The Sun.
London, England, 1868-09-16 00:00:00

THE SUN, _LONDON, EDN ESDAY.EVENING_ _SEPTEMBER, 16, 1868.

irrr LAW OF MAIT,TIAGE.

In 1865 a royal commission was nominated to
inquire into and report upon the state and opera-
tion of the various marriage laws now in force in
the United Kingdom, in India and the colonies, and
as touching British subjeCts in foreign countries.
The commissioners were Lord Chelmsford, Lord
Naas, Lord Lyveden, Mr. Spencer Walpole, Mr.
W. Monsell, Lord Justice Clerk Inglis, Mr. Justice
O'Hagan, Sir J. P; Wilde (Probate Court), Vice-
Chancellor. Page Wood, Sir R. Palmer, Sir 11.
Cairns, Mr. G. Young, Solicitor-General for Scot-
land, Dr. Travers Twiss, and Mr. A. M. Dunlop.
After due inquiry and examination of witnesses the
commissioners have made their report, which has
been recently printed in a bluebook of 250 pages,
with the evidence. Having laid down what they
gather to be the present state of the Marriage Law,
the commissioners proceed to make the following
recommendations :-
1. TIIE CAPACITY OF PERSONS.

After a long examination of the present state of
the Scotch law, the report proceeds :
Upon the whole, both the theoretical and the
practical arguments have failed to shake our con-
clusion that the law of secret consensual marriage
by promise subsequente copula, as it now exists in
Scotland, ought not to continue.
As to solemnisation of marriage the commis-
sioners recommend :

THE CONTRACT OF MARRIAGE SHOULD BE PASSED BEFORE
AN AUTHORISED MINISTER OF RELIGION OR CIVIL
OFFICER.

We recommend that the interchange or declara-
tion of matrimonial consent necessary. to constitute
a legal marriage should for the future take place,
in all parts of the United Kingdom, in the presence
of a duly authorised official celebrant or witness ;
and that no other mode of constituting marriage
should be recognised by law.
On the continent of Europe, wherever the Code
Civil is in force, a complete separation is made, in
marriage, between the civil contract and the reli-
gious ceremony, and a contract passed before a
purely civil officer in all cases required. We do not
recommend the introduction of this system into the
United Kingdom. That it might in some respects
have advantages we do not deny, but it would be
opposed to the habits and feelings of the great ma-
jority of the people of Great Britain and Ireland,
of all religious persuasions, and it would be incon-
sistent with the principle (to which we attach
great value) of strengthening and consecrating the
civil tie, as far as possible, by the sanctions of
religion.
The objects for which civil legislation ought to
provide may be equally well attained when the con-
tract is entered into with the forms of religious
solemnisation, as when these forms are absent, pro-
vided the contract itself is in both cases properly
guarded and authenticated. Nor is there, in the
abstract, any reason why a purely civil officer should
be a more trustworthy celebrant or witness of mar-
riage for civil purposes than a minister of religion,
authorised for that purpose by law. Without impos-
ing upon the clergy of any denomination either the
name or the character of State functionaries, the
State may obtain from them the same substantial gua-
rantees as if they were its own functionaries, by con-
ceding to them the privilege (which for the best
reasons they must always desire) of solemnising
marriages entitled to legal recognition, upon such
conditions as for the general welfare it may be
deemed necessary to impose. Such a system will
have the manifest advantage of building throughout
upon the foundations of the existing law, which in
every part of the United Kingdom recognises as
valid the celebration of marriage by dub authorised
ministers of religion, without making that mode of
celebration anywhere indispensable.

We therefore recommend that the official cele-
brant or witness of marriage should henceforth in
all parts of.the United Kingdom be either an autho-
rised minister of religion, or an authorised civil
officer.

WIIAT MINISTERS OF RELIGION SHOULD BE AtTIIORISED

TO SOLEMNISE MARRIAGE.

