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An Interpretation of Argar v Holdsworth

Published online by Cambridge University Press:  31 July 2008

Michael G. Smith
Michael G. Smith
Affiliation:
Visiting Research Fellow, University of Plymouth
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For many years it has been assumed that all parishioners legally qualified to intermarry have a legal right to be married in their parish church. In Blunt's The Book of Church Law it is expressed thus:

‘Every person within the parish in which a church is situate has a common-law right to the use of it in time of Divine Service. … Much more have they a right to the use of the church whenever they are to be present for the performance of any offices as regards themselves. Hence the incumbent's control over all access to the church is limited by the rights of the parishioners to its use at such times as he may appoint to the celebration of any of the offices contained in the Book of Common Prayer: whether those of public worship…; or whether those of a personal kind,… such as marriage.’

Type
Research Article
Information
Ecclesiastical Law Journal , Volume 5 , Issue 22 , January 1998 , pp. 34 - 41
Copyright
Copyright © Ecclesiastical Law Society 1998

References

1 Blunt, J. H., The Book of Church Law, revised by Sir W. G. F. Philimore and G. Edwardes Jones (10th edn., London 1905), pp. 333, 334.Google Scholar

2 14 Halsbury's Laws of England (4th edn., London 1975), para 1003.Google Scholar

3 Moore's Introduction to English Canon Law (3rd edn. by Briden, T. and Hanson, B., Oxford 1992). p. 76.Google Scholar

4 Church and State, Report of the Archbishops' Commission (London 1970), para 200.

5 Hill, Mark, Ecclesiastical Law (London 1995), p. 305.Google Scholar

6 Mark Hill, p. 305, note 2.

7 i.e. the Clandestine Marriages Act 1753(26 Geo 2, c. 33).

8 Doe, Norman, The Legal Framework of the Church of England(Oxford 1996), p. 359.CrossRefGoogle Scholar

9 Argar v Holdsworth (1758) 2 Lee 515.

10 An Honourable Estate. Report of a Working Party of the General Synod of the Church of England (London 1988). p. 82. See also SirDale, WilliamThe Law of the Parish Church (6th edn.London 1989), p. 61.Google Scholar

11 Doe, Norman, The Legal Framework of the Church of England (Oxford 1996), p. 360.CrossRefGoogle Scholar

12 Freeman, Ray, Dartmouth: a new history of the Port and its People (Dartmouth 1983). pp. 78, 79.Google Scholar

13 Alexander, J. J., ‘Dartmouth as a Parliamentary Borough’. Transactions of the Devonshire Association. 43. pp. 350–64.Google Scholar

14 See Barber, Melanie, ‘Records of the Court of Arches in Lambeth Palace Library’. 3 Ecc. LJ, pp. 10–19.Google Scholar

15 Lambeth Palace Library (LPL), D 49, 50 and B 19/35. All references for the Court of Arches may be found in Houston, Jane, Catalogue of the Records of the Court of Arches at Lambeth Palace Library 1660–1913. vol 85 (1972), published by The British Records Society. The account of the proceedings which follows is taken from these documents and from Devon Record Office (DRO) CC 844 Consistory Court Act Book.Google Scholar

16 Le Neve, John and Hardy, T. Duffus, Fasti Ecclesiae Anglicanae (Oxford 1854), 1. 428.Google Scholar

17 Foster, , Alumni Oxonienses 1715–1886 (Oxford 1896).Google Scholar

18 Venn, John, Alumni Cantabrigienses from earliest times to 1751 (Cambridge 1927).Google Scholar

19 DRO, cc 844 Consistory Court Act Book.

20 LPL.B 19/36.

21 The explanation which follows is taken largely from a study of Consett, Henry, The Practice of the Spirirual or Ecclesiastial Courts (3rd edn.London, 1708)Google Scholar. and Oughton, Thomas, Onto Judiciorum: Sive Methodus Procedendi in Negotiis et Litibus in Foro Ecclesiastico—Civili Britamico et Hibernico (2nd edn.London, 1738).Google Scholar

22 Argar v Holdsworth (1758) 2 Lee 515.

23 Unless, of course, proceedings concerned very serious offences by the clergy for which the penalty was deprivation. Such proceedings were, strictly speaking, conducted in the name not of the judge but of the bishop: see Office v Prince Clerk (1699) DRO. CC 753.

24 Holdsworth issued a licence himself and married Jane Howe to John Bainbird, of St Peter's, Ipswich, on 22 January 1758: see DRO St Saviour's, Dartmouth, Register of Marriages 1754–79.no. 35.

25 Statements in writers such as Richard Burn's Ecclesiastical Law need to be treated with caution. In the Consistory Courts at this period, it was a regular practice to seek the personal answers of defendants in criminal causes. See Lichfield Joint Record Office. Consistory Court Act Book B/l/2/89. 188 Walker v Arnstead Clerk (1704) and 244 Moorwood v Wright Clerk (1704): Greater London Record Office, London Consistory Court Sentence Book DL/C/161. Nov. 1726 Nov. 1728. 238. Aymes v Tristram Clerk (1727).

26 DRO. CC 31 Bishop Keppel's Register. 125.

27 DRO CC 754b.

28 Johnson, J., Clergyman's Vade Mecum (1st edn.London 1706). p. 159Google Scholar: cf. obiter of Patterson J. in Davis v Black (1841) 1 QB 900: ‘At common law parties may marry anywhere. It is true, however, that [the Clandestine Marriages Act 1753] ss. 1 & 4 confines them to the church of the parish where one of them has been resident for a certain time.’

29 Quoted by Melanie Barber, 3 Ecc LJ 13.