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

Presbyterian Marriages controversy, 1849

(including R. v. Maloney, 1836, and Catterall v. Catterall, 1847 (London Consistory Court))

marriage, validity of - reception of English law - statutory interpretation

Supreme Court of New South Wales

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

Source: Sydney Morning Herald, 6 November 1849, in Supreme Court Collection, Vol. 3, pp 33-35 [1]

PRESBYTERIAN MARRIAGES.

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THE JUDGMENT OF CHIEF JUSTICE FORBES IN THE QUEEN v. MALONEY.

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 Haly, 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 September, 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.

The 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 to 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 in this colony---and thirdly, because the local legislature has made other and different provisions for solemnising marriage with 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 solemnised 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 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 of 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 part of the law, and until the law is repealed or regulated, musty 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 second point---can the Marriage Act be applied in this colony?

The New South Wales Act, 9 Geo. IV. c, 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 Courts of New South Wales, so far as the same can be applied within the colony; and as often as any doubt mat 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 as 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 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 laid down by Sir William Blackstone and other elementary writers, and as it has been received and acted upon in the Courts of 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 will 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---whether its provisions are adapted to the status personarum actually existing in 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 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. Puffendorf B.6 C.1---nom cum sit hoc natura commune animantium ut habeant lubidinem procreandi prima societas inipso conjugio est, proxima in liberis---id autem est principium urbis et quasi seminarium reipublicae. Cic. De Off. L.1, 17. In a state of nature marriage may take place to all intents and purposes, wherever two persons 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 people, and to religion and mortality 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, 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 verbae 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. IV. 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 rites 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 indispensable 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 the 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 circumstances 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 a 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 Treasury---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 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 bishoprics 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 the 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---that, in fact, it cannot be enforced.

If the reasoning 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. II. 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 if 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 that 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. III 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 honoured 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 for 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 honour to report, that as the Marriage Act does not extend 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 indispensably 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 for 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. III., 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 in 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 ordinances 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 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 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 marriage 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 mollify the Marriage Act, by enabling the 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 rights 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 me 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 to prevent the mere fact of a Marriage being solemnised by a Presbyterian Minister, from making such marriages 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 Minister 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 Court, it was certainly competent to the 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 on this colony, but they have declared the manner of solemnizing marriages by other than ordinary 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 inquire 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 proved 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 a matter of history, that in the year 1829 there was no public Roman Catholic chapel duly consecrated as such in this colony.

Upon these several grounds I am of opinion that the prisoner Maloney has been legally convicted of bigamy.

Consistory Court (London), 1847

Source: Sydney Morning Herald, 6 November 1849, in Supreme Court Collection, Vol. 3, pp 35-36

CATTERALL v. CATTERALL.[2] 

This was a question as to the admissibility of a libel in a suit for nullity of marriage, promoted by Mr. Catterall against the lady claiming to be his wife.

The parties, not being members of the Church of England, resided in New South Wales, and were married, according to the form of the Presbyterian Church of Scotland, by Dr. Lang, a minister of that Church, settled in the colony. Some time subsequently to the marriage, an Act was passed by the colonial legislature, sitting at Sydney, regulating the marriages of Presbyterian and Roman Catholics, and requiring, in the case of a marriage performed by a Presbyterian minister, a declaration by the man or woman that they were members of one or other of the above religious persuasions, to be endorsed by the officiating minister. In the present case no such declaration was signed, and this was the main ground upon which the plaintiff claimed a sentence of nullity.

On his behalf it was also insisted, that if the marriage were not null, under the local Act referred to, it was void under the general law relating to marriage as performed by a Presbyterian minister, whose clerical character was lost immediately after his departure from Scotland.

The Queen's Advocate, in opposition to the admissibility of the libel, submitted that the local Act was not intended to be retrospective, and that by it the marriage was not made a nullity. As to the general law he was not prepared to discuss so important a question affecting the whole colonial empire of England, without further time and fuller investigation. Upon the general law the Court would not admit the libel without another argument.

Dr. Addams, for the party proceeding, contended that the marriage was null under the local Act; but if not that it was clearly null under the general marriage law. This marriage was not in accordance with that law nor with the lex loci, and therefore could not be supported. The libel at any rate ought to be admitted, that so grave a question might be fully entered into.

Dr. Lushington said, that if he thought the marriage a good marriage under the local Act, it would be necessary to consider the more important question which might arise upon the general law---a question more important than any that had ever occupied the attention of those Courts. Upon such a question he would not presume even to enter without the fullest argument at the bar; but he must take time to consider whether this marriage was not null under the local Act.

Dr. Lushington after which pronounced his sentence in this important case.

It was a suit instituted by Mr. Joseph Catterall against Georgiana Ann Sweetman, to obtain a decree of nullity of marriage, and the present question was as to the admissibility of the libel: It pleaded that the parties were married in New South Wales, on the 29th July, 1835, by Dr. Lang, an ordained Minister of the Church of Scotland; that neither of the parties was a member of, or in communion with, that Church; and that they did not sign a declaration to that effect, whereas by an Act passed in the colony in July, 1834, "to remove doubts as to the validity of certain marriages had and solemnized within the colony," it was enacted that

"all marriages between persons, both or one of such persons being members or a member of, or holding communion with, the Presbyterian Church of Scotland or the Roman Catholic Church respectively, and making a declaration to the effect hereinafter mentioned, which marriage shall be had and solemnized within the colony by an ordained minister of the Presbyterian Church of Scotland, or by a priest or minister of the Roman Catholic Church, duly empowered by his proper superior respectively, shall be and be adjudged, esteemed, and taken to be of the same force and effect as, and no other than, if such marriage were had and solemnized by clergymen of the Church of England, according to the rites and ceremonies of the Church of England; provided always, that no such marriage shall be had and solemnized until both or one of such persons, as the case may be, shall have signed a declaration in writing, in duplicate, stating that they or he or she, as the case may be, are or is members, or a member of, or hold communion with, the Presbyterian Church of Scotland or the Roman Catholic Church, respectively."

