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in Erskine's Institute of the Law of Scotland, title sixth, of marriage and the relation between parents and children, p. 117 of the edition by Ivory, (a) it is laid down, "marriage "is truly a contract, and so requires the consent of parties." "And it is constituted by consent alone, by the conjunctio "animorum, so that though the parties, after consent given, "should, by death, disagreement, or other cause whatever, happen not to consummate the marriage conjunctione "corporum, they are, nevertheless, entitled to all the legal rights consequent on marriage." The same writer lays it down further on (b) "the consent essential to marriage is "either express or tacit. Express consent in regular marriages is signified by a solemn verbal vow of the parties, accepting each other for their lawful spouses, uttered before "a clergyman, who thereupon declares them married persons. "But it is not essential to marriage, that it be celebrated by

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a clergyman; the consent of parties may be expressed before "a civil magistrate, or before even witnesses; for it is the "consent of parties which constitutes marriage." In Kent's Commentaries, 2 vol. 86, (c) it is stated, "no peculiar “ ceremonies are requisite by the common law to the valid "celebration of the marriage. The consent of the parties is "all that is required; and as marriage is said to be a contract "jure gentium, that consent is all that is required by natural "or public law. The Roman lawyers strongly inculcated "the doctrine, that the very foundation and essence of the "contract consisted in consent freely given by parties "competent to contract. Nihil proderit signasse tabulas, si "mentem matrimonii non fuisse constabit. Nuptias non "concubitus, sed consensus facit. This is the language

(a) I find the place cited in page 111 of the edition of 1838, by Macallan.

(b) Macallan's edition, 113.

(c) Third edition, New York, 1836.

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equally of the common and canon law, and of common reason. If the contract be made per verba de præsenti, and "remains without cohabitation, or if made per verba de "futuro, and be followed by consummation, it amounts to a "valid marriage, and which the parties (being competent as "to age and consent) cannot dissolve, and it is equally "binding as if made facie ecclesia. There is no recognition "of any ecclesiastical authority in forming the connexion, "and it is considered entirely in the light of a civil contract. "This is the doctrine of the common law, and also of the "canon law, which governed marriages in England, prior to "the Marriage Act of 26 Geo. II; and the canon law is "also the general law throughout Europe, as to marriages, "except where it has been altered by the local municipal "law. The only doubt entertained by the common law was, "whether cohabitation was also necessary to give validity to "the contract. It is not necessary that a clergyman should "be present to give validity to the marriage, though it is, “doubtless, a very becoming practice, and suitable to the solemnity of the occasion. The consent of the parties may "be declared before a magistrate, or simply before witnesses, or subseqently confessed or acknowledged, or the marriage may even be inferred from continual cohabitation, and reputation as husband and wife, except in cases of civil "actions for adultery, or in public prosecutions for bigamy.” Lord Brougham, in his judgment in the house of lords, in Honyman v. Campbell, (a) after observing on the inconveniences of the present state of the marriage law of Scotland in some particulars, observes, "it is sufficient "if the marriage be valid. A marriage may be irregular, "and the parties concerned in it may be punished by "ecclesiastical censures, and otherwise, but still it may be

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(a) 2 Dow and Clark, 265.

"valid, and draw after it all the consequences of the most "valid measure, and affect the issue as completely as the "most solemn marriage contracted after open publication of "banns by the gravest clergyman of the Established Church. "That is the law and we are here to administer it."

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His lordship is here speaking of the Scottish law, but it is confidently submitted, that it is the same in this country. His lordship then goes on to say, "consent alone makes the "marriage, and there are three ways in which that consent may be proved. The first is consent in fact per verba de præsenti; secondly, consent, partly by presumption of law, "and partly in fact, as when the parties live together as "married, and are, by habit and repute, husband and wife; "the third is that which more nearly concerns this case, "where there is a promise or engagement to marry de futuro, "with copula following." So in Ferguson's Reports of Decisions in the Consistorial Court of Scotland, Appendix 397, 398, and 399, Lord Robertson speaks of marriage as entirely a matter of contract; he says, "as to the "constitution of the marriage, as it is merely a personal consensual contract, it must be valid every where, if "celebrated according to the lex loci." And in the same Pye, (a) in which

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book there is another case, Gordon v.

the same doctrine is maintained, and where it is stated, as indeed must be admitted, that the canon law was the basis of the marriage law of all Europe. We have the authority of Craig for this: "Hujus sane juris pontificii magna "adhuc (licet jugum pontificium excusserimus), apud nos "manet auctoritas, adeo ut quoties a civili jure dissidet, (ut sæpe fit, extentque libri scripti de differentiis juris civilis et "canonici,) jus canonicum præferamus, præcipue in iis quæ " ad Ecclesiæ administrationem pertinent, et ubi scandalum "imminet aut, (ut canonistæ loquuntur,) quoties animæ

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(a) Ferguson's Consistorial Rep. 276.

