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S. 14. Oath to

the surrogate as to certain particulars before licence is granted.

The fourteenth section of the 4G. 4. c. 76. enacts, " for avoiding be taken before all fraud and collusion in obtaining of licences for marriage, "that before any such licence be granted, one of the parties "shall personally swear before the surrogate, or other person "having authority to grant the same, that he or she believeth "that there is no impediment of kindred or alliance, or of any "other lawful cause, nor any suit commenced in any eccle"siastical court, to bar or hinder the proceeding of the said "matrimony according to the tenor of the said licence; and that "one of the said parties hath, for the space of fifteen days imme"diately preceding such licence, had his or her usual place of "abode within the parish or chapelry within which such mar<< riage is to be solemnized; and, where either of the parties, not "being a widower or widow, shall be under the age of twenty"one years, that the consent of the person or persons whose "consent to such marriage is required under the provisions of "this act has been obtained thereto: provided always, that if "there shall be no such person or persons having authority to "give such consent, then upon oath made to that effect by the 66 party requiring such licence, it shall be lawful to grant such "licence, notwithstanding the want of any such consent."

S. 15. Bond not

before grant

The fifteenth section enacts," that it shall not be required of to be required" any person applying for any such licence to give any caution or ing licence. "security, by bond or otherwise, before such licence is granted, any thing in any act or canon to the contrary thereof notwithstanding.'

S. 16. Who are

if parties are under age.

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The sixteenth section enacts, "that the father, if living, of any to give consent, party under twenty-one years of age, such parties not being "widower or widow; or, if the father shall be dead, the guardian or guardians of the person of the party so under age, lawfully "< appointed, or one of them; and, in case there shall be no such "guardian or guardians, then the mother of such party, if un"married; and, if there shall be no mother unmarried, then the

S. 17. If the

be non compos

mentis, or if guardians or mother of minor be non compos mentis, or beyond sea, &c. parties may apply to the lord chancellor.

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guardian or guardians of the person appointed by the court of "Chancery, if any, or one of them, 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 con"sent."

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The seventeenth section enacts, "that in case the father or father of minor "fathers of the parties to be married, or of one of them, so under age as aforesaid, shall be non compos mentis, or the guardian or 66 guardians, mother or mothers, or any of them, whose consent is "made necessary as aforesaid to the marriage of such party or "parties, shall be non compos mentis, or in parts beyond the seas, ❝or shall unreasonably, or from undue motives, refuse, or with"hold his, her, or their consent, to a proper marriage, then it "shall and may be lawful for any person desirous of marrying, in 66 any of the before mentioned cases, to apply by petition to the "lord chancellor, lord keeper, or the lords commissioners of the "great seal of Great Britain for the time being, master of the "rolls, or vice-chancellor of England, who is and are respectively hereby empowered to proceed upon such petition in a summary

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66 way; and in case the marriage proposed shall upon examination "appear to be proper, the said lord chancellor, lord keeper, or "lords commissioners of the great seal for the time being, master "of the rolls, or vice-chancellor, shall judicially declare the same "to be so; and such judicial declaration shall be deemed and "taken to be as good and effectual, to all intents and purposes, as "if the father, guardian or guardians, or mother of the person so petitioning, had consented to such marriage."

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The eighteenth section enacts, "that, from and after the said S. 18. Surro"first day of November, no surrogate, hereafter to be deputed by gate to take any ecclesiastical Judge who hath power to grant licences, shall oath of office. grant any such licence until he hath taken an oath before the "said Judge, or before a commissioner appointed by commission "under the seal of the said Judge, which commission the said "Judge is hereby authorized to issue, faithfully to execute his "office according to law, to the best of his knowledge, and hath given security by his bond in the sum of one hundred pounds to "the bishop of the diocese for the due and faithful execution of "his said office."

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case new li.

cence to be

obtained.

The nineteenth section enacts, "that whenever a marriage s. 19. In what "shall not be had within three months after the grant of a licence by any archbishop, bishop, or any ordinary or person having "authority to grant such licence, no minister shall proceed to "the solemnization of such marriage until a new licence shall "have been obtained, unless by banns duly published according "to the provisions of this act."

The twentieth section enacts," that nothing herein before con- S. 20. Right of "tained shall be construed to extend to deprive the archbishop of archbishop of Canterbury to "Canterbury and his successors, and his and their proper officers, grant special " of the right which hath hitherto been used, in virtue of a certain licences, as statute made in the 25th year of the reign of the late King under 25 H. 8. "Henry the Eighth, intituled An Act concerning Peter pence "and dispensations,' of granting special licences to marry at any convenient time or place.'

