The Connection Between Mixed Marriages and the Delay in Civil Registration

The Chieftain

Civil registration of Catholic marriages, as well as births and deaths, only commenced in Ireland in 1864, a full generation (27 years) after such registration started in England. Why the delay, in what was supposed to be a united kingdom? The answer, at least in part, lies in the legal position with regard to mixed marriages in Ireland.

In short, it was illegal to for a Catholic clergyman to perform a mixed marriage in Ireland, or to marry Protestants, until 1870, and such marriages were legally null and void - non-marriages. The penalty for performing such a marriage was originally death, but this was later reduced to "only" transportation. Consequently, civil registration of Catholic marriages was opposed by the church as it would have provided legal evidence to convict clergy of this crime. This was not an idle threat. In 1846 a Catholic priest was convicted for marrying two Protestants, upon the prosecution of the local CoE&I rector, see page 395 et seq in the following law report of the case.
https://books.google.com/books?id=GBctAQAAMAAJ&pg=PA395&lpg=PA395&dq=1846+fr.+taggard+protestant+marriage&source=bl&ots=Qe0UJqk0od&sig=V9B_jhElF4hdB_u791R1OzsQVsc&hl=en&sa=X&ved=0ahUKEwjfh5PUyvHKAhXKOz4KHbR1AtEQ6AEIIDAB#v=onepage&q=1846%20fr.%20taggard%20protestant%20marriage&f=false

The Hansard record of the discussion of the new civil registration bill in 1863 contains multiple references to the issue of the illegal nature of mixed marriages as performed by Catholic clergy, as a primary concern with regard to the introduction of registration for Catholic marriages - one speech explicitly refers to the fact that such registrations could be used as evidence to prosecute Catholic clergy. See page 547 et seq. in the following
https://books.google.com/books?id=DH9JAAAAYAAJ&pg=PT360&lpg=PT360&dq=marriage+parliamentary+debates+1861&source=bl&ots=zEEDOrkCSj&sig=EanqGVogFCWhLoCbl1sIoqLEpv8&hl=en&sa=X&ved=0ahUKEwiDu5Lzj_HKAhXH4iYKHWoABGsQ6AEIIDAB#v=onepage&q=marriage%20parliamentary%20debates%201861&f=true

The history of the legal position with regard to mixed marriages performed by Catholic clergy in Ireland is set out in the Hansard record of a 1862 speech by the then Lord Chancellor, which confirms that
- Performing such marriages was originally a capital offense
- That at that time (1862), a priest celebrating such a marriage was subject to transportation
- That such a marriage was legally null and void
See page 972 et seq. in
https://books.google.com/books?id=8kQzAQAAMAAJ&pg=PA1011&dq=marriages+law+ireland+1861+george+ii&hl=en&sa=X&ved=0ahUKEwis8ryBpPHKAhWDQCYKHYoACu0Q6AEIJTAA#v=onepage&q=marriages%20law%20ireland%201861%20george%20ii&f=false

Finally, the legal prohibition against such mixed marriages was not repealed until 1870, see
http://www.irishstatutebook.ie/eli/1870/act/110/enacted/en/print

tabbey

Prior to disestablishment, the only statutory marriages were those conducted by an anglican clergyman, but the state recognised RC, Methodist etc marriages as marriage under common law.

While not doubting the veracity of the Chieftain's informative post, I always understood that the government wanted to include RC marriages in the 1845 civil registration, but that the church refused to co-operate, on the grounds that matrimony was a sacrament, and no business of the state.

pinkypinky

The background, which does include problems with dissenting Protestant churches and the Catholic church is well documented in the Irish Civil Registration book written by Eileen O'Dúill and Steven Smyrl. The book was produced in 2000, so it doesn't cover this century's advances in access (or indeed same sex marriage) but it is considered the standard work on the subject.

The Chieftain

tabbey wrote: »

Prior to disestablishment, the only statutory marriages were those conducted by an anglican clergyman, but the state recognised RC, Methodist etc marriages as marriage under common law.

What you say is of course, entirely true. However, to avoid any misunderstandings, I think I should point out that:
- The statutory aspect to CofE&I marriages arose primarily as a side-product of the implementation of the penal laws. There was no implication that I am aware of that a statutory marriage was somehow better.
- The state "recognition" of Catholic and other marriages was not a policy decision, but a direct consequence of the pre-existing legal position. In the areas of marriage and death, the common law position was that this was essentially an area of life governed by ecclesiastical cannon law - a church responsibility. Not that surprising given the established nature of the church(es) since medieval times.

tabbey wrote: »

While not doubting the veracity of the Chieftain's informative post, I always understood that the government wanted to include RC marriages in the 1845 civil registration, but that the church refused to co-operate, on the grounds that matrimony was a sacrament, and no business of the state.

