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provisions of that act, and finally it has been altogether repealed.
The first of these, viz. 3 Geo. 4. c. 75. (8) after repealing the 11th sect. of the 26th Geo. 2. c. 33. relating to marriages, by license, of minors, without consent of proper parties, by s. 2. enacts that marriages solemnized by license before the passing of this act, that is before 22 July, 1822, without the consent required by the 11th section of Lord Hardwicke's act, shall be good, (if not otherwise invalid,) where the parties shall have continued to live together as husband and wife, until the death of one of them, or until the passing of this act, or shall only have discontinued their cohabitation for the purpose or during the pending of any proceedings touching the validity of such marriage. [As to what shall not be a living together as husband and wife within this section, see Poole v. Poole, 2 Cr. & J. (Ex) 66 and 2 Tyrw. 76.] But this act, by s. 3. is not to render valid any marriage which has been declared invalid, by any court of competent jurisdiction, before the 22nd of July, 1822; nor any marriages, where either of the parties shall at any time afterwards have lawfully intermarried with
person. This 3rd section (which is not repealed by 4 Geo. 4. c. 76. Rose v. Blakemore, Ryan and Moody, 382.) has a retrospective operation only; hence it has been holden, that a marriage which would have been void by the 11th section of Lord Hardwicke's act, and had once been rendered valid by the 2nd section of the 3 Geo. 4. c. 75. cannot subsequently be rendered invalid by the marriage of either of the parties during the life of the other with a third person. R. v. St. John Delpike, 2 B. & Ad. 226.] Nor, by s. 4. any marriage, the invalidity of which has been established before the 22nd of July, 1822, upon the trial of any issue touching its validity, or touching the legitimacy of any person alleged to be the descendant of the parties to such marriage; nor, by s. 5. any marriage, of which the validity or legitimacy of descendants has been brought in question, in
(8) This act, which received the royal assent, July 22, 1822, was to take effect from the 1st September, 1822. During the interval between those periods, viz. between the 22nd July and 1st September, 1822, the 11th section of the 26 Geo. 2. c. 33. stood repealed, and the new provisions of this act, the 3 Geo. 4. c. 75. had not come into operation; the marriage, therefore, of an infant by license, without the consent of parent or guardian, solemnized on the 30th August, 1822, was holden to be valid. R. v. Maria Wantley, Moody's Crown Cases, 163. See post. s. 16. of 4 Geo. 4. c. 76. and R. v. Birmingham, 8 B. and C. 29. there cited.
law or equity, where judgments or decrees or orders have been made before the 22nd of July, 1822, in consequence of proof having been made of the invalidity of such marriage, or the illegitimacy of such descendants. The rights and interest in property and titles of honour, which have been enjoyed upon the ground of the invalidity of any marriage, by reason that it was solemnized without such consent, shall not be affected by this act, although no sentence or judgment has been pronounced in any court against the validity of such. This statute shall not affect any act done before the 22nd of July, 1822, under the authority of any court, or in the administration of any personal estate, or the execution of any will, or performance of any trust. The remaining sections of this statute, from the 8th to the 26th, were repealed by the 4th Geo. 4. c. 17. 26th March, 1823, which was also repealed by stat. 4 Geo. 4. c. 76. except as to any act done under its provisions, and also except as to its repealing the clauses contained under any former act. See Rose v. Blakemore, R. & M. 382.
This statute, viz. 4th Geo. 4. c. 76. which passed on the 13th of July, 1823, repealed so much of Lord Hardwicke's act as was then in force, from the 1st Nov. 1823.
The principal provisions are as follow :—The 2nd section relates entirely to the mode in which banns shall be published. The 3rd section empowers bishops to authorize publication of banns in chapels.
By s. 7. no minister is obliged to publish banns, unless the persons to be married shall seven days before first publication deliver to such minister notice in writing, dated on day of delivery, of their true Christian names and surnames, and of the houses of their respective abodes within parish or chapelry, and of the time during which they have dwelt therein. (10)
(10) A person, whose baptismal and surname was Abraham Langley, was married by banns by the name of George Smith, having been known in the parish where he resided and was married, by that name only, from the time of his first coming into the parish till his marriage, which was about three years; it was holden, that the marriage was valid *. So where a person had gone by an assumed name for sixteen weeks, 'in order more effectually to conceal himself, having deserted from the army, and then was married by his assumed name by license; the marriage was holden good, no fraud being in
* R. v. Billingburst, 3 M. & S. 250.
By s. 9. Marriages not had within three months after the complete publication of banns, cannot be solemnized without republication of banns on three several Sundays in the form prescribed, unless by license.
By s. 16. The father, if living, of any party under twentyone years of age, such parties not being a widower or widow; or if the father shall be dead, the guardian of the person of the party so under age, lawfully appointed : and in case there shall be no such guardian, then the mother of such party, if unmarried; and if there shall be no mother unmarried, then the guardian of the person appointed by the Court of Chancery, if any, shall have authority to give consent to the marriage of such party, and such consent is hereby required for the marriage of such party so under age, unless there shall be no person authorized to give such consent. N. The language
tended in respect of the marriage. R. v. Burton on Trent, 3 M. & S. 537. But if there be a total variation of 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, the marriage in pursuance of that publication is invalid ; and it is immaterial in such cases, whether the misdescription has arisen from accident or design, or whether such design be fraudulent or not. Per Lord Tenterden, C. J. delivering the judgment of the Court in R. v. Tibshelf, 1 B. & Ad. 194. recognised in Allen v. Wood, i Bingh. N. C. 8. But the case of R. v. Tibshelf, was decided as the law stood, under the 26 Geo. 2. c. 23. s. 8. See therefore the language of the 4 Geo. 4. c. 76. s. 22. and the decision of R. v. Wroxton, 4 B. & Ad. 640. thereon, post. p. 20.
