For many years an active and ceaseless agitation was carried on on behalf of the legalization in England of marriage with a deceased wife’s sister. In all the self-governing colonies, with the exception of Newfoundland, the restriction had ceased toMarriage with a Deceased Wife’s Sister.exist. The first act legalizing marriage with a deceased wife’s sister was adopted by South Australia. The royal assent, however, was not given till the parliament of that state had five times passed the bill. In quick succession similar statutes followed in Victoria, Tasmania, New South Wales, Queensland, New Zealand, West Australia, Barbados, Canada, Mauritius, Natal and Cape Colony. As regards the Channel Islands, marriages of the kind in question were made legal in 1899, and in 1907 in the Isle of Man.In England the bill to render marriage with a deceased wife’s sister valid was first adopted by the House of Commons in 1850, and rejected by the House of Lords in 1851. It was subsequently brought before the legislature in 1855, 1856, 1858, 1859, 1861, 1862, 1866, 1869, 1870, 1871, 1872, 1873, 1875, 1877 and 1878 (Colonial bills), 1879 (6th May, when in the House of Lords the prince of Wales and the duke of Edinburgh voted in favour of it), 1880, 1882, 1883, 1884, 1886, 1888, 1889, 1890, 1891, 1896, and 1898 and 1900 (Colonial bills). In most cases it passed the House of Commons but was rejected in the House of Lords. The bill of 1896, however, which was judiciously drafted to avoid the compulsory celebration by clergymen of marriages against which they had conscientious scruples, was carried in the Lords. Both the prince of Wales and the duke of York were among the “contents.” The prime minister and eighteen bishops, including the two archbishops, voted against the bill, the earl of Rosebery and Lord Kimberley for it. At the third reading the bill was carried by 142 to 104 votes. Its promoters, however, did not succeed in getting an opportunity of bringing it before the House of Commons.From 1896 to 1901 no further direct steps were taken, but in 1898 and again in 1900 (May 28) the subject was brought forward in the House of Lords by Lord Strathcona in the form of a bill under which marriages with a deceased wife’s sister contracted in any British colony should be deemed valid for all purposes within the United Kingdom. In 1898, and again in 1900, the bill was carried on the third reading without a dissentient vote. The House of Commons took no action on either occasion. An imperial bill reached a second reading in the House of Commons in 1901 and again in 1902, but it was blocked by the High Church opponents of the measure when attempts were made to get it to the committee stage (Feb. 5 and June 6). The reform was, however, finally adopted in 1906 under the title of the Colonial Marriages (Deceased Wife’s Sister) Act. The effect of the act was to make such marriages legal in all respects, including the right of succession to real property and to honours and dignities within the United Kingdom. The natural sequence of the passing of the act of 1906 was the reintroduction in 1907 of the bill relating to England. Introduced by a private member, it was adopted by the government, passed the House of Commons, and finally the House of Lords (on the second reading by 111 votes to 79), and became law as the Deceased Wife’s Sister Marriage Act, 1907. The act contains a proviso justifying clergymen in refusing to solemnize marriages with a deceased wife’s sister, and it preserves the peculiar status of the wife’s sister under the Matrimonial Causes Act 1857, under which adultery with her by the husband is incestuous adultery.The celebration of marriages is now regulated wholly by statutory legislation. The most important acts in force are the Marriage Acts 1823, 1836, 1886 and 1898.14The former regulates marriageswithin the Church of England, but was intended to be of universal application, Jews and Quakers only being excepted by section 31. It requires either the previous publication of banns, or a licence from the proper ecclesiastical authority. As to banns, the rule of the rubric, so far as not altered by the statute, is required to be observed. They must be published on three successive Sundays at morning service after the second lesson, in the church of the parish in which the parties dwell; the bishop may, however, authorize the publication of banns in a public chapel. Seven days’ notice must be given to the clergyman of the names of the parties, their place of abode, and the time during which they have lived there. If either party is under age, the dissent of the parents or guardians expressed at the time of publication of banns renders such publication null and void. Licence in lieu of banns may only be granted by the archbishop, bishop or other authority, for the solemnization of a marriage within the church of the parish in which one of the parties shall have resided for fifteen days before. Before a licence can be granted an oath must be taken as to the fact of residence and that the necessary consent has been obtained in the case of persons under age. The father, or lawful guardian, is the proper person to consent to the marriage of a minor, and the place of any such person incapacitated mentally is taken by the lord chancellor. The absence of such consent does not, however, avoid a marriage once solemnized. But if persons wilfully intermarry (unless by special licence) in a place not being a church or public chapel, or without due publication of banns or proper licence, or before a person not in holy orders, the marriage is null and void to all purposes. Marriage must be celebrated within three months after banns or licence, and between the hours of eight in the morning and three in the afternoon.For the relief of the great body of Dissenters the act of 1836 was passed. It permits marriage to be solemnized in two additional ways—viz. (1) by certificate of the superintendent registrar of a district without licence, and (2) by such certificate with licence. In the first case, notice must be given to the registrar of the district or districts within which the parties have resided for seven days previous, which notice is inscribed in a marriage-notice book, open to public inspection at all reasonable times, and thereafter suspended for twenty-one days in some conspicuous place in the registrar’s office. Any person whose consent is necessary to an ecclesiastical licence may forbid the issue of a certificate, but in default of such prohibition the certificate will issue at the end of the twenty-one days. The marriage may then take place on any day within three months of the entry of notice, and in one of the following ways: (1) in a certified place of religious worship, registered for the solemnization of marriage; in that case a registrar of the district with two witnesses must be present, and the ceremony must include a mutual declaration of assent by the parties and a disavowal of any impediment; (2) at the superintendent registrar’s office, with the same declaration, but with no religious service; (3) in a church according to the usual form, the consent of the minister thereof having been previously obtained; (4) according to the usages of Jews and Quakers. The place of marriage in all cases must have been specified in the notice and certificate.In the second case, when it is desired to proceed by licence, notice must be given 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, and the certificate may be obtained at the expiration of one whole day after entry, together with the licence. No registrar’s licence can be granted for a marriage in church or according to the forms of the Church of England—the ecclesiastical authorities retaining their jurisdiction in that respect. It is also provided that in the case of persons wilfully intermarrying in a place other than that mentioned in the notice and certificate, or without notice or certificate, &c., the marriage shall be null and void.The various rules as to consent of parents, &c., to the marriages of minors are regulations of procedure only. The absence of the necessary consent is not a disability invalidating a marriage actually solemnized.The Act 26 Geo. II. c. 33, commonly known as Lord Hardwicke’s Act, which forbids the solemnization of marriage without banns or licence, also enacts that “in no case whatsoever shall any suit or proceeding be had in any ecclesiastical court in order to compel a celebrationin facie ecclesiae, by reason of any contract of matrimony whatsoever whetherper verba de presentiorper verba de futuro.” Blackstone observes that previous to this act “any contract madeper verba de presenti, or in words of the present tense, and in case of cohabitationper verba de futuroalso, was deemed valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate itin facie ecclesiae.”Royal marriages in England have been subject to special laws. The Royal Marriage Act of 1772 (12 Geo. III. c. 11), passed in consequence of the marriages of the dukes of Cumberland and Gloucester, enacted that “no descendant of his late majesty George II. (other than the issue of princesses married or who may marry into foreign families) shall be capable of contracting matrimony without the previous consent of his majesty, his heirs and successors, signified under the Great Seal. But in case any descendant of George II., being above twenty-five years old, shall persist to contract a marriage disapproved of by his majesty, such descendant, after giving twelve months’ notice to the privy council, may contract such marriage, and the same may be duly solemnized without the consent of his majesty, &c., and shall be good except both Houses of Parliament shall declare their disapprobation thereto.”In 1886 an act was passed in the British parliament to remove doubts which had been entertained as to the validity of certain marriages solemnized in England when one of the parties was resident in