The libel alleged the marriage to be null and void for non-compliance with the requisites of this Local Act. The question mainly hinged upon the proviso of the Local Act. The words in the proviso were negative words, and prohibited such marriage without the prescribed requisites, and no doubt disobedience to this law was a punishable offence, but whether the marriage itself was void, or only deprived of the validity given by the Act, was a question of the greatest difficulty.

Prior to Lord Hardwicke's Marriage Act there was no statuteable nullity. The Act of Lord Hardwicke was passed for the very purpose of creating a nullity. From his examination of authorities he drew two conclusions: First, that there had been no decision that any words in a statute as to marriage, though prohibitory and negative, had been held to infer a nullity, unless that nullity was declared in the Act; secondly, that viewing the successive Marriage Acts it appeared that prohibitory words without a declaration of nullity were not considered by the legislature as creating a nullity. If this be correct, the Act of New South Wales must be construed as an Act in pari material.

There was another reason. The Colonial Act was framed from the 58th Geo. III., chap. 84, as to the Presbyterian Marriages in India, and if the present marriage was void it would be a precedent for avoiding similar marriages in India. It was clear that all the directions and prohibitions and nullities (if nullities) in the Act relating to India apply only to ordained ministers of the Church of Scotland, who were also chaplains; all other marriages by ordained ministers of that Church were out of the benefits and of the prohibitions. This would be a strange state of things.

And it was a question whether there was not a similar restriction in this very statute. What was the meaning of "duly empowered by his proper superior authority?" A marriage by an ordained minister of the Church of Scotland, not duly empowered, would be out of the provisions of the Act. One would, if irregular, be left to the common law; the other would be null and void. In fact, it would come to this---that a marriage wholly deficient in ceremonies would stand in a preferable position to a marriage where a part only of the prescribed ceremonial was omitted. In any case of doubt this Court ought not to pronounce a marriage null and void, and in this case he entertained the greatest doubt.

As the legislative nullity was the only ground upon which the libel stood, it must be rejected unless the party were desirous to amend by pleading that the marriage was null and void by the law antecedent to the statute.

Source: Sydney Morning Herald, 7 November 1849, in Supreme Court Collection, Vol. 3, pp 36-37

PRESBYTERIAN MARRIAGES.

To the Editors of the Sydney Morning Herald.

Gentlemen, --- As I understand a reply to my letter on this subject will appear in tomorrow's Herald resting chiefly on the case of the Queen v. Willis, I venture to trouble you with one word more.

The following is an abridgement of this celebrated case from Harrison's Digest :--

A, a member of the Established Church in Ireland, went, accompanied by B, a Presbyterian, to the house of C, are regularly place minister of the Presbyterians of the parish where C resided, and there entered into a present contract of marriage with the said B, the minister performing a religious ceremony between them according to the rights of the Presbyterian Church. A and B lived together for some time as man and wife. A afterwards, B being still alive, married another person in a parish church in England. Qv. --- Whether the first contract, thus entered into, was sufficiently a marriage to support an indictment against A for bigamy? The Queen v. Willis, 16 Cl. and Fin., 534; 8 Jur. 717.

Lord Brougham, Lord Denman, and Lord Campbell, were of opinion that it was; the Lord Chancellor, Lord Cottenham and Lord Abinger, and if we were of opinion that it was not. The Lords being thus divided, the rule " sempur presumitur pro negante " applied, and judgment was given for the defendant in error --- Harrison's Digest, 1844, p. 109.

Now I submit this case is no bearing on the validity of Presbyterian marriages in this colony; there being this essential difference between the case of Ireland and this colony, that here we have an Act of the local Legislature --- not conferring validity of marriages had previously celebrated, but declaring that the celebration has been valid --- that is to say, (taking it for granted that Chief Justice Forbes was wrong in his construction of the common law, and he is supported by higher authorities) the statute law of this colony has declared that for the purpose of the celebration of the marriage ceremony, a Presbyterian minister is a person in holy orders; and the fact that Catterall declined to amend by pleading the nullity of the marriage at common law, shows pretty clearly that the applicability to his case of the decision in the case of the Queen v. Willis was more than doubtful.

J.H.B.

Gentlemen, --- Observing a very sensible letter in your paper of to-day on marriages without a written declaration, that one of the parties is a Presbyterian, I would, to the reasoning containing in it and, that the clause in question is this, "That I am a member of, or hold communion with, the Presbyterian Church of Scotland." This is one of the most absurd, defective, and deceptive declarations ever made by legislative body. First, there is no Church in the world named the "Presbyterian Church of Scotland," and therefore the declaration is false in every instance. There is, indeed, the Established Church of Scotland, the Free Church, the Covenanting Church, and others, all in Scotland; but there is no Church designated the "Presbyterian Church of Scotland." The above Churches hold the standards of Presbyterian worship, but the clergyman who, without any other meaning attached to the words, by courtesy, which the Act does not appear to contemplate, should signed, or cause to be signed, such a declaration, by parties of all these communion so, who may most justly require his aid in such matters, would be guilty of deception; and they who compel him to do so, would compel him to do is scandalous, deceitful, and disgraceful action.

