MARRIAGE. argued) to all the consequences attending marriage, such as legitimacy, CONTRACT OF administration, and other civil rights, so the validity of such marriages can only be grounded upon the assumption that a contract of marriage per verba de præsenti did by law constitute the marriage itself. "Since the passing of the Marriage Act it has generally been supposed that the exception contained therein as to the marriages of Quakers and Jews amounted to a tacit acknowledgment by the legislature that a marriage solemnised with the religious ceremonies which they were respectively known to adopt ought to be considered sufficient; but before the passing of that act, when the question was left perfectly open, we find no case in which it has been held that a marriage between Quakers was a legal marriage on the ground that it was a marriage by a contract per verba de præsenti; but, on the contrary, the inference is strong, that they were never considered legal. The legislature in the stat. 6 & 7 Gul. 3. c. 6. s. 63. enacts, that all Quakers and Jews, and any other persons who should cohabit and live together as man and wife, should pay the duty thereby imposed on marriages, and that upon every pretended marriage made by them they should give five days' notice; with an express provision in the 64th section that nothing in the act contained should be construed to make good or effectual in law any such marriage or pretended marriage, but that they should be of the same force and virtue, and no other, as if the act had not been made.' And the case before Lord Hale, to which so much weight was attributed, as conveying his opinion that the marriage was good, appears rather to show his opinion to have been the reverse. He declared that he was not willing, on his own opinion, to make their children bastards, and have directions to the jury to find it special;' a declaration which plainly intimates that the inclination of his own mind was that the marriage was ot good. We cannot, therefore, think that the case of the Quakers, although certainly one which it is difficult altogether to dispose of, amounts to such a difficulty as to induce us to alter the opinion founded on the authority of the decided cases. Opinions of the Judges in Reg. v. Millis and Reg. v. Carroll. "And as to the case of the Jews, it is well known that in early times they stood in a very peculiar and excepted condition. For many centuries they were treated, not as natural-born subjects but as foreigners, and scarcely recognised as participating in the civil rights of other subjects of the Crown. The ceremony of marriage by their own peculiar forms might therefore be regarded as constituting a legal marriage, without affording any argument as to the nature of a contract of marriage per verba de præsenti between other subjects. But even in the case of a Jewish marriage it was more than a mere contract; it was a religious ceremony of marriage; and the case of Lindo v. Belisario is so far from being an authority, that a mere Lindo v. contract was a good marriage, that the marriage was held void precisely Belisario. because part of the religious ceremony held necessary by the Jewish law was found to have been omitted. "I proceed now to refer to certain statutes passed by the legislature at different times, from various enactments and expressions in which statutes the inference appears to follow, that a mere contract per verba de præsenti could not at those several times have been generally held to constitute complete marriage. The stat. 32 Hen. 8. c. 38. for marriages to stand notwithstanding pre- Stat. 32 Hen. 8. c. 38. CONTRACT OF Opinions of the Judges in Reg. v. Millis and Reg. v. Carroll. Stat. 2 & 3 Edw. 6. c. 23. Stat. 12 Car. 2. c. 33. Stat. 7 & 8 Gul. 3. c. 35. 6 contracts, in its preamble gives no support to the doctrine, that by the law of England the contract per verba de præsenti was an actual marriage. It recites the mischief, that after divers marriages have been solemnised and consummated, and fruit of children, nevertheless by an unjust law of the bishop of Rome, which is that upon pretence of a former contract made and not consummate, the same were divorced and separate,' and then proceeds to enact, that every marriage, being contracted and solemnised in face of the church, and consummated, or with fruit of children, shall be deemed lawful, good, and indissoluble, notwithstanding any pre-contract not consummate which either party shall have before made. "The stat. 2 & 3 Edw. 6. c. 23. enacts, that, as concerning pre-contracts, 'the former statute should be repealed, and be reduced to the state and order of the king's ecclesiastical laws of this realm' (an expression of no slight importance, when considered with reference to the force within this kingdom of the general canon law of Europe,) which before the making of the said statute were used in this realm, so that, when any cause or contract of marriage is pretended to have been made, it shall be lawful to the king's ecclesiastical judge of that place to hear and examine the said cause, and (having the said contract sufficiently and lawfully proved before him) to give sentence for matrimony, commanding solemnisation, cohabitation,' &c. The language of the legislature in this act does surely imply a marked and acknowledged distinction between contract and matrimony. To refer, next, to the statute passed relating to the marriages of priests, the 31 Hen. 8. c. 14. punishes with death any priest who shall carnally keep or use any woman to whom he is or shall be married, or with whom he hath contracted matrimony,' thus assuming the contract to be one thing, actual matrimony to be another, although visiting both offences with the same measure of punishment. "The stat. 12 Car. 2. c. 33. entitled 'An Act for confirmation of marriages,' enacts, that all marriages had and solemnised after a certain day before any justice of the peace shall be adjudged and taken to be of the same and of no other force and effect as if such marriage had been had and solemnised according to the rites and