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Decisions of the Superior Courts of New South Wales, 1788-1899

R v Maloney (1836) 1 Legge 74; [1836] NSWSupC 24

bigamy - marriage, legality of Catholic - reception of English law, marriage - Newfoundland

Supreme Court of New South Wales

Burton J., 11 February 1836

Source: Sydney Herald, 15 February 1836[ 1]

Thursday. - Before Mr. Justice Burton, and a Jury of Civilians.

Bigamy. - John Maloney was indicted for bigamy, in having intermarried with one Mary Carnaby; his wife, Mary Maloney, being then alive.

The circumstances of this case were very few and simple, though it excited considerable interest, and drew together a very crowded auditory.  It appeared from the evidence of the witnesses, that the prisoner was married by the Rev. Daniel Power, at Sydney, according to the rites of the Roman Catholic Church, in the year 1825, to Mary Collis, the prosecutrix.  He separated from her, went to Van Diemen's Land; and, on his return to this Colony, some considerable time after, married Mary Carnaby, the ceremony having been performed by the Rev. Mr. Cartwright, of the Church Establishment.  Witnesses were called to prove these facts; after which

Mr. Foster, (Counsel for the prisoner) contended that the first marriage, supposing it to have been proved to the satisfaction of the Court and Jury, was not a valid marriage; having been solemnized by a Roman Catholic Priest, between a member of the Church of England and a member of the Church of Rome.

The learned Judge, in putting the case to the Jury, told them he was of opinion - without informing them of the grounds of that opinion - that the first marriage, supposing it to have taken place according to the evidence before them, was a valid marriage.  His Honor then put the case to the Jury on the fact, proved upon the testimony of the several witnesses; and having read over his notes of evidence, the Jury retired, and shortly after returned into Court with a verdict of Guilty.

The learned Judge told the prisoner he would not pass sentence then; but would afford his Counsel an opportunity of mooting the objection - which he had reserved -respecting the validity of the first marriage, before the full Court.

The prisoner was accordingly remanded.


Forbes C.J., Dowling and Burton JJ, 19 February 1836

Source: Sydney Gazette, 23 February 1836[2 ]


John Malony, convicted of bigamy during the last criminal sitting, was placed at the bar.  At the time of trial it was proved, that the first marriage was solemnised by a Catholic priest before two witnesses in the usual form, and at the customary place, viz. the priest's house; the second marriage was by license.  The Jury found the fact, that both the marriages had taken place, the question to be argued now was, whether the first was a marriage in law.

Mr. Stephen rose, and addressed the Court.  There was not on the evidence sufficient proof that the first was a legal marriage.  By the 4 Geo. IV. c. 76. Sec. 22. it was enacted, that no marriage should be solemnised in any place except a church, chapel, or licensed place, where banns could be published, except by special license; and the ceremony must be performed by a person in holy orders, otherwise such marriage would be null and void.  The proof in this case was, that the alleged marriage took place in the house of Mr. Power, in Cumberland-street, at night, without banns or license, for of that there was no proof.  By the New South Wales Act, section 24. it was enacted, that all Acts then in force within the realm of England should be in force in this colony as far as they could be applied, this was the Act of 9 Geo. IV, the Marriage Act was the 4 Geo. IV. and consequently in force at the time of passing this Act.  The former Marriage Act. 26 Geo. III. to prevent clandestine marriages, expressly states, that that Act shall not extend beyond the seas; the last Marriage Act omits that clause, with the evident intention of its application to these colonies.  The present Marriage Act contains the right of succession, and who would deny that it did not extend to this colony, and if one portion extended here, the whole must.

Chief Justice.  Mr. Stephen, how do you get rid of the local ordinance 5 Geo. IV. No. 2.

Mr. Stephen, I consider, your Honor, that it has no bearing on this point.

Mr. Foster followed on the same side.  The local ordinance only went to remove any difficulties that might arise as to the application of the Marriage Act.  Had this marriage taken place in England, it would have been necessary that it should have been solemnised by a Protestant clergyman; the Act was imperative upon that point.  If the Marriage Act did not apply to this colony, then was there no Act in force here, as all the other Acts were repealed; without an Act a man might be bound in marriage before he was aware what he was doing; children might be decoyed away at a tender age, and drawn into marriage; in fact, unless this Act extended here, the consequences might be terrible.

In arrest of judgment, the learned gentleman also argued that prisoner had committed no offence under the statute; it was necessary that it should have appeared on the record, that he was a subject of his Majesty, which did not so appear.  Their Honors would also observe that both the marriages had taken place out of England.

The Solicitor General was about addressing the Court as to the argument in arrest of judgment, when the Chief Justice observed, that this was either a lex loci, or they had nothing to do with it; had the marriages taken place at Hobart Town, then the question would necessarily have arisen whether the prisoner was or not a subject of Great Britain.

The Solicitor General observed, that he would address himself to the point, whether the marriage was or was not legal, it having been solemnised in a private house, and by a Catholic priest.  The drift of the learned gentleman's argument was, that by the New South Wales Act the British Government contemplated as well as the Presbyterians, who were particularly mentioned.

Mr. S. Stephen replied, arguing as before, that the Marriage Act applied to the colony.  The Court would reserve their judgment.


Forbes C.J., Dowling and Burton JJ, in banco, 11 April 1836

Source: Australian, 19 April 1836[ 3]


Marriage Act.

[Forbes C.J.][4 ]

The prisoner, John Maloney, was tried for bigamy at the late Criminal Sessions of the Supreme Court.  It appeared in evidence at the trial, that on the 19th December, 1829, the prisoner was married to Mary Phely, by a Roman Catholic Minister, according to the ritual of the Church of Rome, at the private residence of the Minister, in the presence of two witnesses - it further appeared that the parties lived together for some time, as man and wife, and had a family of children - that on the 4th Sept. 1835, the prisoner was married a second time to one Mary Carmody, according to the ceremonies of the Church of England, in the Protestant Chapel at Liverpool - his former wife being still alive, and residing in the Colony.  Upon these facts the prisoner was convicted of bigamy; but a point of law was raised at the trial, and reserved by the Judge, whether the ceremonial of the first marriage having been performed without the publication of banns, in the private dwelling of the Priest, and not in a place of public worship, could be held to constitute such a valid marriage in law, as would support a prosecution for bigamy, under the statute which makes the offence felony.  This point has been fully argued by Counsel, and the whole case turns upon the question - whether the marriage of the prisoner in 1829, assuming it to have been in all other respects legally and duly solemnized, is void by reason of the provisions of the English Marriage Act not having been complied with - or in other words, whether the Act of Parliament which regulates the solemnization of marriages in England, is in force in this Colony.  I am of opinion that the Marriage Act is not in force, and the reasons upon which my opinion is founded, are the following - first, because the Act of Parliament is, by express terms, limited in its operation to England alone -secondly, because the Act cannot be applied to this Colony - and thirdly, because the local legislature has made other and different provisions for solemnizing marriage within the Colony.

