"cities, and in highly civilized countries, it is hardest to point out a safe road" (x).

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c. 85.

In the year 1857 the statute 20 & 21 Vict. c. 85, con- Divorce by ferred, for the first time, upon a court of justice a juris- 20 & 21 Vict. diction to grant divorces à vinculo matrimonii. The same statute took away from the ecclesiastical tribunals all civil (y) jurisdiction over the subject of marriage and its incidents.

The legislature provided in a very singular manner for Provision for the case of a clergyman conscientiously refusing to marry refusing to clergyman a person whose former marriage had been dissolved by marry. reason of his or her adultery.

The sections of the statute are as follows:Sect. 57. "When the time limited for appealing against any decree dissolving a marriage shall have expired, and no appeal shall have been presented against such decree, or when any such appeal shall have been dismissed, or when in the result of any appeal any marriage shall be declared to be dissolved, but not sooner, it shall be lawful for the respective parties thereto to marry again, as if the prior marriage had been dissolved by death: provided always, that no clergyman in holy orders of the united Church of England and Ireland shall be compelled to solemnize the marriage of any person whose former marriage may have been dissolved on the ground of his or her adultery, or shall be liable to any suit, penalty, or censure for solemnizing or refusing to solemnize the marriage of any such person."

of

Sect. 58. "Provided always, that when any minister any church or chapel of the united Church of England and Ireland shall refuse to perform such marriage service between any persons who but for such refusal would be entitled to have the same service performed in such church or chapel, such minister shall permit any other minister in holy orders of the said united church, entitled to officiate within the diocese in which such church or chapel is situate, to perform such marriage service in such church or chapel."

It has been ruled that where, after a decree of dissolu- Time before tion of marriage, one of the parties to such marriage was new marriage. married in fact within the time limited by 20 & 21 Vict.

c. 85, s. 57, and during the lifetime of the other party to

(x) Mackintosh's History of England, vol. ii. p. 274.

(y) As to criminal jurisdiction, see Ray v. Sherwool, 1 Curteis,

198, 199; 1 Moo. P. C. 353; and
Upton v. Davies and Weever, 1
Curteis, 87; supra, pp. 738–742.

the marriage, the latter de facto marriage was null and void in law (z).

SECT. 10.- Statutes as to the Celebration of Marriage.

The following is believed to be a correct list of the statutes now in force for-(A.) regulating the celebration of marriage-(B.) confirming marriages which through some defect in the celebration might be void.

11 Geo. 4 & 1 Will. 4, Temporary Churches and certain

service.

CHAPTER VIII.

CHURCHING OF WOMEN.

History of the IT is remarked by the editor of the Annotated Book of Common Prayer, that the service for the churching of women" underwent scarcely any change in the transition "of our offices from the old English services to the new. "In 1549 the ancient title was retained, the 'quire door' "was substituted for the door of the church, and the ad"dress at the commencement of the service was substi"tuted for that at the end of the old one. In 1552 the present title was adopted, and the place where the table "standeth' put instead of the 'quire door.' In 1661, the "two psalms now in use were substituted for the 121st, "the second of them being added to the 121st by Bishop "Cosin, but the 116th afterwards inserted instead of it.

Rubrics.

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66

6

"Although the churching service does not appear in "the ancient sacramentaries, very ancient offices for the purpose are to be found in the rituals of the Western "and Eastern Churches, which are given in the pages "of Martene and Goar."

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According to the rubric before the office for the churching of women, the woman at the usual time after her delivery shall come into the church decently apparelled, and there shall kneel down in some convenient place, as hath been accustomed, or as the ordinary shall direct."

Decently apparelled.]-In the reign of King James the First an order was made by the chancellor of Norwich, that every woman who came to be churched should come covered with a white veil: a woman refusing to conform was excommunicated for contempt, and prayed a prohibition, alleging, that such order was not warranted by any custom or canon of the Church of England. The judges desired the opinion of the Archbishop of Canterbury, who convened divers bishops to consult thereupon; and they certifying that it was the ancient usage of the Church of England for women who came to be churched to come veiled, a prohibition was denied (a).

By the rubric at the end of the office for churching

(a) Palm. 286.

of women," the woman that cometh to give her thanks must offer accustomed offerings (b); and if there be a communion, it is convenient that she receive the holy communion."

Accustomed Offerings.]—In the second year of Geo. II. Offerings. happened the case of Naylor v. Scott. A libel was given in the Consistory Court of York, founded upon a custom, that every one keeping house, and having children in the parish, should pay 10d. a child to the parson, at the time the wife is or ought to be churched. The counsel apprehended it to be an unreasonable custom that the parson should have money for doing of nothing, and so moved for a prohibition; for they said the proper way was, if the wife would not be churched at the proper time, to force her to it by ecclesiastical censures. Afterwards the custom being denied, the same was tried on a prohibition, and a verdict given for the custom. Then it was moved in arrest of judgment; 1, That the custom is unreasonable in itself; and 2, That it is uncertainly set forth. To the first it was answered, that religion requires a woman should return thanks to God in a public manner for so great a deliverance; and therefore it is but fit that he who assists her in such office should have some requital. To the second it was said, that there are other cases where the temporal courts allow the ecclesiastical courts to set forth matters equally uncertain as in the present case, even upon libels on customs, and have not granted prohibitions; as where a libel was upon a custom, that the farmers of such a farm have always laid out 8s. or thereabouts for cakes and ale in the perambulation, and yet held to be sufficiently set forth; and besides, it was said if the court was in doubt, whether the proceedings in the courts below were usually in so uncertain a manner, the proper method would be to write to them to certify how their proceedings are there; to this purpose was cited the (aforesaid) case, where a libel was for a woman not coming to be churched in a veil, whereupon a prohibition being moved for, the court wrote to the archbishop to certify how the canons in that case were, and he certified the canon to require it. It was observed further, that though indeed the woman's fitness to be churched is unknown to the temporal courts, yet to the ecclesiastical courts it is well known, and therefore they might well have proceeded

(b) "A due to the priest offered on the altar. So Bishop Andrewes interprets it; and so Hooker, V., lxxiv. 4.

P. VOL. I.

The

chrisom was formerly included."
(Blunt, Ann. Book of Com-
mon Prayer, “The Churching of
Women.")

3 H