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section of that act; and that consequently the marriage in question was void by the said statute. (k): One point upon the construction of the former marriage act 26 Marriages ce
lebrated in Geo. 2. c. 33. was determined by the court of King's Bench, with churches and much reluctance; the able Judge who then presided in that Court chapels erected seeming to discourage an attempt to try a question of such serious sin
riage act, 26 consequence in a collateral way, on a settlement case : but, after Geo. 2. c. 33. consideration, it was decided that a marriage celebrated by banns, in a chapel erected after that statute was passed, and not upon the site of any ancient church or chapel, was void, although marriages had been de facto frequently celebrated there; the words of the statute “in which chapel banns have been usually published” being held clearly to mean chapels existing at the time it was passed. (1) But as soon as the determination of the Court in this case was known, a bill was introduced into Parliament, which passed into a law, making valid all marriages which had been celebrated in any parish church or public chapel, erected since the passing of the 26 Geo. 2. c. 33. and consecrated, and providing that the registers of such marriages shall be received as evidence. (m) The fourth section enacted, that the registers of marriages thereby made valid should within twenty days after the first of August, 1781, be removed to the church of the parish in which such chapel should be situated; or, if it should be situated in an extra-parochial place, to the parish church next adjoining; to be kept with the registers of such parish. And these provisions were extended by the 44 Geo. 3. c. 77. and the 48 Geo. 3. c. 127. to marriages celebrated in such chapels before the 230 August, 1808; and the registers of such marriages are in like manner to be removed to parish churches, and transmitted to the bishop. A more recent statute 6 Geo. 4. c. 92. recites that since the act 26 Geo. 2. c. 33. and the act 44 Geo. 3. c. 77. divers churches and chapels had been erected and built in England, Wales, and the town of Berwick upon Tweed, which had been duly consecrated, and divers marriages had been solemnized therein since the passing of the 44 Geo. 3. c. 77.: but by reason that in such churches and chapels banns of matrimony had not usually been published, before or at the time of passing the 26 Geo. 2. c. 33., nor any authority obtained for solemnizing marriages therein, under the provisions of the 4 Geo. 4. c. 76., such marriages had been or might be deemed to be void ; and then enacts, that all marriages already solemnized in any church or public chapel in England, Wales, and the town of Berwick upon Tweed, erected since the act of the 26 Geo. 2. c. 33. and consecrated, shall be as good and valid in law as if such marriages had been solemnized in parish churches or public chapels, having chapelries annexed, and wherein banns had usually been published before or at the time of passing the said act of 26 Geo. 2. The second section enacts, that it shall be lawful for marriages to be in future solemnized in all churches and chapels erected since the 26 Geo.2.c.33. and consecrated, “in 56 which churches and chapels it has been customary and usual, _ (k) Priestley v. Hughes, 11 East. 1. Lords in an appeal from the decree in Grose, J. differed, and sent a separate this case. certificate. The question was after. (1) Rex v. Northfield, Dougl. 659. wards brought before the House of (m) 21 Geo. 3. c. 53.
“ before the passing of this act, to solemnize marriages ;” and that all marriages hereinafter solemnized therein shall be as good and valid as if they had been solemnized in parish churches, &c. wherein banns had usually been published before or at the time of passing the said act of 26 Geo. 2. And the registers of marriages solemnized in the churches or chapels, by this act of 6 Geo. 4. enacted to be valid in law, or copies thereof, are to be received as evidence, in the same manner as the registers of marriages in parish churches, &c. in which banns were usually published before or at the time of the 26 Geo. 2. c. 33., or copies thereof are received; but liable to the same objections as would be available to exclude the latter from being received. (a) But such registers of marriages, solemnized in any public chapel, and made valid by this act of 6 Geo. 4. c. 92. are, within three months from the passing of the act, to be removed to the parish church of the parish in which such chapel is situated; and if it be situated in an extraparochial place, then to the parish church next adjoining, to be kept with the marriage registers of such parish, and in like manner as parish registers are directed to be kept by the said act of the 26
Geo. 2. (6) Marriages in • The marriage act is restrained by sect. 33. (c) to that part of the Scotland and places beyond united kingdom called England. With respect to marriages in the seas good, Scotland, though the point was formerly much doubted, (o) it apIf performed
pears to have been afterwards settled that where minors domiciled according to ! the rites and in England withdrew themselves into Scotland, or places beyond customs of the the seas, for the purpose of evading the marriage act, their marcountry in which they
riage under such circumstances was nevertheless valid. (p) And were cele
in the case of a marriage in such distant place, it appears to be brated. sufficient to shew that it was performed according to the rites and Marriage in custom of the country in which it was celebrated. In a case respectSt. Domingo.