Upon the first point - the words of the Marriage Act, 4 Geo. IV. c. 76, sec. 33, are these - ``Be it enacted, that this Act shall extend only to that part of the United Kingdom called England" - Mr. Stephen has called the attention of the Court to the difference between the wording of this clause, and the corresponding clause in the previous Marriage Act, 26 Geo. II. c. 33, sec. 18, by which it was enacted, that ``nothing in the (latter) Act contained, should extend to that part of Great Britain called Scotland - or to marriages solemnized beyond the seas."  But no argument can be drawn from this difference in the language of the Legislature, to affect the present case, one way or the other.  When the Act of King George the Second passed, Ireland was a separate Kingdom, and as the statutes of the British Parliament did not extend to Ireland, it was only necessary to exempt Scotland from the operation of the Act, and such parts beyond the seas, where the laws of England still continue to be observed - but when Ireland came to be included in the Union, Acts of Parliament passed after that period, extended of course, to each of the three Kingdoms, unless restrained by express words; and it was obviously a more simple course to limit the Act to one branch of the Union, than to restrain it from extending to the other two; and the express limitation of the Act to England prevented the necessity for repeating the clause in the previous necessity for repeating the clause in the previous Act, relative to Marriages beyond the seas - for if the Act were confined to England only, it could not, of course, extend to the Colonies.  This appears to be the natural way of accounting for the enactment in its present form.  As the Marriage Act now stands, it is limited in its operation to England and England alone, in terms too plain to admit of any doubt or difference of interpretation.  Assuming it then, to be very clear, that the Act of Parliament was intended solely to apply to England, I take it to be equally clear, that when the Legislature expressly limits its enactments to particular places, the limitation becomes a part of the law, and until the law is repealed or altered, it must be administered strictly according to the declared intention of the Legislature, and it becomes the duty of the Court not to extend it by construction.  Perhaps this position will not be disputed - but it is contended that the New South Wales Act was passed after the Marriage Act, and that the former Act provides, in express terms, that all the laws then in force in England should be applied in the administration of justice in the Colony, and that the ``Marriage Act as part of the lex loci of England, is, by force of the New South Wales Act, transferred to this Colony, in common with the other municipal laws of the Mother Country.  This brings me to the consideration of the second point - can the Marriage Act be applied to this Colony?

