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published according to the discipline of their own congregation. The married parties were libelled in the ecclesiastical court for fornica. tion. A prohibition was granted, in order that the question of law might be tried, but it does not appear what ultimately became of the case.(1)

Marriages are by the Rubric enjoined to be solemnized by a minister; there is to be a previous publication of banns, and other ceremonies to be observed: the laws of the church(u) and the state, by several acts of parliament, prohibited marriage to be performed in any other way; it punished the parties concerned in clandestine marriages, both the minister who solemnized them, and the parties between whom they were solemnized.(v) But notwithstanding all these laws enjoining how a marriage was to be solemnized, and punishing those who solemnized it in any other way, a marriage in a private house between minors was a perfectly valid marriage (notwithstanding it was an irregular, and so far an unlawful marriage) till the marriage act 26 Geo. 2, 33, by direct *and positive terms, expressly declared that such a marriage should be null and void 10 all [ *31 ] intents and purposes.(w) Parties in England, who were desirous of being married clandestinely anterior to that act, were seldom put to any difficulty for lack of a minister, in spite of the penalties and for'feitures.(r) So before the 26 Geo. 2, c. 33, a marriage in a church was as valid without banns or license as with, for although they were requisites fit and proper to be complied with, yet they were not necessary to the validity of the marriage.(y)

The marriages which, during the Commonwealth, were celebrated by justices of the peace, were deemed by the legislature to be invalid; and on the restoration of Charles the Second, an act was passed for the purpose of giving them validity.(z)

Throughout the whole of Christendom there was no religious ceremony connected with marriage, till the time of the Council of Trent; and still in the countries which did not acknowledge the authority of that council, no religious ceremony was essential to marriage, and none was essential in this country till the passing of the first marriage act, 26 Geo. 2, c. 33.

It was held by Holt, C. J.(a) that a contract per verba de presenti, amounts to an actual marriage, which the very parties themselves cannot dissolve by release or other mutual agreement; for it is as much a marriage in the sight of God as if it had been in facie ecclesiæ, with this difference, that if they cohabited before marriage in facie [ 32 ]

(1) Hutchinson and wife v. Brookbanke, 3 other manner than had been formerly used; Lev. 376.

it was enacted that all marriages had and (u) Canon 62

solemnized in any of his majesty's dominions (0) 6 & 7 Will. 3, c. 6; 7 and 8 Will. 3. Since the 1st May, 1642, before any justice c. 35; 10 Ann. c. 19.

of the peace, or reputed justice of the peace, (0) 3 Phill. R. 286, 287.

and all marriages within &c., since the (x) 1 Addams R. 73.

same day had, &c., according to the direc(y) Wright v. Elwood, 1 Curteis, 53; Bac. tion of any act or ordinance of one or both Abr. Marriage (C.)

Houses of Parliament, or of any convention (2) Gibs. Cod. 521; Slate Trials, vol. 20, at Westminster, under the style or title of a 551, 8vo. ed. By statute 12 Car. 2, c. 33, Parliament, should be as valid as if they had (confirmed by 13 Car. 2, c. 11,) after reciting been solemnized according to the rites and that, by virtue or colour of certain ordinances, ceremonies of the Church of England. or pretended acts or ordinances, divers mar. (a) Collins v. Jesson, 2 Salk. 437; 6 Mod. riages, since the beginning of the late trou. 155; Widmore's case, 2 Salk. 438. bles, had been had and solemnized in some

ecclesiæ, they were for *that punishable by ecclesiastical

censures; and if, after such contract, either of them lay with another, they would punish such offender as an adulterer. But a contract per

verba de futuro, which did not intimate an actual marriage, but referred to a future act, might be released.

In Wigmore's case(a) the wife sued in the Spiritual Court for alimony; the husband was an anabaptist, and having obtained a license from the bishop to marry, was married according to the forms of their own religion. Holt, C. J. said, by the canon law a contract per verba de presenti is a marriage, as if I take you to be my wife, so it is of a contract per verba de futuro, viz. I will take, &c. If the contract be executed, and he does take her, it is a marriage, and the ecclesiastical court cannot punish for fornication.

In Weld v. Chamberluyne,(6) on an issue of marriage or no marriage, it appeared that the marriage was before a man who, having been in orders, had been ejected, but no ring was used according to the Common Prayer Book. Pemberton, C. J. inclined to think it a good marriage, there being words of contract de presenti repeated after a parson in orders.(c) Lord Kenyon said, on a question as to a Fleet marriage, “ I think, though I do not speak meaning to be bound, that an agreement between the parties per verba de presenti, was ipsum matrimonium."(d)

