Report of Two Cases Upon the Marriage Law of Ireland

Dig. 69 n.; Pallavicini. lib. 23, c. 8; Father Paul's history of the Council of Trent, lib. 8. The latter writer, himself a churchman, animadverts upon the additional power thus given to the clergy by this decree. But even the council of Trent only allowed marriages not solemnized according to the directions of its decree to be avoided within a certain time. In which respect it resembles the Irish

Innocentio III. celebrati vestigiis inhærendo præcipit, ut in posterum, antequàm matrimonium contrahatur, ter à proprio contrahentium Parocho tribus continuis diebus festivis in Ecclesia inter Missarum solemnia publicè denuncietur, inter quos matrimonium sit contrahendum; quibus denuntiationibus factis, si nullum legitimum opponatur impedimentum, ad celebrationem matrimonii in facie Ecclesiæ procedatur, ubi Parochus, viro et muliere interrogatis, et eorum mutuo consensu intellecto, vel dicat: Ego vos in matrimonium conjungo, in nomine Patris et Filii et Spiritûs Sancti; vel aliis utatur verbis, juxta receptum uniuscujusque provinciæ ritum. Quòd si aliquando probabilis fuerit suspicio, matrimonium malitiose impediri posse, si tot præcesserint denuntiationes, tunc vel una tantùm denuntiatio fiat, vel saltem Parocho, et duobus vel tribus testibus præsentibus matrimonium celebretur. Deinde ante illius consummationem denuntiationes in Ecclesia fiant, ut si aliqua subsunt impedimenta, faciliús detegantur; nisi Ordinarius ipse expedire judicaverit, ut prædictæ denuntiationes remittantur: quod illius prudentiæ et judicio sancta Synodus relinquit. Qui aliter quàm præsente Parocho vel alio Sacerdote, de ipsius Parochi seu Ordinarii licentia et duobus vel tribus testibus matrimonium contrahere attentabunt; eos sancta Synodus ad sic contrahendum omninò inhabiles reddit; et hujusmodi contractus irritos et nullos esse decernit, prout eos præsenti decreto irritos facit et annullat. Insuper Parochum vel alium Sacerdotem, qui cum minore testium numero, et testes qui sine Parocho, vel Sacerdote hujusmodi contractui interfuerint, nec non ipsos contrahentes graviter arbitrio Ordinarii puniri præcipit. Prætereà eadem sancta Synodus hortatur ut conjuges ante benedictionem sacerdotalem, in templo suscipiendam, in eadem domo non cohabitent: Statuitque benedictionem à proprio Parocho fieri; neque à quoquam, nisi ab ipso Parocho, vel ab Ordinario, licentiam ad prædictam benedictionem faciendam alio Sacerdoti concedi posse, quacumque consuetudine, etiam immemorabili quæ potiùs corruptela dicenda est, vel privilegio non obstante. Quòd si quis Parochus, vel alius Sacerdos, sive regularis sive sæcularis sit, etiamsi id sibi ex privilegio vel immemorabili consuetudine licere contendat, alterius Parochiæ sponsos sine illorum Parochi licentia matrimonio conjungere aut benedicere ausus fuerit, ipso jure tamdiu suspensus maneat, quamdiu ab Ordinario ejus

statute, (a) which enacts, that marriages of infants, possessed of a certain amount of property, without the consent of their parents, shall be void, but likewise provides, in a further clause, that, if no suit be commenced within a year to avoid the marriage, it shall be good.

It is very clear that before the council of Trent, by the canon law, which was the basis of the marriage law of Europe, marriage might be contracted without any religious ceremony, 1 Stair's Institutions, p. 25, note by Brodie. In England and in France, the decrees of the council of Trent were never received, and the law here remained as it was before that council, still regulated by the old canon law, Dalrymple v. Dalrymple 2 Haggard, 54. This is a case of the highest authority, and was never questioned until the appearance of Mr. Jacob's edition of Roper's Husband and Wife. In Poynter on Marriage and Divorce, a work of great merit, written by a proctor, it is stated: "In countries where the decrees of the council "of Trent were never received as of authority, the princi

ples of the ancient canon law form the basis of the law "of marriage at this day; unless (as in England, subsequent

Parochi qui matrimonio interesse debebat, seu à quo benedictio suscipienda erat, absolvatur. Habeat Parochus librum, in quo conjugum et testium nomina, diemque et locum contracti matrimonii describat, quem diligenter apud se custodiat. Postremò sancta Synodus conjuges hortatur, ut ante quàm contrahant, vel saltem triduo ante matrimonii consummationem, sua peccata diligenter confiteantur, et ad sanctissimum Eucharistiæ Sacramentum piè accedant. Si quæ provinciæ aliis, ultra prædictas, laudabilibus consuetudinibus et ceremoniis hac in re utuntur, eas omninò retineri sancta Synodus vehementer optat. Ne verò hæc tam salubria præcepta quemquam lateant, Ordinariis omnibus præcipit, ut, cùm primùm potuerint, curent hoc decretum populo publicari ac explicari in singulis suarum diœcesum parochialibus Ecclesiis, idque in primo anno quàm sæpissimè fiat; deinde verò quoties expedire viderint. Decernit insuper ut hujusmodi decretum in unaquaque Parochia suum robur post triginta dies habere incipiat, à die primæ publicationis, in eadem Parochia factæ, numerandos."

