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merely in the bridegroom going to the bride's house and publicly carrying her to his own. (Moore'sReports.) And even in those states more immediately under the controul of the court of Rome, it appears doubtful whether marriage was ever solemnized by a minister of the church before the eighth century. Mr. Selden says it was sometimes done by the choice of the contracting parties, but he asserts they were under no obligation of law to do so, "nor did any custom "prevail so as to give it the title of a general custom." But Broughton, in his Bibliotheca Historica Sacra, informs us that "afterwards, about the eighth and ninth centuries, some of the more zealous emperors made express laws, prohibiting all marriages without the benediction of the "church." (Vol. 2, 180.) And Pope Innocent III., by compelling the marriage to be performed in the church, completed what had thus been begun by Christian emperors, falsely so called. This corrupt and ambitious pontiff filled the papal chair at the commencement of the thirteenth century; he established in the church the sacraments of Transubstantiation and of Auricular Confession;* and it is not improbable that marriage was introduced by him as a religious ceremony or sacrament into the church, in order to increase the power, and add to the revenues of the clergy. At about this period (1222) Otho, the pope's legate in this country, convoked a national synod at St. Paul's church, London; at which synod a canon was passed, decreeing that the number of sacraments should be fixed at seven,† in which number marriage was then, for the first time, included as a sacrament. From this period, as the power of the church, and the ignorance of the age increased, marriage became to be considered as a mystical rite by the people, although it was still held, by the English law, as a civil contract," the "intervention of a priest to solemnize this contract being "merely juris positivi, and not juris naturalis aut divini.' (Blackstone.) Still, however, in England, as it is in Scotland at this day, any contract made between the man and the woman to live together, was deemed a valid marriage to many purposes, and continued to be so held in law up to the period of passing the marriage act 26 Geo. II. In the times of Cromwell marriages were performed before the justices of the peace, the enactment which was passed in the year 1653, being as follows:

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"That all persons intending to be married shall come before some Justice of the Peace; and, if there appear no reasonable cause to the

* Mosheim, vol. iii. p. 243.

† Smollett, vol. iii. p. 86.

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contrary, the marriage shall proceed in this manner:be married taking the woman by the hand shall plainly and distinctly pronounce these words-I, A. B. do, in the presence of God the searcher of all hearts, take thee C. D. for my wedded wife; and do also, in the presence of God and before these witnesses, promise to be unto thee a loving and faithful husband. The woman promises in the same form to be a loving faithful and obedient wife. And it is further enacted, that the man and woman having made sufficient proof of the consent of their parents and guardians (if under the age of twenty-one years); and, expressing their consent unto marriage in the manner and by the words aforesaid before such justice, in the presence of two or more credible witnesses, the said justice may and shall declare the said man and woman to be thenceforward husband and wife, and the marriage shall be good and effectual in law.”

The mode of carrying this act into effect is exhibited by the following curious extract from the Register of St. Mary, Whitechapel:

"Publications and marriages in December 26, 1653.-Julius Wood of Nightingale Lane, in this parish, Mariner, and Martha Waggdon of the same, Widow, were published in the market place of Leaden-hall, three several market days, in three several weeks (viz.) on the 16th day, on the 19th day, and on the 26th day of December 1653; and the said Julius Wood and Martha Waggdon were married by me Richard Loton, Esq. and justice of peace in the county of Middlesex, on the 26th day of December, 1653. Edward Callis and Tobias Harborough, witnesses, present.

Some marriages are described in the same register as "published at the publicke meeting place, commonly called Mary Whitechapel Church." This was called "being married by the directory," and it is curious to observe the vicissitudes of those forms of religion which have no other sanction than act of parliament; for it appears that in the above year, being the first of the protectorate, and the liturgy not being then repealed, one Stephen Marshal, in order, at all events, to make the marriage of his daughter secure, had her married "by the form prescribed in the liturgy, and paid five pounds to the "churchwardens of the parish, as the fine or forfeiture for using any other form of marriage than in the directory."See Heylen's Examen Historicum, as quoted in " Thelyphthora; "or, a Treatise on Female Ruin," vol. 3-1781.

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At the restoration it is important to note that by 12 Car. II., c. 33. all marriages celebrated by the justices were declared legal without any fresh solemnization. Still, however, the necessity of this declaration demonstrates that marriage was regarded by the canon law as incomplete without a religious solemnization; and it was to protect the parties against the penalties and disabilities that might arise in the ecclesiastical courts that this act was passed. The canon and the common law, it may be observed, are essentially, and in practice, jealous of each other; but even the canon law

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regards marriage as a civil contract, as the ecclesiastical courts cannot void a marriage that has been entered into without a religious solemnization, but can only punish the parties for not solemnizing the marriage agreeably to the forms of law; but the courts of common law have never ruled that the religious ceremony, which the ecclesiastical courts claim to be so indispensible, is essential to the general validity of marriage. The canon law, is by no means of equal authority with the common law of England; for, at the commencement of the reformation, it was enacted in parliament that this monstrous and anomalous collection of church law-the canons-should be reviewed; and that, till such review should be made, all canons, constitutions, ordinances, and synodals provincial, being then already made, and not repugnant to the law of the land, or the king's prerogative, should still be used and executed. Now, as this review has never taken place, it is upon this statute only, and to the extent therein expressed, that the authority of the canon law depends.*

The restoration of Charles II., with whom also the liturgy was restored, would naturally expose the Quakers to inconvenience with regard to marriage, as they claimed and exercised the right of entering into marriage before their own meetings, and without any religious ceremony. The opinion of Judge Hale, upon these marriages, we have recorded by a learned cotemporary, Bishop Burnet; this opinion will not be suspected of being the result of any undue partiality towards the dissenters in the breast of the judge, when the reader is reminded that, in his celebrated" Letter to his "Children," Judge Hale warns them not to keep company

