FOOTNOTES:

Marriage within the Church of England is regulated by the statute of 4 George IV., c. 76, and may be solemnized in the parish church or a chapel licensed by the bishop,[1440]after publication of banns for three successive Sundays at morning service; or on production of the certificate of a superintendent registrar, which is equivalent to banns.[1441]Parent or guardian may forbid the marriage of minors, but in case of banns express consent is not required. License in place of banns may be granted by the archbishop, bishop, or other authority, but only for solemnization within the church of the parish in which one of the parties has resided "for the space of fifteen days preceding." Before "a licence can be granted an oath must be taken as to the fact of residence;" that there is no legal impediment; and that the consent of parent or guardian has been obtained, if either of the parties is under twenty-one years of age.[1442]The "marriage must be celebrated within three months after banns or licence, and between the hours[1443]of eight andtwelve in the morning."[1444]Care is taken to avoid the hardships arising from the rigidness of the Hardwicke act. "The penalty of nullity" is "confined to the case of persons wilfully procuring the celebration of marriage without due publication of banns, or without a licence from a person having authority to grant the same, or by any person not in holy orders, or elsewhere than in a church or chapel wherein banns" may "be lawfully published." The want of consent of parent or guardian, in case of minors, does not invalidate a marriage by license; but "in the event of any fraud practiced to procure the contract, the guilty party" forfeits "all property accruing from the marriage."[1445]

The institution of banns, as already seen, is the ancient device of the church to secure publicity.[1446]During the ages it has served a useful purpose, though from its very nature, even under the most stringent regulations, it is capable of serious abuse. But there are unmistakable signs that it has about run its course and must soon yield to more effective methods, such as those prescribed by the civil-marriage act. The "unsuitableness of banns to the present state of society," remarks Mr. Hammick, appears as early as 1868 in the report of the Marriage Law Commissioners,[1447]They say that "in populous places it seems universally agreed that no real publicity is obtained by banns, which afford no safe-guard against improvidence, illegality, or fraud, and are frequently, from their great number, an inconvenient and unseemly interruption to divine service." The old sentiment against publicity is a strong motive for evasion. "The evidence which we have received," add the commissioners, "abundantlyproves that the dislike of this mode of publication tends to promote clandestinity rather than to prevent it, by inducing many persons to resort for marriage to places where they are unknown."[1448]Nor does the testimony against the efficiency of banns come from lay sources alone. The bishop of Durham, in this same report, declares that "at present there is no punishment to any party making a false statement" in order to have banns published in a parish where he does not reside; "whilst it is quite impossible for the clergyman, who is now by law punishable for celebrating such marriages, to ascertain the falsehood of such statements, as his time, if his parish be large, is entirely occupied by his other necessary duties." Hence he believes that it would be "advantageous to assimilate the law to that which regulates the notice of banns at the registry, and to make a false statement in either case perjury."[1449]In like spirit the bishop of Ely refers to the difficulty of the clergyman's making suitable examination. "All such inquiries," he says, "are inevitably left to the parish clerk, whose interest it is to inquire as little as possible. Hence, if any persons desire to contract an illegal marriage, they choose one of the populous parishes of our large towns, where they readily escape notice."[1450]The uselessness of banns in such places is further made very clear "not only by ninety-nine couples being asked on one Sunday at St. Pancras, but also by 189 couples being asked in the cathedral church at Manchester on the 11th December, 1864, and 202 couples on the 10th December, 1865," while on this last-named day at St. Mary's, Lambeth, the banns of 125 couples were published. In many of thesecases, merely the names were mentioned, "unaccompanied by any announcement of condition—whether bachelors, widows," or spinsters.[1451]

The civil-marriage act of 1836 owes its adoption mainly to the influence and exertion of Lord John Russell, by whom it was proposed. In a measure, however, the way had been cleared for it by the bill of the preceding year introduced by Sir Robert Peel. This was received in a spirit of conciliation and compromise, showing that the period of harsh intolerance was fast approaching its end.[1452]The bill failed of passage, mainly because as a half-way measure it did not satisfy the non-conformists. For it permitted the civil form of marriage only to those declaring their unwillingness to accept the established rites; and thus, it was asserted, a stigma would be put upon the dissenters to whom matrimony was not less holy than it was to the adherents of the English church.[1453]Moreover, the magistrate of the hundred before the marriage was solemnized was required to send the certificate to the clergyman of the parish for registration.[1454]But it is highly significant that in the debate proposals were made involvingthe essential elements of the two great measures of the next year. A system of civil registration of births, deaths, and marriages was suggested; while it was urged, either that the civil form of solemnization should be made optional for all, not merely restricted to non-conformists; or else it should be made obligatory for all, leaving it free to the parties in every case, after the lay ceremony, to avail themselves of the rites of their own religious body.[1455]

