SECT. 3.-HOW FAR THE CANONS ARE BINDING IN ENGLAND. All the obligation of the canon law in this kingdom depends upon its having been received and admitted by parliament, or upon immemorial usage and custom.(i) There are no canons forming a part of the law of England, except such as have already been incorporated into it.(k) By the statute 25 H. 8, c. 19, s. 7, repealed by the statute 1 & 2 Ph. & M. c. 8, and afterwards revived by the statute 1 Eliz. c. 1, it was provided, "that such canons, constitutions, *ordinances, [ *23 ] and synodals provincials already made, which be not con trariant to the laws, statutes, and customs of the realm, nor to the hurt of the king's prerogative, shall be used as before the said act, till otherwise ordered by thirty-two persons to be appointed according to the said act." And by the second section of the same statute, the king may nominate and assign at his pleasure thirty-two persons of his subjects, sixteen of the clergy, and sixteen of the temporalty of upper and nether house of parliament, who shall have power to examine canons, &c. before made; and such as the king and the major part of them shall deem worthy to be continued shall be obeyed, so that the king's consent under the great seal be first had to the same, and the residue shall be void. But it was provided that no canons, constitutions, or ordinances should be put in execution in this realmby authority of the convocation of the clergy, which should be repugnant to the king's prerogative, or the customs, laws, or statutes of the realm.(1) By stat. 3 & 4 Edw. 6, c. 11, the king was authorised during three years, by the advice of his council, to name thirty two persons to examine the ecclesiastical laws, and compile such laws not contrary to any common law or statute of the realm, as should be thought convenient for the spiritual courts. The commissioners appointed under this act, digested a work according to the method of the Roman decretals, and entitled Reformatio Legum Ecclesiasticarum.(m) But in consequence of the king's death before he had assented to the plan it fell to the ground, and was never afterwards resumed,(n) so that the authority of the canon law in England now depends upon the stat. 25 H. 8, c. 19.(o) The convocation,(p) with the license of the crown under the great seal, may make canons in ecclesiastical matters, but cannot infringe the common law, statute law, or the king's prerogative.(q) The clergy are bound by canons confirmed by the king only, [ *24 ] but they must be confirmed by parliament to bind the laity.(r) All material ordinances or regulations made since the reformation for binding the laity as well as the clergy in mere ecclesiastical mat (i) Hale's Hist. C. L. 26-29. (k) 8 T. R. 414; Vaugh. 327. (1) See 27 Hen. 8, c. 15, 35 Hen. 8, c. 16, statutes of the realm. See Vin. Abr. Canons; Com. Dig. Canons. (n) Lond. 4to. 1640, De Matrimonio, p. ; De Adulteriis et Divortiis, 47-56; 7 Lingard's Hist. 127-129, 8vo. ed. (p) See Com. Dig. Convocation. (r) Carth. 485; Salk. 412; 12 Co. 73; 2 Vent. 43; 1 P. Wms. 32. ters, have uniformly been enacted or confirmed by parliament. The several acts of uniformity are instances which may be mentioned. Although those matters were first considered in convocation, yet that body was only regarded as an assembly of learned men, able and proper to prepare and propound such regulations, but not to enact and give them force.(s) The convocation for the province of Canterbury, which was held in London in the year 1603, in the first year of the reign of King James I., by the king's writ had a license under the great seal to agree to such canons as they should think fit; whereupon they made several canons concerning the government of the church, religion, the clergy, &c., which had the royal assent.(t) Questions have been raised how far the laity were bound by these canons, which were never confirmed by parliament, although the clergy are clearly bound by them.(u) In Middleton v. Crofts,(x) the judges were all of opinion that the canons of 1603,(y) not having been confirmed by parliament, do not proprio vigore, by their own force and authority, bind the laity; but there are some provisions contained in those canons which are declaratory of the ancient usage and law of the church of England, received and allowed here, which in that respect, and by virtue of such ancient allowance, will bind the laity; but that is [ *25 ] an obligation antecedent to, and not arising from, that body of canons. No ecclesiastical person can dispense with a canon, for they are obliged to pursue the directions in them with the utmost exactness, and it is in the power of the crown only to do it.(z) (s) Middleton v. Crofts, 2 Atk. 657; Str. 1056. It was resolved in parliament, 15th December, 1640, that the clergy of England convented in any convocation or synod, or otherwise, have no power to make any constitutions, canons, or acts whatever in matter of doctrine, discipline, or otherwise, to bind the clergy or laity of the land, without common consent of parliament. It was also resolved that the canons of 1640 do not bind the clergy or laity of this land, or either of them.