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riage act a contract of marriage per verba de presenti would have bound the parties. So upon the trial of an issue out of the Court of Chancery, on the legitimacy of a person born before the marriage act, the Lord Chief Justice of the King's Bench is said to have ruled, that at that period a contract of matrimony per verba de presenti constituted a legal marriage. On a motion for a new trial, the question was elaborately argued before the Lord Chancellor, but did not ultimately call for a decision.(v)
A learned writer(x) has adduced various authorities to establish the proposition, that according to the law administered in England before
the marriage act, a matrimonial contract de *præsenti was [ *38 ) essentially distinct from a marriage solemnized by a person in holy orders; that it did not confer on the woman the right to dower, on the man the right to the woman's property, or on the issue the rights of legitimacy; and that it did not render a subsequent marriage with a third person ipso facto void at law, though it formed a ground for a sentence annulling it. They seem also to show, that, according to the ecclesiastical law, the contract did not give any right, except to call for a performance of it by actual solemnization, not justifying cohabitation, and not conferring conjugal rights; and that at the common law it had no effect, though in cases where the parties cohabited, and were reputed to be man and wife, this might be sufficient evidence for the purposes of some actions in which strict proof was not required.”
Several statutes relating to the subject of marriage are cited for the purpose of showing that the distinction between perfect marriages and mere contracts has uniformly prevailed. (y)
The early acts of the legislatures of the British colonies afford proof of the prevalence of the opinion, that the marriage must be celebrated by a minister.(z)
SECT. 2.-OF MARRIAGES OF THE ROYAL FAMILY.
The stat. 28 Hen. 8, c. 18,(a) made it high treason for any man to marry any of the king's children, lawfully born, or commonly reputed for his children, or any of the king's sisters or aunts of the part of the father, or any of the lawful children of the king's brethren or sisters, or to contract matrimony with any of them, without the king's license first had under the great seal; and the woman so offending incurred the same offence. It has been inferred from the restraint imposed by this act, that such marriages were previously lawful.(6)
(v) Beer v. Ward, 2 Roper's Husband and 12 Car. 2, c. 33; ante, p. 31, n. (3); 6 & 7 and Wife, Addenda by Jacob, 446. (Littell's. Will. 3, c. 6; 7 & 8 Will
. 3, c. 35; 57 Gen. Law Library, Ap. 1841.)
3, c. 51; 5 Geo. 4, c. 68; post, p. 48 ; Irish Roper on Husband and Wife, Ado statule 11 Geo. 2, c. 10, s. 3; 19 Geo. 2, c. denda by Jacob, 445–474. (Littell's Law 13; 21 & 22 Geo. 3, c. 25; post, sec. 6. Library, Ap. 1841.)
(2) See 1 Burge on Foreign Law, 161(y) 25 Hen. 8. c. 21, transferring the power 168; post, sec. 3. of granting licenses to the Archbishop of (a) Repealed by general words of stat. I Canterbury, 32 Hen. 8, c. 38, Pre-contracts; Edw. 6, c. 12; 1 Mary, st. 1, c. 1.
By the 9th sect. of the stat. 1 Will. 4, c. 2, providing for *the administration of the government, in case the crown
[ *39] should descend to her present majesty under the age of 18 years, it was enacted, that it should not be lawful for the king or queen of this realm, for whom a regent was thereby appointed, to intermarry, before his or her age of eighteen years, with any person whomsoever, without the consent in writing of the regent; and every marriage so had without such consent should be void : and every person acting or concerned in procuring such marriage, and the person who should be so married to such king or queen under the age of 18 years, should be guilty of high treason. By the 4th section of stat. 3 & 4 Vict
. c. 52, to provide for the administration of the government, in case the erown shall descend to any issue of her majesty, whilst such issue shall be under the age of eighteen years, and for the care and guardianship of such issue, it is provided, that it shall not be lawful for any king or queen of this realm, for whom a regent is thereby appointed, to intermarry before his or her age of eighteen years, with any person whomsoever, without the consent in writing of the regent and the assent of both houses of parliament previously obtained ; and every marriage without such consent and such assent of the two houses of parliament, shall be null and void to all intents and purposes ; and every person who shall be acting, aiding, abetting, or concerned in obtaining, procuring or bringing about any such marriage, and the person who shall be so married to such king or queen under the age of eighteen years, shall be guilty of high treason, and suffer and forfeit as in cases of high treason.
It is laid down by Sir E. Coke,(c) that no man may marry the queen dowager without the king's license, on pain of forfeiting his lands and goods. But his learned annotators state that they have searched in vain for the parliamentary roll cited as an authority for this position. It is neither amongst the printed statutes at large, nor amongst the Rolls of Parliament lately published. Yet it is taken notice of as a statute in the abridgment of parliamentary records.(d). But we cannot find any such statute in print. It is not meant by this to doubt the existence of such a statute, we only apprise the reader of the inaccuracy in reference to it.(e) The queen dowager does not lose her regal dignity by marrying a subject. (f)
Royal Marriage Act.}-Marriages of any of the royal family are excepted from the marriage acts.(g) By stat. 12 Geo. 3, c. 11, s. 1, it is enacted “that no descendant of the body of King George the Second, male or female (other than the issue of princesses, who have married, or may hereafter marry, into foreign families,) shall be capable of contracting matrimony without the previous consent of his majesty, his heirs or successors, signified under the great seal, and declared in council (which consent to preserve the memory thereof is hereby directed to be set out in the license and register of marriage,
(6) Fortescue R. 407.