I am not an expert on the 1844 Marriages (Ireland) Act, but a trawl through Hansard clearly shows that:
- The Act was introduced in response to Presbyterian ("dissenter") pressure, since 1842. A then recent court case had thrown the validity of some Protestant, but non-CofE&I, marriages into doubt, and there was great agitation to remedy this - this was the primary purpose of the Act.
- The registration of marriages aspect, introduced in the Act, is not even mentioned during the parliamentary debates, as far as I can see.
- Likewise, there is no mention of the Catholic church, or any concerns, in the recorded debates - in marked contrast to the 1863 debates, where these concerns were discussed at length.

That said, I am sure that many in the Catholic church would have had the attitude stated by tabbey. But please remember two things: First, that the then position, and historical position, was that marriage was governed by cannon law, not civil law. That being so, this was an encroachment by the state on an area historically entirely the concern of the church. Second, when state registration of Catholic marriages was finally debated and enacted in 1863, it was clearly the issue of the illegality of mixed marriages that dominated concerns - see the references in my original post.

The Chieftain

pinkypinky wrote: »

The background, which does include problems with dissenting Protestant churches and the Catholic church is well documented in the Irish Civil Registration book written by Eileen O'Dúill and Steven Smyrl. The book was produced in 2000, so it doesn't cover this century's advances in access (or indeed same sex marriage) but it is considered the standard work on the subject.

Steven was once a frequent and substantial contributor to soc.genealogy.ireland, but I have not seen him post for many a year now.

Dinny Byrne has Angina

The Chieftain wrote: »

C
In short, it was illegal to for a Catholic clergyman to perform a mixed marriage in Ireland, or to marry Protestants, until 1870, and such marriages were legally null and void - non-marriages. The penalty for performing such a marriage was originally death, but this was later reduced to "only" transportation. Consequently, civil registration of Catholic marriages was opposed by the church as it would have provided legal evidence to convict clergy of this crime. This was not an idle threat. In 1846 a Catholic priest was convicted for marrying two Protestants, upon the prosecution of the local CoE&I rector, see page 395 et seq in the following law report of the case.

But the instant prosecution may easily be distinguished from any hypothetical prosecution for solemnizing a mixed marriage. The instant case involves two Protestants.

P. 399 of the Reports, in the judgment of Blackburne C.J., makes clear that criminal penalties for having performed a prohibited marriage were first abolished in 1833; there is some ambivalence as to whether a criminal penalty was later created, but the Court specifically says that it does not concern itself with this question.

Although RC-solemnised marriages as between two Protestants remained invalid, there is no mention of a criminal penalty in that judgment… let alone a criminal penalty for having performed a mixed marriage.

Personally I think the idea of transportation was very much an idle threat, if indeed it was a threat at all, after 1833.

Mixed marriages seem to have been treated relatively casually in the 19th century, from what I can see (at least, relative to Ne Temere) and I have a hard time accepting this as a real reason for the delay in civil registrations in Ireland.

The Chieftain

Dinny Byrne has Angina wrote: »

But the instant prosecution may easily be distinguished from any hypothetical prosecution for solemnizing a mixed marriage. The instant case involves two Protestants.

Not so, as there is no such distinction. Both possibilities are covered by the same sections in each of the original Acts which made it illegal for a Catholic priest to perform a marriage ceremony where either one or both parties were Protestant (12 George II, Chapter 3, Section 1; and 19 George II, Chapter 13, Section 1).

Dinny Byrne has Angina wrote: »

P. 399 of the Reports, in the judgment of Blackburne C.J., makes clear that criminal penalties for having performed a prohibited marriage were first abolished in 1833; there is some ambivalence as to whether a criminal penalty was later created, but the Court specifically says that it does not concern itself with this question.

Although RC-solemnised marriages as between two Protestants remained invalid, there is no mention of a criminal penalty in that judgment… let alone a criminal penalty for having performed a mixed marriage.

Personally I think the idea of transportation was very much an idle threat, if indeed it was a threat at all, after 1833.

Your position has an obvious inconsistency or self-contradiction. If such marriages were not criminal then it would not have been possible to prosecute and convict a priest for performing such a marriage in 1846, would it? The case report specifically says the priest was accused and convicted of a felony. The penalty for the crime did not have to be discussed because the default penalty for a felony was transportation (and in any case this is the case report of an unsuccessful appeal of the conviction, not the original trial). I would also note that if your assertions were correct, then it would make a nonsense of the Lord Chancellor's 1862 speech on the subject of marriage law in Ireland.