ceremonies established or used in the church or kingdom of England.' It is true that act is declared to be passed for the preventing and avoiding all doubts and questions touching the same;' but as the act or ordinance referred to contained a form of contract per verba de præsenti of the most accurate and precise description, and before witnesses, it affords ground to infer that a contract of that nature had not, in the general opinion, the force of an actual marriage; and observe how very strong the inference is from the proviso, that issues on the point of bastardy or lawfulness of marriage, depending on these marriages, should be tried by a jury.' Why not let them go to the Eccle siastical Court as before, if by the law of that court the contract per verba de præsenti was held an actual marriage without any religious ceremony? "The stat. 7 & 8 Gul. 3. c. 35. passed to enforce the laws which restrain marriages without licence or banns, had for its object the levying a revenue by the stamps imposed by a former act upon licences of marriages. For this purpose it lays a penalty of 107., by the 4th section on every man so married without licence or publication of banns as aforesaid;' that is, upon reference to the preceding clause, married by any parson, vicar, curate, MARRIAGE. or other minister as their substitute.' If the legislature had thought a CONTRACT OF contract per verba de præsenti before any person not being in holy orders was a valid marriage, it surely would not have left the remedy so defective, but would have enacted that every man married without a licence shall be made liable to the penalty. "The stat. 10 Anne, c. 19. is an act for raising money for the use of the kingdom; and in s. 176. provision is made to prevent the great loss of duties on marriage licences which had been sustained by the frequency of clandestine marriages. The provision is, that every parson, vicar, or curate, or other person in holy orders, who shall after a certain day marry any person in any church or chapel, or in any other place whatsoever, without publication of banns, or without licence first had from the proper ordinary, for such marriage, shall forfeit 1007. Would this penalty have been limited to the case of marriage by a person in holy orders if it had been conceived by the framers of the act that a contract per verba de præsenti alone, without the aid of the priest, had constituted a complete marriage? The inference arising from these acts is not certainly so very strong, but whatever inference can be drawn has a tendency to support the opinion at which we have arrived. "The various acts of Parliament which have been passed from time to time, and which have been referred to in the course of the argument, imposing penalties on the solemnisation of marriages by Roman Catholic priests in Ireland between Protestants, or between a Protestant and a Roman Catholic, and nullifying such marriages, are founded in good sense, and with a view to attain a definite object, upon the supposition that the presence of a priest is necessary to make the marriage good, and upon that supposition only; but they are a mere dead letter, if the contract per verba de præsenti without the priest makes the marriage. And if this is no proof, as perhaps it is not, that such was necessarily the law, it is at least a proof that it was the prevailing general opinion, both amongst the people and the government, that by law the presence of the priest was essential to the contract. Opinions of the Judges in Reg. v. Millis and Reg. v. Carroll. Stat. 10 Anne, c. 19. "But upon referring, in the last place, to the stat. 26 Geo. 2. c. 33. the Stat. 26 Geo. 2. act for the better preventing clandestine marriages, it will be found the c.33. provisions thereof throw a stronger light upon the subject. If a contract per verba de præsenti had been considered by the legislature as ipsum matrimonium,' one would have expected that all such contracts made after the act came into force, if not made illegal, would at least be declared null and void. There could have been no more effectual mode of suppressing clandestine marriages; but there is no such enactment. The only clause that affects these contracts is the 13th, which enacts only that no suit or proceeding shall be had in any ecclesiastical court in order to compel a celebration of any marriage in facie ecclesiæ, by reason of any contract of matrimony whatsoever, whether per verba de præsenti or per verba de futuro, which shall be entered into after the 25th March, 1754.' These contracts per verba de præsenti are still, therefore, lawful, though they cannot be enforced in an ecclesiastical court. If these contracts did not before and at the time of passing the act constitute a valid marriage, but were only the necessary means-the basis for enforcing the solemnisation there is then no injury in leaving them as they were; but if they ever con CONTRACT OF Opinions of the Judges in Reg. v. Millis and Reg. v. Carroll. Dalrymple v. stituted a valid marriage of themselves, not being made null by the act, so do they still; and then may some great and almost inextricable difficulties occur from the absence of such provision. "Before the passing of the act, and indeed since, put the case that A. made a contract of marriage per verba de præsenti with B., and then, in the lifetime of B., marries C. in facie ecclesiæ, and that he has children at the same time both by C. and B.; B. dies; are the issues of both legitimate? It is clear from the decisions, that the issue of A. and C. are legitimate; and if the argument on the part of the crown, that the contract with B. makes the marriage be well founded, the issue of B. is legitimate also. Suppose two sons, born at the same time, one from each mother, a possible event, which is the eldest son and heir? This and many more cases of difficult solution may be put, if the contract per verba de præsenti was by the English law held to be actual marriage; and from these considerations arises the necessary inference, that it was not; and thus do arguments from the enactments