Tudor married the widow of Henry 6, which (c) Co. Litt. 133 b; Rot. Parl., 8 Hen. 6, was the reason of the law.-Fortescue, 429; nom. 7; 1 Bl. Comm. 223. 226.
5 Rapin's Hist. p. 326, 8vo. ed. 1728. (d) Cotton's Rec. 589. See 2 Inst. 18; (S) 1 Bl. Comm. 223; 2 Inst. 50. Fortescue, 418; Riley's Plac. Parl. 672. (g) 26 Geo. 2, c. 33, s. 17; 4 Geo. 4, c. 76,
(e) Harg. Co Litt. 133 b. note. Owen S. 30; 6 & 7 Will. 4. c. 85, s. 45.
and to be entered in the books of the privy council,) *and [ *40 ]
that every marriage or matrimonial contract of any such descendant, without such consent first had and obtained, shall be null and void to all intents and purposes whatsoever."
By the second section it is provided that in case any such descendant, being above the age of 25 years, shall persist in his or her resoJution to contract a marriage disapproved of or dissented from by the king, his heirs or successors, that then such descendant, upon giving notice to the king's privy council, which notice is hereby directed to be entered in the books thereof, may at any time from the expiration of twelve calendar months after such notice given to the privy council as aforesaid, contract such marriage; and his or her marriage with the person before proposed and rejected may be duly solemnized without the previous consent of his majesty, his heirs or successors; and such marriage shall be good, as if this act had never been made, unless both houses of parliament shall, before the expiration of the said twelve months, expressly declare their disapprobation of such intended marriage."
The third section enacts, “ that every person who shall knowingly or wilfully presume to solemnize, or to assist or to be present at the celebration of any marriage, with any such descendant, or at his or her making any matrimonial contract without such consent as aforesaid first had and obtained, except in the case above mentioned, shall being duly convicted thereof, incur and suffer the pains and penalties. ordained and provided by the statute of provision and premunire, made in the sixteenth year of the reign of Richard the Second.”
The royal marriage act was opposed with extraordinary vigour in both houses. New motions were continually made, either to expunge or to amend those that were thought to be its most exceptionable parts; and every degree of parliamentary skill was used, either to obstruct its progress, or to improve its form. Notwithstanding these impediments, it was carried through the House of Lords with wonderful dispatch: and though it was brought in late in February, passed through the last reading on the 3d March.(g) Amongst other reasons assigned in the lords protest against this bill was, that it provided [ *41 ]
no remedy at any age against the improvident *marriage
of the king reigning, the marriage of all others the most important to the public. It provided nothing against the indiscreet marriage of a prince of the blood, being regent at the age of 21, nor furnished any remedy against his permitting such marriages to others of the blood royal, the regal power fully vesting in him as to this purpose, and without the assistance of his council. And another proiest was, that the bill was essentially wanting to its avowed purpose, in having provided no guard against the greater evil, the improper marriages of the princes on the throne.(h) In the course of its progress, one of the first measures that was taken was to demand the opinion of the judges, how far, by the law of this kingdom, the king is entrusted with the care and approbation of the marriages of the royal
(g) Annual Reg. 15 vol. p. 91*.
(h) Lords' Journ. 3d March 1772, vol. 33,
pp. 278, 279.
family. The following opinion was given by the judges present: “We are all of opinion that the care and approbation of the marriages of the king's children and grandchildren, and of the presumptive heir to the crown (other than the issue of princesses married into foreign families,) do belong to the kings of this realm; but to what other branches of the royal family such care and approbation extend, we do not find precisely determined.”(:)
It is observed by Mr. Burge(k) that this act does not, like the marriage act, in express terms restrain, nor can it, from the nature of its provisions, be construed to restrain its operation to a matrimonial contract which has been made in England. The conditions which it enjoins admit of a performance in whatever place the marriage is celebrated. The judicial tribunals of England must necessarily be bound by this statute, and *could not recognize a marriage contracted in contravention of its provisions. And
[ *42] if this act be considered as affecting those who are the objects of legislation by the British parliament, and without regard to the relation in which the descendants of George the Second stand to the kingdom of Hanover, foreign tribunals would not, consistently with the principles on which the comitas gentium is adopted, treat it as valid.()
Marriage of His Royal Highness the Duke of Sussex.]-At the close of the year 1792, his Royal Highness the Duke of Sussex became acquainted, at Rome, with Lady Augusta Murray, daughter of the Earl of Dunmore, previously wholly unknown to him. An attachment sprung up between them, and after a few months they intermarried.
