[963] In all the early rituals the benediction is not allowed in case of a second marriage, at any rate unless the first marriage of one or both of the parties had not been blessed by the priest; and long paragraphs of the service are devoted to explaining the alleged reasons for this, and to the still harder task of showing how a second marriage can be a sacrament and yet less holy than a first marriage. This dilemma led to curious compromises, as in the service used at the marriage of King Ethelwulf with Judith, his father's widow, in the year 856; see the service in Pertz, Monumenta, leg., I, 420; and Dieckhoff, Die kirch. Trauung, 73, 74. On this topic compare the York, Sarum, and Hereford rituals in Surtees Society Publications, LXIII, 35-37, Appendix, 23, 24, 117, 118; and the Sarum (Salisbury) ritual in Maskell, Monumenta ritualia, I, 71-74; also Rituale romanum Pauli Quinti, 198; Martene, De ritibus, II, 121, 122; Excerp. Ecgberti, 91: in Thorpe, II, 110; Aelfric's Canons, 9; ibid., II, 347; Friedberg, Eheschliessung, 36; Schmid, Gesetze, 562; Bohn, Pol. Cyc., III, 319. Selden, Uxor ebraica, II, c. 30, maintains that the practice of celebrating nuptials before a priest was not general among primitive Christians. This is declared an error by Bingham, Origines, VII, 328 ff., who, like Dieckhoff and most ecclesiastical writers, holds that the custom was general and obligatory.

[964] Sohm, Eheschliessung, 107 ff., 153 ff.; idem, Zur Trauungsfrage, 10 ff.; idem, Obligat. Civilehe, 25 ff. In substantial agreement with Sohm are Loening, Gesch. des deutsch. Kirchenrechts, II, 569-606: Friedberg, "Zur Geschichte," ZKR., I, 374 ff.; Biener, "Beiträge," ibid., XX, 119-47; Scheurl, Entwicklung, 110 ff. Cf. Beauchet, Étude, 30 ff.; Spirgatis, Verlobung und Trauung, 4 ff.; Schubert, Die evangel. Trauung, 14 ff.; Kliefoth, Liturgische Abhandlungen (2d ed., 1869), I, 136 ff.

[965] Dieckhoff, Die kirch. Trauung, 29 ff., 45, 46 ff., 65 ff.; idem, Civilehe und kirch. Trauung, 14 ff. Much earlier, Moy, Eherecht der Christen, 216, 217, had taken the same view.

[966] Dieckhoff, Die kirch. Trauung, 35 ff.: sacramentaria of Popes Leo, Gelasius, and Gregory I. These, he thinks, show not merely a "divine benediction of the marriage already concluded, but essentially a divine joining in marriage." These services are also contained in Daniel, Codex liturgicus, I, 257 ff.; and that of Gelasius in Martene, De ritibus, II, 127.

[967] Charles the Great in the Capitulary of 802, c. 35, Walter, Corpus juris germ., II, 167, prescribes the benediction of the nuptials by a priest; but this is thought to have had little effect. The benediction is also required by several false capitularies: Friedberg, Eheschliessung, 58, 59. On this decree of 802 see also Schubert, Die evangel. Trauung, 19; Beauchet, Étude, 30, 31.

[968] Surtees Society Publications, LXIII, Appendix, 157 ff. In the Ordo of Archbishop Egbert, for instance, a blessing is invoked upon the parties, the bridal chamber, and the marriage bed; and the other Ordines there printed are of the same general character.

[969] It need not surprise us that these phases of evolution chronologically overlap each other; for social development is seldom uniform.

[970] Haustrauung: Sohm, Eheschliessung, 158.

[971] Also ad valvas ecclesiae, in facie ecclesiae, in conspectu ecclesiae, ad fores ecclesiae, etc.