Celebration by a Roman Catholic Priest.)-In Rex v. Fielding,(e) a marriage was in England by a Roman Catholic priest in the year 1705, before the marriage act, and upon evidence that the prisoner, in answer to the question, whether he would have the woman for his wedded wife, said that he would ; and that the woman answered affirmatively to the question put to her, whether she would have Mr. Fielding for her husband : Powell, J., upon a trial for bigamy, considered it as a marriage per verba de præsenti. Where the first marriage, which was with a Roman Catholic woman, was by a Romish priest, in England, not according to the ritual of the Church of England, and the ceremony was performed in Latin, which the witness not under[ *33 ] standing, could not swear even that the *ceremony

of riage according to the Church of Rome was read, the defendant, on an indictment for bigamy, was directed to be acquitted. But Lord C. J. Willes, who tried the prisoner, seemed to be of opinion that a marriage by a priest of the Church of Rome was a good marriage, could the ceremony according to that church be proved, namely, the words of the contracting part of it.(f) A marriage properly celebrated abroad, by a popish priest, after the Roman ritual, would be deemed a good marriage here: for by the law of England, marriages are to be deemed good or bad, according to the laws of the place where they are made. It has been determined at common law, that if a man marries two wives, the first in France and another here, he may be tried and indicted here for that as a

mar

(a) 1 Salk. 438.
(6) 2 Show. 300.
(c) See Poulter v. Cornwell, Salk. 9.
(e) Reed v. Passer, Peake's Cases, 232.

(e) 14 Howell's St. Tr. 1327.

(f) Lyon's case, O. B. Dec. 1738, Scrjt Forster's MS.; 1 East, P. C. 469.

felony; therefore a marriage in France is deemed a good marriage, though not agreeable to our law; for in matrimonial causes, all laws take notice of the law of other countries.(g) By the municipal laws of this country, before the first marriage act, a clandestine marriage by a popish priest, after the English ritual, was not void, though irregular, and the priest and the parties marrying and present at it might be liable to punishment for a breach of ihe law.(1) A Roman Catholic priest is so far acknowledged by our church as a person in holy orders, that if he renounce the errors of the Church of Rome, he is a priest without any new ordination, and would be recognised by our church as a person capable of officiating as a priest.(i) It must, however, be remembered, that after the 26 Geo. 2, c. 33, and previously to the 6 & 7 Will. 4, c. 85, Roman Catholics and disseniers marrying in England, were obliged to conform to the ceremonies of the Church of England, for the former act contained no exception in their favour.())

Doctrine of Ecclesiastical Courts as to Contracts of Marriage.]-A mere contract per verba de præsenti was a perfect contract of marriage, according to the doctrine of the ecclesiastical* Thus where there were three engagements in

[ *34 ] writing, the first, dated June 23, 1724, and contained these words, “ We swear we will marry one another;" the second, dated July 11, 1724, was to this effect, " I take you for my wife, and swear never to marry any other woman;" this last contract was repeated in December in the same year. And although it was contended that the iteration of the declaration proved that the parties did not depend upon their first declaration, and was in effect a disclaimer of it, the court, composed of a full commission, paid no regard to the objection, and found for the marriage; and an application for a commission of review, founded upon new matter alleged, was refused by the Lord Chancellor.(k)

In a case relative to the validity of a marriage celebrated abroad, which occurred shortly before the marriage act, the marriage in question had been solemnized by a Roman Catholic priest, according to the Roman ritual; it was doubted whether this species of marriage would have been good if it had taken place in England. Sir E. Simpson said, (l) “ There may be other instances, but Ì have not met with any but that of Arthur v. Arthur,(m) where a marriage by a popish priest, by the Roman ritual, has been pronounced sor: but that was a marriage in Ireland between parties both Catholics, where the laws with respect to papists are difierent; which laws, as the laws of the country in which the contract was made, the court would respect. And in that case there was consummation, that purified any condition in the contract. There can be no doubt but that a marriage here by him who is in allowed orders, according to the English with this difference, that if they cohabited before marriage in facie [ 32 ]

(g) Scrimshire v. Scrimshire, ? Hagg. (k) Case of Lord Fitzmaurice, Cor. Del. Cons. R. 402; see Kelyog, 79; 1 Sid. 171. 1732, cited by Lord Stowell in Dalrymple v.

(h) Scrimshire v. Scrimshire, 2 Hags. Dalrymple, 2 Hagg. Cons. R. 69, 100; DodCons. R. 404. See ibid. 446.

son, 18; 1 Lee's R. 28. (i) Rex v. Brampton, 10 East, 284. 288. (l) Scrimslure v. Scrimshire, 2 Hagg. 395.

(1) See 1 Hagg. Cons. R. Appendix, 8; 401, 402. stal. 31 Geo. 3, c. 32.

(ni) 1 Lee's R. 29.

ecclesiæ, they were for *that punishable by ecclesiastical

censures; and if, after such contract, either of them lay with another, they would punish such offender as an adulterer. But a contract

per verba de futuro, which did not intimate an actual marriage, but referred to a future act, might be released.

In Wigmore's case(a) the wife sued in the Spiritual Court for alimony; the husband was an anabaptist, and having obtained a license from the bishop to marry, was married according to the forms of their own religion. Holt, C. J. said, by the canon law a contract per verba de presenti is a marriage, as if I take you to be my wife, so it is of a contract per verba de futuro, viz. I will take, &c. If the contract be executed, and he does take her, it is a marriage, and the ecclesiastical court cannot punish for fornication.