Again, the terms "member of, or holding communion with," may imply, either that the "or" is copulative, or that it is destructive. If it means that the membership and communion are identical, it vouches for a positive falsehood in ninety cases out of every hundred, even in regard to good and respected men and women, who, in every relation as a minister, trust to him the meaning of the word communion as used by Scots men having a very different meaning from that term is used in England, and in the Act. The clause, therefore, is a nullity; professing and adherence to a Church which has no existence, not even by a legal fiction; and that which had existence, it neither tells us whether the membership and communion are the same; or whether they are distinct, or which is the object of the clause.

The Church of Scotland, since the Union, carries with it, into all British Colonies, but coordinate rights and privileges with the Church of England, and the liberties of its members are not to be capriciously taken away by bungling piece of legislation, which can apply to no thing and to no man. The history of the clause is another affair, and may be explained by and bye.

At the same time it comes within my own knowledge, that the spirit of the clause is for the sake of peace preserved by a Presbyterian ministers, and that no minister would from principle marry two Roman Catholics, or two Episcoplians, except in very rare cases. Presbyterian ministers are quite content to exercise their spiritual duties among those of the people, for whom they can vouch, from Scotland, England, Ireland, America, India, South Africa, the Pacific Islands, and Australia, without encouraging falsehood and forgery, by professing to be members of a Church which has no existence except in an Act of Council, and that Carries absurdity on its face, and tyranny in its right hand.

I am, yours,

J.M.

-----

Gentlemen, --- Your correspondent J.H.B. has, in his letter on the above subject, assumed (1st) that the decision in Catterall v. Catterall settles the point as to the validity of marriages in this colony by Presbyterian ministers, where the declaration required in such cases by the Colonial Act, 5th Wm. IV No. 2 (section 2), is not taken; and (2ndly) that the dictum of Sir Francis Forbes in The King v. Maloney (decided on the 11th April, 1836), that "by the tour of England with the consent of two persons able to contract expressed in the words of present mutual acceptance, technically known by the name of Sponsalia per verba de praesenti, without the intervention of a priest, constituted an actual and valid marriage," is the correct exposition of the lore of England on the subject of marriage, and that such "therefore, except so far as modified by subsequent colonial legislation, is the state of the war in this country."

Both these positions, I apprehend, are quite erroneous, and as what I cannot but consider the perversity of Dr. Lang and Dr. McGarvie has, according to your correspondent, raised a question in which "the legitimacy of thousands of families in this territory" is involved. I conceive it is of great importance that the matter should be poured in its true light, in order that a legislative enactment may be obtained, which shall satisfactorily settle the point.

The case of Catterall v. Catterall only decides that the non-compliance with the forms prescribed by the colonial Presbyterian Marriage Act does not render the marriage ( if otherwise valid ) void. The question whether such a marriage was or was not good at common law, was in no way decided; that question Dr. Lushington said expressly he would give the parties leave to raise if they thought proper "a question" which the learned Judge remarked was "more important than any which had ever occupied the attention of those Courts." And that "upon such a question he would not presume even to enter without the fullest argument at the bar." So far then from the question which is involved in the pending case of The Queen V. Roberts having been decided by " Catterell v. Catterall," the point was not even entered upon.

It has however been decided (since the case of Catterell v. Catterall ) by the House of Lords ( Regina v. Millis, 23rd February, and 29th March, 1844 - 7 Jurist, 911, 983 --- and 8 Jurist, 717) that in a case where "A and B entered into a present contract of marriage per verba de praesenti in Ireland in the House and in the presence of a placed and regular minister of the congregation of the Protestant Dissenters call Presbyterians. A was a member of the Established Church of England and Ireland, by he was not a Roman Catholic, but either a member of the Established Church or a Protestant Dissenter. A religious ceremony of marriage was performed on the occasion by the said minister between the parties according to the usual form of the Presbyterian Church in Ireland. A and B, after the said contract and ceremony, cohabited and lived together for two years as man and wife. A afterwards, and while B was living, married C in England. That A was not indictable for bigamy."

The point had been so decided by the Court of Queen's Bench in Ireland, and the only law lords present when the question was decided in the House of Lords being equally divided, the decision appealed from was affirmed. Although the law lords were thus divided, the opinion of all the Judges of England (except Lord Denman) was that the marriage by the Presbyterian Minister in Ireland was void, on the ground that by the law of England no marriage can be valid, unless celebrated by a clergyman having episcopal orders. This case was afterwards acted upon by the Court of Exchequer ( Cathewood v. Caslon, 8 Jurist, 1076.) There can, therefore, be no question but that the dictum of Sir Francis Forbes, is clearly not the law of England.

The only question remaining is whether the Common Law of England (as declared in the above cases) is the Common Law of this colony. I conceive that it clearly is by virtue of the express words of the New South Wales Act, (9th Geo. IV, cap. 83, sec. 24) and as the above case of Regina v. Millis, was as to a marriage in Ireland, to which the Common Law of England was originally applied by a statutary [sic] enactment (Poyning's Laws) in the same way as it applied here by the New South Wales Act. I apprehend that all marriages which are not made valid by virtue of some statute or Act of Council, and which are not celebrated by a clergyman in episcopal orders, are absolutely void.

Yours, &c.,

LEX.

Source: Sydney Morning Herald, 8 November 1849, in Supreme Court Collection, Vol. 3, p. 37

PRESBYTERIAN MARRIAGES.

To the Editors of the Sydney Morning Herald.

Gentlemen, --- J.H.B., finding that the case of Regina v. Millis decides, that by the common law of England or marriage not celebrated by a clergyman holding episcopal orders is void, and that consequently Sir Francis Forbes' dictum (however supported by supposed authority) is erroneous; and that the case of Catterall v. Catterall does not touch the point in dispute, as to the validity, the common law, of marriages entered into under circumstances similar to those existing in the pending case of the Queen v. Roberts, falls back upon the first clause of the Colonial Act, 5 William IV, No. 2, which he says amounts to a Legislative declaration that all marriages solemnized by ministers of the Church of Scotland, or by priests of the Roman Catholic Church, are valid in law.

