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The Roles of the Vicar-General and Surrogate in the Granting of Marriage Licences

Published online by Cambridge University Press:  31 July 2008

C. C. A. Pearce
C. C. A. Pearce
Affiliation:
Solicitor in the Faculty Office of the Archbishop of Canterbury; Deputy to the Registrar of the Diocese of Guildford
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As a general principle, regular marriage in the Church of England is solemnized after the publication of banns. This requirement entered the medival canon law first as a matter of local custom, but was made universal in 1215 by a decree of the Fourth Lateran Council. Lord Hardwicke's Act did not impose the requirement of banns for the first time; it simply ensured that the option of an irregular marriage without banns, previously recognised by Church and State thoughfrowned upon, would no longer be valid in law.

Type
Research Article
Information
Ecclesiastical Law Journal , Volume 2 , Issue 6 , January 1990 , pp. 28 - 37
Copyright
Copyright © Ecclesiastical Law Society 1990

References

1. Marriage Act 1753.

2. The dispensing power makes a fascinating study in its own right. The basic principle is that the law giver, from whom a law made for the general good derives its force, has power to relax it in particular cases where its effect would not be beneficial. Authorities inferior to the lawgiver can dispense where the lawgiver has delegated that power to them. A dispensation must be given for cause, and is usually subject to the tacit condition that the petitioner's allegations are true.

3. And Wales, despite the effect of the Welsh Church Act 1914; Powell v Representative Body of the Church in Wales (1957) 1 All ER 400.Google Scholar

4. This refers to certain dioceses where Ordinary jurisdiction in this respect is exercised by the Archdeacons; and may also allow for any special customs in royal and other peculiars.

5. The granting of special licences by the Archbishop of Canterbury in the Province of York is easily enough understood as an exercise of transferred papal authority; but his granting of common licences in the northern province is more difficult to explain, and is probably best seen as an historical anomaly dating from the days of strong rivalry and power struggles betwen the two sees.

6. According to Lyndwood, Officiales dicuntur, quibus causarum cognitio generaliter per habentes jurisdictionem ecclesiasticam committitur, et in tales transfunditur cognitio causarum totius diocesis; non tamen inquisitio, nec correctio sive punitio criminum, nee possunt aliquos amovere a beneficiis, nec conferre beneficia, nisi specialiter fuerint talia eis commissa. Sed Vicarii Generales omnia praedicta facere possunt, virtute officii, excepta collatione beneficiorum.

7. Ecclesiastical Jurisdiction Measure 1963, S. 13(2).

8. It is possible, though, to imagine ways in which this convention might be broken. In particular, the offices of Chancellor and Official Principal may now be made virtually freehold offices by capitular confirmation (Ecclesiastical Jurisdiction Measure 1963, s.2(3),) but there is no comparable statutory provision for the vicar-general. It has been suggested that such confirmation is not necessary to give the vicar-general a freehold (Newsom, G. H., Faculty Jurisdiction in the Church of England, p.9Google Scholar), but it seems equally possible that the pre-reformation (and continuing) English position may be reflected by the present Roman Catholic canon law: ‘The power of the vicar-general (or episcopal vicar) ceases when the period of their mandate expires, or by resignation. In addition … it ceases when they are notified of their removal by the diocesan bishop, or when the episcopal see falls vacant’ (RC Can. 481, §1); and that this would be the position irrespective of capitular confirmation. If this were correct, an incoming bishop would have to put up with a chancellor already confirmed in office, but could appoint a new vicar-general of his choice. It would equally follow that during a vacancy in see, the granting of licences would be a matter for the guardian(s) of the spiritualities to perform through their own vicar; the Metropolitan acting by the Provincial Vicar-General, or the Dean & Chapter acting by a Vicar specially appointed.

9. The Encyclopaedia of Forms and Precedents, 4th Edition, Service, contained a form of Chancellor's patent which achieved brevity and simplicity of wording at the cost of omitting almost all the detail of the form here set out. The result of using such a form (not reproduced in the 5th Edition) would be to give a vicar-general almost unlimited episcopal authority.

10. Two clear examples of the judicial role that the vicar-general must play may be taken from the Marriage Act 1949 as amended: s, 16(2) (caveats against the issue of common licences), and s, 16(28) (declarations that no impediment of affinity exists, in cases where the parties cannot both swear that such is the case).

11. Ex p. Brinckman (1895) 11 TLR 387.Google Scholar A conflicting authority, relating to the transferred papal jurisdiction, may be found in the decision of Dr Nicholl, Master of the Faculties, in Prince Capua v Count de Ludolf (1836) 30 LJPM & 71n.Google Scholar It is submitted that Dr Nicholl's view is to be preferred.

12. See part 4. The matters mentioned at note 10 above, however, will always be dealt with by the vicar-general.

13. This need increased considerably in the 19th and 20th centuries, with some individuals being vicar-general of several dioceses at once. The trend has now been halted, and no chancellor presently in office is appointed for more than three dioceses.

14. A recent example of a surrogate sitting in a secular court in this country (operating under a civil law system) was Manchester Corporation v Manchester Palace of Varieties Ltd (1955) 1 All ER 387Google Scholar, when Lord Goddard sat as surrogate of the Earl Marshal in the High Court of Chivalry: though, unusually, his principal the Earl Marshal was also present in person.

15. Canon cxxviii.

16. Statute Law (Repeals) Act 1975.

17. 10 Geo. IV c.53, s.13.

18. Proclamation of banns according to the use of the Church of Scotland was formerly a recognised preliminary to a Church of England marriage, where one of the parties resided north of the border. But by s.3 of the Marriage (Scotland) Act 1977 a marriage notice published by a civil registrar became the only preliminary to marriage recognised by the law of Scotland, and an Act of the General Assembly provided that proclamation of banns should cease in the Church of Scotland save as an option for purely religious purposes. It is apprehended that proclamation on that basis would not be within the contemplation of the English Act of 1949, which recognised banns proclaimed in Scotland ‘according to the law or custom there in force’. Banns published in the Church in Wales, however, are effective for English purposes despite the disestablishment of that Church, thanks to the construction provision in s.78(2) of the 1949 Act.

19. Church Representation Rules, r.1(2)(a).

20. See the treatment of this subject in An Honourable Estate, GS 801.

21. Law Comm. No. 53, Annex, 54.

22. GS Misc. 25.

23. GS 801.