« EdellinenJatka »
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 (6); Free r. 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 ] *inarriage act, 4 Geo. 4, c. 76, which enacts, “ that if any persons shall knowingly and wilfully interniarry 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 baving authority to grant the same first bad 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 lawsully published, it is enacted, by the 6 Geo. 4, c. 92, s. 2, that it shall be lawful for marriuges 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 custoinary 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, baving 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 surname wbich 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 Tinson, his former wife being alive. The second marriage was by banns, and it appeared that the prisoner wrote the bote 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. (6) Eng. Eccl. Rep. j. 203. (c) Id. 166. (d) Eng. Com. L. Rep.
xxiv. 131. (e) Eng. Eccl. Rep. v. 130.
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 na ne of Anna, in the indictment. Edward's
'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. 412 6).
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. Palıner'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 Gco. 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 iinportant 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, I 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. 1. 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. A inan who had deserted froin the army, for the purpose of concealment assuned another name. After a residence of sixteen weeks in the parish he was married by license in his assumed namne, 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 bimself from the
party to whoin 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 naine 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 wise 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 (8); 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
(a) Eng. Eccl. Rep. i. 161. (b) Id. 250. (c) Id. 279. (d) Id. ii. 532. 61. (f) Id. 19. (g) Id. 17. (h) Eng. Eccl. Rop. j. 90. (i) Eng. Com. L. Rep. xv: 151.
(0) 1 Eng. C. C. (k) 2 Eng. C. C. 163.
necessary, in support of such marriage, to give proof of the consent of any person whose consent thereunto is required by law.
Marriages under the 6 and 7 Wm. 4, c. 85.] By this statute persons may be married, either by license or without license, in places of worship to be duly registered under the act for solemnizing marriages therein, or before the superintendant registrar, on giving such notice and obtaining such certificate from him as therein specified.
By sec. 42, marriages are declared void, if unduly solemnized with the knowledge of both parties.
By sec. 2 of this act, the Society of Friends, called Quakers, and persons of the Jewish religion, may continue to contract and solemnize marriage according to their respective usages, and every such marriage is declared valid, provided that the parties to such marriage be both of the said society, or both persons professing the Jewish religion; provided also, that notice to the registrar shall have been given, and the registrar's certificate shall have issued as after provided.
Prooof of the marriages-marriage in Scotland.] A marriage in Scotland, irregular by the laws of that country, subjecting the parties to censures there, is yet regarded as a valid marriage, according to the laws of England. In Truman's case, the following was held to be sufficient evidence of a Scotch marriage. A witness proved that he knew the pris soner, that Mary Russell, his first wife, was still alive ; that the prisoner acknowledged he had been married to her in Scotland, and once showed the witness a paper which he said was a certificate of marriage. The prisoner not producing this paper according to notice, a copy of it was proved with the prisoner's acknowledgment of his own handwriting to the original. The writing in question purported to be a proceeding before a court in Scotland, reciting an act of Car. 2, parl. 1, sess. 1, c. 34, respecting marrying in a clandestine and disorderly manner, and continued thus, “ Nevertheless, true it is, I. T. and M. R. were married within the three months last past, by some person not authorised by the kirk, and without proclamation of banns, and therefore should be fined in the terms of the act to deter others from committing the like." It then stated a personal warning against the defendants, and was signed “Jno. Truman and Mary Russell," and indorsed by two witnesses. There was then an adjudication of the fine. Upon this evidence, together with due proof of the second marriage, the prisoner was convicted, and a question was reserved for the opinion of the judges, whether the first marriage was legally proved ? All the judges present were of opinion, that it was legally proved. It was observed by two of their lordships that the case did not rest upon cohabitation and bare acknowledgment, for the defendant had backed his 'assertion by the production of a *copy of a proceeding against him for having ( *293 ) improperly contracted the first marriage. But some thought that the acknowledgment alone would have been sufficient, and that the paper produced in evidence was only a confirmation of such acknowledgment, and one of them, referring to the case of Morris v. Miller, (4 Burr. 2059), observed that there was a distinction between an action for criminal conversation and an indictment for this offence; that in the former the acknowledgment and cohabitation of the plaintiff could not prove his marriage as against the defendant; and the acknowledgment of the defend
ant in such an action of the plaintiff's marriage might be of a fact not within his own knowledge, as it must be if a defendant in bigamy admitted his own marriage. Truman's case, 1 East, P. C. 470.
In a recent publication on the Criminal Law of Scotland, thefollowing observations are inade on the subject, whether a marriage irregular, but not void, by the Scotch law, is sufficient to support an indictment for bigamy. “ The most important question in the law of bigamy is, whether both marriages must be by formal celebration, or whether the charge lies, though one of them, or both have been contracted in that loose and uncereinonious manner which is sustained by the law of Scotland ? In those cases where both the matrimonial connections were of this ambiguous character, there seems to be no doubt that no prosecution for bigamy can lie, and that a second wife who marries either by promise and copula, courtship and acknowledgment, or babit and repute, takes her chance of a previous matrimonial connection having been contracted in the same irregular manner. Where the first marriage has been regular, but the second clandestine, the offending party seems entitled to plead that he truly never did intend to marry at all, but was bent upon a connection of different nature, and that the partner of his crime has herself to blame, for not having taken those precautions by proclamation of banns, and otherwise, which the law has provided for that very case.
But in the case of George Storey, Dumfries, April, 1824, Lord Justice Clerk Boyle sustained as relevant a charge of bigamy where the second marriage was a clandestine one, solemnized at Annan after the fashion of that place. In regard to the most unfavorable case for a defendant, that of a regular marriage following a clandestine matrimonial connection, it deserves consideration, that possibly the inan did not intend to marry in the first instance, and was entirely ignorant that he bad involved himself in its bonds; a situation by no means unlikely to occur when it is recollected how many men under the present law of Scotland do not know whether they are married or not; and how long an investigation is frequently required to enable others to determine the point. So that, as the law cannot sustain a criminal prosecution where the criminal intent is not apparent, it rather appears, though there is no decided case expressly in point, that there are not the requisite materials for a prosecution for bigamy, unless both marriages were formal. In the case of John Roger, Aberdeen, September, ( *284 ) 1813, it appeared that the defendant had had a connection *with Mary Innes, with whom he had cohabited many years, and had a family. The woman having been brought before the Kirk session and rebuked for fornication, the defendant, in presence of the minister, admitted that she had yielded in consequence of a promise of marriage on his part, upon which the minister, somewhat rashly, declared them married persons, much against the prisoner's will. They afterwards cohabited as man and wife, as there was a promise and copula and marriage by habite and repute, but as the case was of an ambiguous character, the jury, under the direction of Lord Gillies, found the defeudant not guilty, a verdict evidently implying that a charge of bigamy could not be supported where the first marriage was of this irregular and disputed description. If, however, the first marriage, though clandestine, has gradually assumed the character and consistence of a regular connection, and the parties have lived together in that way for a length of time, there seems to be little doubt that a second regular marriage, following such a permanent and acknowledged status