In Weld v. Chamberlayne,(6) on an issue of marriage or no marriage, it appeared that the marriage was before a man who, having been in orders, had been ejected, but no ring was used according to the Common Prayer Book. Pemberton, C. J. inclined to think it a good marriage, there being words of contract de presenti repeated after a parson in orders.(c) Lord Kenyon said, on a question as to a Fleet marriage, “ I think, though I do not speak meaning to be bound, that an agreement between the parties per verba de presenti, was ipsum matrimonium."(d)

Celebration by a Roman Catholic Priest.]—In Rex v. Fielding,(e) a marriage was in England by a Roman Catholic priest in the year 1705, before the marriage act, and upon evidence that the prisoner, in answer to the question, whether he would have the woman for his wedded wife, said that he would ; and that the woman answered affirmatively to the question put to her, whether she would have Mr. Fielding for her husband : Powell, J., upon a trial for bigamy, considered it as a marriage per verba de presenti. Where ihe first marriage, which was with a Roman Catholic woman, was by a Romish priest, in England, not according to the ritual of the Church of England, and the ceremony was performed in Latin, which the witness rot under[ *33 ]

standing, could not swear even that the *ceremony

riage according to the Church of Rome was read, the defendant, on an indictment for bigamy, was directed to be acquitted. But Lord C. J. Willes, who tried the prisoner, seemed to be of opinion that a marriage by a priest of the Church of Rome was a good marriage, could the ceremony according to that church be proved, namely, the words of the contracting part of it.(f) A marriage properly celebrated abroad, by a popish priest, after the Roman ritual, would be deemed a good marriage here : for by the law of England, marriages are to be deemed good or bad, according to the laws of the place where they are made. It has been determined at common law, that if a man marries two wives, the first in France and another here, he may be tried and indicted here for that as a

of mar

(a) 1 Salk. 438.
(6) 2 Show. 300.
(c) See Poulter v. Cornwell, Salk. 9.
(e) Reed v. Passer, Peake's Cases, 232.

(e) 14 Howell's St. Tr. 1327.

(f) Lyon's case, O. B. Dec. 1738, Scrjt Forster's MS.; 1 East, P. C. 469.

administration were repealed, and the sentence of repeal affirmed by the delegates; for the husband demanding a right due to him as husband, must bring himself within the rules prescribed by that jurisdiction to whom he applies ; also the constant form of pleading marriage is, that it was per presbyterium sacris ordinibus constitutum ; and an act of parliament was made confirming the marriages contracted during the usurpation.(p)

The text writers upon this subject agree in the necessity of a solemnization to confer the civil rights of marriage. Thus it is laid down by Swinburne,(q) that spousals de præsenti, without solemnization, do not; according to the law of England, render the issue legitimate, or give to the wife the right of dower, or to the husband the right of property in the wife's goods, or of administering to her. The same doctrine is stated in other works.(r)

Marriage without Religious Ceremony.]—There are some modern authorities in favour of the proposition, that a matrimonial contract, unattended with any religious ceremony, was before the marriage act(s) equivalent to a marriage legally solemnized. In Lautour v. Teesdale(l) the marriage which was between two British subjects solemnized by a Catholic priest at Madras, according to the rites of the Catholic Church, followed *by cohabitation, but without the license of the governor, which it had uniformly

[ *37 ] been the custom to obtain, was held to be valid. Sir Vicary Gibbs, C. J., in delivering the judgment of the court, thus stated the law :"Now British subjects settled at Madras are governed by the laws of this country, which they carry with them, and are unaffected by the laws of the natives. The question, therefore, is, whether by the laws of this country, to which alone they are subject, and by which alone their actions are to be governed, this marriage was legal. In this country we judge of the validity of a marriage by what is called the marriage act; but as that statute does not follow subjects to foreign settlements, the question remains whether this would have been a valid marriage here before that act passed. In the present case a ceremony was performed, the regularity of which it is unnecessary to discuss, because it was followed by cohabitation. All that is required, therefore, by the canon law has been amply satisfied ;” and after making other observations on the particular case, he concluded : " It follows from what I have stated that this was a legal marriage, since it was a marriage between British subjects, celebrated in a British settlement, according to the laws of this country as they existed before the marriage act, and which, if it had been celebrated here before the statute, would have been valid.”

In Rex v. Brampton(u) Lord Ellenborough said, before the mar(P) Haydon v. Gould, 1 Salk. 119, pl. 14; the Prerogative Court refused to acknow. and see 2 Salk. 438, pl. 3; 3 Lev. 376; 2 ledge it; 1 Hagg. Cons. R. App. 8. Sbow. 300, pl. 303.

(9) Part 2, 15, 234, 235. This case was cited by Sir J. Nicholl, in (7) Ayliffe's Par. 245; Bac. Abr. Mar. Elliott v. Gurr, 2 Phill. R. 21, as showing riage (C.) that the marriage not having been celebrated (8) 26 Geo. 2, c. 33. by a priest, was a mere nullity. And Sir (1) 8 Taunt. 830; 2 Marsh. 243. W. Wynne observed, that the marriage was (u) 10 Eust, 282. one according to their own invention, and

July, 1841.-E

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