ordination of the Presbyterian Church, according to the Presbyterian Code of Discipline, published by authority of the general Synod of Ulster, Belfast 1825, p. 39.

"The candidate then reverently kneeling in some con"venient place; the minister appointed to ordain, standing "before him, shall pray to the following effect."

"Humbly adoring the God and Father of our Lord "Jesus Christ, for sending His Son into the world to save "sinners; for his being delivered for our offences, and raised "for our justification; for his ascension into Heaven; his "pouring out His Spirit; and giving gifts to men; for "his appointment of prophets, apostles, and teachers, for "the gathering of his people, and the edification of his "church; for the promise of being with all who faithfully "teach in his name, even to the end of the world."

"And in some such part of the prayer, the officiating "minister shall lay his hands upon the head of the can"didate, and be joined by the rest of the ministers "present."

It is to be recollected, that for a considerable time Presbyterian ministers in the North of Ireland, were admitted to hold livings and parishes, and were recognized by law and even by the bishops. Reid in his History of the Presbyterians(a) mentions particularly the case of two eminent Presbyterian divines who held church livings, the celebrated Robert Blair, Vol. I. p. 103, 104; and John Livingston, id. 116, 117. In p. 129 the same writer tells us, "these honoured ministers, it need "scarcely be added, after the full detail which has been "given of their character, principles, and conduct, were "strictly Presbyterian. Though like the English Puritans, in the early part of the reign of Elizabeth, they "were comprehended within the pale of the Established

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(a) Waugh and Innes, Edinburgh, 1834.

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Episcopal Church, enjoying its endowments and sharing "its dignities, yet, notwithstanding this singular position "which they occupied, they introduced and maintained the "several peculiarities, both of discipline and worship, by "which the Scottish Church was distinguished." Yet, though for a length of time the Presbyterian clergy actually enjoyed livings in the church, and held parishes in the North of Ireland, it is now said, and said for the first time, in the middle of the nineteenth century, that they are not in holy orders, that they are mere laymen. It is said, that because they have not episcopal ordination they cannot celebrate a marriage ceremony. Is there any authority for this? Can they cite cases or authorities on the other side to show that this marriage, performed by a clergyman, recognized by law, receiving the regium donum, and using a ceremony just as solemn as that of the Established Church, is invalid as being celebrated by a mere layman.

It is not very wise for members of the Church of England to seek in these times to maintain the exclusive doctrine which may be expected to be advanced on the other side. Paradoxical as it may seem, the Presbyterians of the North are the main supporters of the Established Church in Ireland. Assailed as that Church is, by Roman Catholics from without and Puseyites from within, it would soon crumble in the dust were it not for the support of the Presbyterian Protestants. It is unwise to seek occasion to interrupt the good understanding between the Presbyterians and the Established Church. And who is it that now claims from the Court a recognition of this exclusive doctrine to shield him from the just punishment of his crime?

The defendant cohabited for two years with a wife to whom he was united by this marriage, and he now calls upon the Court to decide that this unfortunate woman is

not his wife, that she was his concubine-the woman whom he induced to enter into a contract with him, which he professed to think himself, and induced her to believe, a valid marriage. And to fill up the measure of his perfidy, he seeks to bastardise his issue, to stamp the innocent child with the brand of infamy and strip him of the legal rights of property.

In conclusion then, it is submitted that in either point of view, whether a clergyman be necessary at all or not, the marriage of the defendant with Hester Graham was a valid marriage.

Whether the Court regard the marriage as one good at common law without the presence of a clergyman, or whether it consider a clergyman necessary to the due celebration of a marriage, it is submitted, that the facts found by the special verdict show a sufficient marriage to convict the prisoner of bigamy.

It is not easy to understand what can be urged on the other side. It may be pretended, perhaps, that by the common law a priest is necessary for the celebration of matrimony. Where is this common law to be found? It is not founded on the canon law which nevertheless is the basis of the law of marriage in this country. Is it something that existed in Saxon times? The law of nature and the canon law equally pronounce marriage a civil contract for the completion of which the presence of a clergyman is not necessary. And that such is the common law has been declared by repeated decisions, and by the authority of the most eminent judges. Such was the opinion of Lord Stowell, of Sir William Blackstone, of Lord Eldon, of Lord Redesdale, of Sir Vicary Gibbs, of Lord Ellenborough, of Lord Kenyon, of Lord Tenterden, of Chief Justice Dallas, and of Sir John Nicholl. Such was the opinion of the several judges who decided on the

legality of the marriages of Quakers. These opinions the Court is now called upon to overrule, for it is, with great respect, submitted, that without overruling these opinions the Court cannot decide in favour of the defendant(a).

Friday, 29th and Saturday, 30th of April, 1842.

Whiteside for the defendant.-Two propositions have been laid down by the counsel for the Crown, and it is said that if either be maintained, there should be judgment against the defendant.

It is said, first, that, putting out of the case the presence of the Presbyterian clergyman, there is, without it, a contract of marriage per verba de præsenti followed by cohabitation, which, it is said, is a valid marriage. Secondly, it is said, that if the presence of a minister of the Christian religion is necessary to the celebration of a marriage, that of a Presbyterian minister is sufficient. There is a little inconsistency in this argument. For, if the Rev. Mr. Johnston be an ordained priest,-a clergyman in holy orders, according to the meaning of these terms recognized by our law, it was quite unnecessary to have argued the first proposition at all, and a great deal of research and labour might have been spared the

(a) When Holmes had concluded his argument, James Gibson called the attention of the Court to the case of Hutchinson v. Brookebank, 3 Lev. 376; to Maston v. Escott, in the Court of Arches in England, not yet reported, but noticed in the 12th and 13th Nos. of the Ecclesiastical Journal, 29th June, 1841; and to Burnet on the Thirty-Nine Articles, Observations on the Twenty-Third Article.

Peebles, L.L.D. referred the Court to Ayliffe's Parergon, 364.

On Friday before the commencement of Whiteside's argument Holmes cited the observations of Sir John Nicholl, I Addams, 64 in Stedman v. Powell.

learned counsel who has sought to maintain it. The most convenient course will be, to consider the last of these questions first. It is said that the Presbyterian minister is to be considered a clergyman in holy orders. This is a new proposition not advanced by the learned counsel or the eminent civilian who argued the case of the Queen against Smith. It is said now for the first time, that a Presbyterian minister has the same office and power by law, as a clergyman in the holy orders of the Established Church. This proposition involves this consequence, that, while the Presbyterian ministers are supposed to have all the power and authority which the orders of the Church confer, they are not amenable to the discipline of the Church, are not bound to obey its rules and canons, and are not subject to the penalties imposed by the church upon its ministers in case of breach of such its rules and canons. They are to have all the powers and rights of clergymen of the Church, but are altogether exempt from canonical and ecclesiastical discipline. The Presbyterian clergy themselves disclaim any submission to the church-they shun its connexion-they abhor even the idea of a union with it. In a pamphlet very lately published (a) by an eminent Presbyterian divine upon the very matter now in debate, there is the following passage" The truth, however is, that on account of its

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prelacy—many parts of its liturgy-its saint's days—its "lent-its consecration of things inanimate and material— "its sponsors in baptism-its unintelligible marriage "service, and the many other unscriptural forms, which, "in common with the Church of Rome, the Church of

(a) Presbyterian Marriages.-Review of the Rev. Dr. Miller's Judgment in Lemon v. Lemon and Mr. Whiteside's argument in Regina v. Smith by the Rev. Dr. Stewart, Broughshane, M'Comb, Belfast 16th April, 1842.