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marriage, as such agreement would complete the contract, and would indeed be the real marriage, a second marriage would be within the reason and penalties of the act. (g)

It may be observed that if a person marrying again come within any of the three first of these exceptions, though the second marriage is not felony, yet, as before the statute, it is null and void, and the parties will be subject to the censures and punishment of the ecclesiastical courts. (r)

upon the sta

prehended.

It is directed by the statute that parties offending against it Proceedings "shall receive such and the like proceeding, trial, and execution, tute. Trial in "in such county where such person or persons shall be appre- the county "hended, as if the offence had been committed in such county where the "where such person or persons shall be taken or apprehended." party is apThis clause has been held to mean the place where the party is imprisoned; (s) and, as it appears from the record itself that he is brought to the bar in the custody of the sheriff, it is doubted whether it is necessary to aver in the indictment that the party was apprehended in the county where the venue is laid. (t) But the provision of the statute is only cumulative, and the party may be indicted where the second marriage was, though he be never apprehended; and so may be outlawed; for in general where a statute creating a new felony directs that the offender may be tried in the county in which he is apprehended, but contains no negative words, he may be tried in that county in which the offence was committed. (u)

Where the prisoner, having been apprehended for another offence, is detained in the same county for bigamy, the detainer is such an apprehension as will warrant the indieting him in that county. The indictment was for marrying Elizabeth Lane, whilst Mary the prisoner's former wife was living; and it charged that the prisoner was apprehended for the felony aforesaid at the parish of Astley, in the county of Worcester. It appeared that the prisoner was taken up for a larceny; and, whilst in the house of correction for that offence, a bill for bigamy was found against him at the quarter-sessions, upon which that court made an order for his

(q) 4 Blac. Com. 164. 1 East. P. C. c. 12. s. 6. p. 468.

(r) 4 Blac. Com. 164. note (3). (s) Lord Digby's case, Hutt. 131. Rex v. Jordan, post. 192.

(†) Starkie Crim. Pl. 412. note (b). 3 Chit. Crim. L. 719. notes. But in 1 East. P. C. c. 12. s. 8. p. 469. it is said that where the trial is in the County where the party was apprehended there is an averment in the indictment of that fact. And in a case at the Old Bailey, in 1798, the court is stated to have held, (upon an objection taken by the prisoner's counsel,) that as the warrant for the prisoner's apprehension had not been produced, and as it had not been proved that the prisoner was apprehended in the county of Middlesex, they had no jurisdiction to try him. Forsyth's case,

2 Leach 826. It seems, however, to
be well established that where the ju-
risdiction of the court depends upon
particular circumstances, exclusive of
the offence itself, it is in general un-
necessary to aver them upon the face
of the indictment. Thus though the
common commission of gaol delivery
extends only to prisoners in actual
custody, it need not be averred in the
indictment that the defendant was then
in prison. And where the crown is-
sues a commission to try certain per-
sons in custody before a particular
day, the indictment need not allege
that the defendant was in custody be-
fore that day. See Starkie, 27, 28.
citing Berwick's case. Fost. 10. 12
Mod. 449.

(u) 1 Hale 694. 3 Inst. 87. Starkie
11.

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Of the first marriage.

Former marriage acts.

detainer. At his first marriage he was of the age of twenty only, and he was a bastard; the second marriage was not in Worcestershire. Two points were saved: first, whether the prisoner could be considered as apprehended for this offence in Worcestershire; and, secondly, whether as the statute 1 Jac. 1. c. 11. s. 3. exempts persons where the first marriage was under the age of consent, the age of consent since the marriage act was not to be considered twenty-one. The Judges were against the prisoner upon both points. (v)

A first marriage de facto, subsisting in fact at the time of the second marriage, is sufficient to bring a case within the act, though such first marriage be voidable by reason of consanguinity, affinity, or the like; for it is a marriage in judgment of law until it is avoided. (w) But it has been ruled that though a lawful canonical marriage need not be proved, yet a marriage in fact, (whether regular or not) must be shewn; (x) which it seems must be understood where there is a prima facie evidence of a lawful marriage. (y) In a case where the first marriage, which was with a Roman Catholic woman, was by a Romish priest in England, not according to the ritual of the church of England, and the ceremony was performed in Latin, which the witnesses did not understand, and could not therefore swear that the ceremony of marriage according to the church of Rome was read; it was directed that the defendant should be acquitted. (2) Willes, C. J. who tried him seemed to be of opinion that a marriage by a priest of the church of Rome was a good marriage, (a) if the ceremony according to that church could be proved; namely, the words of the contracting part of it.

