(Ante, vol. xii. p. 586.)
Subject_Church — Parish quoad sacra — Marriage — Proclamation of Banns.
Held ( aff. judgment of Court of Session) that the proclamation of banns is one of the functions and duties of the office of minister of a church erected into a parish church under the Act 7 and 8 Vict, c. 44, for the district attached thereto as a parish quoad sacra.
This was an action at the instance of the Rev. R. S. Hutton, the minister of the parish of Cambusnethan, and other members of the kirk-session of that parish and the session-clerk, “against the Rev. Alexander Harper, M.A., minister of the quoad sacra parish of Wishaw, and others, constituting, or claiming to constitute, the kirk-session of the said quoad sacra parish of Wishaw, and John Mackenzie, distiller at Wishaw, clerk to the kirk-session of the said quoad sacra parish of Wishaw,” concluding for
declarator “that the defenders are not, and that none of them is, entitled to make proclamation of banns of marriages in the church of the quoad sacra parish of Wishaw, or to cause or permit proclamations of banns of marriages to be made in the said church, or to demand, exact, or receive dues or fees in respect of such proclamations made in the said church, and that proclamations of the banns of marriages made in the church of the said quoad sacra parish of Wishaw have not been and are not legal or valid, but are, on the contrary, illegal and invalid;” and to have the defenders interdicted from “making proclamations of banns of marriages in the church of the said quoad sacra parish of Wishaw, and from causing or permitting proclamations of the banns of marriages to be made in the said church; as also, from demanding, exacting, or receiving dues or fees in respect of proclamations of banns of marriages made or to be made in the said church.”
The case having been argued before the Judges of the Second Division with three Judges of the First Division, judgment was pronounced assoilzieing the defenders from the conclusions of the summons.
The pursuers appealed.
At delivering judgment—
Now, my Lords, the question is simply this. The district of Wishaw was disjoined from the parish of Cambusnethan, and was constituted under an Act of Parliament, to which I shall have to refer, —a parish” or “district” “ quoad sacra.”
I am using the words which are found in the Act of Parliament. The question is, Where are the banns of marriage to be published under those circumstances? If persons within the disjoined district are about to be married, and desire to have their banns published, are they to have them published in the kirk of the old parish, or in the kirk of the disjoined district? My Lords, that depends upon the exact meaning to be given to the word “parish” and the other terms used in the Act of Parliament; but of course your Lordships cannot overlook the strong a priori probability that if persons are about to treat marriage as a religious ceremony (of course in Scotland it is not necessary that it should be so treated), but if they are about so to treat it and comply with those regulations which prescribe publication of banns, any arrangement for the disjoining of a district would have carried with it the power and right to have banns under those circumstances published in the kirk where the persons who were about to be married were in the habit of attending, and the district where they resided.
But, my Lords, we must put aside the a priori probability, and look exactly to what the Act of Parliament has said. Now, the Act of Parliament has provided that where the necessary preliminaries which I will not refer to have taken place the Commissioners of Teinds are authorised to erect the new church “into a parish church in connection with the Church of Scotland, and to mark out and designate a district to be attached thereto quoad sacra, and to disjoin such district quoad sacra from the parish or parishes to which the same or any part thereof may have belonged or been attached, and to erect such district into a parish quoad sacra in connection with the Church of Scotland.” My Lords, if the Act stopped here, of course we should have to inquire what is the proper meaning to be assigned to those words “parish quoad sacra.” But the Act does not stop there; it goes on to say, “and it shall and may be lawful for the ministers and elders of such parish to have and enjoy the status, and all the powers, rights, and privileges of a parish minister and elders of the Church of Scotland.” Now, my Lords, the minister and the elders constitute together the kirk session of the parish, and it is admitted that the disjoined parish is to have a kirk-session. The kirk-session therefore is to have all the powers, rights, and privileges which a parish minister and elders of the Church of Scotland have. My Lords, these words of course must mean not with reference to the whole of Scotland but with reference to the disjoined parish, and therefore your Lordships have here an enactment that the disjoined parish shall have a kirk-session, and that that kirk-session shall have in the disjoined parish all the rights of any parish minister and elders of the Church of Scotland in any parish.
My Lords, it is not denied, even if we stopped here, that one of the rights and one of the duties of a kirk-session is to require the publication of banns, and by the discipline of the Church to insist upon and enforce the publication of banns. Therefore your Lordships have to ask this question, in the face of the general words which I have read, and in the face of an Act of Parliament which says that the parish minister and elders of this disjoined parish shall have all the rights of the parish minister and elders of a parish in Scotland—What reason is there for taking out of those general words the right connected with the enforcing of the publication of banns, and for saying, whereas the Act of Parliament says that the kirk-session shall have all rights, your Lordships are to interpret that Act as meaning that the kirk-session shall have all rights, minus this important right of enforcing the publication of banns?