The New South Wales Act, 9 Geo. IV. c. 83. sec. 24, enacts, that all laws and statutes in force within the realm of England at the time of passing that Act, shall be applied in the administration of justice in the Court of New South Wales, so far as the same can be applied within the Colony - and as often as any doubt may arise as to the application of any Laws, it shall be lawful for the Governor, with the advice of the Legislative Council, to declare whether such laws shall be deemed to extend to the Colony, or to establish such limitations and modifications of the laws of England within the Colony as may be deemed expedient - and in the mean time, before such Ordinances shall be actually passed, it shall be the duty of the Supreme Court, as often as any such doubts shall arise, upon any proceeding before it, to adjudge and decide as to the application of any such laws.  This clause in the New South Wales Act, has been the fertile subject of comment, and the Court is frequently called upon to treat it as one quite new in principle and peculiar in its provisions; but it is neither new nor peculiar; it is affirmative of the text law as it is laid down by Sir William Blackstone and other elementary writers, and as it has been received and acted upon in the Courts in England, at least ever since the resolutions of the Privy Council, in 1722 (1 P. Wms. 75).  It has always been, and must I contend always be, a preliminary point to adjust, whether the Act of Parliament, intended to be applied, is applicable to the condition and circumstances of the Colony, into which it is to be transplanted.  To maintain a contrary doctrine, to hold that Parliament intended to force the whole mass of English laws - the laws of an old and settled society, which have grown out of occasions, during a long course of years, and which are become more refined and complicated than the laws of any other country in the world -- to apply all these laws at once to an infant community, without limitation or restraint, ``is a proposition much too inconvenient in its consequences, to be perfectly just in its principle."  Marriage is a contract of natural law, antecedent to civil institution - it is the source from which all other social relations are derived, Pufendorf, B. 6, C. 1 - nam cum sit hoc natura commune animantium ut habeant lubidinem procreandi prima societas in ipso conjugio est proxseminarium reipublicae. - Cie. de Off. L. 1, 17. In a state of nature marriage may take place to all intents and purposes, wherever two persons of different sexes, mutually engage to live together.  In civil society it becomes a civil contract, sanctified indeed by religious ceremonies, and subject to regulations adapted to the circumstances of the community in which the contract is made.  But all unnecessary impediments to this union of the sexes, are innovations upon the natural rights of mankind, and become injurious to the interests of society.  Restraints upon marriages, observes Sir William Blackstone, especially among the lower class, are evidently detrimental to the public, by hindering the increase of the people, and to religion and morality by encouraging licentiousness and debauchery among the single of both sexes, and thereby destroying one end of society and government, which is concubitu prohibere vago. 1 Com. 438.  By the ancient law or usage of marriage among the Christian states of Europe, before the Decrees of the Council of Trent, and by the law of England, until the reign of King George the Second, the consent of two persons, able to contract, expressed in words of present mutual acceptance, technically known by the name of sponsalia per verba depraesenti without the intervention of a Priest, constituted an actual and valid marriage.  2 Haggard, R. 82.  2 Salk, 437.  1 Term, R. 99.  Usage gradually introduced the solemnization of the contract by a person in holy orders, as necessary to its perfect regularity.  1 Salk. 119.  And the law so continued in England, until the year 1754, when the statute 26 Geo. II. c. 33, was passed for the purpose of preventing clandestine marriages.  This statute has been considered ``an innovation upon our ancient laws and constitution."  1 Bl. Com. 438.  The provisions of the present Act, 4 Geo. V. c. 76, are substantially the same as those of the former Marriage Act - they are adapted to the territorial division of England, the religious creed of the people, and the rights of the Established Church - they require that the banns of all intended marriages shall be published in the Parish Church or in some public Chapel (in which banns of matrimony may be lawfully published) of or belonging to the parish or chapelry wherein the persons to be married shall dwell, according to the ritual of the English Church; and if the parties reside in different parishes, the banns shall be published in the Church or Chapel belonging to the parish wherein each of the parties shall dwell - that the marriage shall be solemnized in the Parish Church or Chapel where the banns shall have been published, and in no other place whatever - that no license shall be granted by the ordinary, to solemnize any marriage in any other Church or Chapel than the Church or Chapel belonging to the parish or chapelry, within which the abode of one of the parties shall have been for fifteen days immediately before the granting of the license.  From this brief abstract of some of the principal clauses of the Marriage Act, it will be seen at once, that its provisions are founded upon the ancient Ecclesiastical division of the realm of England.  1 Bl. Com. 111 - that these territorial divisions become a necessary preliminary to the practical application of the law - that dioceses and parishes, with their local boundaries and legal rights, are an inseparable and indispensible [sic] part of the Marriage Act.  Now it is well known that no portion of this young Colony has yet been divided into parishes, with the exception of the County of Cumberland, and that only within the last year - that there is neither a Parish Church, nor a public Chapel, within the meaning of the Act of Parliament, in this Colony.  It is true there are places dedicated to God, where the solemnities of divine worship are performed, according to the established forms of the Church of England, and that it is usual for persons of the Protestant faith to be married therein.  But the circumstance of divine worship being performed, and marriages solemnized in those sacred places, does not make them either Parish Churches or public Chapels, in the legal sense in which those words of description are used by Parliament.  Assuming however that they are to be considered as public Chapels, in which banns may be lawfully published, the question immediately occurs, to what parish do these chapels respectively belong? - what are the limits of their several chapelries - or have they any chapelries at all?  It is matter of notoriety that these chapels were built by Government, and the expenses of building as well as of maintaining them, defrayed in part, if not the whole, out of the public Treasurey - that the pews and seats are let to individuals at stipulated annual rents - that they have no limits established by law, and are neither endowed, maintained, nor regulated according to the laws in force with respect to churches and parochial chapels in England; and that in many of the settled parts of the Colony there are no chapels or public places of worship whatever.  How therefore can banns be published after the manner required by the Marriage Act?  How can a marriage be solemnized in the church or chapel, belonging to the parish wherein the parties severally reside? - Again, the Act assumes the existence, within the Colony, of competent legal powers to grant marriage licenses.  These licenses are of two kinds, the license of the ordinary to dispense with the publication of the banns, and the license of the Archbishop of Canterbury to solemnize marriages at any other place than a parish church or public chapel.  These powers are essential parts of the Act.  I believe that strictly speaking, there is no power vested any where, within the Colony, to grant such licenses.  Until very recently New South Wales was comprehended within the diocese of Calcutta; but since the creation of two additional Bishoprica in India, this colony has been transferred to the diocese of Madras.  How far the Bishop of India may possess the power of granting dispensations in this Colony, it is not necessary to enquire.  I believe that in point of fact, no such power has been delegated to any surrogate in this Colony; and that the only marriage licenses in use, have been granted by the Governor.  Upon the legal effect of such licenses I am not called upon to offer any opinion, and it would be unbecoming on the present occasion to do so.  But I may venture to remark that if there is no express law which sanctions the practice of granting licenses, the preliminary enquiries which are instituted, and the circumspection with which they are issued, are calculated to restrain clandestine marriages, and to prevent some of the evils which the Marriage Act was intended to remedy.  It is apparent then, that some of the most material requisites of the Marriage Act are entirely defective in this Colony - that it wants the machinery necessary to its operation - upon which these conclusions are founded, should be thought too refined, I will briefly advert to the case of the King v. the Inhabitants of Northfield, in which it was held that a marriage celebrated in a chapel erected since the 26th Geo. 2, was void, although marriages, had de facto been frequently celebrated there; and to the case of the Attorney General and Stewart (2 Merivale 163) in which the master of the rolls considered the want of an enrolment office in the Court of Chancery in Grenada, a complete prohibition to the enrolment required by the statute of Mortmain, and a conclusive argument against its application to that Island.  How much stronger then is the objection to the application of the Marriage Act of England to this Colony, in which, not parts of the necessary machinery merely, but the whole foundation of the structure is deficient.  It is not necessary to dwell upon this part of the case any longer.  I will therefore close my remarks upon it by referring to an opinion of very eminent persons upon the applicability of the former Marriage Act to Newfoundland - the case occurred before I presided in the Supreme Court of that Colony, but finding it among the records of the Court, I have fortunately preserved it.  Newfoundland had not at the time a local legislature - the Supreme Court of that Colony was, like this Court, instituted by Act of Parliament; and the Act under which it sat, 49 Geo. 3, cap. 27, after empowering the Court to hold plea of all suits and complaints arising within the limits of its jurisdiction, goes on to enact ``that the Court shall determine all suits and complaints of a civil nature according to the law of England, so far as the same can be applied to such suits and complaints."  The words ``can be applied," are the precise words used in the New South Wales Act, and were of course intended by Parliament to convey the same meaning in both cases.  A doubt appears to have been entertained by the Chief Justice of Newfoundland as to the state of the law with respect to marriages in that Colony, and to remove it, a case was made in the form of queries, and referred by the Secretary of State, to His Majesty's law officers in England - the following is their opinion:-- ``Doctor's Commons, 11th May, 1812. - We are honored with your Lordship's commands transmitting a letter from the Governor of His Majesty's Colony of Newfoundland, stating that the Chief Justice having expressed considerable doubt of the law as it relates to marriages in the Island, had proposed the queries therein recited, to which he is desirous of obtaining such answers, as may serve as a fixed authority for the rule of his future conduct - and your Lordship is pleased to desire that we should take the said letter and queries into our consideration, and report to your Lordship our opinion thereupon.  In obedience to your Lordship's directions we have considered the same, and have the honor to report, that as the Marriage Act does not extent to the British settlements abroad, the validity of marriages at Newfoundland will depend rather upon what has been the practice and custom of the place, than upon any form of celebration which is indispensibly [sic] required.  The law of this Kingdom has agreed with the general law of the Christian Church, in considering the celebration of marriage by religious ceremonies to be requisite fore the perfect regularity of the marriage contract.  But it acknowledges the validity of marriages contracted without such ceremonies in countries where a different rule prevails. - We think that marriages solemnized by Roman Catholic Clergymen regularly officiating, would not be liable to objection, on account of the validity of their orders; but the performance of that ceremony by laymen, is an irregularity which can be justified only by necessity, or by the particular customs of the place; and we know of no principle independent of such custom, on which a Magistrate can be held to be more competent to perform that office, than a mere layman.  It is desirable for general convenience, that the practice of settlements abroad should conform, as nearly as local circumstances will permit, to the practice of the Mother Country.  But we cannot advise particularly upon any rule that it may be proper to establish at Newfoundland, nor upon the means of doing it, without more local information than is communicated to us. - Chr. Robinson V. Gibbs, Thomas Plumer."  This opinion of the law officers is in point with the present case - the question in that case appears to have been put, whether a marriage could be solemnized by any other than an ordained Minister of the Church of England, but it directly, involved the law of marriage in that colony, and the application of the Marriage Act to Newfoundland. - It does not seem to have occurred to the very eminent lawyers whose names are affixed to the above opinions, that the general terms of the Newfoundland Act were intended to control the express terms of the Marriage Act, or could be construed to extend the provisions of the latter beyond the exact limits which it had prescribed for itself; and they assumed and affirmed that the Act was not in operation in Newfoundland.  The opinion to which I have referred gave rise to an Act of Parliament (57 Geo. 3. c. 51) which I have occasion to know was drawn by one of the same learned persons, the late Judge of the High Court of Admiralty.  The Act recites, that ``whereas a doubt has existed whether the law of England requiring religious ceremonies of marriage to be performed by persons in Holy Orders, for the perfect validity of the marriage contract be in force in Newfoundland."  The doubt it will be observed, arose upon the application of that part of the canon law which requires the intervention of a Priest to the due solemnization of marriage.  1 Bl. Com. 439.  If the Marriage Act were in force in Newfoundland, then no such doubt could for one moment have been entertained because the whole provisions of the Act required the ministry of a person In Holy Orders - such a person only could publish the banns, perform the ceremony, or sign the register of the marriage.  The recital of the Act of Parliament and the enactments which follow it, were framed upon the assumption that the Marriage Act was not in force, and approach very nearly, if they do not amount to a declaration by Parliament, that it did not extend to Newfoundland.  I cannot distinguish between marriages in New South Wales, and in Newfoundland, or discover one sound argument for the extension of the Marriage Act to one Colony, which does not apply with equal force to the other.

