inquiry, and would warrant him in delaying or, as the case may be, finally refusing to publish banns (n). law. Wynn v. Davies (0) is a case of much importance, both Liability to on account of the subject itself, and of the experience of ecclesiastical the judge who delivered the sentence. The amenability Wynn v. of the clergyman, since the enactment of the Marriage Davies. Acts, to ecclesiastical law and censures for the irregular solemnization of marriages, is fully discussed and clearly established. The learned judge says: "The principal offence charged, I have already stated to be, that of publishing the banns of marriage, and of marrying persons not resident within the parish; and the objection taken to the admissibility of the articles, is, that the offence imputed to the appellant, if a violation of the law, is not cognizable in the ecclesiastical court; and a doubt is raised, whether in fact it ever was cognizable in those courts; or if so, whether the jurisdiction has not been taken away by subsequent statutes. "Now that the performance of religious rites and ceremonies was under the superintendence and direction of the ordinary, to whose authority the clergy were amenable, is too clear to admit of dispute, and it would be a waste of time to refer to any authorities in support of this position; in fact, the correction of the clergy in matters relating to the performance of divine worship, is, and always has been, more peculiarly the province of the ordi nary. "That the canon law prohibited clandestine marriages, and inflicted punishment on the parties contracting such marriages, as well as on the minister solemnizing them, is abundantly clear; and it is no less certain that marriages were forbidden to be solemnized by any other than the priest of the parish in which the parties resided; unless with the licence of the diocesan and of the curate of the parish. It would hardly have been necessary to cite passages from the canon law in support of this latter doctrine, but for the doubt which was suggested in the argument; but as that doubt has been raised, the court is called upon to refer to some of the authorities in order to establish this position." The learned judge then proceeded to cite the Constitution of Archbishop Reynolds (p), and Simon Mepham's (n) Voysey v. Martin, Bishop of Exeter's judgment; Stephen's Laws relating to Clergy, i. p. 748. (0) 1 Curt. Eccl. Rep. 69 (1835). (p) Lyndwood, book 4, tit. i., De Sponsalibus et Matrimonio. Liability to Wynn v. Constitution (q) and Archbishop Stratford (r), and the text law, and then continued: "There is then no doubt, that not only the parties contracting, but also the priest solemnizing clandestine marriages, were punishable by the ancient canon law as received and allowed here; and that a marriage not preceded by publication of banns or licence, or between persons not parishioners, was in the meaning of that law a clandestine marriage; and this continued to be the law, down to the time of the passing of the Marriage Act (26 Geo. 2); at least, in 1736, it was so held in the case of Middleton v. Croft (s) so often referred to, and so much relied on, in the argument. And the case of Mattingley v. Martyn(t) was mentioned by Lord Hardwicke in support of this part of his judgment, where it was resolved: That if any persons marry without publication of banns, or licence dispensing with it, they are citable for it in the ecclesiastical court;' and this even in the case of lay persons, so à fortiori in the case of the clergy." 6 "The question then is simply reduced to this, whether the Marriage Act (u) by which a clergyman knowingly and wilfully solemnizing marriage without due publication of banns or licence, is liable to be convicted as a felon, and to be transported for fourteen years, has repealed the canon law, and taken away the ancient jurisdiction of the ecclesiastical court in such matters; and this, undoubtedly, is a very grave and serious question, and deserves great consideration, more especially as there does not, as before observed, appear to have been any actual decision upon it; the only case which is to be found, being that of Campbell, Clerk v. Aldridge, Clerk (x), which occurred shortly after the Marriage Act (y); that case was to this effect:-A clergyman was called upon to answer in the ecclesiastical court for solemnizing marriage without banns or licence, and for performing other religious rites without the licence of the ordinary, and a prohibition was prayed upon the suggestion, that since the Marriage Act the offence was only cognizable in the temporal courts. The court did not absolutely determine the point, but the prohibition was made absolute as to marrying without banns or licence, the plaintiff having leave to declare in prohibition, in order that the question on the Marriage Act might be more solemnly argued and decided, thereby, as I understand, (q) Lyndwood, book 4, tit. 3. (8) 2 Atkyns, 650. (u) 4 Geo. 4, c. 76. 66 intimating an inclination against the jurisdiction of the ecclesiastical court; not deciding that point, as nothing further appears to have been done in the case; it cannot, therefore, be considered as a binding authority, and the rather, because the arguments upon which the application for a prohibition was founded, or the reasons of the judgment, are not given at length in the report. It is certainly somewhat extraordinary, that, considering the great lapse of time between the passing of the first Marriage Act and the present day, no traces are to be found of any other proceedings, either against parties or clergymen, in the records of these courts, nor, as I believe, in the reports of cases occurring in the courts of common law; and the absence of any such proceedings may in some degree countenance the suggestion that the general and received opinion has been, that the ecclesiastical jurisdiction no longer exists; otherwise numerous cases have occurred in which it might be supposed that the law would have been put in force; but this is not conclusive, the law may exist, though it may have been suffered to sleep." "In the absence therefore of any direct precedent, the court must consider this question of law upon principle, and such analogies as decisions in other cases may furnish for its guidance. Now it must be, and indeed has been admitted, that these courts have no power to inquire directly and originally as to any pleas of the