A pauper, not being a widow, and being under age, was married by license in 1808, without the consent of her father, who was then living, and continued to live with her husband till 1825, when she married another man, her first husband being still alive; it was held that the first marriage was rendered valid by 3 Geo. 4, c. 75, s. 2, because the parties had lived together till that Act passed, and was not rendered invalid by the pauper's subsequent marriage to another person.(p) But where two minors were married by license and without consent of parents, in 1816; and, after cohabiting for a few months, the owner of the house where they lodged compelled the husband to leave it for his misconduct, and he never lived with his wife afterwards, and died in 1817; and shortly after the separation he on several occasions had declared that he would never live with her again, giving as one reason that she was not his lawful wife; but some evidence was given that after *277] the separation she had received small sums, which were ultimately allowed out of the rent of the husband's land; but whether by his direction or not did not appear; it was held that the marriage was not rendered valid by the 3 Geo. 4, c. 75, s. 2.(g)

A prisoner was married on the 30th of August, 1822, by license, and without the consent of either of her parents, she being between sixteen and seventeen years of age; it was held, on a case reserved, that the marriage was valid, for under the 3 Geo. 4, c. 75, which passed on the 22d of July, 1822, the 26 Geo. 2, c. 33, s. 11, had ceased to operate, and the provisions as to marriages by licenses in the 3 Geo. 4, c. 75, did not come into force till the 1st of September following.(r)

The 3 Geo. 4, c. 75, contained also enactments as to the granting of licenses, the consent of parents and guardians, and the publication of banns, which have been repealed by the 4 Geo. 4, c. 17, which enacted, that licenses should and might be granted by the same persons, and in the same manner and form, and, in the case of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 licenses and banns were respectively regulated by the 26 Geo. 2, c. 33; and enacted also (by sec. 2) that all marriages which had been or should be solemnized under licenses granted, or banns published, conformably to the provisions of the 3 Geo. 4, c. 75, should be good and valid; and that no marriage solemnized under any license granted in the form or manner prescribed by either the 26 Geo. 2, c. 33, or the 3 Geo. 4, c. 75, should be deemed invalid on account of want of consent of any parent or guardian. The old Marriage Act was then in a great measure revived, though only for a short period. The 4 Geo. 4, c. 5, was passed to render valid certain marriages which had been solemnized by licenses granted through error, after the passing of the 3 Geo. 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 licenses by the 3 Geo. 4, c. 75; but this provision of the 4 Geo. 4, c. 5, applies only to marriages solemnized by such erroneous licenses granted after the 3 Geo. 4, and before the passing of the 4 Geo. 4, c. 5.

The 4 Geo. 4, c. 76, reciting that it is expedient to amend the laws respecting marriages in England, enacts, that, after the 1st day of November, 1823, so much of the 26 Geo. 2, c. 33, as was in force immediately before the passing of this Act, and also the 4 Geo. 4, c. 17, shall be repealed, save and except as to any acts, matters, or things, done under the provisions of either of the said Acts, before the said 1st 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.

Sec. 2. "After the 1st day of November (1823), all banns of matrimony shall be published in an audible manner in the parish church, or in some public chapel,

solemnized without consent, then, although no sentence had been pronounced against the validity of such marriage, the right and interest in such property or title of honor should in no manner be affected or prejudiced. And by sec. 7 nothing in the Act was to affect any act done before the passing of the Act, under the authority of any court, or in the administration of any personal estate or effects, or the execution of any will or testament, or the performance of any trust.

(p) Rex v. St. John Delpike, 2 B. & Ad. 226 (22 E. C. L. R.).

(v) Poole v. Poole, 2 Tyrw. R. 76.

(r) Rex v. Waully, R. & M. C. C. R. 163.

in which chapel banns of matrimony may now or may hereafter be lawfully published, of or belonging to such parish or chapelry, wherein the persons to be [*278 *married shall dwell, according to the form of words prescribed by the rubric prefixed to the office of matrimony in the Book of Common Prayer, upon three Sundays preceding the solemnization of marriage, during the time of morning service, or of evening service (if there should 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 published 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.”

Sec. 3.The bishop of the diocese, with the consent of the patron and the incumbent of the church of the parish in which any public chapel, having a chapelry thereunto annexed, may be situated, or of any chapel situated in an extra-parochial place, signified to him under their hands and seals respectively, may authorize, by writing under his hand and seal, the publication of banns and the solemnization of marriages in such chapel for persons residing within such chapelry or extra-parochial place respectively; and such consent, together with such written authority, shall be registered in the registry of the diocese."

Sec. 4. In every chapel in respect of which such authority shall be given as aforesaid, there shall be 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.""

