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the Queen was concerned, but was a personal objection to the presentee-and this was the point to which the arguments of counsel and the judgment of the Court were chiefly directed.

Sir Fitzroy Kelly, Mr. Martin, and Mr. Badeley supported the rule with equal learning.

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On the 8th of July the Court of Exchequer delivered its judgment, reviewing the arguments which had been advanced on either side. The question now is, whether the rule is to be made absolute or to be discharged. This involves two points. 1. Whether this is a case which touches the Crown; for, if it do not touch the Crown, it is admitted the appeal to the Queen in Council is well founded. 2. Whether, in all cases (touching or not touching the Crown), there is an appeal from the Archbishop's Court to the Queen in Council? If there be, then also the appeal to Her Majesty in Council is authorized by law, and this rule cannot be made absolute. In the Courts of Queen's Bench and Common Pleas the judgment was founded entirely on the second point. We directed the attention of counsel to the first point also, entertaining, as we then did, and still do, considerable doubt whether the matter touches the Crown or not; but we have thought it unnecessary to decide this point, as we are clearly of opinion that, whether a cause of duplex querela before the Archbishop be one which touches the Crown or not, there was an appeal given by the 25th Henry VIII., c. 19, to the King in Chancery; and, therefore, now there is an appeal to the Queen in Council." The judgment concluded, "Entertaining, as we do, no doubt upon the question before

us, and concurring with the other Courts of Westminster Hall, and, as far as we know, with every Judge of all the Courts, we do not think that we should be justified in creating the delay and expense of further proceedings with a view to take the opinion of the House of Lords, and our judgment is that the rule be discharged with costs."

No further opposition was attempted to the presentation of Mr. Gorham, who was instituted to the vicarage of Brampford Speke on the 6th of August, by Sir H. Jenner Fust.

LAW OF DIVORCE. THE CHURCH

OF ROME.

CONNELLY V. CONNELLY. - A very singular cause referring to the law of marriage and divorce, and the relation of the Church of Rome to the institutions of this country, was decided in the Court of Arches, by Sir H. Jenner Fust (March 23).

This was a suit for the restitution of conjugal rights. It was promoted by the Rev. Pierce Connelly, of Albury, in the county of Surrey, against his wife, Mrs. Cornelia Augusta Connelly, of Hastings. The libel pleaded, in substance, that the parties were married on the 1st of December, 1831, in the city of Philadelphia, Mr. Connelly being at that time a clergyman of the Episcopal Church in America. Five children were born, and the parties continued to cohabit together until October, 1847, when Mrs. Connelly left her husband, and had ever since lived separate and apart from him. An allegation was offered on behalf of Mrs. Connelly, which alleged that in 1836 Mr. and Mrs. Connelly visited Rome, and, abjuring the Protestant faith, were received

into the Roman Catholic Church. Mr. Connelly subsequently took holy orders in that Church, and Mrs. Connelly became the superioress of a community of religious women founded by her at Derby, and afterwards, removed to Hastings, both parties having previously taken a solemn vow of perpetual chastity. In December, 1847, Mrs. Connelly also took the vows of poverty and obedience, her husband having in the first instance given his assent,, but afterwards protested against it, on the ground that he was responsible for any debts which she might contract. In January, 1848, Mr. Connelly went to Hastings, where he demanded an interview with his wife, who declined to see him, whereupon the present proceedings were instituted. The laws of the Roman Church applicable to the case were stated by Mrs. Connelly to be applicable to the question at issue between the parties in this cause, derived from and regulated by its written laws or canons in that behalf, and of which the principal are to be found in the Decretals, liber 3, title 32. That a husband and wife post matrimonium consummatum may lawfully separate by mutual consent, in order that they may enter into religion. That a separation founded on such mutual consent and for such purpose, though not annulling such matrimonium consummatum, debars the parties in perpetuum ab omni usu ejusdem, and from that time forth alter alterum repetere non potest. That such separation must be approved of and allowed by the Pope, and his rescript, being a conditional sentence in the first instance, has all the force of a judicial sentence when the conditions are fulfilled. Admitting such to be the law by