* The canons are derived from the Romish church—and it might have been expected that the inconsistency of this church, with regard to marriage, would have caused the reformed church to pause, before such an authority had been admitted on such a subject; for although, at the commencement of the thirteenth century, marriage was held by the church of Rome to be a sucrament, it had been previously regarded as little short of a crime, when a life of celibacy was esteemed a necessary evidence of superior piety :-And it is stated in Bogue and Bennet's History of Dissenters, vol. 1, p. 15, that "In the seventh century Theodore, archbishop of Canterbury, was celebrated through all the Western church for writing a penitential, or treatise, to direct what penance should be enjoined for certain crimes: among other matters persons newly married were commanded to abstain from entering a church for thirty days, and to REPENT FOR FIFTEEN!" Mosheim assigns to this prelate the credit of having "reduced to a regular science that branch of ecclesiastical law which is known by the name of penitential discipline.”— Ecclesiastical History, vol. 2, p. 15.

with heretics-such as Quakers, Anabaptists, &c.; these prejudices, however, did not sway him when on the judgment seat, as will best appear in Burnet's own words:

"He was a devout Christian, a sincere protestant, and a true son of the church of England; moderate towards dissenters, and just even to those from whom he differed most; which appeared signally in the care he took of preserving the Quakers from that mischief that was like to fall on them by declaring their marriages void, and so bastarding their children; but he considered marriage and succession a right of nature, from which none ought to be barred, what mistake soever they might be under, in the points of revealed religion. And, therefore, in a trial that was before him, when a Quaker was sued for some debts owing by his wife before he married her, and the Quaker's counsel pretended that it was no marriage that had passed between them, since it was not solemnized according to the rules of the church of England, he declared he was not willing, on his own opinion, to make their children bastards, and gave directions to the jury to find it special. It was a reflection on the whole party, that one of them, to avoid an inconvenience he had fallen in, thought to have preserved himself, by a defence that, if it had been allowed in law, must have made their whole issue bastards, and incapable of succession; and for all their pretended friendship for one another, if this judge had not been more their friend than one of those they so called-their posterity had been little obliged to them. But he governed himself, indeed, by the law of the gospel-of doing to others what he would have others do to him; and therefore, because he would have thought it a hardship, not without cruelty, if, among papists, all marriages were nulled which had not been made with all the ceremonies in the Roman ritual; so he, applying this to the case of the sectaries, thought all marriages made according to the several persuasions of men, OUGHT TO HAVE THEIR EFFECTS IN LAW."-Burnet's "Life and Death of Sir Matthew Hale, Knight, "Lord Chief Justice of England, with Richard Baxter's additional notes." London, 1805, p. 76, 77.

The above quotation exhibits the opinion of one of the most eminent judges and lawyers of his age, upon the validity of a class of marriages, more free than any other from all religious ceremony; the soundness of this opinion is confirmed by the fact that the Quaker marriages are now held good in law, although, since the days of Judge Hale, no statute has been passed which declares them to be so. Nor should it escape observation that this opinion, which militates so much against the claim of the established church to force her marriage ceremony upon those who dissent from her communion, is recorded and approved by a bishop of that church, and one of her most distinguished ornaments!

Directing our attention to the period more immediately preceding the passing of the Marriage Act, usually known as Lord Hardwick's Act, we may observe that the reformation, although it had declared marriage no longer to rank among the number of the sacraments of the church, had. not disturbed those mystical notions which had been asso

ciated in the public mind, with the supposed sacred ríte of marriage; hence the civil contract of marriage became to be regarded as of little importance; and, as late as the middle of the last century, marriage was, by many writers, maintained to be that solemn and religious contract which, being instituted by the church, was above all law, and which the law should neither direct nor controul. Regarded thus by the people as a religious contract, and by some, indeed, as a mere civil act, marriages were easily celebrated, and were held by the courts to be valid, whether performed by the clergyman, or the dissenting minister-in the church, or the meeting-house. This liberty of being married before their own congregations, and agreeably to their own forms, there can be no question, was possessed by dissenters up to the time of passing the marriage act 26 Geo. II., c. 33, in the year 1753. The toleration act, it may also be observed, which passed in the year 1689, must further have confirmed this right by legalizing the meetings and the religious teachers of dissenters.

There are also reported cases in the law books which indicate the fact that marriage, was practised before the congregations of dissenters, Anabaptists, Sabbatarians, &c.;* but this point is sufficiently recognized in the debate which accompanied the passing the Marriage Act. Lord Barrington, in his speech delivered in the House of Commons, in defence of the bill, in order to rebut the charge of innovation which had been made against it, held this language: Now, Sir, if gentlemen will but attend to the laws we have "now in being, they must see that all these things have. been by them already, in a great measure, taken care of. "No marriage can be good unless it has been solemnized "according to THAT religious ceremony prescribed by that sect "of religion to which the contracting parties belong."— Hansard's Parliamentary History, vol. 15, p. 25.

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That dissenters, therefore, possessed the lawful right of marrying agreeably to their own forms there can be no

* Hutchinson and Wife v. Broosbank, 3 Levinz, 376.-Wigmore's case; Salkeld 438-Lord C. J. Holt's opinion upon the latter case is thus recorded? By the canon law a contract per verba de præsenti is a marriage, as, I take you to be my wife. So it is a contract, per verba de futuro, viz. I will take, &c. If the contract be executed, and he does take her, it is a marriage, and they cannot punish for fornication; but only for not solemnizing the marriage according to the forms prescribed by law, but not so as to declare the marriage void." See also the cases ably stated and explained by a writer in the Monthly Repository, vol. 14, p. 174.

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