The False Priest.

tied that before Lord Hardwicke's act the presence of a person in holy orders was nec essary to constitute a valid marriage. Millis was indicted in Ireland for bigamy. His defence was that his first marriage was in valid because it had been celebrated by a Presbyterian clergyman. The question was discussed at great length and with vast learning by counsel and by the law lords. The opinion of the common law judges, re quested by the lords, was expressed by ChiefJustice Tyndal, and was unanimous against the validity of the marriage; and this was the opinion of Lyndhurst, Lord Chancellor of Abinger, Lord Chief Baron, and of Lord Cottenham; while to the contrary was the opinion of Lords Brougham, Campbell, and Den man. It seems to me that the latter easily had the better of the argument; and it seems a sufficient reason for thinking so, that otherwise every marriage of Jews and Quak ers in England before 1753, was utterly void. It is amazing that the three learned lords should have adopted- this view, which in volved the disgrace of thousands of innocent families, based wholly upon an obscure reference to a statute of Edmund which re quired the presence of a " mass priest," and an ordinance supposed to have been adopted by the Council of Winchester, in 1076, pre sided over by Archbishop Lanfranc, a Nor man, called into England by William the Conqueror, that the benediction of a priest was essential to the validity of a marriage; supported by some scattering dicta and two ancient and obscurely and imperfectly re ported cases. The robust sense of Campbell and Brougham, fortified by the learning of Holt, Blackstone, and Sir William Scott, and the opinions of Kenyon, Ellenborough, Sir William Scott, and Gibbs revolted at this narrow and inconvenient notion, Denman made the strong suggestion that " nothing in the Old Testament requires the presence of a priest at a marriage; nothing in the New; " and Brougham cited eleven ancient canonical writers, not one of whom claimed any such power for the church. It is highly

probable that the early priests tried to com pel parties intending marriage to pay tribute, spiritual and in money, to the church, to be enabled to make a contract of this kind; but the idea that the priesthood could impose that notion as a law upon the people in Eng land is a remarkable exhibition of the nar rowness of English judicial vision. But the most surprising part of this judg ment is that it only took its form rather than the reverse on account of the way in which the question was put to the lords. Accord ing to the rules of the House, the question was put " that the judgment be reversed," and the rule being semper prcesumitur pro negante, the judgment was affirmed by the equal division; and thus, as Campbell says (Life of Lyndhurst), " a judgment passed by which hundreds of marriages, the validity of which had not been doubted, were nullified, and thousands of children were bastardized." Campbell entered a formal protest, and the decision led to the enactment of the Dissent ers' marriage, which patched up the old mar riages. " The measure was strongly op posed," says Campbell (Life of Campbell), "by the Irish primate and several of the or dinary supporters of the government." 1 It is in this celebrated case that I find the only absolutely direct judicial expression concerning the precise subject in hand, and it did not amount to more than an obiter dictum. Mr. Kindersley, arguing that a religious ceremony was necessary to a valid marriage at common law, said : — "And did pot the customs of the people show that? What but that occasioned the Fleet mar riages and the marriages of May Fair? and what made the writers of plays and novels always de scribe marriages as taking place before a priest, if a mere contract per verba de prcesenti was sufficient to constitute marriage?" To which Lord Campbell replied in his opinion : — 1 For excellent accounts of this case, see also Snyder's "Great Opinions by Great Judges," p. 425.