Scotland. The Summary Jurisdiction (Married Women) Act of 1895 enabled a wife whose husband is convicted of an assault on her, or who has been deserted by him, or been obliged owing to his cruelty to live apart from him, to apply to the justices, who are empowered by the act to make an order for separation and for payment by the husband to his wife of such weekly sum, not exceeding two pounds, as they may consider reasonable. The Marriage Act 1898 authorized the celebration of marriages in places of worship duly registered for the solemnization of marriages under the Marriage Act of 1836 without the presence of the registrar, on condition of their being solemnized in the presence of a person duly authorized by the governing body of the place of worship in question. It also made further provision for the due recording of all marriages in the general registers. The Marriages Validity Act of 1899 removed doubts as to the validity of marriages in England on Irish banns and in Ireland on English banns. Lastly, the Marriage with Foreigners Act 1906 enabled a British subject desirous of marrying a foreigner in a foreign country to comply with the foreign law by obtaining from a registrar a certificate that no legal impediment to the marriage has been shown. Similar certificates, by arrangement between His Majesty and foreign countries, are issued in the case of a foreigner desirous of marrying a British subject in the United Kingdom.The Foreign Marriage Act 1892 has consolidated the English law relating to marriages celebrated abroad, and brings it into harmony with the current tendencies of marriage law reform generally. Under it a marriage between British subjects abroad is as valid as a marriage duly solemnized in England (as heretofore), if celebrated in accordance with the local law or in the presence of diplomatic or consular agents who are appointed to act as “marriage officers.” The old fiction of assimilation of a British embassy to British soil can no longer be relied upon to uphold a marriage at a British embassy solemnized by an ordained clergyman. An order in council of the 28th of October 1892, moreover, provides that in the case of any marriage under the act, if it appears to the marriage officer that the woman about to be married is a British subject, and that the man is an alien, he must be satisfied that the marriage will be recognized by the law of the foreign country to which the alien belongs.A marriage may be solemnized on board one of His Majesty’s ships at a foreign station, provided a warrant of a secretary of state has authorized the commanding officer to be a marriage officer. At sea, marriages on British public or private ships seem still valid at common law, if performed by an episcopally ordained minister. The Merchant Shipping Act 1894 (sect. 240) provides that the master of a ship for which an official log is required shall enter in it every marriage taking place on board, with the names and ages of the parties.Again, under the Foreign Marriage Act all marriages solemnized within the British lines by a chaplain or officer or other person officiating under the orders of the commanding officer of a British army serving abroad, are as valid in law as if they had been solemnized within the United Kingdom subject to due observance of all forms required by law. The Naval Marriages Act 1908 authorizes, for the purpose of marriages in the United Kingdom, the publication of banns and the issue of certificates on board His Majesty’s ships in certain cases, or when one of the parties to a marriage intended to be solemnized in the United Kingdom is an officer, seaman or marine, borne on the books of one of His Majesty’s ships at sea.The principle of the English law of marriage, that a marriage contracted abroad is valid if it has been solemnized according to thelex loci, may be now taken to apply just as much to a marriage in a heathen as in a Christian country. Whether the marriage has or has not been celebrated according to Christian laws has no bearing upon the question, providing it is a monogamous marriage—a marriage which prevents the man who enters into it from marrying any other woman while his wife continues alive.
For many years an active and ceaseless agitation was carried on on behalf of the legalization in England of marriage with a deceased wife’s sister. In all the self-governing colonies, with the exception of Newfoundland, the restriction had ceased toMarriage with a Deceased Wife’s Sister.exist. The first act legalizing marriage with a deceased wife’s sister was adopted by South Australia. The royal assent, however, was not given till the parliament of that state had five times passed the bill. In quick succession similar statutes followed in Victoria, Tasmania, New South Wales, Queensland, New Zealand, West Australia, Barbados, Canada, Mauritius, Natal and Cape Colony. As regards the Channel Islands, marriages of the kind in question were made legal in 1899, and in 1907 in the Isle of Man.
In England the bill to render marriage with a deceased wife’s sister valid was first adopted by the House of Commons in 1850, and rejected by the House of Lords in 1851. It was subsequently brought before the legislature in 1855, 1856, 1858, 1859, 1861, 1862, 1866, 1869, 1870, 1871, 1872, 1873, 1875, 1877 and 1878 (Colonial bills), 1879 (6th May, when in the House of Lords the prince of Wales and the duke of Edinburgh voted in favour of it), 1880, 1882, 1883, 1884, 1886, 1888, 1889, 1890, 1891, 1896, and 1898 and 1900 (Colonial bills). In most cases it passed the House of Commons but was rejected in the House of Lords. The bill of 1896, however, which was judiciously drafted to avoid the compulsory celebration by clergymen of marriages against which they had conscientious scruples, was carried in the Lords. Both the prince of Wales and the duke of York were among the “contents.” The prime minister and eighteen bishops, including the two archbishops, voted against the bill, the earl of Rosebery and Lord Kimberley for it. At the third reading the bill was carried by 142 to 104 votes. Its promoters, however, did not succeed in getting an opportunity of bringing it before the House of Commons.
From 1896 to 1901 no further direct steps were taken, but in 1898 and again in 1900 (May 28) the subject was brought forward in the House of Lords by Lord Strathcona in the form of a bill under which marriages with a deceased wife’s sister contracted in any British colony should be deemed valid for all purposes within the United Kingdom. In 1898, and again in 1900, the bill was carried on the third reading without a dissentient vote. The House of Commons took no action on either occasion. An imperial bill reached a second reading in the House of Commons in 1901 and again in 1902, but it was blocked by the High Church opponents of the measure when attempts were made to get it to the committee stage (Feb. 5 and June 6). The reform was, however, finally adopted in 1906 under the title of the Colonial Marriages (Deceased Wife’s Sister) Act. The effect of the act was to make such marriages legal in all respects, including the right of succession to real property and to honours and dignities within the United Kingdom. The natural sequence of the passing of the act of 1906 was the reintroduction in 1907 of the bill relating to England. Introduced by a private member, it was adopted by the government, passed the House of Commons, and finally the House of Lords (on the second reading by 111 votes to 79), and became law as the Deceased Wife’s Sister Marriage Act, 1907. The act contains a proviso justifying clergymen in refusing to solemnize marriages with a deceased wife’s sister, and it preserves the peculiar status of the wife’s sister under the Matrimonial Causes Act 1857, under which adultery with her by the husband is incestuous adultery.
The celebration of marriages is now regulated wholly by statutory legislation. The most important acts in force are the Marriage Acts 1823, 1836, 1886 and 1898.14The former regulates marriageswithin the Church of England, but was intended to be of universal application, Jews and Quakers only being excepted by section 31. It requires either the previous publication of banns, or a licence from the proper ecclesiastical authority. As to banns, the rule of the rubric, so far as not altered by the statute, is required to be observed. They must be published on three successive Sundays at morning service after the second lesson, in the church of the parish in which the parties dwell; the bishop may, however, authorize the publication of banns in a public chapel. Seven days’ notice must be given to the clergyman of the names of the parties, their place of abode, and the time during which they have lived there. If either party is under age, the dissent of the parents or guardians expressed at the time of publication of banns renders such publication null and void. Licence in lieu of banns may only be granted by the archbishop, bishop or other authority, for the solemnization of a marriage within the church of the parish in which one of the parties shall have resided for fifteen days before. Before a licence can be granted an oath must be taken as to the fact of residence and that the necessary consent has been obtained in the case of persons under age. The father, or lawful guardian, is the proper person to consent to the marriage of a minor, and the place of any such person incapacitated mentally is taken by the lord chancellor. The absence of such consent does not, however, avoid a marriage once solemnized. But if persons wilfully intermarry (unless by special licence) in a place not being a church or public chapel, or without due publication of banns or proper licence, or before a person not in holy orders, the marriage is null and void to all purposes. Marriage must be celebrated within three months after banns or licence, and between the hours of eight in the morning and three in the afternoon.