Nevertheless the act of 1836 was adopted only after a prolonged contest in the House of Commons.[1456]By this statute the religious celebration prescribed by the Anglican rubric is preserved, and two additional methods of procedure are created: (1) by certificate of the superintendent registrar without license; (2) or by such certificate with a license.

When procedure is by the first method,[1457]notice must be given "to the superintendent registrar of the district within which the parties shall have dwelt for not less than seven days" previous. This notice is then entered in a marriage notice book "open at all reasonable times without fee to all persons desirous of inspecting the same;" and thereafter for twenty-one days the notice or a true copy is to be suspended or affixed "in some conspicuous place in the office" of the superintendent.[1458]"In the body or at the foot" of the notice a "solemn declaration" as to residence, necessary consent, and the absence of impediment of any kind must be subscribed by one of the parties.[1459]After twenty-onedays,[1460]if no valid objection be filed by parents or others, a certificate is issued by the superintendent, and the marriage may be celebrated at any time within three months of the entry of the notice.[1461]After issuing the certificate the marriage may be celebrated in either of the following forms: (1) Before the superintendent registrar, in the presence of a district registrar and two witnesses—a mere declaration of assent and no religious rites whatever being required. (2) In any registered building by a minister of any sect according to the religious rites of the same. Here also the registrar of the district and two witnesses must be present. (3) According to the rites of the Jews and Quakers in duly certified buildings. A building may be registered by the superintendent registrar on receipt of a written petition from "any proprietor or trustee," accompanied by a certificate signed in duplicate by twenty householders at the least, that such building has been used by them during one year at the least as their usual place of public worship and that they are desirous that the place shall be registered.[1462](4) Marriages may also be solemnized by certificate in lieu of banns in an Anglican church or chapel, if the consent of the minister be obtained.[1463]In all cases the place of marriage must be mentioned in the certificate, and the celebration must occur between the hours of 8 in the forenoon and 3 in the afternoon.[1464]

If the parties wish to avoid delay and so great publicity, they may proceed by the superintendent's certificate and license. These may be obtained on one[1465]full day's notice to the registrar of "the district in which one of the persons resides, together with a declaration that he or she has resided for fifteen days therein, that there is no impediment, and that the necessary consents if any have been obtained. The notice is not exhibited in the registrar's office."[1466]After obtaining the license, the marriage may be celebrated in either of the first three modes above mentioned; but no superintendent's license may be issued for a marriage according to the forms of the English church, that right being still an "ecclesiastical monopoly." Any person guilty of wilfully making any false statement in procuring certificate or license is liable to the penalties of perjury;[1467]and if any persons "knowingly and willfully intermarry," in any place other than that mentioned in the certificate or without notice, certificate, or license, as required by law, or in the absence of the registrar where his presence is required, their marriage, except in certain specified cases, is null and void.[1468]False statements as to consent subjects the offender to the penalties of perjury, but does not invalidate the marriage.

As to the form of civil contract, it is only essential that somewhere in the ceremony the following declarations be introduced. Each of the parties must say:

"I do solemnly declare, that I know not of any lawful impediment why I, A. B., may not be joined in matrimony to C. D."

And each must say to the other:

"I call upon these witnesses here present to witness that I, A. B., do take thee, C. D., to be my lawful wedded wife (or husband)."[1469]

Thus English marriage ends, as it began, in a simple contract; but the state has succeeded in imposing upon it the condition of publicity—a task which the church first attempted, but failed to accomplish.[1470]

[1]"The expression 'human marriage' will probably be regarded by most people as an improper tautology. But, as we shall see, marriage, in the natural-history sense of the term, does not belong exclusively to our own species. No more fundamental difference between man and other animals should be implied in sociological than in biological and psychological terminology. Arbitrary classifications do science much injury."—Westermarck,History of Human Marriage, 6. In like spirit,Hellwaldentitles his bookDie menschliche Familie.

