the particlar mode and precise place of burial are entirely of ecclesiastical cognizance, and the incumbent is the proper judge of the fitness or unfitness, whether any particular person ought to have privilege of being buried in the body of the church, or in any particular part of a church-yard, or in any particular manner, as whether in a stone or iron coffin; (m) and therefore the Court of King's Bench refused a mandamus to inter the body of a parishioner in an iron coffin. (n) Nor will the Ecclesiastical Court enforce such a burial, though they will regulate the fees in case the incumbent agrees to bury the body in a coffin constructed of such durable materials. (o) Nor will the Court of King's Bench even grant a mandamus to compel the rector to bury the corpse of a parishioner in his family vault, or in any particular part of a church-yard, that being entirely in the discretion of the parson. (p) And where a rector, in consideration of 201., by parol, gave leave to a person to make a vault in the parish church and to bury a corpse there, and promised that he should have the exclusive use of such vault, but afterwards, without leave of that person, opened the vault and buried another person there, it was held that no action on the case or otherwise could be sustained against him for so doing; for that even supposing that the rector had power to grant the exclusive use of a vault during his own life, yet he could not do it by parol, as a grant under seal is always essential to the creation of a freehold easement; (q) and it was also considered that a rector cannot grant a family vault in the church, but only leave to bury there in each particular instance. (r) It should seem, therefore, that, in order to acquire de novo a perfect right to be buried in a particular vault or place, a faculty must be obtained from the ordinary, as in the case of a pew; or a man may prescribe that he is occupier of an ancient messuage in a parish, and ought to have separate burial in such a vault within the church, and such prescription implies that a faculty was originally obtained. (s) It has been observed that by means of a faculty a pew can only be granted to the inhabitants of a parish, and it is for the most part limited to a house, a removal from which destroys the right to the pew, and that the same rules would be applicable to a vault; (t) and that suggestion is confirmed by a recent decision, in which it was held that a faculty for the appropriation of a vault "to the use CHAP. II. I. ABSOLUTE, &c. 3. Burial. CHAP. II. &c. 3. Burial. "The of a family so long as they continue parishioners and inhabitants I. ABSOLUTE, of the parish" will be granted, if it may be done without probable inconvenience to the parish; (u) and the court said, faculty, however, must be limited in the same manner as faculties for pews, to the use of the family as long as they continue parishioners and inhabitants;" and in this instance it must also contain a clause that the bodies already deposited there shall not be removed. (x) A clergyman has neither by the ecclesiastical law nor by the common law any right to black cloth and other ornaments placed round a pulpit upon the occasion of a burial, but the same belong to the executors or persons at whose expense they were placed there; if taken by the parson or any other, the latter may recover the value in an action of trover. (y) It has been a vulgar error that a creditor may legally arrest or detain and prevent the burial of the dead body of his debtor until paid his debt, but that notion has been refuted by Lord Ellenborough, (z) and it is singular how such an error upon so useless and ineffectual an act could ever have been entertained. (a) Another error equally erroneous has existed upon the supposition that the permitting a funeral to pass across private grounds creates a public right of way, which doctrine also has long been refuted. The stealing of the shroud, coffin, &c., which are the property of the executor or administrator, or whoever incurred the expense of the funeral, is larceny, and indictable. (c) But it is clear that no action at the suit of an heir or executor lies for violating or disturbing the remains of the dead, nor is the stealing a corpse a felony, the same being nullius bonis. (d) However, the stealing or removal of a dead body, though for the improvement of anatomy, is an indictable misdemeanor, it being contrary to common decency, and shocking to the general sentiments and feelings of mankind; (e) but it was questioned whether the apprehension of a person in the act of stealing a dead body from a church-yard was a lawful apprehension, so as to subject such person to an indictment for calling a sexton in order to obstruct such apprehension. (ƒ) the anecdote of a body having been arrested whilst in funeral procession, and a noble lord getting out of his carriage and paying the debt, so as to enable the procession to proceed, without a single comment hinting that the arrest was illegal. (c) 2 East, P.C. 652; 1 Hale, P.C. 515. (d) 3 Inst. 203. (e) 2 T. R. 733; Russ. & Ry. C. C. 366; Dowl. & Ry. N. P. C. 13 ; R. & R. C. C. 366. (f) R. & R. C. C. 365. RIGHTS. husband and wife. (g) The Relative rights between Husband and wife principally CHAP. II. depend on the due solemnization of the marriage between II. RELATIVE them according to law, and which in England must be by banns or by license.