Upon the last point, namely, how far the Marriage Act is affected by the ordinance of the Governor and Council, the New South Wales Act authorises the local legislature, as often as any doubt shall arise as to the application of particular laws, to declare whether such laws extend to the colony or not.  In exercise of this power the Governor and Council passed an ordinance (5 Geo IV. No. 2) expressly to remove doubts as to the validity of marriages solemnized in New South Wales - the Ordinance declares that all marriages before the passing of such Ordinance, solemnized by ordained or officiating ministers of the Church of Scotland, as by law established, or by ordained or officiating priests or ministers of the Roman Catholic Church, shall be, and shall be adjudged and taken to have been, of the same force and effect as, and no other than, if such marriages had been solemnized by Clergymen of the Church of England, according to the  rites and ceremonies of the Church of England.  This Ordinance is both declaratory and retrospective.  Now, if the marriage law of England was in force in the colony, then all marriages performed by a Roman Catholic Priest were void.  Shrimshire v. Shrimshire, 2 Haggard 401.  Yet the local ordinance declares such marriages valid - and it could only so declare the law, by declaring as a necessary inference, that the Marriage Act had never extended to the colony - there is no escape from this conclusion - the local legislature has declared marriages to be legal, which would be rendered illegal by the Marriage Act, if the Marriage Act were in force.  But it is ingeniously contended by Mr. Foster that the local Act was intended to modify the Marriage Act, by enabling Ministers of the respective Churches of Scotland and Rome to perform the religious ceremonies of the contract, and to leave the secular provisions of the law to be applied as they were before the passing of the Ordinance, and in support of this argument the words of the Act, ``of the same force as, and no other than if such marriages had been solemnized by Clergymen of the Church of England, according to the rites and ceremonies of the Church of England," are relied upon.  But if this construction be followed through all its consequences, it will lead to this anomaly - the banns must first be published in some Protestant Church or Chapel, by the Minister, according to the form of words prescribed by the Rubrick prefixed to the Book of Common Prayer; and the marriage afterwards solemnized in the same place, by a Roman Catholic Priest, according to the ritual of the Romish Church.  This, assuredly, could not have been the intention of the Governor and Council, and the words of the Ordinance which have been relied upon, do not lead to so absurd a conclusion.  I happen to know that the Ordinance was copied verbatim from the Act of Parliament, 58, Geo, III cap. 84, which was passed for removing similar doubts as to the validity of marriages by Ministers of the Church of Scotland in India, where the Marriage Act certainly did not extend, and the words alluded to were obviously introduced into the Act of Parliament in order to prevent the mere fact of a marriage being solemnized by a Presbyterian Minister, from making such marriage valid in law, notwithstanding any legal impediments which would otherwise have rendered it void.  Had the law not contained such a provision, it might have led to a doubt whether marriages solemnized by a Presbyterian Clergyman between persons of incompetent ages, or of unsound mind, or who were married before, were not made valid by the mere force of the Act.  This is the simple solution of the doubt.  Laying these words therefore entirely out of the case, as not affecting the question before the Court, it was certainly competent to have Governor and Council to declare the law - they have done so - they have not in terms declared the whole Marriage Act of England not to be in force in this colony, but they have declared the manner of solemnizing marriages by other than ordained Ministers of the Church of England to be, and to have been, legal within the colony, which is quite inconsistent and irreconcilable with their holding the Marriage Act to be in force.  Upon every view of the case therefore - upon general principles of law, as well as by the aid of authority, I have come to the conclusion that the Marriage Act is confined to England - and that it cannot be applied, and is not in operation in this colony.  It will not be necessary to enquire whether the first marriage of the prisoner was in all other respects regular and valid.  It appears from the notes of the learned judge who tried the case, that the marriage was prove to have been solemnized by an officiating Minister of the Church of Rome, according to the ritual of the Romish Church in the presence of two witnesses.  It was not in proof that the decrees of the Council of Trent had ever been received as of authority, by the Catholics in this colony; and it was not necessary to the validity of the marriage that it should have been solemnized in facie ecclesiae, by the law of England, independently of the Marriage Act.  Indeed, it is known to the court, as matter of history, that in the year 1829 there was no public Roman Catholic Chapel duly consecrated as such in this colony.  Upon all these several grounds I am of opinion that the prisoner Maloney has been legally convicted of bigamy.


