7. For the purpose of effecting these clandestine connexions nothing was required but the co-operation of a clergyman episcopally ordained. A minister of the Kirk of Scotland, or of the Presbyterian Church of Ireland, would not have been competent, for such minister is not episcopally ordained; but a clergyman of the Romish Church was fully qualified to officiate; as appears very clearly from the case of Beau Fielding, where a clandestine marriage, literally compiled of frauds and irregularities, was held good, solely by reason of the fact that the transaction had been sanctified by the presence and the aid of a priest.

8. From the State Trials we collect that the celebrated profligate Beau Fielding, who flourished in the reign of Queen Anne, entertained a project of repairing his battered fortunes by marrying a certain rich widow whom he had never seen, but of whose pecuniary resources he had prudently informed himself by procuring from Doctors' Commons a copy of her husband's will. To this lady the beau sent many tender and urgent messages, soliciting permission to throw himself at her feet, not doubting that if she were but once to behold his very handsome person she must necessarily conceive for him a passion similar to that which had seized other women on their first seeing him. The widow, however, we learn, took no notice of his importunities. But one of his emissaries, a woman of the town, having sustained some slight at his hands, revenged herself by persuading another of her frail sisterhood to personate the widow, and to come in that character to his apartments. This done, a Spanish priest attached to a foreign embassy was sent for, and performed the ceremony of marriage in the beau's bedroom, according to the rites of the Roman Catholic church. But it appears that within a few weeks after this clandestine marriage the beau contracted a second, a regular public marriage, with the Duchess of Cleveland, the well-known mistress of Charles II. She, however, soon found him an inconvenient companion, and determined to get rid of him by an indictment for bigamy; of which capital offence (his other wife, the supposed rich widow, being still alive,) he was convicted, but pleaded his clergy, and would have been burned in the hand had not the Queen graciously pardoned him. Finally his marriage with the duchess was annulled by the Ecclesiastical Court;-so that no precedent can show more

forcibly the regard that was formerly paid, in the temporal and in the spiritual tribunals, to marriages celebrated, under whatever circumstances, by priests, whether protestant or catholic, episcopally ordained.

9. The parties to clandestine marriages were sometimes not only high in rank, but eminent for virtue. Thus the great Lord Chancellor Ellesmere was married clandestinely. In like manner, the Chief Justice of England, Sir Edward Coke, secretly married the Lady Hatton, but for this transgression was dismissed with a mild rebuke on account of his "ignorance of the law." So says the record.

10. Marriages of the third class—those by mere consent, or consensual marriages, as they were called, had not the effects which attached upon marriages by clandestine celebration, and still less did they produce the consequences incident to marriages in facie ecclesiæ.

11. And herein lay the peculiarity of the old English law, when viewed in contradistinction to the ancient continental law. By the general law of Europe, prior to the Council of Trent, a consensual marriage was in all respects absolutely perfect. By the law of England a consensual marriage was good only for certain purposes. It did not give the man the right of a husband in respect of the wife's property; nor impose on her the disabilities of coverture; nor render her dowable; nor confer on the issue legitimacy; nor did it make the marriage of either of the parties (living the other) with a third person void, though it did make it voidable. Nevertheless, consensual marriages in England were indissoluble. The parties could not release each other, and either could compel solemnization in facie ecclesiæ. The contract, too, was so much a marriage,-so completely verum matrimonium,-that cohabitation before solemnization was regarded not as fornication, but simply as an ecclesiastical contempt. An act of infidelity was an act of adultery; and if either party entered into a second marriage, although in the most regular and open manner, it might be set aside even after cohabitation and after the birth of children, and the parties might be compelled to solemnize the first marriage in facie ecclesiæ.*

* Queen v. Millis, 10 Cla. & Finn, 534. See Lord Lyndhurst's opinion -his finest judicial oration, p. 831.

12. The interchange of consent might be instantaneous or immediate; that is, by words, whether written or verbal, importing a present contract, binding on both from the moment of the declaration; or it might be by words of promise de futuro, followed by cohabitation;—this last doctrine being recommended by its equity, and the just check which it imposed upon perfidy.

13. By the ecclesiastical courts consensual marriages were regarded as complete in substance, but not in ceremony, and the ceremony was enjoined to be performed as matter of discipline.

