A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
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 involving the 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-one days,[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]
FOOTNOTES:
[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, Hellwald entitles his book Die menschliche Familie.
[2] A brief and clear account of some of the more important works is given by Bernhöft, "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 of Dr. 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 of Winsor, "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. also Starcke, 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,