(h) If by banns, a notice correctly dated 1. Between of the day it is delivered, and stating the true christian and surnames of both the parties, and of the houses of their respective abodes within the parish or chapelry, and of the time during which they have dwelt, inhabited, or lodged there, () must be given to the minister seven days, at least, before the time required for the first publication of such banns, and a marriage by banns not truly stating the christian and surnames of each party is invalid. (j) But the section requiring the consent of parents or guardians is merely directory, and the want of such consent will not invalidate the marriage. (k) To obtain a license, the statute 4 Geo. 4, c. 76, s. 14, enjoins the form of oath that there is no existing impediment, and that if either party be under twenty-one the consent of all proper parties has been obtained. But a marriage by license between parties, one of whom is a minor, without the consent of parent or guardian, although obtained by false swearing that the party was of age, and contrary to such express regulation, is not void; (7) though the husband, when a party to the violation of the above enactment, is to be deprived of all right to the pro (g) See in general 1 Bla. Com. chap. xv. and notes. (h) 3 & 4 Geo. 4, c. 75; 4 Geo. 4, c. 5, c. 67, c. 76, c. 91; 5 Geo. 4, c. 32, c. 68; 6 Geo. 4, c. 92. (i) But the 4 Geo. 4, c. 76, s. 26, enacts, that after the marriage has been celebrated the proof of the actual residence of the parties at the place described shall be immaterial. Rer v. Hind, Russ. & R. C. C. 253. In (j) 4 Geo. 4, c. 76, s. 7, 22. Rex v. habits. of Tibshelf, 1 B. & Adol. 194; Rex v. Inhabits. of Billinghurst, 3 M. & S. 257; and in Wiltshire v. Prince, a marriage by banns of a minor, whose name was Henry John Wiltshire, by the name of John Wiltshire, omitting Henry, for the purpose of eluding detection, was declared void in the Consistory Court, 17 July, 1830. MS. But a second marriage by banns in a fictitious name pending the first, although void, will nevertheless subject the bigamist to punishment as such, Rex v. Penson, Maidstone, Kent, 13 Dec. 1832, coram Mr. Baron Gurney, who said "that the objection could not prevail; such second marriage was void however solemnized, as the first was a valid one. There was a marriage in fact between the prisoner and 29. (k) 4 Geo. 4, c. 76, s, 16; 8 Bar.& Cres. (1) Rex v. Inhabits. of Eirmingham, 8 Bar. & C. 29. The same point was so ruled by Lord Tenterden on an indictment for a conspiracy to marry an infant by a license obtained by the woman falsely swearing her intended busband was of age. The King v. Jacob and others, sittings at Westminster, Feb. 1826, and several eminent doctors of civil law advised that the marriage could not be set aside. The uncle of the wife and another defendant were convicted of the conspiracy. CHAP. II. II. RELATIVE, &c. perty of the wife; (m) and a Court of Equity has no discretion to mitigate that penalty, but is bound to settle and secure all property, present and future, of the wife for the benefit of her1. Husband and self or the issue of the marriage. (n) wife. The marriage, whether by banns or by license, is to be celebrated in the presence of two or more witnesses besides the minister, and immediately after the celebration, an entry thereof is to be made in the register-book, in the form prescribed by the ⚫ act; and the wilful making, forging, &c., a false entry in such book is felony punishable with transportation. (0) But the omission to make, or untruly making, such register would not invalidate the marriage. Form of oath on applying for a license. Form of license. (m) 4 Geo. 4, c. 76, 23'; Rex v. Inhabits. of Birmingham, 8 Bar. & C. 29; and the King v. Jacobs, ante, 53, note (1). (n) Attor. Gen. v. Mulloy, 4 Russ. R. 329. (0) 4 Geo. 4, c. 76, s. 28, 29. The following forms relate to marriages by license or by banns: } (Date) day of A. D. 1833. Appeared personally A. B. of the parish of St. Mary, Islington, in the county of Middlesex, (bachelor,) of the age of twenty-one years and upwards, and prayed a license for the solemnization of matrimony, in the parish church of St. Mark, Kennington, in the county of Surrey, between him and C. D. of the parish of St. Mark, Kennington aforesaid, spinster, of the age of twenty-one years and upwards, and made oath that he believeth that there is no impediment of kindred or alliance, or of any other lawful cause, nor any suit commenced in any ecclesiastical court, to bar or hinder the proceeding of the said matrimony, according to the tenor of such license. And he further made oath, that she the said C. D. hath had her usual place of abode within the said parish of St. Mark, Kennington, for the space of fifteen days last past. Sworn before me Signature, A. B. William, by Divine Providence, Archbishop of Canterbury, Primate of all England and Metropolitan. To our