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Published online by Cambridge University Press: 31 July 2008
The entitlement of all persons capable of validly contracting marriage to have such marriage solemnised in the church or chapel of the parish in which they live was, until recently, widely accepted and often repeated. Argar v Holdsworth is the case most often cited as evidencing the existence of this right. However, this received orthodoxy has recently been challenged from two sources. First, by Professor Norman Doe in The Legal Framework of the Church of England and secondly by the late the Reverend Michael G. Smith, in an article in this Journal. Both Doe and Smith throw doubt upon Argar v Holdsworth as providing any basis for proving the existence of such a right and Doe goes further in suggesting that the right to marry was abolished by the Marriage Act 1936 and has only survived since that date as a legal fiction. I seek to demonstrate that Smith's understanding of Argar v Holdsworth is seriously flawed and also that the criticisms levelled against this case as an authority both by Smith and by Doe cannot be upheld.
1 Subject to the Matrimonial Causes Act 1965, s 8(2), and the Marriage Act 1949, s 5A (added by the Marriage (Prohibited Degrees of Relationship) Act 1986, s 3).Google Scholar
2 And, pursuant to the Marriage Act 1949, ss 6(4), 12, 72, in a church or chapel upon the electoral roll of which their name appears.Google Scholar
3 Argar v Holdsworth (1758) 2 Lee 515; 161 ER 424.Google Scholar
4 Doe, N, The Legal Framework of the Church of England: A Critical Study in a Comparative Context (Oxford, Oxford University Press, 1996).CrossRefGoogle Scholar
5 Smith, M, ‘An Interpretation of Argar v Holdsworth’ (1998) 5 Ecc LJ 34.Google Scholar
6 Clandestine Marriages Act 1753 (26 Geo 2, c 33).Google Scholar
7 Jackson, J, The Formation and Annulment of Marriage (London, Butterworths, 1969), p 14.Google Scholar
8 The only exceptions in the Clandestine Marriages Act 1753, ss 17 and 18, were in respect of the Royal Family, and Quakers and Jews respectively.Google Scholar
9 Ibid., s 19.
10 In fact, the proceedings against Holdsworth were first commenced in the Totnes Archdeacon's Court in July 1756, two years after the commencement of the Act. This, and much of the history of the case contained within this article is taken from M Smith,‘An Interpretation of Argar v Holdsworth’ (1998) 5 Ecc LJ 34. at p. 35.Google Scholar
11 The Exeter Consistory Court had heard the matter on appeal from the Court of the Archdeacon of Totnes.Google Scholar
12 Or ‘promoter’ to use the correct terminology.Google Scholar
13 That is, permit them to be relied upon as stating the case to be proven or met.Google Scholar
14 This was in written form having been taken from the witnesses prior to the court proceedings, and if necessary challenged by way of interrogatories (written questions).Google Scholar
15 The proceedings had started on 5 May 1756 and were not completed by 17 August 1759, the last date for which any evidence of the case exists. It is not known whether the case was ever completed.Google Scholar
16 Doe, , Legal Framework p 360.Google Scholar
17 Doe, , Legal Framework p 359.Google Scholar
18 See Smith, , ‘An Interpretation of Argar v Holdsworth’ p. 39.Google Scholar
19 Smith, , ‘An Interpretation of Argar v Holdsworth’, p. 41.Google Scholar
20 Smith, , ‘An Interpretation of Argar v Holdsworth’, p. 39.Google Scholar
21 Smith, , ‘An Interpretation of Argar v Holdsworth’, p. 39.Google Scholar
22 Smith, , ‘An Interpretation of Argar v Holdsworth’, p. 40.Google Scholar
23 This view is expressed in a footnote to the case of Baxtar v Buckley (1752) 2 Lee Ecc 42.Google Scholar
24 And president of the High Court of Delegates.Google Scholar
25 Emphasis added.Google Scholar
26 Doe, , Legal Framework of the Church of England, p. 359.Google Scholar
27 Significantly, the phrase ‘faculty or licence’ in article three is a direct quote from the language of Canon 101.Google Scholar
28 It may assist in understanding this rather involved argument to compare (1) the text of the articles as set out in the reported case at (1758) 2 Lee 516 and copied as Appendix II of this article, (2) Smith's transcript of the original articles published at (1998) 5 Ecc LJ 140. and (3) my transcript of the original articles which appears as Appendix I of this article.Google Scholar
29 Lambeth Palace Library document number E37/51. This case is also reported at (1752) 2 Lee Ecc 42; 161 ER 17.Google Scholar
30 Lambeth Palace Library document number E37/59.Google Scholar
31 Lambeth Palace Library document number E46/19.Google Scholar
32 Its number is G131/21.Google Scholar
33 Set out above.Google Scholar
34 Indeed it is not known whether this was a mistake made by Sir George Lee in compiling his manuscript notes of the case, or a mistake by Sir William Phillimore in editing them for publication.Google Scholar
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