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"any marriage ceremony in Ireland, which ceremony is not now valid under the existing laws, or to the repeal of any enactments now in force, for the preventing the per"formance of the marriage ceremony by degraded clergy"men." Thus the Imperial legislature constantly treats marriage as a religious ceremony, and carefully preserves in force the enactments by which it is a capital felony for a degraded clergyman to celebrate marriages (a). There would be no use in preserving these enactments in force, if marriages could be effectually had by mere contract of matrimony without the presence of a priest.

The 58 Geo. III. c. 84, which enacts, that marriages celebrated by ministers of the Church of Scotland, in the British territories in India, between persons both, or one, of whom are members of the Church of Scotland, shall be valid, has been relied on at the other side(b). That Statute enacts, that "all marriages between persons, both or "one of such persons being members or member, of or

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holding communion with the Church of Scotland, and "making a declaration to the effect hereinafter mentioned, "which marriages shall be had and solemnized within the "British territories in India, by ordained ministers of the "Church of Scotland, as by law established, and appointed "by the United Company of merchants of England,

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trading to the East Indies, to officiate as chaplains "within the said territories, shall be and shall be adjudged, "esteemed and taken to be, of the same and no other "force and effect, as if such marriages were had and solem"nized by clergymen of the Church of England, according "to the rites and ceremonies of the Church of England."

(a) See R. v. Sandys, Jebb's Crown and Presentment Cases, 166: Sandys' case, 1 Irish Circuit Rep. 10. Sentence of death was recorded three several times against the defendant in those cases. He was a degraded clergyman of the Church of Ireland.

(b) See ante, 37.

It then provides for a declaration to be made by both or one of the parties, of both, or one of them, being of the Church of Scotland. Now the English Marriage Act, 26 Geo. 2, c. 33, does not extend to India, or the colonies. The marriages of British subjects in British India were regulated by the common law. If then, by the common law, mere contracts of matrimony per verba de præsenti, or ceremonies of marriage, celebrated by Presbyterian ministers, were valid marriages, what occasion was there for this enactment? Why should the legislature enact that such ceremonies of marriage, where both or one of the parties were or was of the Church of Scotland, should be valid marriages, if they were already such, whether the parties were of the Church of Scotland or not?

Thus the whole current of legislation, both of the Irish and the Imperial Parliament, shews that it was at all times the opinion of the legislature, that marriage, by the common law, was a religious ceremony to be celebrated by a priest in holy orders. Its enactments on the subject

always treat marriage as such. They are on such a supposition reasonable and consistent throughout. The legislature never has in any one enactment contemplated the possibility of an actual marriage being had by mere contract of matrimony, per verba de præsenti, without the intervention of a priest, although followed by cohabitation. Its enactments are not framed to suit such a state of the law. And if such be the law, the enactments of the legislature on the subject of marriage are incomplete, inconsistent, and absurd. It is submitted that such is not the law, and that the presence of a priest or clergyman in holy orders is necessary for the celebration of marriage by the common law of England, which is the law of this country at this day.

Observations have been made at the close of the argument at the other side, the use of which is much to be regretted.

L

It has been said, that this has been made a question between the Established Church, and that very respectable body, the Presbyterians of Ireland, and that in raising this discussion, parties have indulged in a spirit of persecution against the Presbyterians. When this question was first raised, the Church had nothing to do with the matter. It arose on the trial of a prisoner for bigamy, when it was the duty of his counsel to see that his client was tried according to law. And if, when the question did arise, some members of the Church did feel desirous that the case should be fully argued and fairly submitted to the decision of this court, and the consideration of the judges of the land, who are the guardians of the law, what intolerant or persecuting spirit does that evince ?

It is said on the high authority of the eminent counsel who has argued this case for the crown with so much ability, that if this question be decided against the Presbyterians, that great and virtuous body might withdraw their countenance and support from the Church, which must then be overtaken with certain ruin.

danger to be apprehended for the Church,

There is little from the Pres

byterians, even if they should withdraw the light of their countenance from it. There is little fear of any such consequences; and if there was, no lover of his country could indulge with satisfaction in such gloomy anticipations. The history of our country, the history of those times we have been considering, bears its witness that when, at one period, the temporal fabric of the Church was overthrown, and its power fell, there fell at the same time an ancient monarchy, a free constitution, and the noble institutions which made it flourish. The fall of the Church was but a prelude to the ruin of the state. But the Church of Ireland is not supported by its temporalities; but by the spirit of that truth which it teaches. When that Church teaches falsehood, it may perish. While the spirit of truth abides therein, it rests upon a rock. Tem

poralities constitute neither its power, nor its existence. They spring from a purer and a higher source. Were it stripped of those temporalities to-morrow, it would not, as a spiritual Church, cease to bear witness of the truth giving to mankind here below the means of consolation and instruction, and showing the way to a bright hereafter.

Monday, 2nd May, T. B. C. Smith, Q. C. on the same side.

Three questions arise in this case for the decision of the court. 1st. Whether a contract per verba de præsenti, without any solemnization by a person in holy orders, was considered lawful matrimony by the common law of England. 2nd. Whether, if solemnization by a person in holy orders be necessary by the common law, a Presbyterian minister is a person who either by the common law, or the statute law, can solemnize matrimony between a member of the Established Church and a Dissenter; and 3d. Whether the ceremony performed in the present case, between the prisoner and Hester Graham, although absolutely void, was such a marriage de facto as to make the prisoner guilty of the crime of Bigamy.

And it may be observed, that in thus arguing the question, the view most unfavorable to the prisoner has been adopted. For it is assumed that one of the parties here is a Presbyterian, which the special verdict does not clearly state; and as this was an indictment for a felony, the point might be argued as if they had both been Episcopalians.

First then, it is to be shewn, that by the common law of this realm, a contract per verba de præsenti, until sanctioned by a religious ceremony, performed by a person in holy orders, did not constitute lawful matrimony.

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What we have to inquire into then is, what is, and, what was, the common law of this land; and in so doing it may not be improper to advert to the statements of Sir William Blackstone, and Sir Mathew Hale, upon this subject, as a guide to us in these inquiries. Sir William Blackstone, in the 1st vol. of his Commentaries, p. 63, thus speaks of the common law: "When I call these parts of our law, "leges non scriptæ, I would not be understood as if all these "laws were at present merely oral, or communicated from the "former ages to the present, solely by word of mouth. "It is true indeed, that in the profound ignorance of "letters, which formerly overspread the whole Western World, all laws were entirely traditional, for this plain "reason, because the nations among which they prevailed, "had but little idea of writing. Then the British, as well as the Gallic Druids, committed all their laws as well as "learning to memory; and it is said of the primitive "Saxons here as well as their brethren on the continent, "that leges solâ memoriâ et usu retinebant. But with us at pre"sent the monuments and evidences of our legal customs 66 are contained in the records of the several courts of "justice, in books of reports and judicial decisions, and in "the treatises of learned sages of the profession, handed "down to us from the times of highest antiquity. However, I therefore style these parts of our laws leges non "scriptæ, because their original institution and authority are not set down in writing, as Acts of Parliament are ; "but they receive their binding power and the force of

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laws, by long and immemorial usage, and by their uni"versal reception throughout the kingdom." After alluding to the various sources from whence their laws and customs were drawn, Blackstone proceeds, "and indeed our anti

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quaries and early historians, do also positively assure us "that our body of laws is of this compounded nature. "For they tell us that in the time of Alfred, the local