[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").