In the first place it will be seen that that enactment is confined by express words to marriages solemnized before the passing thereof, and the circumstance that the succeeding section makes provision for the future marriages of Presbyterians and Roman Catholics, and expressly confines that provision to members of the Church of Scotland and Church of Rome respectively, who shall make the prescribed declaration, renders it perfectly clear that the intention of the Legislature in passing the first clause, was only to remedy the evil which would have existed if the previously celebrated marriages should be held void, and this could only be done by enacting and declaring that such marriages should be, and be adjudged to be, valid. If the first clause has the effect for which J.H.B. contends, of what use can clause 2 be? If clause 1 proves (as J.H.B. contends) that all such marriages, (whetehr had before or after the passing of the Act) are proprio vigore valid, why should the legislature enact that all marriages entered into after the passing of the Act between the designated class of persons, who shall make a declaration to the effect therein mentioned, should be valid?

In the construction of statutes, known rule is better known or more reasonable in itself then the position that the legislature never adopts unnecessary provisions, nor even uses unnecessary words, and that in construing an Act every word and it must, if possible, be made to speak. Now, the construction contended for by J.H.B. directly militates against this rule; the contrary construction is perfectly consonant to it.

The question then remains, "What makes such a marriage is that under consideration lawful?" Certainly not the common law of England --- that declares it to be void. Then does the act above-mentioned (the provisions of which it appears to have been systematically and purposely violated) make such a marriage valid? I conceive that the above reasons it clearly does not.

Another decisive argument against the conclusion drawn by J.H.B. from the Colonial Act is this, that although a legislature like ours (having only a delegated and limited power, may make laws (not being repugnant to the law of England), it cannot authoritatively declare what is law, that can only be done by what is termed the omnipotence of Parliament. To put the matter and a strong point of view, could the Legislature of New South Wales effectually declare that ante-nuptial children tial in this colony be deemed and adjudged to have been, and to be legitimate and inheritable (as they are by the law of Scotland).

The Imperial Parliament may have power to do this, that no person would contend that there legislature could. Then, if this be so, a fortiori it could not by a declaration provide that the entering into marriage contracts and going through certain ceremonies which the law of England declares not to amount to a marriage at all, should have the effect of putting the persons so entering into such contracts and their issue in the position, which by the lore of England only results from a legal marriage.

The question still remains unanswered --- "What makes these disputed marriages legal?"

Yours, &c.,

LEX.

Sydney, November 7.

Source: Sydney Morning Herald, 12 November 1849, in Supreme Court Collection, Vol. 3, p. 41

PRESBYTERIAN MARRIAGES.

To the Editors of the Sydney Morning Herald.

GENTLEMEN,---Whatever respect I have for your correspondent "Lex," as a shrewd practical lawyer, I am sorry to day that I cannot consider him a fair controversialist. In your Wednesday's issue, his first letter appeared, containing an anachronism as to the dates of several decisions referred to, the correction of which was of material consequence to the argument. In the same paper appeared my second letter, in which the sequence of cases was correctly stated, and considering the error of my opponent accidental, I felt satisfied that if he should think it necessary to reply, he would condescend to correct it. Not having had the courage or the honesty to do so, I trust you will allow me to supply the omission.

Your correspondent says, that since the decision in Catterall v. Catterall, which did not determine the validity of the marriage at Common Law, that question has been decided in the case of the Queen v. Millis, while the fact is, that the judgment of the Lords in the Queen v. Millis on Appeal, was pronounced in February and March, 1844. And the judgment of Dr. Lushington, in Catterell v. Catterall, in the Consistory Court, was delivered on the 8th July, 1845. The doubt expressed by the last-mentioned learned Judge, being not as to the validity of the marriage, but as to the applicability of the Common Law to that question.

The following extract from his judgment, as reported in the Jurist, vol. 9, p. 954, will show that this is the correct statement of the case:---

If all this (the ground taken by Catterall's counsel) be well founded, a marriage by an ordained minister of the Church of Scotland in New South Wales, not duly empowered, would be out of the provisions of this Act, and would be left to the common law, whilst a similar irregular marriage by one duly empowered, would, according to the construction contended for by the party proceeding, be null and void. In fact, it comes to this, that a marriage entirely deficient in ceremonials would stand in a better position than a marriage in which part only of the prescribed forms had not been complied with.

It is indeed inconceivable that if a case as recent as the Queen v. Millis had been applicable to Catterall v. Catterall, the obvious course of pleading the nullity of the marriage, under the common law, should not have been adopted.

The only other point on which I think it necessary to notice the communication of "Lex" in yesterday's paper, is as to the extraordinary limitation he has dogmatically imposed on the legislative powers of our local Legislature, viz., "that though a legislature like ours having only a delegated authority, may make laws, it cannot authoritatively declare what is law." If this is intended at all as an answer to my argument, he must mean his readers to infer further, that the local Legislature cannot declare negatively that certain of the laws of England (both as regards common and statute law) are not the law of this colony.

On this point it is only necessary to refer to the Act of Parliament 9 Geo. IV., ch. 83. The 24th section of which enacts---

That as often as any doubt shall arise as to the application of any such laws or statutes in the said colonies respectively, it shall be lawful for the Governors of the said colonies respectively, by and with the advice of the Legislative Council of the said colonies respectively, by ordinances to be by them for that purpose made, to declare whether such laws or statutes shall be deemed to extend to such colonies, and to be in force within the same.