For the relief of the great body of Dissenters the act of 1836 was passed. It permits marriage to be solemnized in two additional ways—viz. (1) by certificate of the superintendent registrar of a district without licence, and (2) by such certificate with licence. In the first case, notice must be given to the registrar of the district or districts within which the parties have resided for seven days previous, which notice is inscribed in a marriage-notice book, open to public inspection at all reasonable times, and thereafter suspended for twenty-one days in some conspicuous place in the registrar’s office. Any person whose consent is necessary to an ecclesiastical licence may forbid the issue of a certificate, but in default of such prohibition the certificate will issue at the end of the twenty-one days. The marriage may then take place on any day within three months of the entry of notice, and in one of the following ways: (1) in a certified place of religious worship, registered for the solemnization of marriage; in that case a registrar of the district with two witnesses must be present, and the ceremony must include a mutual declaration of assent by the parties and a disavowal of any impediment; (2) at the superintendent registrar’s office, with the same declaration, but with no religious service; (3) in a church according to the usual form, the consent of the minister thereof having been previously obtained; (4) according to the usages of Jews and Quakers. The place of marriage in all cases must have been specified in the notice and certificate.
In the second case, when it is desired to proceed by licence, notice must be given 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, and the certificate may be obtained at the expiration of one whole day after entry, together with the licence. No registrar’s licence can be granted for a marriage in church or according to the forms of the Church of England—the ecclesiastical authorities retaining their jurisdiction in that respect. It is also provided that in the case of persons wilfully intermarrying in a place other than that mentioned in the notice and certificate, or without notice or certificate, &c., the marriage shall be null and void.
The various rules as to consent of parents, &c., to the marriages of minors are regulations of procedure only. The absence of the necessary consent is not a disability invalidating a marriage actually solemnized.
The Act 26 Geo. II. c. 33, commonly known as Lord Hardwicke’s Act, which forbids the solemnization of marriage without banns or licence, also enacts that “in no case whatsoever shall any suit or proceeding be had in any ecclesiastical court in order to compel a celebrationin facie ecclesiae, by reason of any contract of matrimony whatsoever whetherper verba de presentiorper verba de futuro.” Blackstone observes that previous to this act “any contract madeper verba de presenti, or in words of the present tense, and in case of cohabitationper verba de futuroalso, was deemed valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate itin facie ecclesiae.”
Royal marriages in England have been subject to special laws. The Royal Marriage Act of 1772 (12 Geo. III. c. 11), passed in consequence of the marriages of the dukes of Cumberland and Gloucester, enacted that “no descendant of his late majesty George II. (other than the issue of princesses married or who may marry into foreign families) shall be capable of contracting matrimony without the previous consent of his majesty, his heirs and successors, signified under the Great Seal. But in case any descendant of George II., being above twenty-five years old, shall persist to contract a marriage disapproved of by his majesty, such descendant, after giving twelve months’ notice to the privy council, may contract such marriage, and the same may be duly solemnized without the consent of his majesty, &c., and shall be good except both Houses of Parliament shall declare their disapprobation thereto.”
In 1886 an act was passed in the British parliament to remove doubts which had been entertained as to the validity of certain marriages solemnized in England when one of the parties was resident in Scotland. The Summary Jurisdiction (Married Women) Act of 1895 enabled a wife whose husband is convicted of an assault on her, or who has been deserted by him, or been obliged owing to his cruelty to live apart from him, to apply to the justices, who are empowered by the act to make an order for separation and for payment by the husband to his wife of such weekly sum, not exceeding two pounds, as they may consider reasonable. The Marriage Act 1898 authorized the celebration of marriages in places of worship duly registered for the solemnization of marriages under the Marriage Act of 1836 without the presence of the registrar, on condition of their being solemnized in the presence of a person duly authorized by the governing body of the place of worship in question. It also made further provision for the due recording of all marriages in the general registers. The Marriages Validity Act of 1899 removed doubts as to the validity of marriages in England on Irish banns and in Ireland on English banns. Lastly, the Marriage with Foreigners Act 1906 enabled a British subject desirous of marrying a foreigner in a foreign country to comply with the foreign law by obtaining from a registrar a certificate that no legal impediment to the marriage has been shown. Similar certificates, by arrangement between His Majesty and foreign countries, are issued in the case of a foreigner desirous of marrying a British subject in the United Kingdom.
The Foreign Marriage Act 1892 has consolidated the English law relating to marriages celebrated abroad, and brings it into harmony with the current tendencies of marriage law reform generally. Under it a marriage between British subjects abroad is as valid as a marriage duly solemnized in England (as heretofore), if celebrated in accordance with the local law or in the presence of diplomatic or consular agents who are appointed to act as “marriage officers.” The old fiction of assimilation of a British embassy to British soil can no longer be relied upon to uphold a marriage at a British embassy solemnized by an ordained clergyman. An order in council of the 28th of October 1892, moreover, provides that in the case of any marriage under the act, if it appears to the marriage officer that the woman about to be married is a British subject, and that the man is an alien, he must be satisfied that the marriage will be recognized by the law of the foreign country to which the alien belongs.
A marriage may be solemnized on board one of His Majesty’s ships at a foreign station, provided a warrant of a secretary of state has authorized the commanding officer to be a marriage officer. At sea, marriages on British public or private ships seem still valid at common law, if performed by an episcopally ordained minister. The Merchant Shipping Act 1894 (sect. 240) provides that the master of a ship for which an official log is required shall enter in it every marriage taking place on board, with the names and ages of the parties.
Again, under the Foreign Marriage Act all marriages solemnized within the British lines by a chaplain or officer or other person officiating under the orders of the commanding officer of a British army serving abroad, are as valid in law as if they had been solemnized within the United Kingdom subject to due observance of all forms required by law. The Naval Marriages Act 1908 authorizes, for the purpose of marriages in the United Kingdom, the publication of banns and the issue of certificates on board His Majesty’s ships in certain cases, or when one of the parties to a marriage intended to be solemnized in the United Kingdom is an officer, seaman or marine, borne on the books of one of His Majesty’s ships at sea.
The principle of the English law of marriage, that a marriage contracted abroad is valid if it has been solemnized according to thelex loci, may be now taken to apply just as much to a marriage in a heathen as in a Christian country. Whether the marriage has or has not been celebrated according to Christian laws has no bearing upon the question, providing it is a monogamous marriage—a marriage which prevents the man who enters into it from marrying any other woman while his wife continues alive.
Scotland.—The chief point of distinction, as compared with English law, is the recognition of irregular marriages. (1) “A public or regular marriage,” says Fraser, “is one celebrated, after due proclamation of banns, by a minister of religion; and it may be celebrated either in a church or in a private house, and on any day of the week at any hour of the day.” The ministers of the National Church at first alone could perform the ceremony; but the privilege was extended to Episcopalians by 10 Anne c. 7 (1711), and to other ministers by 4 and 5 Will. IV. c. 28 (1834). (2) A marriage may also “be constituted bydeclarations made by the man and the woman that theypresentlydo take each other for husband and wife.” These declarations “may be emitted on any day at any time and without the presence of witnesses,” and either by writing or orally or by signs, and in any form which is clearly expressive of intention. Such a marriage is as effectual to all intents and purposes as a public marriage. The children of it would be legitimate; and the parties to it would have all the rights in the property of each other, given by the law of Scotland to husband and wife. (3) A promise followed bycopuladoes not constitute marriage, unless followed either by solemnizationin facie ecclesiaeor declarator. Lord Moncreiff’s opinion in the case ofBrownv.Burnsis admitted to be good law, viz. that declarator is essential to the constitution of a marriage of this kind, so that, if no such declarator be brought in the lifetime of both parties, the marriage can never be established afterwards. Thecopulais presumed to have reference to the promise, but evidence may be adduced to show that such was not the case.
By the Marriage (Scotland) Act 1856 it is enacted that noirregularmarriage shall be valid in Scotland, unless one of the parties has lived in Scotland for the twenty-one days next preceding the marriage, or has his or her usual residence there at the time.“Habit and repute” has sometimes been spoken of as constituting marriage in the law of Scotland, but it is more correctly described as evidence from which marriage may be inferred. The repute must be the general, constant, and unvarying belief of friends and neighbours, not merely the controverted opinion of a section of them. The cohabitation must be in Scotland, but in one case proof of cohabitation in another country was allowed, as tending to throw light on the nature of the cohabitation in Scotland.The consent of parents is not necessary to the validity of the marriage, even of minors, but marriage under the age of puberty with or without such consent is void.
