sweeping away a mere pre-contract, it cannot in my mind be held to apply to, or to have contemplated a case like the present.

On this ground, therefore, I hold this to have been a marriage in fact, a marriage within the protection of the statute, upon which the indictment is framed, as it clearly is a case within the mischiefintended to be prevented, and a case where the wife and children of such an union, should receive the shelter and protection of the law, although it may not by ecclesiastical judges be held to entitle the parties to rights in that court, or to be there cognizable.

It has been further argued with great force, that ministers of the Presbyterian or Scotch Church, are ministers " in holy orders;" that they were so considered at the time of the reformation, and their ordination was for a time acknowledged, until the Act of Uniformity prescribed episcopal ordination. The Statute referred to (58 Geo. III. c. 84,) in support of this argument, appears to me to bear directly upon the point, it is entituled, " An Act to remove doubts as to the validity "of certain marriages had and solemnized within the British "territories in India." The doubts related to marriages solemnized in British India by ordained ministers of the Church of Scotland. It declares and enacts, that all marriages theretofore had and solemnized by ordained ministers of the Church of Scotland, shall be taken and esteemed to be of the same and no other force and effect, as if solemnized by clergymen of the Church of England, according to its ritual. If they were so in the East Indies, and that by the common law, the same common law declares alike of a marriage celebrated in Ireland, by the ordained ministers of the Irish Presbyterian Church. This statute is declaratory, and the law as there laid down, is consequently to be taken as having been the common law of England previously. If these marriages were by the common law legal in the East Indies, the same common law applies to marriages cele

brated by the ordained minister of the Irish Presbyterian Church, which is similar to the Scotch in principles, doctrine, and discipline, and where ministers are ordained in the same form and manner. So that upon this ground it appears to me impossible to hold that such marriages are not valid and legal marriages, de facto and de jure. The Presbyterian clergymen are authorized to perform the most solemn offices and functions of religion, to consecrate the elements of the Sacrament of the Lord's supper, and to administer it, and I think there should be some very stringent authority produced, before this court can hold that they are not ordained ministers of the church, ministers in holy orders, and that, therefore, they cannot celebrate marriage here, when it is plain that ministers similarly circumstanced, were by the common law qualified to celebrate marriage in the East Indies.

These are the several grounds upon which I have come to the conclusion, that the marriages in the present cases, are marriages within the meaning of the statute on which the indictments are founded, and that the crown is entitled to judgment.

Crampton, J.-In the opinion I am about to give I shall confine myself to the case first argued, the Queen v. Milles, because the facts in the case of The Queen v. Carroll although not precisely the same with those found in the Queen v. Milles, do not essentially differ from them. This case comes before the court upon a special verdict found before my brother Perrin, at the Spring Assizes of the year 1842, for the county Antrim, and removed by the Crown by certiorari for the judgment of this

court.

The subject is one of vast importance not to the parties to this record merely, but to the public at large, and I rejoice, therefore, that the questions which it involves are raised in such a shape as will enable the parties to bring them before the ultimate tribunal, the House of Lords, for a final and satisfactory determination. This course was not open in the cause of the Queen v. Smith, lately before the twelve Judges, upon a case reserved by myself from the Armagh Assizes. In that case the same question arose as now arises upon this special verdict, and the decision of the judges was in favor of the prisoner, who

was accordingly discharged. But the present case is

brought before us now upon special verdict for the purpose of reviewing the decision in the Queen v. Smith, and of enabling the parties to have the final determination of the House of Lords upon the momentous matters which it involves. The Queen v. Smith has not been relied upon as an authority, by the prisoner's counsel, to govern the present case, and most properly. For, how

ever I may feel myself bound, as an individual member of the tribunal which ruled that case, when sitting as a circuit judge upon a case from which there is no appeal nor opportunity of revision save through the medium of a case reserved for the twelve judges, yet sitting in this Court of Queen's Bench to pronounce judgment upon a question which arises upon the record, and is (so to say) on its transit to the House of Lords for the purpose I have before stated, I feel myself not pressed by the authority of the Queen v. Smith.

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The case we are now about to rule has been argued with great ability, zeal, and research, and the court has before it abundant materials for its judgment. If we go astray it will not be for want of information from counsel. This is an indictment for bigamy. The crime of bigamy in the language of the statute, upon which this indictment is founded (10 Geo. IV., c. 34, s. 26) is committed when "a person being married shall marry any other person during the life of the former husband or wife." The special verdict finds that the prisoner, George Milles, was on the 24th of December, 1836, solemnly married to one Jane Kennedy, and the question for the court is whether the prisoner was, at that time, a married man, his former wife being then living, or in other words, whether upon the facts found by the jury, Hester Graham, was on the 24th of December, 1836, the wife of the prisoner, within the meaning of the statute. The few facts which raise this question are these:-the prisoner, George Milles, was in the year 1829, a protestant of the Established Church, Hester Graham was not a Roman Catholic, but whether a member of the Established Church or a Protestant dissenter the jury do not find. The special verdict states, that in the year 1829, the prisoner and Hester Graham entered into a contract of present marriage before the Rev. John Johnston, and other persons

S

in Banbridge; Mr. Johnston being then the placed and regular minister of the congregation of Presbyterians at that place, and that Mr. Johnston performed a religious ceremony of marriage between those parties according to the usual form of the Presbyterian Church in Ireland; and that after the ceremony, the parties cohabited and lived together for two years as man and wife. On the part of the crown it is contended that these facts establish a legal marriage between the prisoner and Hester Graham in 1829, and that therefore his second marriage in 1836, (Hester Graham being then alive, as found by the special verdict) was an offence against the statute. On the other hand the prisoner's counsel contend that the facts found by the special verdict do not establish a legal marriage between the prisoner and Hester Graham, within the true meaning of the statute.

The judgment of the court must turn upon the character of the ceremony of 1829. Had both the parties in 1829 been Presbyterians, this marriage by force of the statute of the 21st and 22nd Geo. III., c. 25, had been clearly a legal marriage, and we should have had no difficulty in pronouncing judgment against the prisoner. Again, had it appeared that one of the parties was a Presbyterian, the other being an Episcopalian Protestant, the question argued by the Attorney-General would have arisen, viz.: whether a Presbyterian minister is authorized by the statute of the 21st and 22nd Geo. III. ch. 25, to celebrate a mixed marriage. That question however does not arise since it is not found that Hester Graham was a Presbyterian or even a Protestant dissenter, but consistently with the special verdict she may have been a Protestant of the Established Church. This marriage therefore plainly can derive no aid from the Dissenters Act which, in terms as well as in its spirit, is applicable only to the marriages of dissenters, performed by their own