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"Minister but without a pastoral charge; that he married "James Carroll to Sarah Robinson, according to the rules "of the Presbyterian Church; he asked them were they "of age and if they had the consent of parents to be married, and was satisfied with their answers on this "subject and asked no other questions. That he was "ordained by the laying on of hands of the Presbytery "of Belfast, which comprehended a number of Ministers "and congregations in and about Belfast; That it is the "usual and only form of Ordination in the Presbyterian "Church; that since his resignation he has done no duty "but to marry and baptize and preach in private houses; "that for nine years past he has not attended at Synod or Presbytery; that a degraded clergyman ceases to be a "member of the Presbyterian body, that he has got no regium donum or salary for above eight years."

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"And the jurors aforesaid further say that the said James "Carroll was married to Jane Foster on the 15th October, "1841, at the Parish Church of Kilmore, in the said "county of Armagh, according to the form of the Church "of England by the Rev. Mr. Lloyd, the curate of the "said parish, and that they lived together for two days as "man and wife, and that the said Jane Foster is a member "of the Established Church. But whether upon the whole "matter aforesaid the said James Carroll was guilty of the "premises within laid to his charge the jurors last aforesaid "are wholly ignorant, and therefore they pray the advice "of the said justices of our said lady the Queen, upon the

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premises, and if upon the whole matter it shall appear to "the said justices, that the said marriage performed by the "said Rev. Joseph Kelso is a valid marriage in point of "law, then the said jurors say that the said James Carroll "is guilty of the premises. But if upon the whole matter "aforesaid, &c. it shall seem to the said justices that the "said marriage ceremony performed by the Rev. Joseph

"Kelso is not a valid marriage, then the said jurors say "that the said James Carroll is not guilty."

On the 27th May, Sir Thomas Staples opened the case on behalf of the crown, and adopted the same line of argument as had been used in the Queen v. Milles; insisting, first, on the validity of a contract per verba de præsenti by the common law of England, and repeating the cases before cited in support of the position, and referring to two unreported cases one of Patterson v. Parson, T. T. 1835, and Weir v. Weir, T. T. 1837, where letters of administration were granted to a widow when the marriage was performed by a presbyterian clergyman and it was not alleged that the parties were members of that Church. Secondly, he argued the point whether supposing the law to require solemnization by a priest, a Presbyterian minister was not to be taken as sufficient to satisfy this exigency of the law. He denied that the form of pleading was per presbyterum sacris ordinibus constitutum and referred to Rastall, 229, 588. He further argued that the common law moulded itself to circumstances, that under it all men were allowed to choose their own religion, and had still free power to do so, unless when restrained by statute law; that there was no express enactment requiring marriage to be performed by a priest episcopally ordained; that the argument for the necessity of episcopal ordination could only be founded on a continuance of the Roman Catholic religion as the established form of this country, and that to carry this argument to its length would involve the absurdity of all Roman Catholic practices being still enforcible here, when it was not otherwise expressly declared by law; instancing the marriage of priests. Finally he argued that the prisoner was estopped from setting up the present defence, by having voluntarily adopted the Presbyterian form of marriage, and thereby solemnly

declared himself to be of that persuasion, citing R. v. Orgill, and R. v. Hanly, 9 C. & P. 80.

Whiteside and T. B. C. Smith followed, on the 28th and 30th May, using the same arguments and arrangement as on the previous occasion.

On the 3rd June, W. Brooke was heard in reply. He contended that upon the authorities the question was completely closed by the decision in Dalrymple v. Dalrymple, and the subsequent cases decided on the same principle down to the time of the Queen v. Smith in this country; that the municipal law here had not receded from the Canon Law on the subject of marriages, citing Bracton, f. 302, b. 3; that frequent attempts had been made in early times by churchmen, to alter the canon law by making the presence of a priest necessary to true matrimony, but that it was clear from the councils and monitions and books of authority that this had never been accomplished, citing Spelman's Concilia, p. 358. He then proceeded to review all the authorities brought forward in the previous part of the argument, shewing the great weight of authority in favor of the validity of a contract of marriage, per verba de præsenti and the inconsistency apparent in the cases denying this principle, none of them agreeing as to what was necessary to constitute ipsum matrimonium, some confining it to solemnization by a clergyman, others laying it down that the ceremony must take place in a church, and others that there must also be a celebration of mass upon the occasion. He then proceeded to argue the question of the necessity for episcopal ordination, and insisted that whatever might have been the law before the Toleration Act, that now, Dissenters were, beyond all doubt, recognized by law, and empowered to perform many of the most important functions of ministers; and that the Common Law must be taken to have moulded itself to the circumstances of

the time and recognized Presbyterian clergymen as ordained ministers for all other purposes. He further argued that neither by the statute law, nor by the Articles of the Church, nor even in the ordination service was episcopal ordination declared to be the only valid and binding form, citing, 2 Strype's Annals, 481, 553; Neal's History of the Puritans, 310; Bishop Burnet on the Articles, 229, (fol. 1700,) and Hooker's Eccl. Polity, Bk. 7, c. 7.

CUR. ADV. VULT.

JUDGMENTS.

On the 10th of June, Mr. Justice Perrin and Mr. Justice Crampton delivered their judgments.

Perrin, J.-These are two indictments for bigamy, upon which two special verdicts have been found. It is unnecessary for me to state them at length, as the only question is, whether the respective prisoners were in either case married, the one to Hester Graham and the other to Sarah Robinson. There is some slight difference in the findings, but in all essential matters they agree. (Here the learned judge stated the facts, as appearing on each special verdict.) It is plain that the parties intended to be married that they entered into a marriage contract—and that a ceremony of marriage was celebrated at their desire by a minister of the Presbyterian Church, and according to its forms. This ceremony was such as is declared by the 21 & 22 Geo. III. c. 25, to constitute a valid and perfect marriage between Protestant Dissenters; and the single question now before the court is, whether it is equally binding under the present circumstances, when one or both of the parties are members of the Episcopalian Church.

The indictment is founded on the 10 Geo. IV. c. 34, which does not materially differ from the prior Act against bigamy (1 Jac. I. c. 11); and in both, those words are used upon which Lord Coke has commented in the 3 Inst. 88. For the prisoner it has been argued, that the ceremony which has taken place between these parties does