On this page

• Text (1)

  Note: This text has been automatically extracted via Optical Character Recognition (OCR) software. The text has not been manually corrected and should not be relied on to be an accurate representation of the item.

  • 

    Untitled Article

• Transcript

  • Note: This text has been automatically extracted via Optical Character Recognition (OCR) software. The text has not been manually corrected and should not be relied on to be an accurate representation of the item.

    Additionally, when viewing full transcripts, extracted text may not be in the same order as the original document.

    Untitled Article

    certificate as conclusive . In cases of disputed marriages , before the Mar * riage Act , the question always appears to have been , " Was the marriage ceremony performed by a person in orders ?* ' Thus , in the King v . Luffing * ton , * the question was , whether a marriage by a person erroneously sup * posed to be in orders was valid ; a question which could never have arisen unless it had been essential to prove that the ceremony was performed by such a person . In addition to these authorities , many dicta of the ecclesi- * astical Judges might be cited to prove the position above advanced .

    On the other hand , it is said by those who argue in favour of the legality of marriages contracted without any religious sanction , and without the intervention of a person in holy orders , that it is admitted by the civilians themselves that originally marriage was only a civil contract . f The celebration in a church , or before a person in orders , being a matter of

    ecclesiastical ordinance only , was not before the Marriage Act , 26 Geo . II ., considered to be essential at common law , to the validity of a marriage . It may be admitted that the practice of celebration in facie ecclesice , or before a priest , was almost universal , but it was a consequence of the ecclesiastical censures and disabilities to which the parties would otherwise have subjected themselves . All the authorities which can be collected on the other side of

    the question , setting aside certain loose dicta of the Judges , are cases either determined in the spiritual courts , or argued by civilians , and only prove the existence ofthe rule in the ecclesiastical law . Thus , in Bunting v . Leapingwell , the court acted upon the opinion of the civilians ; while , in Heydon v . Gould , which was decided before the delegates , it was said that perhaps the wife or the issue of the marriage might entitle themselves by such a marriage to a temporal right . This case can only , therefore , be considered as art

    authority in the spiritual courts , which appears to have been the opinion of Chief Baron Comyn , who abstracts it thus : J " If the marriage be not conformable to the ecclesiastical law , the husband shall have no right by the ecclesiastical law , as if the marriage be in a separate congregation by their preacher , who is a layman , the husband will not be entitled to administration . " With regard to the admission of the bishop ' s certificate in cases of dower , which is allowed to be conclusive in the common-law courts , it by no means proves that those courts would be guided by the rules ofthe ecclesiastical law

    if the case came directly before them . Numberless instances exist in which the courts of common law recognize the authority of judgments and sentences , though founded upon rules and obtained upon evidence wholly unknown to the common law , as in the instance of decrees in chancery . Had the question arisen in a court of common law , it would have adjudicated upon it in a manner wholly different , and yet , finding it determined by 3 competent tribunal , such determination is regarded as conclusive . The

    authorities to shew that before the Marriage Act the intervention of a priest was unnecessary , are numerous . It appears to have been the opinion of Sip Matthew Hale , as we learn from the following passage in his life by Burnet : ?* A Quaker being sued for his wife ' s debts while sole , insisted that his marriage was not legal , not being according to the rules of the Church of England ; but Hale declared that he was not willing on his own opinion to make their children bastards , and gave directions to the jury to find it special , as he had undoubtedly a right to do . —He thought all marriages made according to the

    * Burr . sett . ca . 232 . t See Bunting v . Leapingwell , Moor , 169 ; Blackstone ' a Com . Vol . I . p . 43 $ , J Digest , Baron and Feme ( b . i . ) . ' .

    Untitled Article

    History or the English MatHuge Lavb . 77

• Citation
  • Monthly Repository (1806-1838) and Unitarian Chronicle (1832-1833), Feb. 2, 1828, page 77, in the Nineteenth-Century Serials Edition (2008; 2018) ncse-os.kdl.kcl.ac.uk/periodicals/mruc/issues/vm2-ncseproduct2557/page/5/