66

Sec. 5. All provisions now in force, or which may hereafter be established by law, relative to providing and keeping marriage registers in any parish churches, shall extend and be construed to extend to any chapel in which the publication of banns and solemnization of marriages shall be so authorized as aforesaid, in the same manner as if the same were a parish church; and everything required by law to be done relative thereto by the church wardens of any parish church, shall be done by the chapelwarden or other officer exercising analogous duties in such chapel." (s)

Sec. 6. "On or before the 1st day of November, and from time to time afterwards as there shall be occasion, the churchwardens and chapelwardens of churches and chapels, wherein marriages are solemnized, shall provide a 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."

*Sec. 7. "No parson, vicar, minister, or curate, shall be obliged to pub[*279 lish the banns of matrimony between any persons whatsoever, unless the persons to be married shall, seven days at the least before the time required for the first publication of such banns respectively, deliver, or cause 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.'

"

Sec. 8. "No parson, minister, vicar, or curate, solemnizing marriages after the first day of November next, between persons, both or one of whom shall be under the age of twenty-one years, after banns published, shall be punishable by ecclesiastical censures for solemnizing such marriages without consent of parents or guar

(*) See as to the registration of marriages, 6 & 7 Will. 4, c. 86, ss. 1, 30, 31.

dians, unless such parson, minister, vicar, or curate, shall have notice of the dissent of such parents or guardians; and in case such parents or guardians, or one of them, shall openly and publicly declare or cause to be declared, in the church or chapel where the banns shall be so published, at the time of such publication, his, her, or their dissent to such marriage, such publication of banus shall be absolutely void."

Sec. 9. "Whenever a marriage shall not be had within three months after the complete publication of banus, no minister shall proceed to the solemnization of the same, until the banns shall have been republished on three several Sundays, in the form and manner prescribed in this Act, unless by license duly obtained according to the provisions of this Act."

Sec. 10. "No license of marriage shall, from and after the said first day of November, be granted by any archbishop, bishop, or other ordinary person having authority to grant such licenses, to solemnize any marriage in any other church or chapel than in the parish church, or in some public chapel of or belonging to the parish or chapelry within which the usual place of abode of one of the persons to be married shall have been for the space of fifteen days immediately before the granting of such license."

Sec. 11. "If any caveat be entered against the grant of any license for a marriage, such caveat being duly signed by or on the behalf of the person who enters the same, together with his place of residence, and the ground of objection on which his caveat is founded, no license shall issue till the said caveat, or a true copy thereof, be transmitted to the judge out of whose office the license is to issue, and until the judge has certified to the register that he has examined into the matter of the caveat, and is satisfied that it ought not to obstruct the grant of the license for the said marriage, or until the caveat be withdrawn by the party who entered the same."

Sec. 12. All parishes where there shall be no parish church or chapel belonging thereto, or none wherein divine service shall be usually solemnized every Sunday, and all extra-parochial places whatever, having no public chapel wherein banns may be lawfully published, shall be deemed and taken to belong to any parish or

chapelry next adjoining, for the purposes of this Act only; and *where *280] banns shall be published in any church or chapel of any parish or chapelry adjoining to any such parish or chapelry where there shall be no church or chapel, or none wherein divine service shall be solemnized as aforesaid, or to any extraparochial place as aforesaid, the parson, vicar, minister, or curate, publishing such banns, shall, in writing under his hand, certify the publication thereof in the same manner as if either of the persons to be married had dwelt in such adjoining parish or chapelry."

Sec. 13. "If the church of any parish, or chapel of any chapelry, wherein marriages have been usually solemnized, be demolished in order to be rebuilt, or be under repair, and on such account be disused for public service, it shall be lawful for the banns to be proclaimed in a church or chapel of any adjoining parish or chapelry in which bauns are usually proclaimed, or in any place within the limits of the parish or chapelry which shall be licensed by the bishop of the diocese for the performance of divine service, during the repair or rebuilding of the church as aforesaid; and where no such place shall be so licensed, then, during such period as aforesaid, the marriage may be solemnized in the adjoining church or chapel wherein the banns have been proclaimed, and all marriages heretofore solemnized in other places within the said parishes or chapelries than the said churches or chapels, on account of their being under repair, or taken down in order to be rebuilt, shall not be liable to have their validity questioned on that account, nor shall the ministers who have so solemnized the same be liable to any ecclesiastical censure, or to any other proceeding or penalty whatsoever." This enactment being defective in not providing that marriages might be solemnized in the places licensed for the proclamation of banns; nor that marriages might be solemnized by license in an adjoining church or chapel; nor that the validity of marriages thereafter sol emnized in other places than the churches and chapels out of repair, should not be questioned on that account; nor that the ministers who should thereafter solemnize

