E. T. 1846.
Queen's Bench.

THE QUEEN v. Rev. RICHARD TAGGART.

May 1.

celebrated by a Roman Catholic Priest

between two

An indictment had been found against the traverser, a Roman A marriage Catholic clergyman, at the Spring Assizes of 1846, for the county of Down, for celebrating a marriage between two Protestants of the Established Church, the marriage ceremony being performed in a public-house, on the 1st of November 1845. The traverser had pleaded not guilty, and a special verdict was agreed to, and the proceedings were removed by certiorari into this Court.

and con

The indictment was framed under the 7 & 8 Vic., c. 81, tained seven counts; and on the second, third, fourth and fifth counts the verdict was found.

The second count was as follows:-"That the said Richard "Taggart, after the 31st of March 1845, to wit, on 1st of November “1845, at, &c., being then and there a Roman Catholic Priest in "holy orders, did knowingly and wilfully solemnize a marriage in "Ireland between John Wilson and Nancy Bell, both being Protest"ants, without the special license of the Archbishop of Armagh, or "of his proper officers, in a certain house in Downpatrick, said house "being a place other than a church or chapel, in which marriages "then ought to be solemnized according to the rites of the United "Church of England and Ireland, and other than a Presbyterian “Meeting-house, certified under the provisions of the statute in that "case made and provided, and other than the registered building or "office specified in any notice or certificate, or within the meaning "and provisions of the statute in that case made and provided, and "not being a marriage between two of the Society of Friends, com"monly called Quakers, according to the usages of the said society, "and not being a marriage between two persons professing the "Jewish religion, according to the usages of the Jews."

The other counts varied from this in no essential particular.

Hanna, Sir Thomas Staples and the Attorney-General, for the Crown.

This indictment was framed under 7 & 8 Vic., c. 81, s. 45, which makes persons unduly solemnizing marriages, guilty of felony. The 12 G. 1, c. 3 (since repealed), shows that the Legislature anticipated the mischief of which the traverser has been found guilty, that of the celebration of marriages between Protestants by Roman Catholic clergymen, for it made the offence a capital felony. The 19 G. 2, c. 13, s. 7, nullifies such a marriage altogether; then came the 23

Protestants is illegal, and

renders the

person celebrating it liable to be indicted for felony.

The 7 & 8 Vic., c. 81, leaves untouched the

rights of the

Roman Ca

tholic clergy, where the marriage would have been previously legal, and the exemption in that

Act from pen

alties is only in relation to marriages that may now be lawfully cele

brated.

E. T. 1846. G. 2, c. 10, s. 3; 32 G. 3, c. 21, s. 12; 33 G. 3, c. 21, s. 12, and Queen's Bench. 3 & 4 W. 4, c. 102, ss. 1, 3, all showing the tendency of the legislation THE QUEEN on this head, that such a marriage as the present was null and void. The evil that arose was at length corrected by the Legislature, and to remove all doubts, the 7 & 8 Vic. c. 81, was passed.

บ.

ᎢᎪᏀᏀᎪᎡᎢ .

The 3rd section provides that nothing in the Act contained shall affect any marriages by any Roman Catholic Priest which may now be lawfully celebrated; the 13th section speaks of marriage notices to be given to the registrar of the district, excepting that no notice shall be required for any marriage by a Roman Catholic Priest which may now be lawfully celebrated. The 45th section is the one on which one set of counts in this indictment is framed.* The Counsel for the traverser must contend that a marriage so celebrated, as the present, which the Legislature has so frequently denounced, is now a valid marriage, or that though the marriage were invalid, the person performing it was exempted from punishment. We say this is a marriage a Roman Catholic Priest cannot celebrate; therefore, that the traverser is guilty of felony.

O'Hagan, with whom was Napier, contra.

Before the passing of the 7 & 8 Vic., c. 81, there was nothing to prevent the celebration of mixed marriages by a Roman Catholic clergyman, and if that be so, the late statute cannot make it a felony. The whole of the legislation on the subject was, to make the marriage void, and the act of the celebrating priest illegal; such is the deduction from its penal code. In none of these penal enactments would be found any distinct prohibition of the celebration of marriages between Protestants and Protestants, or between Protestants and Catholics; the prohibition was involved in the penalty imposed, but was not independent of, or capable of existing without penalty.

