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canon law matrimony might be considered as merely a civil contract, non constat that it was so by the common law, for we know that upon the subject of bastardy they differed widely, and that the barons refused to assimilate them when required to do so at the passing of the Statute of Merton.
Whatever be the meaning of ipsum matrimonium as applicable to such a contract under the civil or canon law, I think it clear that the common law of England did not apply the term to such contracts that they were not considered as marriage for any purpose; but as Sir John Nicholl says in Eliott v. Gurr, were treated as a mere nullity, and absolutely void. And therefore I cannot hold them sufficient to convict a prisoner of felony. Such an offender originally had not the benefit of clergy; he is still a felon; and if any doubt can reasonably be entertained as to the extent of legal guilt which he has incurred, tenderness to the accused should induce us to give him the benefit of it. I think it clear that for many civil purposes, such as the legitimacy of children, dower to the wife, community of goods, &c., he cannot be considered as married; and I cannot, therefore, pronounce him so in a criminal proceeding, the result of which even now would be to render him subject to the severe punishment of transportation.
But it is not even clear that in all cases a contract was held ipsum matrimonium by the Ecclesiastical Courts, for if on a plea of ne unques accouple the issue had been sent to be tried in the Ecclesiastical Court, it must have decided according to the principles of the common law and certified ne unques accouple in cases of mere contract. In one proceeding this engagement was pronounced no marriage, and in another it was adjudged to be ipsum matrimonium. This juggle was never introduced into or formed part of
the common law of England or Ireland. And upon what grounds is it that the principles of the common law have now been brought into question? It is because a doubt has been thrown upon the state of the law, by the expressions which fell from Sir William Scott in Dalrymple v. Dalrymple. No man can entertain a higher respect or admiration for that eminent judge than I do, and no man can feel more disposed to attach weight and importance to all his opinions. But I cannot help stating my conviction to be that the position he laid down in this case was not sufficiently considered. I think the arguments used in the present cause have clearly demonstrated it to be unsound. In Scotland the law may be as Lord Stowell stated, but we have the strongest authority to shew that it never was, and never was considered to be, the common law of England. The cases upon which Lord Stowell relied are those of Bunting v. Lepingwell; Jesson v. Collins; and Wigmore's law. The first as I have before stated, appears to me in no manner to establish the position that a contract is viewed in the same light by the law of England and by the canon law. And the two other cases were undoubtedly decided upon principles of canon law; and justly so, as the object of each was to stay proceedings in the Ecclesiastical Court, and a prohibition was in both cases refused, because it was held that that court had jurisdiction in cases of contract. The subsequent cases of R. v. Inhab. of Brampton, and Latour v. Teesdale cannot, I think, have application to the present point, as in both, the ceremony of marriage was performed by a priest. Upon the whole I can entertain no doubt of the truth of the principle laid down by Sir Edward Simpson in Scrimshire v. Scrimshire, that by the law of this country, any ceremony of marriage unsanctioned by the presence of a priest can be considered only in the light of a contract.
I shall now briefly glance at some of the statutes of this country which appear to me to support this rule of law. The 33 Henry VIII. c. 6, entituled "an Act for Marriages," enacts that marriages being contracted and solemnized in face of the church, and consummated with bodily knowledge, shall be deemed good and indissoluble, notwithstanding any precontract of marriage not consummate with bodily knowledge. This statute legalizes the marriage, notwithstanding the precontract, and if according to the argument which has been employed, that contract was in itself legal matrimony, there might have been since the passing of this statute, two valid marriages legally subsisting at one time. In the confusion which existed at the period of the great rebellion, marriages were directed by certain ordinances, to be celebrated by justices of the peace, but at the Restoration it was deemed necessary to pass the 17 and 18 Car. II, c. 3, to confirm them "as if had according to the rites established "or used in the Church of Ireland." Now, if marriage contracts had then possessed the force of matrimony what could have been the necessity for legalizing these marriages? They were clearly good contracts, and if the statute proves anything it must be that they were not valid as marriages. Then by the 12 Geo. I. c. 3, s. 4, it was provided that no precontract not consummated should be enforced against a marriage with consummation. Where would have been the necessity for enforcing matrimony in such cases, if the contract had been considered of equal efficacy? By the 11 Geo. II. c. 10, which recited that several Protestants dissenting from the Church of Ireland as established, scrupled to be married according to the form of matrimony prescribed by the said Church, it was provided that dissenters entering into matrimonial contracts before their own ministers should not be prosecuted by the
Ecclesiastical Courts, &c. provided they and their ministers had taken the oaths and subscribed the declaration prescribed by the 6 Geo. I. c. 5. All this legislation and more which is to be found on the statute-book, but which, after the lengthened discussion which this case has undergone, I do not feel it necessary to dwell upon, is totally inconsistent with the notion of a contract being sufficient to constitute matrimony, and would, if this principle were true, have been completely inoperative and absurd.
I therefore am of opinion, that from the earliest period of our history the presence of a priest at the celebration of marriage, was required by law to give it validity—and I think that the authority of all ancient text writers, the result of the large majority of decided cases, and the natural inference from the legislative measures of this kingdom proves beyond dispute that this law has been held to be in force, and has been acted on up to a very late period; and that it is only since the judgment given by Sir William Scott in Dalrymple v. Dalrymple, that this rule of law has ever been doubted. I think that the opinion expressed on that occasion was hastily expressed, and is not founded on law, and that the rule remains unchanged which requires the presence of a priest at the celebration of all marriages. I am further of opinion that this priest must be episcopally ordained. I think the court is bound to hold this according to the express and positive statute laws of this realm, and I am of opinion, that though the strictness of the law in refusing to acknowledge any orders but those episcopally conferred may have been, and has been, relaxed in certain cases, and to a certain extent, that it has not been modified or altered as relates to marriage in this country, and therefore that it is here still binding upon the court.
Upon these grounds, I am of opinion, that the marriage
in the present case, is not such as will suffice to convict the prisoner of bigamy, and that he is, therefore, entitled to judgment.
Mr. Justice Perrin afterwards stated that as it was of importance that the questions raised in these cases should be finally determined, he would pro formâ withdraw his judgment, in order that the decision of the House of Lords might be obtained upon them on a Writ of Error. There was therefore
Judgment for the prisoner.