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MARRIAGES may be had, and solemnized, by license or by banns. The service in each case is the same. A large part of this service, indeed, is generally omitted, and for such omission there is abundant episcopal precedent, though I am not aware of any legal authority. The parts usually left out are all from the address beginning, “ First it was ordained,” &c., to “thirdly," &c., ending with "adversity." The prayer, “O merciful Lord, and heavenly Father," &c., and the exhortation, “All ye that are married,” &c. These portions are omitted by almost universal consent.
1. MARRIAGES BY BANNS. Banns ; this word is of Saxon origin, and signifies publication, or proclamation. The first marriage Act, 26 Geo. II. c. 33, ss. 1, 2, 3, regulated the mode in which the publication of banns was to be made ; those sections were re-enacted by the 1, 7, & 8 sections of the 4 Geo. IV. c. 76; and further provisions have been made by the 6 & 7 Will. IV. c. 85, s. 1, explained and amended, as that last Act has been, by the 24 and 36 sections of 1 Vict. c. 22.
Time of publication.“ Úpon three Sundays preceding the soemniz ation of marriage, 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 published) immediately after the second lesson ; and whensoever 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 in any such chapel as aforesaid, belonging to such parish or chapelry wherein each of the said persons shall dwell.” (4 Geo. IV. c. 76, s. 1.)
If either of the parties live in an extra-parochial place, or where divine service is not usually solemnized every Sunday, such may be considered as of the next adjoining parish. (26 Geo. 11. c. 23, s. 1; amended by 4 Geo. IV. c. 76, s. 12.)
PUBLICATION of banns must be from the register book, and not from loose papers ; and after publication, the register book must be signed by the officiating minister, or by some person under his direction. (4 Geo. IV. c. 76, s. 6.)
DISSENT of parents or guardians declared at the time of publication. Although it is not necessary that there should be a consent by parents or guardians to the marriage by banns, or of a party or parties under age; yet parents or guardians may dissent to the publication of banns ; it being expressly provided, by 4 Geo. IV. c. 76, s. 8, that in case such parents or guardians, or one of them, shall openly and 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 clause is copied from 26 Geo. II. c. 33, s. 3.
REPUBLICATION. Whenever a marriage shall not be had within three months after the publication of banns, no minister shall proceed to the solemnization of the same, until the banns shall have been republished on three several Sundays, in form and manner prescribed by the Act ;
unless by license duly obtained, according to the provisions of the Act. (4 Geo. IV. c. 76, s. 9.)
UNDUE PUBLICATION. If the banns are published in a name or names totally different from those which the parties, or one of them, ever used; or by which they were ever known, the marriage, in pursuance of that publication, is invalid ; and it is immaterial in such cases, whether the misdescription has arisen from accident or design, or whether such design be fraudulent or not.
But if there be a partial variation of a name only, as the alteration of a letter or letters, or the addition or suppression of one Christian name; or the names have been such as the parties have used, and been known by at one time and not at another ; in such cases the publication may or may not be void; the supposed misdescription may be explained, and it becomes a most important part of the inquiry, whether it was consistent with honesty of purpose, or arose from a fraudulent intention. (1 B. and Ad. 194.)
NAMES BY REPUTATION. The marriage Acts require that the true name should be used in the publication, and where there is a name of baptism and a native surname, those are the true names, unless they have been over ridden by the use of other names, assumed, and generally accredited. (Sullivan v. Sullivan, 2 Hag. Con. 254 ; Diddear v. Faucit, 3 Phill. 582.) It ought to be the name which, it is presumed, the relations, parents, and guardians, are best acquainted with; it may be name less notorious to the world than some name which the party has thought proper to assume, but it is not less the true name on that account, ( Hag. Con. 402); at the same time it must be a name by which the party is known. It seems, indeed, that a name acquired should be used in preference to the native surname, or the name of lawful parents, for a name may be acquired by reputation and habit, which may supersede the original name. (1 Ad. 474.) There may be cases indeed where the publication of the real name would defeat the object of the statute. (Wilson v. Brockley, 1 Phill. 147.)
ILLEGITIMATE CHILDREN. In these cases it is difficult to say what are the true names; they have no proper surname, except what they may acquire by repute, though it is a well known practice, which obtains in many instances, to give them the surname of the mother, whose children they certainly are, whoever may be the father.