[972] "By performing the civil rite outside the walls of the church they declared the fundamental nature of the matrimonial contract, and asserted the doctrine of the common law of the land respecting its meaning and purpose."—Jeaffreson, Brides and Bridals, I, 53. This view is of course rejected by Dieckhoff, Die kirch. Trauung, 76, note, 79 ff., who regards the ecclesiastical transaction as a real ecclesiastical celebration necessary to the marriage in the eyes of the church. Cf. Bierling, "Kleine Beiträge," ZKR., XVI, 288 ff., who criticises Dieckhoff (Civilehe und kirch. Trauung), and agrees with Sohm (Zur Trauungsfrage, 10) that the ecclesiastical transaction must not be confused with ecclesiastical marriage.

[973] Glanville, Tractatus, lib. vi, c. 1: Phillips, II, 381. "The term dower is used in two senses. Dower in the sense in which it is commonly used means that which any free man at the time of his being affianced (tempore desponsationis) gives to his bride at the church door": Glanville, vi, c. 1, as translated by John Beames (London, 1812). Cf. also Selden, Fleta, lib. v, c. 23, pp. 340, 341; Bracton, De legibus, lib. ii, c. 39 (fol. 92), Vol. II, 48; Horne, The Mirror of Justices (ed. Whittaker, London, 1895), 11; Fitzherbert, New Natura Brevium (Dublin, 1793), 352 (150); Hengham, Summa parva, c. ii: "Brevia de dote ad ostium ecclesiae;" Selden, Uxor ebraica, 198, or in Opera, III, 680.

That the gifta, or celebration as a temporal act, should take place before the church door is thoroughly in harmony with the early view that there purification or preparation should be made for the rites or service within the sanctuary. The atrium sometimes seems to be regarded as the medial ground between the world on the one hand and the sacred temple of God on the other; see, for example, Old Eng. Homilies, I, 72, 73: children are to be baptized in holy church, "and their godfathers and godmothers are to answer for them at the church-door, and enter into pledges (covenants) at the font-stone, that they should be believing (faithful) men." This passage is referred to in Mätzner, Altenglisch. Sprachproben (Berlin, 1878), II, 578, at "chirchedure." Gregory, in his Pastoral Care, 104, 105, referring to the brazen basins before the Temple supported by twelve oxen, says the bishops when they "descend to wash the sins of their neighbors, when they confess, they support, as it were, the basin before the church-door." According to the Capitula et fragmenta Theodori, Thorpe, Ancient Laws (folio), 313, "Si in atrio ecclesiae quislibet injuriaverit aliquem presbyterum, vel ibidem aliquod sacrilegium perpetraverit, altari et Domino componatur." With this compare Æthelred, Laws, VII, 13: Thorpe, Ancient Laws (folio), 142; Grimm, Wörterbuch, s. v. "Kirchthor;" Murray, New Eng. Dict., Part V, 406, at "church-door;" Ormulum, I, 43, ll. 1326, 1327; Chaucer, Prolog., 460: "Housbondes at chirche dore she hadde fyve." See also Warnkönig and Stein, Französische Verfassungsgeschichte, II, 257; Weinhold, Deutsche Frauen, I, 377, 378; Whitgift, Works, II, 461-64; Brand, Pop. Ant., II, 133-35; Jeaffreson, Brides and Bridals, I, 46-59; Spirgatis, Verlobung und Trauung, 20, 21; Schubert, Die evangel. Trauung, 20.

[974] Léon Gautier, La chevalerie, 424 n. 3: ap. Martene, De ritibus, who says: "Nuptiae communiter solent celebrari ad valvas ecclesiae;" and places before us abundant proof in the sixteen ordines which he publishes, ibid., II, 127-44. Gautier cites also Étienne de Bourbon, ed. of Lecoy de la Marche, 366: "Cum duceretur ... ad parrochiam ... et esset sub porticu ecclesiae ut sponsa sua ei consentiret et matrimonium ratificaretur per verba de praesenti, ut moris est, et sic in ecclesia matrimonium solempnizaretur in misse celebratione et aliis." The same writer makes a thorough examination of the "Pontifical ou rituel de lire" (published by Martene, II, coll. 356-59, who assigns it to the twelfth century), comparing it with other rituals, with illustrations and proofs from many sources. In chaps. ix to xi inclusive, entitled "Le mariage du chevalier" (op. cit., 341-450), Gautier gives a learned and most interesting discussion of mediæval marriage rites and customs. Compare Daniel, Codex liturgicus; and the summaries in Palmer, Origines liturgicae, I, 106 ff.

