chapel, or none where divine service is usually celebrated every Sunday, are deemed extra-parochial.

The archbishop of Canterbury's right of granting special licences to marry at any convenient time or place is expressly reserved to him.

Persons convicted of solemnizing matrimony in any other place than a church or public chapel, where banns have been usually published (11), except by special licence, or of solemnizing matrimony without publication of banus, except by licence from persons duly authorised to grant the same, are to be deemed guilty of felony, and shall be transported for 14 years; the prosecutions for such felony having been commenced within three years after the offence committed; and all marriages solemnized after 25th March, 1754, in any other place than a church, or such public chapel, unless by special licence, or solemnized without publication of banns or licence from a person duly authorized to grant the same, shall be void.

After the solemnization of any marriage by 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 wherein the banns were published; or 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 four weeks, was in the parish 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.

"All marriages solemnized by licence, where either of the parties, not being a widower or widow, is under the age of 21 years, without the consent of the father of such of the parties so under age (if then living) first had, or if dead, of the guardian of the person of the party so under age, lawfully appointed, or one of them: and if there be no such guardian, then of the mother (if living and unmarried); or if there be no mother living and unmarried, then of a guardian of the person appointed by the Court of Chancery, shall be void."

u S. G.

x S. 5.

y S. 8.

z S. 10.

a S. 11.

after the solemnization of any marriage, either by banns or licence, it is not necessary, in support of such marriage, to give any proof of the residence of the parties, nor is evidence to the contrary admissible. See the 10th section of this statute.

(11) See note 9.

An illegitimate child has been holden to be within the meaning of this clause (R. v. Hodnett, 1 T. R. 96.) Whether the consent of the putative father, or of the natural mother be sufficient to give validity to the marriage of such child, appears to have been a verata quæstio. In R. v. Edmonton, B. R. E. 24 G. 3. 2 Bott. 76, pl. 114, and cited in 1 T. R. 97, it was holden that the consent of the putative father was sufficient; but in Horner v. Lydiard, and Daniel v. Cooke, Sir William Scott was of opinion, that the consent could only be given by a guardian appointed by the Court of Chancery. The same question was submitted to the consideration of the Court of King's Bench, in a late case of Priestley v. Hughes, sent by the master of the rolls. After the case had been twice argued, three judges, viz. Lord Ellenborough, C. J. Le Blanc, and Bayley, Js. certified", that they were of opinion, that all marriages, whether of legitimate or illegitimate persons, are within the general provision of this statute, and that the consent of the natural mother is not a sufficient consent within the preceding section. Grose J.certified, that it seemed to him from the words of the 11th section, that the legislature had in their contemplation such legitimate children who had, or might have, either parents to consent to the marriage of such children, or guardians, whom the legislature intended to substitute for such parents, under different circumstances; and that they had not in their contemplation to provide for the marriages of illegiti mate children, whose parents could not legally forbid the banns, if they were to be married by banns, and who could have no such parents as are intended to be described in the 11th seetion, i. e. legitimate parents, if they were to be married by licence.

The 12th section, contemplating the possibility of the guardian or mother of the parties being non compos mentis, or in parts beyond the seas, or that they may be induced unreasonably, or by undue motives, to abuse the trust reposed in them, enacts, that in such cases the party desirous, of marrying may apply, by petition, to the chancellor, lord keeper, or lords commissioners of the great seal, who may proceed in a summary way; and if the marriage proposed shall appear to be proper, may, by order of court, declare the same to be so, and such order shall be as good as if the guardian or mother of the party petitioning had consented to such marriage.

No suite or proceeding shall be had in any ecclesiastical

court, in order to compel a celebration of any marriage in facie ecclesia, by reason of any contract of matrimony, whether per verba de præsenti, or per verba de futuro (12).

"The church and chapel wardens of every parish or chapelry shall provide proper books, in which all marriages and banns of marriages respectively, there published or solemnized, shall be registered (every page of which is to be regularly numbered and lined at proper distances, in the manner therein mentioned,) and shall respectively be signed by the parson, vicar, minister, or curate, or by some other person in his presence, and by his direction; and all such books shall belong to every such parish or chapel, and be kept for public use."

In order to preserve the evidence of marriages, and to make the proof thereof more certain and easy, "all marriages shall be solemnized in the presence of two or more witnesses, besides the minister; and immediately after such celebration an entry thereof shall be made in such register, in which it shall be expressed, that the marriage was by banns or licence; and if both or either of the parties married by licence be under age, with consent of the parents or guardians, and shall be signed by the minister with his proper addition, and also by the parties married, and attested by such two witnesses," which entry is directed to be in the form, or to the effect therein set forth. N. An omission in the entry will not affect the validity of the marriage. R. v. St. Devereux, Burr. Set. Cases, 506. 1 Bl. R. 367. S. C.

