Excatsn COMMON LAW, AND ACTS OF PARLIA MENT. That the general ecclesiastical law of Western Christendom lu•evailed in the British Islands until the Reformation, and that it contin ued to prevail after the Rcfo•mation until changed by enactments:, was not seriously questioned by the courts until 1843. In that year the Douse of Lords decided, in Queen rs.
(10 Clark and Finelly, 531), that, even before the Reformation, there was a special c-celesiastical law of England and Ireland. which was not in all points identical with the Roman canon law; that, in particular, the Roman doctrine that parties could contract a valid marriage by consent alone had never been a rule of English ecclesiastical law; that, on the contrary, the assistance and benediction of a priest had always been essential to a perfect marriage in England and Ireland. This decision denied, accordingly. that the form of marriage which is still known in the United States as the 'common-law marriage' had ever been a perfect. marriage at English common law. The correctness of this decision (which was rendered by a divided court) has been widely questioned, and further historical in vestigation has strengthened the opposite opinion (see Pollock and Maitland. History of English. Len•, II., 372, and Maitland. ram», Lou. in England). The opposite theory has always been held by the courts of the United States, and the decisimi in Queen rs. Millis has not been accepted by the courts of Canada.
The marriage of which the validity was denied in Queen rs. Millis was an Irish marriage. As fan• as England was concerned, the question had been settled by the nets 26 Geo. IL. e. 33 (Lord 1]ardw•icke,'s Act) and 4 Geo. 76. vhIclu quired a church marriage preceded by the publication of banns, except when a special license was seemed. and which declined any other form of marriage invalid. Church marriage meant marriage according to the forms of the Estab lished Church, and from 1753 to 1836 no exceptions were made except in the eases of Quakers and dews. Lord Russell's Act, 6 and 7 William c. 85, supplemented by Acts 1 Viet., c. 22, and 19 and 20 Viet., c. 119, furnished a choice be tween nmrriage according, to the forms of the Established Church, marriage according to the forms of other registered confessions, and civil marriage before a registrar•, Lord Ilardwic•ke's act further demanded the assent of parents or guardians to the marriage of minors. and the fact that it did not operate outside Engin nd led to the nunu•rous 'Gretna Green' marriages. At
present, under later acts of Parliament. the same election between various forms of inarriage is given in Scotland and in lreland as in England— an election between relighms marriage accord to the rites of all recognized confession and civil marriage. In Ireland the marriage by consent without ecclesiastical or civil ceremony has been abolished by the decision in Inwen :Millis; in Si•otlanml till', formless marriage still exists, as it still exists in the great majority of the commonwealths of the United States. All that is necessary to establish the marriage is the consent o• agreement in presenti, i.e. an agree ment of marriage as distinct from all agreement to marry at sonic future time.
With the requireinent of public marriage in England and Ireland. the canonical rule that an agreement to marry followed by concubitqs is marriage has been abrogated. In Scotland the rule is maintained. In the United States there is a conflict of authorities. Even at the canon law the rule was based on a presumption that consent in pr.( sent i had intervened. but this pre sumption was not rebuttable. Some of the Ameri can courts treat the presumption as rebuttable; a few decline to recognize the rule. Of course neither in Scotland no• in the United States will a relation which was originally meretricious be transformed into marriage by a promise to marry ; no• was any such result recoplized by the Cath olic Church. In accordance with the CO111111011 rules, the common-law ages of consent are fourteen and twelve. If either party, by reason of idiocy, im becility, o• insanity. does not comprehend the na ture and effect of the marriage contract, there is no marriage; hut if the lack of comprehension is clue to intoxication. the marriage is not void, but only voidable. _Mistake, as at canon law, must be of such a character that there was really no con sent. As regards fraud, the English courts follow the Roman ecclesiastical rule, that fraud per sr is not a ground for annulling a marriage. As Sir F. Id. Jenne said (ill Moss rs. Moss. 1897, P. 1). 268), where marriage is said to be for fraud, it is really annulled because of the absenee of consent. The Amerivan courts. however. are inclined to admit that a marriage may N. an nulled by fraud, and they are especially inclined to admit such an annulment if the marriage has not been eonsummated.