By the Marriage (Scotland) Act 1856 it is enacted that noirregularmarriage shall be valid in Scotland, unless one of the parties has lived in Scotland for the twenty-one days next preceding the marriage, or has his or her usual residence there at the time.
“Habit and repute” has sometimes been spoken of as constituting marriage in the law of Scotland, but it is more correctly described as evidence from which marriage may be inferred. The repute must be the general, constant, and unvarying belief of friends and neighbours, not merely the controverted opinion of a section of them. The cohabitation must be in Scotland, but in one case proof of cohabitation in another country was allowed, as tending to throw light on the nature of the cohabitation in Scotland.
The consent of parents is not necessary to the validity of the marriage, even of minors, but marriage under the age of puberty with or without such consent is void.
United States.—The absence of ecclesiastical courts has suggested difficulties as to the extent to which the law of England on this subject continued to prevail after the revolution. Bishop holds it to be the universal fact running through all the cases that everywhere in the country the English decisions on marriage and divorce are referred to with the same apparent deference which is shown on other subjects to the decisions of the English common law and equity tribunals. The same author observes that “all our marriage and divorce laws, and of course all our statutes on the subject, in so far as they pertain to localities embraced within the limits of particular states, are state laws and state statutes, the national power with us not having legislative or judicial cognisance of the matter within those localities.” Some of the states have extended the ages below which marriage cannot take place. The common law of the states is assumed to be that “a contractper verba de presenti, orper verba de futuro cum copula, constitutes a complete marriage.” Conditions, however, may be imposed by the various state legislatures, and as to these the rule has established itself in American jurisprudence that “a marriage good at common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity.” Thus in Pennsylvania, where a statute provided that all marriages “should be solemnized before twelve witnesses,” marriages not so celebrated were nevertheless held to be good. In New Hampshire justices and ministers of the gospel are authorized to solemnize marriage, and all other persons are forbidden to do so under penalties; yet a marriage by consent, as at common law, without justice or minister, has been held valid. On the other hand, under a very similar statute in Massachusetts, it was held that “parties could not solemnize their own marriage,” and that a marriage by mutual agreement, not in accordance with the statute, was void. Bishop regards this as an isolated exception to the general course of the decisions. So when state legislation requires any particular form to be used the want thereof only invalidates the act if the statute expressly so enacts. Many of the state codes inflict penalties on ministers or justices for celebrating the marriage of minors without the consent of the parents or guardians. The original law as to prohibited degrees has been considerably modified in the states. The prohibition of marriage with a deceased wife’s sister has been abolished in the United States. But New Hampshire, Ohio, Indiana, Kansas, Arkansas, Nevada, Washington, the Dakotas and Montana have for long forbidden marriages between first cousins by blood, and Louisiana, Oregon, Pennsylvania, Michigan, Nebraska, Utah and Wisconsin have since adopted the same principle. Virginia prohibits the marriage of a woman with the husband of her brother’s or sister’s daughter.
Attention is also being paid to the question of marriage from a physical point of view. New Jersey prohibits the marriage of any person who has been confined in any public asylum as an epileptic, insane or feeble-minded patient, without a medical certificate from two physicians of complete recovery, and that there is no probability of the transmission of such defects. This prohibits the granting of a marriage licence where either party is an habitual drunkard, epileptic, imbecile or insane, or where the applicant at the time of making application is under the influence of any intoxicant or narcotic drug. In Michigan, Minnesota, Kansas and Oregon, marriage is prohibited to epileptics, &c., except when the woman is over forty-five. In Michigan, also, marriage is forbidden to anyone who has suffered from a venereal disease and has not been cured. The equality of property rights between husband and wife is fully established in America. Indeed, in many states the movement has gone so far as to give the wife in matters of property and in reference to divorce greater privileges than the husband. Thus a husband is often liable for a wife’s debts where a wife would not be,mutatis mutandis, for a husband’s; and a wife may usually obtain a decree of divorce for any ground on which one may be awarded to the husband, and, in addition, for neglect to provide sustenance or support. Emphasis on the personal or moral relation of the parties in marriage tends to throw into the background the legal aspects and requirements; and it tends also to minimize, so far as the state is concerned, the religious and sacramental aspect of marriage. Marriage tends to become a relation established by parties between themselves, and one in which the consent of the parties becomes the only constitutive element. In the theory of American law no ceremony is essential to create the marriage relation. But this position has never been endorsed by any considerable proportion of the community, and in fact probably9⁄10ths and perhaps99⁄100ths of the marriages in the United States are contracted through some ceremony.
Attention is also being paid to the question of marriage from a physical point of view. New Jersey prohibits the marriage of any person who has been confined in any public asylum as an epileptic, insane or feeble-minded patient, without a medical certificate from two physicians of complete recovery, and that there is no probability of the transmission of such defects. This prohibits the granting of a marriage licence where either party is an habitual drunkard, epileptic, imbecile or insane, or where the applicant at the time of making application is under the influence of any intoxicant or narcotic drug. In Michigan, Minnesota, Kansas and Oregon, marriage is prohibited to epileptics, &c., except when the woman is over forty-five. In Michigan, also, marriage is forbidden to anyone who has suffered from a venereal disease and has not been cured. The equality of property rights between husband and wife is fully established in America. Indeed, in many states the movement has gone so far as to give the wife in matters of property and in reference to divorce greater privileges than the husband. Thus a husband is often liable for a wife’s debts where a wife would not be,mutatis mutandis, for a husband’s; and a wife may usually obtain a decree of divorce for any ground on which one may be awarded to the husband, and, in addition, for neglect to provide sustenance or support. Emphasis on the personal or moral relation of the parties in marriage tends to throw into the background the legal aspects and requirements; and it tends also to minimize, so far as the state is concerned, the religious and sacramental aspect of marriage. Marriage tends to become a relation established by parties between themselves, and one in which the consent of the parties becomes the only constitutive element. In the theory of American law no ceremony is essential to create the marriage relation. But this position has never been endorsed by any considerable proportion of the community, and in fact probably9⁄10ths and perhaps99⁄100ths of the marriages in the United States are contracted through some ceremony.
France.—Articles 144-226 of the Code Napoléon, as amended by an act of 1907, prescribe the qualifications and conditions of marriage. The man must be eighteen and the woman fifteen years of age. A son and daughter under twenty-one cannot marry without consent of the father and mother, or of the father only if they disagree, or of the survivor if one be dead. If both are dead grandfather and grandmother take their place. Between the ages of twenty-one and thirty the parties must still obtain the consent of their parents, but if this be refused it can be regulated by means of a “respectful and formal act” before a notary. If the consent is not given within thirty days the marriage may take place without it. If neither parents nor grandparents be alive, parties under twenty-one require the consent of the family council. These rules apply to natural children when affiliated; those not affiliated require the consent of a specially appointed guardian. Marriage is prohibited between all ascendants and descendants in the direct line, and between persons related by marriage in the same line, between brother and sister, between uncle and niece, and brother-in-law and sister-in-law.
Before the solemnization of marriage banns are required to be published for a period of ten days, which must include two Sundays, containing the names, occupations, and domiciles of the parties and their parents. There must be an interval of three days before the marriage can take place, and if a year is allowed to elapse fresh banns must be put up. On the day appointed by the parties, and in the parish to which one of them belongs, the marriage is celebrated by the civil officer or registrar reading over to them the various necessary documents, with the chapter of the code relating to husband and wife, receiving from each a declaration that they take each other for husband and wife, and drawing up the act of marriage. All this has to be done in the presence of four witnesses.Marriages contracted abroad between French subjects or between French subjects and foreigners are valid in France if celebrated according to the forms of the foreign law, provided the French conditions as to consent of parents have been observed. (See also Marriage with Foreigners Act,supra.)
