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rity of any court, or in the administration of any personal estate or elfccts, or the execu-
tion of any will or testament, or the jicrformance of any trust.

(«') Rex V. St. John Delpike.' B. & Ad. 22G.

(z) Ilex V. Waully, R. & M. C. C. R. 103.

•f [At common law no formal ceremony is requisite to give validity to a marriage, but a
contract between the parties /)fr verba de prenenli \s enough. Slar <^- al. v. Pec/c, 1 Hill, "JTO.
So semblc of such a contract, though executory in form, if followed by co-habitation : for the
acta of the parties may be taken as giving a construction to their words, and rendering them
personally operative. Ibid, //a/jfc v. Sc//.'/, G liinn. 405. Jackson y. Winne, 1 \S Qiid. i.' .'\
' Eug. Com. Law Reps. xxii. G3.



192 OF BIGAMY, [cook II.

4 Geo. 4, c. The 4 Geo. 4, c. 76, recites that it is expedient to amend the laws
repeal 26 respecting marriages in England ; and then enacts, that from and after
Geo. 2, c. the 1st day of November, 1823, so much of the 26 Geo. 2, c. 33, as was
G^e *4^c* ^^ f'-^^^id immediately before the passing of this act, and also the 4 Geo. 4,
17. c. 17, shall be repealed, save and except as to any acts, matters or things,

done under the provisions of the said acts, or either of them, before the
said first 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, save
also and except so far as the said acts, or either of them, repeal any
former act, or any clause, &c., therein contained.
^•j^;;Banns ^y g^^^ 2, « after the 1st day of November (1823), all banns of matri-
•when, and mony shall be published in an audible manner in the parish church, or
how pub- iu some public chapel, in which chapel banns of matrimony may now
inarria''e to ^r niay hereafter be lawfully published, of or belonging to such parish
bo solein- or chapelry, wherein the persons to be married shall dwell, according to
where *^® form of woi'ds prescribed by the rubric prefixed to the office of matri-

banns pub- mony in the Book of Common Prayer, upon three Sundai/s preceding
the solemnization of marriage, during the time of morning service, or
of evening service, (if there shall be no morning service in such church
or chapel upon the Sunday upon which such banns shall be so pub-
lished,) 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."
S. .3. Bish- By sec. 3, "the bishop of the diocese, with the consent of the patron

op. with ^^^ ^ijg incumbent of the church of the parish in which any public
consent of . ^ . -, o

the pitron chapel, havmg a chapelry thereunto annexed, may be situated, or of any

and incum- chapel situated in an extra-parochial place, signified to him under their

authorize hands and seals respective!}", may authorize, by writing under his hand

thepublica-and seal, the publication of banns and the solemnization of marriages

banns in ^'^ ^uch. chapel for persons residing within such chapelry or extra-

any public parochial place respectively ; and such consent, together with such

chapel. written authority, shall be registered in the registry of the diocese."

S. 4. Notice By sec. 4, " in every chapel in respect of which such authority shall

in such'^''^ ^® given as aforesaid, there shall be placed in some conspicuous part of

chapel. the interior of such chapel a notice in the words following : ' banns may

be published, and marriages solemnized in this chapel.' "
S. 5. Provi- ]3y sec. 5, " all provisions now in force, or which may hereafter be
tive to mar- established by law, relative to providing and keeping marriage ^registers
riage regis- in any parish churches, shall extend and be construed to extend to any
ed to\hap- ^^^P^^ in which the publication of banns and solemnization of marriages
els so au- shall be so authorized as aforesaid, in the same manner as if the same
afor'e^aid''^ Were a parish church; and every thing required by law to be done
*193 relative thereto by the churchwardens of any parish church, shall be

done by the chapelwarden or other officer exercising analogous duties in

such chapel." (a)

(a) See as to the registration of marriages, G & 7 W. 4, c. SG, ss. 1, 30 and 31.



