Thursday, September 22, 2011

Bastards by Queen's Bench Decree

A great new controversy swept over Ulster in the last summer of 1841. At that time, John Martin was taking another trip, this time east to Europe. The insult to his Presbyterian religion which was causing great anger amongst his friends and neighbors was waiting when he returned. No need for him to abandon his time in Belgium, Germany, and Italy to return home.
Every August, summer court sessions, Assizes, took place across Ireland. No one foresaw the problems that would flow from a minor court case in the Armagh Assizes. A rather uncouth man named Samuel Smith was on trial for bigamy. The facts seemed straight forward. He had married Jane Gordon from Portadown in 1839. Since he had had married another woman 8 years before, the court case seemed routine. And it was except for the unique defense Smith mounted. He claimed that his first marriage was illegal as he was a member of the Church of Ireland, and any marriage with a Presbyterian, performed by a Presbyterian minister was forbidden, the exact conditions under which his first marriage had taken place.

The jury didn't accept his defense, and found him guilty. His sentence of transportation would leave 2 wives destitute. But his lawyer made a legal issue that should be heard separately. Presiding Judge Crampton ordered the issue to be heard at the Queen's Bench later in the year.

Presbyterians expected that the legal challenge would be dismissed, as such marriages had been taking place for generations. Still, John was following the subject closely. The Queen's Bench heard the case in Dublin on November 26, 1841. The arguments centered about precedents in Irish Common Law. Smith's lawyer argued that Common Law required couples to be married by someone in Holy Orders. No Presbyterian Minister held such elevated status, and therefore none had the right to perform marriages.

The Irish government assigned their leading law official to argue the case for the Crown. He argued that marriage was a civil contract under Common Law. Therefore, no minister of any kind was required. Whether or not the presiding clergyman had Holy Orders was therefore of no relevance.

The ten judges who heard the arguments took their time with the issue, so the decree wasn't issued until January 11, 1842. By a vote of 8 to 2, the judges voted that Presbyterian ministers had no right to perform a marriage where one of the participants was a member of the Church of Ireland. With that pronouncement, Smith became a free man, thousands of children born to these illegal marriages became bastards under the law. Men who believed themselves legitimately married could now abandon their wives. Settled inheritances could be claimed by others.

Presbyterians erupted in anger at this insult to their ministers who were now regarded merely as teachers, and to the insult to their religion. Meetings were immediately called at which resolutions making this fury very clear were voted and dispatched to Parliament. Uniformly, they demanded that Parliament undo the damage that had been done, and quickly too. For John, there was a personal element to the problem, as his Uncle James Harshaw had married Sarah Kidd, who was a member of the Church of Ireland. So their 10 children had become bastards too.

The new session of Parliament began on February 3rd with high Presbyterian expectations that Parliament would quickly vote to legalize the mixed marriages and validate the right of Presbyterian ministers to resume performing them. Daniel O'Connell raised the issue, pointing out all the legal problems that followed the decision.

Conservative Prime Minister Sir Robert Peel rose to speak. He assured Irish Presbyterians that he planned to introduce a bill that would remedy the problems. All existing marriages would soon be legal. However, he had yet to decide whether or not Presbyterian ministers would have their rights to marry mixed couples restored.

Local Presbyterians wanted their voices heard on this critical issue. A meeting of ministers and elders of local churches was held at the 1st Presbyterian Church in Newry to pass their own resolutions. John's uncle Harshaw was present and could provide a first hand account of what was said and done at the meeting. They demanded full marriage rights that extended into the future as well as correcting the threats to existing marriages. Rev. Mr. Weir, minister of the 1st Presbyterian Church, offered both appeal and veiled warning. "The link which the Presbyterians of Ulster formed in British connection-their well known respect for the laws, demanded and deserved this from the Government and Legislature of the Empire."
Sandys Street Presbyterian Church

Corrective legislation was introduced in Parliament ot Thursday February 24th by Lord Eliot, the current Lord Lieutenant of Ireland. He claimed that Presbyterian marriages were performed in a "very irregular manner." There was no licence, no notice, and the ceremonies were often performed by "degraded ministers." This distressing situation would end with the passage of the legislation the Conservatives had written. All previously performed marriages would be recognized, but no more would be permitted. Though the Church of Ireland opposed even this moderate proposal, it quickly passed both Commons and Lords.

Presbyterians' religion had been denounced and degraded. They had no intention of acceding meekly to such an injustice. Rev. Henry Cooke, minister of the May Street Presbyterian Church in Belfast spoke for the offended religion. How dare Parliament remove rights that ministers had held for 200 years.  How dare the Church of Ireland and its leaders in Parliament treat their ministers as mere teachers.

Rev. Cooke spoke to the General Assembly of the Presbyterian Church in Belfast to amplify his objections. "It was necessary for the friends of Presbyterian honor and rights to stiffen the sinews of war, for they were employed in carrying on a great warfare. They were fighting for their ancient 'status' and for their precious priviledges and rights, civil and religious."  These words reflected the spirit of the Ulster Presbyterians. Rev. Cooke expected that they would be sufficiently threatening to prompt Parliament to revisit the issue and undo the damage of the previous legislation.

There were other warnings as well, one from John's friend George Henderson, editor of the Newry Commercial Telegraph. "We tell them that they must promptly change their policy, else they will lose for ever the confidence of the Conservative party in this country and alienate the affections and sympathies of the best, the most orderly, the most loyal and the bravest of her Majesty's subjects-men who, should troublelous times arise, would stand side by side with England in the quarrel, and cheerfully face every danger, and peril life and limb in the maintenance of the Union."

Despite these strong words, the British government felt confident that Presbyterians would never align themselves with the Irish Catholics in opposition to Union with England. And in this supposition, they were right. No action was taken until 1844, and there was no Presbyterian revolt in Ireland. Rev. Cooke continued to talk to Prime Minister Peel, and helped work out the legislation that finally ended the dispute. Ministers would be able to perform mixed marriages but with restrictions that didn't apply to the clergy of the Church of Ireland, such as published notice of intent, and longer waiting periods. They would not be allowed to marry a Presbyterian to a Catholic. The bill passed in August 1844, but the hard feelings lasted much longer.
Robert Peel

To John, this was just another example of the kind of legislation that the English inflicted on the Irish. Before the legislation passed, John had taken a step that changed the whole course of the rest of his life.

Sources: The Newry Commercial Telegraph; Hansard Parliamentary Debate; 1844 Marriage Act and Its Consequences: Political-Relgious Agitation and Its Consequences for Ulster Genealogy, Brian T. McClintock.

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