14. By the temporal courts, on the other hand, no marriage was ever considered good, either in substance or in ceremony, unless celebrated by some one invested with holy orders; that is to say, orders conferred by episcopal authority. Thus, if John married Mary by verbal contract, and afterwards married Elizabeth in facie ecclesiæ, the temporal courts held the second marriage good, and took no notice of the first. But suppose the first wife to go to the ecclesiastical court and there set aside the second marriage, and suppose the husband to be compelled to celebrate the first marriage in facie ecclesiæ ; the temporal courts from that moment would adopt the first marriage, which they had previously rejected, and repudiate the second marriage, which they had previously recognized.*

15. Undoubtedly consensual marriages now and then inflicted deep injuries on families and innocent individuals, although the practice of enforcing them by compelling celebration under the terror of church censures, was intended and perhaps calculated to prevent treachery in the commerce of the sexes. Thus, by reason of latent anterior agreements, persons who had lived long and reputably together might be pronounced in concubinage, and their issue declared illegitimate. But the chief cause of the indignation entertained against consensual marriages was that they wounded human pride, a consequence not necessarily fatal to the interests of society. Some severe lessons were occasionally inflicted. Thus, a thoughtless youth of rank or fortune, entangled by a verbal contract with a "low woman," endeavoured to get rid of his engagement

* Queen v. Millis, 10 Cla. & Finn. 534. The question divided the greatest lawyers of the age. But the House of Lords ultimately decided.

by paying her a sum of money; and, fancying himself at liberty, married a lady of his own station in facie ecclesiæ. Nothing was heard of the first marriage until after the birth of children by the second; when the woman whose claims were supposed to have been stifled, suddenly started up, and, by a proceeding in the ecclesiastical court, not only set aside the second marriage, but compelled a celebration of the first, the effect being to bring ruin on the second wife and bastardy on her children.

16. Towards the middle of the last century clandestine and consensual marriages had together brought matters to such a pass that the Government resolved to interpose. In 1753 a Bill was prepared by Lord Chancellor Hardwicke, and notwithstanding a most violent opposition it passed into law, under the auspices of a powerful administration.

In a social point of view this statute has proved more important than any Act either previously or subsequently to be found in the statute book ;* so much so that Mr. Justice Blackstone, in a spirit of evident hostility to the measure, pronounces it "an innovation upon our ancient laws and constitution." †

17. To consensual marriages only a single section is devoted; and all that that section does is merely to enact that such consensual marriages shall no longer form the basis of proceedings to compel celebration. It does not say that such consensual marriages shall be void,--which would have been

* Except the Divorce Act of 1857.

† It was extended to Ireland by 58 Geo. 3., c. 81. That the law respecting the constitution of marriage prior to Lord Hardwicke's Act was identical with the general continental law on the same subject before the Council of Trent is the theory of Sir William Scott, propounded in Dalrymple v. Dalrymple, 2 Hagg. Con. 54; but that theory was displaced by The Queen v. Millis. On looking again at Sir W. Scott's judgment we perceive here and there symptoms of misgiving. The student will do well to read the Dalrymple case first, and then study The Queen v. Millis; remembering that although the law lords were equally divided in opinion, the House, as a house, decided the question not less authoritatively than if every peer present had concurred in the vote. Accordingly Mr. Baron Parke, referring to The Queen v. Millis, said, 'By this decision we are bound." Catherwood v. Caslon, 13 Mee. & Wel. 261. See also Beamish v. Beamish, 1857, 6 Irish Chancery & Com. Law Rep. 142; but see 7 & 8 Vict. c. 81, and 12 & 13 Vict. c. 68.

66

Section 13 of the 26 Geo. 2. c. 33.

the most effectual way of suppressing them. How far, therefore, they ought now to be regarded as valid, or as impediments to subsequent acts of matrimony, it does not seem easy to determine. Anciently a person refusing to solemnize a consensual marriage might be compelled by the formidable writ de excommunicato capiendo. The clause taking away that venerable stimulant was strongly resisted; but it was carried with a high hand. And what has been the consequence? Ever since the passing of Lord Hardwicke's Act, parties married by mere consent have been without the means of compelling celebration, the modern law affording no other relief but the opprobrious one of damages for breach of promise recoverable by action.

18. The statute next addresses itself to the second kind of marriages, that is, clandestine marriages, clerically but covertly celebrated. It would seem that the suppression of these was the chief object of this act, which in fact is entitled “An Act for the better preventing of clandestine marriages." And here, accordingly, the legislature goes to work in a workmanlike manner, for it at once declares each and all of such marriages null and void. And it enacts that the reverend worthies who had gained their subsistence by celebrating them, should, on conviction of further offences of the same kind, be deemed guilty of felony and transported.* This of course put an immediate stop to the Fleet parson's occupation.

19. But it was said that even the legislature itself could hardly make void that which was valid by the law of God and the law of nature. And it was urged that, although every society might regulate ordinary civil transactions, the solemn contract of marriage stood on a different ground; and was not to be made dependent on a compliance with requirements for which there was no warrant in the dictates of scripture, and no authority in the practice of the church during its best periods; that a marriage valid in the sight of God could not well be deemed void in the sight of man; and that for an act of parliament to declare nugatory and worthless that which had, in all ages, been deemed binding and

*On the 16th Dec. 1755 we find that "The Rev. John Grierson was "convicted of clandestinely marrying a couple at the Savoy chapel, and was "sentenced to fourteen years' transportation."