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

THE SUN, LONDON, WEDNESDAY EVENING, SEPTtIVIBER 16, 1868.

THE LAW OF MARRIAGE.

In 1.865 a royal commission was nominated to
inquire i.lto 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 H.
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 Mwriage Law,
the commissioners proceed to make the following
recommendations :

1. THE 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 m Lde, 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 s )me 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,
authorisedfor 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 wil I
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 duly 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.

WHAT MINISTERS OF RELIGION SHOULD BE AUTHORISED

of householders would still be necessary, is proposed
to be taken from the Irish rather than the English
law, upon the princile 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 from 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 or
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.

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 anxionply 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, objectioni 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 band (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
England, but he cannot do 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 au) 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 Roman Catholics, or
members of the Established Church, or even Jews ;
but marriages cannot lawfully 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 afterwards 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,
clandestine, and unlawful marriages.

Whatever these requirements ought to be, we
think that no marriage, otherwise lawful, which has
beeu 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 guardians 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 offieora, who are ()barged 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 offica's, and the parties them-
selves, may justly be exposed 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 Catholic marriages in Ireland, neither of
which can be invalidated on 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.