PLACE OF PUBLICATION. The publication of banns must take place in the parish church, or public chapel, where banns may be so lawfully published. (Taunton v. Wyborn, 2 Campb. 297; Dougl. 659.) Or, in the church or chapel, belonging to the parish or chapelry, or district, in which the parties dwell ; and if they live in different parishes, &c., the publication must be made in each.
Where the parish church, or chapel of any chapelry, is demolished, in order to be rebuilt, or under repair, or disused ; it is provided by 4 Geo. IV. c. 76, s. 13, that banns may be proclaimed in the church or chapel of any adjoining parish or chapelry, in which banns are usually proclaimed ; or in any place licensed by the bishop for divine service, during the disuse of the church ; or in any consecrated chapel of such parish or place, which the bishop may order or direct.
REGISTRAR'S CERTIFICATE. The provisions of the late marriage Act,
(6 & 7 Will. IV. c. 85, explained and amended by the 1 Vict. c. 22), by s. 4, are made to apply to every description of marriages. Doubts have existed whether a party having obtained a superintendent registrar's certificate, could insist
married in a church according to the rites of the church of England; but those doubts appear to be removed, and such certificate to be made equivalent to the regular publication of banns, by the 36 section of the 1 Vict. c. 22, which, reciting the provisions of the 6 & 7 Will. IV. c. 85, s. 1, enacts, that the notice to the superintendent registrar, and his certificate, shall be used and stand instead of the publication of banns, to all intents and purposes, where no such publication shall have taken pluce.
NOTICE TO MINISTER. The law is not imperative on a clergyman to require seven days' notice before he publishes banns, nor would he be punishable for publishing banns without that particular notice, or the expiration of seven days ; but if he chooses to dispense with the notice, (4 Geo. IV. c. 76, s. 7) which he is enabled to require, and if it should turn out that the parties are not entitled to have the banns published in this parish, he must take upon himself the consequences of his own neglect to do that which the law has provided for his security ; he cannot be allowed to shelter himself under the excuse that he was ignorant of the fact of their non-residence in the parish, when he might and ought to have inquired into the facts. (1 Curt. 84 ; 2 Atkyns, 157; 6 Ves. 421 ; 16 Ves. 259 ; 19 Ves. 453.)
2. MARRIAGES BY LICENSE. A common license is a faculty or dispensation, in virtue of which marriage is permitted to be solemnized without the publication of banns. Whenever a marriage is not had within three months after the grant of a license, no minister shall proceed to solemnize marriage till a new license be granted, or banns published. One of the parties to be married must have had his, or her usual place of abode within the parish or chapelry within which such marriage is to be solemnized, for the space of fifteen days immediately preceding such license.
TIME of marriage. Any person knowingly and wilfully solemnizing matrimony at any other time than between the hours of eight and twelve in the forenoon,” unless by special license, shall be adjudged guilty of felony, and shall be transported for the space of fourteen years.
There are no prohibitions expressed, or plainly supposed, in our constitutions or canons, as to solemnizing marriages in any part of the year. (Gibs. Cod. p. 518, n. z.)
Ministers cannot lawfully refuse to marry persons unbaptized. (See case in Christian Observer, 1821, p. 21.)
When the woman has lost the fourth finger of the left hand, the ring should be placed on the third finger. When the man has no hands, the minister may place the ring on the woman's finger, the man repeating the words after the minister, as in ordinary cases.
When one, or both of the parties, is deaf and dumb, it is difficult to know how to act, perhaps it is best to get each party to trace with the finger the responses severally required from them.
GENERAL LAW. By the 68 Canon, no minister shall refuse to bury any corpse that is brought to the church or churchyard, convenient warning being given him thereof before, in such manner and form as is prescribed in the book of Common Prayer,—except the party deceased were denounced excommunicate majori excommunicatione, for some grievous and notorious crime, and no man able to testify of his repentance,—under pain of suspension by the bishop of the diocese from his ministry by the space of three months ; or, an information would be granted by the court of queen’s bench. (Willes. 538, n.)
SUICIDES. Persons having laid violent hands upon themselves are excepted by the rubric, for they are supposed to have renounced Christianity, and unchristianized themselves. (3 Phill. 273.) With regard to their burial, provision is now made by 4 Geo. IV. c. 52, s. 2.
CORONERS' INQUESTS. A word or two may be usefully introduced on this subject. Wheatley seems to think that a coroner's warrant is no more than a certificate that the body is not demanded by law, and that therefore the relations may dispose of it as they please.
