The Sun.
London, England, 1844-02-23 00:00:00

LAW INTELLIGENCE.

HOUSE OF LORDS.—(THIS DAY.)
PRESBYTERIAN MIXED MARRIAGES,---(IRELAND.)
Their Lordships met this morning at ten o'eloeh, for the
purpose of giving
*judgment on a writ of error in the case of
" the Queen v. Millis."
The LORD CHANCELLOR commenced by stating the effect,
of a contract or engagement of inistrimon per verba de
peastenti previous to the Marriage Act, and cited Swinburne,
Sir Edward Simpson, the COutiell of Trent, Mr. Justice
Blackstone, and other authorities OR ihßt Subject. The
Council of Trent held that all clandestine marriages were
null and void ; but the canon law was never adopted as
binding hi this country, and the authorities cited
showed that a contract tier Verba do prresenti was
a valid marriage, and might be unforced against
either of the parties. His Lordship the referred to a
number of eases, establishing that when a contract per verba
de prnsenti was followed by a marriage, solemnised in facie
ecclesile, between one, of the parties and another person, the
latter marriage was not by pre-contract actually void, bnt
merely voidable, and, as a consequence, that if such marriage
was not annulled by a sentence of the Ecclesiastical Court
in the lifetime of the parties, it could not afterwards be ef-
fected; but the widow would tak her dower, and the children
must be held to be legitemate. The principal incidents of
this species of contract were, that the engagement was indis-
soluble ; that either party might compel solemnization ;
that the parties could not be punished for coha-
biting together; and that such contract was suf-
ficient to void, by means of a suit, a subsequent
marriage entered into by either of the parties, and solemnised
in facie ecclesire. This view was supported both by the
judges of the Ecclesiastical Courts and the common law
authorities. The contract per verba de priesenti was, at the
period to which he had referred, to use the expression of
Swinburne, "in respect of its constituting the substance and
forming the indissoluble knot of matrimony, regarded as
verum matrimonia." But the same authorities which sup-
ported this view held that marriages of this description were
irregular ; that they were a looser sort of marriages ; that
they were not regular marriages, though equally binding;
and that in order to constitute a regular marriage, with all
the consequences belonging to marriage in its perfect state,
solemnization was necessary. Swinburne said that spousals de
priesenti did not produce all the same effects in England as a
marriage solemnized in the face of the Church with respect to
issue, the husband's property in the wife's goods and other
matters. Lord Stowell and Sir Edward Simpson took the
same view, and Mr., Justice Blackstone said that such mar-
riages were valid for many purposes, but not for all purposes.
Upon the point whether a contract, per verba de prmsenti
without solemnization, would entitle the widow to dower,
the Court below and the Court of Appeal were of the same
opinion—they were both against the claim to dower. We
had come therefore, to the conclusion that accord-
ing to the concurrent opinions both of the eccle-
siastical and the temporal judges, these irregular
and loose Sort of marriages did not confer those' rights
of property, or the more important right of legitimacy, conse-
quent on a marriage duly solemnized according to the rites of
the Church of England. A great deal of discussion had taken
place in reference to the religious ceremony. • It appeared,
from the authorities to which he had referred, that it was
formerly contidered essential to the full effect of a marriage
that it should be solemnized by the Church, and if persons not
in holy orders performed the ceremony, they exposed them-
selves thereby to heavy censure. It was said that a marriage
might be valid, though not performed by a person in holy
orders conferred by episcopal ordination. In that statement
he could not concur. Holy orders were orders conferred by
episcopal ordination, and what was required to be done
by a minister in holy orders, could not be done by a minister
of the Scotch Church. The question was not affected by the
Toleration Act, which merely removed certain disabilities,
and did not alter the law in this respect. The claim made
by the Presbyterians of Ireland could not be supported on
any principle which would not equally apply to any body of
Dissenters. He respected the character, learning, and piety of
Presbyterian Ministers, but this question must not be de-
termined by any such considerations. Many observations
had been made on the marriages of Jews and Quakers. The
Jews had always been treated as a distinct people, who were
governed by their own religious observances, and had their
own matrimonial law. Some difficulty existed as to the
case of the Quakers, and Lord Hale, in a case which came
before him for decision, in order to avoid making those chil-
dren bastards, directed the jury to return a special verdict.