crown, and upon the authority of Lord Hardwicke's opinion in the same case of Middleton v. Croft, it may perhaps be further admitted, that an act of parliament imposing a penalty recoverable in the temporal courts upon a particular offence, formerly cognizable in the ecclesiastical courts, would repeal any authority which those courts had by force of the canon law, unless there were words reserving the jurisdiction of those courts. But it would still remain as in that case to be inquired whether the cognizance which these courts had of the particular offence charged in these articles, did at the time of the passing of the Marriage Act, solely and entirely depend upon the canon law, or whether that law was not sanctioned and confirmed by acts of parliament, and thereby made part of the statute law; and if so, then whether those statutes have also been repealed by the Marriage Act." "Now, here the same case of Middleton v. Croft seems to furnish a pretty strong precedent." And after referring to this case he proceeded:-" In the present case, however, the statute and the canon law are both directed against the same offence; the distinction, therefore, made in the case Liability to ecclesiastical law. Wynn v. Davies. "of Middleton v. Croft does not exist, and if the matter rested there, the court would, I think, be bound to hold that the ecclesiastical court had no power to entertain this question, supposing it to amount to a charge of felony." Again, citing Lord Hardwicke, he says:-"So that Lord Hardwicke's opinion seems to be, that in order to repeal an existing statute, the latter statute must have express words of repeal, or must be contrary to the provisions of the law said to be repealed; or that, at least, mention must be made of that law, showing an intention of the framers of the latter act of parliament to repeal the former." "How then does the matter stand in this respect, with reference to the present case, if tried by these tests ?" "First. There are no express words of repeal in the 4 Geo. 4, c. 76, so that the case stands clear of that objection." "Secondly. Are the provisions of the Marriage Act repugnant or contrary to the existing law? I can find none such; on the contrary, they seem to be confirmatory of it, as will appear more particularly in considering the third test proposed-namely, whether there was any intention on the part of the legislature to repeal the pre-existing law, to be discovered either with reference to the provisions of the 26th Geo. 2, or 4th Geo. 4. These acts direct that the banns shall be published in the parish church or in some public chapel, in which public chapel banns of marriage have been usually published, of or belonging to such parish or chapelry, wherein the persons to be married shall dwell, according to the form of words prescribed by the rubric prefixed to the Office of Matrimony in the Book of Common Prayer (these rules being clearly drawn from and founded on the ancient canon law) during the time of morning service, or of evening service if there shall be no morning service, in such church or chapel upon the Sunday, upon which such banns shall be so published, immediately after the second lesson; and whenever it shall happen that the persons to be married shall dwell in divers parishes or chapelries, the banns shall in like manner be published in the church or such chapel as aforesaid belonging to such parish or chapelry wherein each of the said persons shall dwell, and that all other the rules prescribed by the said rubric concerning the publication of banns and solemnization of matrimony shall be strictly observed. So far, then, the act of parliament differs from the rubric in directing that the banns shall be published on three Sundays (not holydays, as in the rubric), and after the second "lesson instead of after the Nicene Creed (y); but in every other respect it adopts and confirms the rule there given for the publication of banns and solemnization of matrimony, and is, therefore, very far from indicating any intention to repeal the existing law in any other particulars than those to which I have referred; but the tenor of the act in other places clearly supposes that the ecclesiastical law continued in force and operation. By the subsequent sections of the same act of parliament, and also in 4 Geo. 4, c. 76, it is provided, that no minister in solemnizing marriages between persons both or one of whom shall be under the age of twenty-one years, after banns published shall be punished by ecclesiastical censures for solemnizing such marriages without consent of parents or guardians, whose consent is required by law, unless such minister shall have notice of the dissent of such parents or guardians, and in case such parents or guardians, or one of them, shall openly or publicly declare, or cause to be declared, in the church or chapel where the banns shall be so published, at the time of such publication, his, her or their dissent to such marriage, such publication of banns shall be absolutely void. This section of the act of parliament certainly repeals that part of the 62nd Canon of 1603, which prohibited marriages between minors before the parents or governors of the minor personally or by sufficient testimony signified their consent to the marriage. But supposing that the minister after notice of dissent should proceed to the solemnization of the marriage he would clearly not have been exempted from ecclesiastical censures, and would as clearly be liable to be convicted of felony and to transportation for fourteen years, for knowingly and wilfully solemnizing marriage without due publication of banns; the publication being by the same sections declared to be absolutely void. These, then, are strong indications that it was not the intention of the legislature to repeal the ecclesiastical law on this subject, but that both should stand together. I cannot, therefore, but think that these acts of parliament do not and were not meant to repeal the authority of the ecclesiastical courts in cases of this description, but that one and the other may be put in execution; and this, even in cases where the conduct of the minister may have been such as to render him liable to an indictment and conviction of felony." "But does it follow that the offence imputed by the present articles necessarily constitutes, or that Mr. Wynn (y) This is a mere obiter dictum. Vide supra, pp. 761-763. |