Dinny Byrne has Angina wrote: »

Mixed marriages seem to have been treated relatively casually in the 19th century, from what I can see (at least, relative to Ne Temere) and I have a hard time accepting this as a real reason for the delay in civil registrations in Ireland.

Well, if you don't want to believe the official record of the Parliamentary debates on the subject, then clearly nothing further I say will change your opinion. Finally, I see no purpose in bringing up Ne Temere - I would suggest a separate thread if you really want to pursue some point about that.

pedroeibar1

pinkypinky wrote: »

The background, which does include problems with dissenting Protestant churches and the Catholic church is well documented in the Irish Civil Registration book written by Eileen O'Dúill and Steven Smyrl. The book was produced in 2000, so it doesn't cover this century's advances in access (or indeed same sex marriage) but it is considered the standard work on the subject.

I fully agree.
A law is only as good as it is exercised. Debating a law that remained on the Statute books and suggesting that it would lead to transportation of priests in the 19th century is futile – transportation of priests did not happen. In any event, transportation was more or less over by 1850 for criminals, as Australia & Tasmania did not want them. It was had been actively used under the Coercion Act of 1847 as a result of the Famine - in the year 1849 in Co. Clare for e.g., 341 people were transported, a figure that is more than double the number (161) transported during the nine year period of 1836 to 1844 (a yearly average of scarcely 18). Sixty percent of them had been convicted of crimes involving animal theft, mostly sheep stealing; a very high proportion were from the ‘labouring’ class. Not a priest convicted. In that era many ships were not allowed call/land at Capetown and contemporary Australian/Tasmanian newspapers railed against “taking the dregs” from the English/Irish jails. Even the Governor of Bermuda sent many of the young transportees back to Ireland after a short stay, stating that they had been “rehabilitated”.
Nothing to do with genealogy, IMO, other than to flag being careful with some received “wisdom”.

The Chieftain

pedroeibar1 wrote: »

I fully agree.
A law is only as good as it is exercised. Debating a law that remained on the Statute books and suggesting that it would lead to transportation of priests in the 19th century is futile – transportation of priests did not happen. In any event, transportation was more or less over by 1850 for criminals, as Australia & Tasmania did not want them. It was had been actively used under the Coercion Act of 1847 as a result of the Famine - in the year 1849 in Co. Clare for e.g., 341 people were transported, a figure that is more than double the number (161) transported during the nine year period of 1836 to 1844 (a yearly average of scarcely 18). Sixty percent of them had been convicted of crimes involving animal theft, mostly sheep stealing; a very high proportion were from the ‘labouring’ class. Not a priest convicted. In that era many ships were not allowed call/land at Capetown and contemporary Australian/Tasmanian newspapers railed against “taking the dregs” from the English/Irish jails. Even the Governor of Bermuda sent many of the young transportees back to Ireland after a short stay, stating that they had been “rehabilitated”.
Nothing to do with genealogy, IMO, other than to flag being careful with some received “wisdom”.

The law was exercised - I already gave the reference for a conviction. I see multiple other prosecutions within a year of that case alone.
I have supported my case with references to the actual laws, to a government exposition of the legal position in Parliament (made by the Lord Chancellor), to the parliamentary debates on the subject, and with references to actual documented cases. Can you similarly support your position?

I would also add that:
- The connections to genealogy seem both important and clear: a) the delay in civil registration, b) the effect on the validity of marriages and, c) the effect on the legitimacy of children.
- Others have previously put forward different interpretations for the delay in starting registration in this forum.
- The interpretation I advocate has the singular advantage that it is directly grounded on the official legislative record.
- The different interpretations for the delay in civil registration are not mutually exclusive.
- However, the legislative records says repeatedly that the threat of prosecutions of Catholic clergy for marrying a Protestant was a key factor.
- The priest convicted in Co. Down in 1846 avoided transportation by the expedient of absconding.
- The Co. Down case was not unique. Within a year there were two prosecutions of Catholic clergy in Co. Waterford for performing mixed marriages in 1846/47, another case in Co. Down, a case in Tyrone, a case without stated location, etc.
- The last transportations from Ireland to Australia were not until 1868.

KildareFan

Just to add that the Mullingar marriage register has several references to regularising clandestine marriages - prior to the civil registration of marriages.

tabbey

KildareFan wrote: »

Just to add that the Mullingar marriage register has several references to regularising clandestine marriages - prior to the civil registration of marriages.

