"be a good marriage both by the law of God and the law "of nature, yet the law of this society, and I believe of

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every other Christian society, has declared it not to be a

good marriage. Therefore, why may not we declare "those marriages to be void which are solemnized by "scandalous worthless clergymen, in a clandestine manner; "for it is really doing no more than what the honorable gentlemen said we might do; it is only denying the "assistance of the law for enforcing the performance of "such a contract." Parl. Hist. v. 15. p. 78.

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This view of the common law, as laid down by the Solicitor-General of England, was, as it is submitted, recognized by the clause of the English Marriage Act of the 26 Geo. II. relating to contracts of marriage, which I have stated to the court, and which was introduced into Ireland by the 58 Geo. III. c. 81, s. 3; and it will be observed that there is no provision in the corresponding section of either Act nullifying contracts de præsenti or de futuro, but the enactment is, that there shall be no suit in the ecclesiastical court to enforce the celebration of any marriage in facie ecclesiæ, by reason of such contracts. Neither is there any provision in the Act for the solemnization of marriage by a priest, because that was always considered as a necessary form. All the Act looks to is the publication of banns, or the possession of a license, &c. Let us admit contracts per verba de præsenti to have been valid marriages before the passing of this Act, which of its provisions rendered them illegal? Nothing can be found in it which would prevent Presbyterians from being married in any manner they pleased, if the banns were published, and the other steps required by the Act relating to publicity had been duly taken. But it is perfectly clear that the Act goes all along upon the assumption, that solemnization by a clergyman was necessary to a legal marriage. If this had been otherwise, the evils which it

proposed to remedy would have been left untouched. Every section of this Act squares with the opinion of the Solicitor-General, (Murray,) as expressed in the debate. Therefore, I contend that by all these Acts we have a recognition of the principle, that the common law of England never acknowledged the validity of a contract; that the civil and canon law had done so, and became ancillary to it by completing the marriage by a ceremony ; but that from the time of Alfred, the common law always required solemnization by a Christian clergyman, and that every Statute assumed this principle. (Crampton, J.—This is a very important point; for, if the position be true that marriages in facie ecclesiæ after contract, are voidable and not void, the means of enforcing the prior contract being taken away, the marriage must thus become unavoidable, and the prior contract consequently void.) The position may be illustrated by the present case. We have here, first, a contract, (for I put out of the question the presence of a Presbyterian minister on the occasion, who can only be considered a layman,) and next a marriage in facie ecclesiæ. Suppose (before the passing of the 58 Geo. III.) there had been children of the second marriage and one of the parents had died, could there have been a proceeding to avoid the second marriage? Certainly not, if the authority of Blackstone, or Hale, or of the case of Bunting v. Lepingwell, be considered. The Statute 58 Geo. III., has the same effect now as the death of one of the parents would have produced before that Act passed, and puts the parties into the very same position, making the second marriage unavoidable. If the argument of the counsel for the crown be good, the prisoner here would have two lawful wives, and two sets of children. The error has arisen from a mistake as to the extent to which the law of England has adopted the canon law, and the difficulty is all removed by attending to this distinction, viz: that a contract is not an

actual marriage; but that it was enforcible by suit in the ecclesiastical court.

I will now go through another class of Acts, referring to marriages, commencing at the time of the commonwealth. In 1644, by the 51st Ordinance, the Book of Common Prayers was abolished, and the directory which was substituted, enjoined marriages to be "solemnized by a lawfull "minister of the word,"-Scobell, p. 86. This was when the Presbyterians were the dominant party in the state.

