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gentlemen who form the Grand Juries of the metropolis, relieved from such useless labour, might be well employed in inquiring into the numberless abuses which are always growing up in great city, and by preventing such abuses, and seeing the law enforced, they would be really aiding, instead of obstructing the cause of justice. If this labour in every district of the metropolis were entrusted to a certain number of persons on the Grand Jury list, many of those evils which we have so much to deplore, would soon be got rid of. Not only might the Grand Jury be usefully employed in presenting as nuisances the abodes of crime and the dens of infamy which are so numerous in the metropolis, but in seeing that the law was generally enforced, and that the police and other public officers did their duty.
Such functions of those who now act as Grand Jurymen, with the functions also now possessed by the honorary justices with regard to the expenditure of the county rates within the metropolitan area, and the management of the metropolitan prisons and lunatic asylums, would be far more appropriate and beneficial to the public, than any duties now performed in the Grand Jury room, or at Petty Sessions, or at Quarter Sessions, or by the City Aldermen, as Criminal Judges, or Police Magistrates.
Art. IV. - THE MARRIAGE LAWS OF THE
The Report of the Special Committee of the Society for Pro
moting the Amendment of the Law, read and received at a General Meeting of the Society, held on Monday, 19th Jan., 1863.
AT a meeting of this society, held on the 29th of January,
1862, an address was delivered by Mr. Hastings, on the “Marriage Laws of the United Kingdom.” At the conclusion of the discussion on that address, a committee was appointed to consider the subject to which it related. The committee have now to report as follows:
The contract of marriage which, except in the interchange of mutual consent, differs widely from every other contract, is at the present day governed by separate rules and attended by dissimilar results in England, Ireland, and Scotland.
Your committee have sought to investigate the nature of this difference and the sources from which it has arisen.
The conclusions at which they have arrived, in reference to the Marriage Laws of the three countries, are as follows:
1. In considering the English Marriage Law, your committee have decided to distinguish carefully between the conditions which were necessary in order to make the contract binding on the parties themselves, and those which were required in order that the civil consequences of marriage might follow. The test to be applied in the one case is—Would either party be indictable for bigamy on his or her marrying again during the lifetime of the other ? The tests to be applied in the other case are—Is the woman entitled to dower on the death of the man? Are the issue legitimate and capable of inheriting as such ? and so forth. At the present day a marriage which is good for one purpose is equally good for the other; but up to the year 1753 the two kinds of tests were not necessarily satisfied together.
The clandestine consensual marriages which the Act of George II. did away with, whatever might have been their operation on the parties themselves, appear to your committee to have laboured under the following disadvantages :
1. They did not confer any right of dower on the wife, for dower was originally a matter of contract rather than a common law right, and could only arise when assigned at the church door, or, in other words, when the celebration of the marriage was in facie ecclesie.
2. They conferred no rights on the husband in the property of his wife, and so far resembled the later marriage of the Romans, viz., the Usus, with trinoctial absence.
3. The issue of such marriages was not legitimate.
4. They imposed on the woman none of the incapacities of coverture, so that the parties might enfeoff one another, and the woman retain her capacity of making a will. These propositions have never been disputed, even by those who have insisted most strongly on the validity of the contract as a marriage between the parties, and they are confirmed by a great variety of authorities. The mere contract per verba de presenti was unattended by a single incident connected with the rights of property or the capacity to inherit.
The inconvenience of a law which allowed marriage to be good for one purpose, and bad for another, is too obvious for comment. It admitted a sort of intermediate status closely resembling the morganatic marriages of the European continent. The man and woman were recognised as husband and wife, but the legal rights or disabilities which belong to the married state were wanting.
The changes which the Act of the 26 Geo. II., c. 33, introduced into the marriage law of England were as beneficial as they were extensive. It took away from the ecclesiastical courts the power of enforcing contracts of marriage, and re
quired all marriages to be solemnized in the church in the presence of two witnesses, besides the minister. It secured the deliberation of the parties by interposing a period of three “ holidays” between the first notice to the minister and the celebration of the marriage. To these desirable ingredients it added two more borrowed from the provisions of the canon law, viz. :
1. Publicity, by requiring three publications of banns “ in an audible manner in the parish church.”
2. An accessible record, by registration in a book, “to be deemed parish property, and to be carefully kept and preserved for the public use.”
Persons who desired to avoid the publishing of bands, were allowed as before to obtain a licence from the archbishop or ordinary, and all marriages solemnized otherwise than after banns or licence were declared to be null and void. But a great desideratum in the law of marriage still remained to be supplied. Except during the short period of the administration of Cromwell, no provisions whatever had been made for securing the civil consequences of marriage without invoking the aid of a minister of the Established Church. The privilege of entering on the estate of matrimony, otherwise than through the door of the Church of England, was accorded to the nonconforming section of the community in 1836, by the 6 & 7 Will. IV., c. 85, which left the parties at liberty either to contract in the registrar's office, in the presence of the registrar, after a public notice of not less than three weeks, or to be married according to the rites of their particular sect, after a similar notice to the registrar, “in a properly, registered building.” In both cases ample provision is made for securing publicity of the marriage at the time of celebration, and also an accessible record of the fact for future reference.
With these various salutary changes in view, it appears to your committee that, so far as the great bulk of the people is concerned, little or nothing is required in the way of amend.
ment in the English Marriage Law. But the Marriage Acts of 1753 and 1823 are not applicable to the entire community, Two important classes--the Jews and the Quakers—are expressly excluded from their operation, and, indeed, it is not absolutely certain whether previously to the 6 & 7 Will. IV., c. 85, marriages celebrated according to Jewish or Quaker usage had any legal validity. The question is, however, set at rest for the future by the express words of the Marriage Act of 1836, which renders such marriages valid if contracted according to usage, provided that both parties be Jews or both parties Quakers, and that notice to the registrar shall have been given, and the registrar's certificate duly obtained.
The only doubt, therefore, that can possibly exist in reference to these marriages, will arise from the necessity of complying with established usage. If the proper forms and rites be not observed, the same difficulty may again present itself which Sir W. Scott had to deal with in the case of Lindo v. Belisario, where it was held, after elaborate reference to the Jewish authorities and rabbis, that the ceremony performed did not amount to an actual marriage. The simplicity of the Quaker ceremony would probably obviate any such ambiguity in their case; but it is obvious that to make any marriage depend on the nice observance of a religious form, is not only contrary to all principle, but injurious and even unjust in practice. Where the parties are acting bonâ fide, and intend to enter into the marriage contract, the civil effect should not be denied to their acts because an obscure traditional ceremony had not been complied with.
Your committee have already stated that, by the second section of the Act of 1836, the marriages of Quakers and Jews were declared legal. By the 6 & 7 Will. IV., c. 86, s. 31, provision was also made for their registration; but the registering officer, whether present or not at the marriage, is required to satisfy himself that the marriage proceedings have been in conformity with the respective usages of the two com