« EdellinenJatka »
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 pri 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 [ *283] 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 made 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 unceremonious 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 habit 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 a 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 man did not intend to marry in the first instance, and was entirely ignorant that he had 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 defendant 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
with another woman, will expose to the pains of bigamy." Alison's Prin. Cr. Law of Scot. 536. See Graham's case, 2 Lew. C. C. 97.
Proof of the marriages-marriage in Ireland.] It seems not to be essential to the validity of a marriage in Ireland that the ceremony should take place in a church. Where it had been performed by a dissenting minister in a private room, the recorder was clearly of opinion that it 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 necessary by positive law to celebrate it in a church, some law should be shown requiring dissenters to be married in a church; whereas one of the Irish statutes, 21 & 22 Geo. 3, c. 25 enacts, that all marriages between Protestant dissenters, celebrated by a Protestant dissenting teacher, shall be good, without saying at what place they shall be celebrated. Anon. O. B. coram Sir J. Silvester, 1 Russell, 205. So where a marriage was celebrated at a private house in Ireland by a clergyman of the church of England, the curate of the parish, Best, C. J., held it to be valid. He said, "When I find that this marriage was performed by a gentleman who had officiated as curate of the parish for eighteen years, I must presume it to have been correctly performed according to the laws of that country, and I shall not put the defendant [it was an action in which coverture was pleaded] to the production of a license or to any further proof. It is true that in a case for bigamy, tried before Mr. Justice Bayley, on the northern circuit, an acquittal was directed, because the first marriage, which took place in Ireland, was performed in a private house; but I have reason to know that that learned judge altered his opinion afterwards, and was satisfied of the validity of the first marriage." Smith v. Maxwell, Ry. and Moo. N. P. C. 80 (a). The case referred to by Best, C. J., appears be that of R. v. Reilly, 3 Chetw. Burn, 726, in which there was no direct evidence that the law of Ireland permitted a marriage to be celebrated at a private house.
*Where the first marriage was in Ireland, and it appeared [ *285 ] that one of the parties was under age, and no consent of parents was proved, the judges, after referring to the Irish marriage act, 9 Geo. 2, c. 11, were of opinion that though that act has words to make such a marriage void, yet other parts of the statute show that it is voidable only, and any proceedings to avoid it must be taken within a year; and they therefore held the first marriage binding. Jacob's case, 1 Moody, C. C. 140 (b).
Proof of the marriages-marriage abroad.] The general principle with regard to marriages contracted in a foreign country is, that between persons sui juris, marriage is to be decided by the law of the place where it is celebrated. If valid there, it is valid everywhere. It has a legal ubiquity of obligation. If invalid there, it is equally invalid everywhere. Story on the Conflict of Laws, 104; citing Ryan v. Ryan, 2 Phill. Ecc. Rep. 332 (c); Herbert v. Herbert, 3 Phill. Ecc. Rep. 58 (d); Dalrymple v. Dalrymple, 2 Hagg. Cons. Rep. 54 (e); Ruding v. Smith, 2 Hagg. Cons. Rep. 390, 391 (f); Scrimshire v. Scrimshire, 2 Hagg. Cons. Rep.
(a) Eng. Com. L. Rep. xi. 390. (d) Id. 363.
(b) 2 Eng. C. C. 140. (c) Eng. Eccl. Rep. i. 274. (e) Id. iv. 485. (f) Id. 560.
395 (a); Ilderton v. Ilderton, 2 H. Bl. 145; Middleton v. Janverin, 2 Hagg. 437 (b); Lacon v. Higgins, 3 Stark. N. P. C. 178 (c); 2 Kent Com. Lect. 26, p. 91 (2d ed.); 2 Kaims on Eq. b. 3, c. 8, s. 1(1). The most prominent, if not the only exceptions to this rule, are those relating to polygamy and incest: those positively prohibited by the public law of a country from motives of policy, and those celebrated in foreign countries by subjects entitling themselves by special circumstances to the benefit of the laws of their own country. Story on the Conflict of Laws, 104.
The first exception to the general rule mentioned by Mr. Justice Story is that relating to polygamy and incest (2). These Christianity is understood to prohibit, and no Christian country, therefore, would recognise polygamy, or an incestuous marriage. But with regard to the latter, he takes a distinction between marriages incestuous by the law of nature, and such as are incestuous by the positive code of a state; and upon this point, he cites a judgment of one of the American courts: "If," say the court, "a foreign state allows of marriages incestuous by the law of nature, as between parent and child, such marriage would not be allowed to have any validity here; but marriages not naturally unlawful, but probibited by the law of one state and not of another, if celebrated where they are not prohibited, would be held valid in a state where they are not allowed." Greenwood v. Curtis, 6 Mass. Rep. 378. "Indeed," continues Mr. Justice Story, "in the diversity of religious opinions in Christian countries, a large space must be allowed for interpretation as to religious duties, rights, and solemnities. In the Catholic countries of continental Europe, there are many prohibitions of marriage which are connected with religious establishments and canons, and in most countries there are positive or customary prohibitions which involve peculiarities of religious opinion or conscientious doubt. It would be most inconvenient [ *286] to hold all marriages celebrated *elsewhere void, where not in scrupulous accordance with local institutions." Story on the Conflict of Laws, 107.
