[*309

in the parish of Aldridge, in the year 1843, and that marriages *had been solemnized there for the last twenty years, but no register was produced, nor any further evidence given as to the celebration of marriages or publication of banns there; Platt, B., held the evidence insufficient, as it was necessary to show either that the chapel was one in which banns had been usually published before the 26 Geo. 3, c. 33, or that the chapel was built and consecrated after that Act, and before the 6 Geo. 4, c. 92.(t)

By the 6 & 7 Vict. c. 37, s. 15, an Act to make better provision for the spiritual care of populous parishes, where any church or chapel has been consecrated as the church or chapel of any district constituted under the Act, such district is to be a new parish for ecclesiastical purposes, and "it shall be lawful to publish banns of matrimony in such church, and according to the laws and canons in force in this realm to solemnize therein marriages ;" and the several laws relating to the publication of banns and the performance of marriages and the registering thereof, shall apply to the church of such new parish, and to the perpetual curate thereof. And by the 8 & 9 Vict. c. 70, s. 10, an Act for amending the Church Building Acts, banns of marriage may be published and marriages performed in the church of every consolidated chapelry formed in the manner therein mentioned.

The 7 & 8 Vict. c. 56, s. 3, reciting that by error banns have been published and marriages solemnized in chapels with districts assigned to them under the 59 Geo. 3, c. 134, 1 & 2 Will. 4, c. 38, 1 & 2 Vict. c. 107, and 3 & 4 Vict. c. 60, or some of them, but in which chapels banns could not be legally published nor marriages by law be solemnized, enacts that "banns already (29th July, 1844) published and marriages already solemnized in such chapels as aforesaid, shall not hereafter be questioned on account of the said banns having been published, or the said marriages solemnized in any such chapel as aforesaid, and the registers of all marriages so solemnized as aforesaid, or copies of such registers, shall be received in all courts of law and equity as evidence of such marriages respectively."(u)

The 14 & 15 Vict. c. 97, s. 25, enacts that, where by error and without fraud banns had been published or marriages solemnized, in the church of any parish or district in which they could not lawfully be published or solemnized, the banns already (7th August, 1851) published and marriages already solemnized, shall not be questioned by reason thereof, except where some suit was pending.

The 24 & 25 Vict. c. 16, s. 4, rendered valid all banns published and all marriages solemnized before the 17th of May, 1861, in churches and chapels which had been duly consecrated, but in which banns could not legally be published nor marriages by law be solemnized; but the Act is not prospective.(v)

The 18 & 19 Vict. c 81, s. 13, renders valid marriages had before the 30th July, 1855, in any building registered under the 6 & 7 Will. 4, c. 85, but not certified as required by any Act.

[*310

The 4 Geo. 4, c. 76, and 6 & 7 Will. 4, c. 85, only extend to that part of the United Kingdom called England.(w) With respect to marriages in Scotland, though the point was formerly much doubted,(x) it appears to have been afterwards settled that where minors domiciled in England withdrew themselves into Scotland, or places beyond the seas, for the purpose of evading the Marriage Act, their marriage under such circumstances was nevertheless valid.(y) In a late

(t) Reg. v. Bowen, 2 C & K. 227 (61 E. C. L. R.), tried March 18, 1846. The 6 Geo. 4, c. 92, received the Royal Assent 5th July, 1825.

(u) Sec. 1 provides that where a district has been or shall be assigned to any church or chapel under the 3 & 4 Vict. c. 60, the Church Building Commissioners or the bishop may determine as to banns and marriages in any such church or chapel; and sec. 2 points out the proceedings where such decision is made; and sec. 4 provides that omissions to authorize marriages in chapels may be supplied by a supplemental order, &c.

(v) The Act also indemnifies ministers who had solemnized any marriages in such churches and chapels, and makes the registers and copies of them admissible in evidence.

(w) See ante, pp. 283, 291.

(z) See Burn's Just. tit. Marriage, and the observations of Lord Mansfield in Robinson v. Bland, 2 Burr 1079.

