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the officiating minister thereof, shall be sufficient, and render all such entries therein valid and legal.(c)
An act was passed in 1810, by the colonial legislature, to render valid and legal all marriage ceremonies performed by ministers of the Presbyterian church, duly authorized priests of the Roman Catholic religion, Wesleyan missionaries, and licensed ministers of every denomination of Christians, and to provide for the legal registration of all marriages, baptisms and funerals, performed by other than clergymen of the established church.(d)
Isle of Man.)—By the marriage act of the Isle of Man, 1757, banns of marriage must be published upon three several Sundays. If either of the parties be alieus or strangers who shall come to the isle, no banns shall be published unless such stranger shall have resided in the isle at least three months, and one month in the parish before publication.
Marriages solemnized in any other place than a church, unless by special license, or solemnized without publication of banns or license of marriage from a person having authority to grant the same, are declared null and void. The church wardens are directed from time to time, as there shall be occasion, to provide proper books in each parish, in which all marriages and banns of marriage there published and solemnized shall be registered. (t)
(c) Laws of Grenada, 266, 13th Dec. 1831. (1) See Slowell's Statutes, &c., of the Isle
(d) This act bas not been confirmed by an of Man, pp. 121–126; 1 Bl. Comm. 105, order in council, and certain amendments in 106; Coin. Dig. Navigation, (F 2.) it have been suggested.
SECT. 4.-OF THE MARRIAGES OF QUAKERS AND JEWS.
1. Of the Marriages of Quakers.]-In the act of 6 & 7 Will
. & Mary, c. 6, s. 57, 58, imposing a duty upon marriages, Quakers, Papists, and Jews, cohabiting as man and wife, were required to pay [ +63 ) the law of England ; and there was a proviso, that nothing
the said duty as if they had been married *according to therein contained should be construed to make good or effectual in the law any such marriage or pretended marriage, but that they should be of the same force, and no other, as if the said act had not been made.
It is said that marriages between Quakers according to their own ceremonies, have been recognized as legal by courts of law. In 1661, such a marriage was held valid at the assizes at Nottingham in a cause of ejectment.(a) In the case of Harford v. Morris, Mr. Justice Willes said, that he remembered a case 'many years ago upon the circuit where a Quaker brought an action of crim. con., in which it
() Sewell's Hist. of Quakers, 492; 1 of Lord Keeper Guilford, by North, p. 126. Hagg. Cons. R. Appen. 9. See I vol. of Life
was necessary to prove the marriage. The objection was taken, that he was not married according to the rites of the Church of England, and the point was argued, but it was overruled, and the plaintiff recovered thereon.(6)
Buller, in treating of the action for adultery, says, “it has been doubted whether the ceremony must not be performed according to the rites of the church, but as it was an action against a wrong-doer, and not a claim of right, it seems sufficient to prove the marriage according to any form of religion, as in the case of Anabaptisis, Quakers, or Jews.”(c)
It is stated by Wood,(d) “that a marriage de facto, or in reputation (as amongst the Quakers, &c.) is allowed to be sufficient to give title to a personal estate ; because ihe lawsulness of the marriage is not in issue, or the point to be tried. For the issue is, whether a marriage was contracted between the parties or not, or whether the parties lived in a married state, where the legality of it does not come in question. As to the lawfulness, the bishop's opinion after he hath heard the cause must determine it.”
In the case of Green v. Green, (e) a Quaker woman instituted a suit for the restitution of conjugal rights against her husband; and the libel was dismissed, because they were not *married according to the forms of the church of England. In
[ 64 ] Dodson v. Halswell(f) the suit was between two Quakers, in which the libel pleaded a marriage had in the manner usually observed by those of their religion, by the public declaration thereof at their monthly meetings in the form pleaded, and that notwithstanding the defendant had refused to solemnize and consummate. The defendant admitted the contract, but alleged that it was conditional. There had been two sentences against the defendant in the Consistory Court of Durham, and afterwards at York. It does not appear what was the result of the proceedings in the Delegates. It should seem, however, that Quakers have the same right to relief on the violation of any matrimonial duty, as Jews.(g)
Exception in the Marriage Acts.]-The marriages of Quakers and Jews were excepted from the provisions of the 26 Geo. 2, c. 33. The 31st section of that act having provided that nothing in that act contained should extend to any marriages amongst the people called Quakers, or amongst the persons professing the Jewish religion, where both the parties to any such marriage should be of the people called Quakers, or persons professing the Jewish religion, respectively. A similar exception is contained in slat. 4 Geo. 4, c. 76, s. 31, and in the act relating to marriages in Newfoundland. (h)
This exception is confined in its operation to cases where the parties are both Quakers or both Jews.(i)
It has been decided that Quakers are included in the Irish stat. 21
(b) 1 Hagg. C. Appen. 9.