[2]A brief and clear account of some of the more important works is given byBernhöft, "Zur Geschichte des europäischen Familienrechts,"ZVR., VIII, 4 ff., 384 ff. Compare the criticisms of Spencer, Starcke, and Westermarck contained throughout their respective treatises.

[3]For a proof of the efficiency with which the "statistical method" may be applied to anthropological and sociological questions, see the paper ofDr. Tylor, "On a Method of Investigating the Development of Institutions, Applied to Laws of Marriage and Descent,"Journal of the Anthropolog. Institute, Feb., 1889, 245-69.Cf.Westermarck,Human Marriage, 1-7;Starcke,Primitive Family, 1-16;Bernhöft,op. cit., 1-4.

[4]See the suggestive paper ofWinsor, "The Perils of Historical Narrative,"Atlantic Monthly(Sept., 1890), LXVI, 289-97.

[5]Bernhöft,op. cit., 1-4, has noted the danger of inference, especially from written laws, where there has been a mixture of races and institutions: "Denn die Rechtsinstitute sind eben nicht aus einem einheitlichen Prinzip erwachsen, sondern aus einem Kompromiss verschiedener Prinzipien entstanden, welche sich gegenseitig einschränken und durchbrechen."

[6]It is a merit of Westermarck's book that he has "put particular stress upon psychological causes which have often been deplorably overlooked."—Op. cit., 5.Cf.alsoStarcke,op. cit., 4.

[7]"Yet nothing has been more fatal to the Science of Society than the habit of inferring, without sufficient reasons, from the prevalence of a custom or institution among some savage peoples, that this custom, this institution, is a relic of a stage of development that the whole human race once went through."—Westermarck,op. cit., 2.Cf.Post,Studien zur Entwicklungsgeschichte des Familienrechts, 1-3, 58.

[8]Marquardt,Das Privatleben der Römer, I, 1. The theory is also held byBluntschli,Theory of the State, 182-89;Schrader,Sprachvergleichung und Urgeschichte, 391-95;Leist,Alt-arisches Jus Gentium, 113;Müller,Handbuch der klass. Alterthumswissenschaft, IV, 18-20;Gilbert,Handbuch der griech. Staatsalterthümer, II, 302;Maine,Village Communities, 15 ff.;Ancient Law, 118 ff.;Early Law and Custom, chap. iii;Fustel de Coulanges,Ancient City, 111 ff.;Grote,History of Greece, I, 561;Thümser,Die griech. Staatsalterthümer, 28 ff.

[9]Plato,Laws, Book III, 680, 681:Jowett,Dialogues, IV, 209;Aristotle,Politics, Book I, 2 ff.:Jowett, I, 2 ff. These are followed byCicero,De Officiis, I, 17.

[10]"They (the Cyclops) have neither assemblies for consultation northemistes, but everyone exercises jurisdiction over his wives and his children, and they pay no regard to one another."—Odyssey, Book IX, 106 ff., as rendered byMaine,Ancient Law, 120.Cf.Odyssey, Book VI, 5 ff.;Bryant'sTrans., I, 144, 215, 216. On thethemistes, as inspired commands of the hero-king, handed down to him from Zeus by Themis, seeMaine, chap. i; and on the import of the passage in Homer compareibid., 120, withFreeman,Comparative Politics, 379 n. 20, andBotsford,Athenian Constitution, 3, 4.

[11]Ancient Law, 118.

[12]Clients, servants, and even those admitted to the hearth as guests, by observance of the proper rites, were regarded as members of the family group and sharers in thesacra.Hearn,Aryan Household, 73, 107 f.;Fustel de Coulanges,Ancient City, 150;Maine,op. cit., 156 ff., 185 ff. (sacra).