Before the solemnization of marriage banns are required to be published for a period of ten days, which must include two Sundays, containing the names, occupations, and domiciles of the parties and their parents. There must be an interval of three days before the marriage can take place, and if a year is allowed to elapse fresh banns must be put up. On the day appointed by the parties, and in the parish to which one of them belongs, the marriage is celebrated by the civil officer or registrar reading over to them the various necessary documents, with the chapter of the code relating to husband and wife, receiving from each a declaration that they take each other for husband and wife, and drawing up the act of marriage. All this has to be done in the presence of four witnesses.
Marriages contracted abroad between French subjects or between French subjects and foreigners are valid in France if celebrated according to the forms of the foreign law, provided the French conditions as to consent of parents have been observed. (See also Marriage with Foreigners Act,supra.)
Germany.—The code of 1900 lays down rules applicable to the celebration of all marriages within the German Empire. Civil marriage alone is recognized by the code. It is effected by the declaration of the parties before a registrar in the presenceof each other of their intention to be married. Two witnesses of full age must be present. The registrar asks each of the parties whether he or she will many the other, and on their answer in the affirmative declares them duly married and enters the marriage in the register. The marriage must be preceded by a public notice. Marriages are void between descendants and ascendants; relatives by marriage in the ascending or descending line; brother and sister of the whole or half blood.
Other Countries.—In the great majority of the other European countries civil marriage is obligatory. In Roman Catholic countries the parties usually supplement the obligatory civil marriage by a religious ceremony, more especially since the papal decreeNe temereof the 2nd of August 1907 (which came into force at Easter 1908), which requires marriages between Roman Catholics, or between Roman Catholics and those not professing that faith, to be celebrated before a bishop or priest duly authorized for the celebration thereof.
Authorities.—Eversley,The Law of Domestic Relations(3rd ed., London, 1906); Lush,The Law of Husband and Wife(London, 1909); Crawley,The Law of Husband and Wife(London, 1892); Geary,Marriage and Family Relations(London, 1892); Griffiths,Married Women’s Property Acts(London, 1891); Vaizley,Law of Settlements of Property made on Marriage(London, 1887); Bishop, (America)Marriage, Divorce and Separation(Chicago, 1892); David Murray, (Scotland)The Law relating to the Property of Married Persons(Glasgow, 1892); E. A. Westermarck,History of Human Marriage(3rd ed., 1901), with other works cited in the articleFamily. M. Neustadt,Kritische Studien zum Familienrecht des bürgerlichen Gesetzbuchs(Berlin, 1907); O. D. Watkins,Holy Matrimony(London, 1895), a comprehensive study of the history and theory of Christian marriage, from the High Anglican point of view, with special reference to missions dealing with heathen converts; J. Wickham Legg, “Notes on the Marriage Service in the Book of Common Prayer of 1549,” inEcclesiological Essays(London, 1905), a valuable comparative study of Christian marriage rites, with numerous references; the articles “Ehe, Christliche,” by Gottschick, and “Eherecht” (many references), by Sehling, in Herzog-Hauck,Realencyklopädie(3rd ed., Leipzig, 1898, vol. v.); Abbé André,Cours de droit canon(3rd ed., Wagner, Paris, 1901), art. “Mariage,” “Affinité,” &c.See alsoAge;Divorce;Family;Husband and Wife;Legitimacy And Legitimation;Morganatic Marriage.
Authorities.—Eversley,The Law of Domestic Relations(3rd ed., London, 1906); Lush,The Law of Husband and Wife(London, 1909); Crawley,The Law of Husband and Wife(London, 1892); Geary,Marriage and Family Relations(London, 1892); Griffiths,Married Women’s Property Acts(London, 1891); Vaizley,Law of Settlements of Property made on Marriage(London, 1887); Bishop, (America)Marriage, Divorce and Separation(Chicago, 1892); David Murray, (Scotland)The Law relating to the Property of Married Persons(Glasgow, 1892); E. A. Westermarck,History of Human Marriage(3rd ed., 1901), with other works cited in the articleFamily. M. Neustadt,Kritische Studien zum Familienrecht des bürgerlichen Gesetzbuchs(Berlin, 1907); O. D. Watkins,Holy Matrimony(London, 1895), a comprehensive study of the history and theory of Christian marriage, from the High Anglican point of view, with special reference to missions dealing with heathen converts; J. Wickham Legg, “Notes on the Marriage Service in the Book of Common Prayer of 1549,” inEcclesiological Essays(London, 1905), a valuable comparative study of Christian marriage rites, with numerous references; the articles “Ehe, Christliche,” by Gottschick, and “Eherecht” (many references), by Sehling, in Herzog-Hauck,Realencyklopädie(3rd ed., Leipzig, 1898, vol. v.); Abbé André,Cours de droit canon(3rd ed., Wagner, Paris, 1901), art. “Mariage,” “Affinité,” &c.
See alsoAge;Divorce;Family;Husband and Wife;Legitimacy And Legitimation;Morganatic Marriage.
1It is doubtless true, as anthropologists have pointed out, that in the history of the race “marriage is rooted in the family rather than the family in marriage” (Westermarck:History of Human Marriage, p. 22); but in that conscious experience of the individual with which law and ethics are especially concerned, this relationship is reversed, and the family originates in marriage (seeFamily, and allied headings).2The restrictions are enumerated in the following lines:—Error, Conditio, Votum, Cognatio, Crimen,Cultus, Disparitas, Vis, Ordo, Ligamen, Honestas,Aetas, Affinis, si Clandestinus et Impos,Raptave sit mulier nec parti reddita tutae.3Canon lxi. Aut qui ex propria consanguinitate aliquam, aut quam consanguineus habuit ... duceret uxorem ... incestos esse non dubitamus (MansiConc.viii. p. 336). According to the canon law “affinity” is the relation between two persons of whom one has had commerce, licit or illicit, with a relation of the other.4The civil law counts, in the direct line, as many degrees as there are generations between the parties;e.g.the son is in regard to his father in the 1st degree, the grandson in the 2nd, and vice versa. In the collateral line it computes degrees by generations,i.e.from one of the relations to the common ancestor, without including him or her, and from him or her back to the other relation;e.g.two brothers are in the 2nd degree of relationship to one another, uncle and nephew in the 3rd, cousins-german in the 4th.The canon law, which in this case derives from the old Germanic law, has the same computation as regards the direct line. In the case of collateral relations, however, it differs, having two rules: (1) In the case ofequal line—i.e.when the collaterals are equally removed from the common progenitor, it reckons the same number of degrees between the collaterals as between one of them and the progenitor;e.g.brothers are related in the 1st degree, while cousins-german are related in the 2nd degree because they are two generations from the common grandfather. (2) In the case ofunequal line—i.e.when the collaterals are unequally removed from the common ancestor, the degree of their relationship is that of the most remote from the common progenitor;e.g.uncle and niece are related in the 2nd degree—i.e.that of the niece to the grandfather.The civil computation was furiously attacked by canonists as tending to laxity (see Peter Damianus, “De parentelae gradibus,” in Migne,Patrol. Lat.cxlv. 191, &c.).5Innocent III. also decided that the husband’s relations were not related to those of the wife, and vice versa, thus establishing the rule that “affinity does not breed affinity” (affinitas non parit affinitatem).6This is fixed by the canon law at 14 for a male, 12 for a female. If, however, owing to the precocious physical development of a girl, the marriage has been consummated before she has reached this age, it cannot be nullified.7It is maintained that no pope has ever given a dispensation for such a marriage. Such a case seems, however, to be narrated by Ordericus Vitalis (Hist. eccles.viii. 23; ed. A. le Prévost, Paris, 1838-1855, t. iii. p. 408; ed. A. Duchesne, 1619, 704 B). Robert Mowbray, earl of Northumberland, had only been married to Maud de Laigle three months when he was condemned to perpetual imprisonment for rebellion against King William Rufus. After describing her forlorn state Orderic continues: “Nec ipsa eo vivente, secundum legem Dei, alteri nubere legitime valebat. Tandum, permissu Paschalis Papae (II.), cui res, a curiosis enucleata, patuit, post multos dies Nigellus de Albineo ipsam uxorem accepit.” This may mean no more, of course, than that the curiosi “untied the knot” by discovering an impediment—the usual expedient in such cases. In any case the fact that Nigel de Albini, in his turn, soon afterwards obtained a “divorce” from her on the ground that her first husband was his relative by consanguinity, hardly points to a strict view of the sanctity of the marriage tie.8The customary rule for more than three centuries after the Council of Trent was that male children followed the religion of the father, female children that of the mother. On the general subject of the attitude of the Church towards mixed marriages see O. D. Watkins,Holy Matrimony, pp. 468 et seq. For the Roman Catholic view see “An Instruction on Mixed Marriages” in Bishop Ullathorne’sEccl. Discourses(London, 1876).9Among the “errors” denounced by Pope Pius IX. in the Syllabus of 1864 is lxvi.: “Matrimonii sacramentum non est, nisi quid contractui accessorium ab eoque separabile, ipsumque sacramentum in una tantum nuptiali benedictione situm est.” This condemns the attempts of certain canonists (e.g.Melchior Cano) to distinguish between thecontractus naturalisandsacramentalis. This view, which was first advanced by the jurist and theologian Johann Gropper (1502-1559) at the council of Cologne (1536), and gained support especially in France, makes the “matter” of the sacrament the consent of the parties, the “form” the prayers and benedictions, the “minister” the priests (seee.g.“Du sacrament de mariage” in vol. v. of theDissertationes selectaeof Petrus de Marca, d. 1662, archbishop of Paris, Bamberg, 1789, p. 148).10See the list of quotations from the early fathers given by Watkins,Holy Matrimony, p. 93.11The later teaching of the Eastern Church is laid down in the Orthodox Confession of Peter Mogilas, patriarch of Kiev (1640). There are three essentials for a Christian marriage: (1) suitable matter (ὔλη ἁρμόδιος),i.e.a man and woman whose union no impediment bars, (2) a duly ordained bishop or priest, (3) the invocation of the Holy Ghost, and the solemnity of the formularies (τὸ εἶδος τῶν λογίων).12A divorcenisidoes not enable the parties to marry until it is made absolute.13A marriage in which either of the parties is below the age of consent is, however, said to be not absolutely void; if the parties agree to continue together at the age of consent no new marriage is necessary, but either of them may disagree and avoid the marriage.14A complete list of the acts regulating the solemnization of marriage or confirming marriages, which through some defect might be void, will be found in Phillimore’sEcclesiastical Law(2nd ed. 1895).
