see no celebrated marriage, the judge saith no legitimate issue, nor the law any reasonable or constituted dower."

The doctrine of this ancient lawyer agrees with the cumulative argument of Mr. Serjeant Bosanquet',

1 In Beer v. Ward, in Chancery, reported in Times, Nov. 18, 1823. In this case application was made to set aside a second verdict in the court of King's Bench, on the ground that the Chief Justice, in his charge to the jury, had mistaken the law when he said that a marriage, without religious solemnization or the presence of a priest, and merely with consent of parties, admitted before sufficient witnesses, and followed by cohabitation, was, before the passing of Lord Hardwicke's Act, a valid marriage, for all purposes whatsoever, according to the then known law of the land, as was the case with the law of Scotland to this day. In support of this application no less than six counsel were heard; viz. Mr. Scarlett, Gaselee, Wetherell, Bosanquet, Denman, and Phillips. (Times, Apr. 30, 1824.) The Lord Chancellor commented upon that part of the Chief Justice's charge, which related to the law of marriage in this country, before the passing of Lord Hardwicke's Act. It was not accurate to state that our law was the same as the law of Scotland: it had never been so loose. It was difficult to deny that a marriage might be celebrated without the presence of a clergyman, with some qualification; that was when the person performing the ceremony was supposed to be a clergyman. The case was different where a fraud was intended by one of the parties. The Chief Justice's charge went on to say, that a contract between the parties, followed by cohabitation, and accompanied by a declaration in the presence of witnesses, constituted a good and legal marriage at that period of our history, as it would in Scotland at this day. There was no doubt that it would constitute a good marriage in Scotland, a valid but irregular marriage. It was contended in the present case, that the attention of the jury ought to have been called to the question, Are you sure, according to the evidence, that such a contract had been so made between the parties? And it was

affirming that there is a long stream of authorities in support of the principle, that to constitute a valid marriage, so as to make the issue capable of inheriting, there must be a priest, a church, and a religious ceremony. In all cases in which the question has arisen, whether in real or personal actions, in writs of right or dower, the distinction has always been recognized between ipsum matrimonium and a legal marriage. The passages in the records and books may be found under the proper heads in the abridgments of Bell, Shepherd, Baker, and Viner, the most ancient of the cases being noted in those books from the open rolls of Edw. I. Edw. III. Hen. III. from Bracton, and the decretals of Gratian, and from most of the eminent reporters. Among the cases in the time of Henry III. is that of a man who had contracted marriage with a woman, and afterwards married another woman in facie ecclesiæ: the second marriage was dissolved, and he was di

said, that the principles laid down by the Chief Justice were bad in law. Cases were cited to shew, that although a contract of marriage per verba de præsenti before the year 1756, was a good contract, to use the Solicitor General's phrase, quoad hoc, yet it was not a legal and valid marriage of itself, that is, that the issue of such marriage, if the parties were not afterwards compelled to celebrate it in facie ecclesiæ, were illegitimate. Times, May 6. His final opinion was, that the best thing he could do in this case was to direct a trial at bar, and thereby have the opinion of all the judges of the court upon the law. Times, May 8. The parties afterwards retired from the suit, which had been carried on for more than fifty years. The chief question at issue was, whether the issue of a pretended private marriage could inherit in preference to the issue of a subsequent public marriage.

rected by the ecclesiastical court to celebrate the first marriage in facie ecclesiæ; before doing which he aliened his land. At his death his wife brought her suit of dower, and it was held that he was capable to alien, because at the time they were not man and wife in the legal sense, although they were contracted. There are passages in Bracton which may seem to favour the opposite opinion; but if the station and character of the writer be considered according to the suggestions in the preface to his book, it will be seen that he was strongly inclined to support the pretensions of the civil and pontifical over the common law jurisdictions, when the contest between them was at the highest. The statute of Merton, which signalized the defeat of the churchmen in their endeavour to assimilate the law of England respecting bastards to the Roman ecclesiastical law, afforded much more manifest proof of the real state of the law between marriage and legitimacy. In the address to Cromwell, after the ordinance legalizing marriages made before justices of the peace, it was distinctly said, that before the period of the Usurpation a marriage to be valid as to the legitimacy of the issue must be solemnized by a priest in orders, and although a church or chapel and the whole marriage ceremony were not necessary, yet they were meet and comely to be observed also. And to shew further how undeviating the impression had been, in the first year of the Restoration an Act was passed to render these marriages before justices of the peace valid, which care must have been useless if contract and cohabitation could have created a marriage valid for all purposes what

soever.

Looser contracts might indeed be good for many purposes, but in any action where the legitimacy of the heir, or the validity of the marriage, was in dispute, the jurisdiction was reserved to the bishop. In regard to the civil marriages under the Usurpation the Act of the Restoration particularly withdrew all the question of legitimacy which might arise under it from the bishop's jurisdiction, because it was well understood with what sort of feelings the clergy and ecclesiastical lawyers were likely to look upon them. There are also particular expressions in the Marriage Acts of William III. and Anne, which intimate that the statute and common law always contemplate the necessity of a priest in orders solemnizing a legitimate marriage. In times more recent is the case of General Fielding, who was married to a woman representing herself to be a Mrs. Duloe, by a priest in one of the embassies. When the general discovered the mistake he considered himself released from the marriage, and was afterwards married to the celebrated Duchess of Cleveland, whose sons indicted him for bigamy, of which he was convicted. On the trial the whole strength of the charge fell upon the consideration of the priest's orders, without a firm belief in which it was clearly understood that the jury must have acquitted him.

These authorities are of the highest value in obviating a bold opinion which has been recently advanced, that "before the Marriage Act the marriage of dissenters in the face of their own congregations was good in law. Of this fact there is no doubt. Whatever grievances they have to complain

of originated at that period. Their claim, or, if that is a more palatable word, their petition, is to be restored to the situation they were in, as far as marriage is concerned, before the passing of that statute"." This is the language of an advocate more zealous than candid or judicious; and the fact upon which he principally relies is certainly too undoubted to call for any remark: and there is another fact also too important to be overlooked, that in the recent revisions of the Marriage Act the Unitarians made but a very faint attempt to be placed in the same condition as the Quakers and the Jews, or to be merely exempted from the provisions of the Act. In the measures also which they themselves have proposed for their relief they have sought either a curtailment of the liturgy or a licence to celebrate marriage in their own forms, with the privilege of having those marriages recorded in the registers of the Church. In these practical attempts to obtain something more than mere exemption they have tacitly contradicted their advocate, and admitted the insufficiency of the mere exemption, which he represents them to solicit. In the very petition upon which this ignorant or disingenuous remark was founded the Unitarians themselves have affirmed, that "the marriages of dissenters celebrated in the face of their own congregations were considered valid in our courts of law, although some attempts made to disturb such marriages in the ecclesiastical courts served to dispose the majority of the dissenters, between whom and

in Edinburgh Review, Ixix. art. iii.