cannot therefore be taken to be even such a marriage defacto as will support the indictment.

In conclusion, it only remains for me to express a hope that the spirit in which the question raised in this argument, has been alluded to by the counsel for the crown, at the close of his address, may not be shared by the Presbyterian party in this kingdom. If doubts have been raised as to the legal validity of marriages celebrated under circumstances like the present, it is much for the interest and repose of the Presbyterians of Ireland that the question should be solemnly argued and deliberately settled; and I entertain too much respect for the character and principles of that large and important class of Her Majesty's subjects in this kingdom to allow of my joining with the learned counsel for the crown in his apprehensions of the effect which this argument may produce upon their minds. Still less can I agree with him in his fears for the safety of the Established Church of this kingdom. It is much to be hoped that the attachment with which the Presbyterians are said to view this Church, may still continue; but if, unhappily, circumstances should arise calculated to diminish that feeling, the Church as established in this kingdom will remain unshaken, strong in the affection of its members, and supported by the spirit of truth which it enjoys.

4TH MAY, 1842.

Blackburne, Attorney General, in reply-There appear to me to be two questions arising in this case. First, whether this was not a valid marriage as being celebrated by a person in holy orders, which view concedes the necessity of a religious ceremony; and secondly, (if I do not succeed upon the first question) whether it was not a valid marriage, independently of any religious ceremony, which I contend the law of Ireland does not require. These are the two questions. But there is a third mode of arguing the case, which I shall keep by itself, and which consists in the assertion, that the court is to collect from a consideration of the statute law of the land, that marriage is a religious ceremony, and that by the common law of the land, as thus declared, it must be celebrated by a priest canonically ordained. I prefer this order to that followed by the learned counsel for the crown, who preceded me, because I shall thus argue the case on its true facts; for here there was not simply a contract per verba de præsenti, but a religious ceremony as solemn, as impressive, and in its nature as essentially spiritual, as any ceremony which the wisest, ablest and most religious man could devise. I hold in my hand a book, which though certainly not an authority, may with propriety be referred to as testifying facts relating to the discipline of the Presbyterian Church in Ireland, and which will be found amply to bear out my description, both as regards the person performing the religious ceremony, and as regards the essential attributes of the ceremony itself. It is entitled, "The Constitution "and Discipline of the Presbyterian Church," and has been already cited by the learned counsel who opened the The form of ordination as given in the passages

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then read to the court, may safely be said to constitute a ceremony of the most solemn and religious description, and an attentive perusal of the work will not fail to satisfy the reader that in the person of a Presbyterian clergyman, is to be found an ordained minister of the Christian religion, ordained by a Church corresponding in almost all points of doctrine with the Established Church of this kingdom. In the same book will be found the rules and regulations of the Presbyterian Church with regard to marriage, which prove beyond all doubt, that the ceremony as used in this Church, is as essentially religious and as impressive and authoritative as that of any Church, or of any religion in the world.

It need scarcely be remarked that what has been said of the discipline and rule of the Presbyterian Church in Ireland, may in like manner be predicated of the Established Church of Scotland. They are identical in doctrine, discipline, and government, and whatever the legislature has said of one, must be taken as said of the other also; and I will show by undisputed authority, that Presbyters of the Scotch Church, are in contemplation of the legislature ordained ministers of the gospel. By the 58 Geo. III. c. 84, after reciting that "doubts have arisen "concerning the validity of marriages, which have been "had and solemnized within the British Territories of India, "by ordained ministers of the Church of Scotland, as by "law established," and that it is expedient to remove such doubts, it is declared and enacted, that all marriages theretofore solemnized by ordained ministers of the Church of Scotland, shall have the same force and effect as if solemnized by clergymen of the Church of England, and that from the 31st December, 1818, all marriages so solemnized, when either both or one of the parties are members of, or holding communion with, the Church of Scotland, shall be equally valid. We have thus the

authority of the legislature for saying that the person who performed the ceremony in the present case, was an ordained minister of the Christian religion.

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But I will now proceed to show that he has further been pronounced by the legislature as a person in holy orders, capable of administering the sacrements, as received in our Church. By the Toleration Act, Ireland, 6 Geo. I. c. 5, s. 8, it is enacted, that Dissenting ministers taking the oaths of allegiance, supremacy and abjuration, and making the declaration therein required, shall not be liable to the penalties of the Act of Uniformity, "for consecrating or ad"ministering the sacrament of the Lord's Supper, or for preaching or officiating in any congregation permitted "by that Act." The counsel for the prisoner have fallen into a mistake in treating the English and Irish Toleration Acts as identical, for the latter appears to go farther than the former, and whilst the English Act only exempts Dissenting ministers from penalties for preaching, the Irish distinctly recognizes Protestants in holy orders dissenting from the Church of Ireland, and pronounces them competent to administer one of the most important functions which attach to the office, the sacrament of the Lord's Supper. How is it as to Baptism, the other sacrament of our Church? In Kemp v. Wickes, already cited, a clergyman refused to bury the child of Dissenting parents, upon the ground that it had not been baptised according to law. This case occurred in 1809, and Sir John Nicholl, in a very elaborate and learned judgment, decided that the ceremony of baptism by a Calvinistic Independent clergyman was perfectly valid. After remarking at large on the law upon this subject, Sir J. Nicholl thus proceeds: "it seems "to me by no means proper, however, wholly to pass over "the view which may be taken of this subject as affected by the Toleration Act. By that Act, an important

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change was worked in the situation of His Majesty's "Protestant Dissenting subjects; and the baptisms now

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"administered by Dissenting ministers, stand upon "very different grounds, from those by mere laymen." The court will recollect that he had argued this point at considerable length in the previous part of his judgment. “There were many laws both of Church and State, requiring conformity to the Church, creating disabilities impos"ing penalties, and denouncing excommunication upon all non-conformity. Now supposing that during the exis"tence of these disabilities it could be maintained that in "point of law no Act of non-conformists could be recognized in a court of justice, and therefore that a "baptism by such persons could not be noticed at all, yet, could it be maintained, now, that such a baptism was "to be considered as a mere nullity ?" 3 Phill. 297. Now looking at the words of the Irish Toleration Act, which allows the administration of the Lord's Supper by a Presbyterian minister, can it be doubted that baptism was permitted also? Whatever might have been the case before the Toleration Act, can it be said that after this enactment, acknowledging ministers and teachers of Dissenting congregations, the rites and ceremonies performed by them provided they are not contrary to the Christian religion are not recognized by law? At p. 299, Sir John Nicholl alluding to the case of Evans v. The Chamberlain of London, quotes the following expressions from the judgment of Mr. Justice Foster. "The defendant does not plead the "Toleration Act to excuse one offence by another, but "to show that although the rubric did require conformity in "all things, yet by the Toleration Act the rubric is taken "out of the way, and does not extend to his case. The "Act of Toleration is not to be considered merely as an "Act of connivance, it was made that the public worship "of Protestant Dissenters might be legal, and they might "be entitled to the public protection." He afterwards refers to the words of Lord Mansfield on the same occasion, when he said that non-conformity was no offence by the