Your correspondent "Lex" persist in substituting "Episcopal Orders" for Holy Orders," as if these were synonymous terms, but I defy him to produce any authority for such substitution. If persons in Holy Orders are persons ordained in conformity with a certain statute known as The Book of Common Prayer, Roman Catholic priests, whose orders are recognised by the common law, would be excluded from such a definition. It is quite clear that Apostolical succession forms no element in the legal definition of Holy Orders, for by the 31 st Henry VIII. the power of ordination is vested "in such person or persons as his Majesty should think meet." And in consequence of this statute that power with all other powers formerly exercised by Roman Catholic Bishops was vested in many places in England in mere laymen. The power of conferring orders was during a considerable period exercised solely by Lord Cromwell, the Kings Viceregent for ecclesiastical affairs; and afterwards the Bishops exercised this function by commission from the King, as is evident from the Commissions themselves, some of which are still extant. That to Bonner recites Cromwell's commission for the viceregency. " But because the viceregent could not personally attend his charge in all parts of the kingdom, the King authorises the Bishop in his stead to ordain within the diocese of London such as he should judge worthy of holy orders." Indeed, Sir Michael Foster, one of the greatest constitutional lawyers of his age, in his examination of Dr. Gibson's "Codex," lays it down as the recognised principle of the law of England, that ordination is derived from the civil authority, and no other.

Whatever ecclesiastical ordinations, therefore, the civil authority has recognised, come equally within the legal definition of "holy orders" with the ordinations of the Church of England. And it is only necessary to add, that the Church of England and the Church of Scotland are established by the same authority,[.??] their present constitution in the United Kingdom of Great Britain rests on the same law, and the colonies of the empire are, ecclesiastically considered, neutral ground, in which neither the one nor the other can be established.

Descend we now to the canon law. There also we find an express recognition of the Church of Scotland, and consequently of its ordinations, for, by the 55th canon, the clergy are commanded to pray for the Churches of England, Scotland, and Ireland, as parts of Christ's Holy Catholic Church. Of course if we resort to foreign canon law as the Anglo-Catholics do, it might be otherwise, but the Act of Submission clearly established that such canons are of no force within the realms of England.

I trust, therefore, I have satisfied your correspondent "Lex" of the three following things, viz:---

1st. That the case of Catterall v. Catterall was a subsequent case to the Queen v. Millis.

2nd. That the legislature of the colony has the power to declare what laws and statutes in force in England extend, or have extended, to this colony; and

3rd. That in a legal sense the term Episcopal Orders is not synonymous with Holy Orders.

And, having done so, the question still remains unanswered, what can render a marriage by an ordained minister of the Church of Scotland in the colony of New South Wales invalid in the face of a legislative declaration to the contrary.

J.H.B.

P.S.---The case suggested by "Lex" as putting the question in a strong light, namely, the legitimation of antenuptial children has really no bearing on the point. The legislature in this case would be making a law repugnant to the law of England, but not declaring that any particular law in force in England has not extended to this colony.

Source: Sydney Morning Herald, 15 November 1849, in Supreme Court Collection, Vol. 3, pp 43-44

PRESBYTERIAN MARRIAGES.

To the Editors of the Sydney Morning Herald.

GENTLEMEN,--- J.H.B. states that he is sorry he cannot consider me a fair controversialist, and, in order I presume to give a specimen of what he conceives the correct style of argumentation, forthwith imputes to me a want of courage or of honesty!

The error as to the respective dates of the cases of the Queen v. Millis, and Catterall v. Catterall, is perfectly immaterial to the question under discussion, and I was in fact not aware, until the appearance of J.H.B.'s last letter, that Catterall's case was decided since that of the Queen v. Millis.

The extract from Dr. Lushington's judgment, contained in J.H.B.'s last letter, merely shows, that if Catterall's marriage was good at common law, without any ceremony at all, it ought not to be held void merely because the directions of the Act of Council in question had only been partially complied with, (and even this position was only arrived at with much doubt,) but still leaving the question, whether at common law it was good or not, wholly untouched.

The argument that Catterall's advisers did not raise the question, as to the invalidity of the marriage at common law, is of no weight; because, it cannot be pretended, that the position laid down as law in Regina v. Millis, is in any way touched by Dr. Lushington's decision. As I have shown before, he expressly disclaims entering upon the question of the validity of the marriage at common law; he did, however, directly decide, that the omission to comply with the prescribed forms, deprived the parties of the benefit of the enactment, as the following quotations fully show---

"I think it is clear, that parties marrying without making the declaration, or by a minister or priest not duly empowered, would not be entitled to the benefit of this enactment. And, if the Act had ended here, that would have been the whole effect of it, and the marriage would have been left just as it stood before the passing of this Act."

--- "Upon this," (the proviso) "the whole question turns, for the object of a proviso is to qualify something gone before; and the question here is, whether this proviso, if the directions of the Act be not followed, merely takes away the benefit conferred, or renders the whole act done, that is, the marriage, null and void.

The words in this proviso are negative words, and are clearly prohibitory of the marriage being had without the prescribed requisites; but whether the marriage itself is void, or only deprived of the validity given by the Act, is a question of great difficulty." ---" I am confirmed in this opinion, because the primary object of this New South Wales Act is remedial, to render valid past marriages ; and the second object is regulation, to determine that future marriages shall be entitled to the benefit given by the Act. I consider, the regulation as restrictive of the benefit, and that all other marriages are left as the stood before under the common law."

Now, one of the effects expressly assigned by Lord Brougham to the decision in Regina v. Millis is, that it pronounces all marriages in the British Colonies, not celebrated by a clergyman in episcopal orders (and which are not protected by some legislative provision) to be void, and bastardizes the issue of all such unions.

I therefore repeat, what makes these disputed marriages valid. Catterall v. Catterall decides that they are not made valid by the Act of Council, and Regina v. Millis that they are void at common law.