well-beloved in Christ, A. B. of the parish of St. Mary, Islington, in the county of Middlesex, bachelor, and C. D. of the parish of St. Mark, Kennington, in the county of Surrey, spinster. Grace and Health. Whereas ye are, as it is alleged, resolved to proceed to the solemnization of true and lawful matrimony, and that you greatly desire that the same may be solemnized in the face of the Church: We being willing that these your honest desires may the more speedily obtain a due effect, and to the end therefore that this marriage may be publicly and lawfully solemnized in the parish church of St. Mark, Kennington aforesaid, by the rector, vicar, or curate thereof, without the publication or proclamation of the banns of matrimony, provided there shall appear no impediment of kindred or alliance, or of any other lawful cause, nor any suit commenced in any ecclesiastical court, to bar or hinder the proceeding of the said matrimony, according to the tenor of this license: and likewise, that the celebration of this marriage be had and done publicly in the aforesaid church, between the hours of eight and twelve in the forenoon. We, for lawful causes, graciously grant this our license and faculty, as well to you the parties contracting, as to the rector, vicar, curate or minister of the aforesaid parish, who is designed to solemnize the marriage between you, in the manner and form above specified, according to the rites of the Book of Common Prayer, set forth for that purpose, by the authority of Parliament. Given under the seal of our Vicar General this twenty-ninth day of November, in the year of our Lord one thousand eight hundred and thirty-two, and in the fifth year of our translation. John Moore, Registrar. (L. S.) By stat. 4 Geo. 4, c. 76, this license to continue in force only three months from the date hereof. CHAP. II. II. RELATIVE, &c. 1. Husband and Marriages of British subjects in foreign countries are valid, if made according to the local law of those countries; (r) so a marriage in Ireland, performed by a clergyman of the Church of England in a private house, was held valid, although no wife. evidence was given that any license had been granted to the parties; (s) but the foreign law, as well as the compliance with its requisites, must be proved when it is necessary to establish a legal marriage; (t) and in a Court of Equity, where an affidavit verifying the law may be received, it must be made by a professional man, and be positive as to the law, and not to mere hearsay or belief. (u) The Ecclesiastical Court will not annul a marriage by banns, unless there were fraud in the publication, as by false names used for a fraudulent purpose. (x) And in that court it is not every assumption of a fictitious name that will invalidate, but it must have been assumed for the purpose of defrauding the other party. (y) Error or misrepresentation about the family or fortune of the individual, though produced by disingenuous representations, will not at all affect the validity of the marriage. (z) But under the 4 G. 4, c. 76, a marriage is void where persons knowingly and wilfully marry in any other I publish the banns of marriage between A. B. of bachelor, and C. D. of spinster. If any of you know cause or just impediment why these two persons should not be joined together in holy matrimony, ye are to declare it. This is the first [second or third] time of asking. Form of publi- I do hereby certify that the banns of marriage between A. B. of the parish of Form of certifiOrton, in the county of Westmoreland, bachelor, and C. D. of the parish of Ravens- cate of publicatondale, in the county aforesaid, spinster, have been duly published in the parish tion of banns, church aforesaid, on three several Sundays, to wit, Oct. 27, Nov. 3, and Nov. 10, now see 2 Burn's last past, and that no cause or just impediment hath been declared why they may not Ecc. L. 462. be joined together in holy matrimony. Witness my hand, Nov. 13, 1762. Ri. Burn, Vicar of Orton aforesaid. and C. D. of [the, this] parish, A. B. of [the, this] parish, were married in this [church, chapel] by [banns, license] with consent of [parents, guardians] This marriage was solemnized between us (r) 10 East, 282; Cantaur and others v. Teasdale, 8 Taunt. 830; 2 Marsh. 243, S. C.; Lacon v. Higgins, 1 D. & R. Ni. Pri. 38; 3 Stark. R. 176, S. C.; 1 Roper, 337; and see cases under Indictment for Bigamy, Carr. Cr. L. 253, &c. (s) Smith v. Maxwell, Ry. & Mood. C. N. P. 80; 1 C. & P. 271, S. C. (t) See 1 Roper, on Husband and Wife, 333; Evans's Col. Stat. In Lacon v. Higgins, 1 D. & R. Ni. Pri. Cas. 38; 3 Stark. R, 176, it was held, that the validity of a marriage celebrated in a foreign country, must be determined by the lex loci By me J. J. [Rector, Vicar, Curate.] In the presence of E. F., G. H. (u) Hill v. Reardon, Jacob's R. 89, 90. (r) 1 Phil. Ecc. C. 133, 298, 224, 230, 375; 2 Phil. Ecc. C. 14, 104, 367. (y) 3 Mau. & Sel. 250; 1 Phil. 47; 2 Phil. 12; but see 1 B. & Adolp. 144. (*) Wilson v. Brockley, 1 Phil. E. C. 137. Form of register of marriage, whether by banns or license, as enjoined by 4 Geo. 4, c. 76, s. 28, and see 2 Burn's Ecc. L. 483. |