Persons convicted of knowingly and wilfully inserting a false entry in the register of any thing relating to any marriage, with intent to elude the force of the act, or of falsely making, altering, forging, or counterfeiting, or of assisting in falsely making, &c. such entry, or of falsely making, &c. any licence, or of publishing as true any false, &c. register or copy thereof, or any false, &c. licence, knowing such register or licence to be false, &c. or of wilfully destroying any register of marriages, or any part thereof, with intent to avoid any marriage, or to subject any person to the penalties of this act, shall be guilty of felony without benefit of clergy.

Lastly, it is provided, that this act shall not extend to any of the marriages of any of the royal family; or to Scot

(12) See the common law on this point, ante p. 16.

land (13), or to marriages among Quakers or Jews (14), where both the parties are Quakers or Jews (15), or to marriages beyond the seas (16).

(13) Scotland being excepted, the intention of the statute, so far as it provided for annulling the marriages of minors without the consent of parents or guardians, has been frequently evaded by going into Scotland to be married there, and returning into England immediately afterwards. The validity of these Scotch marriages appears to have been established by a decision of the Court of Arches, which was afterwards confirmed in the Court of Delegates. See Hargrave's note to Co. Litt. 79. b. n. (1.)

(14) It seems, that to prove a Jewish marriage, it is not sufficient to produce witnesses, who were present at the ceremony in the synagogue; because that is merely a ratification of a previous written contract—such contract, therefore, must be adduced and proved. Horn v. Noel, 1 Camp. N. P. C. 61. A Jewess may give parol evidence of her own divorce in a foreign country according to the ceremony and custom of the Jews there. Ganer v. Lady Lanesborough, Peake's N. P. C. 17. Lord Kenyon, C. J.

(15) It will be observed, that Anabaptists are not excepted. A case occurred before this act took effect, where the plaintiff, in an action for adultery, was an Anabaptist. Denison J. held, that as this is an action against a wrong doer, and not a claim of right, it was sufficient to prove the marriage according to the plaintiff's form of religion. Woolston v. Scott, Norfolk Lent Ass. 1753, coram Denison, J. Verdict for the plaintiff-Damages 500l. Bull. N. P.

28.

(16) A soldier on service with the British army in St. Domingo, in 1796, being desirous of marriage with the widow of another soldier, who had died there in the service, and both parties being desirous of celebrating their marriage with effect, they went to a chapel in a town where they were, and there the ceremony was performed by a person appearing there as a priest, and officiating as such; the service being in French, but interpreted into English by one who officiated as clerk; and which the woman understood at the time to be the marriage service of the church of England. After this they cohabited together as man and wife for 11 years, until the death of the husband. On a question as to the settlement of the woman, a doubt was raised whether the marriage was valid. The Court of B. R. were clearly of opinion, that it was a valid marriage, whether it was to be considered as a marriage celebrated in a place where the law of England prevailed, or as a marriage according to the law of St. Domingo, whatever that might be. Upon the former ground, inasmuch as there was a contract per verba de præsenti, which contracts were binding on the parties before the marriage act (which statute did not affect the present case, this being a marriage beyond the seas, and con

Having thus detailed the several provisions of this most important statute, I shall resume the subject under discussion, namely, the evidence necessary to support the action for adultery.

In cases where the marriage is to be proved by the production of the register, or an examined copy, proof must also be adduced, if required, of the identity of the parties. In the case of Birt v. Barlow, Doug. 170. where a copy of the register was proved as evidence of the marriage, Blackstone J. was of opinion, that the plaintiff ought to go further, and prove the identity of the parties, and that such identity must be proved by the minister, or one of the subscribing witnesses to the register, unless their not being produced was accounted for in the same manner as was required in the case of subscribing witnesses to a deed; and, for want of this proof, the plaintiff was nousuited. The Court of King's Bench set aside the nonsuit, admitting, however, that the copy of the register was not sufficient to prove the identity, but conceiving that in this case the minister and subscribing witnesses were not the only competent witnesses to prove the identity. And Buller J. observed, that it was not necessary to produce the original register, and that it was only where that was required, that subscribing witnesses must be called; that in this case the wife's maiden name was Harriot Champneys; and supposing a maid servant had proved, that she always went by that name till the day of the marriage; that she went out that day, and on her return and ever since had been called Mrs. Birt, that would have been evidence of the identity.

The books of the fleet are not evidence of a marriage, either before the marriage act or since. So ruled by Kenyon, C. J. in Reed v. Passer, Peake's N. P. C. 231. 1 Esp. N. P. C. 213. S. C. S. P. per de Grey, C. J. in Howard v. Burtonwood, Middlesex Sittings after Trin. Term, 16 G. 3. and previously by Lord Hardwicke, and recently by Le

sequently within the exception), and because the marriage was celebrated by a person who publicly assumed the office of a priest, and appeared habited as such. Upon the latter ground, because upon the facts stated, every presumption must be made in favour of its validity, according to the law of the country where it was celebrated, the marriage ceremony having been performed there in a proper place, and by a person officiating as one competent to perform that function, and more especially as it had been followed by a cohabitation between the parties as man and wife for 11 years. R. v. the inhabitants of Brampton, 10 East, 282.