The Sun.
London, England, 1844-04-05 00:00:00

IRISH MARRIAGE QUESTION.

LORD CAMPBELL'S PROTEST.
HOUSE OF LORDS, March 29.
THE QUEEN V. MILLIS.-WRIT OF. ERROR.
The Order of the Day being read for the further
consideration of this cause, the House proceeded to
take the.same into consideration : and it being moved
to reverse the judgment complained of, the same was
objected to; and the question was put whether the
judgment complained of should be reversed. Lord
Cottenbam and Lord Campbell were appointed to
tell the number of the votes ; and upon report thereof
to the House it appeared that the votes were equal,
riz., two for reversing, and two for affirming. 'Where-
; upon, according to the ancientrule in the law, semper
presumitur pro 22egante, it Was determined in the
negative : therefore, the judgment of the Court below
was affirmed, and the record remitted.
Dissentient,
1, Because it appears b y the special verdict that
George Millis, before his second marriage, (the regu-
larity of which is not questioned), had been married
to Esther Graham by a Presbyterian,rainister, who
they believed had authority lawfully to.marry them,
and that having intended to enter, and believing that
they had entered, into present marriage, without con-
templating any further ceremony to complete their
marriage, they cohabited together as husband and
wife, and, there being no statute to affect the va-
lidity of such a marriage in Ireland, it is valid by the
common law of England, which is admitted to be the
law of Ireland upon this subject.
' 2. Because the only objection made to the validity
of this marriage is, that it was not solemnised by a
priest episcopally ordained ; and by the common law
of England it was not necessary to the validity of a
marriage that it should be solemnised by a priest,
although to be regular there are canons, requiring
that it should be solemnised by a priest in the face of
the church.
3. Because it is admitted that before the Reforma-
tion the validity of marriages was a matter of eccle-.
siastical cognizance in England, as well as in the rest
of Europe, and that by the canon law regulating
marriage all over the continent of Europe prior to
the Council of Trent, the presence of a priest was
not necessary to a valid marriage, and this law must
necessarily have prevailed in England, all ecclesias-
tics, members of the Western Church, being governed
by the same laws, and the appeal from their decisions
being to Rome as the Court of last resort.
4. Because, the presumption being in favour of the
validity of this marriage, the onus lies upon those
who question it to prove its invalidity, and there is
no instance in the annals of the law of England in
which parties having intended to enter into present
matrimony, and believed they had done so, and had
dived together as man and wife, their marriage has
been held invalid on the ground that it was not so-
lemnised by a priest in orders, and the necessity for
the presence of a priest in orders to prevent the mar-
riage from being invalid is not laid down by any
institutional writer treating of this branch of the law
of England.
5. Because the relation constituted between George
Hillis and Esther Graham by their marriage and co-
habitation as husband and wife is materially different
from that subsisting between a man and a woman who
have merely contracted to marry per verba presenti
tempore, meaning that they shall be irrevocably en-
gaged to each other, but that a marriage ceremony
shall be performed between them before they live to-
gether as husband and wife ; and the marriage be-
tween George Millis and Esther Graham cannot pro-
perly be considered as a mere "pre-contract," which,
according to all the statutes and decisions upon the
subject, was an executory engagement.
6. Because it is admitted that, where a man and
woman entered into marriage, and lived together as
husband and wife, without the intervention of a priest,
the Church in England always considered the relation
between them verurn matrimonium, insomuch as they
could not be proceeded against .for fornication, that
they could only be compelled to celebrate the existing
marriage in the, face of the Church, and that, if
either- of them before such celebration, cohabited with
another, this cohalsitation was censured as adultery ;
and because the commerce between .the parties so
married without the intervention of a priest being
acknowledged by the Church to be that of husband
and Wife, the issue could not be considered illegit-
imate; and, applying this decisive test to try the
validity of the marriage, it must have been considered
valid.

7. Because, of the only two cases leading to a con-
trary conclusion, which occurred in the reign of
Edward 1., we have no satisfactory, statement, and
they cannot be at all relied upon; . for they would
show that a marriage solemnised by the priest,
of the parish, -or by a bishop in a private dwelling,
was a nullity ; this being entirely contrary to the
doctrine now contended for on behalf of the defendant,
which allows, that for all purposes such a marriage
before Lord Hardwicke's Act in the year 1753 would
have been as valid as if celebrated in the face of the
Church.
8. Because the other authorities relied upon may
be reconciled to the doctrine that by the common law
of England, if parties were so minded, they might
have entered into a valid marriage without the inter-
vention of a priest, and, at any rate, are. greatly out-
weighed by the authorities on the other side.
9. Because, although marriage according to the
doctrine prevailing when the common law took its
origin was a sacrament, some sacraments might be ad-
ministered without the intervention of a priest, and
it is expressly laid down by canonists of undoubted
authority that the sacrament of marriage might be
administered by the parties to each other reciprocally.
10. Because the prevalence of the notion of the ne-
cessity for the intervention of a priest may well be
accounted for from the canons of the Church in favour
of regular marriages, and from the laudable custom
of parties generally wishing to join in a religious
ceremony when they enter into such a solemn en-
gagement.
11. Because the position that a marriage to be valid
must have been solemnised per presbyterum sanctis
ordinibus constitutum, is disproved by the admission,
that since the Reformation a valid marriage might be
celebrated by a deacon, and because the explanation
of this circumstance, that the law was changed at the
Reformation, is quite unsatisfactory, as the Church
had no power to alter the law of marriage, and never
attempted by any canon to alter it, and no power to
solemnise marriage is conferred upon a deacon by
the Act of Uniformity, or any other legislative enact-
, ment.
12. Because the class of clergymen who are al-
leged to be necessary and'sufficient for the solemnisa-
tion of marriage not being confined to clergymen
ordained by bishops of the Church of England, but
including all'who, according to the opinion of theolo-
gians, are to be considered apostolically ordained, and
amongst others Roman Catholic priests before they
have renounced the errors of the Church of Rome,
and been admitted into the Church of England, no
certain rule is laid down for the guidance of the public
with respect to those who are duly qualified to
solemnise marriage between English subjects in coun-
tries where the English statutes reapeCting marriages
do not prevail.
-13. Because it is admitted on behalf of the defen-
dant, that a marriage solemnised by a person be-
lieved by the parties to "' be a priest in episcopal
orders was valid, although in truth he was not in
orders, while it is contended that the marriage
solemnised by .a Presbyterian minister whom the par
ties believed to be sufficiently authorised to solemnise
it; is a nullity.
14. Because the marriages of Qualiers and Jews,
excepted from the operation of Lord Hardwicke's
Act, have ever been considered to be, and are, valid,
and their' validity is wholly inconsistent with the
position, that there can be no, valid marriage without
the intervention of a priest in orders.
is. I3ecause this position is again disproved by the
doctrine which judges of the highest authority have
often laid down and which is not disputed, that in
countries where the attendance of such a priest can-
not be obtained, a valid and regular marriage may
be entered into by the consent of parties before wit-

tresses.
1.6. Because the Legislature, in. passing Acts of
Parliament respecting marriages in Ireland and India,
the'prior validity of whiCh depended 'upon the same
principles as the validity of the marriage in question,
has DECLARED them to 'be valid, thereby admitting
their prior validity.
17. Because it had been considered
.by all legal
writers of authority in England for a century that by
the common law of England the consent of the parties
without the intervention of a priest 'was sufficient- to
'constitute a valid though not a regular marriage;
and this doctrine being authoritatively promulgated
by Lord Stowell in the case of Dalriymple v. Dal-
rymple," had been adopted by every judge in Eng-
land who subsequently, had occasion to lay down the