[975] See Sohm, Eheschliessung, 153-63; and Friedberg, Eheschliessung, 37, 38, who reach this conclusion from an examination of the various English and continental rituals; especially the ritual of Rennes, ca. eleventh century, in Martene, II, 127; also Sohm, op. cit., 159, 160; Dieckhoff, Die kirch. Trauung, 77, 78.

[976] "Manual ad usum Sarum," in Surtees Society Publications, LXIII, Appendix, 17-20; also in Maskell, Monumenta ritualia, I, 50-77. Compare the rituals of York, Hereford, and the others contained in Surtees Society Publications, LXIII, 24 ff., 115 ff., 160 ff.; also the "Rituel de lire" in Léon Gautier, La chevalerie, 424-31, as summarized in capitals in the margin; and the ritual of Rennes in Martene, De ritibus, II, 127; or in Sohm, Eheschliessung, 159, 160: "In primis veniat sacerdos ante ostium ecclesiae indutus alba atque stola cum benedicta aqua; qua aspersa, interroget eos sapienter, utrum legaliter copulari velint, et quaerat quomodo parentes non sint, et doceat quomodo simul in lege Domini vivere debeant. Deinde faciat parentes secuti mos est dare eam, atque sponsum dotalitium dividere, cunctisque audientibus legere, ipsumque suae sponsae libenter dare.... Qua finita, intrando in ecclesiam, missam incipiat," etc.

[977] Liturgy of Edward VI. (Parker Society), 127; Liturgy of Elizabeth (Parker Society), 217. Compare Whitgift, Defence of the Answer, II, 462, where he defends the requirement of the "book," that "persons to be married shall come into the body of the church, with their friends and neighbours, there to be married," against Thomas Cartwright in his Reply to the Answer, 105, sec. 2, who ridicules the prescribed ceremonial. "Likewise for marriage," says Cartwright, "he (the priest) cometh back again into the body of the church, and for baptism unto the church-door: what comeliness, what decency, what edifying in this? Decency (I say) in running and trudging from place to place: edifying in standing in that place, and after that sort, where he can worst be heard and understanded."

[978] This is next to the oldest mention, after the Germanic conquest, of the priestly benediction; the first is the marriage of Judith to the Saxon king Æthelwulf, 856, elsewhere mentioned.

[979] Schmid, Anhang VI, 392, 393: Thorpe, I, 255, 257.

[980] Friedberg, Eheschliessung, 35; compare Lingard, History and Antiquities of the Anglo-Saxon Church, II, 7-11, who gives the form of benediction.

[981] Sohm, Eheschliessung, 100 n. 60. This view is of course opposed by Dieckhoff, Die kirch. Trauung, 69 ff.

[982] Lingard, op. cit., II, 10, note; ap. Wilkins, Conc., I, 582.

[983] Surtees Society Publications, LXIII, Appendix, 160, 161. See also the "Benedictio annuli, sponsi et sponsae" from the Ely Pontifical, Cambridge University library, of the twelfth century, ibid., 161, 162, in which the priest leads in blessing the ring, assigning the dower, and directing the "giving" of the woman. It is probably a part of a very early ritual.

[984] See the rituals of Rennes, ca. eleventh century, and de lire, twelfth century, already referred to.

[985] "Statuantur vir et mulier ante ostium ecclesiae coram Deo et sacerdote et populo, vir a dextris mulieris et mulier a sinistris viri": York manual, in Surtees Society Publications, LXIII, 24. Cf. the Sarum, Hereford, and Welsh rituals, ibid., Appendix, 17, 115, 167; also the Sarum ritual in Maskell, I, 50. All these place the man on the right of the woman; but in "one MS. Manual of Sarum Use (early XVth century)," the woman "stands on the right hand of the man": Henderson, in preface to Surtees Society Publications, LXIII, xviii, xix.

[986] Compare the similar provisions, in more archaic words, in the Salisbury manual in the British Museum: Maskell, Monumenta ritualia, I, 52-54, margin; and the Latin form there given in the text.