The marriage ceremony was performed by a minister of the Church of England, according to the liturgy of thai church; and it was also preceded by a written formal contract of marriage, signed by both parties, almost per verba de presenti in the nature of espousals.(m)
(i) 17 vol. Parl. Hist. 387. See the opinion (k) 1 Comm. on Foreign Law, 198. of the judges in the reign of George 1, when (1) 1 Burge on Foreign Law, 198. they were consulted on the prerogative (m) The contract was in the words fol. claimed by the king over his grandchildren. lowing :-"On my knees, bofore God our Ten of the judges certified their opinion, that Creator, I, Augustus Frederick, promise the education and care of the persons of the thee Augusta Murray, and swear upon the king's grandchildren then in England, and Bible, as I hope for salvation in the world to of the eldest son of the Prince of Wales, come, that I will take thee, Augusta Mur. when his majesty should think fit to cause ray, for my wife, for better for worse, for him to come into England, and the order. richer for poorer, in sickness and in health, ing the place of their abode, and appoint- to love and to cherish till death do us part: ing their governors and governesses, and to love but thee only, and none other, and other instructors, attendants, and servants, may God forget me if I ever forget thee. and the care and approbation of their The Lord's name be praised; so bless me; marriages when grown up, did belong of so bless us, O God; and with my hand. right to the king of this realm. Two of the writing do I, Augustus Frederick, this sign, judges were of opinion, that although the March 21st, 1793, at Rome, and put my seal care and approbation of the marriages of the to it and my name. (Signed.) king's grandchildren belonged to the king,
Augustus Frederick.” (L. s.) yet that it was not exclusive of their father; A similar engagement, in the handwriting and that the father bad in all cases a right of Lady Augusta, and signed by her, was to the custody and education of his children. subjoined at the foot of the above paper.
- Fortescue, 401-410; 15 Howell's St. Papers elucidating the claims of Sir AugusTrials, 1200—1230. See 1 Bl. Com. 225, 226. tus D'Este, pp. 4–7.
On the return of the royal couple to England, they were married again by banns in the parish church of St. George, Hanover Square. The second marriage having attracted the attention of George the Third, his majesty, acting by his procurator general, caused a suit to be instituted for the purpose of obtaining a sentence declaratory of the marriage de facto of his Royal Highness with Lady Augusta Murray, as had in violation of the royal marriage act. The sentence declared that there was no sufficent proof by witnesses of the marriage at Rome, but that if any such marriage, or rather show or [ 43 ] effigy of a marriage, was in fact had *or solemnized, at
the said city of Rome, between the said parties, the said pretended marriage was and is absolutely null and void to all intents and purposes in law whatsoever.(n)
SECT. 3.-OF MARRIAGES IN THE BRITISH COLONIES.
The law of marriage in the British colonies is either that which prevailed in England previously to the passing of the first marriage act in 1753, (a) or such as has been established by their own municipal law; for that act, as well as the present marriage acts,(6) are confined to England and Wales. Thus we have already seen that a marriage between two British subjects, celebrated at Madras by a Roman Catholic priest in a private room, was held to be valid. (c)
East Indies.]-Members of the church of Scotland, resident in the East Indies, had usually been married by ministers of their own church. But Presbyterian ministers not receiving episcopal ordination, are not, according to the English law, deemed to be in holy orders; and it had been held, that natives of Scotland, resident in India, were to be considered as having an English domicil.(d) It therefore became doubtful whether these marriages were not to be governed by the English law, according to which they would have stood upon the same footing as contracts de præsenti before the first marriage act.(e)
Solemnization of Marriages in India by Ministers of the Church of [ *44 ]
Scotland. –The stat. 58 Geo. 3, c. 84, after reciting, *that
doubts had arisen concerning the validity of marriages which have been had and solemnized within the British territories in
(n) Heseltine v. Lady Augusta Murray, the children of his royal highness the Duke 14th July, 1794, 2 Addams Ř. 400, 401 n. of Sussex, elucidated, a Juridical ExercitaTwo learned counsel are stated to have been tion by Sir John Dillon, Knt., 1832.—Sec of opinion, after great consideration, that the Papers elucidating the Claims of Sir Augus. royal marriage act does not extend to any tus D'Este, 1831, Law Magazine, vol. 7, pp. marriages by any descendants of George 2, 176, 432. contracted and solemnized bona fide out of (a) 26 Gco. 2, c. 33. Great Britain and beyond the limits of British (6) 4 Geo. 4, c. 76; 6 & 7 Will. 4, c. 85. jurisdiction, and that the marriage of his (c) Lautour v. Teesdale, 8 Taunt. 830; 2 royal highness the Duke of Sussex at Rome, Marsh. 243; ante, p. 36, 37. was not a marriage impeachable under that (d) Bruce v. Bruce, 6 Br. P. C. 566, 2nd statute. See the opinion of Stephen Lush. ed. ington and Griffith Richards, dated Doctors' (e) See 2 Roper on Husband and Wife, Commons, 13th July, 1831.
by Jacob, 459, 460. This opinion will be found in the case of