(y) Crompton v. Bearcroft, Bull. N. P. 113; and see the opinion of Eyre, C. J., in reasoning upon the case of Phillips v. Hunter, 2 H. Blac. 412. And in Ilderton v. Ilder

case, a writer to the signet proved that, according to the law of Scotland, marriage is a civil contract solemnly and deliberately entered into, and as if the parties had a serious intention of living together as a man and wife. The assent of both parties must, therefore, be very distinctly and clearly proved to have been given, in order to render the contract a valid one. It is not necessary to the validity of such contract, that the parties should afterwards live together as man and wife; but the fact of their afterwards living together as man and wife will operate to explain ambiguous words, if there be such in the contract itself. Where, therefore, the second marriage took place at Gretna Green, and upon the whole evidence the assent of the second wife was not "distinctly and clearly proved," and, though the parties had lived together afterwards, the evidence tended rather to show that they were living together in a state of concubinage, inasmuch as the prisoner still continued to address her by her maiden name, Alderson, B., directed the jury to find the prisoner not guilty.(z) And where, on an indictment for bigamy, to prove the second marriage in Scotland, a witness stated that she (being the sister of the second wife) was present at a ceremony performed by a minister of a congregation, but whether of the Kirk she did not know, in her private house in Edinburgh; that she herself was married in the same way, and that parties were always married in Scotland in private houses; that the prisoner and her sister lived together in her house as man and wife for a few days after the ceremony; and the jury found the prisoner guilty; upon the question being reserved whether the evidence was sufficient to justify the verdict, or whether some witness, conversant with the law of Scotland, should not have been called upon to say whether the facts proved constituted a valid marriage according to that law; it was held that some such witness ought to have been called, and that, even supposing that the witness had been a competent witness for such a matter, her evidence did not prove a marriage in fact.(a)

*In the case of a marriage in a very distant place, it appears to be sufficient to

*311] show that it was performed according to the rites and custom of the country in which it was celebrated. Where 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 woman to be the marrriage service of the Church of England. This was held sufficient evidence, after eleven years' cohabitation, that the marriage was properly celebrated, although 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 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

ton, 2 H. Blac. 145, it was taken to be clear that a marriage, celebrated in Scotland, is such a marriage as would entitle the woman to her dower in England.

(z) Graham's case, 2 Lew. 97. In the same case the same learned judge refused to admit the certificate as evidence of the marriage.

(a) Reg. v. Povey, Dears. C. C. 32. The Court said that the Sussex Peerage Case, 11 Cl. & F. 85, had settled the point that a person not peritus virtute officii or virtute professionis, was inadmissible to prove the law of a foreign country, and had overruled Reg. v. Dent, 1 C. & K. 97 (47 E. C. L. R.). See Lapsley v. Grierson, 1 H. L. C. 498, that illicit cohabitation in Scotland begun in the lifetime of a husband, and continued after his death, continues to bear an illicit character, unless there be a clear change in its character after the death of the husband is known to the parties.

country, whatever it might be; and upon such facts every presumption was to be made in favor of the validity of the marriage.(b)

Where a person was married at her father's house, in Ireland, in 1799, in the presence of the friends of both families, by a clergyman of the Church of England, who had been curate of the parish for eighteen years; the parish church was standing, but persons of respectability were usually married at their own houses; the parties lived together for several years following as man and wife. Upon objection to the validity of this marriage, Best, C. J., said, I know of no law which says that celebration in a church is essential to the validity of a marriage in Ireland. The English Marriage Act does not apply, and I am aware of no Irish law which takes marriages performed in that country out of the rules which prevailed in this before the passing of that Act. Dalrymple v. Dalrymple (c) has placed it beyond a doubt that a marriage so celebrated as this has been would have been held valid in this country before the existence of that statute. (d) So *where in support [*312 of a plea of coverture it was proved that Mrs. Quicke married Mr. Quicke at the house of the Rev. F. M'Guire, near Dublin, in 1842, and Mr. M'Guire's widow produced his letters of orders showing that he had been ordained deacon and priest by bishops of the Established Church, and also proved that when persons were married at their house, her husband always made an entry in a register book, which she produced, and also gave a certificate of the marriage to the persons married; and the register contained an entry of the marriage of Mr. and Mrs. Quicke, and Mrs. Quicke proved that she married Mr. Quicke as before mentioned, and produced the certificate given to her by Mr. M'Guire; Parke, B., held that the certificate was admissible as a part of the transaction; but not the register; and that the marriage was valid for although it was not celebrated in a church, it was a valid marriage at common law before the 7 & 8 Vict. c. 81.(e)

Where a woman, being a Roman Catholic, and a man, being a Protestant, went in 1826 before Mr. Wood, a clergyman residing in Dublin, who, in his private house, read to them the marriage ceremony, aud in the course of it asked her whether she would be the wife of the man, and asked him whether he would be her husband, to which question both of them answered, "I will:" Wood was reputed to be a clergyman of the Established Church, and a document purporting to be letters of orders signed and sealed by W. late Archbishop of Tuam, dated in 1799, whereby the archbishop certified that he had ordained Wood a priest, and which letters were found among Wood's papers at the time of his death in July 1829, was admitted without proof of the handwriting or seal of the archbishop as being more than thirty years old. It was held that this document was properly received in evidence, being above thirty years old: if it had been only signed there could have been no question as to its admissibility, but it was, in fact, also sealed; but although an archbishop is a corporation sole for many purposes, yet such a certificate has no relation to his corporate character, and the seal must be considered as the seal of the natural person, and not of the corporation; and consequently that there was sufficient evidence of the marriage (f)

In a case at the Old Bailey, a question was made, whether a marriage of a dissenter in Ireland, when performed by a dissenting minister in a private room, was valid. It was contended, on behalf of the prisoner, who was indicted for bigamy, (b) Rex v. Brampton, 10 East 282.

