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*Celebration by a Person in Orders.] It seems that in Ireland it is essential that the marriage should be
[ *79 ]
performed by a person in orders; which rule is positivi juris, marriage not having been celebrated by the clergy in the earlier times; and formerly it was held, that a marriage by a layman, erroneously instituted to a cure, was good.(g)
In the case of Arthur v. Arthur, the question was, whether the parties were married; a Romish priest swore he married them; the Archbishop of Dublin required him to exhibit his orders; he refused, and the archbishop rejected his testimony. The Court of Delegates held he was not obliged to show his orders, but he must show he was a reputed clerk.(h)
Enforcement of Matrimonial Contracts.]-The Irish stat. 12 Geo. 1, c. 3, enacted, that a marriage consummated should not be set aside on the ground of a pre-contract without consummation. The power of enforcing matrimonial contracts, with this qualification, existed in Ireland till the stat. 58 Geo. 3, c. 81, the third section of which pro
vides that there shall be no proceeding in any ecclesiastical court in · Ireland to compel a celebration of a marriage in facie ecclesiæ by reason of any contract.
Marriages between Protestants and Catholics.]-One of the objects of the earlier Irish statutes(i) was the prevention of *intermarriages between Protestants and Catholics, and sub
[ *80] jected such protestants as should marry papists, and the ministers celebrating such marriages, to divers penalties and disabilities.
But these statutes have been so far repealed by the 32 Geo. 3, c. 21, Ir.(k) that protestants, and persons professing the Roman Catholic religion, are permitted to intermarry; and persons having lawful jurisdiction may grant licenses for marriages to be celebrated between protestants and catholics, and clergymen of the established church, or protestant dissenting ministers may publish the banns of marriage between such persons; provided, however, that neither protestant dissenting ministers nor popish priests shall celebrate marriages between protestants of the established church and Roman Catholics. The 19 Geo. 2, c. 13, Ir.,(L) “ also provided that every marriage between a papist and any person who had been, or had professed himself to be a protestant at any time within twelve months before celebration of marriage, or between two protestants, if celebrated by a popish priest, should be void without any process, judgment, or sentence of law.” And it is also a proviso of 33 Geo. 3, c. 21, Ir.,(m)
ell, born in this country, one (a daughter) in Ir.; 9 Geo 2, c. 11, s. 6, Ir. the house of the Duchess of Rutland, in Ar. (k) Sects, 12 and 13. lington street, both of whom were constantly (1) Sect. 1. owned and acknowledged by the parties (m) Sect. 12. On the 26th of February, themselves to be their lawful issue, were 1836, a bill was introduced in the House of maintained and educated as such at their Commons, but did not pass, to repeal so much joint expense, and were constantly reputed of the act of the nineteenth year of King and taken for such by their friends, relations, George the Second, as makes void all marand acquaintance.
riages celebrated by any popish priest be. (g) í Brown's Civil Law, 74, 75, 2d edit. tween protestant and papist. After reciting (h) 1 Lee's R. 29, cited 2 Hagg. Cons. R. that the law then in force in Ireland under 401 ; ante, p. 34.
the said act, annulling all marriages celea (i) 9 Will. 3, c. 3, Ir.; 2 Anne, c. 6, s. 5, brated between protestants and Roman Catha July, 1841.-H
which *relieves catholics from all penalties and disabilities
in general, save such as protestants are liable to (but with certain exceptions,)“ that nothing therein should authorize any popish priest, or reputed popish priest, to celebrate marriage between protestant and protestani, or between any person who had been, or professed himself to be a protestant at any time within twelve months before such marriage, and a papist, unless such protestant and papist should have been first married by a clergyman of the protestant religion.” A penalty is imposed on every popish priest, or reputed popish priest, who should celebrate any marriage contrary to this provision.