J.H.B. does not appear to apprehend my position, that a legislature, like ours, cannot declare what the law is. The power given to declare whether any particular law of England extends to the colony, is quite a distinct matter from declaring what that law is. I did not state, and do not content, that the old Council had not power to declare, (in cases where doubts arise as to the application of any such law), whether it should be deemed to extend here or not, and if the old Council had passed an act, reciting that doubts had arisen whether that particular law if England which requires the celebration of a marriage, to be by a clergyman in episcopal orders was applicable, or could be applied in the colony, and thereupon declared that particular law not to extend to or be in force here, the difficulty which now exists might probably have been avoided; but it is manifest that the Act relied on by J.H.B. does nothing of the kind; indeed he has not attempted any answer to my arguments as to the construction of this Act. It therefore follows that the common law of England upon the subject of marriage is in force in this country.

J.H.B. complains of my persisting in "substituting episcopal orders for holy orders" now if J.H.B. will read the decisions I at first referred to (Regina v. Millis and Cathewood v. Carlon) he will find those cases both expressly decided that the term "holy orders," means, in contemplation of law, "a person who has received EPISCOPAL ordination." The marriage which in Regina v. Millis was held void, was performed by a Presbyterian clergyman, and the ;point was expressly raised, as to his being a minister sufficiently authorized to celebrate a marriage at common law, and it was decided in the negative. Indeed, that case is wholly based upon the position that no persons except those who have had Episcopal ordination can by the common laws of England celebrate a marriage.

Yours, &c.,

LEX.

November 13.

Source: Sydney Morning Herald, 15 November 1849, in Supreme Court Collection, Vol. 3, p. 45

PRESBYTERIAN MARRIAGES.

To the Editors of the Sydney Morning Herald.

GENTLEMEN,---Your correspondent LEX is at length constrained to admit that the

Old Council had power to declare in cases where doubts should arise as to the application of any particular law in force in England whether such law should be deemed to extend here or not; and that if the old Council had passed an Act reciting that doubts had arisen whether that particular law of England which requires the celebration of a marriage to be by a clergyman in episcopal orders, was applicable or could be applied in the colony, and thereupon declare that particular law not to extend or be in force here, the difficulty which now exists might probably have been avoided.

Now, I assert that the local Legislature has made this declaration by the first clause of the 5th Geo. IV., No. 2, and this construction of the Act is supported by the high authority of Chief Justice Forbes. In the judgment of the King v. Maloney, to which I must again refer on this point, the learned Judge observes---

"That in the exercise of this declaratory power the Governor and Council passed an ordinance (5 George 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 "have been valid."

And it could only so declare the law by declaring as a necessary inference that the Marriage Act, and by a parity of reasoning the law requiring the presence of a person in Episcopal orders) had never extended to the colony.

And again,

"It was certainly competent to the 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 ordinary members 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; and equally irreconcilable, I submit, with holding the law to be in force which requires the presence of a minister of the Church of England to the celebration of a marriage."

Your correspondent Lex proceeds on the false assumption that the common law of England in its entirety follows the subject. This is clearly not the case from the words of the statute 8 Geo. IV., c.83, which places the laws and the statutes in force in England alike under the declaratory power of the local legislature. The same principle is still more clearly asserted in the Act of Parliament, 57 Geo. III., c. 51, which 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, &c. The doubt referred to having therefore clearly a reference to the Common, and not to the Statute Law.

Your correspondent Lex refers to the cases of the Queen v. Millis, and Catherwood v. Caslon, as authorities to prove that the legal signification of Holy orders is Episcopal orders. Let us therefore refer to the last of these cases: First, this was an action of crim. con. The plaintiff, an Englishman, having his domicile in England, but ravelling abroad, was married at Beyrout, to Miss Gertrude Abbott, daughter of the English Consul here. The marriage was performed at the Consulate House, by Mr. Bird, an American Missionary, according to the rites of the Church of England. The parties lived together as man and wide, and had issue. After their return to England, however, the supposed wife left the plaintiff, and cohabited with the defendant. The defendant pleaded that there was no marriage, and on a special verdict having been taken, Baron Alderson pronounced judgment of the Court. The following extract will show the point on which this case was decided.

Upon the facts, as stated, we do not know what was the marriage law in Syria when this marriage took place, as to the marriage of British subjects there residing, and we therefore are left in complete uncertainty whether the marriage be unlawful, if it be necessary for the defendant to prove that to be the case. The question, therefore, is, whether the plaintiff must in the first instance show the marriage to be clearly lawful, or whether he has done sufficient to cast the burden of showing the contrary on the defendant, and we think that this burden is on the plaintiff, and that he has not done sufficient to establish a prima facie case against the defendant.

We come now to the Queen v. Millis. I quote from the judgment of Chief Justice Tindale, as reported in the 7 Jurist, p. 912.

It will appear, no doubt, upon referring to the different authorities, that at various periods of our history there have been decisions as to the nature and descriptions of the religious solemnities necessary for the completion of a perfect marriage; but there will be found no authority to contravene the general position, that at all times, by the common law of England, it was essential to the constitution of a full and complete marriage, that there must be some religious solemnity; that both modes of obligation should exist together, the civil and the religious; that besides the civil contract---that is the contract per verba de praesenti, which has always remained the same---there has at all times been, also, a religious ceremony, which has not always remained the same, but has varied according to the variation of the laws of the Church.

To the same effect are the remarks of Lord Cottenham:---

If I am right that by the laws of England the intervention of a person in holy orders was necessary to constitute a binding marriage, there is not, I think, any difficulty in coming to the conclusion that such person must be in orders recognised by the Church of England.