(S) Deleg. 1750 ; 1 Hagg. Cons. R. Ap(c) Bull. N. P. 28, Woolston & Scott, per pen. 9. Denison, J., at Thetford, 1753, where plain. (g) See post, p. 72, 73. tiff was an Anabaptist, and recovered 5001. (h) 5 Geo. 4, c. 69, continued by 10 G. 4, See Dougl. 166.
c. 17, and 2 & 3 Will. 4, c. 78; ante, p. 48, (d) Inst. b. 1, c. 6, p. 59. See 2 Burn's 49. Eccl. Law, 485.
(i) Jones y. Robinson, 2 Phill. R. 285. (C) I Hagg. Cons. R. Appen. 9, 10.
& 22 Geo. 3, c. 25, though the words of the act may seem not applicable to them.(i)
Validity of Quakers' Marriages.]— The validity of the marriages of Quakers does not appear to have come in question in England, at least not in any reported case since the passing of the first marriage act. It is observed by a learned writer,(k) “ this has probably arisen from their prudent and peaceful habits, and perhaps partly from the circumstance of its not being either the interest of any members of [*65 ]
their own *families, or the disposition of the crown to
raise the objection. If the law on this subject should not be fixed by a legislative measure, and if the question should call for a judicial decision, the courts would no doubt be strongly inclined, upon obvious principles of reason and justice, as well as from the number and respectability of the persons interested, to support these marriages, whatever difficulty there may be in finding grounds upon which their validity can be reconciled with the former law; perhaps the least objectionable mode of sustaining them would be to consider the saving clause in the marriage act as a recognition precluding the inquiry into their former condition.”
If contracts of marriage unattended with any religious ceremony were valid before the first marriage act, there will be sufficient ground for sustaining the validity of the marriage of Quakers, without considering the provision in that act as a recognition of their validity.(I
Provision in New Marriage Act.]—By 6 & 7 Will. 4, c. 85, s. 2, it is enacted, “ that the Society of Friends, commonly called Quakers, and also persons professing the Jewish religion, may continue to contract and solemnize marriage according to the usages of the said society and of the said persons respectively; and every such marriage is hereby declared and confirmed good in law, provided that the parties 10 such marriage be both of the said society, or both persons prosessing the Jewish religion respectively; provided also, that notice to the superintendent registrar shall have been given, and the registrar's certificate shall have issued in manner hereinafter provided."(m)
Ceremony of Quakers' Marriages,]-The ceremony of the Society of Friends, or Quakers, is attended wiih much decency and solemnity. Previous to the ceremony the man and wornan present themselves at a monthly meeting of the society where they reside, and there declare their intention of taking each other as husband and wife, if the meeting have' no material objections against it. The principal conditions of
acceptance are the following:-1st. It is a rule that no man
*propose marriage to a woman without the consent of his own and her parents or guardians; but if the unbridled affections of any one should have precipitated him into a breach of this rule, he is required to remove the offence, as is also the woman, and to give satisfaction to such parents or guardians, and to the meeting to which they belong, by a due and open acknowledgment of the offence, and to get the consent of their guardians before they can proceed with
( *66 ]
(j) Houghton v. Haughton, 1 Molloy, 614. (m) See post, as to the mode of solemnizing See post, sect. 6.
marriages, and stat. 6 & 7 Will. 4, c. 86, 89. (k) 2 Roper on Husband & Wife, by Jacob, 30, 31, 40, 41, as to the registration of mar. 481 ; Littell's Law Library, April, 1841. riages of Quakers and Jews.
(1) See ante, p. 36–38.
the marriage. 2nd. That the parties be of the same opinion and judgment in religion, and professed members of this society. 3rd. That none shall marry within such degrees of consanguinity or affinity as are forbidden by the law of God: and 4th. That if either party has given scandal or offence to their friends, they shall acknowledge it. If no objections are then made, notice of the intended marriage is published in the meetings where the man and woman reside, or did reside, which must be done before the marriage is solemnized, in order that convenient time may be granted for satisfaction concerning all scandal, &c. The parties are required to give their attendance a second time at the monthly meeting, which is usually the next ensuing, when the persons appointed to make the inquiry return and give the answer, which, if found satisfactory, the parties are at liberty to proceed to the solemnization of the marriage. The marriage is solemnized in the ordinary meeting on a week day, usually Thursdays.
