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Reference :-
TLC.O. 885
13 PUBLIC RECORD OFFICE, LONDON
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in that state the character of a sacrament, for it is a misapprehension to suppose that " this intervention was required as a matter of necessity even for that purpose before "the Council of Trent. It appears from the history of that council, as well as from many other authorities, that this was the state of the earlier law; until that council passed its decree for the reformation of marriage, the consent of two parties, expressed in words of present mutual acceptance, constituted an actual and legal marriage, technically known by the name of Sponsalia per verba de præsenti.'"
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Again, at page 81,-"Before I enter upon the examination as to the evidence of "the law of Scotland, I will premise an observation, from which I deduce a rule that ought to some degree to conduct my judgment. The observation I mean is this, that "the Canon Law, as I have before described it to be, is the basis of the marriage law of Scotland, as it is of the marriage law of all Europe, and whether that law remains " entire or has been varied, I take it to be a safe conclusion that in all instances, where "it is not proved that the law of Scotland has resiled from it the fair presumption is "that it continues the same. Show the variation, and the court must follow it, but "if none is shown, then must the court lean upon the doctrine of the general law, " for I do not find that Scotland set out upon any original plan of deserting the ancient "matrimonial law of Europe, and of forming an entire new code upon principles hitherto "unknown in the Christian world."
Lord Stowell, in the above passage, assumed, as he was bound to do upon previous decisions, that the Canon Law of marriage was the marriage law of England prior to Lord Hardwick's Marriage Act of 1753, and for this, he cited amongst other authorities, that of Lord Holt, C.J. In Collins v Jesson, 3 Anne, it was said by Lord Holt, and agreed to by the whole bench, "that if a contract be per verba de præsenti, "it amounts to an actual marriage, which the very parties themselves cannot dissolve by release or other mutual agreement, for it is as much a marriage in the sight of God as if it had been in facie ecclesiæ.”
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The law, as thus laid down by Lord Stowell, was under the consideration of the House of Lords in two subsequent leading cases, The Queen v. Millis, and Beamish v. Beamish.
The Queen v. Millis came before the House of Lords in 1843, and is reported in 10 Clark and Finnelly, p. 534. The respondent in this case was a member of the Established Church of Ireland. In 1829 he was married according to the usual form of the Presbyterian Church in Ireland, by a Presbyterian minister, at the minister's house, in County Down, to Hester Graham, who was not proved to have been a Presbyterian. For two years he lived with her as his wife. He then left her, and in 1836 married another woman in England according to the rites of the Church of England. For this second marriage he was indicted in Ireland for bigamy. The jury found a special verdict. The case was removed by certiorari into the Court of Queen's Bench in Ireland, and was there argued before four judges, who were equally divided in opinion, two of the judges holding that the Irish marriage was valid as "Sponsalia per verba de præsenti" under the Canon Law, and the other two judges holding it to be invalid, as not having been celebrated in the presence of a minister in holy orders, whose presence, although not required by the Canon Law, was upon the facts found required by the law of Ireland. The junior judge, who was in favour of the validity of the Irish marriage, for the purpose of obtaining the judgment of the House of Lords, withdrew his judgment, and judgment was thereupon entered in favour of the respondent, acquitting him of bigamy.
This judgment was appealed. The appeal was heard before the Lord Chancellor (Lord Lyndhurst), and five law lords (Her Majesty's judges being in attendance). After a lengthened argument at the bar of their Lordship's House, and after the delivery of the opinion of Her Majesty's judges, which was adverse to the validity of the Irish marriage, their Lordships were also equally divided in opinion. Lord Brougham,
Lord Campbell, and Lord Denman held, that the Canon Law was the ancient marriage law of Ireland as well as that of England; that it had not been abrogated by the Irish Marriage Acts, and was therefore still in force there, and that the Irish marriage was consequently valid.
On the other hand, the Lord Chancellor, Lord Cottenham, and Lord Abinger held the marriage to be invalid, on the ground that by the common law of England and Ireland the presence of a minister in holy orders was essential to the valid celebration of a marriage. They rested their opinion on a Saxon law, A,D. 940, which stated "that at nuptials there shall be a mass priest by law, who shall by God's "blessing bind their union to all posterity" 10 Cl. and Fin. 617. Also on a canon by Lanfranc (A.D. 1076). "Further it is ordained, that no man do give his daughter "in marriage without the priest's benediction; other marriage shall be deemed forni-
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cation," and on other early English canons and authorities, and held, that the rule prescribed in these canons had, and the rules of the Canon Law had not, been incorporated in the common law of England and Ireland, and that England and Ireland were consequently exceptions to the general rule stated by Lord Stowell, that the Canon Law, until varied by the Council of Trent, was the marriage law of Western Europe.