such marriages should not be liable to ecclesiastical censure, &c.: the 5 Geo. 4, c. 32, enacts, that "all marriages which have been heretofore solemnized, or which shall be hereafter solemnized in any place within the limits of such parish or chapelry so licensed for the performance of divine service, during the repair or rebuilding of the church of any parish, or chapel of any chapelry, wherein marriages have been usually solemnized; or if no such place shall be so licensed, then in a church or chapel of any adjoining parish or chapelry in which banns are usually proclaimed, whether by banns lawfully published in such church or chapel, or by license lawfully granted, shall not have their validity questioned on account of their having been so solemnized, nor shall the ministers who have so solemnized the same be liable to any ecclesiastical censure, or to any other proceeding." And that all licenses granted by any person having authority to grant them for the solemnization. of marriages in a church or chapel, wherein marriages have been usually solemnized, shall be deemed to be licenses for the solemnization of marriages in any place within the limits of such parish or chapelry, which shall be licensed by the bishop for the performance of divine service, during the repair or rebuilding of any such church or chapel, or if no place shall be so *licensed, then in the church or [*281 chapel of any adjoining parish or chapelry wherein marriages have been usually solemnized.(t) And also that all banns proclaimed, and all marriages solemnized, according to the provisions of this Act in any place so licensed, within the limits of any parish or chapelry, during the repair or rebuilding of the church, &c., shall be considered as proclaimed and solemnized in the church, &c., and shall be so registered accordingly.(u)

The 4 Geo. 4, c. 76, s. 14, enacts, " for avoiding all fraud and collusion in obtaining of licenses for marriage, that before any such license 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 ecclesiastical court, to bar or hinder the proceeding of the said matrimony according to the tenor of the said license; and that one of the said parties hath, for the space of fifteen days immediately preceding such license, had his or her usual place of abode within the parish or chapelry within which such marriage 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 party requiring such license, it shall be lawful to grant such license, notwithstanding the want of any such consent."

Sec. 15. "It shall not be required of any person applying for such license to give any caution or security, by bond or otherwise, before such license is granted, anything in any Act or canon to the contrary thereof notwithstanding."

Sec. 16. "The father, if living, of any party under twenty-one years of age, such parties not being a 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 unmarried; and if there shall be no mother unmarried, then the 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

(t) Sec. 2.

(u) Sec. 3. Since the last edition of this work the following Acts have passed on this subject: The 6 Geo. 4, c. 93, to render valid marriages solemnized in certain churches and public chapels, in which banns had not been usually published. The 11 Geo. 4, c. 18, to render valid marriages solemnized in certain churches and chapels during the rebuilding or repairing churches, &c., and in churches of distinct or district parishes, established under the 58 Geo. 3, c. 45, and the 59 Geo. 3, c. 134, and in certain chapels. The 4 & 5 Will. 4, c. 28, as to marriages in Scotland by Roman Catholic priests. The 3 & 4 Will. 4, c. 45, as to marriages at Hamburgh since the abolition of the British factory there, and many other Acts have passed to render valid marriages in particular churches and chapels.

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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."(v)

*Sec. 17. "In case the father or fathers of the parties to be married, or *282] of one of them, so under age as aforesaid, shall be non compos mentis, or the guardian or 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 withhold his, her, or their consent, to a proper marriage, then it shall and may be lawful for any person desirous of marrying, in 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 way; and in case the marriage proposed shall upon examination appear to be proper, the said Lord Chancellor, Lord Keeper, or Lord 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.'

Sec. 18. From and after the said first day of November, no surrogate, hereafter to be deputed by any ecclesiastical judge who hath power to grant licenses, shall grant any such licenses 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."

Sec. 19. " Whenever a marriage shall not be had within three months after the grant of a license by any archbishop, bishop, or any ordinary or 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 according to the provisions of this Act"

Sec. 20. "Nothing hereinbefore contained shall be construed to extend to deprive the Archbishop of Canterbury and his successors, and his and their proper officers, of the right which hath hitherto been used, in virtue of a certain statute made in the twenty-fifth year of the reign of the late King Henry the Eighth, intituled, "An Act concerning Peter-pence and Dispensations," of granting special licenses to marry at any convenient time or place."(w)

Sec. 22. "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 as aforesaid, or shall knowingly and wilfully intermarry without due publication of banns, or license from a person or persons *283] *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 whatsoever."(x)

Sec. 26. "After the solemnization 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 license, it shall not be necessary to give any proof that the usual place of abode of one of the parties, for the space of fifteen days as aforesaid, was in the parish or chapelry where the mar

(v) This section is merely directory; see Rex v. Birmingham, post, p. 305.

(w) By sec. 21, persons solemnizing marriages in any other place than a church or chapel, or without banns or liceuse, or under pretence of being in holy orders, shall be transported for fourteen years, the prosecution to be commenced within three years.

(x) By sec. 23, where a marriage is solemnized between parties, one of whom is under age, and not a widower or widow, contrary to the provisions of the Act, by false oath or fraud, the guilty party shall forfeit all property accruing from the marriage.