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marriage, as such agreement would complete the contract, and would indeed be the real marriage, a second marriage would be within the reason and penalties of the act.(9)
It may be observed that if a person marrying again come within any of the three first of these exceptions, though the second marriage is not felony, yet, as before the statute, it is null and void, and the parties will be subject to the censures and punishment of the ecclesiastical courts. (r)
It is directed by the statute that parties offending against it Proceedings « shall receive such and the like proceeding, trial, and execution, tute. Trial in “in such county where such person or persons shall be appre- the county “ hended, as if the offence had been committed in such county
where the “where such person or persons shall be taken or apprehended.” partyisen
prehended. This clause has been held to mean the place where the party is imprisoned ; (s) and, as it appears from the record itself that he is brought to the bar in the custody of the sheriff, it is doubted whether it is necessary to aver in the indictment that the party was apprehended in the county where the venue is laid. (t) But the provision of the statute is only cumulative, and the party may be indicted where the second marriage was, though he be never apprehended; and so may be cutlawed; for in general where a statute creating a new felony directs that the offender may be tried in the county in which he is apprehended, but contains no negative words, he may be tried in that county in which the offence was committed. (u)
Where the prisoner, having been apprehended for another offence, is detained in the same county for bigamy, the detainer is such an apprehension as will warrant the indicting him in that county. The indictment was for marrying Elizabeth Lane, whilst Mary the prisoner's former wife was living; and it charged that the prisoner was apprehended for the felony aforesaid at the parish of Astley, in the county of Worcester. It appeared that the prisoner was taken up for a larceny; and, whilst in the house of correction for that offence, a bill for bigamy was found against him at the quarter-sessions, upon which that court made an order for his
(9) 4 Blac. Com. 164. 1 East. P.C. 2 Leach 926. It seems, however, to c. 12. s. 6. p. 468.
be well established that where the ju(r) 4 Blac. Com. 164. note (3).
risdiction of the court depends upon (s) Lord Digby's case, Hutt. 131. particular circumstances, exclusive of Rex r. Jordan, post. 192.
ihe offence itself, it is in general un(1) Starkie Crim. Pl. 412. note (6). becessary to aver them upon the face 3 Chit. Criin. L. 719. notes. But in of the indictment. Thus though the 1 East. P. C. c. 12. s. 8. p. 469. it is common commission of gaol delivery said that where the trial is in the extends only to prisoners in actual county where the party was appre. custody, it need not be averred in the hended there is an averment in the indictment that the defendant was then indiciment of that fact. And in.a case in prison. And where the crown isat the Old Bailey, in 1798, the court sues a commission to try certain peris stated to have held, (upon an objec- sons in custody before a particular tion taken by the prisoner's counsel,) day, the indictment need not allege that as the warrant for the prisoner's that the defendant was in custody beapprehension had not been produced, fore that day. See Starkie, 27, 28. and as it had not been proved that citing Berwick's case. Fost. 10. 12 the prisoner was apprehended in the Mod. 449. county of Middlesex, they had no ju- (u) ! Hale 691. 3 Inst. 87. Starkie risdiction to try him. Forsyth's case, 11.
Of the first marriage.
detainer. At his first marriage he was of the age of twenty only, and he was a bastard; the second marriage was not in Worcestershire. Two points were saved : first, whether the prisoner could be considered as apprehended for this offence in Worcestershire ; and, secondly, whether as the statute 1 Jac. 1. c. 11. s. 3. exempts persons where the first marriage was under the age of consent, the age of consent since the marriage act was not to be considered twenty-one. The Judges were against the prisoner upon both points. (v)
A first marriage de facto, subsisting in fact at the time of the second marriage, is sufficient to bring a case within the act, though such first marriage be voidable by reason of consanguinity, affinity, or the like; for it is a marriage in judgment of law until it is avoided. (w) But it has been ruled that though a lawful canonical marriage need not be proved, yet a marriage in fact, (whether regular or not) must be shewn; (2) which it seems must be understood where there is a prima facie evidence of a lawful marriage. (y) In a case where the first marriage, which was with a Roman Catholic woman, was by a Romish priest in England, not according to the ritual of the church of England, and the ceremony was performed in Latin, which the witnesses - did not understand, and could not therefore swear that the ceremony of marriage according to the church of Rome was read; it was directed that the defendant should be acquitted. (2) Willes, C. J. who tried him seemed to be of opinion that a marriage by a priest of the church of Rome was a good marriage, (a) if the ceremony according to that church could be proved; namely, the words of the contracting part of it.
The former marriage act, 26 Geo. 2. c. 33. required all marriages to be by banns or licence: and declared that all inarriages solemnized in any other place than a church or public chapel (unless by special licence) or solemnized without publication of banns or licence, should be null and void to all intents and purposes. It contained also special provisions as to the publication of banns; and, as to marriages by licence, it provided that all such marriages, where either of the parties, not being a widower or widow, was under the age of twenty-one years, had without the consent of the father of such of the parties so under age (if then living) first had and obtained; or if dead, of the guardian or guardians of the person of the party so under age, lawfully appointed, or one of them; and in case there was no such guardian or guardians, then of the mother (if living and unmarried); or if there was no mother living and unmarried, then of a guardian or guardians of the person appointed by the Court of Chancery; should be absolutely null and void to all intents and purposes whatsoever. (b) But these provisions as to marriages by licence
(v) Rex v. Jordan, Mich. T. 1803, (z) Lyon's case, Old Bailey, 1738. Russ. & Ry. 48.
