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chapter of his . first book , has the following passages : " Our law considers marriage in no other light than as a civil contract . The holiness of the
matrimonial state , is left entirely to the ecclesiastical law : the temporal courts not having jurisdiction to consider unlawful marriage as a sin , hut merely as a civil inconvenience . The punishment , therefore , or annulling
of incestuous or other unscriptural marriages , is the province of the spiritual courts ; which act pro salute animce . And taking it in this civil light , the law treats it as it does all other contracts : allowing it to be good and valid in all cases where the
parties , at the time of making it , were in the first place , willing to * contract ; secondly , able to contract ; and lastly , actually did contract , in the proper forms and solemnities required by law . '—Upon the latter head , he remarks , " Any contract made per verba de prcesenti , or in words of the
present tense , and in case of cohabitation , per verba de future * also , between persons able to contract , was before the late act , deemed a valid marriage to many purposes ; and the parties might be compelled in the spiritual court to celebrate it in fade ecclesia . But these verbal contracts
are now of no force to compel a future marriage , neither is any marriage at present valid , that is not celebrated in some parish church or public chapel , unless by dispensation from the Archbishop of Canterbury . It must also be preceded by publication
of banns , or by licence from the spiritual judge . Many other formalities are likewise prescribed by the act ; the neglect of which , though penal , does not invalidate the marriage . It is held to be also essential to a marriage , that it be performed by a person in
orders ; though the intervention of a priest to solemnize this contract , is merely Juris positivi , and not juris naturaiis aut divini : it being said that Pope Innocent the Illrd was the first that ordained the celebration of
marriage in the church ; before which , it was totally a civil contract . And in the times of the grand rebellion , all marriages were performed by the justices of the peace ; and these marriages were declared valid , without any fresh solemnization , by statute 12 Car . II . CSS . *
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1 he above statement is substantially correct 5 but it hardly conveys a sufficiently precise idea of the state of the law before the Marriage Act . Prior to the edict of Pope Innocent , it
seems * that the ceremony of marriage , merely consisted in the bridegroom coming to the bride ' s house , and publicly carrying her to his own . After the edict , the ecclesiastical courts , adhering to the maxim of the
civil law , held a coutract in words , of the present tense , to ( be if sum matrimoniicm ^ and in case of a refusal to celebrate the marriage , proceeded against the offending party or parties , as for a contempt of the ordinances of
the church ; but were not permitted to declare the marriage void for civil purposes , except in the cases of the wife ' s title to dower , or to an appeal of the death of her husband , for supporting which , the bishop ' s certificate of
" lawful matrinioni / ' was required by the courts of the law * J In one point , it is well known that our spiritual courts were inclined to go much further in favour of marriage than the
common law , as they held , that the solemnization of marriage legitimated children previously born , without reference , as it should seem , to any contract ;§ but the earls and barons ?
See Moore ' s Reports , 169 , 170 , Bunting ' s Case . , t Strange , 937 . Swinb . S . 17 . X See 2 Henry . Ifiaekstone , 145 . § It is well known that this is the case in Scotland , where the principles of the canon law have been more decidedly established , and less innovated upou , than in this country .
A striking * instance occurred in the recent case brought before the House of Lords , on appeal , and reported in Dow ' s Parliamentary Oases , I . 148 , under the title of M'Adam and Walker . The
respondent Walker had been kept for several years , by Quintia M'Adam , Esq ., as his mistress . On a certain day he called in his servants , and in their presence declared thai she was his wife , and that his children by ber were legitimate ; upon which ehe rose , gave her baud , and courtsied , in token of assent , but said
nothing' . In the afternoon of the same day be committed suicide—but the marriage was , nevertheless , deemed complete and valid , so as to legitimate the issue . It is remarkable that the late Sir S . Rom illy successfully argued in favour of the sa ~ titty of the deceased , which was attempted to he impeached .
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History and Present State of the Law relating to Marriage * 175
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Citation
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Monthly Repository (1806-1838) and Unitarian Chronicle (1832-1833), March 2, 1819, page 175, in the Nineteenth-Century Serials Edition (2008; 2018) ncse.ac.uk/periodicals/mruc/issues/vm2-ncseproduct1770/page/39/
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