He saw no ground for altering the view which he had taken
on this subject, agreeing, as it did, with what had been laid
down by the most eminent civilians, and with the corre-
sponding doctrines of the Courts of common law, from the
earliest periods of their history. Now, he had been led, in
consequence of the important nature of the interests
involved, to enter more largely into the subject than under
other circumstances he would have felt justified in doing.
The immediate question before them was, whether George
Miller was or was not guilty of the crime of bigamy, and
then the question was, whether a contract per verba prai-
senti was sufficient to support such an indictment. lie de-
fined what he considered the effect of such a contract to be,
and then adverted to the change that had been operateclson
it by the 13th section of the English Marriage Act, and con-
cluded an elaborate judgment by saying—" My opinion,
therefore, after the most anxious consideration, and on the
grounds and reasons I have stated, but still with all deference
and respect to those who differ with me on this subject, is that
the indictment against the defendant George Millis, for
bigamy, cannot be sustained."
Lord COPTENHAM, in delivering his decision, said that in
the whole course of along professional life, he had never met
with so embarrassing a case. The highest names in the
history of the law were on this subject opposed to each other.
The present inquiry involved a consideration of the state of
the law previously to 1753, ninety years since it ceased to
exist, and this added a difficulty to the inquiry, which it was
of the utmost importance to keep in mind. Before the
Council of Trent, a marriage per verba prsesenti was a legal
marriage, as it was in Scotland at the present day. At that
time England was subject to the canon law, like other coun-
tries ; but by the 25th of Henry VIII:, the canon law was de-
clared to have no effect, except so far as it had been adopted
by the consent and custom of the people. Sir W. Black-
stone and Sir M. Hale both laid it down that the canon law
only then became part of the comma, or unwritten
law. By the Council of Winchester, it was laid
down that a marriage without the benediction of
a priest in holy orders was not a valid one, and
that any other was to be deemed fornication. From the ear-
liest times the law of England had differed from the civil and
canon law, and required the intervention of a person in holy
orders to make a marriage valid. He then proved, from an
immense mass of authorities, the nature of a contract per
verba de prtesenti ; first, such a contract did not give the
woman the right of a wife, as far as entitling her to a dower ;
secondly, such a contract did not give the man the right of a
husband , to the property of the woman ; thirdly, such a con-
tract did not confer on the issue of the marriage the
rights of legitimacy ; fourthly, such a contract did not confer
on the woman the capacity of coverture ; fifthly, such a contract
did not make the marriage of either of the parties with a third
person, during the life of the other, avoid or invalid marriage.
Each of these points he supported with cases and decisions.
He next stated that though a contract per verba de priesenti
was an essential part of a marriage, as between the parties
themselves, yet the anthorities spread over a period of 700
years did not hold it to be a valid marriage for all the above
purposes, without the intervention of a person in holy orders ;
and that person must be one whom the Church considered
to be in such holy orders, which no Presbyterian minister
could possibly be. He was aware of the difficulties and
hardships that the decision might create ; but happily it
was in the power of Parliament to remedy those difficulties,
and to remove those hardships. They were here for one
purpose only, that of laying down the law, and in the per-
formance of that duty he was bound to declare that the first
marriage in the case before them was not a valid one, that
therefore the party accused of bigamy, the defendant George
Millis, could not legally have committed the offence with
which he Was charged.
Lord BROUGHAM, after bearing testimony to the abi-
lity and research displayed in the judgments just
read, said. he. should move that the further considera-
tion of the case be postponed, in order that the judgments
of the two Noble Lords might be printed, for the considera-
tion of the rest of the Law Lords, that they might be com-
pared with the authorities, on points on which he was yet
doubtful how far he concurred with the two Noble and
Learned Lords. He contended that the present case af-
forded a proof of the advantage of the practice he
had introduced since he was on the bench, and which he
wished was more general, of judges, in cases of importance,
delivering written decisions.
Lord CAMPBELL also concurred in the suggestion of the
Noble and Learned Lord, for the same reasons.
The Loan CHANCELLOR consented, and the further consi
deration of the case was then postponed.