Forbes C.J., Dowling and Burton JJ, in banco, 11 April 1836

Source: Sydney Herald, 18 April 1836


Rex v. Malowney [sic] - In this case, the prisoner Malowney [sic], was found guilty of bigamy at the last Criminal Sessions of the Supreme Court.  At the trial, an objection was raised and subsequently argued with great ability before the full Court, as to whether the second marriage of the prisoner was legal - in other words, whether the English marriage law applies to this Colony.  It appeared that the prisoner was married in the year 1829, to his present wife, according to the form of the Church of England, at Liverpool in this Colony; that he subsequently separated from her, and was again married, after the lapse of a few years, to another woman, by, and at the residence of, the Rev. Daniel Power, a Clergyman of the Church of Rome, then living in Sydney - no license having been first obtained, nor no bans having been previously published in the Church of the Parish in which the parties then dwelt, in accordance with the provisions of an Act of Parliament passed in the reign of the late King.

Mr. Justice Burton delivered a very elaborate judgment upon the point, and held that the marriage laws did apply here - that they had, in fact, been acted upon for a number of years past - and that they ought to be held to apply to the Colony, on account of the evils resulting from clandestine marriages, &c., which they were passed to prevent.

The Chief Justice and Mr. Justice Dowling both held that the English Marriage Laws do not apply to the Colonies; and His Honor the Chief Justice quoted, in support of his opinion upon the subject, the opinions of the late Sir Christopher Robinson, Sir Vickery Gibbs, and another eminent lawyer whose name we did not catch (but who was afterwards Master of the Rolls in England), upon a question put to them by the then Secretary of State for the Colonies, at the request of the Governor of Newfoundland, as to the applicability of the Marriage Laws to that Colony; upon which occasion these high authorities gave it as their opinion that those laws were not in force out of the Realm of England.

The conviction was accordingly confirmed, and the prisoner sentenced to be transported for seven years to a penal settlement; but it having been subsequently communicated to the Court that he arrived in this Colony free, he was called back, and sentenced to be transported for seven years, according to law.


Forbes C.J., Dowling and Burton JJ, 11 April 1836

Source: Sydney Gazette, 12 April 1836


John Malony convicted of bigamy, was then placed at the bar, the Court proceeding to pronounce its opinion upon the arguments used in arrest of judgment.

Judge Burton observed that he differed with his learned colleagues.  The question for the consideration of the Court was, whether the first marriage was valid or not; if valid, the verdict was right; if not, erroneous: -- was there any law to restrain illegal and private marriages?  This question had probably not been decided before in consequence of its great importance, but in this case the prisoner called for the opinion of the Court whether his first marriage, solemnized as it was, if marriage it was, could be considered legal; he had a right to moot that point, and the Court were now called upon to decide upon the point.

There were many opinions whether the Marriage Act extended to this Colony, he considered that it did; and if the English Act did extend here, the first marriage was illegal, and the conviction was illegal.  He was of opinion that the 24th section of the New South Wales Act, No. 3, and the case of Macdonald v. Levy, tried in that Court in 1829, settled the question.  The case had been argued as if the Marriage Act applied to marriages solemnized by the Church of England only, to exclusion  of all other sects, such were not the merits of this case.  One of the first objections taken was, that there were no parish churches, but there had been a political division of Sydney into parishes for many years, St. James's and St. Phillip; in the latter the marriage took place.  He held that any church in the Colony set apart as a church for a particular district, was to all intents and purposes a parish church, according to the provisions of the Marriage Act of William and Ann.  There might be few churches in the Colony, but it was within the means of the local Government to remove that cause of complaint without infringing on the law.  The whole of the provisions of the Act could be carried into effect in this Colony, there was a Bishop to appoint a surrogate, the Governor might be surrogate, and appoint deputies.  He as a judge of that Court did not hesitate to declare that the law was applicable to the Colony; on the ground of expediency it was applicable, to prevent the ruin of families by private and imprudent marriages, and the fraud and perjuries which would follow, without there was some law to prevent them.  There had been a complete adoption by marriage of the Marriage Act in this Colony, as appeared by the return of marriages; married by license before the passing of the Act, after its passing 7648.  If the Marriage Act did not apply to this Colony, why had application been made to the Court for their consent to marriages, and the appointment of guardians under the Colonial Act Geo. 4 No. 1, which proceed on the fact that the English Marriage Act is in full force in the Colony.  It could not be a fallacious idea to say, that fathers would be astonished to hear that sons could contract marriage in this Colony at the age of fourteen, and their daughters at twelve, without their knowledge and privacy, and yet that the marriage would be valid; it would be an unwholesome state of society.  The 53 Geo. 3, cap. 74, set to rights all doubts upon the subject, and proved that the Act did extend to this Colony.  Adopting the Local Ordinance 4 W. 4 No. 19, would be attended with very serious consequences.  He was of opinion the Marriage Act did extend to this Colony, consequently the first marriage was illegal, it having taken place in a house not licensed, and no banns as required by the Act having been published, the verdict was therefore wrong.