[987] The words in the brackets in the formulæ for both parties are added in the Cambridge MS. of the York ritual.

[988] It will be noted that in the Cambridge MS. both the man and the woman promise to "worship." The same is true of the manuscript Salisbury ritual in the British Museum: Maskell, op. cit., I, 53.

[989] This provision is found in all these early rituals. Cf. Léon Gautier, La chevalerie, 427, note.

[990] This formula is common to the early rituals. It is omitted in the modern service of the English church, but retained in the present Roman ritual: Bingham The Christian Marriage Ceremony, 180.

[991] "Et ibi dimittat annulum secundum decretum xxx. quaestione v. Feminae, ad finem: quia in medico est quaedam vena procedens usque ad cor": p. 27. Cf. Gratian's Decretum, in Richter-Friedberg, Corpus jur. can., I. The "vein extending to the heart" is likewise mentioned in the rituals of Hereford and Sarum, and in the Welsh ritual of the fifteenth century. The Sarum ritual adds: "et in sonoritate argenti designatur interna dilectio, quae semper inter eos debet esse recens": Surtees Society Publications, LXIII, Appendix, 20.

[992] Thus a "MS. Manual of Sarum Use" provides, "whether there is land in the doury or not": "Tunc procidat sponsa ante pedes ejus, et deosculetur pedem ejus dextrum; tunc erigat eam sponsus": Surtees Society Publications, LXIII, 20, note; and Henderson, ibid., xix. On the York and Sarum rituals see Selden, Uxor ebraica, 193 ff.; and the points discussed are all illustrated in the Ordines published in Martene.

[993] This ritual also provides a form for the priestly blessing of the bridal chamber (benedictio thalami) and the nuptial couch: "Nocte vero sequenti cum sponsus et sponsa ad lectum pervenerint, accedat Sacerdos et benedicat thalamum;" the blessing concluding with the direction: "Tunc secundum morem antiquum thurificentur torus et thalamus": 39, 40. Similar forms are given in the Hereford, Sarum, and Bangor rituals: Surtees Society Publications, LXIII, Appendix, 25, 26, 120; Maskell, I, 76, 77 n. 47.

[994] For a good summary of the Sarum and other rituals see Friedberg, Eheschliessung, 36 ff.; and see the ceremonies of 1502 and 1554, in the "Gentlemen's Magazine Library," Manners and Customs, 57.

[995] Thus a manuscript manual of Salisbury use has this "curious addition;" the priest says: "Loo this gold and this siluer is leyd doun in signifyinge that the woman schal haue hure dower, thi goodes, zif heo abide aftur thy disces": fol. 17; ap. Maskell, Monumenta ritualia, I, 58 n. 14. Léon Gautier finds in the similar French custom a "reminiscence" of the marriage per solidum et denarium of the Salic law. "When the bridegroom pronounces these words: 'De mon bien je vous doue,' he delicately places in the little purse of the bride three pretty pieces of money, three new deniers. Not being able to put into her hands the fields, woods, and manors constituting the dower, he gives her its symbol. They went so far on account of this usage as to coin special deniers, 'deniers pour espouser'": La chevalerie, 428.

[996] "I pronounce that they be man and wife together, in the name of the Father," etc.: Ritual of the English church, in Bingham, Christian Marriage Ceremony, 166. "I join you together in marriage," etc.: Roman ritual, ibid., 178. The presence of similar phrases in all our modern ceremonies, civil or religious, is a striking proof of the essential difference between the function of the magistrate or priest now and that of his mediæval predecessor.

[997] Léon Gautier, La chevalerie, 426 n. 1; ap. Martene, De ritibus.

[998] Sohm, Eheschliessung, 164 ff., 67 ff.; cf. Friedberg, Eheschliessung, 94 ff.

[999] Sohm, op. cit., 164.

[1000] Ibid., 164 ff., 179 ff.

[1001] The ecclesiastical act, Handlung, was old; the ecclesiastical nuptials, geistliche Trauung, was new. This is Sohm's view, op. cit., 179 ff., 183, as opposed to Friedberg, Eheschliessung, 85.

