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Thus, if a woman marry A., and in the life-time of A. marry B., and after the death of A., and whilst B. is alive, marry C., she cannot be indicted for bigamy in her marriage with C., because her marriage with B. was a mere nullity. 1 Hale, P. C. 693.
Although it was formerly held that the marriage of an idiot was valid, yet, according to modern determinations, the marriage of a lunatic, not [ *277] in a lucid interval, is void. 1 Bl. Com. 438, 439; *1 Russell, 206. And by stat. 15 Geo. 2, c. 30, if persons found lunatics under a commission, or committed to the care of trustees by any act of parliament, marry before they are declared of sound mind by the Lord Chancellor, or the majority of such trustees, the marriage shall be totally void.
It was held, under a former law, that where the second marriage was contracted in Ireland, or abroad, it was not bigamy, on the ground that that marriage which aloue constituted the offence was a fact done in another jurisdiction, and though inquirable here for some purposes, like all transitory acts, was not as a crime cognizable by the rules of the common law. 1 Hale, P. C. 692; 1 East, P. C. 465; 1 Russell, 183. But now, by the 9 Geo. 4, c. 31, s. 22, the offence is the same, whether the second marriage shall take place in England or elsewhere.
The identity of the parties named in the indictment must be proved. Upon an indictment for bigamy, it was proved by a person who was present at the prisoner's second marriage, that the woman was married to him by the name of Hannah Wilkinson, the name laid in the indictment, but there was no other proof that the woman in question was Hannah Wilkinson. Parke, J., held the proof to be insufficient, and directed an acquittal. He subsequently expressed a decided opinion that he was right; and added, that to make the evidence sufficient, there should have been proof that the prisoner "was then and there married to a certain woman by the name of, and who called herself Hannah Wilkinson,” because the indictment undertakes that a Hannah Wilkinson was the person, whereas, in fact, there was no proof that she had ever before gone by that name, and if the banns had been published in a name which was not her own, and which she had never gone by, the marriage would be invalid. Drake's case, 1 Lew. C. C. 25.
After proof of the first marriage, the second wife is a competent witness, for then it appears that the second marriage was void. B. N. P. 287; 1 East, P. Č. 469, ante, p. 137.
The form and validity of marriages will now be considered under the following heads;-marriages in England-marriages in Scotland-marriages in Ireland-marriages abroad-marriages abroad in British factories-marriages abroad in British colonies-marriages abroad in houses of embassadors (1).
Proof of the marriages-marriage in England.] Where the marriage has taken place in England, it may be proved by a person who was present at the ceremony, and who can speak to the identity of the par
(1) In those of the United States, where there are no marriage acts, consent alone by words de præsenti, or by words de futuro, followed by a cohabitation make a valid marriage. Milford v. Worcester, 7 Mass. 48. Londonderry v. Chester, 2 N. H. 267, 268. Cheseldine v. Brewer, 1 H. & McH. 152. Fenton v. Reed, 4 Johns. 22. Benton v. Benton, 1 Day, 111. Hantz v. Sealy, 6 Binn. 405. Dumarsely v. Fishby, 2 Marsh. 370.
ties, and it is not necessary to give evidence either of the registration of the marriage, or of any license, or of any publication of banns. Alison's case, Russ. and Ry. 109 (a). The usual evidence is a copy of the register, with proof of the identity of the parties.
By the act for registering births, deaths, and marriages in England, 6 and 7 Wm. 4, c. 86, s. 35, every rector, &c. and persons having the keeping of any register book, shall permit search and give certified copies of any entries therein. And by s. 38, certified copies of entries, [*278] purporting to be sealed or stamped with the seal of the General Register Office, established by the act, are to be received in evidence of the birth, death, or marriage to which they relate, without any further or other proof of such entries.
Whether an acknowledgment of his marriage by the prisoner will be sufficient evidence against him in a case of bigamy, does not appear to have been solemnly determined. Some of the judges in Truman's case, (1 East, P. C. 471, post, p. 280,) thought that such acknowledgment alone was sufficient, and strong reasons were given by them in support of that opinion. "With respect to such evidence," says Mr. East, "it may be difficult to say, that it is not evidence to go to the jury like the acknowledgment of any other matter in pais, where it is made by a party to his own prejudice. But it must be admitted, that it may, under circumstances, be entitled to little or no weight, for such acknowledgments made without consideration of the consequences, and palpably for other purposes at the time, are scarcely deserving of that name in the sense in which acknowledgments are received as evidence, more especially, if made before the second marriage, or upon occasions where in truth they cannot be said to be to the party's own prejudice, nor so conceived by him at the time." 1 East, P. C. 471. These observations have been adopted by Mr. Serj. Russell. 1 Russell, 207 (n.) (1).
The marriages of Jews and Quakers are excepted out of the 4 Geo. 4, c. 76, and see the 6 and 7 Wm. 4, c. 85, s. 2, post, 282.
