THE QUEEN Vv. MILLIS. - (IRISH MARRIAGES CASE.) 10 Cla. & Bigamy Marriage by a Presbyterian Minister. An THE account given of the decision in this important cause occu- 1 The admirers of Sir William Scott's celebrated judgment in Dalrymple v. Prior to the Council of Trent marriage throughout the continent of Europe was looked upon as a purely consensual contract, capable of being completed by the parties without any interposition of ecclesiastical authority. It was, indeed, regarded as a sacrament; but that sacrament might be mutually administered by the contracting parties to each other; and neither the aid nor the presence of any one clothed in holy orders was required. But in the year 1563 the Council of Trent made a decree whereby, after admitting that clandestine marriages had previously been valid, they proceeded to enjoin that for the future no marriage should be effectual unless celebrated duly in facie ecclesiæ. This decree, be it observed, had authority only in those countries which acknowledged the papal supremacy. It had no reception in England, being dated nearly thirty years subsequent to the breach between Henry VIII. and the Pope. The matrimonial law of England, therefore, continued on its former footing. By that law clandestine marriages were allowed. But they were not attended with the same effects as marriages solemnised in facie ecclesiæ. And herein lies the peculiarity of English law, when viewed in contradistinction to the ancient continental law. By the continental law, prior to the Council of Trent, a private marriage was as good as a public one. By the law of England a private marriage, that is to say, a marriage not solemnised in facie ecclesiæ, was good only for certain purposes. Thus a private or clandestine marriage, or, as it was sometimes called, a verbal contract, (which might either be by words of present consent or by words of promise, followed by cohabitation,) was in the first place not sufficient to give the woman the right of a wife in respect to dower; nor, secondly, to give the man the right of a husband in respect of the woman's property; nor, thirdly, to render the issue begotten legitimate; nor, fourthly, to impose upon the woman the disabilities of coverture; nor, fifthly and lastly, to make the marriage of either of the parties, living the other, with a third person void :-all these consequences being confined exclusively to marriages solemnised in facie ecclesiæ. Nevertheless, the effects of clandestine marriages were very remarkable, though falling greatly short of those which attached upon regular matrimony; for it is now agreed, and has, indeed, been decided, that before Lord Hardwicke's Act, a contract entered position formed the staple of his whole argument. On looking again at that splendid (perhaps unrivalled) effort of judicial eloquence, we think some symptoms of misgiving and hesitation are here and there observable. The student will do well to read the Dalrymple case first, and then to peruse and study the elaborate report of the Queen v. Millis by Messrs. Clarke and Finnelly. into between man and woman by words of present consent was indissoluble. The parties could not release each other from the obligation. Either party, too, might by a suit in the Spiritual Court compel the other to solemnise the marriage in facie ecclesiæ. It was so much a marriage that if they cohabited together before solemnisation they could not be proceeded against for fornication, but merely for contempt. If either of them cohabited with another person the parties might be proceeded against for adultery. The contract too was considered to be of the very essence of matrimony, and was therefore, and by reason of its indissoluble nature, styled in the ecclesiastical law verum matrimonium, and sometimes ipsum matrimonium. Another, and a most important effect of such a contract was, that if either of the parties afterwards married with another person, solemnising such marriage in facie ecclesia, the same might be set aside, even after cohabitation and after the birth of children; and the parties might be compelled to solemnise the first marriage in facie ecclesiæ. So a contract of marriage per verba de futuro, followed by cohabitation, produced precisely the same consequences as a contract per verba de præsenti. For where a copula ensued upon the promise, the present consent essential to matrimony was supposed to be at that moment exchanged between the parties; a presumption which, though but slightly founded in reality, was held to be abundantly recommended by its equity, and the just check which it imposed on perfidy. The ancient law of England, therefore, with respect to the constitution of marriage, was very peculiar, and no more to be understood by reference to the continental system than the law of real property or any other branch of our jurisprudence. And this we take to be the great point established in the above case by the court of last resort; which, though carried with infinite difficulty, and in spite of many strong and, as some may think, invincible arguments opposed to it, must henceforth be regarded as a point settled and concluded in all legal reasoning on the subject. The short general proposition derivable from the adjudication is, that by the ancient law of England, although a marriage by private contract was good for certain purposes, it could not be absolutely legitimate and perfect without the intervention of a person in holy