The Chief Justice remarked that it appeared upon the evidence at the time of trial, that on the 19th December, 1829, prisoner had married one Mary Tilley, according to the forms of the Church of Rome; he lived with her as his wife, and had several children by her.  On the 4th September, 1835, he married another woman by license at Liverpool according to the rites and ceremonies of the Church of England; in consequence he had been tried for bigamy.  A point had been resarved [sic] whether the first marriage was valid, it having been solemnized in an unlicensed house, and no banns having been published.  This roused the following questions: -- 1st. Was the Marriage Act limited to England alone?  2nd. Because it could not be applied in this colony?  3d. Because the Local Legislature had provided other means for marriages in this colony.  The English Marriage Act did apply to Ireland before the Union, but not under it .  Scotland also had been omitted in it.  The act was limited, the limitation was part of the law, and bound judgments of court.  It had been argued that the law must apply here, because it was part of the lex loci of England; such was not the case, it did not extend here; and if it only applied to England, it must be administered with the greatest strictness.  The New South Wales Act brought him to the consideration of the 2nd point.  Can the Marriage Act in all its provisions be applied to N. S. Wales.  Marriages arose from natural laws and from whence all social ties originate, (Vattie's Law of Nations, b. 6. V. 1) and 2d Haggard, also Blackstone.  It was well known the colony was not divided into parishes with the exception of the County of Cumberland, and that was only last year; there were also no parish churches both of which were required by the act if it applied here.  It was true that there were places in which Divine Service was performed and marriages celebrated according to the Protestant Church of England.  A case had occurred before he was Judge, in Newfoundland, where the point now under discussion was put in the form of a query to the Secretary of State and by him laid before the Law Officers of England  the report upon the application was, the marriage act did not extend to his Majesty's dominions abroad; marriages therefore depended upon the practise and custom of the place; and he could see no difference between marriages here and at Newfoundland where the act did not exist; and an act was passed there in consequence, some of the words in which were in the N. S. W. Act.  The local enactment in the colony was declaratory and retrospective, rendering marriages legal which would not have been so under the Marriage Act; had the Marriage Act been in force there would have been no occasion to pass local enactments.  The Act could not be applied, neither was it in operation in this colony, therefore the prisoner had been legally convicted of bigamy.

Judge Dowling  would occupy but a short time, he concurred in opinion with the Chief Justice, that the Marriage Act did not extend to this Colony, every section of the Act had reference to a state of things which did not exist in this colony.  He was of opinion on reference to the present state & circumstances of the Colony, the act could not apply, the objection was overturned.

The prisoner was then called up for judgment, when the Chief Justice in passing sentence observed  that he was there to receive the judgment of the Court for the offence of which he had been convicted.   The whole case had been fully and laboriously investigated, and the result was that the conviction was right; what difference might exist between the bench, as to the law, there was no difference as to the moral turpitude of the offence.  The sentence was, that he should be transported to a Penal Settlement for seven years.  Prisoner said he hoped that he would have the benefit of the Act.  The Chief Justice enquired of him, if he came to the colony free or a prisoner, but he was not bound to answer that question.  He replied that he came free.  Chief Justice  then you will be transported according to law.

The Attorney General then rose and observed, that himself and the gentlemen of the bar, understanding that he (the learned Chief Justice) sat that day for the last time, wished to present him with an address before his departure from these shores.  The petitioners then wished him renovated health during his temporary retirement, and expressed their high admiration of the talent he had displayed while holding his exalted situation.

The Chief Justice thanked them for their testimony of respect, and wished them health and happiness.

The Judges then shook hands, and the Court adjourned till next Monday.


Source: Sydney Gazette, 12 October 1837


The Clandestine Marriage Act.


The case of the Rev. J. Cleland, A. M., of Pitt Town, as reported in he proceedings of Presbytery, inserted in to-day's Gazette, has directed our attention to the Clandestine Marriage Act, which is certainly deserving of record as one of the most remarkable efforts at legislation which has hitherto come under our notice, and which, we have not the slightest doubt, our readers will agree with us in considering as redounding highly to the credit of Sir Richard Bourke's legislative abilities, and to the talent and legal acumen of his law advisers.

It was certainly highly expedient that, in a colony composed of such materials as this, some legislative enactment should be adopted to prevent the solemnization of clandestine marriages; and we should not have quarrelled with the principle of this Act, had not its enactments been so defective and oppressive as to render it already, to all intents and purposes, a dead letter, though very little more than twelve months have elapsed since our sapient legislature rendered it the law of the land.

The situation in which clergymen of all denominations are placed by the provisions of the Clandestine Marriage Act, is one of no very pleasing description; and we will venture to say, were it strictly enforced, there is not a single chaplain of any of the three established Churches, who has been resident in the Colony for the last twelve months, and who has been regularly, during that time, in the habit of solemnizing marriages, who has not transgressed its enactments, and thereby rendered himself liable to a prosecution for felony, and to the consequent penalty, on conviction, of transportation for seven years.  This statement may seem rather startling, but we believe it will be found on examination that our assertion is correct.  The Act expressly forbids the solemnization of marriage between parties, one or both of whom ``not being a widower or widow, ``shall be under the age of twenty-one ``years, without consent of the father of ``such of the parties so under age (if ``then living) being had and obtained, or ``if dead, of the guardian or guardians ``of the person so under age, lawfully ``appointed, or one of them; and in case ``there shall be no such guardian, then ``of the mother (if living and unmarried), ``or if there shall be no mother living and unmarried, then of a guardian or ``guardians appointed by the Supreme ``Court."

Now, as at least two-thirds of the females who arrived by Mr. John Marshall's Female Emigrant ships, are under the age of twenty-one years, and have neither parents now lawfully appointed guardians, nor any guardians appointed by the Supreme Court, it follows, therefore, as a matter of course, that every marriage solemnized, in which one of these female emigrants under age was a party, during the last twelve months, has subjected the clergyman by whom the marriage was performed, (should any of the parties, feeling the marriage bonds pressing rather tightly, and wishing to avenge himself or herself on the instrument by which that misery was caused, prefer a charge of felony for such breach of the Clandestine Marriage Act, any time within the space of three years from the celebration of the marriage,) to the liability of seven years transportation.