of the legislature combine and agree with the authority of the decided cases, to prove that such never was the law of England. "My lords, I proceed, in the last place, to endeavour to show that the law by which the spiritual courts of this kingdom have from the earliest time been governed and regulated is not the general canon law of Europe, imported as a body of law into this kingdom, and governing those court proprio vigore, but, instead thereof, an ecclesiastical law, of which the general canon law is no doubt the basis, but which has been modified and altered from time to time by the ecclesiastical constitutions of our archbishops and bishops, and by the legislature of the realm, and which has been known from early times by the distinguishing title of the king's ecclesiastical law. And if it shall appear, upon reference to this law, that there is no incontrovertible authority to be found therein that marriage was held to be complete before actual celebration by a priest, the absence of such direct authority in the affirmative is sufficient to justify us in drawing the conclusion already formed, that the contract alone is not by the law of England the actual marriage. The result, however, of a somewhat hasty consideration of the authorities upon this question (for the due research into which we were anxious to have obtained a longer time) appears to us to be, that no such rule obtained in the spiritual courts in this kingdom. "It would scarcely have been necessary to have entered upon this part of the discussion, had it not been for the observations made by Sir William Scott in the case of Dalrymple v. Dalrymple. That very learned judge, after laying down in his deservedly celebrated judgment in that case, that marriage is a contract of natural law and of civil law also, proceeds to ob serve, that when the natural and civil contract was formed, the law of the church, the canon law, considered it had the full essence of matrimony without the intervention of the priest;' which canon law is then stated by that eminent judge to be the known basis of the matrimonial law of Europe.' The observation upon which so much reliance has been placed by the counsel for the Crown then follows: that the same doctrine is recognised by the temporal courts as the existing rule of the matrimonial law of this country,' although certainly the observation is in some degree qualified by the expression, that the common law had scruples in applying the civil rights of dower and community of goods and legitimacy in the cases CONTRACT OF of these looser species of marriage.' "My lords, as we have already stated in the opinion we have given, that we do not conceive it to be part of the law of the temporal courts that 'when the natural and civil contract was formed it had the full essence of matrimony without the intervention of the priest,' it is only proper to state, in the first place, that the entertaining, as we do, a different view of this subject from that eminent judge, does not in any manner whatever break in upon the authority of the decision in the case of Dalrymple v. Dalrymple. "The doctrine of the temporal courts in England had no bearing at all upon a question which was to be decided solely by the law of Scotland, which country, it is well known, differs materially from ours in many of its legal institutions, and in none more pointedly than those which relate to marriage and legitimacy. Again; it was no importance in that case whether the canon law of Europe was introduced into England as part of the law of the land; the only question necessary for the decision of the case then before the court being, whether such canon law was introduced or not into the law of Scotland. The opinion, therefore, of that eminent person, so far as regards England, was uncalled for and extra-judicial; and upon that ground the question before us must be considered as unfettered by the weight of such great authority, and open to the most free discussion. "But that the canon law of Europe does not, and never did, as a body of laws, form part of the law of England, has been long settled and established law. Lord Hale defines the extent to which it is limited very accurately. The rule,' he says, by which they proceed is the canon law, but not in its full latitude, and only so far as it stands uncorrected either by contrary acts of parliament, or the common law and custom of England, for there are divers canons made in ancient times and decretals of the popes that never were admitted here in England.' (1) MARRIAGE. Opinions of the Judges in Reg. v. Millis and Reg. v. Carroll. The canon law of Europe does not, as a body of laws, form part of the law of England. "Indeed the authorities are so numerous, and at the same time so express, that it is not by the Roman canon law that our judges in the spiritual courts decide questions within their jurisdiction, but by the king's ecclesiastical law, that it is sufficient to refer to two as an example of the rest. In Caudrey's case (2), which is entitled ' Of the king's ecclesiastical Caudrey's case. law,' in reporting the third resolution of the judges, Lord Coke says, 'as in temporal causes the king, by the mouth of the judges in his courts of justice, doth judge and determine the same by the temporal laws of England, so in cases ecclesiastical and spiritual, as namely (amongst others enumerated) rights of matrimony, the same are to be determined and decided by ecclesiastical judges according to the king's ecclesiastical law of this realm;' and a little further he adds, So, albeit the kings of England derived their ecclesiastical laws from others, yet so many as were proved, approved, and allowed here, by and with a general consent, are aptly and rightly called, the king's ecclesiastical laws of England.', In the next place, Sir John Davies in his Reports, page 69. Le Case de Commendams,' shows how the canon law was first introduced into England, and fixes the time of such introduction about the year 1290, and lays it down thus: (1) Hale's History of Common Law, c. 2. Y Y (2) 5 Co. t. Le Case de |