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"periculum versatur, nisi quæ sint sanæ religioni contraria. Itaque quoties de administranda Ecclesia agitur, qui "animarum curæ præficiendi sunt, qui beneficiis, quibus "beneficia debentur, de advocationibus ecclesiarum, sive de jure patronatus, de testamentis, de matrimonio, vel con"trahendo vel dissolvendo, qui legitimi censeantur, in his "jus pontificium, mutatis sive antiquatis nonnullis, adhuc sequimur. Et hæ quæstiones ad judicem ecclesiasticum, "nempe commissarios, rejici solent, quoties occurrunt, qui et "judices Christianitatis, tam in veteribus Anglorum legibus, "quam nostris vocantur. Et hæc de juris civilis et canonici origine et incrementis." Craig, lib. 1, Diœgesis, 3, pl. 24. The canon law was adopted in England to a certain extent, 1 Bl. Com. 82; Preface to Burn's Ecclesiastical Law, 25; Middleton v. Crofts, 2 Atkyns, 650; S. C. 2, Strange, 1056; S. C. Rep. temp. Hardwicke, 326. To be sure, it was only of force, so far as it was adopted by the law, and had of itself no binding power in this country, Hale Hist. Com. Law, 28; Middleton v. Crofts, ub. sup. Lord Hardwicke in his elaborate judgment in that case, explains how, and how far, the canon law was of force in these countries, citing Matthews v. Burdett, 2 Salk. 672, in the report of which there is the following passage: "In the primitive Church the laity were present "at all synods; when the empire became Christian, no canon was ever attempted without the consent of the emperor, and his concurrence included the assent of the "whole body of the people, because he had the sole legislative power in him. But this is not the case of our "king, for he has not the whole legislative power in him, 66 ergo his consent to a canon in re ecclesiastica makes it a "law to bind the clergy, but not to bind the laity."

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But even by the canon and ecclesiastical law of the Christian Church in Europe, before the council of Trent, although they held, as the Roman Catholics still hold,

marriage to be a sacrament, yet the presence of a clergyman was not necessary to give validity to the celebration of a marriage. The decrees of the council of Trent were never received in England; if then, previous to it, the canon law did not require the presence of a clergyman to give validity to the marriage contract, it lies upon the other side to show what positive law, of subsequent enactment in this country, has made such necessary.

The council of Trent continued its sittings for about eighteen years, commencing in 1545, and ending in 1563. After great contests in that council, among its various members representing different interests and different countries, the decree, de Reformatione Matrimonii was passed, that marriages should take place in the presence of the parish priest, or of a person delegated by him, or by the license of the ordinary. This decree will be found in the Canones et Decreta Concilii Tridentini, (a) Sess. 24, s 1; Halkerstone's

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(a) It is in these words :-
:--

“Decretum de reformatione Matrimonii.
Caput 1.

"Matrimonii solemniter contrahendi forma in Conc. Lateran. præscripta innovatur: quoad proclamationes dispensare possit Episcopus. Qui aliter, quam præsentibus Parocho et duobus vel tribus testibus contrahit, nihil agit.

"TAMETSI dubitandum non est clandestina matrimonia, libero contrahentium consensu facta rata et vera esse matrimonia, quamdiu Ecclesia ea irrita non fecit; et proindè jure damnandi sint illi ut eos sancta Synodus anathemate damnet, qui ea vera ac rata esse negant; quique falsò affirmant, matrimonia, à filiis familias sine consensu parentum contracta irrita esse, et parentes ca rata vel irrita facere posse: nihilominùs Sancta Dei Ecclesia ex justissimis causis illa semper detestata est, atque prohibuit. Verum, cum sancta Synodus animadvertat, prohibitiones illas propter hominum inobedientiam jam non prodesse, et gravia peccata perpendat, quæ ex eisdem clandestinis conjugiis ortum habent; præsertim verò eorum, qui in statu damnationis permanent, dum, priore uxore, cum qua clam contraxerant, relictâ, cum alia pàlam contrahunt, et cum ea in perpetuo adulterio vivunt: cui malo cum ab Ecclesia, quæ de occultis non judicat, succurri non possit, nisi efficacius aliquod remedium adhibeatur: idcirco sacri Lateranensis Concilii, sub