(a) 9 Geo. 2, c. 11.

"to the passing of the Marriage Act,) variations from the "ancient law can be shown to exist by competent legislation. "Until the year 1754, (the date of the first Marriage Act,) "the ancient cannon law continued to regulate the law of marriage in England; the authority of the council of "Trent not having been there acknowledged; and whilst "in virtue of domestic institutions a form was enjoined for "the more solemn celebration of matrimony, and persons "departing from those regulations were liable to ecclesias"tical censure, still other and more private modes of contracting matrimony were tolerated and acknowledged by "law; so that a contract per verba de præsenti, that is to say, "between persons entering into a present agreement to "become husband wife; or a promise per verba de futuro "which was an agreement to become husband and wife at

some future time, if the promise were followed by con"summation, constituted marriage without the intervention "of a priest; for the contract per verba de præsenti was held "to be a marriage complete in substance, but deficient in ceremony; and though the promise per verba de futuro of "itself was incomplete in both points, yet the cohabitation "of the parties after exchanging the mutual promise, implied such a present consent at the time of the social "intercourse as to complete the marriage in substance, and "give it equal validity with the contract de præsenti; that is to say, the validity of an irregular marriage which could not "be annulled by the ecclesiastical court, though it might be "censured for its informality; nor could the vinculum be "affected by a subsequent regular marriage." So, Sanchez de Matrimonio Disp. 1, says, "Fides catholica est, matri"monia clandestina ante Tridentinum fuisse valida. Et “ratio est, quia quoties concurrant essentialia, contractus "validus est, licet desiderantur solemnitates extrinsicæ et "accidentales; in matrimonio autem clandestino, concurrit "tota matrimonii essentia, deficiente sola extrinsica publi"citatis solemnitate."

Here then it is shown by the unanimous consent of the most eminent writers of all countries, on the law of nations, and on the civil, canon, and ecclesiastical law, that marriage is a contract and nothing more, and that before the council of Trent the presence of a priest was not required by the laws of the Christian Church, or the municipal law of any country, to give validity to the celebration of a marriage. We shall now proceed to an examination of the English authorities, more immediately bearing on the question.

We come now to an examination of the English authorities applicable to the question, and the first case to be noticed is that of Dalrymple v. Dalrymple, 2 Haggard's Consistory Reports, 54. That case came before the Court for its decision on questions regarding the validity of a marriage in Scotland; and Lord Stowell in giving his judgment, goes at great length into an examination of the laws of marriage generally, and particularly of the law of marriage in England at common law, before the Marriage Act. His lordship says, p. 63, "Marriage, in its origin, is a contract of natural law;

"it

may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of "mankind. It is the parent, not the child, of civil society, Principium urbis et quasi seminarium reipub"licæ. In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil consequences. In most civilized countries, acting under a sense of the force of sacred obligations, it has had "the sanctions of religion superadded. It then becomes

a religious, as well as a natural and civil contract; for "it is a great mistake to suppose that because it is the one, "therefore it may not likewise be the other. Heaven "itself is made a party to the contract, and the consent

"of the individuals, pledged to each other, is ratified "and consecrated by a vow to God. It was natural enough that such a contract should, under the religious "system which prevailed in Europe, fall under ecclesias"tical notice and cognizance, with respect both to its "theological and its legal constitution; though it is not unworthy of remark, that amidst the manifold ritual "provisions made by the Divine Lawgiver of the Jews "for various offices and transactions of life, there is no "ceremony prescribed for the celebration of marriage."

It is remarkable indeed, that by the Mosaic law there was no priest required for the celebration of the marriage ceremony, although a breach of the marriage contract was visited with such severity that a woman guilty of adultery was punished with death. And in the New Testament there is no rite of marriage prescribed, nor any revelation of the divine will on the subject. Marriages are frequently spoken of in the New Testament but without any indication whatever of their partaking in any way of a religious character. The Jews did, as a matter of positive human institution, institute certain forms and rites of marriage among themselves, but they neither are, nor profess to be founded upon any of the divine constitutions of the Mosaic dispensation, Selden de Uxore Ebraica. Lord Stowell proceeds in his judgment, p. 64, to observe," In the Christian Church marriage was "elevated in a later age to the dignity of a sacrament, in "consequence of its divine institution, and of some expres"sions of high and mysterious import respecting it contained "in the Sacred Writings. The law of the church, the canon "law (a system which in spite of its absurd pretensions "to a higher origin, is in many of its provisions deeply "enough founded in the wisdom of man,) although, "in conformity with the prevailing theological opinion, "it reverenced marriage as a sacrament, still so far

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Report of Two Cases Upon the Marriage Law of Ireland: Argued and Determined ...