Sivut kuvina

viously assumed, so as to have become the name which the party “ has acquired by reputation, that is, within the meaning of the “ marriage act, the party's true name.” (d)

It seems that the assuming a fictitious name, upon the second marriage, will not prevent the offence from being complete. (e) And it was decided to be no ground of defence, that upon the second marriage (which was by banns) the parties passed by false Christian names when the banns were published, and when the marriage took place: and it was further holden that the prisoner, having written down the names for the publication of the banns, was precluded thereby from saying that the woman was not known by the name he delivered in, and that she was not rightly described by that name in the indictment. The indictment was against the prisoner for marrying Anna Timson whilet he had a wife living : the second marriage was by banns; and, it appeared, that the prisoner wrote the note for the publication of the banns, in which the woman was called Anna, and that she was married by that name, but that her real name was Susannah. Upon a case reserved two questions were made : one, whether this marriage was not void, because there was no publication of banns by the woman's right name, and that, if the second marriage were void, it created no offence; and the other question was, whether the charge of the prisoner's marrying Anna was proved. But the Judges held, unanimously, that the second marriage was sufficient to constitute the offence; and that, after having called the woman “Anna" in the note he gave in for the publication of banns, it did not lie in the prisoner's mouth to say, that she was not known as well by the name of Anna as by that of Susannah, or that she was not rightly called by the name of Anna in the indictment. (5)

It has been seen that the sixteenth section of the marriage act The prosecutor makes the consent of the father, guardians, or mother, necessary to must shew the the validity of a marriage by licence, where the party is a minor. of parents, &c. And it appears to have been held, upon the former marriage act, if that the party prosecuting must shew such consent.

where the Upon an indictment for bigamy, the first marriage imported by by licence.

marriage is the register to have been by licence, and the prisoner proved that at that time he was under age. A question was raised, whether this threw it upon the prosecutor to prove consent; and, it appear. ing that by the marriage act the register ought to state consent, if either party was under twenty-one, Wilson, I. held it did ; and he directed an acquittal. (g) So, after a conviction, the Judges, upon much discussion, were of opinion that the form of the register of the first marriage, then in question, which expressed the marriage to have been by licence generally, without saying by consent of parents or guardians, together with the fact of the parents never having been known to have been in England, were prima facie evidence that the first marriage was had without the consent of parents or guardians, upon which the jury might have found the prisoner not guilty. (i)

(d) Rex v. 'Burton upon Trent, 3 (g) Rex v. Morton, cor. Wilson, J. M. and S. 537.

Newcastle, 1789. MS. Bayley, J. and fe) Rex v. Allison, post. 207. Russ. and Ry. 19. note (a).

(f) Rex v. Edwards, Mich. T. 1814. (i) James's case, Mich. T. 1802. Hil. MS. Bayley, J. and Russ, and Ry. 283. T. 1803. Russ. and Ry. 17. And the

In a subsequent case it was also determined that if the pri. soner prove (as it is competent for him to do) that his first marriage took place while he was a minor, it must be shewn, on the part of the prosecution, that such marriage, if by licence, was with the proper consent. The prisoner was indicted at the Old Bailey July Sessions, 1803, for bigamy, in marrying Elizabeth Field, his first wife Lydia being still living: and it was proved that on the 12th Feb. 1791, he was married to Lydia Blackwell by licence, and that she was living on the 8th of June last; and that on the 14th December, 1800, he married Elizabeth Field. On behalf of the prisoner it was proved that he was born on the 2d of January, 1771, and that his father was then alive: and it was then contended that the first marriage was void as it was not proved to have been by the consent of his father. Lawrence, J. told the jury that he thought the marriage was to be presumed valid, unless the prisoner proved that he had not that consent, and under his direction the prisoner was found guilty. But the point being saved for the consideration of the Judges, they held the conviction wrong; as it was clearly proved that the prisoner was under age at the

time of the first marriage, and as there were no circumstances from

which consent could be presumed. (a) Consent to the Though illegitimate children are regarded by the law as not

in the case of illegiti. having any father, yet they were held to be within the marriage mate children. act of 26 Geo. 2.; and a marriage by licence between two illegiti

mate children, who were minors, without consent of parents or guardians, was therefore held to be void. (g)

And formerly it was the opinion of the court of King's Bench, that the power of consent given by the act to the father and mother was intended to include reputed parents, as being interested in their children's welfare, and bound to provide for them by the laws of nature: (h) but in a case which came before the consistorial court in London, in 1799, a different doctrine was held by the very learned Judge of that court, who was of opinion that the reputed parents were not enabled to consent, and that the consent could be Iawfully given only by a guardian appointed by the court of Chancery. (i) And in a more recent case three of the Judges of the court of King's Bench adopted the latter opinion; and, after much argument and consideration, certified to the Master of the rolls that all marriages, whether of legitimate or illegitimate persons, were within the general provision of the marriage act 26 Geo. 2. c. 33. which required all marriages to be by banns or licence; and that the consent of the natural mother to the marriage, by licence, of an illegitimate minor, was not a sufficient consent within the eleventh