I Èast. P. C. c. 12. s. 10. p. 469. citing (W) 3 Inst. 88.
serjeant Forster's MS. (20) By Denison, J. on the Norfolk (a) To this Mr. East (id. ibid.) subcircuit, referred to by the court in joins a quære; and says that it must Morris v. Miller, 1 Blac. R. 632. at least be understood of the marriage
(y) Rex v. Brampton, 10 East. 287. of perons of that communion. note (6).
(0) S. 11. By s. 12. provision was
Former marriage acts.
were repealed by 3 Geo. 4. c. 75, s. 1. as to any marriages there. after to be solemnized; and it was further enacted that in all cases of marriage solemnized by licence before the passing of this act of 3 G. 4. without any such consent, and where the parties had continued to live together as husband and wife till the death of one of them, or till the passing of the act, or had only discontinued their cohabitation for the purpose, or during the pending of any proceedings touching the validity of such marriage, such marriage, if not otherwise invalid, should be deemed good and valid to all intents and purposes. (a) This act of 3 G. 4. contained also enactments as to the granting of licences, the consent of parents and guardians, and the publication of banns, which have been subsequently repealed by the 4 G. 4. c. 17. which enacted that licences should and might be granted by the same persons, and in the same manner and form, and, in the case of minors, with the same consent, and banns be published in the same manner and form, as licences and banns were respectively regulated by the 26 G. 2. c. 33.; and enacted also (by s. 2.) that all marriages which had been or should be solemnized under licences granted, or banns published, conformably to the provisions of the 3 G. 4. c. 75. should be good and valid ; and that no marriage solemnized under any licence granted in the form or manner prescribed, by either the 26 G. 2. c. 33, or the 3 G. 4. c. 75. should be deemed invalid on account of want of consent of any parent or guardian. The old
made for a petition to the lord chan- leged to be the descendant of the cellor, &c. where the guardians or parties to such marriage. Nor (by. mother were not in a situation to §. 5.) any marriage the validity of consent, or to refuse to consent. By which, or the legitimacy of any perS. 4. licences were to be granted to son alleged to be the lawful 'desolemnize matrimony in the church scendant of the parties married, had or chapel of such parish only, where been duly brought into question in one of the parties had resided for proceedings in any causes, &c. in four weeks before. But by s. 10. proof which judgments or decrees, or orof the actual dwelling in the parishes, ders of court, bad been pronounced, &c. where a marriage was by banns, or made before the passing of the or of the usual place of abode of act, in consequence of or from the one of the parties, where a marriage effects of proof in such causes, &c. was by licence, was made unueces- of the invalidity of such marriage, sary after the solemnization of the or the illegitimacy of such descendmarriage; and evidence was not to ant. The sixth section provided that be received in either of these cases if, before the act, any property bad to prove the contrary, in any suit been possessed, or any tiile of honour touching the validity of the marriage. enjoyed on the ground of the invali
(a) 3 G. 4. c. 75. s. 2. The third dity of any marriage, by reason that section provided, that the act should it was solemnized without consent, not reuder valid any marriage de- then, although no sentence had been clared invalid by any court of com- pronounced against the validity of petent jurisdiction before the passing such marriage, the right and interest of the act; nor any marriage when in such property, or litle of honour, either party should at any time after should in no manner be affected or wards, during the life of the other prejudiced. And by s. 7. nothing in party, have lawfully intermarried with the act was to affect or call in ques. any other person. Nor (by s. 4.) any tion any act done before the passing marriage the invalidity of which had of the act, under the authority of any been established, before the passing court, or in the administration of a'y of the act, upon the trial of any personal estate or effects, or the exeissue touching its validity, or touch- cution of any will or testament, or the ing the legitimnacy of any person al. performance of any trust.
marriage act was then in a great measure revived, though only for a short period, as will be presently seen. The statute 4 G. 4. c.5. was passed to render valid certain marriages which had been solemnized by licences granted through error, after the passing of the 3 G. 4. c. 75. by or in the name of bodies corporate or persons their officers or surrogates, other than the archbishops of Canterbury and York, and the bishops within their respective dioceses, who were alone authorized to grant such licences by the 3 G. 4. c. 75.: but this provision of the 4 G. 4. c. 5. applies only to marriages solemnized by such erroneous licences granted after the 3 G. 4. and
before the passing of the 4 G. 4. c. 5. 4 G. 4. c. 76. The principal marriage act of the present day appears to be
the 4 G. 4. c. 76., many of the provisions of which require to be
here noticed. S. 1. repeals 26 It recites that it is expedient to amend the laws respecting the G. 2. c. 33. and
solemnization of marriages in England; and then enacts, that, from 4 G. 4. c. 17.