[1002] "Tunc sacerdos det eam viro dicens verbis latinis: Et ego conjungo vos in nomine Patris et Filii et Spiritus Sancti. Amen": quoted in Sohm, op. cit., 165, 166, from a Rouen ritual of the fourteenth century in Martene's collection. Dieckhoff, Die kirch. Trauung, 82 ff., takes a different view. The Rouen ritual, he holds, is not a typical service. The priest does not now gain an essentially new function at the nuptials. His office has always been necessary to a Christian marriage. In addition to his original power of joining in wedlock, he merely adds the function exercised by the father or guardian in the formal tradition. Moreover, Dieckhoff's position is supported by some rituals, which seem to show that development on the continent was not uniform in this regard. Cf. Scheurl, Entwicklung, 110 ff., who discusses the divergent views of Sohm and Friedberg.

The last stage of evolution has not yet been reached in the eastern church. In the presence of the priest the bride and groom betroth and give themselves in marriage. The priest merely prays and blesses: Sohm, Zur Trauungsfrage, 19 ff.; Zhishman, Das Eherecht, 128, 135, 692 n. 1, 694 n. 1. For the marriage ritual of the Greek church see Martene, De ritibus, II, 140-44.

[1003] Pointed out by Sohm, Eheschliessung, 164, 165.

[1004] Surtees Society Publications, LXIII, 26.

[1005] "Who giveth this woman to be married to this man? Then shall they give their troth to each other in this manner. The minister receiving the woman at her father's or friend's hands," etc.: Bingham, The Christian Marriage Ceremony, 164.

[1006] Thus the Hereford ritual simply says, after declaration of the dower, "et pater vel propinquus mulieris accipiat eam, et tradat homini per manum dexteram" (Surtees Society Publications, LXIII, Appendix, 116). Similarly the Pontifical of Anianus, bishop of Bangor, of the thirteenth century declares, "Primo dicatur (dos) feminae, deinde detur" (ibid., 162); and this form agrees substantially with that of the Hanley Castle Missal of the same period (ibid., 163). In the ritual of the fifteenth-century Harleian MS., in the British Museum, after asking the banns, "the woman shall be given in this manner: Sacerdos utriusque manu dextera apprehensa, jungat eos similiter, sicut faciunt qui fide se obligant" (ibid., 166); but here, of course, the words "jungat eos" are not words of power, for they precede the marriage vow of the parties. According to the Welsh ritual of the fifteenth century, "the woman is given by her father or by another friend" (ibid., 167); and this form is observed in the Sarum liturgy published both by Maskell (Monumenta, I, 56), and the Surtees Society (LXIII, Appendix, 19), while in one MS. of the same service the words "deinde detur [Ecclesiae] femina a patre suo, vel ab amicis ejus" (ibid., loc. cit., 19) appear, thus in effect agreeing with the form of the York manual. An interesting variation occurs in the Pontifical of Magdalen College, Oxford, of the twelfth century, where the priest does not receive the woman from her guardian, but joins with him in giving her to the husband: "Sacerdos et patronus sponsae dent ipsam sponso per dexteram" (ibid., 160). A ritual of Arles (ca. 1300) affords evidence of a similar transition in the form of tradition: see the extract in Sohm, Eheschliessung, 165 n. 27; and compare on this subject Friedberg, Eheschliessung, 38, 62. On the English celebration cf. Jeaffreson, Brides and Bridals, I, 88-98.

[1007] In general, for the canons relating to the priestly benediction and the ecclesiastical celebration see Johnson, Collection of the Laws and Canons of the Church of England, I, 202; II, 19, 27, 64, 89, 91, 340, 395, 410; Pemberton's historical summary in 10 Clark and Finnelly, 616 ff.; and the summaries of Maskell, Monumenta ritualia, I, cclxiv-ix; and Makower, Const. Hist. of Church of England, 213, 214 n. 5. For the early period see the collections of Thorpe, Schmid, Haddan and Stubbs, and Wilkins. An excellent discussion of the subject is given by Pollock and Maitland, Hist. Eng. Law, II, 364 ff.; and a very detailed treatment in Friedberg's Eheschliessung, 33 ff., 309 ff.