In England, however, incestuous marriages are not void, but only voidable during the lives of the parties; and if not so avoided, are to all intents valid. 1 Bl. Com. 434.
With regard to the second exception, the prohibitions depending upon positive law, they apply only in strictness to the subjects of a country. Story, 108. An illustration of this may be found in the Civil Code of France, which annuls (art. 174.) marriages by Frenchmen in foreign countries, who are under incapacity by the laws of France. Ibid.
The third exception arises in cases of moral necessity, and has been applied to persons residing in factories, in conquered places, and in desert or barbarous countries, or in countries of an opposite religion, who are permitted to contract marriage there according to the laws of their own country. In short, wherever there is a local necessity, from the absence of laws, or the presence of prohibitions or obstructions not binding upon other countries, or from peculiarities of religious opinion and conscientious scruple, or from circumstances of exemption from local jurisdiction, marriages will be allowed to be valid according to the law of the native dom
Dumarsely v. Fishby, 3 Marsh. 369. Medway v. Needham, 16 Mass. 157.
(a) Eng. Eccl. Rep. iv. 562. (b) Id. 582. (c) Eng. Com. L. Rep. xiv. 176. d.
icil. Ibid. citing Ruding v. Smith, 2 Hagg. Cons. R. 371, 384, 385, 386 (a); Lautour v. Teesdale, 8 Taunt. 830 (b); 2 Marsh. 243; R. v. Inhabitants of Brampton, 10 East, 282.
Although it is an established rule that a foreign marriage, valid according to the law of the place where celebrated, is good everywhere else, yet it has not been e converso established that marriages of British subjects, not good according to the law of the place where celebrated, are universally and under all possible circumstances to be regarded as invalid in England. It is certainly the safest course to be married according to the law of the country, for then no question can be raised; but if this cannot be done on account of legal or religious difficulties, the law of this country does not say that its subjects shall not marry abroad. Per Lord Stowell, Ruding v. Smith, 2 Hagg. Cons. Rep. 371.
In proving a marriage abroad, it must appear that the ceremony performed was the marriage ceremony according to the foreign law. Thus where, on an indictment for bigamy, before the 26 Geo. 2, it appeared that the first marriage, which was with a Roman Catholic woman in England, was performed by a Catholic priest, not according to the ritual of the church of England, and the ceremony was performed in Latin, which the witnesses not understanding, could not swear even that the ceremony according to the church of Rome was read, the defendant was directed to be acquitted. Lyon's case, O. B. 1 East, P. C. 469.
In proving a marriage which has taken place abroad, evidence must be given of the law of the foreign state, in order to show its validity. For this purpose, a person skilled in the laws of the country should be called. Lindo v. Belisario, 2 Hagg. 248 (c); Middleton v. Janvers, 2 Hagg. 441 (d). But see Horford v. Morris, 2 Hagg. *431 (e). [ *287 ] Where evidence of the law of Scotland was required, the testimony of a witness, who was a tobacconist, was rejected. Anon. cited 10 East, 287. Some obscurity seems to exist with regard to the mode of proving foreign laws in English courts. The rule, as at present understood, appears to be, that the written law of a foreign state must be proved by a copy duly authenticated. Clegg v. Levy, 3 Campb. 166. With regard to the mode of authenticating it, the following case has occurred. In order to prove the law of France respecting marriage, the French vice-consul was called, who produced a copy of the Cinq Codes, which, he stated, contained the customary and written laws of France, and was printed under the authority of the French government. Sir Thomas Picton's case, 30 How. St. Tr. 514, was referred to as an authority in favor of admitting this evidence, but it appears that there the evidence was received by consent. 30 St. Tr. 494. Abbott, J., said that the general rule certainly was, that the written law of a foreign country must be proved by an examined copy, before it could be acted on in an English Court, but according to his recollection, printed books on the subject of the law of Spain were referred to and acted on in argument in Sir T. Picton's case, as evidence of the law of that country, and therefore he should act on that authority and receive the evidence. Lacon v. Higgins, Dowl. and Ry. N. P. C. 38 (f); 3 Stark. 178 (g).
The practice with regard to the proof of foreign
laws in the United
(a) Eng. Eccl. Rep. iv. 560. (b) Eng. Com. L. Rep. iv. 299.
Eng. Eccl. Rep. iv. (g) Id. xiv. 176 d.