which the Roman Catholic subjects of Rome were governed, what was the effect of it as applicable to American subjects being Protestants at the time of marriage, and afterwards abjuring that faith, and being admitted members of the Roman Catholic Church, the husband taking orders in that Church? In order to make that law binding in this country it must be shown that it had been received here. In questions of marriage contract the lex loci contractus was that which was to determine the status of the parties, but it was not known, nor had cases been cited to show, that those laws which were applicable to a particular state, and were not part of the jus gentium, were necessarily taken notice of by other countries. It was not sufficient, therefore, to say that the law of Rome had decided so and so; it must be shown that the law of Rome for that purpose was the law of this country. The Court must not look to the law of Rome, nor to the law of the United States of America, but to the law of England for the rights, obligations, and duties which proceeded from the relation of husband and wife. What was the law of this country with respect to the rights, duties, and obligations arising from the contraction of marriage? One obligation undoubtedly was the cohabitation of the parties. The law would not permit them voluntarily to separate themselves from each other. Separation could only be effected by a judicial sentence. Ecclesiastical Courts paid no attention to deeds of separation, but set them aside and pronounced for that restitution of conjugal rights which was sought either by the one party or the other. What was the distinction attempted to be made in the present case? It was said the

parties were bound by a vow of perpetual chastity; but they were not on that account entitled to separate themselves from each other. Indeed, it appeared that they had resided together in the same house for a considerable period after that vow had been taken. He (the learned Judge) could find no authority by which the Court would be justified in stating that parties coming to this country and residing here were not subject to its matrimonial regulations and municipal laws. He was not at liberty to attend to those municipal and peculiar regulations, which were only binding upon the subjects of Rome resident in the territories of that country, or in those countries where its laws were respected and treated as part of the laws of the State. Would it be an answer to a person suing Mr. Connelly for debts contracted by his wife for necessaries supplied to her, to plead that she was professed in religion-that she was the head of a religious community in this country, and was therefore empowered by the law of Rome to live separate from her husband? If all the facts pleaded in the defensive allegation were proved he (Sir H. J. Fust) was of opinion that they would not form a bar to the suit which had been instituted by Mr. Connelly for the restitution of conjugal rights. The allegation was not entitled to be admitted, and therefore it must be rejected.

The Proctor for Mrs. Connelly gave notice of appeal.

LANCASTER ASSIZES, March 27.

LAW OF MARRIAGE.-The Rev. Moorhouse James, perpetual curate of Bedford, in the parish of Leigh, in this county, was indicted for having on the 14th of August last unlawfully refused to marry Henry

Fisher and Ann Hardman, on the production of the certificate of the Superintendent Registrar of the district that they had given the requisite notices, and complied with the forms of the Act of Parliament in that behalf.

The Attorney-General said this was an indictment charging the defendant, a clergyman of the Church of England, with a misdemeanour in refusing to solemnize a marriage between two persons who had presented themselves to him for that purpose, and who had previously complied with the requirements of the Marriage Act (6 and 7 William IV., c. 85), and had obtained a certificate from the Superintendent Registrar of the district in the place of bans. The case was one of some importance, not on account of any special difficulties which it might involve, because he believed, when the point was fairly looked at, it would not be found to involve any, but because he was informed that the defendant and other clergymen had conscientious scruples as to the line of duty which they were called on to follow; and it was therefore desirable that those scruples should be settled by the right interpretation of the law, and the defendant and others would then, no doubt, act according to what was decided to be the law.

The Attorney-General then detailed the provisions of the various marriage Acts. In this case the parties had complied with the prescribed forms, and had obtained a certificate, in which the church in which the ceremony was to be performed was specified, and on the production of which the officiating minister of such church is bound to perform the ceremony. Fisher then called on the defen

dant and gave him notice that he wished to be married the next morning. The defendant inquired of Fisher if he had been baptized, to which he answered that he had. The defendant then inquired if he had been asked in church? Fisher said "No, at the board of guardians." The defendant then asked if he had been confirmed? Fisher said no, he had not, and then the defendant said he would have nothing to do with him, and that, as he had been asked at the board of guardians, the board of guardians might marry him. Prior to the expiring of the time during which the certificate is valid, formal application was made to the defendant, who still refused, saying, "I will marry you when you have expressed a desire to be confirmed, not otherwise." This was a denial of the ceremony to him, and the parties were still unmarried. Taking, then, these to be the facts, he understood the refusal of the defendant was thus grounded-that according to the marriage service in the Book of Common Prayer they would see that the rubric at the end of it admonished or recommended parties to partake of the holy communion at a "convenient" time, or as soon as they conveniently could; and he believed the argument for the defendant would be, that inasmuch as a person not confirmed was not in a state to partake of the holy communion, Mr. James considered this declaration of the rubric as an injunction addressed to him, and that it was his duty not to marry parties who were not in a state to become partakers of the holy communion. Could such a doctrine contravene the express direction of an Act of Parliament? How could a Dissenter get married at all prior to VOL. XCII.

the marriage Acts? They were not confirmed.

