The Queen, - Plaintiff in Error; George Millis, - Defendant in Error; and The Queen, - Plaintiff in Error; James Carroll, - Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 29 March 1844 |
| Date | 29 March 1844 |
| Court | House of Lords |
English Reports Citation: 8 E.R. 844
House of Lords
Mews' Dig. i. 354; vii. 633, 634, 643, 646. S.C. 8 Jur. 717; 17 Rul. Cas. 66. Followed in Beamish v. Beamish, 1861, 9 H. L. C. 274. Commented on in Exeter (Bishop of) v. Marshall, 1868, L. R. 3 H. L. 35; Phillips v. Eyre, 1870, L. R. 6 Q. B. 25; Mackonochie v. Penzance, 1881, 6 A. C. 446; In re De Wilton (1900), 2 Ch. 481; and, as to rule semper praesumitur pro negante, cited in Anderson v. Morice, 1876, 1 A. C. 751. See as to marriages (i.) in Ireland, 7 and 8 Vict. c. 81; 26 Vict. c. 27; 33 and 34 Vict. c. 110, ss. 32-42; 34 and 35 Vict. c. 49; (ii.) in England, 4 Geo. iv. c. 76; 6 and 7 Will. iv. c. 85; 19 and 20 Vict. c. 119, s. 11.
Canon Law - Marriage - Practice.
[534] THE QUEEN,-Plaintiff in Error; GEORGE MILLIS,-Defendant in Error; and THE QUEEN,-Plaintiff in Error; JAMES CARROLL,-Defendant in Error [February 13, 14, 16, 17, July 7, Aug. 10, 11, 1843; Feb. 23, March 29, 1844.] Canon Law-Marriage-Practice. [Mews' Dig. i. 354; vii. 633, 634, 643, 646. S.C. 8 Jur. 717; 17 Rul. Gas. 66. Followed in Beamish v. Beamish, 1861, 9 H. L. C. 274. Commented on in Exeter (Bishop of) v. Marshall, 1868, L. R. 3 H. L. 35; PhtiUps v. Eyre, 1870, L. R. 6 Q. B. 25; Mackonochie v. Penzance, 1881, 6 A. C. 446; In re De Wilton (1900), 2 Ch. 481; and, as to rule semper praesumitur pro negante, cited in Anderson v. Morice, 1876, 1 A. C. 751. See as to marriages (i.) in Ireland, 7 and 8 Viet. c. 81; 26 Viet. c. 27; 33 and 34 Viet. c. 110, ss. 32-42; 34 and 35 Viet. c. 49; (ii.) in England, 4 Geo. iv. c. 76; 6 and 7 Will. iv. c. 85; 19 and 20 Viet. c. 119, s. 11.] A., a member of the Established church in Ireland, went, accompanied by B., a Presbyterian, to the house of C., a regularly placed minister of the Presbyterians of the parish where C. resided, and there entered into a present contract 844 EEG. V. MILLIS [1843-44] X CLARK & FINNELLY, 535 of marriage with the said B.; the minister performing a religious ceremony between them, according to the rites 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. Qu. whether the first contract, thus entered into, was sufficiently a marriage to support an indictment against A. for bigamy? Lord Brougham, Lord Denham, and Lord Campbell, were of opinion that it was: The Lord Chancellor, Lord Cottenham, and Lord Abinger, were of opinion that it was not. The Lords being thus divided, the rule " semper praesumitur pro negante " applied, and judgment was given for the Defendant in Error. It is an inflexible rule of the House to hear only two counsel for each party in any one case; and the House will not avoid the effect of this rule by permitting one senior and one junior counsel to be heard in the opening, and a third counsel to reply [10 Cl. and F. 536]. At the Spring Assizes of 1842 for the county of Antrim, the Defendant in Error, Millis, was indicted for bigamy, under the statute 10 Geo. 4, c. 34. He was arraigned upon this indictment, and pleaded not guilty, and thereupon issue was joined. The jury found the following special verdict:-" That in the month of January 1829, George Millis, accompanied by Hester Graham (spinster), and three other persons, went to the house of the Rev. John Johnstone, of Banbridge, in the county of Down, the said Rev. John Johnstone then and there being the placed and regular minister [535] of the congregation of Protestant dissenters commonly called Presbyterians, at Tully- lish, near to Banbridge aforesaid; and that the said prisoner and the said Hester Graham then and there entered into a contract of present marriage, in presence of the said Rev. John Johnstone and the said other persons, and the said Rev. John John- stone then and there performed a religious ceremony of marriage between the said prisoner and Hester Graham, according to the usual form of the Presbyterian church in Ireland; and that after the said contract and ceremony, the prisoner and the said Hester for two years cohabited and lived together as man and wife, the said Hester being after the period of said ceremony known by the name of Millis. And the jurors aforesaid, upon their oath aforesaid, further say that the said George Millis was, at the time of the said contract and ceremony, a member of the Established Church of England and Ireland, and that the said Hester was not a Roman, catholic, but the jurors aforesaid do not find whether she, the said Hester, was a member of the said Established Church or a Protestant dissenter. And the jurors aforesaid, upon their oath aforesaid, further find, that afterwards, upon the 24th day of December 1836, and while the aforesaid Hester was still living, the said George Millis was married to one Jane Kennedy, then spinster, in the parish of Stoke, in