THE LORD CHANCELLOR.- Suppose there is a contract per verba de præsenti, and nothing further, -no cohabitation; would the church under such circumstances interfere by its censures?

LORD CAMPBELL. That case has not come within my observation. The cases to which I refer, and which are not at all unfrequent, are those of a runaway, or what is called a half-mark marriage, where the parties contract per verba de præsenti, and where they live together as man and wife, and are unquestionably man and wife, and where the children would be legitimate if the parents died without any further ceremony; that was decided by your Lordships' House in the case of M'Adam v. Walker, (a) where the man shot himself the instant he declared that the woman he had married was his wife. In those cases still the church considers the marriage as irregular, and summons the parties before the kirk session, and rebukes them for not having observed the rules of the church.

LORD BROUGHAM.I have heard the censure of a clergy

man for solemnizing a marriage without publication *756 of banns, which is reckoned irregular; but I never

heard of parties being liable to rebuke, or that they have come before the congregation or kirk session, for merely marrying privately without cohabiting.

LORD CAMPBELL. It is for living together as man and wife without having been married by a clergyman that the censure is pronounced.

But to show that there was a peculiar law in England on this subject, even in the time of the Anglo-Saxons, there is cited to us a supposed law of King Edmund, directing "that at the nuptials there shall be a mass-priest, who shall, with God's blessing, bind their union to all prosperity." Setting aside the grave doubts which have been entertained of the

(a) 1 Dow, 148.

genuineness of this document, does it show, that while a mass-priest is directed to be present at nuptials, nuptials without the presence of a mass-priest would be void, and that this ever after was the law of England? Then is a marriage void that is celebrated by a deacon? for he is not a mass-priest, and his presence would as little satisfy the law as that of the verger or the sexton.

There were then cited to us numerous decrees of provincial councils on the subject of marriage, the great object of which was to discourage clandestine marriages, and to require that all marriages should be celebrated in the face of the church; but there is no reason to suppose that the prelates who presided at these councils, many of whom were foreigners, intended to introduce any law touching the essentials of marriage different from what prevailed in the rest of Christendom; they were only in the nature of by-laws, to be observed in a particular diocese or province, to prevent as much as possible all clandestine marriages, either with or without the intervention of a priest. I believe there is only one of these constitutions, that of Archbishop Lanfranc in the year 1076, which professes to nullify a clandes- *757 tine marriage, by declaring that a marriage without the benediction of the priest should not be a legitimate marriage, and that other marriages should be deemed fornication. But this denunciation goes further than the law is supposed ever to have gone; for the blessing of the priest was not essential to the validity of the marriage, if he was present, and the denunciation may rather be taken to be in terrorem than as making or declaring the law.

The different decrees against clandestine marriages seem to me to have no cogency to show that there was in England any peculiarity respecting the law of marriage as held by the Ecclesiastical Courts. These decrees, if they were supposed to apply to the validity of the marriage, are contrary to the plainest propositions of canonists, both foreign and native, and to the universal practice of Christendom. The existence of such a peculiarity seems wholly inconsistent with the procedure by which that law was administered. The church of Rome, in every country under its jurisdiction, was most

anxious that marriages should be publicly celebrated in the presence of a priest; first, for the laudable object of preventing imprudent unions by which the peace of families might be disturbed; and secondly, for the excusable object of collecting fees from the faithful. It was proved before your Lordships' committee on the law of marriage in Ireland that a principal part of the emoluments of the Roman Catholic clergy in Ireland now arises from fees on marriages, and that for this reason they are celebrated at the times, in the places, and under the circumstances when it may be expected that the contributions will be most bountiful. But till the Council of Trent, when marriages were absolutely required *758 to be before the parish priest, or some other person duly authorized by the bishop or the parish priest to officiate, and all other marriages were declared to be null, -the doctrine of the church of Rome certainly was that there might be a valid marriage without the intervention of a priest; and if that was so, it was hardly possible that any different law should prevail in any state subject to her jurisdiction.