The 6 Anne, c. 16, s. 6, made a Priest celebrating marriages between Protestant and Protestant, and Protestant and Roman Catholic, liable to the penalties of a "Popish Regular," namely, to transportation, and the 8 Anne, c. 5, s. 26, declared that the Priest should be presumed to know the religion of any Protestant whom

• Sect. 45.-" And be it enacted, that every person who, after the said 31st day of March, shall knowingly and wilfully solemnise any marriage, or pretended marriage, in Ireland, unless by special license of the Archbishop of Armagh and his successors, and his or their proper officers, in any other place than a church or chapel, in which marriages may be solemnised according to the rites of the United Church of Ireland and England, or a Presbyterian Meeting-house, certified as aforesaid, or than the registered building or office specified in the notice and certificate as aforesaid, shall be guilty of felony (except in the case of a marriage by any Roman Catholic Priest, which may now be lawfully celebrated)."

V.

TAGGART.

he might marry, unless he had a certificate from a Protestant minister E. T. 1846. that the person married was not a Protestant. Then the 12 G. 1, Queen's Bench. c. 3, made the celebration of such marriages a capital felony; so far THE QUEEN the policy of the legislation was to punish the celebrant, and make his act unlawful. But by 19 G. 2, c. 13, the marriages themselves were declared null and void, and the 23 G. 2, c. 10, after reciting the former Acts, and that doubts had arisen whether the marriages being made void, a Priest could be guilty of felony for celebrating them, substantively enacted that he should be liable to the penalties of felony. If then, whilst the penal laws were still in force, the mere voiding of the marriage made a distinct enactment necessary to prevent the effect being wholly done away, how can it be contended that, now when the voidness of the marriages remained, but all the enactments against the celebrant had been abolished by the 3 & 4 W. 4, c, 102, upon the equivocal words of the late Act, a Priest could be held to be a felon for celebrating such void marriages?

The 33 G. 3, c. 21, does not affect the argument; and 3 & 4 W. 4, c. 102, removed all the penal enactments then existing on the subject; and the taking away the penalty that involved the prohibition to marry, removed the prohibition itself. The 3rd section of that statute shows that if it had been intended to prevent a Roman Catholic clergyman from celebrating the marriage, it would not have confined its provisions to degraded clergymen.-[PERRIN, J. On the true construction of 3 & 4 W. 4, c. 102, though the penalty.be removed, is not the prohibition continued?-CRAMPTON, J. Can a marriage in itself unlawful be lawfully celebrated ?]-We so contend; for there was nothing unlawful in the celebrating the act, there being no punishment attached to it; and before the late Act no penalty was imposable, although the act itself was void.-[BURTON, J. If so, would the celebrating party not be guilty of a misdemeanor ?]No, for it was not an offence at common law.

The 7 & 8 Vic., c. 81, never was intended to apply to the Roman Catholic priesthood; it is an Act in reference to Episcopalians and Presbyterians; and it would be strange if the single provision introduced into the bill for their benefit, should be the creation of a new felony as against the Catholic priesthood. The Court, seeing that the Act of 3 & 4 W. 4, c. 102, was deliberately considered by Parliament, and had relation expressly to the position of the Roman Catholic priesthood, would be slow to hold that Act substantially repealed by one subsequently passed without special relation to that priesthood, without any reference to the former Act. The statute 7 & 8 Vic., c. 81, so far as it was penal regarding the person of the celebrant and the fair construction of its exception, was, that all persons celebrating marriages under the circumstances described in it should be

E. T. 1846. guilty of felony, save in cases where a Catholic Priest might, without doing an illegal act, celebrate a marriage.

Queen's Bench.

THE QUEEN

บ. ᎢᎪᏀᏀᎪᎡᎢ,

The Attorney-General, in reply.