the county of Devon, in England, according to the forms 'W"the said Established Church, by the then offici ating minister of the said parish, he being then and there a priest in holy orders ; but whether," etc. k The indictment and special verdict were afterwards removed by certiorari into the Court of Queen's Bench in Ireland, and the case was argued there in Easter Term 1842. [536] The Judges of the said Court afterwards delivered their judgments seriatim on. the said case:-Mr. Justice Perrin was in favour of the validity of the first marriage, even as a marriage per verba de praesenti, and consequently of the conviction : Mr. Justice Crampton thought it a valid marriage, but only so as being celebrated by a Presbyterian clergyman: Mr. Justice Burton, thought the marriage invalid in every way; and with that opinion Lord Chief Justice Pennefather entirely concurred (see " Report of the Cases of Begina v. Millis, and Begina v. Carroll, in the Queen's Bench in Ireland, in Easter and Trinity Terms 1842; by Edmund Spencer Dix, Esq., Barrister-atlaw; Dublin "). Afterwards, and for the purpose of obtaining the judgment of this House, Mr. Justice Perrin in form withdrew his judgment; and thereupon the said Court adjudged that the said George Millis, the now Defendant in Error, was not guilty of the felony in the indictment charged against him, and he was thereupon, acquitted. This writ of error was then brought, and now came on for argument in the presence 845 X CLARK & FINNELLY, 537 REG. V. MILLIS [1843-44] of Lord Chief Justice Tindal; Justices Patteson, Williams, Coleridge, Erskine, Cress-well and Maule; and Barons Parke, Alderson and Rolfe. The Attorney-general applied to the Hotuse to permit the hearing of counsel in the following manner: He proposed to address the House in the first instance, and requested that Mr. Waddington should be permitted to follow; and that after the counsel for the Defendant in Error had been heard, the Solicitor-general should be allowed to reply. The Lord Chancellor:-We cannot do that; it is contrary to our rule. The House can only hear two counsel. If the Solicitor-general is to be heard, he must address the House in the first instance. The Attorney-general then addressed the House for [537] the Plaintiff in Error. In the first instance he addressed himself to the case of Carroll, in which the ceremony of marriage had been performed by a Presbyterian minister not having any pastoral charge; but he was desired by the House to take the case of Millis as that to which his argument was to be directed, as one in which the question of the validity, in Ireland, of a marriage per verba de ipraesenti, and the validity of a contract of marriage made in the presence of a regularly placed minister of the Presbyterian church, could be respectively considered. Having stated the circumstances of the case, lie said,-There is a sufficient marriage de facto in this case to sustain this indictment. The first authority to be referred to is that of Blackstone; his Lectures were delivered in 1753, one year before the passing of the Marriage Act. His declaration of what was then the law is extremely strong: he says (Comm. Bk. 1, c. 15, p. 433), " Our law considers marriage as no other than a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law; the temporal Courts not having jurisdiction to consider unlawful marriage as a sin, but merely as a civil inconvenience; " and he puts consent as constituting the substance and essence of the marriage contract This declaration of the law is fully supported by the authorities there referred to. Bractoii, one of those authorities, wrote in the reign of Hen. 3, about the time of the Statute of Merton, which was passed in 1235 ; and in his 4th Book (De Actione Dotis, fol. 302 b.) he says: " Ideo de matrimonio videndum de quo sequitur dotis exactio. Et ad hoc sciendum, quod habet quis legitimam concubinam, et ex ea prolem in con-cubinatu, et postmodum contrahit cum eadem. clandestinum matrimonium, et post contractum clandestinum [538] suscitat ab ea prolem. Item postmodum contrahit cum eadem publice et in facie ecclesiae et dotat earn ad ostium ecclesiae: In hoc casu erit ille legitimus qui ex clandestine matrimonio natus fuerit, dum tamen hoc probetur, et haereditatem obtinebit. Et ille qui post solemnitatem progenitus fuerit (quamvis legitimus) non erit haeres propinquior quoad successionem, sed mulier propter solemnitatem et dotis constitutionem in facie ecclesiae dotem obtinebit." And after speaking of marriages contracted in the church, and of marriages contracted not there, but by words of present acceptance or of future promise, followed by a copula; he says (De Actione Dotis, fol. 303 a.), " Cum qua legitime contraxerit ad ostium ecclesiae vel alibi (dum tamen sponsalia probentur) sive per verba de praesenti sive per verba de future, dum tamen carnalis subsecuta fuerit commixio, erit uxor legitima...
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