The former marriage act, 26 Geo. 2. c. 33. required all marriages to be by banns or licence: and declared that all marriages solemnized in any other place than a church or public chapel (unless by special licence) or solemnized without publication of banns or licence, should be null and void to all intents and purposes. It contained also special provisions as to the publication of banns; and, as to marriages by licence, it provided that all such marriages, where either of the parties, not being a widower or widow, was under the age of twenty-one years, had without the consent of the father of such of the parties so under age (if then living) first had and obtained; or if dead, of the guardian or guardians of the person of the party so under age, lawfully appointed, or one of them; and in case there was no such guardian or guardians, then of the mother (if living and unmarried); or if there was no mother living and unmarried, then of a guardian or guardians of the person appointed by the Court of Chancery; should be absolutely null and void to all intents and purposes whatsoever. (b) But these provisions as to marriages by licence

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were repealed by 3 Geo. 4. c. 75. s. 1. as to any marriages thereafter to be solemnized; and it was further enacted that in all cases of marriage solemnized by licence before the passing of this act of 3 G. 4. without any such consent, and where the parties had continued to live together as husband and wife till the death of one of them, or till the passing of the act, or had only discontinued their cohabitation for the purpose, or during the pending of any proceedings touching the validity of such marriage, such marriage, if not otherwise invalid, should be deemed good and valid to all intents and purposes. (a) This act of 3 G. 4. contained also enactments as to the granting of licences, the consent of parents and guardians, and the publication of banns, which have been subsequently repealed by the 4 G. 4. c. 17. which enacted that licences should and might be granted by the same persons, and in the same manner and form, and, in the case of minors, with the same consent, and banns be published in the same manner and form, as licences and banns were respectively regulated by the 26 G. 2. c. 33.; and enacted also (by s. 2.) that all marriages which had been or should be solemnized under licences granted, or banns published, conformably to the provisions of the 3 G. 4. c. 75. should be good and valid; and that no marriage solemnized under any licence granted in the form or manner prescribed, by either the 26 G. 2. c. 33. or the 3 G. 4. c. 75. should be deemed invalid on account of want of consent of any parent or guardian. The old

made for a petition to the lord chancellor, &c. where the guardians or mother were not in a situation to consent, or to refuse to consent. By s. 4. licences were to be granted to solemnize matrimony in the church or chapel of such parish only, where one of the parties had resided for four weeks before. But by s. 10. proof of the actual dwelling in the parishes, &c. where a marriage was by banns, or of the usual place of abode of one of the parties, where a marriage was by licence, was made unnecessary after the solemnization of the marriage; and evidence was not to be received in either of these cases to prove the contrary, in any suit touching the validity of the marriage. (a) 3 G. 4. c. 75. s. 2. The third section provided, that the act should not render valid any marriage declared invalid by any court of competent jurisdiction before the passing of the act; nor any marriage when either party should at any time after wards, during the life of the other party, have lawfully intermarried with any other person. Nor (by s. 4.) any marriage the invalidity of which had been established, before the passing of the act, upon the trial of any issue touching its validity, or touching the legitimacy of any person al

VOL. I.

leged to be the descendant of the parties to such marriage. Nor (by s. 5.) any marriage the validity of which, or the legitimacy of any person alleged to be the lawful descendant of the parties married, had been duly brought into question in proceedings in any causes, &c. in which judgments or decrees, or orders of court, had been pronounced, or made before the passing of the act, in consequence of or from the effects of proof in such causes, &c. of the invalidity of such marriage, or the illegitimacy of such descendant. The sixth section provided that if, before the act, any property had been possessed, or any title of honour enjoyed on the ground of the invalidity of any marriage, by reason that it was solemnized without consent, then, although no sentence had been pronounced against the validity of such marriage, the right and interest in such property, or title of honour, should in no manner be affected or prejudiced. And by s. 7. nothing in the act was to affect or call in question any act done before the passing of the act, under the authority of any court, or in the administration of any personal estate or effects, or the execution of any will or testament, or the performance of any trust.

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4 G. 4. c. 76.

S. 1. repeals 26

4 G. 4. c. 17.

marriage act was then in a great measure revived, though only for a short period, as will be presently seen. The statute 4 G. 4. c. 5. was passed to render valid certain marriages which had been solemnized by licences granted through error, after the passing of the 3 G. 4. c. 75. by or in the name of bodies corporate or persons their officers or surrogates, other than the archbishops of Canterbury and York, and the bishops within their respective dioceses, who were alone authorized to grant such licences by the 3 G. 4. c. 75.: but this provision of the 4 G. 4. c. 5. applies only to marriages solemnized by such erroneous licences granted after the 3 G. 4. and before the passing of the 4 G. 4. c. 5.

The principal marriage act of the present day appears to be the 4 G. 4. c. 76., many of the provisions of which require to be here noticed.