Judges directed the prisoner to be dis- (a) Rex v. Butler, Mich. T. 1803.
charged on his own recognizance. MS. Bayley, J. and Russell and Ryles,
Lord Kenyon at the first meeting 61. It seems that subsequent couu-
seemed to be of opinion, that it was tenance from parents or guardians, or
sufficient for the prisoner to prove other circumstances of a similar kind,
himself under age at the time of the might afford ground for presuming the
first marriage; and that it then rested necessary consent.
with the prosecutor to shew that the (g) Rex v. Hadnett, 1 T. R. 96.
marriage was with the consent of pa- (h) Rex v. Edmonton, Cald. 435.
rents or guardians, but that the pri- (i) Horner v. Liddiard, Rep. by Dr.
soner ought not to be called upon to Croke.
prove a negative,


section of that act; and that consequently the marriage in question was void by the said statute. (k)

One point upon the construction of the former marriage act 26 Marriages ceGeo. 2. c. 33. was determined by the court of King's Bench,

with churches and much reluctance; the able Judge who then presided in that Court chapels erected seeming to discourage an attempt to try a question of such serious since the marconsequence in à collateral way, on a settlement case : but, after Geo. 2. c. 33. consideration, it was decided that a marriage celebrated by banns, in a chapel erected after that statute was passed, and not upon the site of any ancient church or chapel, was void, although marriages had been de facto frequently celebrated there; the words of the statute "in which chapel banns have been usually published” being held clearly to mean chapels existing at the time it was passed. (0) But as soon as the determination of the Court in this case was known, a bill was introduced into Parliament, which passed into a law, making valid all marriages which had been celebrated in any parish church or public chapel, erected since the passing of the 26 Geo. 2. c. 33. and consecrated, and providing that the registers of such marriages shall be received as evidence. (m) The fourth section enacted, that the registers of marriages thereby made ralid should within twenty days after the first of August, 1781, be removed to the church of the parish in which such chapel should be situated; or, if it should be situated in an extra-parochial place, to the parish church next adjoining; to be kept with the registers of such parish. And these provisions were extended by the 44 Geo. 3. c. 77. and the 48 Geo. 3. c. 127. to marriages celebrated in such chapels before the 23d August, 1808; and the registers of such marriages are in like manner to be removed to parish churches, and transmitted to the bishop. A more recent statute 6 Geo. 4. c. 92. recites that since the act 26 Geo. 2. c. 33. and the act 44 Geo. 3. c. 77. divers churches and chapels had been erected and built in England, Wales, and the town of Berwick upon Tweed, which had been duly consecrated, and divers marriages had been solemnized therein since the passing of the 44 Geo. 3. c. 77.: but by reason that in such churches and chapels banns of matrimony had not usually been published, before or at the time of passing the 26 Geo. 2. c. 33., nor any authority obtained for solemnizing marriages therein, under the provisions of the 4 Geo. 4. c. 76., such marriages had been or inight be deemed to be void ; and then enacts, that all marriages already solemnized in any

church or public chapel in England, Wales, and the town of Berwick upon Tweed, erected since the act of the 26 Geo. 2. c. 33. and consecrated, shall be as good and valid in law as if such marriages had been solemnized in parish churches or public chapels, having chapelries annexed, and wherein banns had usually been published before or at the time of passing the said act of 26 Geo. 2. The second section enacts, that it shall be lawful for marriages to be in future solemnized in all churches and chapels erected since the 26 Geo.2.c.33. and consecrated," in " which churches and chapels it has been customary and usual,

(k) Priestley v. Hughes, 11 East. 1. Lords in an appeal from the decree in Grose, J. differed, and sent a separate this case. certificate. The question

(1) Rex v. Northfield, Dougl. 659. wards brought before the House of (m) 21 Geo. 3. c. 53.

was after

“ before the passing of this act, to solemnize marriages ;” and that all marriages hereinafter solemnized therein shall be as good and valid as if they had been solemnized in parish churches, &c. wherein banns had usually been published before or at the time of passing the said act of 26 Geo. 2. And the registers of marriages solemnized in the churches or chapels, by this act of 6 Geo. 4. enacted to be valid in law, or copies thereof, are to be received as evidence, in the same manner as the registers of marriages in parish churches, &c. in which banns were usually published before or at the time of the 26 Geo. 2. c. 33., or copies thereof are received; but liable to the same objections as would be available to exclude the latter from being received. (a) But such registers of marriages, solemnized in any public chapel, and made valid by this act of 6 Geo. 4. c. 92. are, within three months from the passing of the act, to be removed to the parish church of the parish in which such chapel is situated; and if it be situated in an extraparochial place, then to the parish church next adjoining, to be kept with the marriage registers of such parish, and in like manner as parish registers are directed to be kept by the said act of the 26