Where it was proposed to prove a Jewish marriage by calling witnesses who were present at the ceremony in the synagogue, it was objected that such ceremony was only the ratification of a previous contract in writing, and the contract was accordingly produced and proved. Horne v. Noel, 1 Campb. 61; and see Lindo v. Belisario, 1 Hagg. 225, 247(b), Appx. p. 9; Goldsmid v. Bromer, Id. 234 (c). The marriages of Quakers must be proved to have taken place according to the customs of that 1 Hagg. Appx. p. 9, (n). Deane v. Thomas, M. and M. 361 (d). The cases in which the validity of marriages in England has been questioned, on the ground of a noncompliance with the requisitions of the marriage act respecting the publication of banns and licenses will be considered under separate heads.
Proof that the parties were not resident according to the provisions of the act, will not invalidate the marriage, whether it be by banns or license, for by the 26th sec. of the 4 Geo. 4, c. 76, it is enacted, that after the solemnization of any marriage, whether by banns or license, it shall not be
(1) That defendant's confession is evidence see Commonwealth v. Murtagh, 1 Ashmead, 272. Forney v. Hallacher, 8 S. & R. 159. Cayford's case, 7 Greenl. 57. Contra. Commonwealth v. Littlejohn, 15 Mass. 163.
(a) 1 Eng. C. C. 109. (b) Eng. Eccl. Rep. iv. 367. Rep. xxii. 333.
(c) Id. 422. (d) Eng. Com. L.
necessary in support of such marriage, to give any proof of the actual dwelling of the parties in the parish where the marriage is solemnized; nor shall any evidence in either of such cases be received to prove the contrary. See Hind's case, Russ. and Ry. 253 (a); Dobbin v. Cornack, 2 Phill. 104 (b); Free v. Quin, Id. 14 (c).
Proof of the marriages-marriage in England, by banns.] In what cases a marriage shall be void, is declared by the 22d sec. of the [*279] *marriage act, 4 Geo. 4, c. 76, which enacts, "that if any persons shall knowingly and wilfully intermarry in any other place than a church, or such public chapel wherein banns may be lawfully published, unless by a special license, or shall knowingly and wilfully intermarry without a publication of banns, or license from a person or persons having authority to grant the same first had and obtained, or shall knowingly and wilfully consent to, or acquiesce in the solemnization of such marriage by any person not being in holy orders, the marriage of such persons shall be null and void."
With regard to the chapels in which banns may be lawfully published, it is enacted, by the 6 Geo. 4, c. 92, s. 2, 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 before the passing of that act (6 Geo. 4,) to solemnize marriages, and the. registers of such marriages, or copies thereof, are declared to be evidence. By sect. 3, of the last marriage act, 4 Geo. 4, c. 76, "the bishop of the diocese, with the consent of the patron and incumbent of the church of the parish in which any public chapel, having a chapelry thereunto 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 marriages in such chapels for persons residing in such chapelry or extra-parochial place, and such consent, together with such written authority, shall be registered in the registry of the diocese."
To render a marriage without due publication of banns void, it must appear that it was contracted with a knowledge by both parties that no due publication had taken place. R. v. Wroxton, 4 B. and Ad. 640 (d). And, therefore, where the intended husband procured the banns to be published in a Christian and suruame which the woman had never borne, but she did not know that fact until after the solemnization of the marriage, it was held to be a valid marriage. Id. and see Wiltshire v. Prince, 3 Hagg. Ecc. R. 332 (e).
If the prisoner has been instrumental in procuring the banns of the second marriage to be published in a wrong name, he will not be allowed to take advantage of that objection to invalidate it on an indictment for bigamy. The prisoner was indicted for marrying Anna Timson, his former wife being alive. The second marriage was by banns, and it appeared that the prisoner wrote the note for the publication of the banns, in which the wife was called Anna, and that she was married by that name, but that her real name was Susannah. On a case reserved, the judges held unanimously, that the second marriage was sufficient to constitute the of(a) 1 Eng. C. C. 253. (b) Eng. Eccl. Rep. i. 203. (c) Id. 166. (d) Eng. Com. L. Rep. Rep. v. 130.
xxiv. 131. (e) Eng. Eccl.
fence, and that after having called the woman Anna in the note, it did not lie in his mouth to say that she was not as well known 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. Edward's case, Russ. and Ry. 283 (a). 1 Russell, 201.
This principle was carried still further in a late case before *Mr. [ *280] Baron Gurney. The second wife, who gave evidence on the trial, stated that she was married to the prisoner by the name of Eliza Thick, but that her real name was Eliza Browne, that she had never gone by the name of Thick, but had assumed it when the banns were published, in order that her neighbors might not know that she was the person intended. It being objected, on behalf of the prisoner, that this was not a valid marriage, Gurney, B., said, "that applies only to the first marriage, and I am of opinion that the parties cannot be allowed to evade the punishment for the offence by contracting an invalid marriage." Penson's case, 5 C. and P. 412b). In another case, where the prisoner contracted the second marriage in the maiden name of his mother, and the woman he married had also made use of her mother's maiden name, it was unanimously resolved on a reference to the judges, that the prisoner had been rightly convicted on this evidence. Palmer's case, coram Bayley, Durham, 1827, 1 Deacon's Dig. C. L. 147.