By stat. 3 & 4 Will. 4, c. 102, so much of the Irish acts, 6 Anne, 12 Geo. 1, 23 Geo. 2, 12 Geo. 3, and 33 Geo. 3, as contains any penal, enactment which exclusively affects a Roman Catholic clergyman celebrating marriage between any persons, knowing them or either of them at the time of such marriage to be of the protestant religion, or as declares or enacts, that any Roman Catholic clergyman who shall celebrate any marriage between iwo protestants, or reputed protestants, or between a protestant, or reputed protestant, and a Roman Catholic, shall be guilty of felony, and suffer death as a felon, without benefit of clergy or of the statute, or as enacts and declares, that any Roman Catholic clergyman who shall celebrate any marriage between two protestants, or between any such protestant and papist, unless such protestant and papist shall have been first married by a clergyman of the protestant religion, shall forfeit the sum of five hundred pounds to his majesty upon conviction thereof, was repealed after the 29th of August, 1833. But nothing therein contained [ *82 ]
shall extend to any proceeding, criminal *or civil, com
menced before the passing of the act; nor repeal so much of any of the said acts as expressly or by implication repeals any former act or acts, nor to revive or recognize any enactment as being in force at the time of the passing of this act, which by any act theretofore made was expressly or by implication repealed or altered.(n)
olics by Roman Catholic priests, frequently the invalidity of which is now or hath been occasioned scrious difficulties in the titles to disputed or questioned, under or by virtue of lands and hereditaments, and in inany cases the said act, in any of his majesty's courts rendered doubtful the legitimacy of children, ecclesiastical or civil in Great Britain or Ireand was occasionally taken advantage of by land. evil-disposed persons; and therefore it was It further provided, that after the day to expedient to repeal the suid act lo the extent be named, no marriage which shall be celealoresaid. It was proposed absolutely to brated between a Roman Catholic and any repeal so much of an uct passed in the nine. person professing himself or herself to be a teenth year of the reign of his majesty King protestant, shall be valid, unless the same George the Second, intituled “ An act for an. shall be so celebrated between the hours of nulling all marriages to be celebrated by any eight and twelve in the morning, and in some popish priest, between protestant and protes. church, chapel or place which shall have tant or between protestant and papist, and to been used, for the space of one year at least amend and make more effectual an act pass. previous to the celebration of such marriage, ed in this kingdom in the reign of her late as a public place for divine worship. majesty Queen Anne, intituled. An act for But the proposed act was not to repeal the more effectual preventing the taking any enactments then in force for preventing away and marrying children against the wills the performance of the marriage ceremony of their parents or guardians," as relates to by degraded clergymen, or for preventing the marriages celebrated by Roman Catholic marriage of persons under age ; but that the priests between protestant and Roman Catho said acis should be in full force and effect as olic; but nevertheless so as not to render if the proposed act had not passed. valid or in any manner affect any marriage, (n) Section 2.
And it is enacted, that nothing in this act shall extend or be construed to extend to the giving validity to any marriage ceremony in Ireland, which ceremony is not now valid under the existing laws, or to the repeal of any enactments now in force for preventing the performance of the marriage ceremony by degraded clergymen.(o)
The 19 Geo. 2, c. 13, (Ir.) makes void all marriages celebrated by a popish priest “ between a papist and any person who hath been, or hath professed himself or herself to be a protestant at any time within twelve months before such celebration of marriage between two protestants.”
Therefore, where one E. K., the illegitimate son of a Roman Catholic mother, was brought up in his youth in the Roman Catholic religion, and was afterwards married by a Roman Catholic priest to a Roman Catholic, he not having conformed to the protestant religion in the manner prescribed by the statutes relating to uniformity; but upon the trial of an ejectment brought by a remainder-man, relying on such marriage as valid, evidence was given that E. K. had on several occasions, in several years previous to the marriage, and also within twelve months before the marriage, attended at divine service in protestant churches, and that he was considered by many persons as a protestant; which was opposed by the evidence of other persons, who stated that he had, during that period, attended on several occasions Roman Catholic places of Worship, and was considered by many to be a Roman Catholic: the judge charged the jury, " that if they believed upon the evidence that E. K. was brought up in the Roman Catholic religion, and previous to the said celebration of marriage had been a Roman Catholic, yet that no statutable conformity was necessary to invalidate such marriage; and that there was legal and sufficient evidence to go to them for *their consideration, that E. K. was a person who had professed himself to be a protest
[ *83] ant at some time within twelve months before the celebration of the marriage within the meaning of the stat. 19 Geo. 2, c. 13 (Ir.): and if they believed that within twelve months before the said marriage he had professed himself to be a protestant, though he did not conform to the protestant religion by performing the ceremonies specified in the several statutes relating to conformity, they should find a verdict for the defendant; but that such profession must be an unequivocal one, such as receiving the sacrament, or attending the religious rites of the protestant church, or performing acts of religious duty, such as a Roman Catholic would not do.” Under that charge a verdict having been found for the defendant; upon a bill of exceptions it was held that the judge's charge was right, and judgment was given for the defendant.(p)
Marriages of Protestant Dissenters.]—The Irish stat. 11 Geo. 2, c. 10, s. 3, after reciting that several protestants dissenting from the church of Ireland, as by law.established, scrupling to be married according to the form of ceremony prescribed by the said church, did therefore frequently enter into matrimonial contracts in their own congregations, before their ministers or teachers, and thereupon lived together as husband and wife, enacted, that for the ease of such pro
(o) Section 3.
(P) Kirwan v. Kirvan, 1 Batty, 712.
testant dissenters who had already entered, or should thereafter enter, into such matrimonial contracts, and thereupon live together as husband and wise, that they should not be prosecuted in any ecclesi. astical court, ex officio mero, or on the presentment of any minister or churchwarden of any parish, for or by reason of their entering into such matrimonial contracts, or for their living together as husband and wife by virtue of such contracts, provided such protestant dissenters, and such minister or teacher, had or should take the oaths and subscribe the declaration according to the Irish stat. 6 Geo. 1, c. 5.
By 21 & 22 Geo. 3, c. 25, all matrimonial contracts and marriages between protestant dissenters, and solemnized by dissenting ministers [ *84 ]
or teachers, are valid to all intents; and *all parties to such
marriages, and all persons claiming under them, shall, in virtue of such marriages, be entitled to all rights and benefits in like manner as persons of the established church, and as if the same had been solemnized by a clergyman of the church of Ireland ; provided, that nothing therein should make void or be construed contrary to the several acts made in the reign of Geo. 1, and Geo. 2, for preventing clandestine and other marriages therein specified.