[13]For the Romanpatria potestasseePoste,Gaius, 61 ff.;Leist,Graeco-italische Rechtsgeschichte, 57-102;Sohm,Institutes, 120 ff., 356 ff., 385-95;Bernhöft,Römische Königszeit, 175 ff.;Puchta,Institutionen, II, 384 ff.;Morey,Outlines of Roman Law, 23, 24;Scheurl,Institutionen, 271, 272;Kuntze,Excurse, 570 ff.;Maine,Ancient Law, 123 ff., 130 ff., 227, 228;Hadley,Roman Law, 119 ff.;Clark,Early Roman Law, 25;Muirhead,Hist. Int. to the Private Law of Rome, 27 ff., 118, 222;Lange,Römische Alterthümer, I, 112 ff.;Grupen,Uxore romana, 19 ff., 37 ff.;Bader,La femme romaine, 75 ff.;Tardieu,Puissance paternelle, 5 ff.;Bourdin,Condition de la mère, 9 ff. On the power of the father to expose female infants during the early empire seeCapes,Age of the Antonines, 19 f.

[14]Maine,Ancient Law, 122, and chap. vi.

[15]On the Roman agnation seePoste,Gaius, 113 ff.;Leist,Graeco-italische Rechtsgeschichte, 64 ff.;Sohm,Institutes, 124, 355 ff.;Puchta,Institutionen, II, 17 ff.;Moyle,Institutiones, I, 155, 156;Morey,op. cit., 6, 34;Kuntze,Excurse, 435-37 (Agnationsverband);Lange,Römische Alterthümer, I, 211 ff.;Muirhead,Hist. Int. to the Private Law of Rome, 43 ff., 122 ff.;Hadley,Roman Law, 130 ff.;Maine,op. cit., 56, 141 ff.

[16]Maine,op. cit., 142.

[17]Ibid., 144.

[18]Ibid., 141.

[19]Ibid., 141 ff., 145 ff.

[20]Ibid., 118 ff.,passim.

[21]Ibid., 123, 124, 128. See the table of comparative groups inSchrader,Sprachvergleichung und Urgeschichte, 394. For the Ionic groupscf.Schömann,Antiquities, 317, 364;Athenian Constitution, 3-10;Wachsmuth,Hist. Ant., I, 342 f.;Müller,Handbuch, IV, 17-22;Grote,Hist. of Greece, III, 52, 53. In general,cf.Fustel de Coulanges,Ancient City, 141 ff.;Hearn,Aryan Household, 63 ff., 112 ff.,passim;Leist,Graeco-italische RechtsgeschichteandAlt-arisches Jus Gentium.

[22]ForFreeman'swell-known theory of political expansion seeComparative Politics, chap. iii.

[23]Maine,Ancient Law, 125 ff., 26. On the new mode of adoption in India seeMayne,Hindu Law and Usage, 88 ff.;Lyall,Asiatic Studies, chap. vii;Fortnightly Review, Jan., 1877;Jolly,Hindu Law of Partition, 144-66. On the formation of non-genealogical clans seeHearn,Aryan Household, 296 ff.Cf.Post'sdiscussion of "Künstliche Verwandtschaft" inStudien zur Entwicklungsgeschichte des Familienrechts, 25-42:Kohler,ZVR., V, 415-40.

[24]Maine,Early Law and Custom, chaps. iii, iv, viii. For ancestor-worship see especiallyFustel de Coulanges,Ancient City, 9-52;Hearn,Aryan Household, 15 ff., 45, 46, 59, 60;Taylor,Primitive Culture, II ("Animism");Mayne,Hindu Law and Usage, 55, 438;Lyall,Asiatic Studies, chap. ii;Duruy,History of Rome, I, 206;Zimmer,Altindisches Leben, 413;Botsford,Athenian Constitution, 24, 25,passim, who holds againstSchrader,Sprachvergleichung(2d ed.), 613-15, that ancestor-worship arose before the separation of the Aryan races.Fustel de Coulanges,Ancient City, 49-51, andHearnregard the religious tie as of more importance than the blood-bond in the formation of the gentile groups,Aryan Household, 66; andLeist,Graeco-italische Rechtsgeschichte, 7 ff., 11 ff., also makes the formation of the first recognized groups of relationship depend on thesacra.Cf.Kohler, inZVR., VI, 409-17, for animism; and for additional references, a subsequent note.

[25]Early Hist. of Institutions, 64 ff., 115 ff., 217 ff., 306-41;Village Communities, 15, 16,passim;Early Law and Custom, chaps. iii, iv, and especially chaps. vii, viii, where adverse criticism is considered.Cf.McLennan,Patriarchal Theory, 1-23, for a collation of the more important passages of Maine's writings.

