APPENDIX.

1844:

The SUSSEX Peerage. Evidence

(SOME gentlemen having expressed a wish for Dr. Wiseman's evidence on the claim to the Sussex Peerage, as to English marriages in Rome, the material passages extracted from the printed evidence are here subjoined. It was omitted in the Report (ante, p. 117), as there stated, because the claim was disposed of on the construction of the Royal Right Rev. N. Wiseman, Marriage Act alone.)

of the

D.D.

"THE law of the Council of Trent is that a marriage, to be valid, must be in the presence of the parish priest and two witnesses. The Council of Trent does not point out the particular form of the ceremony of marriage; the Roman ritual prescribes that. To make a marriage lawful, it would be necessary to conform to the Roman ritual, but it would be valid and binding though the forms were not observed; but the parties would be subjected to censure in the Ecclesiastical Courts, for illegal proceedings. It would not be required that a marriage which had been so celebrated irregularly should be repeated: it could not be rendered more binding by any subsequent ceremony; it would be indissoluble.

"I never heard of any attempt being made by two Protestants to be married according to the Catholic ceremonial in Rome, or before the parish priest; nor do I believe that they would be permitted to avail themselves of the law. The parish priest would not be under an obligation to solemnize the marriage of two Protestants. There has been no regulation upon that subject, nor can I refer to any decree relating to it. But supposing a marriage of two Protestants, celebrated at Rome in the presence of a Protestant clergyman, according to the English Protestant ritual, should after

wards come before a tribunal there for a decision upon it,
I have no hesitation in saying that that tribunal would
pronounce for the validity of the marriage. Such persons
so married, if they afterwards professed the Roman-catholic
faith, would not be required to be married again, nor to do
any act to confirm the marriage; nor would they be allowed
to separate, nor could either of them marry again during the
life of the other. The children of such a marriage would be
deemed legitimate. I believe that such a marriage would
not subject the parties to any ecclesiastical censure. My
decided opinion is, that if parties were married according to
the forms which they considered, in accordance with their
religious opinions, binding upon them as a matrimonial con-
tract, the law would consider them as man and wife, and
would not allow a separation. If two persons married accord-
ing to the form of their own religion, they would undoubtedly
be held as lawfully married. If the parties themselves con-
sidered the marriage sufficient, and if in the opinion of per-
sons of character, of their own country and religion, it was
considered equivalent to a marriage, as if two Scotch per-
sons married according to the law of their country, it would,
on that basis, be considered sufficient and binding.

"The decree of the Council of Trent, declaring void all marriages which are not celebrated coram parocho and two witnesses, is not binding in any country in which that decree has not been duly promulgated, but there the old canon law still prevails as to the marriages of Catholics. The decree in its terms makes no distinction between Roman-catholics and Protestants, but practically it does not extend beyond the former; and its object was to do away with a great practical abuse respecting marriages among Catholics, and not in any way to strike at Protestants. That is the interpretation of the decree according to Layman's Course of Moral Theology; a work of the highest authority in all ecclesiastical matters, and cited in the judicial tribunals in Roman-catholic countries."

The preceding extracts are made from Dr. Wiseman's evidence, given before the objection was taken to his competency. After that objection was overruled, and he was 3 F

VOL. XI.

1844.

The SUSSEX Peerage. Evidence of the Right Rev. N. Wiseman,

D.D.

1844.

The SUSSEX

Peerage.

Evidence of the

Right Rev.