(e) 2 Hagg. 54.

(d) Smith v. Maxwell, R. & M. N. P. R. 80. His lordship added, that in one case Bayley, J., had held a marriage in Ireland invalid, because it had been performed in a private house, but that he was afterwards satisfied of the validity of the marriage. The case was Rex v. Reilly, 2 Burn's E. Law, 8 Ed. 491, n. (7); 3 Burn's, J., D. & W. Ed. 680. There the marriage was solemnized in Ireland, under a license from the Archbishop of Dublin, authorizing the clergyman to whom it was directed to marry the parties, at the usual canonical time and place; the ceremony was performed by the curate of the clergyman to whom the license was directed, in a private house, and after the canonical hour. Bayley, J., after consulting Holroyd, J., thought that the non-compliance with the license, in respect of the place in which the ceremony was performed, rendered the marriage void. (e) Stockbridge v. Quicke, 3 C. & K. 305.

(f) Rex v Bathwick, 2 B. & Ad. 639 (22 E. C. L. R.). See this case, post, vol. 2, as to the competency of the wife.

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 *313] made necessary, by the enactment of *positive law to celebrate it in a church, some law should be shown 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 & 22 Geo. 3, c. 25,(g) enacted, that all marriages between Protestant dissenters, celebrated by a Protestant dissenting teacher should be good without saying at what place they should be cele brated.(h)

We have seen that a marriage by a Presbyterian minister in Ireland was held void.(i) But the 5 & 6 Vict. c. 113, s. 1, renders all marriages celebrated in Ireland before the 12th August, 1842, by Presbyterian or other Protestant ministers or teachers, or those who at the time of such marriages had been such, of the same force as if they had been celebrated by clergymen of the United Church of England and Ireland.(k) The 6 & 7 Vict. c. 39, renders all similar marriages after the passing of the preceding Act, and before the passing of that Act, 28th July, 1843, valid. And the 7 & 8 Vict. c. 81, s. 83, contains a similar provision as to such marriages between the passing of the preceding Act and that Act, and by sec. 4 provides that marriages between parties both or either of whom are Presbyterians, may be solemnized, according to the forms used by Presbyterians, in certified meeting-houses.

A marriage celebrated in Ireland between a Roman Catholic and a Protestant, by a Roman Catholic priest is void. The prisoner was charged with bigamy, and the first marriage was proved to have been in Ireland, by a Roman Catholic priest, but the prisoner insisted that it was void in point of law, as he was a Protestant at the time of the marriage, and the woman a Roman Catholic; the only evidence to prove that he was a Catholic was, that on several occasions prior to the first marriage, he had attended mass: Patteson, J., told the jury, that if they should be of opinion that the prisoner was a Roman Catholic when the first marriage took place, they must find him guilty; but that if they should be of opinion that he was a Protestant, they must acquit him.(7) But where the first marriage took place at Burton-on-Trent, and the second in Ireland, at the house of the Rev. W. O'Sullivan, *314] a Roman Catholic priest, as was usual with the marriages of Roman Catholics in Ireland: the woman was a Roman Catholic, and before the commencement of the marriage service, Mr. O'Sullivan asked the prisoner if he was a Roman Catholic, and he said he was: a part of the ceremony was in Latin, and the remainder in English: the priest having asked the prisoner if he would take the woman as

(g) And see 11 Geo. 2, c. 10. By 32 Geo. 3, c. 21, s. 12, Protestants may be married to Roman Catholics by clergymen of the Established Church; but sec. 13 contains a proviso that the Act shall not authorize Protestant dissenting ministers or Popish priests to cele brate marriage between Protestants of the Established Church and Roman Catholics. The clause, however, does not enact that such a marriage celebrated by a Protestant dissenting teacher shall be void. Such a marriage, celebrated by a Popish priest, would be void by 19 Geo. 2, c. 13 (Irish); and the 33 Geo. 3, c. 21, s. 12, only authorizes Popish priests to celebrate marriage between a Protestant and a Papist, where such Protestant and Papist have been first married by a Protestant clergyman. See the 3 & 4 Will. 4, c. 103, which repeals the penal enactments made by 6 Ann. (I.), 12 Geo. 1 (I.), 23 Geo. 2 (I.), 12 Geo. 3 (I.), 33 Geo. 3 (I.), against Catholic clergymen celebrating marriages between Protestants in Ireland. (h) Rex v. , Old Bailey, Jan. Sess. 1815, cor. Sir J. Silvester, Recorder, MS. The prisoner was an officer in the army; and his first marriage, upon which this question was raised, took place in 1787, at Londonderry. The second marriage was celebrated in London, according to the ceremonies of the Church of England.

