This statute was followed by 19 Geo. 2, c. 13, by which the marriages between Papists and Protestants, and between two Protestants, celebrated by a popish priest, are declared null and void without any sentence or process of law whatever. This statute gives a degree of force to a previous argument that makes it irresistible. The 12 Geo. 1 did not make the marriages void; the 19 Geo. 2 makes all such marriages void for the future, and some of them that had been already celebrated. What, then, becomes of a marriage * celebrated by a layman pretending to be a *568 member of the Irish church; for there is no reference whatever in this last statute to marriages so celebrated? It is good under these two statutes, though the person celebrating it may be punished under the earlier of them. The English Marriage Act itself directed that thenceforth all marriages should be in a church and by banns; but even that statute did not direct that the marriage should be celebrated by a person in holy orders. [THE LORD CHANCELLOR. But some years ago a person of the name of Smith, not being a person in holy orders, celebrated in a church and by banns many marriages, and it was deemed necessary to pass an Act to validate them; which would show that the presence of a true priest was considered necessary under that statute.] That might have been only to satisfy doubts. The 23 Geo. 2, c. 10, which recited the two previous statutes (Irish), contains this remarkable provision, § 3, that the priest should suffer notwithstanding the marriage should be declared void under the 19 Geo. 2, a provision which, in the clearest manner, shows the intention of the legislature, and the view it entertained of the existing law. The whole scope of the argument on the three statutes, the 12 Geo. 1, the 19 Geo. 2, and the 23 Geo. 2, is, that marriages celebrated by one class of the persons described in those statutes, namely, the laymen, though forbidden to be so celebrated, would be valid but for the provisions of one of these statutes, yet the consequence would be that the persons celebrating them render themselves amenable to punishment. Then comes 21 & 22 Geo. 3, c. 25; but before mentioning it, perhaps it will be as well to mention an observation of Lord COKE, in Twyne's Case, (a) as to the construction *569 of a declaratory Act: "Note well this word (declare), by which the Parliament expounded what the common law was before." The Act 21 & 22 Geo. 3, c. 25, was passed for the purpose of recognizing marriages which had taken place before its enactment; it is intitled "An Act for the relief of Protestant Dissenters in certain matters therein contained." The recital was, "Whereas, the removing any doubts that may have arisen"—it does not pretend to say that the doubts are well-founded "concerning the validity of matrimonial contracts or marriages entered into between Protestant dissenters, and solemnized by Protestant dissenting ministers or teachers, will tend to the peace and tranquillity of many Protestant dissenters and their families;" not that it would change the status of the parties, but that it would tend to the peace of their families. If the marriages had not been valid, the statute never would have been introduced by such a preamble. It then goes on to declare that all marriages between Protestant dissenters should be held valid, in like manner as if such marriages had been duly solemnized by a clergyman of the church of Ireland, but that nothing in it contained should be construed to extend to make void the provisions as to offences against the statutes against clandestine marriages. On this Act Mr. Justice PERRIN founds his judgment, and observes that "This is a declaratory Act: the marriages were good before." Why were they good? It must be either because all contracts of marriage were valid, if they were before witnesses and capable of being proved, or that, if any religious ceremony was necessary, it was not necessary that it should take place before a person in full orders in the Church of England. There is no escape from this conclusion. This statute was the foun (a) 3 Rep. 82 (b). dation of Lord MANNERS's * judgment in Houghton v. *570 Houghton, when he held that a Quaker's marriage was valid. The 12 Geo. 1 recognized a marriage by a layman to be a good marriage; and the 21 & 22 Geo. 2 declares what the common law is, and makes a marriage good on one or other of the suppositions just stated. These are the arguments which suggest themselves on the Irish statutes. The case of the Quakers may be now considered. There is no instance of an administration in the Ecclesiastical Courts being refused to a Quaker. [THE LORD CHANCELLOR. — You must go further, and show that there have been applications for them. Unless the question has been raised, there is nothing in the argument. Their affairs are settled in their own societies.] Cases of claims of administration by Quakers must have arisen, and there is no instance of a refusal to allow an administration to a Quaker on the ground of the invalidity of his