CHAP. XXIIT.] MARRIAGE ACT, 4 GEO. 4, C. 7G. 193

By sec. 6, " on or before the said 1st day of November, and from S. 6. Book
time to time afterwards, as there shall be oecasiou, the churchwardens ^."j^fj^-^^"
and chapclwurdcns of churches and chapels, wlierein marriages are the regis-
solemnized, shall provide a proper book of substantial paper, marked and {f^nj.*!" *-.
ruled respectively in manner directed for the register book of marriages;
and the banns shall be jiublislicd from the said register book of banns
by the oihciating ministcsr, and mtt from loose papers; and after publica-
tion shall be signed by the ulliciatiiig minister, or by some person under
his direction."

By sec. 7, " no parson, vicar, minister, or curate, shall be obliged to S. 7. Notice

publish the banns of matrimony between any persons whatsoever, un- an("'',™a<fe

less the persons to be married shall, seven days at the least before the and time of

time re(iuired for the lirst publication of such banns respectively, deliver, "'^'"j'-* "/
' ' . . .' •" ' l)arties to

or cause to be delivered to such parson, vicar, minister, or curate, a i,e given to

notice in writing, dated on the day on which the same shall be so deli-''"^ minis-

vcred, 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."

By see. 8, ''no parson, minister, vicar, or curate, solemnizing mar-S. 8. How

riages after the 1st day of November next, between persons, both or one ["''^""°'*"

of whom shall be under the age of twenty-one years, after banns pub- jmnishablo

lished, shall be punishable by ecclesiastical censures for solemnizing '"■" '"'"■'">■■

, . '. , . . p . T 1 r ing minors

sucli marriages without consent oi parents or guardians, unless such without

parson, minister, vicar, or curate, shall have notice of the dissent of such •^""^'^d'-

parents or gurdians; and in case such parents or guardians, or one of j."^" ' ,)jlj,

them, shall openly and publicly declare or cause to be declared, in the cation of

church or chapel w'here the banns shall be so published, at the time of '^'^"^^ ^'^"^'

such publication, his, her, or their dissent to such marriage, such jmbli-

cation of banns shall be absolutely void."

By sec. 9, "whenever a marriage shall not be had within three S. 9. In

months after the complete publication of banns, no minister shall proceed ^^ '"'''l J""*®

to the solemnization of the same, until the banns shall have been repub- tiun of

lished on three several Siindai/a, in the form and manner prescribed in '^"""^

' . Dcccssflrv*

this act, unless by license duly obtained according to the provisions of

this act."

By sec. 10, " no license of marriage shall, from and after the said first S. lo. Li-
day of November, be granted by any archbishop, bishop, or other ordi-„^„rrv in
nary, or person having authority to grant such licenses, to solemnize clmrch,
any marriage in any other church or chapel than in the pari.sh 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."

By 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 *194

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 e„ve,it

shall issue till the said caveat, or a true copy thereof, be transmitted to entered, no

the judge out of whose office the license is to issue, and until the .i'l'^?;*^ issf,e^|^ill"

has certified to the register that he has examined into the matter of the matter

caveat, and is satisfied that it ought not to obstruct the grant of the fsa™\ncd
. . , . by judge,

license for the said marriage, or until the caveat be withdrawn by the

part}' who entered the same."



194



OF BIGAMY.



[book ir.



S. 12.
Parishes,
where no
church or
chapel, and
extra- pa-
ruc-liial
places,
ileemeJ to
belong to
any adjoin-
ing parish,
&c.



S. 13.
Where
churches
are demol-
ished, or
under re-
pair, banns
to be pro-
claimed in
a church or
chapel of an
adjoining
jjarish, &c.



