S. 9. In what tion of banns necessary. 66 "dians, 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 banns shall be "absolutely void." The ninth section enacts, "that whenever a marriage shall case republica- not be had within three months after the complete publication "of banns, 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 licence duly obtained according to the provisions "of this act." S. 10. Licences to marry in church, &c. of parish wherein one party resided for 15 days before. S. 11. Where no licence to issue till matter examined by Judge. 66 The tenth section further enacts, "that no licence of mar66 riage shall, from and after the said first day of November, be granted by any archbishop, bishop, or other ordinary, or person having authority to grant such licences, to solemnize any mar"riage 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 licence." 66 The eleventh section enacts, "that if any caveat be entered caveat entered, "against the grant of any licence 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 licence shall "issue till the said caveat, or a true copy thereof, be transmitted to the Judge out of whose office the licence is to issue, and "until the Judge has certified to the register that he has exa"mined into the matter of the caveat, and is satisfied that it "ought not to obstruct the grant of the licence for the said 66 marriage, or until the caveat be withdrawn by the party who "entered the same." S. 12. Parishes, where no church or chapel, and places, deemed to belong to any adjoining parish, &c. 66 The twelfth section enacts, "that 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 extra-parochial "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 banns shall be pub"lished in any church or chapel of any parish or chapelry ad"joining to any such parish or chapelry where there shall be no "church or chapel, or none wherein divine service shall be so"lemnized as aforesaid, or to any extra-parochial place as afore"said, 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.” S. 13. Where 66 The thirteenth section enacts, "that 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 66 66 66 rish, &c. Provision for former marlemnized. riages so so "chapel of any adjoining parish or chapelry in which banns are chapel of an usually proclaimed, or in any place within the limits of the adjoining pa"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 66 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 licence in an adjoining church or chapel; nor that the validity of marriages thereafter solemnized 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. a subsequent statute 5 G. 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 licence "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 it further enacts, that all licences 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 licences 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 chapel of any adjoining parish or chapelry, wherein marriages have been usually solemnized. (a) 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. (b) S. 14. Oath to the surrogate as to certain particulars before licence is granted. The fourteenth section of the 4 G. 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 marriage is to be solemnized; and, where either of the parties, not "being a widower or widow, shall be under the age of twenty66 one years, that the consent of the person or persons whose 66 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 S. 15. Bond not before granting licence. 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." 66 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 security, by bond or otherwise, before such licence is granted, any thing in any act or canon to the contrary thereof notwith"standing." S. 16. Who are to give consent, if parties are under age. S. 17. If the be non compos guardians or mother of minor be non compos mentis, or beyond sea, &c. parties may apply to the lord chancellor. ' The sixteenth section enacts, "that 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 un"married; 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 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." 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 mentis, or if 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 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 << 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 66 66 way; and in case the marriage proposed shall upon examination 66 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." 66 66 oath of office. 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 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." cence to be 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 case new li "by any archbishop, bishop, or any ordinary or person having obtained. "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.' c. 21. persons wil church, &c. 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 fully marry in "published, unless by special licence as aforesaid, or shall know- any other "ingly and wilfully intermarry without due publication of banns, place than a " 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." S. 26. Proof of actual resi dence of parties not neces sary to validity The twenty-sixth section enacts, " that, 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, of marriage, "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 parties, for the space of fifteen days as aforesaid, was in the 66 66 whether after banns or by licence. 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) 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." 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 purpose 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 66 (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. |