[26]"The rudiments of the social state, so far as they are known to us at all, are known through testimony of three sorts—accounts by contemporary observers of civilization less advanced than their own, the records which particular races have preserved concerning their primitive history, and ancient law." Of these three sources of information, Maine regards ancient law as the best. He fails entirely to appreciate the true importance of the first source, from which, obviously, are derived most of the data of recent ethnical, anthropological, and sociological investigation, including much that Maine himself has presented.Cf.the criticisms bySpencer,Principles of Sociology, I, 713, 714;Lubbock,Origin of Civilization, 6 ff.;McLennan,Patriarchal Theory, 29, 30.

[27]Primitive Family, 94, 95.

[28]Principles of Sociology, I, 713-37.

[29]Ibid., 716, 717, 540-53.

[30]See below, chap. iv.Mr. Spenceralso points out that Maine does not take into account "stages in human progress earlier than the pastoral or agricultural."—Op. cit., I, 724 ff.

[31]The Patriarchal Theory, edited and completed byDonald McLennan(London, 1885).

[32]Ancient Law, 118-20, 123.

[33]The marriage of Jacob with Laban's daughters is the case in point. In "beena" marriage—the name given to the institution in Ceylon—"the young husband leaves the family of his birth and passes into the family of his wife, and to that he belongs as long as the marriage subsists. The children born to him belong, not to him, but to the family of their mother. Living with, he works for, the family of his wife; and he commonly gains his footing in it by service. His marriage involves usually a change of village; nearly always (where the tribal system is in force) a change of tribe—so that, as used to happen in New Zealand, he may be bound even to take part in war against those of his father's house; but always a change of family. The man leaves father and mother as completely as, with the patriarchal family prevailing, a bride would do; and he leaves them to live with his wife and her family. That this accords with the passage in Genesis will not be disputed."Patriarchal Theory, 42, 43. Nevertheless, in this case McLennan is certainly mistaken. We have here to do with that form of wife-purchase called "marriage by service;" seeLichtschein,Die Ehe, 10, 11; the argument ofWake,Marriage and Kinship, 239-44; andFriedrichs,Familienstufen und Eheformen,ZVR., X, 207, 208. "Beena" marriage existed, however, among other Semitic peoples and possibly also among the Hebrews:Smith,Kinship and Marriage, 108, 175-78, 146. It is found also in Africa and in many other places:Wake,op. cit., 149, 299-301;McLennan,op. cit., 43;Westermarck,Human Marriage, 109, 389-90;Tylor,On a Method of Investigating Institutions, 246 ff.;Starcke,op. cit., 78;Hellwald,Die mensch. Familie, 255, 266.

[34]On the Hebrew family seePatriarchal Theory, 35-50, 132, 133, 243-47, 273, 274 note, 289, 306, 307, 315,passim.

[35]Filmer'sPatriarchia, or the Natural Power of Kingsappeared in 1680;Locke'sTwo Treatises on Government, in 1690. Both works are reprinted in the ninth number ofMorley'sUniversal Library.

[36]SeePatriarchal Theory, 36 ff., 243 ff., 273 note, where a summary of Locke's argument, with additional evidence against the existence of agnation andpatria potestasand in favor of an original maternal system among the Hebrews, will be found.

[37]Robertson Smith,Kinship and Marriage;Wilken,Das Matriarchat bei den alten Arabern, a work suggested bySmith's"Animal Worship and Animal Tribes,"Journal of Philology, IX, 75-100. These writers have found among these Semitic tribes the system of kinship through the mother in actual use, with traces of polyandry, exogamy, and the totemgens; and Wilken believes that he finds evidences of early promiscuity. See especiallyKohler,Ueber das vorislamitische Recht der Araber,ZVR., VIII, 238-61; andFriedrichs,Das Eherecht des Islam,ibid., VII, 240-84, especially 255 ff., who shows that the Mohammedan house-father exercises great authority over his wife, yet she has her own property and receives a dower. At present, relationship in Arabia is generally counted in the male line; and therefore,Westermarck,Human Marriage, 102, note 4, regards the conclusion of Smith that originally the system of female kinship exclusively prevailed as "a mere hypothesis."

[38]Wake,Marriage and Kinship, 244.