The facts were proved in evidence. Fisher it appeared was a Methodist, and was not married "because they wanted this case to be tried on."

Anne Hardman, a good-looking girl, very young, was sworn, but not examined.

Cross-examined.- Her child was born on the 18th of October. She was not married yet. She had been confirmed about six years ago.

His Lordship.-Why were you not married, my poor girl? Are you under orders from anybody not to be married till this cause is tried?

Witness.-Yes, till this is tried. His Lordship. So then you are living in a state of sin, in order that this cause may be tried? Are you living with the young

man now?

Witness.-Yes.

His Lordship. So they have kept you in a state of sin in order to try this cause. Very well; if that is not a sin, I don't know what is. It is disgraceful. At the present day there is a determination to drive everything to extremities. Perhaps the young man won't marry you now.

Witness.-Yes, he will.

Henry Fisher was recalled, and, in answer to the learned counsel for the prosecution, said, he was living with the girl and had not married her until this cause was tried because of his own personal feeling in one sense, and because it was ordered he should not be married till this was settled.

The Attorney-General.-Who ordered you?

Witness. Why, I had warning from the Registration-Office.

Y

Mr. Bliss, for the defence, entered at great length into the theological and rubrical grounds which he conceived justified the defendant in his refusal; but under the direction of the learned Judge, the jury found the defendant "Guilty," and he was bound over to appear and receive judgment when called upon, it being the intention of the zealots on both sides to carry the question before another tribunal.

COURT OF QUEEN'S BENCH.

June 19.

CHARGE OF FALSE REGISTRATION REGINA V. LORD DUNBOYNE. The following singular charge of making a false registration of marriage was tried in the Court of Queen's Bench.

The indictment was framed on the 41st section of the Act for registering Births, Deaths, and Marriages, in England, the 6th and 7th William IV., c. 86, which enacted that every person who should wilfully make or cause to be made, for the purpose of being inserted in any register of birth, death, or marriage, any false statement touching any of the particulars by the Act required to be known and registered, shall be subject to the same pains and penalties as if he were guilty of perjury. It appeared from the evidence that Lord Dunboyne, who was about 80 years of age, was privately married, on the 27th of August, 1842, to Mrs. Mary Anne Vincent Vaughan, the widow of a Mr. Vincent Vaughan. Previous to that time, Mrs. Vaughan was living at Bell Hatch, with her grandmother, who was 85 years of age, and after the marriage, which took place by licence at Paddington Church, she continued to live at

Bell Hatch as before, and to pass as Mrs. Vaughan, the marriage for some cause being kept quite secret. In the next year, however, a marriage publicly took place, and Lord Dunboyne, on the 19th of December, 1843, married Mrs. Vaughan by licence at St. George's, Hanover-square. The marriage was duly advertised the next day in the public journals, and from that time Lady Dunboyne was publicly recognised as Lord Dunboyne's wife. It further appeared that on both occasions, when Lord Dunboyne applied for the marriage licence, he represented himself as a widower, and Mrs. Vaughan as a widow; and that when the marriages took place he made similar representations to the clergyman who registered the marriages. The indictment contained several counts, charging the defendant with wilfully making a false statement respecting his marriage, for the purpose of its being inserted in the marriage register; and the false statement consisted in his representing himself as a widower and Lady Dunboyne as a widow, when in point of fact they were at the time man and wife.

Sir F. Kelly interrupted the case to call the attention of the Court to the provision of the statute that every prosecution under the Act should commence within three years after the offence was committed-in this case six years had elapsed.-But Lord Campbell, though he had great doubt that the indictment could be sustained, refused to stop the case.

Mr. Cockburn addressed the jury for the defendant, and contended that there was no evidence to show that he had wilfully or corruptly made the statement for which he was now indicted.

In

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