This is quite in accordance with the view of the case given in my former letter; and your correspondent, Lex, has not yet proved that the ordinations of the Church of Scotland are not recognized by the Church of England. In addition to the authorities I formerly cited on this subject I may add the 23rd Article of the Church of England, which gives the following definition of holy orders:---"And these we ought to judge lawfully called and sent, which be chosen and called to this work by men who have public authority given unto them in the congregation, to call and send ministers into the Lord's vineyard."

In perfect consistency with this definition, the Parliament, in the time of the Commonwealth (November 8, 1645), passed an Act to provide for the Ordination of Ministers of the Church of England, without the presence of a Diocesan Bishop, whereby it is enacted---

That all persons ordained according to this directory shall be for ever reputed and taken, to all intents and purposes, for lawfully and sufficiently authorised Ministers of the Church of England, and as capable of any ministerial act as any other Presbyter already ordained or hereafter to be ordained.

Will your correspondent Lex venture to question the validity of marriages celebrated by ministers ordained in pursuance of this statute? The Legislature after the Restoration entertained no such doubt. The statute 12 Car. II., c. 33, intituled, "An Act for Confirmation of Marriages," enacts that all marriages had and solemnized after a certain day before any Justice of the Peace shall be adjudged and taken to be of the same and of no other force and effect as if such marriage had been had and solemnized according to the rites and ceremonies established or used in the Church or Kingdom of England;" but no confirmation was ever thought necessary for the marriages celebrated by Presbyterian and Independent ministers during the period that Episcopacy was abrogated in England.

The Lord Chancellor, in the case of the Queen v. Millis, rests the definition of "Holy orders," for that particular case, on the Act of Uniformity. But will your correspondent assert in the face of the General Church Act of this colony, by virtue of which there are now four Established Churches here---that the Act of Uniformity extends to New South Wales? The Lord Chancellor further observes---

It is said that we admit the validity of the ordination of the Ministers of the Church of Scotland, and that by the Act of Union their title as legally ordained Ministers is valid in every part of the Empire, as respects their reverend character; that certainly is so, but this conveys no authority out of Scotland.---The claims made by the Presbyterians in Ireland, cannot be supported upon any principle that would not equally apply to every denomination of Dissenters.

The Lord Chancellor does not inform us whether the local existence of the Church of England, and the authority of her ordinations, is not equally limited to England and Ireland, nor whether the appellation of Dissenters can be applied to any religious body In New South Wales, where there is no Church establishment properly so called.

But to come still closer to the point, the statement made by your correspondent that the decision on the Queen v. Millis renders marriages void by the Common Law of England without the presence of a person in holy orders, can only be characterised as a gratuitous assertion altogether unsupported by the case. The learned Chief Justice Tindale, at the bar of the House of Lords, in stating the judgment of the Court below says:---

I am now authorised to offer to your Lordships as our unanimous opinion, that by the law of England, as it existed at the time of the passing of the Marriage Act, a contract of marriage per verba de praesenti was a contract indissoluble between the parties themselves, affording to either of the contracting parties by application to the Spiritual Court, the power of compelling the solemnization of an actual marriage.

The Lord Chancellor held the same view of the matter, although he was of opinion that the second marriage did not render the party indictable for bigamy. All the authorities cited concur in the same opinion. The doctrine of the common law, as laid down by Swinburne, a Judge of the Prerogative Court at York, in the reign of Queen Elizabeth, remains unimpeached. The doctrine is thus propounded:---

That man and that woman which have contracted spousals de praesenti cannot by any agreement dissolve those spousals, but are reputed for very husband and wife in respect of the substance and indissoluble knot of matrimony; and, therefore, if either of them should in fact proceed to solemnize matrimony with any other person, consummating the same by carnal copulation and the procreation of children, this matrimony is to be dissolved as unlawful, the parties married to be punished as adulterers, and their issue in danger of bastardy.

The two following cases are admirable applications of this doctrine. The first in the 14th century, and the second in the reign of Queen Elizabeth:---

Cecilia de Porlynton versus John de Slembergh and Alicia Christyndome ---Quam idem Johannes de facto duxit in uxorem.---The libel charged that the said John and Alicia contracted a marriage de facto, and solemnised the same in facie ecclesiae. Then follows this allegation "that the said marriage does not and cannot subsist de jure by reason of a per-contract cum copula between the said John and Cecilia. It therefore prays that the marriage de facto between John and Alicia may be pronounced to have been and to be null and void, and that the said John may be adjudged the lawful husband of the said Cecilia, and be compelled to solemnise matrimony with her in facie ecclesiae. The sentence of the Court declares the second marriage to have been and to be void, and adjudges the said John "in virum legitimum Ceciliae," and decrees that he should be compelled to solemnize matrimony with her in the face of the Church in true canonical fashion.

Bunting v. Lepingwell. ---This was an action of trespass, and upon a special verdict it was found that Mr. Bunting had contracted marriage per verba de praesenti with Agnes Androgsel, and that afterwards Agnes was married to one Twede, and cohabited with him. Bunting sued Agnes in the Court of Audience and proved the contract, and the sentence was pronounced that she should marry Bunting, which she did. They had issue---Charles Bunting, and afterwards the father, died. The Court of Common Law held the issue to be legitimate.

Now will it be believed by the readers of your correspondent's last letter that the decision in the Queen v. Millis actually confirms this as an unquestioned exposition of the common law of England antecedent to the Marriage Act, 26 George, II. C. 33? That Act abolished all suits to enforce contracts of marriage de praesenti. Query. That Act being avowedly not in force in New South Wales, whether such contracts could not still be enforced here? Having, however, encroached too much on your valuable space, I must leave the solution of this knotty point to your correspondent Lex.