[39]According toEwaldthe ancient Hebrew father might "sell his child to relieve his own distress, or offer it to a creditor as a pledge."—The Antiquities of Israel(London, 1876), 190;Westermarck,op. cit., 228; and the Levitical law prescribes death as the penalty for striking a parent (Leviticus 20:9; Exodus 21:15, 17); but the penalty could only be administered through appeal to the whole community,Westermarck,op. cit., 228.Cf.Michaelis,Commentaries on the Laws of Moses, I, 444, who shows that the mother, as well as the father, might sometimes choose wives for the sons; while McLennan and Locke prove that the position of the mother in Israel was higher than is consistent with Roman patriarchalism.

[40]Human Marriage, 97-104, notes.Cf.Friedrichs, "Ueber den Ursprung des Matriarchats,"ZVR., VIII, 371-73;Kohler,ibid., VI, 403 (Korea); VII, 373 (Papuas).

[41]CompareWake,Marriage and Kinship, 267 ff., 362 ff., 382, 396 ff.; especiallyFriedrichs, "Familienstufen und Eheformen,"ZVR., X, 209-12; andDargun,Mutterrecht und Vaterrecht, 3, 28, 118, who believes the so-called "mixed systems" are merely a consistent union of two entirely different principles—the principle of relationship with the principle of power or protection.

[42]Starcke,op. cit., 26, 27 (Australia), 30 (America), 58 ff., 101 ff. Compare the criticism ofHellwald,Die mensch. Familie, 456 ff.; and on the development of the patriarchal family, seeLippert,Kulturgeschichte, II, 505-54.

[43]Westermarck,op. cit., 224-35, gives an enumeration. Noteworthy examples of patriarchal power are afforded by the ancient Peruvians and Mexicans, and by the modern Chinese and Japanese. On the Nahua and Maya natives seeBancroft,Native Races, II, 247-53, 663-68.Cf.Kohler, "Das Recht der Azteken,"ZVR., XI, 54, 55; alsoibid., VI, 374 (Chinese), 333, 334; VII, 373 (Papuas).

[44]Op. cit., 225.

[45]Bachofen,Das Mutterrecht;McLennan,Studies, I, 121 ff., 195 ff.;idem,Patriarchal Theory, 50 ff., 71 ff., 96 ff., 120 ff., 250 ff.;Dargun,Mutterrecht und Raubehe, 8, 13,passim;Giraud-Teulon,Les orignes du mariage, 130 ff., 286 ff., 329 ff.;idem,La mère chez certaines peuples de l'antiquité;Lippert,Geschichte der Familie, 4 ff.;Lubbock,Origin of Civilization, 153, 154.Kohler, "Indisches Ehe- und Familienrecht,"ZVR., III, 393 ff., holds that the primitive Aryans must necessarily have recognized relationship through the mother. For the literature of this subject see the next chapter.

[46]Delbrück, "Das Mutterrecht bei den Indogermanen,"Preussiche Jahrbücher, XCVI, 14-27, a clear summary of the results of recent research.Cf.hisDie Indogermanischen Verwandtschaftsnamen(Leipzig, 1889). According toHellwald,Die mensch. Familie, 453-80, especially 459, 460, patriarchalism was fully established at the earliest dawn of Indic history; but there are nevertheless traces of earlier mother-right.

[47]Schrader,Sprachvergleichung und Urgeschichte(2d ed.), 536 ff.;Jevons'sTranslation, 369 ff.;Leist,Alt-arisches Jus Gentium, 51-58.Max Müllerdeclares that "whether in unknown times the Aryas ever passed through that metrocratic stage in which the children and all family property belong to the mother, and fathers have no recognized position whatever in the family, we can neither assert nor deny."—Biographies of Words, xvii.

[48]Wake,Marriage and Kinship, 359 ff., especially 382, where a thorough and detailed criticism of McLennan's theory is given.

[49]Bernhöft, "Die Principien des eur. Familienrechts,"ZVR., IX, 418, 419, 437 ff. See also hisRömische Königszeit, 202 ff.; and his articles inZVR., VIII, 11; IV., 227 ff.; and compareDargun,Mutterrecht und Vaterrecht, 91-94, 108.Starcke,op. cit., 101-18, also gives a searching examination of the theory of McLennan and the earlier views of Dargun, rejecting their conclusions.

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