-3 Rushworth, 1365; see ib. 1187; 4 ib. 112. (t) See Gibs. Cod. 993. (u) Priestley v. Lamb, 6 Ves. 423. See 3 Phill. R. 268. (x) 2 Atk. 653; Str. 1056. See 6 Mod. 190; 2 Barnard. B. R. 353. (y) It should seem that the canons of 1603 were originally framed in Latin, and the English translation is in some parts not by any means accurate. The original text should be always consulted in any case of apparent ambiguity.-2 Addams Rep. 189, n. (z) More v. More, 2 Atk. 158. [ *26 ] SHELFORD ON MARRIAGE AND DIVORCE. CHAPTER II. OF MARRIAGES NOT WITHIN THE GENERAL MARRIAGE ACTS. SECT. 1. Of Marriages in England before the first Marriage Act 2. Of Marriages of the Royal Family 3. Of Marriages in the British Colonies 7. Of Marriages in Scotland 8. Of Foreign Marriages SECT. 1.-OF MARRIAGES IN ENGLAND BEFORE THE FIRST MARRIAGE ACT. Marriage Contracts.]—The legal validity of marriages, previous to the first marriage act, (a) depended upon the doctrine of the ecclesiastical courts. Matrimonial contracts or spousals were divided into contracts per verba de futuro, and contracts per verba de præsenti ; and contracts of the former description, when followed by carnal intercourse, were commonly considered equivalent in legal effect to contracts per verba de præsenti.(b) A contract per verba de præsenti though not attended by consummation, was sufficient to avoid a second marriage, though followed by consummation.(c) appears, Espousals are thus defined by Swinburne :-Sponsalia sunt mutua repromissio futurarum nuptiarum, ritè, inter eos, quibus jure licet, facta. Spousals are a mutual promise of future marriage, being duly made between those persons, to whom it is lawful. From which it 1st, that this promise must be mutual; 2dly, that it must be made ritè or duly; 3dly, that it must be entered into by those who may lawfully marry.(d) These contracts were either de futuro or de præsenti. [ *27 ] The former a mutual promise of marriage to be had afterwards, *as when a man said to the woman," I will take thee to my wife," and she answered, "I will take thee to my. husband." Spousals de præsenti were a mutual promise of present matrimony, as when the man said to the woman," I do take thee to my wife," who then answered, "I do take thee to my husband.(e) By the early law, until the council of Trent passed its decree for the reformation of marriage, the consent of two parties, expressed in words of present mutual acceptance, constituted an actual and legal marriage, technically known by the name sponsalia per verba de præsenti, improperly enough, because sponsalia, in the original and classical meaning of the word, are preliminary ceremonies of marriage. The expression, however, was constantly used in succeeding times to signify clandestine marriages, that is, marriages unattended by the prescribed ecclesiastical solemnities, in opposition, first, to regular marriages; secondly to mere engagements for a future marriage, which were termed sponsalia per verba de futuro, a distinction of sponsulia not known to the Roman civil law.(f) (a) 26 Geo. 2, c. 33. (c) 2 Hagg. Cons. Rep. 66. (c) Bunting v. Lepingwell, 4 Co. R. 29. (d) Swinburne on Spousals, 5. (e) Swinburne on Spousals, 8; 2 Hagg. Cons R. 66. 82. 87. (f) Dalrymple v. Dalrymple, 2 Hagg. Cons. R. 62-65. Regular and irregular Marriages.]-Different rules, relative to their respective effects in point of legal consequence, applied to these three cases of regular marriages-of irregular marriages-and of mere promises or engagements. In the regularmarriage every thing was presumed to be complete and consummated, both in substance and in ceremony. In the irregular marriage every thing was presumed to be complete and consummated in substance, but not in ceremony; and the ceremony was enjoined to be undergone as matter of order. In the promise or sponsalia de futuro, nothing was presumed to be complete or consummate either in substance or ceremony. Mutual consent would release the parties from their engagement: and one party, without the consent of the other, might contract a valid marriage, regularly or irregularly, with another person; but if the parties who had exchanged the promise had carnal intercourse with each other, the effect of that carnal intercourse was to interpose a presumption of *present consent at the time of the inter[ *28 ] course, to convert the engagement into an irregular marriage, and to produce all the consequences attributable to that species of matrimonial connection. In proceedings under the canon law, though it is usual to plead consummation, it is not necessary to prove it, because it is always to be presumed in parties not shown to be disabled by original infirmity of body. In the case of a marriage per verba de præsenti, the parties there also deliberately accepted the relation of husband and wife, and consummation was presumed as naturally following the acceptance of that relation, unless controverted in like manner. But a promise per verba de futuro looked to a future time; the marriage which it contemplated might never take place. It was defeasible in various ways; and therefore consummation was not to be presumed: it must either have been proved or admitted. Till that was done the relation of husband and wife was not contracted; it must be a promise cum copulâ, that implied a present acceptance and created a valid contract founded upon it.