orders that is, orders conferred by episcopal ordination. Lord Hardwicke's Act, the 26 Geo. 2. c. 33. "for the better preventing of clandestine marriages," enacted that no suit or proceeding should be had "in any ecclesiastical court to compel a celebration of any marriage in facie ecclesiæ by reason of any contract, whether per verba de præsenti or per verba de futuro.”1 From this date therefore verbal contracts were no longer, as before, indissoluble. Solemnisation could not be enforced, and a subsequent marriage solemnised in facie ecclesiæ could not be set aside; but, on the contrary, would be valid and binding from the time of its celebration, and would be accompanied by all the civil consequences of a regular and perfect marriage. This being so, let us see what were the circumstances of the case of the Queen v. Millis. A member of the Established Church enters into a present contract of marriage with A. in Ireland, before a Presbyterian minister, who performs a religious ceremony on the occasion according to the Presbyterian forms. After having lived with A. for some time as her husband, he during the life of A. marries in England another person, with due formality in facie ecclesiæ. The question then came to be, whether the first contract was sufficiently a marriage to support an indictment against this man for bigamy. The Lord Chancellor, Lord Cottenham, and Lord Abinger, held that it was not2: Lord Brougham, Lord Denman, and Lord Campbell held that it was. Judgment therefore passed for the defendant in error. In other words, the judgment of the court below was affirmed, and the result was, that Millis was acquitted. LANE V. GOODWIN. 3 G. & D. 610. Marriage Licence - False Name. 4 A marriage by licence under a false name is not void, unless perhaps (as was remarked by Sir W. Scott in Cope v. Burt 3) some fraud was practised, which would entirely vary the question. The reason for this distinction between the case of a marriage by licence and a marriage by bans, which latter is made void by the use of a false name, is said by the same learned Judge to be that, in publication by bans, it is essentially necessary that the publication should be in the true name, as it would otherwise be defective in substance, and no one would be put on their guard by such publication; whilst licence is not of the same notoriety, but is granted by the ordinary on the evidence which he is content to receive, the oath of the party, as required by the Canons of the Church. 1 Extended to Ireland by the 58 Geo. 3. c. 81. * That is to say, they held that what was done in Ireland was no more than a mere private contract which could ground no proceedings. They held likewise that a Presbyterian minister in no sense answered the description of a person in holy orders, i. e. orders of episcopal ordination. 3 1 Hagg. Cons. Rep. 134. S. C. (Sentence affirmed) 1 Phill. 224. ↑ In the same case of Cope v. Burt. Robert Becher executed a bond to A. Frazer and J. Becher, for the purpose of securing an annuity of 100l. to Mary Anne Dickenson, spinster, during her life. Shortly thereafter this lady married John Turton. The annuity falling into arrear Mr. and Mrs. Turton threatened proceedings; but a compromise was effected, in pursuance of which Mr. and Mrs. Turton in consideration of 5007. released Frazer, J. Becher, and the obligor in the bond from all claims and demands in respect of the annuity and the securities for the same. Mr. Turton died, leaving his wife him surviving; whereupon, in the present suit, the question for determination came to be whether Turton had power to release his wife's annuity beyond the term of the coverture. The Vice Chancellor of England said, "If a man gives a bond, or a promissory note, to secure an annuity to a single woman, and she afterwards marries, her husband may release the bond or note; and if he releases the security there is an end to the annuity." This is an important decision, and well deserves the attention. of the profession. In the first place, let us inquire how the case of a husband releasing an annuity, to which his wife was entitled dum sola, would stand at law. By the 8 & 9 W. 3. c. 11. s. 8. in all actions upon bond the jury are to assess the damages for breaches proved at the trial, and the judgment is to remain as a security to the plaintiff for such damages as he may sustain by any further breach. This act is held to be compulsory on the plaintiff, so that he must assign breaches and take out execution accordingly, and he cannot recover the entire penalty. A bond for payment of an annuity has been expressly held to be within the statute', and if any further breaches are committed, the Act directs that the plaintiff may toties quoties sue out a scire facias upon the judgment. Where therefore husband and wife bring an action on a bond to secure an annuity given to the wife dum sola, and the wife is joined, the action being in the name of both, the judgment must also be in the name of both. "A release of all manner of demands," says Littleton 2, "is the best release to him to whom the release is made." But the husband has no demand for any payments of the annuity, other than those that are due or may become due during his life. The statute prevents his recovering the entire penalty. The release of the husband, then, as it appears to us, can only release that for which Collins v. Collins, 2 Burr. 820.; Walcot v. Poulding, 8 T. R. 126. 2 S. 508. Co. Litt. 291 b. |