contract per verba de præsenti, between Jews, and a suit to compel solemnization, the libel was admitted, but the proof failed'; so, where the parties had read the words of the English ritual, but not in the presence of a clergyman, it was established as a marriage, and solemnisation decreed." Sir E. Simpson, at the conclusion of this period, thus briefly sums up the law as then practised: "The canon law re"ceived here calls an absolute contract ipsum matrimonium, ❝ and will enforce solemnities according to English rites;”3 and Lord Hardwicke shows its recognition by the common law,“Where a marriage is in fact, or in a contract in præsenti, "or in a suit for restitution of conjugal rights, a sentence in "the Ecclesiastical Court will be conclusive, and bind all; “but not if given in a collateral suit.4” How far a marriage of Dissenters may have been allowed as a marriage de facto, previously to this time, is somewhat doubtful. But the Revolution, which now occurred, caused one of those mighty changes in the frame of English society, which could not fail to leave deep traces on the national jurisprudence. Among its first and most distinguished fruits was the Toleration Act, stat. 1 W. & M. sess. 1. c. 18. Protestant Dissenters were, for the first time, constitutionally recognised, as entitled to full protection in the peaceful exercise of their religion, and could not be prosecuted in an ecclesiastical Court for not conforming to the Church of England. Two years after this, the bill of 1690 to restrain clandestine marriages was brought in, which, for the first time in Parliamentary legislation, proposed to make all such marriages void. It was thereupon moved, "that the Act should not extend to the marriages of Quakers," clearly implying that, but for the proposed law, their marriages would be good either de jure or de facto. The bill indeed dropt; but soon afterwards occurred the case of Hutchinson v. Brookbank (A. D. 1694).5 Hutchinson and his 1 Da Costa v. Villareal, 1733, 1 Hag. C. R. 242. 2 Leeson v. Fitzmaurice, Deleg. 1732; Letter to Lord Brougham, 59.; Observations on Lord Cottenham's opinion, 56. 3 Scrimshire v. Scrimshire, 1752, 2 Hag. C. R. 400. Roach v. Garvan, 1748, 1 Vez. 157. wife had been married in the face of a dissenting congregation, and were afterwards libelled in an ecclesiastical Court for fornication. They thereupon applied for a prohibition, suggesting that their marriage was protected by the Toleration Act, and leave was given them to declare in prohibition, which clearly showed, that the Court inclined in favour of their suggestion. The King's Court, therefore must at least have regarded it as a marriage de facto; and though the matter appears to have dropt, yet its impression was very effectual; for we never afterwards hear of any attempt by the ecclesiastical Court to disturb married Dissenters, on such a pretext, either before or after stat. 27 Geo. 3. c. 44., which only protects persons lawfully married. An Act of 16951 adverts to "marriages or pretended marriages" of Quakers and Jews; and declares, that they shall be of the same force and effect, as if the Act had not been made. Here again we have an evident implication, that some of them at least may have been good, either de jure or de facto. In Wigmore's case (A. D. 1705), there was an Anabaptist marriage, on which the wife sued in the Spiritual Court for alimony, and the King's Court refused to prohibit. My Lord Holt gave a strong opinion, that this was a valid marriage de jure, and he certainly did not intimate, that he would not have held it good de facto. Fielding's case, which occurred in the same year 2, was one of bigamy, for which offence (according to Coke) an unavoided marriage de facto supports the indictment. In the disputed marriage, there was no regular solemnisation. A sort of ceremony indeed was performed by a Romish priest; but the judge did not rest the legality of the marriage on that fact alone. He merely mentioned it as one of the circumstances, from which the jury might infer a marriage de facto, as he probably would have done, had a minister of any other communion intervened. Indeed, after the indulgence given by the Toleration Act to Protestant Dissenters, it would have been strange to refuse to their ministers a privilege conceded to Romish priests, few of whom could at that time be Stat. 6 & 7 Will. 3. c. 6. s. 63. 2 14 St. Tr. 1327. in the kingdom without incurring the guilt of treason. Yet strange to say, this very case of Fielding seems to be the sole authority (except the obscure fragments of Edmund and Lanfranc) for holding episcopal ordination to be the test of a lawful marriage! In 1710 occurred the above-mentioned case of a Sabbatarian marriage, in which, though the ecclesiastical Court refused the husband administration, yet it was said, "the wife, who is the weaker sex, and the children, who were in no fault, may entitle themselves to a temporal right by such a marriage." If so, it was clearly, by law, a marriage de facto.1 In 1718 another bill was brought into the House of Commons, to prevent clandestine marriages; and on this occasion a clause was agreed to by the whole House, "that the Act should not extend to prejudice the marriages of Quakers, solemnised by Quakers, between Quakers." One branch of the Legislature, then, at least, recognised those marriages as including a public solemn betrothment, and conveying some legal rights, which would seem, on principle, to be all that is essential to a marriage de facto. And indeed we find it laid down about this time in a work of repute, "that a marriage de facto, or in reputation, as among the Quakers, hath been allowed by the temporal Courts to be sufficient to give title to a personal estate." 