marriage. On the contrary, they have never been considered included in the Marriage Act; and though lately their marriages have been expressly recognized, no one ever before doubted respecting them. In the printed report (a) this matter was thus remarked on: "The case of Dee v. Thomas (b) proves beyond question that a ceremony according to the form of the Quakers constituted a valid marriage, and that the interposition of a clergyman is not necessary, if the ceremony is celebrated before witnesses according to the rites and customs of that respectable society." If there is no case of a suit for the grant of administration to a Quaker, there is the case of a suit for a divorce, in which a Quaker applied to the Ecclesiastical * Court * 571 for a divorce, and the marriage was treated as a good marriage and the suit was entertained: yet in such a case an actual marriage is required to be most strictly proved. No observations need be made on the case of the Jews; for however anomalous their right to celebrate a marriage in (a) Dix's Report, p. 240. (b) Moo. & Mal. 361. their own forms, it must be admitted that they have been considered and treated as a peculiar people; so that no arguments of any great weight can be derived from the case of the Jews. But the case of the Quakers is decisive. They are English subjects; they are dissenters from the church; they sprang up within legal memory, and at the time of the earlier decisions upon them, their origin was within living memory. They were Christians, -English subjects, — not claiming any connection whatever with any foreign power: they severed themselves from the Church of England, and yet their marriages have always been considered valid. It is therefore clear that a religious ceremony in marriage has not always been held to be in law a necessary part of the Christian religion. No ceremony of that sort was bequeathed to the world by the great Founder of our religion; though from the earliest times all persons had no doubt a desire to sanctify, by religious rites, a contract of so much and such lasting importance. [LORD ABINGER. What was the case in which the validity of a Quaker's marriage was first admitted?] In a case referred to in a note to the case of Lindo v. Belisario. (a) The name of the case is not given, but it is quoted from Sewell's Hist. Quakers, p. 492. There the marriage was held valid for the purposes of an action of ejectment. This was decided in 1660, at the Nottingham assizes. * 572. * [LORD ABINGER. But that marriage might have taken place under the ordinances of the Common wealth.] It might be so; the case does not show that one way or the other; but the authorities, most of which are collected in the note referred to, clearly show that the validity of such a marriage has long been established, and constant practice and legislative recognitions now leave no doubt upon the matter. (a) 1 Hagg. Cons. Rep. App. 9, n. In Woolston v. Scott (a) it is spoken of as a matter of clear law. From the earliest time the marriages of Quakers have been considered good for all purposes, - for ejectment, succession, administration, actions for criminal conversation, and every other legal purpose. That is utterly irreconcilable with any other notion than that, by the common law of England, a priest in holy orders was not essential to matrimony; and it shows that when the legislature insisted on other sects of Christians adopting a form of marriage which an ordained priest was required to celebrate, the Quakers were still allowed to enjoy the benefit of the old common law. This brings the case to the third branch of the argument; namely, that a Presbyterian minister fully satisfies the supposed necessity for the presence of a priest. Upon this point Sanchez (b) may be referred to, and he shows the priest there more in the character of a witness than an officer, and requires him to receive the declared consent of the respective parties, and not to put the form of consent into their mouths and ask them if they adopt it. In M'Adam v. Walker, (c) Lord ELDON adopts the expression of Lord STOWELL in Dalrymple v. Dalrymple, and says: "The fact was, * 573 that the canon law was the basis of the marriage law all over Europe, and the only question was how far it had been receded from by the laws of any particular country. By the canon law, the distinction between the contract de præsenti and the promise de futuro was well known; the former constituting a good marriage of itself; the other not, unless followed by copula, or some other act which is held in law to amount to the carrying the promise into effect." It may be said, perhaps, that this was an obiter dictum of Lord ELDON; but if so, the only observation necessary, in answer to that objection, is, that as he was the most cautious as well as learned Judge that ever sat on the bench, his very obiter dicta, if so they can be called, are entitled to the weight of the highest authority. It is difficult to find the (a) Bull. N. P. 28. (b) Book III. Disp. 38, par. 4 & 5, pp. 297, 298. |