Did the register explain what was meant by regularising clandestine marriages?
Did it mean a marriage that had been solemnized in a RC church, but not entered on the parish register, or one that took place in the church of another denomination.?

Perhaps I was mistaken in assuming you meant Mullingar RC register.

pedroeibar1

The Chieftain wrote: »

.........
- However, the legislative records says repeatedly that the threat of prosecutions of Catholic clergy for marrying a Protestant was a key factor.
- The priest convicted in Co. Down in 1846 avoided transportation by the expedient of absconding.
- The Co. Down case was not unique. Within a year there were two prosecutions of Catholic clergy in Co. Waterford for performing mixed marriages in 1846/47, another case in Co. Down, a case in Tyrone, a case without stated location, etc.
- The last transportations from Ireland to Australia were not until 1868.

Bad idea to edit/revive old posts but thanks for notifying me by PM. I repeat there were no priest transportations, the prosecutions you mention in your edit were - by your own admission - private ones and have to be viewed in the context of the era.

After Catholic Emancipation the RCC tried to institute a better control over its flock as did the Established Church. For example the Dublin diocesan statutes of 1831 declared that funeral masses be held in a church, (the purpose was to avoid excessive drinking/rowdyism at wakes + to increase their fee income). Fr. Matthew’s temperance movement started in the 1830’s was also a move by the RCC into the public domain, as were their antics on the education acts. While the Kildare Place Society was non-denominational, the RCC was decidely against it covertly. Then, under the administration of Archbishop Cullen, RC weddings and baptisms had to be in a church, rather than the home or a priest’s house. A look at the shambles of many BM registers from that era indicates the manner in which entries were made and many probably missed because a piece of paper was lost.

The Churchs' controls did not always work, for various reasons (for RCC mainly priest : congregation ratios) or have much effect until the immediate pre and post-Famine era when much was happening within all religions. Within the C of I, the Church Temporalities Act halved the number of bishoprics (22 to 12), and it created the Ecclesiastical Commissioners as a ‘management’ body - modernization. Tithes were also sorted by government intervention in 1838. Many C of I clerics saw a big threat from the RCs and indeed from within, as there was a spread of evangelism– the Darbyites for e.g. leading to the “Plymouth Brethren”. Historic practices were being shoved aside – e.g. the fuss against the sale of advowsons started at this time – and staid institutions hate change. One could not find more staid than the 19c RCC or C of I.

All these ‘modernizations’ led individual clerics from both sides of the RC / C of I. divide to worry about their institutions and many launched what we today would call a “PR War”. This particularly came to the fore in the 1840s when some CofI clerics jumped on the bandwagon of a few high-profile conversions of RC priests to the C of I and the latter actually intervened to ‘muzzle’ some of its more vocal anti-RC supporters. One case I recall is that of Rev. Braseby, a Kerry PP who “recanted” from his pulpit and there was fear of riot the feelings ran so high – nothing happened because both hierarchies muzzled their war-dogs and preached peace messages.

Simply because a law is on the statute books does not mean it will be enforced – it was only a year or so ago that we repealed a declaration of war against France. (1744)

The Chieftain

pedroeibar1 wrote: »

Bad idea to edit/revive old posts but thanks for notifying me by PM. I repeat there were no priest transportations, the prosecutions you mention in your edit were - by your own admission - private ones and have to be viewed in the context of the era........snip...
Simply because a law is on the statute books does not mean it will be enforced –

It is untenable to say it did not happen when there are at least five documented cases of the law being actively enforced from within a single year. A priest was duly convicted, and the penalty was transportation. That he was not transported was only because he fled. And the fact that some, but not all, of the prosecutions were private has no real relevance - anyone could and did prosecute in that era.

As for the lengthy portion I "snipped" in my reply, I fail to see its relevance to the point at hand. Indeed, I have to say that bringing up random "Catholic this, Protestant that" type points is very unfortunate.

pedroeibar1 wrote: »

it was only a year or so ago that we repealed a declaration of war against France. (1744)

The war of 1744 was followed by the peace of 1748, was the peace repealed too? "Repealing" a British declaration of war from 1744 is inane - how can one repeal an historical declaration of war, it is a fact! Is it now the legal position in Ireland that the actual war "did not happen"?

pedroeibar1

The Chieftain wrote: »

It is untenable to say it did not happen when there are at least five documented cases of the law being actively enforced from within a single year. A priest was duly convicted, and the penalty was transportation. That he was not transported was only because he fled. And the fact that some, but not all, of the prosecutions were private has no real relevance - anyone could and did prosecute in that era.

