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"dominions of England and Wales, being married, do, at “any time after, marry any person or persons, the former "husband or wife being alive, that then every such offence "shall be felony," &c. Here are the same words, "being "married" and Lord Coke observes upon them "This "extendeth to a marriage de facto, or voidable by reason of "a pre-contract, or of consanguinity, or of affinity, or the "like; for it is a marriage in judgment of law until it be "avoided, and therefore, though neither marriage be de jure,

"yet they are within this statute." In the same way it

might be argued here, that the facts found by this special verdict show plainly a marriage de facto sufficient to satisfy the words of the statute," being married." There is a case cited, 1 Russell on Crimes, 290, 1st. Ed.; 192, 2nd Ed., of an indictment for bigamy before Mr. Justice Dennison on the Norfolk circuit, which is likewise referred to in Morris v. Miller, 1 Sir W. Blackstone, 632, where it was ruled that a lawful canonical marriage need not be proved, and that a marriage in fact (whether regular or not,) may be shown.

It is necessary, therefore, on the prisoner's side to maintain the proposition, that the marriage between him and Hester Graham was absolutely null and void, and not merely voidable, because a mere irregular marriage would be sufficient to sustain the indictment. The other side will have to contend that the facts found by this special verdict constitute no marriage at all, that the wife was from the first moment of cohabitation a mere concubine, and that the issue, if any, are bastards.

The question raised is as important a one for the decision of the Court, as can well be conceived, not merely with regard to the particular case in which, of course, the defendant is deeply interested, but with reference to the general law of marriage in Ireland. For, if a contract under the circumstances found by the special verdict be not held a marriage,

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the consequences will be most injurious to society, and, particularly in the North of Ireland, be ruinous to the peace of many families. There is here a contract per verba de præsenti, in the presence of three witnesses, and a clergyman of the Presbyterian Church, followed by cohabitation for two years, and this the Court is called upon to decide, is not a valid marriage according to the law of Ireland. In opposition to this, two propositions are submitted.

In the first place, putting out of consideration altogether the presence of the Presbyterian clergyman, the marriage contract per verba de præsenti in the presence of witnesses, followed by cohabitation as man and wife, constitutes by the law of Ireland, a legal valid marriage.

Secondly, if the Court be of opinion that the presence of a minister of the Christian religion is necessary to give validity to the contract, the presence of a Presbyterian minister is perfectly sufficient.

A recent resolution of the majority of the Judges in. Ireland has gone to decide that such a marriage as the present is void(a). The reasons of the learned Judges which led them to that conclusion are not known(b), therefore, it is impossible to observe upon them. And the case will now be argued as if the question were come for the first time before the Court.

By the law of nature, and by the civil and canon law as established in England, Scotland, and Ireland, a

(a) The case here alluded to is R. v. Smith, reported in 2 Crawford & Dix, Circuit Cases, 318, and 1 Irish Circuit Reports, 287. Eight judges held the marriage bad. Two held it valid.

(b) The case of R. v. Smith came before the Judges, on a point reserved from circuit. In such cases no judgments are pronounced. Therefore, the reasons for the decisions of the Judges can only be collected from the arguments of the counsel before them, when counsel are heard, which is not always the case.

contract per verba de præsenti followed by cohabitation, is a valid marriage. Various opinions have existed among different nations and individuals as to the lawfulness of polygamy, some holding it to be legal, and some not; but all nations have at all times agreed in this, that the union of one man and one woman for the purpose of procreation of children and the discharge of the other duties of the marriage state for life, was a perfectly valid contract, not only legal, but meritorious, necessary for the propagation of the human species, and most conducive to the well-being of society. Parties who entered into such a contract chose for themselves-they entered into it voluntarily; and if there was no impediment from consanguinity or any like cause, the contract is indissoluble, it cannot be dissolved at the will or pleasure of the parties. Once formed it was not to be broken, but should depend upon the municipal law of the country in which the parties lived. No doubt the municipal institutions of a country might superadd any form that society thought fit, to make the contract valid, and it was competent for any state to say, that a marriage should not be valid, unless accompanied by certain prescribed forms, but that should be done by negative words; and, unless the other side were able to show by legislative enactments, or decided cases, that there was some such sine qua non required to validate a marriage contract, their objection would go for nothing. Every court of justice ought to be anxious and even astute to support a contract upon which the well-being and happiness of civil society so essentially depended; for what would be the consequence of the court holding the reverse, after a man and woman agreeing to live together as man and wife, and to be faithful to each other? It would be in the power of either party, in either case-it would be in the power of a profligate man, or an abandoned woman to desert each other, and to leave the innocent