Towards the conclusion of the meeting the parties stand up, and, taking each other by the hand, declare, in an audible and solemn manner, to the following effect. The man first says: “Friends,-I take this, my friend C. D., to be my wife; promising, through Divine assistance, to be unto her a loving and faithful husband, until it shall please the Lord, by death, to separate us.” After this, a friend of the man or woman reads publicly a certificate of the marriage, the names and designations of the parties being first inserted; they then sign the certificate, the man first, then the woman by her maiden name, the relations next; and in further confirmation, such of the members sent as choose may adhibit their names, but do not add witness. The ceremony here closes, and the happy couple leave the chapel, arm and arm, man *and wife, without a priest’s blessing or any [ *67 ] further solemnity.(n)
2. Of the Marriages of Jews.] - The Jews, though British subjects under the protection of the general law of this country, have the enjoyment of their own laws in religious ceremonies, in consequence of the exceptions in the marriage acts. On deciding upon questions of this kind, the court is obliged to learn questions of Jewish law from the professors of it,(o) in the same way as foreign laws are proved in this country.
Evidence of Jewish Law.]—It is the usual practice of the Court of Chancery to receive information on foreign law from persons professing such law, not upon oath, but on a reliance in the honour and integrity of the professors of that law; and the same course is pursued in the ecclesiastical court.(p) So, in order to obtain information as to
(n) Halkerston's Dig. of the Law of Scot. husband and wife in the presence of witland relating to Marriage. See Sewell's nesses at Gretna Green, which acknowledg. Hist. of the Quakers, 691.
ment, the court had been told, of itself con. (0) Goldsmid v. Bromer, 1 Hagg. Cons. R. stituted a valid marriage by, the law of 324.
Scotland ; the court said, that it knew nothing For the system of Jewish and Catholic of that, at least judicially, nor could take matrimony, see Seldon's Uxor Ebraica. counsel's word, which was all that it had for Opera, vol. ii. p. 529-860; Bingham's that. It should have been so pleaded, accomChristian Antiquities, lib. 22; and Churdon panied with an averment to be sustained by Hist. Sacramens, tɔm. vi.
evidence, that such wis its effect by the law (p) In a case were it was pleaded that the of Scotland, 2 Addams, R. 389. parties mutually acknowledged each other as
the law of the Jews respecting marriage, questions were addressed to the tribunal of the Bethdin, and the answers to such questions, though not upon oath were used by the court.(y)
Lord Stowell held, that the judgment of the college of German Jews, to which community the party particularly belonged the sentence of the Bethdin (a domestic forum of the Jews amongst themselves on matters of marriage,) their chief tribunal, such judgment having been submitted also to the college of Portuguese Jews, who concurred in it, were of great authority on matters of Jewish law, as they are tribunals whose certificate of the foreign law must be received as most satisfactory, though perhaps their judgment is not equally satisfactory [ *68 ]
in matters of fact. And his lordship added, ** here is a
question compounded of law and fact, and though the decision may not bind the court which has 10 try the fact for itself
, it conveys the best information which it can obtain of the principles of law which are to be applied to it. They certify that they have found the marriage null according to the law of Moses, without giving specific reasons for it. This defect, however, is in some measure made up by the information which they have given in their examinations. I there find the grounds assigned on which I form the same opinion.”(r)
Marriages of Jeus decided according to their own Law.]-Subject to the provisions in the new marriage act,(s) the matrimonial law of England for the Jews, is their own matrimonial law; and an English court Christian, examining the validity of an English Jew marriage, will examine it by Jewish matrimonial law only.(0) If a rule of that law be, that the fact of the witness to the marriage having eaten prohibited viands, or profaned the Sabbath-day, would vitiate that mar. riage itself, an English court would give that effect, when duly proved, though a total stranger to any such effect upon an English marriage generally. Lord Siowell presumed that a Dutch tribunal would treat the marriage of a Dutch Jew in a similar way, not by referring to the general law of the Dutch Protestant Consistory, but to the ritual of the Dutch Jews, established in Holland.(u)
In Goldsmid v. Bromer,(x) the suit was brought by Maria Goldsmid, by her guardian, for jactitation of marriage against David Bromer, who confessed the jactitation, and justified by pleading a marriage to have been celebrated, and the same to be valid, according to the law of the Jews. The parties were both Jews, and both appealed to the Jewish law, by which the question was decided. The ceremony of marriage was admitted, but it was alleged " that the celebration was not conformable to the law of the Jews." No defect in the ceremony was alleged, except “that it is essentially necessary that it [ *69]
should be performed in the presence of iwo *witnesses,
competent and credible, and subject to no disqualification imposed by the Jewish law; which disqualifications may proceed from certain degrees of consangunity to either of the parties who marry,
(9) Lindo v. Belisario, 1 Hagg. Cons. R. 248, 249.
(r) Goldsmid v. Bromer, 1 Hagg. Cons. R. 335, 336.
(8) See ante, p. 65.
(t) Ruding v. Smith, 3 Hagg. Cons. R. 385.
(u) Ibid. 385.