• To permit all ministers of religion to solemnise
marriage would be to abandon all security for its
due authentication; and for the observance of any
safeguards against sudden, clandestine, or unlawful
marriages. This (as to Episcopally ordained
ministers) was the actual state of the law in Eng-
land before the passing of Lord II trdw•icke's Act,
when a regular trade in clandestine marriages was
carried on by degraded clergymen, generally men
of infamous character, the inmates of prisons, and
indifferent to all social and ecclesiastical restraints.
In Ireland, at a still later period, it was thought
necessary to restrain similar practices by sanguinary
penal enactments.

We consider it, therefore, requisite that the
authority to celebrate marriages should ba limited
to such ministers of religion as are in the active
exercise of official duties iu their several Churches•
or denominations, and occupy positions which make
them amenable to public responsibility, and to the
censure and discipline of their own religious com-
munities. But,- within these limits, we think the
power ought to be as general as possible. The posi-
tions occupied by the diocesan Bishops and paro-
chial and district clergy of the several Episcopal
Churches (Protestant and Roman Catholic, Esta-
blished and unestablished), by the parochial clergy
of the Established Church of Scotland, and by the
officiating ministers of all the different bodies and
congregations of Nonconformists, are, upon the
whole, adequate guarantees for the general observ-
ance of those precautions and the discharge of those
duties upon which the State, in the matter of mar-
riage, is entitled to insist. Such ministers, there-
fore; when duly certified and registered (or other
ministers specially deputed by them, or officiating
with their consent), may safely be entrusted with
the solemnisation of marriage. We need hardly
add that the contract, if entered into by the par-
ties, acting in good faith, in the presence of any
person officiating de facto as a minister of the
authorised class, ought to be held valid and bind-
ing in law, notwithstanding any defect in the
orders, title, or authority of the person so
officiating.

All churches and chapels (other than parish
churches) of the United Church of England and
Ireland, and of the Established Church of Scot-
land, and all churches, chapels, and meeting-
houses of the Roman Catholic Church, and of all
Protestant denominations, for the ministers of
which it may be desired toobtain power to solemnise
marriages, ought., in our opinion, to be certified by
proper authority to the Registrar-General, and to
be registered by him, in accordance (substantially)
with-the provisions, on that subject, of the present
laws of England and Ireland. The rules as to cer-
tifying for this purpose churches and places of
worship ought everywhere to be the same, and
they should, we think, be the following :—Epis-
copal churches and chapels of congregations (whe
ther of the United Church of England and Ireland
or not), organised under Bishops, should be regis-
tered upon the certificates of their respective
Bishops. Presbyterian churches or chapels of con-
gregations (whether of the Established Church of
Scotland or not), organised under Presbyteries,
should be registered upon the certificates of their
respective Presbyteries ; and all other. Non-
conformist places of worship (including those
of Episcopalian congregations not under Bishops,
and of Presbyterian congregations not under
Presbyteries), should be registered upon the
certificate (in each case) of the officiating
ruiniiter for•the time being; and not less than ten
householders, members of the congregation who
have frequentedthe place its question, as their or-
dinary place of worship, for the period of one year
next before- the -late• of the certificate. pre-
sent provisigns of the laws of England and Ire-
land, as to a change of the place of worship of the
same congregation, after registration, should also
be retained and made general.

These rules, so far as they might vary from the
existing laws of England and Ireland on the same
subject, would have the effect of obviating certain
minor inconveniences, which have been pointed out
to us by'the English Roman Catholic Bishops and
by some: Presbyterian witnesses from: Ireland, as
arising in their respective churches under particular
local circumstances. The minimum number of cer-
tifying householders, in ca.ies where the certificate

of householders would still be necessary, is proposed
to be taken from the Irish rather than the English
law, upon the principle of giving the greatest degree
of facility consistent with safety.

TIMES AND PLACES OF SOLEMNISATION.