offspring, if any, of the marriage, exposed to all the evils of poverty and of vice. These were consequences which every court of justice would be astute to prevent. To every contract of this kind the sanction of religion might be added, and usefully, but such a religious ceremony was not a necessary part or ingredient to make the contract valid. The agreement in contracts of this kind was entered into by one man and one woman, to live as man and wife; that vow was registered in heaven, and no interposition of any clergyman, or human being, was necessary to the validity of that contract. It might be to the more satisfactory proof of it. The contract might not be proved without witnesses, but, in its nature and its essence, it was as binding, when followed by cohabitation, as if all the clergymen of every sect that ever existed in the world were present upon the occasion. law that made their presence necessary


Where was the

It is submitted, boldly and broadly, that unless there be such a law by enactment of a negative nature, expressly enacting that such a union, without the presence of a clergyman, is not valid, the contract is valid and indissoluble. Marriage is a contract, and nothing but a contract, and when entered into per verba de præsenti, and followed by cohabitation, is recognised as valid and complete, by the most eminent legal writers of all countries, on natural, civil, and canon law, and the law of nations, Grotius de Jure Belli et Pacis lib. 2 c. 5, ss. 8 & 9. Story's There is no man who

Conflict of Laws, p. 100, c. 4. reads the works of this American author but must agree that he is a learned and able writer, and he is so esteemed by the Judges in England. Throughout his works he refers to the English authorities on the different subjects of which he treats, and he has collected them fully and accurately. In the place cited he treats marriages as contracts; he says "all nations allow marriage contracts,


they are juris gentium." The same doctrine is laid down in Mackenzie's Institutes of the Law of Scotland, lib. 1, tit. 6, s. 1; Stair's Institutions, tit. 4, s. 1, p. 22; Halkerstone's Digest of the Law of Scotland relative to Marriage, 3, 76.

The moral and religious obligations arising from the civil contract are as binding on the conscience as if the marriage were celebrated in the presence of every description of clergyman. Clergymen might exhort to, and enforce the duties arising from the contract, but their presence adds no force to the contract itself. The obligation flows from the contract. It is the contract which makes the breach of it a crime, and constitutes the obligation. The contract is as sacred, and as much under the superintendence of the Supreme Being whether a clergyman be present or not. It is consent which is the essence of the contract of marriage; and in the absence of express enactment on the subject, no religious ceremony is necessary to complete it. Dig. lib. 23, tit. 2; Institute, lib. 9, tit. 1, s. 1; Hubert de Nuptiis, lib. 1, tit. 9, s. 1; Vinnius, lib. 1, tit. 9, s. 58; Boethius, lib. 23, tit. 2, s. 2. In 1 Blackstone's Commentaries, c. 15, p. 433, it is laid down, that "our "law considers marriage in no other light than as a civil "contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriage as a sin, "but merely as a civil inconvenience. The punishment, "therefore, or annulling of incestuous or other unscriptural




marriages, is the province of the Spiritual Courts; which "act pro salute animæ. And taking it in a civil light, the "law treats it as it does all other contracts: allowing it to "be good and valid in all cases where the parties at the time "of making it were, in the first place, willing to contract ; secondly, able to contract; and lastly, actually did contract, "in the proper forms and solemnities required by law." So


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