[1008] Poenit. Theod., Book I, c. 14, §1: Haddan and Stubbs, Councils, III, 187; Makower, Const. Hist. Church of Eng., 213, 214 n. 5.

[1009] Schmid, Gesetze, Anhang VI, 392, 393; Thorpe, Ancient Laws, I, 255-57; Makower, loc. cit. Cf. also the Excerptiones Ecgberti, c. 90 (or 88), Thorpe, II, 110, reproducing a canon of the Council of Carthage requiring that "the bridegroom and bride be offered by the parents, and bridefolk, to receive the priest's benediction": Johnson's Canons, I, 202, and the so-called Canones Ælfrici (A. D. 992-1001), sec. 9, in Thorpe, II, 347, declaring that "the layman may, however, with the apostle's leave take a wife a second time; if his wife falls away from him; but the canons forbid blessing thereto and have ordered such men to do penance": Makower, loc. cit.

[1010] "Praeterea statutum est, ut nullus filiam suam, vel cognatam, det alicui, absque benedictione sacerdotali. Si aliter feceret, non ut legitimum conjugium, sed ut fornicatorium, judicabitur."—Parker, De antiquitate britannicae ecclesiae (London, 1729), 173; also Wilkins, Concilia, I, 367; Makower, loc. cit.; and translated in Johnson's Canons, II, 19. Cf. Pollock and Maitland, Hist. Eng. Law, II, 368 n. 2.

[1011] "Ut fides inter virum et mulierem, occulte et sine testibus, de conjugio data, si ab alterutro negata fuerit, irrata habeatur."—Wilkins, Concilia, I, 382; Johnson, Canons, II, 27; Makower, loc. cit.

[1012] Johnson, Canons, II, 64.

[1013] Ibid., 91.

[1014] Especially the constitution of Reynolds, 1322; that of Stratford, 1343; and that of Zouche, 1347: ibid., 340, 341, 395, 410, 411.

[1015] Friedberg, Eheschliessung, 39, note, gives a list of the authors making this mistake. "This belief is stated by Blackstone, Comment., I, 439, and was in his time traditional among English lawyers. Apparently it can be traced to Dr. Goldingham, a canonist who was consulted in the case of Bunting v. Lepingwell (Moore's Reports, 169)": Pollock and Maitland, Hist. of Eng. Law, II, 368, 369, note; Friedberg, op. cit., 314.

[1016] Even the words of Lanfranc, strong as they are, do not invalidate an unblessed marriage. "He does not say that the union will be mere fornication; he says that it will be coniugium fornicatorium, an unlawful and fornicatory marriage. Lanfranc's words recall those of the Pseudo-Isidorian Evaristus which appear in c. 1, C. 30, q. 5"; Pollock and Maitland, op. cit., II, 368 n. 2; Freisen, Geschichte des can. Eherechts, 139.

[1017] For some account of the distinction between sponsalia de praesenti and de futuro, with references, see the next chapter.

[1018] This epistle sustained a marriage by private consent as against one subsequently contracted and consummated. The opposing view is thus set forth by Pemberton in The Queen v. Millis: "In 1160 Pope Alexander issued edicts in which marriages without the presence of a priest were declared good; but almost immediately afterwards came the canons already cited [those of 1175 and 1200 mentioned in the text], to guard against the abuse of the permission thus given by the pope. But from what follows it is clear that the law which admitted the canon law in other countries, as part of the law of the land, was never adopted in England. In 1253 the attempt was made to introduce the canon law of marriage recognized by the popes, against the ecclesiastical law of England and the answer was the well-known answer that the barons would not consent to have the laws of England changed": 10 Clark and Finnelly, 617. This is a strange perversion of the truth: see Pollock and Maitland, op. cit., II, 370 n. 1.