D.D.

desired to state the grounds of, and authority for, his opinion that by the law of Rome a marriage of two Protestants celebrated as before described, would be held valid there, he proceeded thus:

"I consider this case as a practical case: Supposing the N. Wiseman, case of a marriage, such as has been stated, came before the Roman tribunals, and it had to be decided whether for all civil purposes it was to be held good or not, the decision would be that they were to be considered as married, and the children would inherit. This is grounded upon the principle that the operation of that decree of the Council of Trent was not intended to have effect to the extent of annulling and invalidating Protestant marriages. I had just alluded to the decree, when the question of my admissibility as a witness. was introduced; but I had observed that this decree is under the peculiar condition of not coming into operation until 30 days after it is promulgated in each parish, and from that moment forward we find the opinion of theologians to have been, and decisions framed in conformity with that opinion, that in cases where Protestants married according to their own form, even in places where the Council of Trent was promulgated, those marriages were valid. It is true that in the decision of such cases there have been discrepancies, and that the decisions at Rome have varied, sometimes being given for the marriage, and sometimes against it; and irregularities, in consequence of that difference of opinion, have arisen. Pope Benedict XIV. has entered at great length into the question, and the grounds upon which it was decided. He issued a bull, addressed to the Bishops of Belgium, in which he pronounced marriages between Protestants in Belgium, though the Council of Trent had been there promulgated, to be valid. This bull, which goes at length into the question, is not a remedial one. It is not saying that they shall be considered as valid, and shall be valid in futuro, but it declares that they have all along been valid, notwithstanding the promulgation of the Council of Trent in those places; and he gives, in the recitals of the bull, the reasons of the decision; reasons which apply to any other similar case. He gives a variety of reasons, which it is not necessary to

enter into; but I may mention the principal, and those which he dwells upon most. First, that it could not be the intention of the Council of Trent to bind Protestants in any way, from the very fact of their having given 30 days to elapse between the promulgation and the operation of the decree, which could only be in order to enable Protestant powers to prohibit the execution of the decree; because, he says, it could not be expected that Protestants would go before a Catholic priest to be married: and, he says, if we admit, in the present case, those marriages to be invalid, we introduce the very evil which it was the intention of the Council to avoid, and we shall make the decrees of the Council a subject of dislike to Protestants, which it evidently was the object of the Council by that decree to avoid. Then he observes, that it would be contrary to the spirit of the Council to interfere in that way, inasmuch as it would produce a serious evil to the Catholic religion, which the Council themselves wished to avoid; which was that of fictitious conformity or fictitious conversion, for the purpose of getting rid of matrimonial arrangements: and he alludes to the danger there would be of persons that wished to become Catholics, being prevented by the fear of having to be considered as having lived until then in a state of concubinage. Those evils are such, that he cannot suppose the Council to have intended to produce them; and therefore he interprets the decree of the Council in such a way as not to invalidate the marriages of Protestants."

1844.

The SUSSEX Peerage.

Evidence of the

Right Rev. N. Wiseman,

D.D.

INDEX.

ABATEMENT, PLEA IN.

A plea in abatement is a dilatory plea, and must be pleaded
with strict exactness. Where, therefore, defendants in an
indictment in the Court of Queen's Bench in Dublin, pleaded
in abatement, that the indictment was found on the evidence
of witnesses who had not been sworn in Court, according to
the Act 56 G. 3, c. 87; but did not set out in the plea the
names of those witnesses, nor allege that there were no other
witnesses duly sworn on whose evidence the indictment was
found, nor allege that the witnesses on whose evidence it was
found, were not affirmed, the plea was held bad.-O'Connell
v. The Queen, p. 156.

And for the same reasons, a plea in abatement on the ground
that the swearing of the witnesses had not been duly certified
by the signature of the foreman or other member of the grand
jury, under the 1 & 2 Vict., c. 37, was held bad.-Id. ibid.
ACT OF PARLIAMENT. See RAILWAY COMPANY.

ATTORNEY AND SOLICITOR. See SOLICITOR AND CLIENT.
BILL OF LADING.

A carrier by sea, under a bill of lading of goods "to be delivered
in the like good order and condition at the aforesaid port of,
&c., all and every the dangers of the seas, &c. excepted, unto
Mr. or assigns, on paying for the said goods freight
and charges as per margin, with primage and average accus-
tomed," is not entitled immediately on the arrival of the
vessel, and without notice to the owner, to land the goods;