The Irish stat. 21 & 22 Geo. 3, c. 25, s. 1, provided that all matrimonial contracts or marriages between protestant dissenters, and solemnized by protestant dissenting ministers or teachers, should be valid. Lord Chancellor Manners, on a question of forfeiture under a will, was quite satisfied, and thought it admitted no doubt, that Quakers'
marriages were meant to be included in the above act, though the words of the act might seem not to apply to them.(p)
Marriages by Minors without Consent of Parents or Guardians.).“ In Ireland the consent of parents was not by the common law essential to the validity of marriage. The Irish stat. 9 Geo. 2, c. 11, enácts, that all marriages and matrimonial contracts where either of the parties is under the age of twenty-one years, had, without the consent of the father (if living) in writing under his hand, first had, or, if dead, of the guardian, obtained in the same manner, or of the lord chancellor, in case no guardian be appointed, shall be void to all intents, and shall not be deemed as marriages or contracts by any spiritual court, if either of the parties be entitled to any real estate of the value of 1001. per annum, or to any personal estate of the value of 5001.; or if the father or mother of the party so marrying under age be in possession of a real estate of the value of 100l. per annum, or of any personal estate of the value of 2000l. And by sect. 2, it shall be lawful for the father or guardian of any person who shall marry, or be contracted in marriage, when under the age of twenty-one years, or if there be no father or guardian, for any person to be appointed by the lord chancellor, to commence a suit in the proper ecclesiastical court to disannul such marriage, &c. which suit shall be prosecuted
with effect; and if it appears in such *suit, by proper [ *85]
proof, that either of the parties was, at the time of such marriage, &c. under the age of twenty-one years, such marriage shall be adjudged by such court to be void. But by sect. 3, if no such
(p) Haughton v. Haughton, 1 Molloy, 614.
suit be commenced within one year after, such marriage or contract shall from the expiration of such year be good to all intents and purposes.
By Irish stat. 23 Geo. 2, c. 10, provisions are made for the removal of certain difficulties with respect to such suits.
On an indictment for bigamy, if the first marriage was in Ireland, it is no objection that it was by license when one of the parties was under age, and that there was no consent of parents, unless such marriage was vacated on that ground within a year, under the above stat. 9 Geo. 2, c. 11.(9)
Irish Statutes.)-By stat. 41 Geo. 3, c. 90, s. 9, copies of the statutes of Great Britain and Ireland, prior to the Union, printed by the printer duly authorized, shall be received (mutually) as conclusive evidence of the several statutes in the courts of either kingdom.
SECT. 7.-OF MARRIAGES IN SCOTLAND.
1. Of Regular Marriages
85 2. Of the Capacity of Parties to marry
87 3. Of Irregular Marriages
91 4. Of Marriage by Habit and Repute
99 5. Of the Evidence of Intention of Parties contracting
101 6. Of the Marriages of English Partics in Scotland
107 1. Of Regular Marriages.] – There exists a radical and original difference between the marriage law of England and Scotland;
the basis of which, as we have already seen, is the canon law.(a) The early state of the law of marriage in Scotland is said to be involved in greater obscurity than is observable in the law of other European nations which acknowledged the Roman See.(b)
By the law of Scotland there are only two kinds of marriage, regular and solemn, or irregular and clandestine. The *distinction between void and voidable marriages is not
[ *86 ] recognized by that law as in England.(c)
In Scotland, the public solemnity of marriages is a matter of order but it is not essential to marriage. The consent of parties, which constitutes the marriage, may be expressed before a civil magistrate, or even before witnesses, and it is not necessary that a clergyman should be present.(d)
(9) Rez v. Jacobs, 1 Ry. & M. C. C. 140. arising out of the act of Union in applying (a) Ante, pp. 21, 22.
the marriage act to that country. 2 Hagg. (6) 1 Stair's Inst. p. 26, n. by Brodie. Cons. R. 448.
(c) Bell's Case of Putative Marriage, 211. Shortly after the order for bringing in the See post, p. 89. In the first Marriage Act, English Bill for the better preventing clan26. Geo. 2, c. 33, there is an express excep- destine marriages, an order was made for tion that it should not extend to Scotland. the Lords of Session in Scotland to prepare Sir W. Wynne said he remembered the pass a similar bill for that part of the kingdom. ing of that act; and that there was an inten- Lords' Journals, 17 April, 1753, vol. 28, p tion at the time of introducing another act of 98. parliament, which was to extend to Scotland; (d) Stair's Inst. b. 1, tit. 4, s. 6; Ersk. but by the act of Union the state of religion Inst. b. 1, tit. 6, s. 5; Bank. Inst. b. 1, lit. 5, is not to be touched, it is to remain exactly s. 2; M Adam v. Walker, 1 Dow. 148; post, as it was, and therefore there was a difficulty p. 93.