But, my Lords, let me go a step further and ask your Lordships whether the publication of banns does not come under the words quoad sacra, and is not one of the rights which in Scotland would be termed inter sacra. Now, your Lordships have not here to consider by any abstract standard what things should be called sacra and what things profane. What we have to inquire is, what has been considered in the Kirk of Scotland inter sacra? And my Lords, let us put aside altogether any question of civil enactment and turn to the law of the Kirk alone, commencing from the earliest times—commencing with the Book of Discipline as it is called,
Then, my Lords, it is said that the publication of banns has been regulated or in some way dealt with by civil enactments. But, my Lords, in what way has it been dealt with? The Act of 1661—the Act of Charles the Second—states by way of preamble that “Our Sovereign Lord and the Estates of this present Parliament, considering how necessary it is that no marriage be celebrated but according to the laudable order and constitution of this Kirk,” that is to say, of the Kirk of the realm, and yet that persons “do procure themselves to be married and are married either in a clandestine way, contrary to the established order of the Kirk, or by jesuits, priests,” “or any other not authorised by this Kirk,” therefore His Majesty, upon the advice of the Estates, ordains that “whatsoever person or persons shall hereafter marry or procure themselves to be married in any clandestine and inorderly way, or by jesuits, priests, or any other not authorised by this Kirk, that they shall be imprisoned.” Therefore your Lordships observe that the civil enactment refers to the, order and the discipline of the Church, and brings to bear the weight of the civil authority, not in support of some independent enactment of its own, but of that which at that time is recognised and referred to as the law and the order of the Kirk.
It might have been said—it might be said at the present day—The State will recognise in Scotland no marriage but a marriage performed by a religious ceremony, and according to the order either of the Kirk of Scotland or of any religious denomination in Scotland. But, my Lords, if the State thought fit to say so, would that alter the nature of the marriage?
Would it make it cease to be a religious ceremony? Clearly not. On the contrary, it would be the strongest affirmation by the State that it was a religious ceremony. And so here your Lordships have the Act of 1661 pointing to the religious ceremony and that which preceded it, the marriage according to what then was the order of the Kirk, and the publication of the banns, which was required, as that which was to be complied with and to be enforced through this Act of Parliament. My Lords, it appears to me that neither this Act nor any which followed it in the slightest degree alters the nature of the publication of the banns by merely enacting that the law of the Church shall be complied with.
My Lords, that really is the whole of this case. But for the elaborate argument which your Lordships have heard, I should have been well content to say that I concur with every word which has been expressed in the Court below, and I particularly refer to the very concise and pointed judgment of the Lord Justice-Clerk, which appears to me to exhaust entirely the whole of the case. I therefore submit to your Lordships that the interlocutor appealed against should be affirmed and the appeal dismissed with costs.
By the 7th and 8th Vict. c. 44, sec. 8, it is enacted that the minister and elders of a quoad sacra parish shall have and enjoy all the powers, rights, and privileges of a parish minister and elders of the Church of Scotland. The House has therefore to determine what is the power of a minister and elders of a parish in Scotland in respect to the publications of banns of marriage. The duty of publishing banns is attached to the office of clerk of the kirk-session, and the due publication of the banns must be certified by him, his certificate not being traversable. The question is, whether all this is done by the sole authority of the clerk of the kirk-session, and without his requiring any sanction enabling him to perform these duties?
The Lord Ordinary, answering the argument of the defenders, is of opinion that they are mistaken in supposing that the power to proclaim banns is one of the rights and privileges of the minister and elders of a quoad sacra parish. I may observe that the question is not here quite accurately described, as the important word “powers” is omitted, and it is confined to the other words “rights and privileges.” The Lord Ordinary thinks it is “no part of a parish minister or an elder's duty to make proclamation of banns. It is the duty of the session-clerk of the parish to do so, or to get this done by the precentor.”
According to the view which I have taken of the case, it seems to me not essential to determine whether the publication of banns is inter civilia or inter sacra, because, whether it belongs to the one or other class, it is in my opinion equally within the power of the minister and the elders. But taking as I do the opinion of Lord Ardmillan as a correct description of the nature and character of the publication of the banns, it is clear that it must be regarded as a matter of ecclesiastical regulation. He says—“The proclamation of banns is a step of orderly procedure in the celebration of marriage by which religious sanction is given to the marriage.” “It is not, I think, a step of civil procedure in the constitution of marriage, but a step of discipline in the orderly ecclesiastical procedure by which the Church gives sanction, seriousness, and solemnity to marriage as the most important and abiding of all human contracts.”