1It is doubtless true, as anthropologists have pointed out, that in the history of the race “marriage is rooted in the family rather than the family in marriage” (Westermarck:History of Human Marriage, p. 22); but in that conscious experience of the individual with which law and ethics are especially concerned, this relationship is reversed, and the family originates in marriage (seeFamily, and allied headings).
2The restrictions are enumerated in the following lines:—
Error, Conditio, Votum, Cognatio, Crimen,Cultus, Disparitas, Vis, Ordo, Ligamen, Honestas,Aetas, Affinis, si Clandestinus et Impos,Raptave sit mulier nec parti reddita tutae.
Error, Conditio, Votum, Cognatio, Crimen,
Cultus, Disparitas, Vis, Ordo, Ligamen, Honestas,
Aetas, Affinis, si Clandestinus et Impos,
Raptave sit mulier nec parti reddita tutae.
3Canon lxi. Aut qui ex propria consanguinitate aliquam, aut quam consanguineus habuit ... duceret uxorem ... incestos esse non dubitamus (MansiConc.viii. p. 336). According to the canon law “affinity” is the relation between two persons of whom one has had commerce, licit or illicit, with a relation of the other.
4The civil law counts, in the direct line, as many degrees as there are generations between the parties;e.g.the son is in regard to his father in the 1st degree, the grandson in the 2nd, and vice versa. In the collateral line it computes degrees by generations,i.e.from one of the relations to the common ancestor, without including him or her, and from him or her back to the other relation;e.g.two brothers are in the 2nd degree of relationship to one another, uncle and nephew in the 3rd, cousins-german in the 4th.
The canon law, which in this case derives from the old Germanic law, has the same computation as regards the direct line. In the case of collateral relations, however, it differs, having two rules: (1) In the case ofequal line—i.e.when the collaterals are equally removed from the common progenitor, it reckons the same number of degrees between the collaterals as between one of them and the progenitor;e.g.brothers are related in the 1st degree, while cousins-german are related in the 2nd degree because they are two generations from the common grandfather. (2) In the case ofunequal line—i.e.when the collaterals are unequally removed from the common ancestor, the degree of their relationship is that of the most remote from the common progenitor;e.g.uncle and niece are related in the 2nd degree—i.e.that of the niece to the grandfather.
The civil computation was furiously attacked by canonists as tending to laxity (see Peter Damianus, “De parentelae gradibus,” in Migne,Patrol. Lat.cxlv. 191, &c.).
5Innocent III. also decided that the husband’s relations were not related to those of the wife, and vice versa, thus establishing the rule that “affinity does not breed affinity” (affinitas non parit affinitatem).
6This is fixed by the canon law at 14 for a male, 12 for a female. If, however, owing to the precocious physical development of a girl, the marriage has been consummated before she has reached this age, it cannot be nullified.
7It is maintained that no pope has ever given a dispensation for such a marriage. Such a case seems, however, to be narrated by Ordericus Vitalis (Hist. eccles.viii. 23; ed. A. le Prévost, Paris, 1838-1855, t. iii. p. 408; ed. A. Duchesne, 1619, 704 B). Robert Mowbray, earl of Northumberland, had only been married to Maud de Laigle three months when he was condemned to perpetual imprisonment for rebellion against King William Rufus. After describing her forlorn state Orderic continues: “Nec ipsa eo vivente, secundum legem Dei, alteri nubere legitime valebat. Tandum, permissu Paschalis Papae (II.), cui res, a curiosis enucleata, patuit, post multos dies Nigellus de Albineo ipsam uxorem accepit.” This may mean no more, of course, than that the curiosi “untied the knot” by discovering an impediment—the usual expedient in such cases. In any case the fact that Nigel de Albini, in his turn, soon afterwards obtained a “divorce” from her on the ground that her first husband was his relative by consanguinity, hardly points to a strict view of the sanctity of the marriage tie.
8The customary rule for more than three centuries after the Council of Trent was that male children followed the religion of the father, female children that of the mother. On the general subject of the attitude of the Church towards mixed marriages see O. D. Watkins,Holy Matrimony, pp. 468 et seq. For the Roman Catholic view see “An Instruction on Mixed Marriages” in Bishop Ullathorne’sEccl. Discourses(London, 1876).
9Among the “errors” denounced by Pope Pius IX. in the Syllabus of 1864 is lxvi.: “Matrimonii sacramentum non est, nisi quid contractui accessorium ab eoque separabile, ipsumque sacramentum in una tantum nuptiali benedictione situm est.” This condemns the attempts of certain canonists (e.g.Melchior Cano) to distinguish between thecontractus naturalisandsacramentalis. This view, which was first advanced by the jurist and theologian Johann Gropper (1502-1559) at the council of Cologne (1536), and gained support especially in France, makes the “matter” of the sacrament the consent of the parties, the “form” the prayers and benedictions, the “minister” the priests (seee.g.“Du sacrament de mariage” in vol. v. of theDissertationes selectaeof Petrus de Marca, d. 1662, archbishop of Paris, Bamberg, 1789, p. 148).
10See the list of quotations from the early fathers given by Watkins,Holy Matrimony, p. 93.
11The later teaching of the Eastern Church is laid down in the Orthodox Confession of Peter Mogilas, patriarch of Kiev (1640). There are three essentials for a Christian marriage: (1) suitable matter (ὔλη ἁρμόδιος),i.e.a man and woman whose union no impediment bars, (2) a duly ordained bishop or priest, (3) the invocation of the Holy Ghost, and the solemnity of the formularies (τὸ εἶδος τῶν λογίων).
12A divorcenisidoes not enable the parties to marry until it is made absolute.
