Middleton v Croft
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1815 |
| Date | 01 January 1815 |
| Court | Court of the King's Bench |
English Reports Citation: 95 E.R. 211
IN THE COURT OF KING'S BENCH, AT WESTMINSTER
middleton versus croft. Ante, 57. 2 Stra. 1056. 2 Barnard. K. B. 351. Andr. 57. 2 Kel. 148, pi. 124. 2 Atk. 650. 4 Vin. Abr. 320, pi. 14, [post, 395, S. C. but not S. P.]. Plaintiff declares in prohibition, upon a suit in the Ecclesiastical Court, against Middleton and his wife, for procuring themselves to be clandestinely married to each other; to which declaration the defendant demurs. This was several times argued at the Bar; and this term (1) See 1 Cons. 530. 212 MICHAELMAS TERM, 10 GBO. II. CAS. T. HARD. 327. Lord Hardwicke, C.J. delivered the opinion of the Court to this effect: There have been three questions made at the Bar ; 1st, whether by virtue of the canons made in 1603, the Ecclesiastical Court has power to punish lay persons for marrying clandestinely without barms or licence. 2dly, if they have not, then whether they have such a jurisdiction, by virtue of the ancient cation law received in England. 3dly, supposing they had, such a jurisdiction is taken away by the 7 & 8 W. III. c. 35, s. 4, which inflicts a penalty of £10 upon every man so married. The 1st question may be subdivided into two. 1st, whether those canons in 1603, relating to clandestine marriages, do in the words and terms of them, extend to the persons contracting matrimony, or do affect the laity in such a case, as the present case. 2dly, whether those canons are of authority sufficient to bind the laity (1). As to the first of those two questions, there are five canons relating to it, the 62d, and 101st, 102d, 103d and 104th. The first of these canons, is to prohibit ministers from marrying any persons without banns or licence ; the three next relate only to the persons enabled to grant licences, and in what manner to be granted; and the 104th contains an exception, as to some particular requisites in [327] granting licences of persons in widowhood. Now, it is plain, from these canons, that none of them affect the parties married, except a clause at the end of the 104th, which makes a licence obtained contrary to the canons, to be void, and the parties marrying by virtue thereof, to be subject to the punishments for clandestine marriage; but that is not the present case, for no void licence was here alledged, but a positive charge of a clandestine marriage without any licence at all; so that these canons do not in the terms of them extend to the laity, in the case now before the Court; then 2dly, supposing this case were within the words of those canons, is the authority, by which these canons were made, binding upon the laity? The authority by which they were made is the Convocation ; and it was objected, that these canons, though made in Convocation, never having been confirmed by Parliament, cannot bind the laity; and for my part, I always understood, that the law in later times has been, that those canons in 1603 do not bind the laity, for want of Parliamentary confirmation; and indeed it was admitted, by one of the counsel for defendant, that they do not proprio vigore bind the laity, and he insisted only on the second general point; but, as it was insisted on by other counsel of the defendant, that those canons do proprio vigore bind the laity, it is now become necessary to examine into that question, in order to settle the law thereupon ; and we are all of opinion, that the canons made in 1603, not being confirmed by Parliament, do not proprio vigore bind the laity; I say proprio vigore, for there are many of those canons which are only declaratory of the ancient usage in the Church, which by reason of^such ancient allowance will bind the laity. For the illustration of this argument, it might be proper to look into the accounts of the ancient councils holden in this kingdom in the Britons and Saxons time; but whoever looks through the laborious collections of Sir H. Spelraan, will find no great satisfaction as to this matter, because those councils were mixed assemblies of clergy and laity; sometimes the King, and sometimes the nobility, and sometimes the commons were present; but whether they had any part in making the canons, or not, is entirely in the dark. The like may be said of the several councils after the coming in of the Normans : and in those following there is often a mixture of the legantine authority, which subsisted merely by Papal usurpation ; therefore it is safer for Judges to proceed upon surer foundations, viz. upon reasonings drawn from the nature and fundamentals of our constitution, upon the Acts of Parliament, and judicial opinions and resolutions. [328] As to the general nature and fundamentals of our constitution ; no new law can bind the people of this land, but what is made by the King and Parliament; nor any law made by the King alone, nor by the King with consent of any particular number or body of men; so is the Parliament roll of 2 Hen. V. Pergamen. 2, No. 10, and 12 Co. 74, and therefore my Lord Coke, in the 4 Inst. p. 1, says, that these represent the commons of the whole realm; and by reason of this representation, all men's consent is included in an Act of Parliament. But to the making canons in (1) As to the authority of these canons, see Lord Kenyon's, C.J. observations, 6 T. E. 493. CAS. T. HARD. 329. MICHAELMAS TERM, 10 GEO. II. 213 Convocation, these are all wanting, except the Royal assent, for there are neither peers nor commons represented. To this it was objected, that the binding force of an Act of Parliament, does not arise from an actual representation of the people, but from an implied representation only; for that in fact, there are many ranks of men who have no vote in electing members of Parliament, and, consequently, have no actual representatives; and that the minister of every parish, who is the guide of his parish in spiritual matters, does represent the people of his parish, in choosing a member for the Convocation. And it is true, there are many persons who have no votes for members of Parliament, such as women, copyholders, &c. but yet, notwithstanding, there is an actual representation of the whole realm ; for no election can be made, but some rules of qualification for the electors must be laid down ; and the best rule that can be, is, as in the choice of members of Parliament, for those to be electors, who are possessed of the most valuable and fixed sort of property ; though as to the quantity, it has been restrained by latter Acts of Parliament. But it is a new notion not known in our books, that the rector of a parish, when he votes for Convocation men, does represent the parish : nor can he be their representative, since he is not chosen by the parish, but by some bishop or lay patron. Besides, it is a notion which is contradicted by the very writ which issues to the Metropolitan, to summon the convocation, which is to summon totum clerum; and is contrary to the premisory clause in the writ of summons to the diocesan bishop, which is clerum per duos procuratores, plenam et sufficientem potestatem ab ipso clero habentes ; which [words] import that the clergy only are called, and that their procurators represent the elergy only, and have their power from and for them, without any representation of the laity : agreeable to which, my Lord Coke says, 4 lust. 322, that in the Convocation, the whole clergy of either province are either present in person or by representation. [329] There is no doubt, but the canons made in the ancient councils of the Church did bind all persons; but the difference between those Canons and the canons now in question, lies in the root from whence their obligation sprung: for the binding right of those ancient canons was not from the emperor's being head of the Church, but from his having the supreme legislative power in his own person ; for by the Lex Regia ti which is mentioned in...
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