QUEEN'S. BENCH.-(THIS DAY.)
(Sittings at Guildhall, before Lord Chief Justice DENMAN
and a Special Jury.)
TITHPIN V. HEALD.

In this action Mr. Platt and Mr. James appeared for the
plaintiff ; Mr. Thesiger and Mr. Watson for the defendants.
It was brought by the plaintiff against the defendant, as
Managing Director of the Commercial Assurance Company,
to recover the various sums of 5001., 2001., and 2501., on
policies of assurance on certain specie, merchandise, and
furniture in the ship Theresa, bound from Shields to Rio
Janeiro. The pleas on behalf of the defence alleged conceal-
ment at the time of making the policy—the non-existence of
any specie—the non-ownership of the specie,' supposing it
had existed—a denial of the loss of the vessel—a
denial of her sea-worthiness ; and, lastly, that if any wreck
took place, such wreck was not caused by the violence of the
elements, but by the misconduct of the plaintiff. The wit-
nesses for the prosecution were very numerous, but the facts
elicited, up to the time at which we write, were briefly these :
—that the plaintiff bought the vessel at Hamburgh, whence
he brought her over to Shields, had her dry-docked, exa-
mined, and thoroughly repaired, so as to make her a sea-
worthy boat. On the 26th of August the Theresa left Shields
for Rio, having on board Captain Turpin (the plaintiff) and
a crew of eight men. When they arrived off the Galloper
they got a ground, and:dropped their anchor. Next tide they
got off, and on sounding the pumps, they found that
they had made no water whatever, and that the
vessel was perfectly " taut." About seven in the
morning of the Mat of August, being then off Dun-
geness, the vessel
.struck again ; and on sounding, they
folind two feet eight inches water in the hold. All hands
were put to the pumps, and kept hard at work, but the leak
gained on them, and so they were at last obliged to throw their
boat over the side, and betake themselves' to it. This was
about nine o'clock in the evening, the sea running violently,
with a heavy gale from the N.W. and W. They were from
seven to nine miles from land, and had they attempted to
make the French coast, the vessel must have foundered long
before they could do so. The captain was the last man to
leave the brig, the crew having been in the boat for some
time, and they only got him to leave by a threat that if he
did not instantly do so they would leave him to his fate.
When in the harbour at Shields, the captain was seen to count
the sum of 500/. in gold doubloons, to put it into a
canvass bag, and to give it in charge to his second mate, who
subsequently saw it deposited in a tin box. When the storm
was raging, this tin box, with a few clothes of the seamen, a
bag of biscuits, a keg of water, and some raw beef, were lying
on the deck, and these were afterwards (with the exception
of the tin box) stowed away in the boat. When the crew
told the captain that unless he left the vessel instantly they
would leave him to his fate, he prepared to join them. Just
before descending the side of the vessel, he threw this tin box
containing the doubloons to the boat, but from the surging of
the vessel and the boat, the box missed the boat, fell into the
sea, and was seen no more. Before the vessel had been left many
Minutes, these shipwrecked men saw her go down head fore-
most. They pulled for land, and luckily fell in with a
fisherman, who took them In tow, and landed them safe at
Ramsgate. The captain and his crew immediately went to
the proper authorities at that place, and made a declaration of
the loss of the brig, and the circumstances attending it. Thus
far had the evidence gone ; and there were still many wit-
nesses to be examined for the plaintiff. For the defeilcie
many witnesses were likewise in attendance. The case
at all event's, occupy the attention of the Court all the day,
and probably until a very late hour; if, indeed it be not ad-
journed until to-morrow.
-..-...•=1.111•••••••

One of the Paris journals (La .Reforme) states that
the distress of the lower orders
in in P
paubliris hc
thoroughfares. as recently become
So great, that beggars [Para the