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c. 21.

fully marry in any other place than a church, &c.

persons wil

The twenty-second section enacts, "that if any persons shall s. 22. Marriage knowingly and wilfully intermarry in any other place than a void where "church, or such public chapel wherein banns may be lawfully published, unless by special licence as aforesaid, or shall know "ingly and wilfully intermarry without due publication of banns, "or licence from a person or persons having authority to grant "the same first had 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 marriages of such << persons shall be null and void to all intents and purposes what"soever."

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actual resi

dence of parties not neces

sary to validity

The twenty-sixth section enacts, "that, after the solemnization S. 26. Proof of "of any marriage under a publication of banns, it shall not be necessary in support of such marriage to give any proof of the "actual dwelling of the parties in the respective parishes or chapelries wherein the banns of matrimony were published; or, "where the marriage is by licence, it shall not be necessary to give any proof that the usual place of abode of one of the licence. 66 parties, for the space of fifteen days as aforesaid, was in the

of marriage, whether after banns or by

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parish or chapelry where the marriage was solemnized; nor "shall any evidence in either of the said cases be received to prove the contrary, in any suit touching the validity of such "marriage." (c)

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The thirtieth section enacts" that this act, or any thing therein "contained, shall not extend to the marriages of any of the Royal "Family."

The thirty-first section enacts, "that nothing in this act con"tained shall extend to any marriages amongst the people called "Quakers, or amongst the persons professing the Jewish reli"gion, where both the parties to any such marriage shall be of "the people called Quakers, or persons professing the Jewish "religion respectively."

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The thirty-third section enacts, "that this act shall extend only to that part of the united kingdom called England."

The marriage act does not specify what shall be necessary to be observed in the publication of banns, or that the banns shall be published in the true names of the parties; but it must be understood as the clear intention of the Legislature that the banns shall be published in the true names, because it requires that notice in writing shall be delivered to the minister of the true Christian names and surnames of the parties seven days before the publication; and, unless such notice be given, he is not obliged to publish the banns. But a publication in the name which the party has assumed, and by which he is known in the parish, appears to be sufficient; and would, indeed, be the proper publication where the party is not known by his real name. Thus, where 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 his first coming into the parish till his marriage, which was about three years, the court of King's Bench held that the marriage was valid. (d) And in the same court it was subsequently held, that a marriage by licence, not in the party's real name, but in the name which he had assumed, because he had deserted, he being known by that name only in the place where he lodged and was married, and where he had resided sixteen weeks, was valid. Lord Ellenborough, C. J. said, "If this name had been assumed for the pur

pose of fraud in order to enable the party to contract marriage, "and to conceal himself from the party to whom 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 pre

(c) Upon an enactment nearly similar it was determined, in a prosecution for bigamy, where the first marriage was proved to have been by banns, that it was no objection that the parties did not reside in the parish where the banns were published and the marriage was celebrated. The provision of the statute was considered as an express answer to the objection; and it appears not to have been ad

verted to when the point was reserved for the opinion of the Judges. Rex v. Hind, Mich. T. 1813. Russ. and Ry. 253.

(d) Rex v. Billinghurst, 1815, 3 M. and S. 250. This was a settlement case: but the point was fully argued, and many cases from the Consistory court were cited, notes of which are given in the Report, 259 to 267.

"viously assumed, so as to have become the name which the party "has acquired by reputation, that is, within the meaning of the "marriage act, the party's true name." (d)

It seems that the assuming a fictitious name, upon the second marriage, will not prevent the offence from being complete. (e) And it was decided to be no ground of defence, that upon the second marriage (which was by banns) the parties passed by false Christian names when the banns were published, and when the marriage took place: and it was further holden that the prisoner, having written down the names for the publication of the banns, was precluded thereby from saying that the woman was not known by the name he delivered in, and that she was not rightly described by that name in the indictment. The indictment was against the prisoner for marrying Anna Timson whilst he had a wife living: the second marriage was by banns; and, it appeared, that the prisoner wrote the note for the publication of the banns, in which the woman was called Anna, and that she was married by that name, but that her real name was Susannah. Upon a case reserved two questions were made: one, whether this marriage was not void, because there was no publication of banns by the woman's right name, and that, if the second marriage were void, it created no offence; and the other question was, whether the charge of the prisoner's marrying Anna was proved. But the Judges held, unanimously, that the second marriage was sufficient to constitute the offence; and that, after having called the woman "Anna" in the note he gave in for the publication of banns, it did not lie in the prisoner's mouth to say, that she was not known as well by the name of Anna as by that of Susannah, or that she was not rightly called by the name of Anna in the indictment. (ƒ)

It has been seen that the sixteenth section of the marriage act makes the consent of the father, guardians, or mother, necessary to the validity of a marriage by licence, where the party is a minor. And it appears to have been held, upon the former marriage act, that the party prosecuting must shew such consent.