As we can hardly suppose that Sir Richard Bourke or any of the members of the worthy assemblage by whom this Act was made into a Law, could have any relish for the prospect of seeing the Right Reverend the Bishop of Australia, the Reverend the Moderator of the Presbytery of New South Wales, and the Right Reverend the Catholic Bishop working cheek-by-jowl in an iron-gang, we must presume that the risks to which they have exposed the clergymen of all denominations was an oversight which only requires to be pointed out to be remedied.  For their own safety, and to prevent the annoyance which they may otherwise suffer from evil-disposed persons we would recommend the clergy generally to unite in a petition to the Legislative Council, to free them from the danger to which they are exposed while this Act remains unrepealed. [5]




[ 1] For this trial, see also Australian, 16 February 1836; Sydney Gazette, 13 February 1836.  See also Australian, 12 February 1836, referring to the trial of John ``Molloy".  For the judge's notebook account of the trial, see Burton, Notes of Criminal Cases, vol. 24, State Records of New South Wales, 2/2425, p. 25, noting that Maloney's civil status at the time of the trial was ``free" rather than convict.  Between pages 40 and 41 of the notebook, there is a copy of the marriage record of ``John Mullowney to Mary Collins, dated 19 December 1829 at Sydney, witnessed by James and Brigett Russell.  On the reverse of the paper is a note headed Rev. Daniel Power, Roman Catholic Chaplain.  At p. 25, is Burton's marginal note stating ``Note - local Act 5 W 4 No. 2, 2 Vol 279."  At p. 36, there is a marginal note reference to 9 Geo 4 c. 83, s. 24 (now sometimes called the Australian Courts Act).

[2 ] See also Australian, 23 February 1836.

[3 ] For commentary, see Australian, 19 April 1836. A summary of the arguments in this case has been misfiled with the papers in R. v. Murrell, 1836, which was decided by the full banco court on the same day: see Miscellaneous Correspondence relating to Aborigines, State Records of New South Wales, 5/1161, pp 225-234.

This was the last judicial decision of Forbes C.J.  For an account of his retirement, see also  R. v. Murrell, 1836.  This was one of the few cases of the Forbes period to be reported in the nineteenth century: see 1 Legge 74-85, relying on the Sydney Gazette, Sydney Herald, and Australian. Legge stated at p. 75, that the best report of the judgment of Forbes C.J. was printed in the Australian of 19 April 1836.

This judgment was reprinted by the Sydney Morning Herald on 6 November 1849. It is online among the lengthy materials headed Presbyterian Marriages, 1849.

Lord Goderich informed Governor Bourke on 25 December 1832 that there was no need to decide whether Marriage Act of 2 Geo applies in New South Wales: the colony's Legislative Council has power to pass its own Act: Historical Records of Australia, Series 1, Vol. 16, p. 833.  See also Historical Records of Australia, Series 1, Vol. 15, p. 153; and see 1828 correspondence in Historical Records of Australia, Series 1, Vol. 14, p. 399, where Archdeacon Scott provided a history of marriage law.  At p. 400, Solicitor General Sampson declared that the governor had no power to issue a marriage licence any more, because there was a relevant bishop, in Calcutta.  It was question of canon law, he said, and the power to grant marriage licences rested solely in people such as the bishop.

On this case, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, p. 423.  Currey claims that in this case Forbes took as his test the availability of the machinery necessary to execute the law, the test which he had held in Macdonald v. Levy, 1833, to be ``neither a safe nor unerring standard."  Like that case, however, this was a two to one decision with Forbes and Dowling hold that the English law was inapplicable in the colony and Burton that it was.  Some things did not change, even on Forbes' last day on the bench.

[4 ] The context shows that this is the judgment of Forbes C.J., particularly the reference to Newfoundland, when he was Chief Justice before sailing to New South Wales.

[5] At the "Original Documents on Aborigines and Law 1797 to 1840" website Document 48 includes additional notes of Burton J on the Maloney decision (page 225 - 232). These notes are transcribed below:

[225] Maloney's Case reported by me - on this point reserved by me - as to the validity of the first marriage

M r Stephen for the Prisoner

No sufficient proof that the fist marriage was a legal one.

First marriage void 4 Geo 4 c 76 se 22 4 th Geo being in a private house

Proof that the marriage took place in Prisoners (RC Priest) private residence without Banns or licence

By N.S.W. all 9 Geo 4 c 13 re 24 - all laws & statutes in force be applied &c

Marriage Act in force at that time.

In the proir [sic?] marriage act there was a provision that the Stat should shd not extend to any marriage solemnisation beyond the seas

also 4 Geo 4 c 24 - Do

last act not provided that it should not extend by & beyond England

N.S.W. act extend the marriage act to this Colony

'laws in place in England ' as strong [sic?] be adopted as if recited by name

Nothing to prevent Parliament from afterwards extending the operation of an act at first limited & it is clearly done so by N.S.W act

We know not the laws of succession ate the laws of England - & how mainly do they depend upon the marriage act

It is an act passed to prevent Clandestine Marriage - the very evil complained of today - how many evils may not follow in the train of such marriages - : How arrive at the proof of such marriages

What to prevent children running away from [226]

29 th Feby 1836 their parents & entering into clandestine marriages [in margin "Long possible in contrivance [inconveniences?] would otherwise result"] Proofs liable to fact & Friends - necessity o Policy & Beneficence of the law

The laws hife [sic?] of the particular case before the Court instance -

but why is not this act in force? -

what prevents it ?

In Bigamy

Proof required not merely [sic?] a marriage in fact - but a valid marriage

1 Phillimon

313 Rex V Thos Norton -a case of consent wanting

here the evidence offered was of a marriage in a private house

Baily J prosecution must prove the first marriage valid

Cites 2 Refs imes - rex v Brampton

Lord Ellingbor

[in margin "the laws exclude & limit would be carried by subject of England to a place occupied by British Troops"]

1 st place occupied by K's troops ??? the law of England applicate [sic?]among them lex loci

(C.J. at comm law - could be no parish & no licence)

If any part of the law ecclesiastical & civil can be said to be carried with persons it must be the law or marriage so necessary to the foundations of property & succession

(reference by C.J. to local act "How do you dispose of this act.")

same force & effect & no alteration

&c aas [sic?] to the rites & ceremonies of the Ch. Of England ... But if first [227] marriage had been so solemnized - it would not have been valid.

As far as the rite & ceremonies - but still stane [sic?]would lean out of the case " the place above &c "

(C.J. "What do those words mean?")

"Nothing more than the solemnities attending the ceremony"

The local act only put a marriage had by other Ministers of R.C. & Scotch CH. On the same footing as a marriage by Ch England - leaving untouched the questions of place above &c

It was to enable this - has to contend [sic?] that

it was to abrogate the marriage law of the Country & but can it by only implication repeal an act of Imperial Parliament. No not even express

Not only two witnesses of persons have concurred but of persons in England who may succeed to inherit properties there

a great important national question not confined to N.S.W.