(g) Previously to the first marriage act, when a contract of marriage was proved, the ecclesiastical court would compel the party to solemnize the marriage in the church.(h) The marriage acts(i) enact, that in no case whatever shall any suit or proceedings be had in any Ecclesiastical court, in order to compel a celebration of any marriage in facie ecclesiæ, by reason of any contract of matrimony whatsoever, whether per verba de præsenti or per verba de futuro. By 58 Geo. 3, c. 81, s. 3, it is provided, that there shall be no proceeding in any ecclesiastical court in Ireland to compel a celebration of a marriage in facie ecclesiæ, by reason of any contract. The first marriage act, 26 Geo. 2, c. 33, swept away the whole subject of irregular marriages in England, by establishing the necessity of resorting to a public and regular form, without which the relation of husband and wife could not be contracted.(k) (g) Dalrymple v. Dalrymple, 2 Hagg. 82. Cons. R. 65-67; Dodson, 14-16. (i) 26 Geo. 2, c. 33, s. 13; 4 Geo. 4, c. 76, (h) Baxtar v. Buckley, 1 Lee's R. 42; s. 27. Oughton, tit. 209, et seq.; 2 Hagg. Cons. R. (k) 2 Hagg. Cons. R. 70. [ *29 ] *The validity, however, of marriages in Ireland, and in some of the British colonies, is still decided according to the laws of this country as they existed before the marriage act: it will be proper therefore to devote a few pages to the consideration of that subject. Ancient Mode of Solemnization.]-Solemnization of marriage was not used in the church before the ordinance of Pope Innocent the Third, who filled the papal chair from 1198 to 1216, before which the man came to the house where the woman inhabited, and carried her with him to his house, and this was all the ceremony.(1) It is said that a marriage by a priest, in a place which is not a church or chapel, and without any solemnity of the celebration of mass, was a good marriage.(m) But in Foxcroft's case,(n) where a man, infirm in bed, was privately married to a woman enceinte by him, by the Bishop of London, without the celebration of any mass, the marriage was held void, and a son born within twelve weeks after the marriage was adjudged to be a bastard. Marriages were formerly performed in a great many houses within the liberty of the Fleet, and were valid.(0) Directions in the Rubric.]-The Rubric, which is that part of the Book of Common Prayer which contains directions for the performance of the different offices of religion, is clearly of binding obligation and authority, having been confirmed by acts of parliament. Anciently, and before the Reformation, various liturgies were used in this country; and it should seem as if each bishop might, in his own particular diocese, direct the form in which the public service was to be performed; but after the Reformation, in the reigns of Edward the Sixth and Queen Elizabeth, acts of Uniformity passed, which established a particular liturgy to be used throughout the kingdom.(p) King James the First made some alteration in the liturgy. Immediately upon the Restoration the Book of Common Prayer was revised. An attempt was then made to render [ *30] it *satisfactory both to the church itself and to those who dissented from the church, particularly to the Presbyterians; and for that purpose conferences were held at the Savoy; but the other party requiring an entire new liturgy on an entire new plan, the conference broke up without success. The liturgy was then revised by the two houses of convocation; it was approved by the king; it was presented to the parliament, and an act passed confirming it, (q) being the last act upon the subject; and so it stands confirmed to this day, except so far as any alteration may have been produced by the toleration act, or by any subsequent statutes.(r) By the act of toleration(s) it was declared, that no person taking the prescribed oaths should be prosecuted for non-conformity to the Church of England. A question seems to have been raised, whether this act authorized the marriage of dissenters in their own congregation, after the publication of banns, (1) Bunting's case, Moore, 170; Vin. Abr. Marriage (F). Of the marriage rites observed in the ancient church, see Bingham's Antiquities of the Christian Church, book 22, vol. 7, 8vo. ed. 1829, pp. 203-277. (m) Roll. Abr. 341, pl. 21 ; Vin. Abr. Baron, and Feme (A), pl. 21. (n) Vin. Abr. Bastard (B), pl. 18. |