3 V. We now reach the fifth period of the Matrimonial Law. Lord Hardwicke's bill was enacted in 1753. We shall not here dwell on the inconsistencies and iniquities of that Act. They have been fully set forth in one of the pamphlets before referred to.3 Happily, it has ceased to disgrace our statute-book; and we shall only observe, that by rendering all marriages in England null, which were not solemnised according to its enactments, it gave to the commonlaw Courts a concurrent jurisdiction on marriage de jure. Our present concern, however, is not with the cases under the Act, but with those exempt from its mischievous operation; viz. those of Scotch marriages, marriages between Quakers and between Jews, and marriages solemnised beyond the seas, including those on the sea, and in Ireland. 1 Haydon v. Gould, ut sup. 2 Wood's Inst. b. 1. c. 6. The Scotch marriages were treated on the same principles as those beyond the seas, which we shall presently consider. Jewish marriages, both before and after the Act, were probably considered as governed by a foreign law (namely, that of the Hebrew people); of which law the Courts received evidence, as of a matter of fact. The marriages of Quakers require more particular examination. "The case of the Quakers," says the present Lord Chief Justice of the Common Pleas, "is certainly one which it is difficult altogether to dispose of." The Lord Chancellor says, "It is of difficult solution." And Lord Cottenham says, "I have felt the fact, that such marriages have been recognised in several cases, very difficult to be explained." Now, this difficulty does not seem to strike Lord Brougham, Lord Denman, or Lord Campbell. They all think it clear that the Act contemplates the marriages of Quakers as good. Let us look, then, at the provisions of the Act. Sir Nicholas Tindal suggests, that the exception of the marriages of Quakers and Jews "amounted to a tacit acknowledgment by the Legislature, that a marriage solemnized with the religious ceremonies which they were respectively known to adopt, ought to be considered sufficient." But other sects were known to adopt religious ceremonies fully as much entitled, as those of Quakers and Jews, to the favour of the Legislature; for instance, the Sabbatarians, who used the form in the Common Prayer-book, excepting the ring: it could not, therefore, be from any consideration of the ceremonies, that these two classes of marriages alone were deemed valid. Besides, the statute does not say they shall be valid: it only applies to them a wellknown formula "this Act shall not extend" to such and such marriages. It would be a perfectly novel mode of construing that formula, to read it, "this Act shall extend to certain marriages heretofore void, and shall render them henceforward valid." The section immediately preceding says, "this Act shall not extend to any marriages of the Royal Family." Did any body ever dream, that marriages of the Royal Family were void before the Act, and were made valid by the Act? The only intelligible exposition of the clause in question is, that it leaves the marriages of Quakers exactly as they were. If, therefore, we find this class of marriages uniformly recognised as valid after the Act, we must conclude that they were held so (either de facto or de jure) before the Act; but before the Act they were not legally distinguishable from other marriages of Protestant Dissenters; therefore before the Act all marriages of Protestant Dissenters must have been held valid, either de facto or de jure. If, again, we are asked, why Quakers were more favoured by the Act than other Dissenters, we fear no better reason can be given than their unbending firmness. A Presbyterian, or an Anabaptist (it may have been thought) would submit to be married in a church, a Jew, or a Quaker, never. That Quaker marriages have been recognised in several cases since the Act, is notorious; and, as Lord Cottenham candidly admits, "it is impossible not to feel the importance of that fact." In the very year 1753, an Anabaptist marriage, which, being before the 25th of March, 1754, could not be affected by the Act, was allowed as the ground of a suit for criminal conversation, in Woolston v. Scott, coram Denison J., at Thetford, and a verdict obtained for 500l. On this case Buller J. observes, "It has been doubted whether the ceremony must not be performed according to the rites of the Church; but as this is an action against a wrong-doer, and not a claim of right, it seems sufficient to prove the marriage according to any form of religion; as in the case of Anabaptists, Quakers, or Jews." Now, this is only saying, in other words, " As against a wrong-doer, in an action of tort, a marriage DE FACTO, without the presence of an episcopally-ordained minister, was held, before Lord Hardwicke's Act, and should still be held, sufficient. Accordingly, a Quaker marriage was held sufficient, in a like action, as cited in 1776 by Willes J., in Harford v. Morris.2 And again in 1829, in Deane v. Thomas. So, as to personal property, "Widowers and widows," says Lord Campbell, "being Quakers, and the children of Quakers, have received 1 Buller, N. P. 28. 21 Hag. C. R. Ap. 9. 3 1 1 Moo. & Mal. N. P. 361. |