Upon an indictment for bigamy, the first marriage imported by the register to have been by licence, and the prisoner proved that at that time he was under age. A question was raised, whether this threw it upon the prosecutor to prove consent; and, it appearing that by the marriage act the register ought to state consent, if either party was under twenty-one, Wilson, J. held it did; and he directed an acquittal. (g) So, after a conviction, the Judges, upon much discussion, were of opinion that the form of the register of the first marriage, then in question, which expressed the marriage to have been by licence generally, without saying by consent of parents or guardians, together with the fact of the parents never having been known to have been in England, were prima facie evidence that the first marriage was had without the consent of parents or guardians, upon which the jury might have found the prisoner not guilty. (1)

(d) Rex v. Burton upon Trent, M. and S. 537.

(e) Rex v. Allison, post. 207. (f) Rex v. Edwards, Mich. T. 1814. MS. Bayley, J. and Russ, and Ry. 283.

(g) Rex r. Morton, cor. Wilson, J. Newcastle, 1789. MS. Bayley, J. and Russ. and Ry. 19. note (a).

(i) James's case, Mich. T. 1802. Hil. T. 1803. Russ. and Ry, 17. And the

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Consent to the

narriage in the case of illegitimate children.

In a subsequent case it was also determined that if the prisoner prove (as it is competent for him to do) that his first marriage took place while he was a minor, it must be shewn, on the part of the prosecution, that such marriage, if by licence, was with the proper consent. The prisoner was indicted at the Old Bailey July Sessions, 1803, for bigamy, in marrying Elizabeth Field, his first wife Lydia being still living: and it was proved that on the 12th Feb. 1791, he was married to Lydia Blackwell by licence, and that she was living on the 8th of June last; and that on the 14th December, 1800, he married Elizabeth Field. On behalf of the prisoner it was proved that he was born on the 2d of January, 1771, and that his father was then alive: and it was then contended that the first marriage was void as it was not proved to have been by the consent of his father. Lawrence, J. told the jury that he thought the marriage was to be presumed valid, unless the prisoner proved that he had not that consent, and under his direction the prisoner was found guilty. But the point being saved for the consideration of the Judges, they held the conviction wrong; as it was clearly proved that the prisoner was under age at the time of the first marriage, and as there were no circumstances from which consent could be presumed. (a)

Though illegitimate children are regarded by the law as not having any father, yet they were held to be within the marriage act of 26 Geo. 2.; and a marriage by licence between two illegitimate children, who were minors, without consent of parents or guardians, was therefore held to be void. (g)

And formerly it was the opinion of the court of King's Bench, that the power of consent given by the act to the father and mother was intended to include reputed parents, as being interested in their children's welfare, and bound to provide for them by the laws of nature: (h) but in a case which came before the consistorial court in London, in 1799, a different doctrine was held by the very learned Judge of that court, who was of opinion that the reputed parents were not enabled to consent, and that the consent could be lawfully given only by a guardian appointed by the court of Chancery. (i) And in a more recent case three of the Judges of the court of King's Bench adopted the latter opinion; and, after much argument and consideration, certified to the Master of the rolls that all marriages, whether of legitimate or illegitimate persons, were within the general provision of the marriage act 26 Geo. 2. c. 33. which required all marriages to be by banns or licence; and that the consent of the natural mother to the marriage, by licence, of an illegitimate minor, was not a sufficient consent within the eleventh

Judges directed the prisoner to be dis-
charged on his own recognizance.
Lord Kenyon at the first meeting
seemed to be of opinion, that it was
sufficient for the prisoner to prove
himself under age at the time of the
first marriage; and that it then rested
with the prosecutor to shew that the
marriage was with the consent of pa-
rents or guardians, but that the pri-
soner ought not to be called upon to
prove a negative.

(a) Rex v. Butler, Mich. T. 1803. MS. Bayley, J. and Russell and Ryles, 61. It seems that subsequent countenance from parents or guardians, or other circumstances of a similar kind, might afford ground for presuming the necessary consent.

(g) Rex v. Hadnett, 1 T. R. 96. (h) Rex v. Edmonton, Cald. 435.. (i) Horner v. Liddiard, Rep. by Dr. Croke.

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