in any other place than that specified in the notice and certificate, or without due notice to the superintendent registrar, or without certificate duly issued, or without licence (where licence is required), or in the absence of the registrar or superintendent registrar (where his presence is required), the marriage shall be null and void (q); and that even a valid marriage, by means of a wilfully false notice, certificate, or declaration, shall expose the party offending to the same consequences as are provided under the Marriage Act of 4 Geo. IV. c. 76, with regard to marriages procured by false oath, or fraudulent procurement (r): and, further, that every person who shall knowingly and wilfully solemnize marriage (except by special licence), in any other place than a church or chapel in which marriages may be solemnized according to the rites of the Church of England, or the registered building or office specified in the notice and certificate (except in the case of Quakers and Jews); or shall, in a registered building or office, solemnize marriage in the absence of a registrar of the district; or (except by licence) within twentyone days after the entry of the notice, or (whether the marriage be by licence or not) after three calendar months after such entry; shall be deemed guilty of felony (s). It is further to be observed, with respect to all marriages, whether taking place under the 4 Geo. IV. c. 76, or under the new regulations, that they are required by law to be registered. For it is provided by 6 & 7 Will. IV. c. 86, s. 31 (t), that, where the marriage takes place in a church, the clergyman shall, immediately after the office of matrimony is solemnized by him, register the same in duplicate in two of the marriage register books, in such form as prescribed (q) 6 & 7 Will. 4, c. 85, s. 42. (r) 6 & 7 Will. 4, c. 85, s. 43; 19 & 20 Vict. c. 119, s. 19; vide sup. p. 260. (s) 6 & 7 Will. 4, c. 85, s. 39. (1) This is the act for registration of births, deaths and marriages, which the Marriage Act, 6 & 7 Will. 4, c. 85, declares to be one and the same act with itself. By the 6 & 7 Will. 4, c. 86, the previous enactments of 4 Geo. 4, c. 76, as to the registration of marriages, are repealed. by that act; and that every rector, vicar, or curate, shall deliver quarterly, in April, July, October, and January, a copy certified under his hand, on durable materials, to the superintendent registrar of the district, of all entries of marriages in the register book for the quarter: and one copy of every such registry book, when filled, shall be delivered to the superintendent registrar of the district, and the other copy shall remain in the clergyman's own keeping with the other parish registers (u). And where the marriage takes place in a registered building, or in the office of the superintendent registrar, or according to the usages of the Quakers or Jews, there are similar provisions. The duty of registration, however, in the two first of these cases is committed to the registrar of marriages for the district; in the last two to the registering officer among the Quakers, and the secretary of the Synagogue among the Jews, respectively (x). Lastly, we may remark that none of these acts extend to the marriages of the royal family; nor to any marriage taking place out of England (y). With respect, therefore, to those contracted by British subjects in Scotland or Ireland, or in any foreign country, they are considered as valid by our law, so far as the manner of them is concerned, if made in such form as is deemed sufficient in the place where contracted (z): and the case appears to be the (u) Vide 7 Will. 4 & 1 Vict. c. 22, for further provisions as to registration, and 3 & 4 Vict. c. 92, as to the custody and admissibility in evidence of certain non-parochial registers and records. (x) 6 & 7 Will. 4, c. 86, s. 31, et seq.; 19 & 20 Vict. c. 119, s. 22. (y) As to marriages in India, see 14 & 15 Vict. c. 40. (z) R. v. Brampton, 10 East, 282; Lautour v. Teesdale, 2 Marsh. 243; Doe v. Vardill, 5 Barn. & Cress. 438; 6 Bing. N. C. 385; Scrimshire v. Scrimshire, 2 Hagg. 395; Maclean v. same, though the parties eloped to that country on purpose to evade the laws of marriage in this (a). It is also provided, by 4 Geo. IV. c. 91, that marriages solemnized by a clergyman in the chapel or house of an ambassador or resident minister, or the chapel of a British factory abroad, or the house of any British subject residing at such factory, or by a chaplain or other person officiating by authority within the lines of a British army abroad (b), shall be as valid as if solemnized in the British dominions in due form of law; and, by 12 & 13 Vict. c. 68, that all marriages solemnized in the manner in that act provided in any foreign country or place where there shall be a British consul duly authorized to act in that behalf, shall be as valid (if either of the parties be a subject of the realm) as if solemnized within her majesty's dominions with a due observance of all forms required by law. The course of proceeding authorized in such cases is, that the consul, on