13A marriage in which either of the parties is below the age of consent is, however, said to be not absolutely void; if the parties agree to continue together at the age of consent no new marriage is necessary, but either of them may disagree and avoid the marriage.
14A complete list of the acts regulating the solemnization of marriage or confirming marriages, which through some defect might be void, will be found in Phillimore’sEcclesiastical Law(2nd ed. 1895).
MARRUCINI,an ancient tribe which occupied a small strip of territory round about Teate (mod. Chieti), on the east coast of Italy. It is first mentioned in history as a member of a confederacy with which the Romans came into conflict in the second Samnite War, 325B.C., and it entered the Roman Alliance as a separate unit at the end of that war (see furtherPaeligni). We know something of the language of the Marrucini from an inscription known as the “Bronze of Rapino,” which belongs to about the middle of the 3rd centuryB.C.It is written in Latin alphabet, but in a dialect which belongs to the North Oscan group (seePaeligni). The name of the city or tribe which it gives us istouta marouca, and it mentions also a citadel with the epithettarincris. Several of its linguistic features, both in vocabulary and in syntax, are of considerable interest to the student of Latin or Italic grammar (e.g.the use of the subjunctive, without any conjunction, to express purpose, a clause prescribing a sacrifice to Ceres being followed immediately bypacr si ut propitia sit). The earliest Latin inscriptions are of Ciceronian date.
The form of the name is of considerable interest, as it shows the suffix -NO- superimposed upon the suffix -CO-, a change which probably indicates some conquest of an earlier tribe by the invading Safini (or Sabini,q.v.).
For further details as to Marrucine inscriptions and place-names see R. S. Conway,The Italic Dialects, p. 253 seq.
For further details as to Marrucine inscriptions and place-names see R. S. Conway,The Italic Dialects, p. 253 seq.
(R. S. C.)
MARRUVIUM,the chief town of the Marsi, on the E. bank of the Lacus Fucinus, 4 m. S. of Cerfennia, on the Via Valeria. Though no doubt of great antiquity, nothing is known of its history before the imperial period; and none of the remains visible there (city walls, various buildings within them, an amphitheatre, &c.), from which it seems to have been a place of some importance, can be attributed to an earlier date. On the site is the insignificant village of St Benedetto.
MARRYAT, FREDERICK(1792-1848), English sailor and novelist, was born at Westminster on the 10th of July 1792. He was the grandson of Thomas Marryat (physician, author ofThe Philosophy of Masons, and writer of verse), and son of Joseph Marryat, agent for the island of Grenada, who wrote pamphlets in defence of the Slave Trade. His mother was a Bostonian of German extraction. Young Marryat distinguished himself as a boy by frequently running away to go to sea; and at last, at the age of fourteen, he was allowed to enter the navy. His first service was under Lord Cochrane (afterwards tenth earl of Dundonald) in the famous “Impérieuse,” and no midshipman ever had a livelier apprenticeship to the sea. During his two and a half years of service under Cochrane, the young midshipman witnessed more than fifty engagements, and had much experience of service on the coast of Spain in the early stage of the Peninsular War, in the attack on the French squadron in the Roads (April 1809) and in the Walcheren expedition. Before the general peace of 1815 he had served in North America and the West Indies and gained a wide knowledge of conditions of life on board ship under various commanders. In 1815 he was promoted to the rank of commander. After holding various commands he commissioned the “Larne,” 20, for the East Indies and was senior naval officer at Rangoon during the Burmese War from May to September 1824. In the early part of the next year he commanded an expedition up the Bassein River, in which Bassein was occupied and the Burmese stores seized. His services were acknowledged by a nomination as C.B. in 1826. He frequently received honourable mention for his behaviour in action, and in 1818 he received the medal of the Humane Society for “at least a dozen” gallant rescues. Marryat’s honours were not confined to gallant exploits. He adapted Sir Home Popham’s code of signals to a code for the Mercantile Marine, for which he was made F.R.S. in 1819, and received the Legion of Honour from Louis Philippe in 1833. A pamphlet written to propose a substitute for the system of impressment in 1822 is said to have offended King William IV.
Marryat brought ripe experience and unimpaired vivacity to his work when he began to write novels.Frank Mildmay, or the Naval Officer, was published in 1829, andThe King’s Ownfollowed in 1830. The novels of the sea captain at once won public favour. The freshness of the new field which was opened up to the imagination—so full of vivid lights and shadows, light-hearted fun, grinding hardship, stirring adventure, heroic action, warm friendships, bitter hatreds—was in exhilarating contrast to the world of the historical romancer and the fashionable novelist, to which the mind of the general reader was at that date given over. He had an admirable gift of lucid, direct narrative, and an unfailing fund of incident, and of humour, sometimes bordering on farce. Of all his portraits of adventurous sailors, “Gentleman Chucks” inPeter Simpleand “Equality Jack” inMr Midshipman Easyare the most famous, but he created many other types which take rank among the characteristic figures in English fiction. Marryat’s first attempt was somewhat severely criticized from an artistic point of view, and he was accused of gratifying private grudges by introducing real personages too thinly disguised; and as he attributed some of his own adventures to Frank Mildmay he was rather shocked to learn that readers identified him with that disagreeable character.The King’s Ownwas a vast improvement, in point of construction, uponFrank Mildmay; and he went on, through a quick succession of tales,Newton Forster(1832),Peter Simple(1834),Jacob Faithful(1834),The Pacha of Many Tales(1835),Japhet in Search of a Father(1836),Mr Midshipman Easy(1836),The Pirate and the Three Cutters(1836), till he reached his high-water mark of constructive skill inSnarley-yow, or the Dog Fiend(1837). The best of his books after this date are those written expressly for boys, the favourites beingMasterman Ready(1841),The Settlers in Canada(1844), andThe Children of the New Forest(1847). Among his other works areThe Phantom Ship(1839);A Diary in America(1839);Olla Podrida(1840), a collection of miscellaneous papers;Poor Jack(1840);Joseph Rushbrook(1841);Percival Keene(1842);Monsieur Violet(1842);The Privateer’sMan(1844);The Mission, or Scenes in Africa(1845);The Little Savage(1848-1849), published posthumously; andValerie, not completed (1849). His novels form an important link between Smollett and Fielding and Charles Dickens.
Captain Marryat had retired from the naval service in 1830, becoming equerry to the duke of Sussex. He edited theMetropolitan Magazinefrom 1832 to 1835, and some of his best stories appeared in that paper. He spent a great part of his time in Brussels, where he was very popular. He visited Canada during Papineau’s revolt and the United States in 1837, and gave a disparaging account of American institutions in aDiarypublished on his return to England. While at New York he wrote a play,The Ocean Waif, or Channel Outlaw, which was acted, and is forgotten. His versatility is further shown by the fact that he drew rough caricatures and other sketches with some spirit. Some capital snatches of verse are scattered throughout his novels, the best being “Poll put her arms akimbo” inSnarley-yow, and the “Hunter and the Maid” inPoor Jack. In 1843 he settled at Langham Manor, Norfolk. He indulged in costly experiments in farming, so that in spite of the large income earned by his books he was not a rich man. He died at Langham on the 9th of August 1848, his death being hastened by news of the loss of his son by shipwreck.
His daughter, Florence Marryat, herself a novelist, published hisLife and Lettersin 1872. See also David Hannay,Life of Marryat(1889).
His daughter, Florence Marryat, herself a novelist, published hisLife and Lettersin 1872. See also David Hannay,Life of Marryat(1889).
(D. H.)
MARS, MLLE [ANNE FRANÇOISE HYPPOLYTE BOUTET](1779-1847), French actress, was born in Paris on the 9th of February 1779, the natural daughter of the actor-author named Monvel [Jacques Marie Boutet, 1745-1812], and Mlle Mars Salvetat, an actress whose southern accent had made her Parisdébuta failure. Mlle Mars began her stage career in children’s parts, and by 1799, after the rehabilitation of the Comédie Française, she and her sister (Marsaînée) joined that company, of which she remained an active member for thirty-three years. Her beauty and talents soon placed her at the top of her profession. She was incomparable iningénueparts, and equally charming as the coquette. Molière, Marivaux, Sedaine, and Beaumarchais had no more accomplished interpreter, and in her career of half a century, besides many comedy rôles of the olderrépertoire, she created fully a hundred parts in plays which owed success largely to her. For her farewell performance she selected Elmire inTartuffe, and Silvia inJeu de l’amour et du hasard, two of her most popular rôles; and for her benefit, a few days after, Célimène inLe Misanthropeand Araminthe inLes Femmes savantes. She retired in 1841, and died in Paris on the 20th of March 1847.