Geo. 2. (b) Marriages in

The marriage act is restrained by sect. 33. (c) to that part of the Scotland and places beyond united kingdom called England. 'With respect to marriages in the seas good, Scotland, though the point was formerly much doubted, (o) it apif performed according to

pears to have been afterwards settled that where minors domiciled the rites and

in England withdrew themselves into Scotland, or places beyond customs of the the seas, for the purpose of evading the marriage act, their marcountry in which they

riage under such circumstances was nevertheless valid. (p) And were cele in the case of a marriage in such distant place, it appears to be brated. sufficient to shew that it was performed according to the rites and Marriage in custom of the country in which it was celebrated. In a case respectSt. Domingo. ' ing the settlement of a pauper, the facts were that a soldier on

service with the British army in St. Domingo, in 1796, being desirous of marrying the widow of another soldier who had died there in the service, the parties went to a chapel in the town, and the ceremony was there performed by a person appearing and officiating as a priest; the service being in French, but interpreted into English by a person who officiated as clerk, and understood at the time by the pauper to be the marriage service of the church of England. This was held sufficient evidence, after eleven years' cohabitation, that the marriage was properly celebrated; although the pauper (who was the woman) stated that she did not know that the person officiating was a pricst. Lord Ellenborough, C.J. in delivering his opinion, considered the case, first, as a marriage celebrated in a place where the law of England prevailed, (supposing, in the absence of any evidence to the contrary, that the law

(a) 6 Geo. 4. c. 92. s. 8.

in reasoning upon the case of Philips (b) Id. s. 4.

v. Hunter, 2 H. Blac. 412. And in (c) Ante, p. 200.

Ildertoo v. Ilderton, 2 H. Blac. 145. it (0) See Burn's Just. Marriage, and was taken to be clear that a marriage, the observations of Lord Mansfield in celebrated in Scotland, is such a njarRobinson v. Bland, i Burr 1079. riage as would entitle the woman to

(p) Crompton v. Bearcroft, Bull. N. P. her dowcr in England. 113.; and see the opinion of Eyre, C.J.

of England, ecclesiastical and civil, was recognized by subjects of England in a place occupied by the king's troops, who would impliedly carry that law with them,) and held that it would be a good marriage by that law: for it would have been a good marriage in this country before the marriage act, and consequently would be so now in a foreign colony, to which that act does not extend. In the second place, he considered it upon the supposition that the law of England had not been carried to St. Domingo by the king's forces, nor was obligatory upon them in this particular; and held that the facts stated would be evidence of a good marriage according to the law of that country, whatever it might be; and that upon such facts every presumption was to be made in favour of the validity of the marriage. (9) In a subsequent case at the Old Marriage by Bailey, a question was

made whether a marriage of a dissenter in teacher in a Ireland, when performed by a dissenting minister in a private room, private room was valid. It was contended on behalf of the prisoner, who was

in Ireland. indicted for bigamy, that the marriage was illegal from the clandestine manner in which it was celebrated; and several Irish statutes were cited, from which it was argued that the marriage of dissenters in Ireland ought at least to be in the face of the congregation, and not in a private room. But the Recorder is said to have been clearly of opinion that this marriage was valid, on the ground that as, before the marriage act, a marriage might have been celebrated in England in a house, and it was only made necessary, by the enactment of positive law, to celebrate it in a church, some law should be shewn requiring dissenters to be married in a church, or in the face of the congregation, in Ireland, before this marriage could be pronounced to be illegal : whereas one of the Irish statutes, 21 and 22 Geo. 3. c. 25. (r) enacted, that all marriages between Protestant dissenters, celebrated by a Protestant dissenting teacher, should be good, without saying at what place they should be celebrated. (s)

With respect to the marriage of minors in Ireland, the statute 9 Geo. 2. c. 11. (Irish) contains some provisions. And the statute 58 Geo. 3. c. 84. was passed to remove doubts which had arisen as to the validity of marriages solemnized within the British territories in India, by ordained ministers of the church of Scotland.

The statute 4 Geo. 4. c. 91. recites the expediency of relieving 4 Geo. 4. c. 91. the minds of all his Majesty's subjects from any doubt concerning certain mar

(9) Rex v. Brampton, 10 East. 282. Geo. 3. c. 21. s. 12. only authorizes

(r) And see 11 Geo. 2. c. 10. By 32 Popish priests to celebrate marriage Geo. 3.c. 21. s. 12. Protestants may be between a Protestant and a Papist, married to Roman Catholics by cler- where such Protestant and Papist have gymen of the established church : but been first married by a Protestant clerS. 13. contains a proviso that the act gyman. shall not authorize Protestant dissent. (8) Rex v. Old Bailey, Jan. ing ministers or Popish priests to cele- Sess. 1815, cor. Sir J. Silvester, Rebrate marriage between Protestants of corder. MS. The prisoner was an offithe established church and Roman Ca- cer in the army; and his first marriage, tholics. The clause however does not upon which this question was raised, eoact that such a marriage celebrated took place in 1787, at Londonderry. by a Protestant dissenting teacher shall The second marriage was celebrated in be void. Such a marriage, celebrated London, according to the ceremonies by a Popish priest, would by of the church of England. 19 Geo. 2. c. 13. (Irish); and the 33

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