There can be, I think, little doubt that in old times the distinction between Church and State was one of jurisdictions rather than of laws. I mean that each was supposed to have its proper subject-matter of legislation as well as of judicial inquiry. Where the subject-matter was conceded to the Church altogether, there the Church law prevailed absolutely; where the subject-matter was of mixed cognizance, there the Church law was modified by the common or the statute law; where the subject was altogether lay, there both the laws and the tribunals of the Church were silenced. When, therefore, we would ascertain whether the law of the Church is to govern a given subject, we must first ascertain how far it was of the exclusive cognizance of the Church; and, if we find that it was principally but not exclusively of ecclesiastical cognizance, how far the common law interfered to modify the ecclesiastical laws by which it was to be determined.
Now, in the case before us, this much, I think, must be admitted, viz. that marriage, as a sacrament, was exclusively subject to the ecclesiastical jurisdiction; and, therefore, that whatever view the common law might entertain as to the consequence to be attached to this or that form of it, the essence of the sacrament itself was determinable by the doctrine of the Church, and by that alone.
But if this was so, then whatever was accepted by the Church of England as to the essence of marriage must necessarily be allowed to have been the common law upon that point, i.e. there could be no other law by which it could be decided.
Granting, therefore, that J. de Burgh, or any other ecclesiastical writer, has laid down rules upon subjects of mixed jurisdiction which the common law disallows, it by no means follows that his authority is to be slighted where he speaks of matters that were exclusively ecclesiastical. Indeed, the opposition of the common law upon given points, e.g. the legitimation by subsequent marriage, gives a pregnant meaning to its silence upon others.
I find that in the autumn of that year (1843) Mr. Hope spent some time in making researches into the records at York connected with the law of marriage. In a letter to Mr. Badeley (September 28) he says, 'At York I was successful in finding a variety of matrimonial causes, from A.D. 1301 downwards, which I think illustrate the right view of the question. The records there abound in well-preserved forms of proceeding, and it was with regret that I gave up further investigations. The labour, however, of reading and transcribing extracts was occasionally harder than suits holiday work.' In the same letter he speaks with much pleasure of a day spent at Burton Agnes with Archdeacons E. Wilberforce, Manning, &c., and as particularly indebted to the Archbishop of York and his family for the reception they gave him. The correspondence, indeed, affords a gracious epistle from the Archbishop himself (then nearly eighty-six years of age) to Mr. Hope, dated Trentham, September 30, 1843, in which, after expressing his high satisfaction at some legal advice which he had received from him, he goes on to say:—
I have only to add that nothing could gratify us more than your having occasion—and the sooner the better—to refer again to the York archives for any purpose whatever; 'provided always, and be it hereby enacted, that such reference be had during the period of the Archbishop's annual residence at Bishopthorpe.'
Ever truly yrs,
E. EBOR.
It may here be permitted me to quote a few lines from memoranda about Mr. Hope, kindly written at the request of one of his nearest relatives by a lady whose genius as well as catholic feeling especially fitted her to preserve those traces which I am sure no reader would wish should be allowed to fade away. They afford at once a proof that when doubts as to his religious position were approaching their most painful stage, he never allowed them to interfere with those duties of religion which are binding on all intellectual states alike, and they present a glimpse both of his appearance and manner at that date which will greatly assist the reader in forming an idea of him.
I think it was in 1843 that I first saw your dear brother in Margaret Street Chapel, the favourite place of worship of the Puseyites in those days, and noticed him and his friend Mr. Badeley walking away together, and was more struck with his appearance than with that of any other person I have ever seen before or since…. It is only in pictures that I have ever seen anything equalling, and never anything surpassing, what was, at the time I am speaking of, the ideal beauty of his face and figure.