We do not think it expedient to continue the re-
quirement of solemnisation within any certain
hours, or any particular church or other place, as
in any case indispensable for the legal constitution
of marriage. To do so would make it necessary
either to establish different rules for different parts
of the United Kingdom, or to do violence to the
habits and customs of many of your Majesty's sub-
jects, in Scotland and Ireland, on a point as to
which no mischief has been found to result from
those habits and customs. In England the legal
hours are uniformly fro,n 8 to 12 a.m. ; in the Esta-
blished Church of Ireland they are the same ; but
any other Protestant marriages in Ireland take place
between 8 a.m. and 2 p.m., and Roman Catholic
marriages are subject to no restriction of either
place or time. Some instances have been brought
under our notice of inconveniences which are said
occasionally to arise from these requirements ; and
there appears to be no ground for believing that
mischief of any kind has resulted from their absence
in Scottish regular marriages, Roman Catholic mar-
riages in Ireland, marriages of Quakers and Jews
throughout the United Kingdom, or marriages by
special licence in England and Ireland. We do not
suggest that any clergyman of the Established or
any other Church, solemnising marriage, should be
relieved by law from such obligations as may be
imposed upon him, with respect either to place or
time, by the law and discipline of his own Church ;
but only that these points should, for the future, be
remitted to that law and discipline, and should be
left open and free, so far as State legislation is con-
cerned. In every case, if our recommendations
should be adopted, the celebrant must be either
the ordinary or officiating minister of some paro-
chial or other registered church, chapel, or place of
worship (or a minister specially deputed by him, or
officiating with his consent); and we think the State
may well accept the official presence of such a mini-
ster as sufficient to authenticate the contract of
marriage, although it may not be entered into dur-
ing canonical hours, or in the church or place of
worship in which such minister usually officiates.

PRESENCE OF WITNESSES.

We think that it will be expedient to retain and
make universal the rule now generally prevailing in
England and Ireland, that the solemnisation of mar-
riage shall take place in the presence of, and be at-
tested by, two witnesses.

FORMS OF SOLEMNISATION.

Whatever may be the ceremonies or usages of any
Church or sect, or of Quakers or Jews, appropriate
to the due solemnisation of marriage, we are of
opinion that the State ought not in any case to take
notice of or enforce compliance with such ceremo-
nies or usages, as necessary to the validity of any
marriage, in other respects duly solemnised. Mar-
riage ought, in all such cases, to be held well con-
stituted by words of mutual consent to be husband
and wife (or of mutual declaration that they are
husband and wife) solemnly interchanged between
the parties, in the presence of any authorised cele-
brant or ofrigial witness. On the other hand, we do
not propose that any deviation should be required
by law from the internal regulations, usages, or
discipline of any Church or religious body, with
respect to the solemnisation of marriage, or with
respect to the obligation of ministers to solemnise
marriage on compliance with the legal requisites.

MARRIAGE BEFORE CIVIL REGISTRARS.