The following rules laid down by Lord Tenterden, in a case upon the construction of the former marriage act, 26 Geo. 2, with regard to the validity of marriages celebrated by banns, must be taken subject to the limitation established in R. v. Wroxton, 4 B. and Ad. 640 (c), ante, p. 279. If there be a total variation in a name or names, that is, if the banns are published in a name or names totally different from those which the parties or one of them ever used, or by which they were ever known, a marriage in pursuance of that publication is invalid, and it is immaterial whether the misdescription has arisen from accident or design, or whether such design be fraudulent or not. (But now see R. v. Wroxton, supra.) But secondly, if there be a partial variation of name only, as the alteration of a letter or letters, or the addition or suppression of one Christian name, or the names have been such as the parties have used, and been known by, at one time, and not at another, in such cases the publications may or may not be void; the supposed misdescription may be explained, and it becomes a most important part of the inquiry, whether it was consistent with honesty of purpose, or arose from a fraudulent inten tion. It is in this class of cases only that it is material to inquire into the motives of parties. R. v. Tibshelf, 1 B. and Ad. 195 (d). A person whose name was Abraham Langley was married by banns by the name of George Smith; he had been known in the parish where he resided, and was married, by the latter name only, and the Court of King's Bench held that this was a valid marriage under the 26 Geo. 2. R. v. Billinghurst, 3 M. and S. 250. The distinction between a name assumed for other purposes, and a name assumed for the purpose of practising a fraud upon the marriage laws was clearly pointed out in the following case. iman who had deserted from the army, for the purpose of concealment assumed another name. After a residence of sixteen weeks in the parish he was married by license in his assumed name, by which only he was
(a) 1 Eng. C. C. 283. (b) Eng. Com. L. Rep. xxiv. 386. (c) Id. 131. (d) Id. xx. 371.
known in the place where he resided. Lord Ellenborough said, "If this name had been assumed for the purpose of fraud, in order to enable the [*281] *party to contract marriage, and to conceal himself from the party to whom he was about to be married, that would have been a fraud on the marriage act, and the rights of marriage, and the court would not have given effect to any such corrupt purpose. But where a name has been previously assumed, so as to become the name which the party has acquired by reputation, that is, within the meaning of the act, the party's real name." The marriage was accordingly held valid within the 26 Geo. 2. R. v. Burton-upon-Trent, 3 M. and S. 537.
But where the marriage is celebrated in a wrong name for the purpose of carrying into effect a fraud upon the marriage laws, it is void; though, as it has been shown, it would not be so considered with regard to the second marriage upon a prosecution for bigamy, as against the party guilty of the fraud. Ante, p. 279. Where the banns are published in the name of William, the real name being William Peter, and the party being known by the name of Peter, and the suppression was for the purpose of effecting a clandestine marriage with a minor, without consent, the marriage was declared null and void. Pouget v. Tomkins, 1 Phillimore, 449 (a); see also Fellowes, v. Stewart, 2 Phillimore, 257 (b), Middowcroft v. Gregory, Id. 365 (c). So where the wife at the time of her marriage personated another woman, in whose name banns had been previously published for an intended marriage with the husband. Stayte v. Farquharson, 2 Add. 282 (d).
Proof of the marriages—marriages in England-by license-minors.] Under the former marriage act, 26 Geo. 2, it was held, that if the marriage was by license, and the prisoner proved that he was a minor at the time, it lay on the prosecutor to show that the consent required by the 11th section of the above act had been obtained, or that otherwise the marriage was void. Butler's case, Russ. and Ry. 61 (e). Morton's case, Id. 19. (n.) (f). James's case, Id. 17 (g); Smith v. Huson, 1 Phillimore, 287 (h). The law on this point has been altered by the new marriage act, 4 Geo. 4, c. 76, s. 14, which merely requires consent, and has no words making marriages solemnized without such consent void. The statute therefore is regarded as directory only, and a marriage by a minor without the consent of his father, then living, has been held valid. R. v. Birmingham, 8 B. & C. 29 (i), 2 Man. and Ry. 230. So in the interval between the time of the 3 Geo. 4, c. 75, (by which the 26 Geo. 2, was repealed) receiving the royal assent, and the time when it began to operate, a marriage by license having been solemnized without consent, was held valid. Waully's case, 1 Moody, C. C. 163 (k).
By the 6 and 7 Wm. 4, c. 85, s. 10, the like consent shall be required to any marriage in England solemnized by license, as would have been required by law to marriages solemnized by license, immediately before, the passing of the act; and every person whose consent to marriage by license, is required by law, is thereby authorised to forbid the issue of the [ *282 ] superintendant registrar's *cetificate, whether the marriage is intended to be by license or without license.
But by s. 25, after the solemnization of any marriage, it shall not be (b) Id. 250. (c) Id. 279. (d) Id. ii. 532. (e) 1 Eng. C. C. (h) Eng. Eccl. Rep. i. 90. (i) Eng. Com. L. Rep. xv: 151.
(a) Eng. Eccl. Rep. i. 161. 61. (f) Id. 19. (g) Id. 17. (k) 2 Eng. C. C. 163.