ing the settlement of a pauper, the facts were that a soldier on service with the British army in St. Domingo, in 1796, being desirous of marrying the widow of another soldier who had died there in the service, the parties went to a chapel in the town, and the ceremony was there performed by a person appearing and officiating as a priest; the service being in French, but interpreted into English by a person who officiated as clerk, and understood at the time by the pauper to be the marriage service of the church of England. This was held sufficient evidence, after eleven years' cohabitation, that the marriage was properly celebrated; although the pauper (who was the woman) stated that she did not know that the person officiating was a priest. Lord Ellenborough, C. J. in delivering his opinion, considered the case, first, as a marriage celebrated in a place where the law of England prevailed, (supposing, in the absence of any evidence to the contrary, that the law
(a) 6 Geo. 4. c. 92. s. 3.
in reasoning upon the case of Philips (6) Id. s. 4.
v. Hunter, 2 H. Blac. 412. And in (c) Ante, p. 200.
ilderton v. Ilderton, 2 H. Blac. 145. it (0) See Burn's Just. Marriage, and was taken to be clear that a marriage, the observations of Lord Mansfield in celebrated in Scotland, is such a niarRobinson v. Bland, I Burr 1079. riage as would entitle the woman to
(p) Crompton v. Bearcroft, Bull. N.P. her dower in England. 113.; and see the opinion of Eyre, C. J.
of England, ecclesiastical and civil, was recognized by subjects of England in a place occupied by the king's troops, who would impliedly carry that law with them,) and held that it would be a good marriage by that law: for it would have been a good marriage in this country before the marriage act, and consequently would be so now in a foreign colony, to which that act does not extend. In the second place, he considered it upon the supposition that the law of England had not been carried to St. Domingo by the king's forces, nor was obligatory upon them in this particular; and held that the facts stated would be evidence of a good marriage according to the law of that country, whatever it might be; and that upon such facts every presumption was to be made in favour of the validity of the marriage. (g). In a subsequent case at the Old Marriage by Bailey, a question was made whether a marriage of a dissenter in teacher in a
a dissenting Ireland, when performed by a dissenting minister in a private room, private room was valid. It was contended on behalf of the prisoner, who was in Irela indicted for bigamy, that the marriage was illegal from the clandestine manner in which it was celebrated; and several Irish statutes were cited, from which it was argued that the marriage of dissenters in Ireland ought at least to be in the face of the congregation, and not in a private room. But the Recorder is said to have been clearly of opinion that this marriage 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 made necessary, by the enactment of positive law, to celebrate it in a church, some law should be shewn requiring dissenters to be married in a church, or in the face of the congregation, in Ireland, before this marriage could be pronounced to be illegal: whereas one of the Irish statutes, 21 and 22 Geo. 3. c. 25. (r) enacted, that all marriages between Protestant dissenters, celebrated by a Protestant dissenting teacher, should be good, without saying at what place they should be celebrated. (s)
With respect to the marriage of minors in Ireland, the statute 9 Geo. 2. c. 11. (Irish) contains some provisions. And the statute 58 Geo. 3. c. 84. was passed to remove doubts which had arisen as to the validity of marriages solemnized within the British territories in India, by ordained ministers of the church of Scotland. The statute 4 Geo. 4. c. 91. recites the expediency of relieving 4 Geo. 4. c. 91.
makes valid the minds of all his Majesty's subjects from any doubt concerning mo
(9) Rex v. Brampton, 10 East. 282. Geo. 3, c. 21. s. 12. only authorizes
(r) And see l l Geo. 2. c. 10. By 32 Popish priests to celebrate marriage Geo. 3.c.21. s. 12. Protestants may be between a Protestant and a Papist, married to Roman Catholics by cler- where such Protestant and Papist have gymen of the established church : but been first married by a Protestant clers. 13. contains a proviso that the act gyman. shall not authorize Protestant dissent. (8) Rex v. -- Old Bailey, Jan. ing ministers or Popish priests to cele- Sess. 1815, cor. Sir J. Silvester, Rebrate marriage between Protestants of corder. MS. The prisoner was an offithe established church and Roman Ca- cer in the army; and his first marriage, tholics. The clause however does not upon which this question was raised, enact that such a marriage celebrated took place in 1787, at Londonderry. by a Protestant dissenting teacher shall The second marriage was celebrated in be void. Such a marriage, celebrated London, according to the ceremonies by a Popish priest, would be void by of the church of England. 19 Geo. 2. c. 13. (Irish); and the 33
riages solem- the validity of marriages, solemnized by a minister of the church of
England, in the chapel or house of any British ambassador or michapel, &c. of a British mi- nister residing within the country to the court of which he is nister, or of a accredited, or in the chapel belonging to any British factory abroad, or in the army
ry, or in the house of any British subject residing at such factory, as
well as from any possibility of doubt concerning the validity of marriages solemnized within the British lines by any chaplain or officer, or other person, officiating under the orders of the com. manding officer of a British army serving abroad : and then enacts, that “all such marriages shall be deemed and held to be as valid “ in law as if the same had been solemnized within his Majesty's “ dominions, with a due observance of all forms required by law.” But there is a proviso that this act shall not confirm, or impair, or affect the validity of any marriages solemnized beyond the seas, save and except such as are solemnized as herein specified and
recited. (a) Marriages in
Marriages in the colony and dependencies of Newfoundland are Newfoundland. especially regulated by the statute 5 Geo. 4. c. 68. which repeals a
former statute, 57 Geo. 3. c. 51. upon the same subject.