and after the first day of November next ensuing the passing of the act (November, 1823,) so much of the 26 G. 2. c. 33. as was in force immediately before the passing of this act, and also the 4 G. 4. c. 17. shall be repealed, save and except as to any acts, matters, or things, done under the provisions of the said acts, or either of them, before the said first day of November, as to which the said acts are respectively to be of the same force and effect, as if this act had not been made, save also and except so far as the said acts, or either of them, repeal any former act, or any clause,
&c. therein contained. S. 2. Bands The second section enacts, "that from and after the first day of where, when,
“ November, (1823,) all banns of matrimony shall be published and how published, and “ in an audible manner in the parish church, or in some public marriage to be “chapel, in which chapel banns of matrimony may now or may solemnized where banns
“ hereafter be lawfully published, of or belonging to such parish published. “or chapelry, wherein the persons to be married shall dwell,
“ according to the form of words prescribed by the rubric pre“ fixed to the office of matrimony in the book of Common Prayer,
upon three Sunulays preceding the solemnization of marriage, “ during the time of morning service, or of evening service, (if “ there shall be no morning service in such church or chapel upon “ the Sunday upon which such banns shall be so published,) “ immediately after the second lesson; and whensoever it shall “happen that the persons to be married shall dwell in divers
parishes or chapelries, the banns shall in like manner be pub“sished in the church, or in any such chapel as aforesaid, “ belonging to such parish or chapelry wherein each of the said
persons shall dwell; and that all other the rules prescribed by “ the said rubric concerning the publication of banns, and the “ solemnization of matrimony, and not hereby altered, shall be
duly observed; and that in all cases where banns shall have “ been published, the marriage shall be solemnized in one of “the parish churches or chapels where such banns shall have
“ been published, and in no other place whatsoever.” S. 3. Bisbop, The third section enacts, “that the bishop of the diocese, with with consent
“ the consent of the patron and the incumbent of the church of of the patron andincumbent,
“ the parish in which any public chapel, having a chapelry there
"unto annexed, may be situated, or of any chapel situated in an may authorize “ extra-parochial place, signified to him under their hands and the publication “seals respectively, may authorize, by writing under his hand and any public
seal, the publication of banns and the solemnization of mar. chapel.
riages in such chapel for persons residing within such chapelry “ or extra-parochial place respectively; and such consent, toge“ther with such written authority, shall be registered in the re“gistry of the diocese."
The fourth section enacts, “ that in every chapel in respect of $. 4. Notice to “ which such authority shall be given as aforesaid, there shall be be placed in
such chapel. placed in some conspicuous part of the interior of such chapel “ a notice in the words following: 'banns may be published, and “marriages solemnized in this chapel.'” The fifth section enacts, “ that all provisions now in force, or S.5. Provisions
relative to mar“ which may hereafter be established by law, relative to pro.
riage registers “ viding and keeping marriage registers in any parish churches, extended to “shall extend and be construed to extend to any chapel in which chapels so au“ the publication of banns and solemnization of marriages shall be thorized as
aforesaid, so authorized as aforesaid, in the same manner as if the same “ were a parish church; and every thing required by law to be “ done relative thereto by the churchwardens of any parish church, “ shall be done by the chapelwarden or other officer exercising “ analogous duties in such chapel."
The sixth section enacts, “ that on or before the said first day $. 6. Book to “ of November, and from time to time afterwards as there shall be provided
for the regis“ be occasion, the churchwardens and chapelwardens of churches tration of “and chapels, wherein marriages are solemnized, shall provide a banns, &c. «
proper book of substantial paper, marked and ruled respectively “in manner directed for the register book of marriages; and the “ banns shall be published from the said register-book of banns “ by the officiating minister, and not from loose papers, and after
publication shall be signed by the officiating minister, or by some person
under his direction." The seventh section enacts, “ that no parson, vicar, minister, s.7. Notice of or curate, shall be obliged to publish the banns of matrimony names, and
between any persons whatsoever, unless the persons to be mar- of abode of “ried shall, seven days at the least before the time required for parties to be " the first publication of such banns respectively, deliver or cause given to the
minister. “ to be delivered to such parson, vicar, minister, or curate, a “ notice in writing, dated on the day on which the same shall be
so delivered, of their true Christian names and surnames, and of “the house or houses of their respective abodes within such
parish or chapelry as aforesaid, and of the time during which
they have dwelt, inhabited, or lodged, in such house or houses “ respectively."
The eighth section enacts, “ that no parson, minister, vicar, or s. 8. How far “ curate, solemnizing marriages after the first day of November ministers not next, between persons, both or one of whom shall be under the punishable
for age of twenty-one years, after banns published, shall be punish- nors without “able by ecclesiastical censures for solemnizing such marriages What case pub“ without consent of parents or guardians, unless such parson, lication of
minister, vicar, or curate, shall have notice of the dissent of banns void. “such parents or guardians; and in case such parents or guar