" For I cannot apprehend,” says he, “ that a coroner is to determine the sense of a rubric, or to prescribe to the minister when Christian burial is to be used.”—(Wheatley on the Com. Prayer, p. 496.)
But the following extract will shew that clergymen may get into difficulties if they act upon this supposition.
“In the year 1832, I was condemned in the costs of a prosecution in the consistory court, under the absolute power of the 68 canon, for refusing, in obedience to the plain and obvious meaning of the rubric, to bury a person who had laid violent hands on himself. As the ecclesiastical law now stands, the rubric for the burial service cannot be set up against the 68 canon. Although in my own case, in consequence of a misdirection in my pleadings, the legality of the rubric could not be argued, I was assured, upon the authority of several unreported cases, which had been abandoned on appeal, that I should derive no protection from the rubric by carrying the case to a higher court. The rubric and the canon law are considered by the ecclesiastical lawyers as only parts of one law, the rubric being the ordinal portion, the canon law the penal part. Such being the anomalous state of this branch of the ecclesiastical law, the penal part contradicting the ordinal, the lower authority overbearing the higher, it would be fallacious to trust to it, for anything but further vexation; and far safer, as well as more consistent with the clerical profession, to seek the redress of our grievances in the constitutional way, by petition to parliament." (Rev. Robt. Taylor, Clifton Campville ; " Record” Newspaper, 9th October, 1837.)
Still, Sir John Nicholl has declared that it is not matter of optionit is not matter of expediency, and benevolence—whether a clergyman shall administer the burial service, or shall refuse it; for the rubric, confirmed by statute 13 & 14 Car. ii., expressly enjoins him not to perform the office in the specified cases.” (Kemp v. Wickes, Phill. R. iii. p. 267–269.)
UNBAPTIZED. By the rubric, persons that die unbaptized are also excepted. By unbaptized are to be understood persons not baptized at all, that is, not initiated into the Christian church by any form which can be recognized as a legal and valid initiation. It is immaterial whether the person to be buried has been baptized according to the form prescribed by the church of England or not, or whether baptized by a layman or a clergyman, provided the person has been baptized with water, in the name of the Father, and of the Son, and of the Holy Ghost.
IN CASES OF INFECTIOUS FEVERS, &c., it is better not to carry the corpse into the church, but to go at once to the grave. There is no rule which requires the minister to take the body into the church, on the contrary, a discretion is given him by the rubric. But the same service is to be read, whether the corpse be in the church or the churchyard. The omission of any part of the service is irregular.
BURYING IN THE CHURCH. “Neither the ordinary himself, nor the churchwardens, can grant license to bury in the church, but the parson only; the soil and freehold of the church being in him only.” (Francis v. Ley, Cro. Jac. 367.)
SEIZING BODIES FOR DEBT. An opinion exists that the body of a dead person might be hindered from burial by a debtor of the deceased. Such a notion is founded on a misapprehension of the law of the twelve tables. “To seize a dead body under any pretence would be contra bonos mores, and an extortion on the relatives ; such an act is revolting to humanity and illegal.” (Lord Ellenborough, 1 Lev. 161, 4 East. 460.)
CERTIFICATE OF BURIAL. In case a minister performs the funeral service over a body, without a certificate from the registrar of deaths, or order from the coroner, notice must be given to the registrar ; no particular form of notice is required, nor is it absolutely necessary that such notice should be in writing, though doubtless it is safer that it should be a written notice. The following form may
“I hereby give you notice, that I have this day buried a dead body, described to me as the body of John Jones, of Castle-gate, in the parish of Girton. Witness my hand this sixth day of July, 1841.
Henry Smith, Officiating Minister of the said parish.
If notice be not given to the registrar of the interment, within seven days after the funeral, the minister will incur a penalty of a sum not exceeding ten pounds. (6 & 7 Will. IV. c. 86, s. 27.)
No vault, tomb, or monument, strictly speaking, can be erected without a faculty.
A FACULTY, for making vaults in churches and churchyards, must be limited to the use of the family “as long as they continue parishioners and inhabitants.” (Magnay and others v. Rector and parish of St. Michael. Hagg. R. I., p. 48.)
When a vault has been previously appropriated to others, and bodies have been deposited in it, if the faculty issues for any other family, there must be a clause inserted, that the bodies shall not be disturbed. (Ibid. p. 50.)