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, 1 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 banus, 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 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.

C

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 mar

a S. 17.

b S. 19.

c S. 22. But see post, 6 & 7 W. 4. c. 85.

riage 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.

If any valid marriage,d 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 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.

f S. 30.

g S. 31.

there. Ganer v. Lady Lanesborough, Peake's N. P. C. 17. Lord Kenyon, C. J. Where plaintiff and his wife were Quakers, proof of a marriage according to the forms of that society was received without objection. Deane v. Thomas, Moody & Malkin, 361. Tenterden, C. J.

In consequence of a decision (R. v. Northfield, Doug. 658.) which took place, confining the construction of Lord Hardwicke's Act, 26 Geo.2.c.33. s. 1.to chapels existing at the time of passing the act, several statutes have been made, from time to time, to give validity to marriages solemnized in chapels erected since Lord Hardwicke's Act, and to make the registers of such marriages evidence. See stat. 21 Geo. 3. c. 53.; 44 Geo. 3. c. 77.; 48 Geo. 3. c. 127.; 6 Geo. 4. c. 92. Stat. 5 Geo. 4. c. 32. 11 Geo. 4. and 1 W. 4. c. 18, relate to the solemnization of marriages, where churches are rebuilding or under repair. By 5 & 6 W. 4. c. 54. all marriages celebrated before 31st of August, 1835, between persons within the prohibited degrees of affinity are not to be annulled by sentence of ecclesiastical court, except in suits depending on that day; but by s. 2. such marriages hereafter are made absolutely void. This act, however, does not extend to Scot

land.

A soldier on serviced with the British army in St. Domingo, in 1796, being desirous of marriage with the widow of another soldier, who had died there in the service, and both parties being desirous of celebrating their marriage with effect, they went to a chapel in a town where they were, and there the ceremony was performed by a person appearing there as a priest, and officiating as such; the service being in French but interpreted into English by one who officiated as clerk; and which the woman understood at the time to be the marriage service of the church of England. After this they cohabited together as man and wife for 11 years, until the death of the husband. On a question as to the settlement of the woman, a doubt was raised whether the marriage was valid. The court of B. R. were clearly of opinion that it was a valid marriage, whether it was to be considered as a marriage celebrated in a place where the law of England prevailed, or as a marriage according to the law of St. Domingo, whatever that might be. Upon the former ground, inasmuch as there was a contract per verba de præsenti, which contracts were binding on the parties before Lord Hardwicke's act, which did not affect the present case, this being a marriage beyond seas, and because the marriage was celebrated by a person who pub

d R. v. Brampton, 10 East, 282.

licly assumed the office of a priest, and appeared habited as such upon the latter ground, because upon the facts stated, every presumption must be made in favour of its validity, according to the law of the country where it was celebrated; the marriage ceremony having been performed there in a proper place, and by a person officiating as one competent to perform that function, and more especially as it had been followed by a cohabitation between the parties, as man and wife, for 11 years.

The canon law is the general law throughout Europe, as to marriages, except where that has been altered by the municipal law of any particular place. Before Lord Hardwicke's act, marriages in this country were always governed by the canon law. That statute did not follow British subjects to our foreign settlements; hence, it has been holdene, that a marriage between two British subjects, solemnized by a Catholic priest at Madras, according to the rites of the Catholic church, followed by cohabitation, is valid, although without the license of the governor, which it had been uniformly the practice to obtain; for that does not alter the law, which the parties carried with them.

Heretofore marriages could have been solemnized, except by special license, only in parish churches or chapels, according to the rites of the church of England; but now under the new act, which received the royal assent on the 17th August, 1836, and is to take effect on 1837, marriagesmay be solemnized in any certified place of religious worship duly registered, or at the office of the Superintendent Registrar, according to any form and ceremony the parties may see fit to adopt; provided they pay strict attention in conforming to the regulations prescribed by the act; of which the following are most deserving of remark:-1st, The notices of marriage to the Superintendent Registrar. As this notice is to be read at the meeting of guardians", it will have an effect similar to the publication of banns. 2ndly, The certificate1, which S. R. is empowered to issue, if there be no lawful impediment shewn. 3rdly, Where the marriage is by license which S. R. is empowered to grantk, care must be taken as to the consent; for the like consent1 is required to marriages solemnized by license under this act as before. The 12th section directs what acts are required before license can be granted. The licenses by archbishop of Canterbury proper