*

In England, the common-law Judges professed, with respect to marriage, to be governed by the Ecclesiastical Courts; those Courts alone took direct cognizance of the validity of marriage; and when the question arose incidentally before the common-law Judges, they referred themselves to the bishop as the ecclesiastical Judge, and were governed by the certificate which he returned. Upon some occasions the validity of marriage arose as a question before the commonlaw Judges when they could not consult the bishop. On such occasions they would have regard to the ecclesiastical law, and decide accordingly; but the bishop would not on any occasion disregard the general ecclesiastical law, and be guided by any different rules laid down by the Courts of Common Law.

Let us now see whether there are any common-law decisions to the effect that there cannot be a valid marriage without the presence of a priest. priest. I must again remind your Lordships that this is the question, and not whether a mere executory contract to marry constitutes marriage. There has

been cited to us from Lord HALE'S manuscripts the note of a case (a) supposed to have been decided in the reign of Edw. 1, the statement of which is so scanty and obscure that I think no weight can safely be given to it as an expo

*

sition of the law in that reign. We are not told how *759 A. contracted with B., or that any ceremony or form intended as spousals passed between them. It is said that A. married C., from which it may be inferred that he did not intend that his contract with B. should operate as a present marriage, and that his contract with her, although per verba de præsenti, was only meant to be executory. However, in the Court in which the action was originally brought, it was held that B. was dowable of the lands in question, which could only be on the ground that A. and B. were husband and wife from the time of the contract, for the marriage could not possibly date from the sentence of the ordinary. The judgment was reversed" coram Rege et Concilio." This is suggested at the bar to have been on a writ of error in Parliament. There can be no doubt that one of the King's Councils at that time consisted of the Chancellor, the Treasurer, the Barons of the Exchequer, the Judges of either Bench, with the King's Serjeant and the King's AttorneyGeneral, and that they assisted in deciding cases brought before Parliament; but I am not aware that a writ of error in Parliament was ever said to be coram Rege et Concilio. On the contrary, my Lords, this was the style of the Star Chamber, and I conceive that the case must be considered as an instance of the irregular interference by the King and his Privy Council with the ordinary administration of justice; the reversal of the judgment may have been out of favour to D., to whom the feoffment was made by A. after he was excommunicated. Lord HALE adds, "neither the contract nor the sentence was a marriage." The sentence could not be a marriage, no more could the contract, if it was intended not as nuptiæ, but only as an engagement to marry.

*Then come the two cases of Foxcroft and Del *760 Heith, and I must express my astonishment that any

VOL. X.

(a) Co. Litt. 33 a, n. 10.

41

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reliance should be placed upon them in support of the proposition that marriage without a priest is void. If they prove any thing, they prove that marriage by a priest is void unless celebrated in facie ecclesiæ. Foxcroft was married in a private chamber by the Bishop of London, and the only objection taken to the validity of the marriage was, that it did not take place in a church or chapel, and that it was without the celebration of mass. Del Heith's Case is precisely the same in its leading facts; there was not a mere contract per verba de præsenti, but nuptia were actually celebrated. Del Heith was solemnly married to the woman by his parish priest; and because the marriage was in a private chamber, and not in facie ecclesiæ, the son born after the marriage was adjudged a bastard. Can these cases have been decided according to the law of England, as it stood in the reign of Edward 1? Was a marriage solemnized by a priest in orders, or by a bishop in a private chamber, absolutely void? If so, when was the law introduced by which it was made void? It is not pretended that in the time of the Anglo-Saxons more was required than a benediction by a mass-priest, which might as well be given in a private chamber as in a church or chapel. If, in the reign of Edward 1, all marriages were void except such as were celebrated in the face of the church, when and by what authority did private marriages by a priest in orders become valid? Could an ecclesiastical canon, sanctioned by the pope, without the consent of the King and Parliament, effect the change? If it could, where is any such canon to be found?

I had always thought that these two cases had been allowed to have been decided contrary to law, and I have no *761 doubt that they were so. They may now be cited

quite as much to show that a marriage is void by the canon law, if privately solemnized by a bishop, as that an actual marriage is void without the presence of a priest. They prove a great deal too much, or they prove nothing at all. But I cannot dismiss them without this observation, which they fully illustrate, that you cannot safely take the law upon such a subject from two or three cases, supposed to have been decided in very remote times, which may be mis