Provision
for former
marriages
so solem-
nized.



a95



By 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 bauns shall be published
in any church or chapel of any parish or cliapelry 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 extra-
parochial place as aforesaid, the parson, vicar, minister, or curate, pub-
lishing such banns, shall, in writing under his hand, certify the publica-
tion thereof in the same manner as if either of the persons to be married
had dwelt in such adjoining parish or chapelry.^'

By 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
chm'ch or chapel of any adjoining parish or chapelry in which banns 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 solemnized in
other places than the chm-ches and chapels out of repair, should not be
questioned on that account ; nor that the ministers who should tJiere-
a/ter solemnize such marriages should not be liable to ecclesiastical
censure, &c. ; the 5 Geo. 4, c. 42, 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



CHAP. XXIII.] MARRIAGE ACT, 4 GEO. 4, C. 70. 195

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. (y) And also that all banns proclaimed, and all marriages
solemnized, according to the [irovi-sions of this act in au}- 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 iu
the church, kc, and .shall be so registered accordingly. (v)

The 4 Geo. 4, c. 7G, s. 14, enacts, <' for avoiding all fraud and collu- S. 14. Oath
sion in obtaining of licenses for marriage, that before any such license j" 3'*' _^"!"-'"
be granted, one of the parties shall personally swear before the surro- purrogato
gate, or other person having authority to grant the same, that he or she"•^'" '"^■"r
believeth that there is no impediment of kindred or alliance, or of any ^^\,^rA before
other lawful cause, nor any suit commenced in any ecclesiastical court, Htenfe is
to bar or hinder the proceeding of the said matrimony according to the ^"^"^ ^
tenor of the said licen.se ; 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 w/dower or widow, shall be under the age of twenty-one years, that
the consent of the person or persons who.se con.sent 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 upou oath made to that effect by
the party recjuiring such license, it shall be lawful to grant such license,
notwithstanding the want of any such consent." (a)

By sec. 15, " it shall not be required of any person applying for such s. 15. Bond
license to give any cautioner security, by bond or otherwise, before 'J°*^'"^-i"'^"
such licen.se is granted, any thing iu any act or canon to the contrary fjranting
thereof notwithstanding." license.

By sec. 15, << the father, if living, of any party under twenty-one *196
*year3 of age, such parties not being a widower or widow ; or, if the S. 16. ^yho
father shall be dead, the guardian or guardians of the person of the "^J^^^^^'' j^
party so under age, lawfully appointed, or one of them ; and, in case parties are
there shall be no such guardian or guardians, then the mother of such ""i^cr age.
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 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 conseut."(a)

By sec. 17, <'in case the father or fathers of the parties to be mar-

(.'/) Sec. 2.

(z) Sec. 3. Since the last clition of this work the followinj: acts have passoil on tliis sub-
ject ; tlic G Geo. 4, c. 'I3, to rcmlor valiil marriages solcmni/.e'l in certain churches and public
chapels, in which banns had not been usually pni)lished. The 11 Geo. 4, c. l!S, to render
valid marriages solemnized in certain churches and chapels, during tlic rebuilding or repairing
churches, \c., and in churches of distinct or district parishes, established under tlie 58 Geo.
3, c. 45, and the 59 Geo. 3, c. l:]4. and in certain chapels. The 4 & 5 Wni. 4, c. 128, as to
marriages in Scotland by Roman Catholic priests. The 3 & 4 Wni. 4, c. 45, as to marriages
at Hamburgh since the abolition of the liritish factory there. The G Wm. 4, c. 24. to render
valid marriages in a chapel at Wandsworth. The G Wm. 4, c. G2, to render valid marriages
at St. Clemen's, Oxford.

(a) This section is merely directory, sec Rex r. Birmingham, post, p. 211.



