be- tween marriage accordi)ig to the forms of the Established Cimreh, marriage according to the forms of other registered confessions, and civil marriage before a registrar. Lord Hardwieke's act further demanded the assent of parents or guardians to the marriage of minors, and the fact that it did not operate outside England led to the numerous "(Jretn.a Green' marriages. At present, under later acts of Parliament, the same election between various forms of nuirriage is given in Scotland and in Ireland as in England — an election between religious marriage accord- ing to the rites of any recognized confession and civil marriage. In Ireland the marriage by consent without ecclesiastical or civil ceremony has been abidishcd by the decision in (,)ueen r.s. ilillis; in Scotland this formless marriage still exists, as it .still exists in the great majority of the commonwealths of the United States. All that is necessary to establish the marriage is the consent or agreement in prcsenti, i.e. an agree- ment of marriage as distinct from an agreement to marry at some future time. With the requirement of public marriage in England and Ireland, the canonical ruhf that an agreement to marry followed bv coiuuhil'is is marriage has been abrogated. In Scotland the rule is maintained. In the United States there is a conllict of authorities. Even at the canon law the rule was based on a jiresumption that consent in prcsenti had intervened, but this ])re- sumption was not rebuttable. Some of the Ameri- can courts treat the presumiJtion as rebuttable; a few decline to recognize the rule. Of course neither in Scotland nor in the United States will a relation which was originally meretricious be transformed into marriage liy a promise to marry ; nor was any such result recognized by the Cath- olic Cliurch. In accordance with the connnon rules, the common-law ages of consent are fourteen and twelve. If either party, by reason of idiocy, im- becility, or insanity, does not comprehend the na- ture and effect of the marriage contract, there is no marriage; but if the lack of comprehension is due to into.xication. the marriage is not void, but only voidable, ilistake, as at canon law. must be of such a character that there was really no con- sent. As regards fraud, the English courts follow the Roman ecclesiastical rule, that fraud per se is not a ground for annulling a marriage. As Sir F. H. Jeune said (in Moss vs. Moss, 1897, P. D. 268). where marriage is said to be annulled for fraud, it is really annulled because of the absence of consent. The American courts, however, are inclined to admit that a marriage may be an- nulled by fraud, and they arc especially inclined to admit such an annulment if the marriage has not been consummated. In England, as elsewhere, the Reformation brought about a considerable reduction in the prohibitions of marriage based on relationship. Statutes of Henry VTII., repealed in part by a statute of Edward VI. and wholly repealed by a statute of Philip and Mary, were partially re- vived in the first year of Elizabeth's reign; and the provision that survived simply stated that "no prohiliition, God's law except, shall trouble or impeach any marriage outside the Levitical degrees." This was interpreted by the ecclesias-