Though the first marriage may be abroad, the offence is not cognizable here if the second marriage, which makes the offence, were abroad. The question was moved to Kelyng, C. J. at the Old Bailey, whether, if a man marry one wife in France, and a second in England, he might be indicted for this in England; and he took the difference that if the second marriage, which makes the felony, were in England, the offender might be indicted and tried here; but otherwise if the second marriage were abroad; because felonies in another kingdom are not by the common law triable here in
England. (6) The marriage It was formerly held that if an idiot contracted matrimony, it of lunatics
was good and should bind him : but modern resolutions appear to have proceeded upon the more reasonable doctrine of the civil law, by determining that the marriage of a lunatic, not being in a lucid interval, is absolutely void. And as it might be difficult to prove the exact state of the mind of the party at the actual celebration of the nuptials, the statute 15 Geo. 2. c. 30. has provided that if persons found lunatics under a commission, or committed to the care of trustees by any act of Parliament, marry before they are declared of sound mind by the lord chancellor, or the majority of
such trustees, the marriage shall be totally void. (s) Marriage by Upon indictments for bigamy it has been heid not to be suffireputation not sufficient.
cient to prove a marriage by reputation; but that either some person present at the marriage must be called, or the original register, or an examined copy of it, be produced. (1) The marriage act, 4 Geo. 4. e. 76. s. 28. requires that marriages shall be solemnized in the presence of two or more credible witnesses, besides the minister who shall celebrate the same, and that it shall be entered in the register; in which entry it shall be expressed, that the marriage was celebrated by banns or licence, and with consent, as the case may be, and be signed by the minister and parties married,
(1) Morris v. Miller, 4 Burr, 2057. (6) Kel. 79.
Birt v. Barlow, Dougl. 162. (8) 1 Blac. Com. 438, 439.
(a) S. 2.
and attested by two witnesses. But, upon a provision nearly similar in the former marriage act, it was held not to be necessary to call one of the subscribing witnesses to the register in order to prove the identity of the persons married; but that the register, or the copy of it, being produced, any evidence which satisfied the jury as to the identity of the parties was sufficient; as if their handwriting to the register were proved; or that bell-ringers were paid by them for ringing for the wedding, or the like. (w) And it was held that if the marriages were proved by a person present at them, it was not necessary to prove the registration, or licence, or banns. The prisoner was indicted for marrying Ann Epton, whilst Jane, his former wife, was living : each marriage was proved by a witness who was present at the ceremony; and it appeared that at the first marriage the prisoner went by the name of Allison, and at the second by the name of Wilkinson. Chambre, J. doubted whether the evidence was sufficient without proof of the registration of either marriage, or of any licence, or publication of banns : but the Judges held that it was. (a)
How far the acknowledgment of the defendant upon the subject Hor far the of his marriage is sufficient evidence of the fact may admit of some acknowledgdoubt. In one case it was held, that proof of the prisoner's co- ment of the
defendant is habiting with and acknowledging himself married to a former wife evidena then living, such assertion being backed by his producing to the witness a copy of a proceeding in a Scotch court against him and his wife for having contracted the marriage improperly, (the marriage, however, being still good according to that law), was sufficient evidence of the first marriage; and upon such evidence, together with due proof of the second marriage, the prisoner was convicted. The point being reserved for the opinion of the Judges, all of them (with the exception of Perryn, B. and Buller, J. who were absent,) held the conviction proper. Two of them observed that this did not rest upon cohabitation and bare acknowledgment; for the defendant had backed his assertion by the production of the copy of the proceeding : but some of the Judges thought that the acknowledgment alone would have been sufficient, and that the paper produced in evidence was only a confirmation of such acknowledgment. (.x)
After proof of the first marriage the second wife may be a wit- The true wife ness : but it is clear that the first and true wife cannot be admitted cannot be a to give evidence against her husband. (y)
(2) 1 East. P. C. c. 12. s. 11. p. 472. circumstances be entitled to little or Bull. N. P. 27.
no weight; for such acknowledgments (a) Rex v. Allison, East. T. 1806. made without consideration of the MS. Bayley, J. and Russ. and Ry. 109. consequences, and palpably for other
(3) Truman's case, Nottingham Spr. purposes at the time, are scarcely deAssiz. 1795, decided upon by the serving of that name in the sense in Judges in East. T. 1795, MS. Jud. I which acknowledgments are received East. P. C. c. 12. S. 10. p. 470, 471. as evidence; more especially if made where see some remarks as to the ad- before the second marriage, or upon mission of a bare acknowledgment in occasions when in truth they cannot evidence in a case of this nature. That be said to be to the party's own preit may be difficult to say that it is not judice, nor so conceived by him at the evidence to go to a jury: but that it time. must be admitted that it may under (y) i Hale 693. i East. P. C. c. 12.