The presence of a civil registrar is, in England,
now required, on pain of nullity, at all mar-
riages except those of the Established Church,
and of Quakers and Jews; but it is not re-
quired either at regular marriages in Scotland, or at
any marriages whatever (except those solemnised
in the registrars' offices) in Ireland. When the
duty of registrars quoad hoc is performed by the
officiating ministers or other official witnesses of
any religious denomination (as is the case in all
marriages by the United Church of England and
Ireland, and by Jews and Qaakers, and in all mar-
riages by Presbyterian and other Protestant Non-
conformist ministers in Ireland), the further security
of the attendance of the civil registrar does not seem
to be important, still less to be a condition upon
which it can be necessary to make the validity of a
marriage depend. We are confirmed in this view
by considering how very insignificant a proportion
the number of marriages to which this requirement
is now applicable bears to the whole number cele-
brated every year in the United Kingdom ; and by
the fact that the Legislature, after some years' ex-
perience of a law requiring the presence of a civil
registrar at all marriages by non-Presbyterian Pro-
testant Nonconformists in Ireland, deliberately re-
pealed it, and that no evil is shown to have resulted
from that change. The English Roman Catholic
Bishops, after describing the incidence upon their
own communion of certain difficulties, considered
by them to arise out of this state of the English
marriage law, have recommended by anticipation
the course which we are prepared to advise ; stating
their opinion, that the most effectual remedy for
most of these difficulties would be "to constitute
Catholic clergy the legal witnesses of the marriages
celebrated by them, as is the case with the clergy
of the Established Church, with the secretaries of
the Jewish synagogues, and with the clergy of the
They add, that the
form
"erepeated before the
Cathoolf wordsicChu egrerhinuirlerdelatno t
Ireland."
registrar, when he attends at their marriages, is
essentially the same as that which has already been
uttered in the religious rite ; and that " this repeti-
tion to the registrar of what has been already de-
clared to the clergyman is apt to have a ludicrous
effect, without any comprehensible reason for it."
We shall propose, in a later part of this report,
that similar duties with respect to registration to
those now performed by the clergy of the United
Church of England and Ireland, the officiating
ministers at Presbyterian and other Protestant
Nonconformist marriages in Ireland, and the official
witnesses of the marriages of Quakers and Jews,
should in all cases, and iu all parts of the United
Kingdom, be performed by the officiating minister
or official witness of marriage, whoever he may be ;
and if this recommendation should be adopted, we
think that the law should no longer insist upon the
presence of a civil registrar at any marriage solem-
nised elsewhere than in his own office.

We are also of opinion that the option of con-
tracting a valid marriage without any religious
cn.emony should continue to be offered, in all parts
of the United Kingdom, to all those who may de-
sire to avail themselves of it ; and that, for this
purpose, a law corresponding (in substance) with
the present laws of England and Ireland on that
subject, and enabling a formal and regular mar-
riage to be contracted by the solemn interchange or
declaration of matrimonial consent between or by
the parties, in the office and in the presence of a
superintendent or district registrar, should be in-
corporated into and form part of the future mar-
riage law of the United •Xingdom. We use the
expression " declaration," as well as " interchange,"
of matrimonial consent, because we think it is ex-
dient to enable all persons in Scotland who may
hereafter enter into mutual engagements of that
kind which, under the preient Scotch law,
might constitute irregular marriage, to ac-
quire' the complete' status " of, • legal mar-
riage, not, any retrospective
effect (except that` hich the law of Scotland ascribes
to all marriages in favoui of Children previously
born), but by such a form of words as to avoid
giving occasion for unnecessary scruples ; and also,
because it is desirable that persons whom the law
of Scotland might now hold to be actually, though
irregularly,. married, 'by reason of secret engage:-
ments entered into before the proposed change in
the law, should have the 'means of placing their
marriage beyond the reach of controversy, without
using any form of words which might imply that it
was previously invalid,

MIXED 3IIRRIAGES.

ought to
the .Wcreel eahrrea toi of
noipsiniinonotthheart
rnesopmecatsrrivaaglei,d, of which
be annulled or declared void on any ground con-
nected with the religious profession, persuasion, or
belief of both or either of the parties t'nereb at or
before the time of, the marriage. We therefore re.,
commend that the Irish Statutes, forbidding thq