The argument on the other side is based on a fallacy, that this Act does not apply to the Roman Catholic priesthood. It applies to all classes of persons, except in particular cases which are provided for by the Act, and within which the traverser does not come. At the time of the passing of the Act, mixed marriages by Roman Catholic Priests were void; but the persons celebrating them were not indictable for so doing; but if they celebrate what the law regards as an invalid marriage, they are not protected. The exemption in the 7 & 8 Vic., c. 81, is an indulgence to the Roman Catholic priesthood. The 49th section makes marriages void if certain things be not done; but that cannot extend to marriages void before the passing of the Act, and the traverser's case is no exception. It is admitted that a marriage between two Protestants celebrated by a Roman Catholic clergyman is void; and is it to be said that a clergyman of another persuasion, if he violate the Act, is to be guilty of felony, and Roman Catholic clergymen are to be protected?

BLACKBURNE, C. J.

In this case there was an indictment which, so far as it has been brought before us, appears to be founded on the 7 & 8 Vic., c. 81, s. 45. There are several counts in the indictment, with respect to which no question has arisen, and we are called on to decide the present case altogether upon the construction of the 45th section of that Act.

The charge against the traverser was, that he had solemnised a marriage in a certain unlicensed place, between two members of a different persuasion; that fact was established, and it is quite clear that he comes within the terms of the statute. This is not a case in which the Court are spelling out the intention of the Legislature; the language is so clear as to leave no doubt, and it is a great misapprehension to say that the Court are now called upon to punish the traverser by an ex post facto interpretation of the Act. What the effect of the Act was on the day when it passed is what we have to consider; every violation of its provisions from the day it came into operation is to be visited with the consequences it provides, and the offence here charged was plainly committed after its operation commenced.

The argument of the Crown is this:-Originally a marriage solemnised between two persons who were Protestants by a Roman Catholic clergyman was valid. Then came the Acts by which

V.

TAGGART.

Roman Catholic clergymen were subject to severe penalties for E. T. 1846. Queen's Bench. celebrating such a marriage: and then the 19 G. 2, besides imposing penalties for its solemnisation, made the marriage itself null and THE QUEEN void. The 3 & 4 W. 4, c. 102, abolished all these penalties, but the marriage remained as it was before, invalid, attended by all the mischievous consequences, social, civil and religious, which are the result of invalid marriages-amongst them, illicit intercourse and the birth of illegitimate offspring. Such was the state of things after the passing of that Act in 1833; and whether a Roman Catholic clergyman was after that liable to be indicted for celebrating a void marriage is not for us to pronounce an opinion on; we have only to consider the exception in the 45th section of 7 & 8 Vic. c. 81. That exception was intended to preserve the rights of Roman Catholic subjects, not to extend the power or authority of the Priest in the celebration of marriages; it was meant to uphold the validity of the ceremony when performed between members of his own

communion.

This view receives strong confirmation from the language of the 3rd section; that is, that it was made for the protection of the marriage, and not of the person performing it. This section may justly be read in connection with the 45th; and the result is this, that the statute is not to affect the marriages of Roman Catholic subjects, or to extend to the registration of them or their places of worship; but so far as regards them the law is the same as if the Act had not passed. The 13th section illustrates this, and further confirms what I have said.

I now come to the 45th section. It is admitted that a marriage solemnised by a Roman Catholic clergyman between two Protestants, is absolutely null and void; it does not create matrimony, or the relation of man and wife; and the question we have to consider is, whether those who celebrate invalid marriages are by this section protected by the Act of Parliament in question. The construction of it contended for by the traverser is, that it is intended to preserve the power of solemnising invalid as well as valid marriages. But we must take the word "marriage," used by the Legislature in its common sense; that is, to mean a contract by which the parties become man and wife- —a contract of perfect matrimony. The statute speaks of marriages lawfully celebrated; what is the meaning of that? It is a violation of language to say, that it applies to that which is not a marriage at all. We therefore are of opinion that this case is free from all doubt; and by giving the words their literal meaning, the intention of the Legislature is effectuated without at all interfering with the Roman Catholic clergy or community, or with any privileges they can legally claim.

There must, therefore, be judgment for the Crown.