The Lords being thus equally divided, the rule "semper presumitur pro negante" applied, and judgment was given against the validity of the Irish marriage, acquitting Millis of bigamy.
The same question was again incidentally under the consideration of the House of Lords in 1859 in Beamish v Beamish, reported in 9 House of Lords Cases, p. 274.
In this case the Rev. S. S. Beamish, being in holy orders in the Established Church of Ireland, in 1831 read the marriage service out of the prayer book, as though he were celebrating a marriage between himself and Miss Isabella Fraser, in a room in a private house in the city of Cork. There was no one in the room excepting himself and Miss Fraser, but a maid servant, unknown to them, saw the ceremony performed. After the death of Mr. Beamish, the question was raised by an action of ejectment as to whether his son by Miss Fraser was entitled to succeed to real estate in County Cork, as his heir at law. The jury found a special verdict. The Court of Queen's Bench in Ireland was of opinion that the father's marriage was valid, as it took place prior to 1844 (the date of the General Marriage Act for Ireland, 7 & 8 Vict. c. 81.). In the Exchequer Chamber of Ireland the majority of the judges were of the same opinion.
The case on appeal was argued in 1959 before the House of Lords. Majesty's judges were in attendance. Mr. Justice Willes against the validity of the marriage. The Lord Chancellor (Lord Three of Her The opinion of the judges was delivered by Campbell) (considering the House bound by the judgment in The Queen v Millis) and Lord Cranworth, Lord Wensleydale, and Lord Chelmsford, all held that the marriage was invalid, and the judgment of the court below was reversed. This decision was based on the grounds that the presence of a priest was required by the Saxon law and Archbishop Lanfranc's canon for two objects, besides that of giving the sanction of religion to the contract; viz., to secure the presence of a third party as an independent witness to the fact of the marriage; and of an official qualified to prevent the celebration of a marriage where there was a lawful impediment to its taking place, and that Mr. Beamish by the course he had adopted had defeated these two objects. It was intimated by their Lordships that the rule established in The Queen v Millis would extend, generally, to the marriage of British subjects celebrate in the Colonies and foreign parts, wheh claiming their common law rights. But Lord Cranworth observed that it should not be extended to cases in the Colonies and abroad, where it was impossible to obtain the services of a minister in holy orders.
Upon the first proposition advanced by the Crown Advocate, I have the honour to report to your Grace that the Canon Law, which permits a valid marriage to be constituted without the intervention or presence of a priest, designated "Sponsalia per verba de præsenti tempore consent, must be taken to have been the law of Malta up to the Council of Trent (1563) " and in two other ways equivalent to a declaration of mutual and to have continued to be the law of Malta, until it is shown to have been abrogated or varied by subsequent law.
This leads up to two further propositions, the second and third propositions advanced, as I gather from the Parliamentary papers, by the Crown Advocate.
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The first of these two further propositions, namely Proposition II., is: "That the above rule of the Canon Law relating to irregular marriages was abrogated by the acceptance and promulgation of the decrees of the Council of Trent in Malta, by one of which the presence of a priest is essential to the validity of the celebration of marriage."
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Upon this proposition I have the honour to report to your Grace as follows:- 1st. That the Crown Advocate and the authorities at Malta have disclosed no positive evidence, and that I have discovered none of the decrees of the Council of Trent ever having been accepted and promulgated in Malta up to the time of the British occupation. 2nd. That there is a body of evidence which negatives the supposition of there having been any such acceptance and promulgation in Malta prior to such occupation.
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The decree of the Council of Trent in question is in the following words: “ aliter quam præsente parocho, velalio sacerdote, de ipsius parochi seu ordinarii licentia, "vel duobus vel tribus testibus matrimonium contrahere attentabant, eos sancta synodus - Qui "ad sic contrahendum omnie inhabiles reddit, et hujusmodi contractus et nullos (Decretum de
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esse decernit, prout cos præsenti decreto irritos facit et annullat." Reformationi Matrimonii. Pope Pius IV. A.D. 1563, Caput 1.)
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