(i) Reg v. Mills, ante, p. 305.

(k) Sec. 2 excepts marriages previously adjudged invalid; marriages where either of the parties had contracted another lawful marriage; and marriages respecting which prosecutions were pending when the Act passed, 12th Aug. 1842.

(1) Sunderland's case, 2 Lew. 109.

his wife, and having asked the woman if she would take the prisoner as her husband, and each of them having answered in the affirmative, he pronounced them married; it was held that the prisoner having at the time of the marriage held himself out to be a Roman Catholic, it was a good marriage as against him, and that he could not set up his protestantism as a defence to an indictment for bigamy, and that there was sufficient evidence of the marriage in Ireland.(m)

With respect to the marriage of minors in Ireland, the statute 9 Geo. 2, c. 11 (Irish), contains some provisions.

A marriage by license, in Ireland, where one of the parties was under age at the time, and there was no consent of the father, was not absolutely void, but only voidable within one year, under the 9 Geo. 2, c. 11, and if no proceedings were taken within the year to avoid the marriage, it was binding, and the party, if he married again (during the life of his wife) might be properly convicted of bigamy.(n)

The 7 & 8 Vict. c. 81, which passed on the 9th August, 1844, and 9 & 10 Vict. c. 72, contains numerous provisions for the celebration and registration of marriages in Ireland.

A marriage, however, celebrated by a Roman Catholic priest between two Protestants is still illegal, and renders the person celebrating it liable to be indicted for felony. The 7 & 8 Vict. c. 81, leaves untouched the rights of the Roman Catholic clergy where the marriage would have been previously legal, and the exemption in that Act from penalties is only in relation to marriage which may now be lawfully celebrated.(0)

The 4 Geo. 4, c. 91, recites the expediency of relieving the minds of all his Majesty's subjects from any doubt concerning the validity of marriages, solemnized by a minister of the Church of England, in the chapel or house of any British ambassador or minister residing within the country to the court of which he is accredited, or in the chapel belonging to any British factory abroad, 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 [*315 the commanding 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 marriage solemnized beyond the seas, save and except such as are solemnized as herein specified and recited. (q),

The 12 & 13 Vict. c. 68, which passed on the 28th of July, 1849, renders valid "all marriages (both or one of the parties thereto being subjects or a subject of this realm) which shall be 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 such foreign country or place under that Act," and contains many provisions as to the manner of performing such marriages before British consuls.(r)

Certain marriages of British subjects are legalized in Mexico by the 17 & 18

(m) Reg. v. Orgill, 9 C. &. P. 80 (38 E. C. L. R.), Alderson, B., who said the law on this subject had been much discussed by the Privy Council in Swift v. Swift, 3 Knapp 303. Reg. v. Orgill was much doubted by Lord Wensleydale in Yelverton v. Yelverton in the House of Lords.

(n) Rex v. Jacobs, R. & M. C. C. R. 140. the consent of parents, &c., is unnecessary.

But since the 7 & 8 Vict. c. 81, s. 32, proof of

(0) Reg. v. Taggart, 2 Cox C. C. 50. In delivering judgment, Blackburne, C. J., said, originally a marriage celebrated by a Roman Catholic priest between two Protestants, or between a Protestant and a Roman Catholic was valid; then came the Acts 12 Geo. 1, c. 3 (I.), 23 Geo. 2, c. 10 (I.), and 33 Geo. 2, c. 21 (I.), under which a party celebrating such a marriage was made liable to the penalty of death, and by the latter statute to a fine of £500; and besides the 19 Geo. 2, c. 13 (I.), made the marriage itself absolutely void. Then came the 3 & 4 Will. 4, c. 102; by it all the Acts imposing penalties (i. e., the three first Acts) were repealed, but the ceremony remained an invalid marriage, as it was before; 1. e., by the 19 Geo. 2, c. 13. See 2 Hayes Dig. C. L. 552, and the cases there mentioned. (7) Sec. 2.

(7) This Act, probably passed in consequence of Catherwood v. Caslon, ante, p. 305.