celebration of marriages by Roman Catholic priests
when either party is a Protestant, or has professed
Protestantism within twelve months previously,
should be repealed.
We have. anxiously considered the question,
whether it is desirable, without nullifying a mar-
riage when actually.celebrated, to make its celebra-
tion in all or any cases unlawful and penal, when
solemnised by a clergyman of a religious persuasion
to which both parties or one of them do or does not
belong. There are, it seems to us, objection.; of the
greatest weight to any legislation of this kind, in a
code professing to be grounded on the principle of
equality and impartiality, as between the members of
different religious persuasions. The present marriage
laws of England and Ireland wholly disregard that
principle; which, on the other hand (except in re-
spect of the monopoly of the publication of banns,
still secured by law to the Established Church), is
consistently maintained by the present marriage
law of Scotland. The clergy of the United Church
of England and Ireland may, in both those coun-
tries, lawfully marry any two persons of any reli-
gious persuasion whatever. A Roman Catholic
clergyman may lawfully marry a Roman Catholic
to a Protestant, or one Protestant to another, in
Englind, but be cannot du so in Ireland ; and in
Ireland a Protestant Nonconformist minister may
lawfully do what is prohibited to a Roman Catho-
lic clergyman—viz., marry a Protestant to a Ro-
man Catholic. In England persons of any religion
whatever may lawfully be married by any Noncon-
formist minister in au3 registered buil ling, at their
own option, without any inquiry whether either of
them is, or is not, a member of the denomination
to which the officiating minister belongs. Such a
marriage would be in every sense lawful, though
both parties were avowedly Raman Catholics, or
members of the Established Church, or even Jews ;
but marriages canuotlawfully be contracted in Eng-
land or Ireland according to the usages of Jews,
unless both parties are Jews ; nor of Quakers, un-
less both parties are members of, or "profess with,"
the Society of Friends. And, in Ireland, Presby-
terian ministers cannot lawfully solemnise mar-
riage except between parties one of whom is a
Presbyterian (though this fact cannot be inquired
into afterwans for the purpose of vitiating any
marriage actually celebrated) ; and other Noncon-
formist ministers are forbidden to celebrate mar-
riage, except between parties of whom one at least
belongs to the particular denomination of the cele-
brant.

As to requirements preliminary to marriage the
Commissioners say—
We now come to the important and difficult sub-
ject of the preliminary requirements which the
State should exact as securities against improvident,
clar.destine, and unlawful marriages.
Whatever these requirements ought to be, we
think that no marriage, otherwise lawful, which has
beea actually solemnised in the presence of an
authorised minister of religion or civil officer, should
be annulled or declared void on the ground that
any of such requirements have not been duly ob-
served. Of all the conditions of lawful solemnisa-
tion now prescribed by law none are more likely
to be of practical value for the prevention of clan-
destinity than those which relate to residence, to
the consent of the parents or guirdians of minors,
and to the declarations required from parties about
to be married. Yet, if a minor is married in a
parish or district where neither party has ever re-
sided, without the necessary consent of parents or
guardians, and upon a licence obtained by means
of an affidavit in all respects false, the marriage is
good, though the parties are liable to punishment.
Assuming this to be sound legislation, it can hardly
be right to annul a marriage actually solemnised by
an authorised celebrant for any want of due publi-
cation of banns or licence; inasmuch as these re-
quisites, so treated as indispensable, derive almost
all the value which they possess from those which
are treated as not indispensable. Upon the ba-
lance of Conflicting considerations, we think it
is better to regard all these preliminaries as
directory, and none of them as essential to the vali-
dity of marriage ; relying mainly upon the sense of
duty and responsibility of the authorised ministers
of religion and civil officers, who are charged with
the obligation of seeing that these preliminary re-
quirements are fulfilled ; and, in a secondary de-
gree, upon the penalties to which those ministers of
religion and public officers, and the parties them-
selves, may justly be expoed for any wilful breach
or neglect of such requirements.
In corroboration of these views we may refer to
the experience of regular marriages in Scotland, and
of Roman Catho!ic marriages in Ireland, neither of
which can be invalidated ou any grounds of this
nature.; yet neither system is found to operate., in
this respect, prejudicially to the interests of society.
By adhering to this principle the security of these
two modes of marriage will remain unimpaired, and
the like security will be extended to all other mar-
riages which may be celebrated before authorised
ministers of religion or civil officers throughout the
United Kingdom.
Considered, therefore, as directory only, the ques-
tion arises, what the preliminary requirements of a
general marriage law for the United Kingdom ought
to be. We propose, first, to examine this question
with respect to the substance of the requirements
themselves ; and, secondly, with respect to the per-
sons who ought to be intrusted with the powers and
duties necessary to secure their fulfilment.