[1019] Bohn, Pol. Cyc., III, 319, 320. Friedberg, Eheschliessung, 123, 124, gives the text of the decree; and his second book, 101-50, contains an interesting history of the proceedings of the council on the subject of marriage. An English version of the text of the decree may be found in Waterworth, Canons and Decrees of the Council of Trent, 196-99, who also describes the proceedings (ccxxi-xxxvi). Cf. Salis, Die Publikation des trid. Rechts der Eheschliessung, 2 ff.; Fleiner, Die trident. Ehevorschrift, 1 ff.; Esmein, Le mariage en droit canonique, II, 119-37; Madan, Thelyphthora, III, 238 ff. Sohm, Eheschliessung, 187-96, shows that the Tridentinum still maintains the Germanic principle of consensus as the valid marriage.

For the sources see the collections of Theiner and Richter-Schulte and the works of Sarpi and Pallavicino mentioned in Bibliographical Note VII.

[1020] On Scotch marriages see Edgar, Marriages in Olden Times, 134-203; Walton, Scotch Marriages; Geary, Marriage and Family Relations, 534 ff.; Hammick, The Marriage Law, 221 ff.; Friedberg, Eheschliessung, 57, 58, 426, 427, 437-59; Bohn, Pol. Cyc., III, 326; Stephens, Laws of the Clergy, I, 672, 688; Robertson, Encyc. Britannica, XV, 567; Kent, Commentaries, II, 90. Cf. especially the case of Dalrymple v. Dalrymple, in 2 Haggard's Consistory Reports, 54-137.

[1021] See the cases mentioned in the Bibliographical Note at the head of this chapter. Of course, most of the decisions are cited and elaborately discussed by the counsel and judges in Queen v. Millis and Beamish v. Beamish. An important case is given in Harvard Law Review, VI, 11. Cf. Swinburne, Of Spousals, 13, 104, 193, passim; and especially Hale's Precedents and Proceedings in Criminal Laws, 1475-1640, taken from the act-books of ecclesiastical courts in the diocese of London, and containing a mass of most interesting and convincing evidence relating to the subject (see the Index at "Matrimonial Causes").

[1022] For the record of the proceedings in Ireland see Report of the Cases of Regina v. Millis, et Regina v. Carroll in the Queen's Bench in Ireland (Dublin, 1842).

[1023] Bishop, Mar., Div., and Sep., I, §§ 400, 401.

[1024] The case is given in 10 Clark and Finnelly, Reports of Cases Decided in the House of Lords, 534-907. The text of the opinion of the English judges may also be found in Stephens, Laws of the Clergy, I, 675-94. It was ably refuted by Sir John Stoddart in his Observations on the Opinion and his Letter to Lord Brougham (both London, 1844).

[1025] In 1844, by the act of 7 and 8 Victoria, c. 81, the essential features of 6 and 7 Will. IV, c. 85, which had made the public observance of ecclesiastical or civil forms necessary to a valid marriage in England, were extended to Ireland; and this was the result of the excitement caused by the case of the Queen v. Millis of the same year.

[1026] Case of Beamish v. Beamish in 9 House of Lords Cases, 274-358. The report in this case, like that in Queen v. Millis, constitutes an extended history of English matrimonial law.

[1027] In Bright v. Hutton, 3 H. L. C., 391, 392. For his opinion in 1860 see A.-G. v. Dean and Canons of Windsor, 8 H. L. C., 391-93.

[1028] Following Pollock, First Book of Jurisprudence (London, 1896), 311-17.

In general, on these decisions and those preceding see the masterly discussion of Friedberg, Eheschliessung, 39-57, 427, 464 ff. His conclusions are supported by Sohm, Eheschliessung, 125 ff.; Pollock and Maitland, Hist. of Eng. Law, II, 367 ff.; and by the article of Elphinstone, in Law Quarterly Review, V, 49 ff. Compare Reeves, Hist. of the Common Law, IV, 52 ff.; Bishop, Marriage, Divorce, and Separation, II, 171, 172; Kent, Commentaries, II, 87 ff., notes; Bright, Husband and Wife, II, 398. These judgments are regarded as historically just by Dieckhoff, Die kirch. Trauung, 70, note; and Cook, "The Marriage Ceremony in Europe," Atlantic, LXI.