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in the spiritual court for alimony, being married to an anabaptist, according to the forms of their religion, although with licence from the bishop to marry. In prohibition, Holt, Chief Justice, held that the canon law admitted the validity of the contract per verba de presenti : the marriage was therefore admitted so far, that the parties could not be punished for fornication, but for not solemnizing the marriage according to the forms prescribed by law, but not so as to declare the marriage void. This appears to be a most favourable case ; but it is nevertheless liable to the objection, that the contract was subject to a compulsory celebration in facie ecclesiæ, without which it was not valid to all purposes ; that, as the licence was obtained, the penalty incurred for not solemnizing the marriage was different from that imposed by 7 and 8 William III. and that the action was on the fact, not on the law, instituted for alimony, and involving only the question of wife or no wife. If the action had been on the higher ground of dower, a different decision might have been expected, 2. In the case of Haydon and Gould, before the delegates; Haydon and his wife were Sabbatarians, and had been married, in a Sabbata. rian congregation, by one of their ministers, using the ritual of the Church, with the omission only of the ceremony of the ring. On the woman's death, Haydon, as her husband, took out letters of administration ; to which her sister objected that they were never married; and as it appeared that the minister who married them was a mere layman, and not in orders, the letters of administration, granted to Haydon as the husband, were revoked, and a new
administration granted to the sister. This sentence clearly proved the invalidity of marriages not celebrated by the intervention of a person in orders, on which the question principally turned: and the sentence, upon appeal, was confirmed by the delegates, upon the argument, that as Haydon de. manded a right to himself as husband by the ecclesiastical law, he ought to prove himself a husband by that law. A case was also cited out of Swinburn, where such a marriage had been ruled to be void, as to the privileges attending legal marriages. 3. The case of Middleton v. Croft, which was for marrying without the canonical hours, is very important, on account of the judgment of the court delivered by Lord Hardwicke after several arguments at the bar. The plaintiff pleaded the statute of 7 and 8 William III. c. 35, imposing a penalty of ten pounds on every man marrying without banns or licence; notwithstanding which, he and his wife had been cited in the spiritual court for an offence against the canon, by which, as lay-persons, they were not bound. The court agreed that lay-persons were not within the words of the canons of 1605 ; that the spiritual court had a well-founded jurisdiction under the former canon law, to proceed against the plaintiffs for a clandestine marriage: and on the question, whether the statute of 7 and 8 William III. had, by inflicting that penalty, taken away the jurisdiction of the spiritual court, it was to be observed, that as to the woman, she indisputably remains subject to the ecclesiastical jurisdiction, for the penalty is only upon the man: but as to the man likewise, the court was unanimously of opinion, that
the ecclesiastical jurisdiction is not taken away by the statute, but that both the jurisdictions do stand, well together.
The admission that the “attempts made to disturb such marriages in the ecclesiastical courts served to dispose the majority of dissenters ... to conform in that particular to the ritual of the Church,” tacitly proves the efficacy of those attempts, and the prevailing opinion of the state of the law at the time. If these attempts had been defeated, they would have failed of producing the result which is imputed to them; if the decisions had been unjust, or opposed to the known spirit of the law, they would have been disputed and overruled ; the body of the dissenters, always active in resisting oppression, and in maintaining their civil rights and privileges, would not, in justice to themselves or to public right, have acquiesced in a series of unjust decisions; and it would have been a stigma on the pure and equal administration of English law, if such injuries had passed without redress. If there had been but a single case, in which the force of the civil contract had been weakened by the want or the irregularity of the religious ratification, it had been sufficient to prove the necessity of that ratification to the validity of the marriage.
It is not therefore true that “ before the Marriage Act, the marriage of dissenters in the face of their own congregations was good in law,” or that they possessed “the right of marrying at their own meetings, and agreeably to their own forms :” nor was the Act, whatever were its other faults, designed to destroy the validity of these marriages, or in any
wise to “abridge the religious rights and privileges” of the dissenters. The declared purpose of the Act is “ the better preventing of clandestine marriages:” and without insisting on the proper and technical use of the word clandestinity, to denote marriages celebrated out of the Church ; without giving any undue force to the prohibition to solemnize matrimony in any other place than a church or public chapel, where bavns have been usually published ; without dwelling upon the negative evidence of the Act, in not making the faintest allusion to marriages celebrated without the intervention of a person in orders ; it is proper to observe, that the measures by which the Act accomplishes its purposes, are, by enforcing the provisions for the due publication of banns, and the legal attainment of a licence. The immediate occasion of the Bill was the abuse of the law of precontracts; and the ultimate object was, to prevent the recurrence of those irregular marriages which were prevalent at the time, under the name of “ Fleet marriages," from their celebration in the Fleet prison : and there was “no ceremony or solemnity required by the Bill, but what was absolutely necessary for ascertaining the marriage, and rendering it publicu.” It is in vain to interpret this of the compulsory use of the office of matrimony, which had ever been in use, and which alone had been found ineffective: jt evidently relates to the new provisions, which had been introduced in respect of the banns and licence, in reference to
u Speech of Ryder; Att. Gen. Hansard's Parl. Hist. xv. p. 11. recited in Freethinking Christians Quarterly Register.
which the Bill was free from the charge of “ inflicting any penalties upon the innocent, or any more severe penalties upon the guilty than they deservex;" and upon the neglect or misuse of which all the suits of nullity of marriage instituted under the Act have eventually been found toturn. This was the object and method of the Bill, which was not designed either to remove or “to establish a ceremony contrary to the conscientious scruples of any who might be called upon to submit to it?," and whose scruples could only have been violated by anticipation, since the dissenters of the day confessedly “conformed, by choice, to the form of marriage as practised in the Church,” with the only exception of Jews and Quakers, and they were exempted.
The Act contains but two clauses which can be construed to interfere with the religious principles of the dissenters. By sect. 8. it is enacted, that “ whereas many persons do solemnize matrimony in prisons and other places, without publication of banns or licence of marriage first had and obtained; therefore, for the prevention thereof, be it enacted, that if any person ...
shall solemnize matrimony in any other place than a church or public chapel, where banns have been usually published, unless by special licence ... every person knowingly and wittingly so offending, and being lawfully convicted thereof, shall be deemed and adjudged to be guilty of felony ... and all marriages celebrated in any other place than a church or such public chapel, unless by
* Speech of Ryder : Att. Gen. Hansard's Parl. Hist. xv.p. 11. recited in Freethinking Christians' Quarterly Register.
Freethinking Christians' Quarterly Register, No. iii. p. 281.