As for the lengthy portion I "snipped" in my reply, I fail to see its relevance to the point at hand. Indeed, I have to say that bringing up random "Catholic this, Protestant that" type points is very unfortunate.

The war of 1744 was followed by the peace of 1748, was the peace repealed too? "Repealing" a British declaration of war from 1744 is inane - how can one repeal an historical declaration of war, it is a fact! Is it now the legal position in Ireland that the actual war "did not happen"?

At the outset, I reiterate that it is “bad form” to repeatedly edit posts to suit a post facto view.

Calling “inane” my comment on the repealing of a law is both factually incorrect and language that – thankfully - is not the norm among the users of this forum. From my memory one of the bits of your post that you deleted was “How could Ireland have declared war?” It is quite simple – Ireland was a separate Kingdom in 1744 and had more or less been so since the Crown of Ireland Act of 1542. Let’s ignore the passing of the title “King of Ireland” to Philip of Spain, Papal Bulls “Ilius”, Cromwell’s Commonwealth, etc., and skip to 1660 when King Charles II returned from exile in France to become King of England, King of Scotland and King of Ireland. By the 1700’s and the Hanoverians, George II’s official title was “George the Second, by the Grace of God, King of Great Britain and Ireland, Defender of the Faith, Duke of Brunswick-Lüneburg, Archtreasurer and Prince-Elector of the Holy Roman Empire". At one stage he also claimed to be King of France but I cannot recall when that was dropped (before 1744 obviously or he would have been declaring war on himself!):D That Ireland had separate Kingdom status remained the position until the Act of Union in 1800.

Ireland as a new State assumed an existing body of legislation, which meant that anything on the statute books became law until it was repealed. Repealing the 1744 Declaration of War against France was one such recent example, as are others (2006-onwards) excluding “mere Irish” from jury service, being nice to Ann Boleyn, practicing witchcraft, forcing French men pay a discriminatory tax, forbidding Jews from owning armour, banning beards on Irish men (good idea, that!), adding grease/fat to Coffee beans (the Adulteration of Coffee Act 1718) and stipulating that only “those of English race” could be received into religious orders in Ireland. It never was anywhere suggested the French war never happened, “repealing” a declaration of war relates to the declaration, not the war.

Your Opening Post has little bearing on “The Connection Between Mixed Marriages and the Delay in Civil Registration” because you do not join any dots, you just write about a couple of prosecutions that had no bearing on Civil Registration. Furthermore, your interpretation of the events surrounding the prosecutions is biased. It ignores several key factors (which I outlined above and have been ignored by you) and as a result you give a skewed perspective as to the motivation for the prosecution in the case you cite. For decades a marriage of two Protestants solemnised by a RC priest was valid. Then came Acts (among them the 19 of George II*) making the marriage null & void and subjected the clergyman to penalties. Other Acts on the matter were passed under George II but importantly, later, the 3 and 4 of William IV c102 abolished the penalties but left the marriage void. This gave rise to serious legal issues with inheritance (if the marriage was void, any children were illegitimate). No penalty, how could policing marriage be enforced?! This was of major concern in an era when property rights and inheritance were paramount. However, there were legal arguments (loopholes) that needed closure. That is why “The evil that arose was at length corrected by the Legislature” (quoting a trial judge) and to remove all doubt, the 7 & 8 Vic. C81 were enacted.

The pivotal point in the case you described was grounded on Section 45 of the Victorian Act which in short states that anyone who solemnises a marriage or a pretend marriage in a place other than a Church or chapel according to the rites of the United Church of Ireland and England shall be guilty of a felony. Importantly S45 concludes “except in the case of a marriage by any Roman Catholic Priest, which may now be lawfully celebrated” (my emphasis). This was central to the defence used by the RC priest. The Chief Justice (Blackburne) was of the view that the “lawfully celebrated” marriages by a RC priest related to those performed within his own RC community, that the clause was there (and rightly so) to allow the priest to go about his business within his community and it did not imply that a RC priest could go around marrying Protestants.

Frankly I do not see the point of your opening post as it is irrelevant to genealogy because it adds nothing to Civil Registration. The entire thread, while it might be of interest to some is quite OT to the topic of this Forum. I hope it’s closed before I get infracted for being OT.

*Coincidentally it was a year after our Declaration of War on France, , the 19 of George II c. 13 An Act for annulling all Marriages to be celebrate by any Popish Priest between Protestant and Protestant, or between Protestant and Papist entered onto the Statute books.

pinkypinky

All right, this thread has descended and now has little relevance to genealogy. If you want to argue the merits or otherwise, it's more suited to the History forum. Thread locked.