MARS(Mavors,Marmar,Marspiter or Maspiter), after Jupiter the most important deity of the Roman state, and one who, unlike most Roman deities, was never so much affected by foreign influences as to lose his essentially Roman and Italian character. Traces of his worship are found in all parts of central and southern Italy, in Umbria, Picenum, Samnium, and in one or two Etruscan cities, as well as in Latium; and in several communities, as we learn from Ovid (Fasti, 3.93 seq.), he gave his name to a month, as at Rome to the first month of the old Roman year. We know little of the character of his cult except at Rome, and even at Rome it has been variously interpreted. He has been explained as a sun-god, a god of wind and storm, a god of the year and a god of vegetation; and he has been compared with Apollo by Roscher (Apollo, and Mars, 1873, and in the article “Mars” in hisLexicon of Mythology). But in historical times his chief function at Rome was to protect the state in war, and it is as a god of war that he is known to all readers of Roman literature. So entirely did this characteristic get the better of all others, that his name came to be used as a synonym forbellum; and in the latest and most careful of all accounts of the Roman religion he is pronounced to have been from first to last a god of war only (see Wissowa,Religion und Kultus der Römer, p. 129 seq.).
Until the time of Augustus Mars had but two temples at Rome, and both are connected with warlike operations. One of these was originally only an altar; it was in the Campus Martius, the exercising-ground of the army. The other was outside the Porta Capena, the gate through which the army marched on its way to campaigns to the south: here too each year the Equites met in order to start in procession through the city (Dion. Hal.6. 13). Each of these sites was outside thepomerium, and this has been explained to mean that the war-god “must be kept at a distance” (Carter,Religion of Numa, p. 19). But in the heart of the city there was asacrariumof Mars in theregia, originally the king’s house, in which the sacred spears of Mars were kept, and the fact that on the outbreak of war the consul had to shake these spears, saying as he did it,Mars vigila(“Mars, wake up!”), shows that the god was believed to reside here in some spiritual sense. If the spears moved of themselves, the omen was bad and called for expiation. Theancilia, or sacred shields, also formed part of this symbolic armoury of the Roman state: they were carried in procession by the Salii (q.v.) or dancing warrior-priests of Mars on several occasions during the month of March up to the 23rd (tubilustrium), when the military trumpets (tubae) were lustrated: and again in October to the 19th (armilustrium), when both theanciliaand the arms of the exercitus were purified and put away for the winter. During the four months of the Italian winter the worship of Mars seems at a standstill: we have no trace of it in the calendar or in Roman literature. His activity is all in the warm season,i.e.in the season of warfare. It is only at the end of February that we find indications of the coming force of the Mars-cult in the month which bears his name: Quirinus, who was probably the Mars of the community settled on the Quirinal Hill, and had his twelve Salii corresponding to those of the Palatine Mars, held his festival on the 17th of February, and on the 27th was the first festival called Equirria, the second being on the 14th of March. The name indicates horse-racing; horses were bred and used at Rome chiefly for military purposes, and it is possible to see here, as in the Equirria of the 14th of March, which we know was a festival of Mars (W. W. Fowler,Roman Festivals, p. 44), an exercise of the war-horses, accompanied with sacrifice to Mars, preparatory to the opening of the season of arms.
There is thus abundant evidence, based on the ancient calendars and the features of the cult, that Mars was all along a deity especially connected with warfare; and it is hardly necessary to add proof of a less convincing kind,e.g.that the wolf, his special animal, is a warlike beast, or that Nerio, a female deity who may anciently have been coupled with him, seems to be etymologically “the strong one,” or that he is in legend the father of Romulus the warlike king and founder of the Roman army, as compared with Numa, who instituted the Roman law and religion. Enough has been said to show why Mars should have become exclusively a god of war, even if the Roman state in its advance in the conquest of other peoples had not given a continual impulse to this aspect of the cult. In founding his famous temple of Mars Ultor (the avenger of Caesar) in the Forum Augusti, Augustus gave a new turn to this worship, and for a time it seems to have been a rival of that of the Capitoline Jupiter (see Carter,Religion of Numa, p. 174 seq.), and late in the period of the empire Mars became the most prominent of thedi militaresworshipped by the Roman legions.
There are however certain features in the Mars cult which make it probable that this god was not entirely warlike in character. He seems, in early times, at least, to have been also associated with agriculture; and this is in harmony with the facts: (1) that the season of arms is also the season of the growth, ripening and harvesting of the crops; (2) that the early Roman community was an agricultural as well as a military one, as is indicated in its religious calendar (Fowler,Roman Festivals, p. 334). Thus Mars was invoked in the ancient hymn of the Arval Brothers, whose religious duties had as their object to keep off enemies of all kinds from crops and herds (Henzen,Acta Fratr. Arv.p. 26, 1874; Wordsworth,FragmentsandSpecimens of Early Latin, p. 385 seq.); and his association herewith the Lares (q.v.) proves that he is not regarded as a war-god who could avert the raid of an enemy. Still more striking is the invocation of Mars (with the cult-title Silvanus) in the yearly lustration of his land by the Roman farmer (Cato,De re rustica, 141), where it is not a human enemy, but disease, and all unwholesome influences, which the god is besought to avert from the farm and land, plantations and flocks. Three times the procession went round the land, reciting prayers and driving the victims to be sacrificed, viz. ox, sheep and pig (suovetaurilia), representing the farmer’s most valuable stock. We can hardly doubt that in the state ceremony of the Ambarvalia,i.e.thelustratioof the ager romanus in its earliest form, the same god was invoked and the same ritual used (Fowler,op. cit.p. 124 seq.). Again in the curious ritual of the sacrifice to Mars of the October horse (Oct. 15: Fowlerop. cit.241), though the animal was undoubtedly a war-horse, the head was cut off and decked with cakes, as we are told (Paul. Diac. 220)ob frugum eventum. Even Quirinus, the form of Mars worshipped in the Quirinal community, is not without an association with agricultural perils, for it was hisflamenwho sacrificed the victims at the Robigalia on the 25th of April, when the spirit of the mildew (robigus) was invoked to spare the corn (Ovid,Fasti, 4. 901 seq.).
War and agriculture are thus the two factors of human life and experience which are unquestionably prominent in the cult of Mars, and explain his importance in a community like that of Rome: and there is no need, in a short account of this religious conception, to determine whether he was by origin a solar deity, a storm-god, or a vegetation-spirit. His name gives us no help, its etymology is uncertain (Roscher inMythological Lexicon,s.v.“Mars,” p. 2436). But we are safe in conjecturing that Mars first came into prominence among the Latins and kindred peoples in the course of their long struggle for settlements among the mountains and forests of Italy. The clearing of primeval woodland, the perils of agriculture from the raids of enemies and of wild beasts, and from the ravages of disease, are all indicated in the later Mars cult. The wolf and the woodpecker, denizens of the forest, always remained his sacred animals, and were believed in Italian legend to have led the Piceni and Hirpini to their places of settlement. Mars is specially associated with the early foundation legends of Italy, as was the case at Rome: and it was to him that thever sacrumwas dedicated,i.e.the entire produce of a spring, including the children born then, who were eventually driven forth from their homes to form new settlements elsewhere (Roscher inLex. Myth.2411). The fierce character of the god, gained no doubt in this period of struggle and danger, never entirely left him. Even in the hymn of the Fratres Arvales he is the “fierce Mars” (fere Mars), and in the prayer of Cato’s farmer, though he has become “Father Mars,” he is Silvanus (q.v.), the dweller in the woodland which surrounded the agricultural clearing.