But suppose it should be regarded as a mere civil proceeding, this would not advance the case of the appellants. At an early stage of the argument I put the question to the Lord Advocate, whether the clerk of the kirk-session could publish the banns by his own authority without the direction of the ministers and elders? and I received, as I expected, an answer in the negative, and this seemed to me at once to conclude the case against the appellants.
The correctness of the answer is proved by the Act of the General Assembly of 1784. By that Act the General Assembly resolved—“That no session-clerk in this Church proclaim any persons in order to marriage until he give intimation to the minister of the parish in a writing dated and subscribed by him, of the names, designations, and places of residence of the parties to be proclaimed, and obtain the said minister's leave to make the said proclamation.” It follows that it is by the authority and direction of the minister, or of the minister and elders, that proclamation of banns can be made. Therefore this must be one of the powers possessed by the ministers and elders of the quoad sacra parish of Wishaw under the provisions of the Act of the 7th and 8th Vict. cap. 44.
I agree that the interlocutor appealed from should be affirmed.
Under the statute a parish quoad sacra has been erected, and the first question is, Whether the publication of banns is to be considered as inter sacra, so as to put it under the direction of the ecclesiastical authorities of the parish so erected? I have no doubt that it is. The institution of banns was purely of ecclesiastical origin at an early period of the history of the Christian Church, and at that time, at all events, there could have been no question that it was to be held inter sacra. The civil state had nothing to do either with the creation or with the regulation of it. It has continued throughout Christendom always under Church control; and in Scotland we have it clearly shown that it has remained so till the present hour. The obligation to publish was not cast upon the contracting parties by any statute of the realm, and its enforcement is effected by ecclesiastical censures, assisted to some extent by the civil power. The publication does not concern the constitution of the marriage, but it is made by ecclesiastical authority a proper preliminary to it for the avoidance of clandestinity and the prevention of fraud, and those who disobey it are properly described in a book of much authority as “transgressors of a very comely and rational Church order.” All this being so, it seems to me plain that the usage so established and so kept in action is a part of the ecclesiastical discipline of the Scottish Kirk and must be numbered inter sacra, and that the parishioners of Wishaw must therefore publish their banns in their own parish church and not in any other.
On this view alone the judgment we are considering is sufficiently sustainable. But even if that view were doubtful, the terms of the Act of the 7th and 8th Vict. c. 44, seem to me decisive of the question. When a parish quoad sacra is erected under that statute, the provision of the 8th section is—that “it shall and may be lawful for the minister and elders of such parish to have and enjoy the status and all the powers, rights, and privileges of a parish minister and elders of the Church of Scotland.” Surely it is amongst the “powers, rights, and privileges” of the ministers and elders of a Scottish parish to require and compel the parishioners to publish the banns of marriage according to the law of their Church. It is also amongst their duties and liabilities which their ecclesiastical superiors will oblige them to fulfil. The words of the section are general, and have no limitation either in any other portion of the Act or in the provisions of any code of discipline, or in the reason of the thing. And on this second ground, even if I doubted, as I do not, with reference to the first, I think the appellant's contention cannot be supported.
The argument from inconvenience is not to be lightly entertained, and never for the purpose of construing a statute which is clear in its terms, and indicates unmistakeably the purpose of the Legislature. When the terms are obscure, and the purpose therefore more or less doubtful, it may help to a right understanding of them; and in the present case the respondents might fairly pray it in aid if, on the points to which I have already adverted, their case was not impregnable. It is difficult to conceive that the object of the publication of banns being, in the words of Mr Erskine (Principles, i. 6), “to prevent bigamy and incestuous marriages,” and to prevent them by inviting objections, which may prevent or defeat fraud and misrepresentation, it could have been intended to direct it in a parish other than that in which the contracting parties are resident, and where evidence might most easily be found of their actual status and relations with their neighbours. To require it to be made in a
My Lords, on these grounds I am clearly of opinion that the appeal should be dismissed.
Appeal dismissed and judgment affirmed.
Counsel for Appellants— Lord Advocate (Gordon)— Cotton, Q.C. Agents— Grahames &Wardlaw, Westminster—Ronald, Ritchie, & Ellis, W.S.
Counsel for Respondents— Fitzjames Stephen, Q. C.— Gloag. Agents— William Robertson, Westminster—W. &. J. Burness, W.S.