J. H. B.

Source: Sydney Morning Herald, 21 November 1849, in Supreme Court Collection, Vol. 3, p. 46

To the Editors of the Sydney Morning Herald.

GENTLEMEN,---With regard to the legal validity of Presbyterian marriages, the great question is,---were clergymen of the Church of Scotland legally entitled to solemnise marriages before the passing of the Colonial Marriage Act, 5 Geo. IV., No. 2; or, in other words, were their marriages valid at common law?

If the law of England be as Chief Justice Forbes represented it in the King v. Maloney, namely, that the consent of two persons expressed in the words of present mutual acceptance, without the intervention of a priest, constituted a valid marriage, there can be no doubt as to the legal validity of the marriages in question. It is said, however, that the law of England, as expounded by the Judges in the case of Regina v. Millis, requires that a marriage, in order to its validity, be solemnized by a person in holy orders, and that, in the eye of the law, none are in holy orders but the clergy of the Church of England.

Now, granting that this is the correct exposition of the law of England, and not that given by Chief Justice Forbes, we affirm that its provisions hold good within what may be called the ecclesiastical realm of England only---namely, England and Ireland. The law cannot possibly extend to the British colonies, inasmuch as this would be contrary to the terms and conditions of the Union between England and Scotland. On the ground of the terms and conditions of the Treaty of Union which are guaranteed by the Acts of Parliament, and are therefore English law, and which provide that the Church if Scotland shall enjoy equal rights and privileges with the Church of England in all the British colonies, we hold that all marriages solemnized by ordained ministers of the former Church in the colonies are valid in law. The decision in the case of Regina v. Millis, however sound as applicable to Ireland, can settle nothing as regards marriages in the colonies. Presbyterians of the Established Church of Scotland are Protestant dissenters in Ireland, just as Episcopalians of the Church of England are Protestant dissenters in Scotland; but neither are so, more than the other, in the colonies.

That the view we now propound is a sound one, is fully borne out by the decision of the Judges of England, given in the matter of the clergy reserves in Canada. According to that decision, ministers of the Established Church of Scotland, exercising their functions in the colonies of the empire, are in the eyes of the law Protestant clergymen, equally with those of the Church of England; and now, in the clergy reserves of that colony, the Church of Scotland has an equal interest with that of England. Hence it follows that previous to the enactment of the above-mentioned colonial marriage law, Church of Scotland solemnized marriages in this colony were as valid as they are in Scotland, or as the law could make them; and, if so, it was not competent for the colonial legislature either to enact otherwise, or to place any restriction or limitation on the right of the ministers of that Church to solemnize marriages, such as was absurdly and futilely attempted to be done by the clause requiring the declaration n so often referred to, to be made.

We should like much, by the way, to know the history of this clause. What was the intention of those who got it inserted in the Act? What public benefit was it designed to confer? What public evil would it avert? Surely in a country in which it is so desirable that every facility be offered to parties to contract legal marriage, and where, from the dispersion of the population, if not from the paucity on ministers of religion, many districts are not visited by clergymen, but at very long intervals, sometimes extending to years, it is highly proper, and evidently for the public benefit, that the ministers of all the regularly ordained denominations should be legally empowered to marry all who are able to contract marriage, without any restriction, when requested to do so.

In the general run of instances, persons wishing to enter into the bonds of matrimony, will of their own accord choose to have the ceremony performed by their own clergymen, where this is practicable; and why may not the matter be left to the choice of the parties themselves. The Church of England ministers have surely sufficient influence over their own people to secure their being chosen to tie the knot among them, when it is required to be done.

Many evils may be conceived to arise from the difficulty of obtaining the services of a clergyman to enable parties to get legally married. We will mention a case which came under our own notice. Some years ago, a party having had to travel a distance of 130 miles to the residence of the nearest clergyman, for the purpose of getting married, found, when all was over, that the expenses thereby incurred amounted to upwards of £70, and to be able to pay this sum he was compelled to sell the only flock of sheep he had, and which had been purchased by the savings of many years' industry and economy.

On the subject of the validity of the Presbyterian Marriage, we have just further to say, that the decision in Catterall v. Catterall settles this much at least, that these marriages are not invalidated by the absence of the so often mentioned declaration, that whatever may be said as to the blame worthiness of the clergyman who celebrates marriages without taking the declaration, the marriages themselves are still not on this account null and void. Besides, as has already been well observed by J. H. B., in one of his letters which have appeared in your paper, while the Colonial Act enacts that marriages solemnized by Presbyterian or Roman Catholic ministers, between parties making the declaration of Church-membership, shall be adjudged to be valid, there is nothing in the Act expressly setting forth that marriages without the said declaration shall be held to be legally invalid. If they are invalidated, it can only be by inference; and this we humbly conceive is not to be admitted. In conclusion, we venture to predict that no such proviso as a declaration of the kind in question will find a place in any future colonial Marriage Act. Interested and absurd legislation is speedily seen to work its own cure.

SCOTUS.

November 17.

P.S.---On two separate and distinct grounds, marriage solemnized by ministers of the Established Church of Scotland, in this colony, are valid in law; the one is, the terms of the Union; and the other is, that ministers of that Church are Protestant clergyman, or persons in holy orders in the colonies of the Empire, according to the decision in the matter of the Clergy Reserves in Canada. Had the case of Regina v. Millis been that of a marriage solemnized in one of the colonies instead of Ireland, which is within the Ecclesiastical realm of England, the decision would have been the other way.

Notes

[1] This begins with a repeat of R. v. Maloney, 1836, which is already online.

[2] See Catterall v. Catterall (1847) 1 Robertson Ecclesiastical 580, 163 ER 1142, discussed here.

Published by the Division of Law, Macquarie University