“The marriage, except in case of a license, is to be performed by proclamation of banns, which is to designate the individual in order to awaken the vigilance of parents and guardians, and to give them an opportunity of protecting their rights; it therefore requires that the true name should be given them, evidently considering that a name assumed for the occasion is a name that will not answer the purposes of these provisions; accordingly, this Court has conceived itself to be carrying the intention of the law into effect, when it has annulled marriages where a false name has been inserted in the banns, though no fraud were intended ; upon the ground, that such proclamation was no proclamation referring to that marriage but to another transaction; the marriage, therefore, was without proclamation of banns, and consequently illegal.” Per Sir W. Scott delivering judgment in Wakefield v. Mackay, 1 Phill. Ecc. Rep. p. 139, 140 n. in which an illegitimate child was baptized in the name of her mother; and though in the course of her life she had used a variety of names, still, as the banns had been published in the name of her mother, and as it was not upon the evidence demonstrated to be other than the true name, the Court sustained the marriage.
of the foregoing section is merely directory; it does not proceed to make the marriage void, if solemnized without consent. Hence where a marriage was solemnized by license, the man being a minor, whose father was living, and who did not consent to the marriage; it was holden, that the marriage was nevertheless valid. R. v. Birmingham, 8 B. & C. 29.
In case a the father or fathers of the parties to be married, or one of them, so under age, shall be non compos mentis, or the guardian, mother, or any of them whose consent is necessary to the marriage of such party, shall be non compos mentis, or in parts beyond the seas, or shall unreasonably, or from undue motives, refuse their consent to a proper marriage, then any person desirous of marrying, in any of the beforementioned cases, may apply, by petition, to the lord chancellor, master of the rolls, or vice-chancellor, who are respectively empowered to proceed upon such petition in a summary way; and in case the marriage proposed shall upon examination appear to be proper, the said lord-chancellor, &c. shall judicially declare the same to be so; and such declaration shall be as effectual, as if the father, or guardian, or mother of the person so petitioning, had consented to such marriage.
Whenever b a marriage shall not be had within three months after the grant of a license by any person having authority to grant such license, no minister shall proceed to the solemnization of such marriage until a new license shall have been obtained, unless by banns duly published.
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 special license, or shall knowingly and wilfully intermarry without due publication of banns, or license from a person having authority to grant the same, or shall knowingly and wilfully consent to or acquiesce in the solemnization of such marriage by any person not being in holy orders, the marriages of such persons shall be null and void.
In order to render a marriage void under this enactment, it must have been contracted by both parties with a knowledge that a due publication of banns had not taken place. Therefore, where the intended husband procured the banns to be published in a Christian and surname which the woman had never borne, but she did not know that fact until after the solemnization of the marriage ; it was holden, that the marriage was valid. R. v. Wroxton, 4 B. & Ad. 640. and 3 Nev. & M. 712. But in Wiltshire v. Wiltshire, 3 Hagg. (E. R.) 333. marriage by banns under a false publication, by the suppression of one of the husband's Christian names by which he was known, with the knowledge and consent of both parties, was holden void under this 22nd section.
& S. 17.
c S. 22. But see post, 6 & 7 W. 4. c. 85.
If any valid marriage, solemnized by license, shall be procured by a party to such marriage to be solemnized between persons, one or both of whom shall be under the age of 21 years, contrary to the provisions of this act, by means of such party falsely swearing to any matter to which such party is hereinbefore required personally to swear, such party shall forfeit all property accruing from the marriage.
In order to preserve e the evidence of marriages, and to make the proof thereof more certain and easy, and for the direction of ministers in the celebration of marriages and registering thereof, all marriages shall be solemnized in the presence of two credible witnesses, besides the minister who shall celebrate the same; and immediately after the celebration, an entry thereof shall be made in the register-book kept for that purpose, in which it shall be expressed that the marriage was celebrated by banns or license, and if both or either of the parties married by license be under age, not being a widower or widow, with consent of the parents or guardians, as the case shall be; and such entry shall be signed by the minister with his proper addition, and also by the parties married, and attested by such two witnesses; which entry shall be made in the form therein set forth.
This act shall not extend to the marriages o any of the royal family; nor to any marriages & amongst the people called Quakers, or amongst the persons professing the Jewish religion, where both the
parties to any such marriage shall be of the people called Quakers, or persons professing the Jewish religion respectively; and, lastly, this statute is confined to England. It seems, that to prove a Jewish marriage, it is not sufficient to produce witnesses who were present at the ceremony in the synagogue; because that is merely a ratification of a previous written contract—such contract, therefore, must be adduced and proved. Horn v. Noel, 1 Campb. 61. But see the elaborate judgment of Sir W. Scott, in Lindo v. Belisario, 1 Hagg. (C.) 227. See also Goldsmid v. Bromer, 1 Hagg. (C.) 324. And stat. 6 & 7 W. 4. c. 85. s. 2. 4. 16. 39. A Jewess may give parol evidence of her own divorce in a foreign country, according to the ceremony and customs of the Jews
à S. 23.
e S. 28.
8 S. 31.