Marriage-Law of England
On the 17th of March, 1835, Dr. Lushington, in the House of Commons, stated the history and principle of the Marriage Law of England thus—“By the ancient law of this country as to marriages, a marriage was good if celebrated in the presence of two witnesses, though without the intervention of a priest. But then came the decision of the Council of Trent rendering the solemnization by a priest necessary. At the Reformation we refused to accept the provision of the Council of Trent; and in consequence, the question was reduced to this state—that a marriage by civil contract was valid. But there was this extraordinary anomaly in the law, that the practice of some of our civil courts required, in certain instances and for some purposes, that the marriage should be celebrated in a particular form. It turned out that a marriage by civil contract was valid for some purposes, while for others—such as the descent of the real property to the heirs of the marriage—it was invalid. Thus, a man in the presence of a witness, accepting a woman for his wife, per verba de præsenti, the marriage was valid, as I have said, for some purposes, but for others to make it valid it was necessary that it should be celebrated in facie ecclesiæ. This was the state of the law till the passing of the Marriage Act in 1754.”
“Marriage, in its origin, (says Lord Stowell,) is a contract of natural law: it may exist between two individuals of different sexes although no third person existed in the world, as happened in the case of the common ancestors of mankind. In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil consequences. In most civilized countries, acting under a sense of the force of sacred obligations, it has had the sanction of religion superadded. It then becomes a religious as well as a natural and civil contract; for it is a great mistake to suppose that, because it is the one, it may not likewise be the other.”—(2 Hagg. Cons. Rep. 63.)