It recites that it is expedient to amend the laws respecting the G. 2. c. 33. and solemnization of marriages in England; and then enacts, that, from and after the first day of November next ensuing the passing of the act (November, 1823,) so much of the 26 G. 2. c. 33. as was in force immediately before the passing of this act, and also the 4 G. 4. c. 17. shall be repealed, save and except as to any acts, matters, or things, done under the provisions of the said acts, or either of them, before the said first day of November, as to which the said acts are respectively to be of the same force and effect, as if this act had not been made, save also and except so far as the said acts, or either of them, repeal any former act, or any clause, &c. therein contained.

S. 2. Banns where, when, and how published, and

solemnized

where banns published.

The second section enacts, "that from and after the first day of "November, (1823,) all banns of matrimony shall be published "in an audible manner in the parish church, or in some public marriage to be "chapel, in which chapel banns of matrimony may now or may "hereafter be lawfully published, of or belonging to such parish "or chapelry, wherein the persons to be married shall dwell, "according to the form of words prescribed by the rubric pre"fixed to the office of matrimony in the book of Common Prayer, upon three Sundays preceding the solemnization of marriage, "during the time of morning service, or of evening service, (if "there shall be no morning service in such church or chapel upon "the Sunday upon which such banns shall be so published,) "immediately after the second lesson; and whensoever it shall

S. 3. Bishop, with consent

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66

66

happen that the persons to be married shall dwell in divers "parishes or chapelries, the banns shall in like manner be pub"lished in the church, or in any such chapel as aforesaid, "belonging to such parish or chapelry wherein each of the said persons shall dwell; and that all other the rules prescribed by "the said rubric concerning the publication of banns, and the "solemnization of matrimony, and not hereby altered, shall be "duly observed; and that in all cases where banns shall have "been published, the marriage shall be solemnized in one of "the parish churches or chapels where such banns shall have "been published, and in no other place whatsoever."

The third section enacts, "that the bishop of the diocese, with "the consent of the patron and the incumbent of the church of andincumbent, "the parish in which any public chapel, having a chapelry there

of the patron

66

"unto annexed, may be situated, or of any chapel situated in an extra-parochial place, signified to him under their hands and "seals respectively, may authorize, by writing under his hand and "seal, the publication of banns and the solemnization of mar"riages in such chapel for persons residing within such chapelry "or extra-parochial place respectively; and such consent, toge"ther with such written authority, shall be registered in the re"gistry of the diocese."

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The fourth section enacts, "that in every chapel in respect of S. 4. Notice to "which such authority shall be given as aforesaid, there shall be be placed in such chapel. "placed in some conspicuous part of the interior of such chapel a notice in the words following: banns may be published, and "marriages solemnized in this chapel.""

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The fifth section enacts, "that all provisions now in force, or "which may hereafter be established by law, relative to pro"viding and keeping marriage registers in any parish churches, "shall extend and be construed to extend to any chapel in which "the publication of banns and solemnization of marriages shall be 66 so authorized as aforesaid, in the same manner as if the same were a parish church; and every thing required by law to be "done relative thereto by the churchwardens of any parish church, "shall be done by the chapelwarden or other officer exercising "analogous duties in such chapel."

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The sixth section enacts, "that on or before the said first day "of November, and from time to time afterwards as there shall "be occasion, the churchwardens and chapelwardens of churches "and chapels, wherein marriages are solemnized, shall provide a 66 proper book of substantial paper, marked and ruled respectively "in manner directed for the register book of marriages; and the "banns shall be published from the said register-book of banns "by the officiating minister, and not from loose papers, and after "publication shall be signed by the officiating minister, or by some person under his direction."

66

The seventh section enacts, "that no parson, vicar, minister, ❝or curate, shall be obliged to publish the banns of matrimony "between any persons whatsoever, unless the persons to be mar"ried shall, seven days at the least before the time required for "the first publication of such banns respectively, deliver or cause "to be delivered to such parson, vicar, minister, or curate, a "notice in writing, dated on the day on which the same shall be 66 so delivered, of their true Christian names and surnames, and of "the house or houses of their respective abodes within such 66 parish or chapelry as aforesaid, and of the time during which "they have dwelt, inhabited, or lodged, in such house or houses 66 respectively."

66

66

S.5. Provisions riage registers extended to chapels so authorized as

relative to mar

aforesaid.

S. 6. Book to be provided for the registration of banns, &c.

s. 7. Notice of
names, and
of abode of
parties to be
given to the

place and time

minister.

s. 8. How far ministers not

The eighth section enacts, "that no parson, minister, vicar, or "curate, solemnizing marriages after the first day of November punishable for next, between persons, both or one of whom shall be under the marrying miage of twenty-one years, after banns published, shall be punish- nors without "able by ecclesiastical censures for solemnizing such marriages consent. "without consent of parents or guardians, unless such parson, lication of "minister, vicar, or curate, shall have notice of the dissent of banas void. "such parents or guardians; and in case such parents or guar

In what case pub

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