receiving due notice, may grant licence for the marriage, and may in due time, at the British consulate, with open doors, proceed to cause the same to be solemnized in his presence (two witnesses being present), and either according to the rites of our church, or according to any other form and ceremony the parties may see fit to adopt; or may (where the parties shall so desire) solemnize it himself; and the marriage is to be afterwards registered in accordance with the act for registering births, deaths and marriages in England, as far as the circumstances of the case will admit (c). (a) Compton v. Bearcroft, Bul. N. P. 113; Co. Litt. by Harg. 79 b, n. (1); Ex parte Hall, 1 Ves. & B. 112; Dalrymple v. Dalrymple, 2 Hagg. 52. (b) This applies, though there be no actual hostility at the time. Waldegrave Peerage, 4 Cl. & Fin. 649. (c) By the same act (12 & 13 Vict. c. 68, s. 20) the validity of certain past marriages abroad, celebrated under such forms as the act enumerates, is confirmed. But with the exception of these, it neither confirms nor impairs the validity of any marriage solemnized beyond the seas, otherwise than as therein provided. See also 17 & 18 Vict. c. 88, confirming certain marriages solemnized in Mexico. II. Having thus shown how marriage may be made, we are next to examine its legal effects and consequences. For some purposes, the husband and wife become, by their marriage, one person in law (d). Therefore, by the common law, a man cannot in general grant anything to his wife, or enter into covenant with her; nor can any action be brought between husband and wife; for the grant, covenant, or suit would suppose her separate existence (e). And upon the same principle, [it is generally true, that all compacts between them when single, are avoided by the intermarriage (ƒ).] The husband, however, may grant to or contract with a third person as trustee for the wife (g); and if he conveys land to a third person to her use, that will be an effectual conveyance under the Statute of Uses (h). A woman also may be attorney or agent for her husband (i); [for that implies no separation from, but is rather a representation of her lord.] And a husband may bequeath any thing to his wife by will; for that cannot take effect till the union is severed by his death (k). So where the wife acts in the execution of a mere power or authority, she may make an estate to the husband. Thus if she has authority under a will to sell, she may effectually sell to him (1). With a view to the same principle of the legal identity of husband and wife, and to the identity of interest, which in the nature of things must always exist between them, and in part also to the policy of preventing as much as possible all occasions for domestic dissension or distrust, it long remained a fundamental rule of our law, that persons standing in this connection could not in trials of any sort, whether civil or criminal, be received as witnesses for or (d) Co. Litt. 112a. (e) Co. Litt. 112 a; Beard v. Beard, 3 Atk. 72. (ƒ) 8 Rep. 136 a. (g) Co. Litt. 112 a. (h) Co. Litt. 112 a; 1 Sand. Us. 132. (i) 1 Bl. Com. 442; Prince v. Brunatte, 1 Bing. N. C. 438; M'George v. Egan, 5 Bing. N. C. 196. (k) Co. Litt. 112 a. (1) Ibid. against each other (m); which has always been subject however to the following exception :--that in a criminal prosecution against the husband for treason, or for violence to the person of his wife, the evidence of the latter was always, (in the first case, on account of the tie of allegiance, in the other, on the ground of evident necessity,) admitted (n). But by a recent statute it has been deemed expedient to abandon the principle of identity between husband and wife, so far as relates to the subject of evidence, and the practice herein is now regulated by the Evidence Amendment Act, 1853 (16 & 17 Vict. c. 83), by the effect of which the husbands and wives of the parties to any cause are both competent and compellable to give evidence on behalf of either or any of the parties; subject only to these exceptions:-1. That no husband is thereby rendered competent or compellable to give evidence for or against his wife,-or any wife competent or compellable to give evidence for or against her husband,-in any criminal proceeding, or in any proceeding instituted in consequence of adultery; and, 2. That no husband shall be compellable to disclose any communication made to him by his wife, during the marriage, nor any wife compellable to disclose any communication made to her by her husband, during the marriage. The principle of identity between husband and wife does not extend for any purpose to the Queen, whether regnant or consort, who is considered by our law as a feme sole, or single woman (g). (m) Hawk. b. 2, c. 46, s. 16; 1 Hale, P. C. 301; Wedgewood v. Hartley, 10 Ad. & El. 619. (n) 1 Chit. Bl. 444, n.; Lord Audley's case, State Trials; 1 Hale, P. C. 301; 1 East, P. C. 454. By the statute law also the following exceptions were introduced prior to the alteration of the rule itself as about to be mentioned, viz., that in bankruptcy the wife of a bankrupt. |