Nothing in the act which can not be applied

Infinitely important that it should be.

M r Foster on the same side

That the first marriage is invalid in law - N.S.W. act passed long after the marriage act the marriage was after that If the marriage act applicable clearly void.

The local act has no bearing upon this case

it took place at the prisoner [sic?] residence at a late hour in the evening

Act in Council 4 W 4

ninely remarks defects of this description R C In England must be married in a Protest Ch by a Protestant clergyman

the marriage act does not authorise marriage sin England [228] by a Minister of the CH of Scotland

the local act merely remedies these inconvenience

The marriage is of the same force & effect as if a Clergyman of the Church of England had performed it in same place &c as then rites & ceremonies

[in margin "refer to the petty trespass act - Part of the penalty goes to the poor of the Parish"] If some of the provisions of the act are not applicable - that does not present the whole - the substantial part may be applied,.

If this marriage act be not in force; then there is none

In what a state are we in?

That persons not arrived at years of Discretion may be involved in marriage,

Urged on the other side - That there are not Churches & Parishes in the Colony - but there are in most parts of the Colony nine tenths of the marriages in the Colony do take place in the way laid down by the marriage act

Bigamy Act 9 Geo 4 c 31 sec 22 see the Proviso

Foster 2 nd ly in arrest of Judgment on he Ground - that it is not averred that the prisoner is a subject

Not sufficient averred on the Record

provision - that nothing states or contend [sic?] to extend to a marriage out of England by any ? than a subject of His Majesty

Now if he had been an American & he is not amesnable to this Statute.

Proof was given at the trial

[229] that prisoner was an Irishman & but that does not supply the defect in he record.

Authority for 47 --- individual must contain all necessary ingredients -- it is curt [sic?] that he was a British subject,

If he had found the contrary - he would have been entitled to his acquittal - this Colony is Part of England"

Both marriages alleged to have been had in this Colony - it is consistent with the record [sic?] that he may yet be out of the act,

10 th Barn Cres 114 Information states that certain goods had been imported &c duty to arrest & detainer - deft unlawfully solicited an [sic?]

Held that inasmuch as not every paen [sic?] in the custom was sound.

It may be urged that as this come by way of a proviso it is not necessary to be averred Denial

The same as 'if the person be a subject of England were the words new [sic?]' - 4 Deigh 183 a case under the wilful trespass act.

Difference between an exception - & an explanation argues that being a subject of ??? is par of the enacting clause, & therefore ought to have been averred.

(The Solicitor General stopped on the last point by C.J. whether this is a lex loci or an law nothing to do with it - if both marriages in England - ? law nothing to do with it --- here both marriages are in this Colony.)

Solicitor General on this principal point

= the first marriage being celebrated by a R.C.C & in a private house - it is said is invalid - : ad it would be if the English marriage act be applicable,.

The circumstances of this Colony afford many objections [230]

[in margin - illegible - appears to be date repeated]

The 22 ch of the N.S.W Act - fix ten time of the application of he laws of England - in the same manner as if it were the first establishment of the Colony - viz as much as is applicable.

Not artificial refinements

It has been held that many as ????? acts game laws Poor laws etc

Revenues &c

Penal Stat The Introduction of the English marriage act into this Colony would produce incalculable disorder at least one half of the Colony are R. C a number of others Scotch Presbt - others Wesleyans

None but a Clerg can in England celebrate a marriage under the marriage act.

R.C.C not acknowledged as such in England not Ministers of Scotch Church

here clergymen of both are employed ?? paid by Government

Register act was cited to shew that R.C.C was bound to return their marriage to his archdeacon's Registrar

It shews however that it acknowledges marriage by other persons than of the Ch of England -- refers to the 6 Geo No 21 the spirit of the act shows that such is ??? recognised & the practice has been in accordance therewith

This shows that the legislature ????? refer to a difference between the circumstances of this Colony & of England

The English Act makes marriages void not performed in the parish Church or adjoining parish &c

those sections could never be applied [231] in this Colony - But Churches is every Parish throughout the Colony must be built before the marriage act can be applicable. No analogy in this Colony between Parishes in England & here - their Ministers

As matter of fact the archdeacon married under license of the Governor

But it would be penal towards R.C. & Presby to be married by a Protestant clergyman

(restriction but not penal

Burton J)

However the act proposed last year puts an end to all doubts on the subject & the marriage was after that

construction of the words 'rites & ceremonies'

These latter of not require that it should be in the parish church - in Concil Trida Sessio 24 c?

'Paischus' [sic?] he says it means a Priest in orders

I say it means a ' Parish Priest '

(Stephen P ? x ? ? ? ? ? ? ? ? ? ? ?

B - ' Parochia' rex v Wm Allison

Rafe & Reg 109 Bigamy - not necessary to prove that Banns were celebrated or license ass r [sic?] See Bain & Ald 704

Foster says the local act only se pulls [sic?] in the same situation as if performed by a Protestant Minister [sic?] of the Ch. Of E.

In Ireland marriages are performed by Clergymen of the Ch of Eng in private houses - there the marriage act does not apply then - but that shews that 'the rites & ceremonies of he CH of Engl' do not require that the marriage shd necessarily be performed in a Church"

W Stephen in Reply - That is an argument in favor of my position that it is no part of the rites & ceremonies of the Ch 'the place where performed - '

If the marriage had been performed [232] in accordance with these rites & ceremonies by a C. C England it would still be valid under the marriage acts.

It is contended that the local act was intended to make all other Ministers to celebrate marriage in any way they please.

As to the effect of bastardizing issue because the C.C. Ch of Rome do not choose to conform to the law, where it the inconvenience of their marrying in their Church

But as to the inconvenience arising from delay - not sufft to put aside the act.

Burton (Note ' so far ' words of N. S.W act use to be altogether applied; but only so far)

It is not a penal act. It is a remedial act to precent Frauds & Perjuries like that law [in margin "Stat of Frauds & Perj applied & all its adjuncts")

Laws on inheritance - are applied the marriage act a necessary adjunct & guard to the laws of inheritance

The Remedy provided by the local legislature is an ad??? Reason why the law should be enforced

If the law not considered by the Legislature applicable - would not there have been enacted to proceed against clandestine & improper marriage

Cur adv vult [sic?]

Published by the Division of Law, Macquarie University