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benefit of any doubt which might arise in the interpretation of the law. The act of the quaker, the plea of his counsel, and the direction of the judge, all agree in proving that the law was at least not decided in favour of the civil contract; and it is obvious to remark, that Burnet has reported only the case of the defendant, and given to that report his own partial colouring. This was also a case of marriage de facto, which the temporal courts allow to be sufficient to give title to a personal estate, because the lawfulness of marriage is not the point to be tried, as in a writ of dower!, and therefore any decision of the suit would not have produced those effects of bastarding the issue, which were more probably apprehended by Burnet than by Hale. It is an equivocal inference which is drawn from this statement, that “ quaker marriages are now good in law, although since the days of Judge Hale no statute has been passed which declares them to be so".” If in the days of Judge Hale they were valid, no statutory declaration of their validity was required, and any doubt of the necessity of the declaration is an impeachment of their validity: but if no statute has declared them valid, there is a statute (6 William. and Mary, c. 6.) which has declared them doubtful, laying a duty upon Jews and Quakers, cohabiting as man and wife, although not married according to the law of England, and adding a proviso that nothing therein contained shall be construed to make good or effectual in law
Burn's Ecclesiastical Law; Art. Marriage. Christians' Quarterly Register, No. iii. p. 275.
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 mades.
If then the validity of the civil contract, independent of the religious ratification, was unauthorized or doubtful before the Toleration Act, can that Act be shewn to convey to the dissenter any new privilege in respect of marriage, of which he was not before possessed? The Act itself exhibits no signs of such conveyance, not in its title of “ An Act for exempting their Majesties' Protestant subjects dissenting from the Church of England from the penalties of certain laws ;' not in reference to the Acts which it restricts or counteracts; not in the discharge from penalties incurred; not in the allowance of deputies ; not in the extent of the exemption ; not in the registry or administration of the oaths; not in the relief of the Quakers; nor in any other of its clauses. The sole design of the Act is to exempt dissenters from penalties, which would otherwise have been incurred, not to convey privileges which were not otherwise possessed.
In the interval between the Toleration Act and the Marriage Act there are many authorities very unfavourable to the validity of marriages contracted without a religious ratification. The Act of 6 William and Mary, c. 6, has been already recited, in which Jews and Quakers not married according to the law of England are described as cohabiting together as man and wife, and which is not to be construed to make good in law such marriage, or
* Burn's Ecclesiastical Law.
pretended marriage. But "the Act 7 and 8 William III. c. 35, seems to put this matter out of all doubt, by laying a penalty on clergymen if they celebrate marriage in a clandestine manner; for it the same privileges and advantages attended marriages solemnized by the dissenters as those celebrated according to the Church of England, how easily would that Act be evaded and rendered of no effect? There would then be no occasion for licence or banns; for making oath, or giving security, that there were no legal impediments; but every one might do what was right in his own eyes, who should get himself admitted of a dissenting congregation!” Neither this Act nor the other Acts, 6 and 7 William III. and 10 Anne c. 19, contemplate the celebration of marriage by any but “a person in holy orders, beneficed or not beneficed :"> complaint is only made of the offences of " parsons, vicars, and curates, who substitute and employ, and knowingly and wittingly suffer and permit, divers other ministers to marry great numbers of persons in their respective churches and chapels without publication of banns, or licence of marriage first had and obtained; many of which ministers have no settled habitations, and cannot easily be discovered and convicted :" complaint is also made, that “ divers ministers, being in prison for debt, or otherwise, do marry in the said prisons many persons resorting thither for the purpose aforesaid, and in other places, for lucre or gain to themselves, by all which means the duties and impositions upon licences of marriage
· Burn's Ecclesiastical Law.
are greatly diminished, and many other great inconveniences do arise.” It is a melancholy picture which these Acts present, both of the state of the clergy and of the irregular solemnization of marriage, through their connivance and neglect: but although they record the celebration of marriages in prisons and other places, they indirectly assert the necessity of orders in the minister of marriage, without which the people would not have resorted to their ministration in such places. For the correction of these abuses, and, at the same time, for the preservation of the revenue, a penalty of £100 was imposed upon any “parson, vicar, or curate, who should marry any persons in any church or chapel, , exempt or not exempt, or in any other place whatever, without publication of banns or licence,” a clause which could have been of no avail, but on the supposition that marriage could only be celebrated by “ a parson, vicar, or curate.” A penalty of £10 was also levied upon every man who should be married without licence or publication of banns ; whence arose a curious question, which will be mentioned hereafter: and a yet further penalty of £5, which more distinctly shews that marriage was considered an ecclesiastical act, was levied upon every sexton or parish clerk, or other person acting as sexton or parish clerk, who should knowingly and wittingly aid, promote, and assist at such marriages so celebrated without banos or licence. The Act of Anne restricts the character of the persons on whom the penalty was imposed, by an express reservation to all archbishops and others of “full power of inflicting all such pains and censures for
this or any other crime or crimes, as they might have done if this Act had not passed.” In these Acts no mention is made of the offences of persons not in orders : the publication of banns, or the possession of licence, both acts of ecclesiastical administration, are required under a penalty : Scotland, where a different law prevailed, is exempted under the statute of Anne : and if the penalty only is levied, and nothing is said of the validity or invalidity of the marriage itself, may not the omission be construed to declare the state of the law, under which such marriages were in their very nature liable to dispute, and were in fact disputed? The nullity afterwards expressed in the Marriage Act was the consequence of a new offence created by the law, and requiring a distinct enactment. Under William and Anne the law required the intervention of a person in orders, and the provision of the common law was affirmed, inasmuch as it was not restricted or superseded by any positive statute.
It is nevertheless certain, that marriages were contracted without the intervention of a person in orders; and it is admitted, with a certain ambiguity of language, that “attempts were made to disturb such marriages in the ecclesiastical courts.” It should be remembered, that the ecclesiastical courts are the courts to which the common law hath assigned the trial of the validity of marriage, and that the attempts to disturb these irregular marriages were made by the parties immediately interested, and not by the interposition of any ecclesiastical authority. There are three cases recited by Burn 1. Wigmore's case, 5 Anne; where the wife sued