At a later period, when the fifth monarchy men appeared, and latitudinarianism lapsed into unbelief, the religious ceremony of marriage was abolished, and a form was enacted as given in the Ordinance of 1653, C. 6, (Scobell, p. 236,) which retained a solemnization though it was no longer required to be in the presence of a priest. But at neither of these periods was a contract recognized as a valid marriage. Then came the Restoration, and with it the 17 & 18, C. II. c. 3. for the confirmation of marriages. It recites, that "by virtue, or color of certain Ordinances, "or certain pretended Acts, or Ordinances, divers marriages since the begining of the late troubles, have "been solemnized in some other manner, than had been "formerly used and accustomed within this kingdom," and enacts, that "for the correcting and avoiding of all doubts "and questions which may be made touching the same, "all marriages, had and solemnized in this kingdom of "Ireland, since the 1st day of May, 1642, before any justice, or reputed justice of the peace, of this your

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Majesty's kingdom of Ireland, and by such justice so "pronounced or declared; and all marriages within this "kingdom, since the same 1st of May, 1642, had or "solemnized according to the directions or true intent of any "Act, or Ordinance, or reputed Act or Ordinance, of one

or both Houses of the Parliament of England, or of any "convocation sitting at Westminster, under the name, style

"or title of a Parliament, or assuming the name, style or "title of a Parliament, shall be and are hereby adjudged, "esteemed and declared to be, and to have been of the "same force and effect in law, as if such marriages had "been had and solemnized according to the rites and "ceremonies established or used in the Church of Ireland, "any law, custom, or usage thereof to the contrary in any "wise notwithstanding."

Now it is first to be observed, that it appears from this Statute, that the marriages during the Usurpation, were before justices of the peace, and that those marriages were not only contracts per verba de præsenti, but something more, for the Statute only validates marriages, had before a justice of the peace, "and by such justice or reputed justice, so pronounced or declared;" or had or solemnized in the manner required by the Ordinances of the usurping power. Thus even in the time of the Usurpation, there was a species of civil solemnization of the

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contract.

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But the Statute recites that these marriages were, "had " and solemnized in some other manner, than hath been formerly used and accustomed within this kingdom." This plainly shows that a contract per verba de præsenti, was not the marriage used and accustomed within this kingdom prior to the Usurpation; and the latter part of the first section, shows that a religious solemnization was used, and accustomed in Ireland, prior to the Usurpation. The section validates the marriages solemnized before the justices, &c. "as if such marriages had been had, and solemnized "according to the rites and ceremonies established or used in "the Church of Ireland." The position of the counsel for the crown, appears directly at variance with the inference necessarily to be drawn from this Statute. In the address to Cromwell after the Ordinance, legalising marriage, which is alluded to in Morgan's Law of Marriage,

1 vol. p. 140, it is distinctly said, that before the period of the Usurpation, a marriage to be valid, as to the legitimacy of the issue must be solemnized by a priest in orders. [Perrin, J.-The ordinance of 1653, was relaxed by the Ordinance of 1656, c. 10, which repealed the clause in the first Ordinance, declaring all marriages illegal, which were not celebrated according to the provisions of that Ordinance.] Yes, and that may account for the case of Tarry v. Browne, (1 Sid. 64,) when a marriage before a "parson in sacred orders," was alleged.

Let us now examine the class of Statutes relating to clandestine marriages. The 12 Geo. I. c. 3, which was for preventing marriages by degraded clergymen, or popish priests, made the celebration of a marriage by such persons between a Protestant and a Roman Catholic, or two Protestants, a capital felony. The 19 Geo. II. c. 13, made all marriages between a Protestant and a Roman Catholic, or between two Protestants, if celebrated by a popish priest, absolutely null and void. And the 33 Geo. III. c. 21, s. 12, imposes a penalty of £500, on any priest celebrating such marriages. If a contract per verba de præsenti, entered into between any two persons, had been sufficient to constitute matrimony, these Acts would have been useless and inconsistent. Not one word is said of a contract throughout the whole of them. They are in fact declarations, that at those periods, solemnization was considered necessary to a marriage. Taking this chain down to the present day, the 3 and 4 Wm. IV. c. 102, which repeals so much of these Acts as makes it felony for Roman Catholic clergymen to celebrate such marriages, leaves untouched the 19 Geo. II. and expressly guards against giving validity to any marriage ceremony, not recognised as valid by the existing laws of Ireland.

The next class of Acts, is that relating to Protestant Dissenters. The 11 Geo. II. c. 10, enacts that Protes