"Here I must observe how little weight is to be given to what was gravely relied upon at the bar, the prevailing belief among mankind of the neces sity of the presence of a priest at a valid marriage, as evinced by novelists and dramatists : for it will be found that these expounders of the law always make a marriage by a sham parson void, contrary to the opinion of Lord Stowell and the canonists; and they give validity to marriages in masquerade, when the parties were entirely mistaken as to the persons with whom they are united; marriages which would hardly be supported in the Ecclesias tical Court, in a suit of jactitation, or for restitution of conjugal rights." Lord Campbell also observed : — '• What if the person who officiates as a priest, and is believed by the parties to be so, is no priest, and has never received orders of any kind? Mr. Pemberton admitted at the bar, as according to the authorities he was bound to do, that the mar riage would be valid. Lord Stowell repeatedly expressed an opinion to this effect; and it turns out that in the instance of a pseudo parson, who about twenty years ago officiated as curate of St. Martin's-in-the- Fields, and during that time mar ried many couples, upon the discovery of his being an impostor, which became a matter of great noto riety, no act of parliament passed to give validity to the marriages which he had solemnized; which could only have arisen from the government of the day being convinced, after the best advice, that in themselves they were valid. . . . The proposition must now be changed " (to this) "that there must be one believed by the parties to be a priest in apostolical orders; and a marriage by a layman may be good. There is a good marriage by a lay man from the mistake of the parties, who thought that he was a priest with power to marry them." "Lord Stowell has referred to the .marriage be tween the first parents of mankind; and looking to a more modern case, which would be deter mined by the common law of England, I pre sume the learned judges would not doubt that in the recent settlement of Pitcairn's Island the de scendants of the mutineers of the 'Bounty' might lawfully have contracted marriage before they had been visited by a clergyman in episcopal orders." Mr. Pemberton, arguing in the Millis case, asked, why should parties have " got men to
assume the habit of priests, who were not priests, if the marriage would have been perfectly valid " without a priest? To which Lord Campbell immediately answered, to avoid the danger of ecclesiastical censure. Mr. Pemberton also admitted " that if the party went to a minister of another sect, and represented himself as belonging to that sect, and his representation was believed by the woman," the marriage would be good, " for the proceeding would otherwise be a fraud." The decision in Queen v. Millis had the effect of reversing the doctrine laid down by that most famous of authorities on marriage law, Sir William Scott, in the very celebrated case of Dalrymple v. Dairym pie, 2 Hag. Cons. It is worthy of note at this point, that the Supreme Court of the United States were equally divided in opinion on the same question, in Jewell v. Jewell, I How. 219; but the subject was passed without any re ported opinions, the case being decided on other grounds. It will now be well to glance at the few English decisions which to any extent ap proach the precise point in question. In Weld v. Chamberlaine, 2 Shower [300], Pemberton, C. J., was "inclined to think" that a marriage before a parson, ejected in 1663, was valid, though no ring was used, "there being words of contract de prcesenti repeated after a parson in orders; but upon the importunity of counsel a case was to be made thereof." In Catterrall v. Catterall, 1 Rob. Ec. 580, Dr. Lushington held that a marriage cele brated in New South Wales by a Presbyte rian clergyman was valid under English law, although the statute of England required the presence of a priest in orders of the English established church. In Catherwood v. Caslon, 13 M. & W. 261 (1844), it was held that a marriage be tween English subjects, celebrated according to the rites of the church of England, but not in the presence of a priest in holy orders, is invalid at the common law. This was a marriage celebrated by an American mis
