The Irish Marriage Question. The order of the day being read for the further considera- tioei of this cause, the house proceeded to take the same into consideration: and it being moved to reverse the judg- ment complained of, the same was objected to; and the question was put, whether the judgment complained of should be reversed I Lord Cottenhara and Lord Campbell were ap- pointed to tell the number of the votes; and upon report thereof to the house it appeared that the votes were equal, viz. two for reversing, and two for affirming. Whereupon, according to the ancient rule in the law, 8emper presumitur pro snegante, it was determined in the negative therefore, the judgment of the Court below was affirmed, and the re- cord remitted. Dissentient, 1. Because it appears by the special verdict that George Millis, before his second marriage (the regularity of which is not questioned), had been married to Esther Graham by a Presbyterian minister, 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 contemplating any further ceremony to complete their marriage, they cohabited together as husband and wife, and, there being no statute to affect the validity of such a marriane in Ireland, it is valid by the common law of Eng- land, which is admitted to be the law of Ireland upon this sub3ect. 2. Because the only objection made to the validity of this marriage is, that it was not solemnized by a priest episco- pally ordained; and by the common law of England it was not necessary to the validity of a marriage that it should be solemnized by a rist, although to be regular there are eanons requiring twit it should be solemnized by a priest in the face of the church. 3. Because it is admitted that before the Reformation the validity of marriages was a matter of ecclesiastical cognizance in Englvnd, 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, ail ecclesiastics, mem- bers of the western church, being geverned by the same laws, and the appeal from their [decisions being to Rome as the ceurt of last resort. 4. Beca-ase, 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 wkich parties having intended to enter into present matrimony, and believed they had done 8o, and hbad lived together as man and wife, their marriage has been held invalid on the ground that it was not solemnized by a priest in orders, and the necessity for the presence of a priest in orders to prevent the marriage from being invalid is not laid down by any institutional writer treating of this branch of the lar of England. 5. Because the'relation constituted between George 3Iillis and Esther Graham by their marriage and cohabitation as husband and wife is materialy different from that subsisting between a man and a woman 'who have merely costracted to marry per vcrba presenti tempore, meaning that they shall be irrevocably engaged to each other, but that a marriage ceremony shall be performed between them before they live together as husband and wife; and the marriage between George diliHs and Esther Graham cannot properly be con- sidered 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 reram inatrimozniu, insomuch that they could not be pro- ceeded against for fornication, that they could only be com- pelled to celebrate the existing marriage in the face of the church, and that if either of them before such celebration cohabited with another, this cohabitation was censured as adultery; and because, the commerce between persons so married ithout the intervention of a priest being acknow- ledged by the church to be that of husband and wife, the issue could not be considered illegitimate; and, applying this decisive test to try the validity of the marriage, it must havc been considered valid. 7. Because, of the only two cases leading to a contrary conclusion, which occurred in the reign of Edward I., we have no satisfactory statement, and they canaot be at all re- lied upon; for they would show that a marriage solemnised by the priest of the parish or by a bishop in a private dwell- ing, was a nullity; this being entirely contrary to the doec trine now contended for on behalf of the defehdant, which allows, that for all purposes such a marriage before Lord Hardwicke's Act in the year 1763 would have been as valid as if celebrated in the face of the church. 8. Because the other authorities relied upon may be recon- ciled to the doctrine that by the common law of England, if parties were so minded, they might have entered into a valid marriage wvithout the intervention of a priest, and, at any rate, are greatly outweighed by the authorities on the other side. U. Because, although marriage according to the doctrine prevailing when the common law took its origin was a sacra ment, some sacraments might be administered 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 necessity for the intervention of a priest may well be aceounted for from he canons of the church in favour of regular mar- riages, and from the laudable custom of parties generally .ishing toJon in a religious ceremony when they enter into such a solemn engagement. 11. Because the position that a marriage to be valid must have been solemnized per p2wbyclyermn sanctis oidinibus cont- stitut urn, is disproved by the admission, that since the Re- formation a valid marriage might be celebrated by a deacon, and because the explanation of this circumstance, that the lav 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 solemnize marriage is conferred uDon a deacon by the Act of Uniformity, or any other legislatire enactment. 12. Because the class of clergymen who are alleged to be necessary and sufficient for the solemnization of marriage not being confined to clergymen ordained by bishops of the church of Bngland, but including all who, according to the opinion of theologians, are to be considered apostolicaLy or- dained, and amongstothers Roman Catholic priests before they bave 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 daly qualified to solemnize marriage betwveen Eng- lish subjects in countries where the English statutes respect- ing marriages do not prevail. 13. Because it is admitted on behalf of the defendant, that a marriage solemnized by a person believed by the par- ties to be a priest in episcopal orders was valid, although in truth he was not in orders, while it is contended that the marriage solemnized by a Presbyterian minister whom the parties believed to be sufficiently authorized to solemize it, is a nullity. 14. Because the marriages of Quakers and Jews, excepted from the oDeration 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 marriaze without the intervention of a priest in orders. 15. Because 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 atten- dance of such a priest cannot be obtained, a valid and regular marriage may be entered into by the consent of parties be- fore witnesses. 16. 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 DEOLARE'D 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 la of England the consent of the parties without the interven- tion 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 "Dalrymple v. Dalrymple,' had been adopted by every judge in England vho subsequently had occasion to Lay dow n the laws upon the subject, including Lord Ellenboreugh, L,ord Tenterden, Lord Chief Justice Gibbs, Sir J. Nicholl, Sir H. Jenner, and Lord 18. Because there have been many convictions for bigamy in Ireland where the first marriage was solemnized by a Presbyterian minister, although both parties were not Dis- senters, and the persons so convicted have been sentenced to transportation, and some of them are now undergoing the punishment awrarded to theml. 19. Because the noble and learned lords by whose opinion this judgment is affirmed admit that they are obliged " to overrule authorities to wrhich the greatest respect is due;," all the recent authorities are uniformlly in fa.vour of the va- lility of the marriage in dispute ;-upon all questions it is desirable, that when the law has once been esnaidered settled by judicial decision it should not be again disturbed; and this is particularly the case with respect to the law of maajrdriagne, for the sake of honourable women and innocent children. ~ ~ ~ L CAMPBELL. TBE IRiSf MARRIAGB QUESTION. LORD CAMPBELL'S PROTEST. HOUSE OF LORDS, FRIDAY, MAROU 29. THE QUEEN V. KILLIS.-WRTT OP FRROR