196 OF BIGAMY. [book II.

, . ^

S. 17. If ried, or one of them, so under age as aforesaid, shall be non compos
of minoHie *'"'"''*'' or the guardian or guardians, mother or mothers, or any of
voH coiapuH them, whoso consent is made necessary as aforesaid to the marriage of
""'"'''. "'' ''^ such party or parties, shall be non compos mentis, or in parts beyond
mother of thc soas, Or shall unreasonably, or from undue motives, refuse, or with-
minor bo jjold his, her or their consent to a proper marriage, then it shall and
mentu or i^^^^J ^^ lawful for any person desirous of marrying, in any of thc before-
beyonil .«oa, mentioned cases, to apply by petition to the lord chancellor, lord keeper,
,i,^jy appiy^ or the lords commissioners of thc great seal of Great Britain for the
to tiie lord time being, master of the rolls, or vice-chancellor of England, who is
c ance or. ^^^ ^^^ respectively hereby empowered to proceed upon such a 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 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."
S. 18. Sur- By sec. 18, "from and after the said first day of November, no sur-
tako oath ^ogate, hereafter to be deputed by any ecclesiastical judg-^ who hath
of office. power to grant licenses, shall grant any such license 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 ofiice accord-
ing 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."
S. 19. In J5y sec. 19, "whenever a marriage shall not be had within three
new license ^^onths after the grant of a license by any archbishop, bishop, or any
to be ob- 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."
^-.20. jjy ggg_ 20, "nothing hereinbefore contained shall be construed to

Archbishop extend to deprive the Archbishop of Canterbury and his successors, and
of Canter- his and their proper officers, of the right which has hitherto been used,
grant '^ ^^ virtue of a certain statute made in the 25th *year of the reign of the
special king Henry the Eighth, intituled, ' An act concerning Peter pence and
'*^1 Q7 dispensations,' of granting special licenses to marry at any convenient

time or place. "(/^)
S. 22. Mar- By sec. 22, " if any persons shall knowingly and wilfully intermarry
where^per- ^^ ^^^^ ^^^^r place than a church, or such public chapel wherein banns
sons wil- may be lawfully published, unless by special license as aforesaid, or
in an™^"^ ^^nW knowingly and wilfully intermarry without due publication of
other'place banns. Or license from a person or persons having authority to grant the

than .a same first had and obtained, or shall knowingly and wilfully consent to

church, . . , , .' . . , ° •' . , •'

&c. or acquiesce m the solemnization oi such marriage by any person not

being in holy orders, thc marriages of such person shall be null and

void to all intents and purposes whatsoever." (c)

{h) By sec. 21, persons solemnizing marriage in any oilier place than a church or chapel,
or without banns, or license, or umler pretence of being in holy orders, shall be transported
for fourteen years, the prosecution to be commenced -within three years.

(c) By sec. 33, "where a marriage is solemnized between parties one of whom is under age,



CHAP. XXIII.] MARRIAGE ACT, 4 GEO. 4, C. 7G. 197

By sec. 2G, " after tlie solemnization of any marriage under a publi- S. 26. Proof
cation of banns, it shall not be necessary in support of such wJirriagc |!j.j,'"],.„gg ^^f
to give any proof of the actual dwelling of the parties in the respective pnrtii-? not
parishes or chapelries wherein the banns of matrimony were publi.^hed ; "^ ".ffi^jl^y
or, where the marriage is by license, it shall not be necessary to give of mar-
any proof that the usual place of abode of one of the parties, for the "i'*^''^,'
space of fifteen days as aforesaid, was in the parish or chai)elry where after banna
the marriage was solemnized ; nor shall any evidence in either of the "."■ ''y
said cases be received to prove the contrary, in any suit touching the
validity of such marriage." ((^)

]Jy sec. *2S, all marriages shall be solemnized in the presence of two
or more credible witnesses, besides the minister who shall celebrate the
same; and immediately after the celebration an entry shall be made in
the register.

By sec. 80, " this act, or any thing therein contained, shall not extend S. .",0. Pro-
to the marriages of any of the royal family." vis., for

liy sec. 81, << nothing in this act contained shall extend to any mar- fmuiiy
riages amongst the people called Quakers, or amongst the persons pro- S. .31. And
fessin"; the Jewisli reliirion, where both the parties to any such marriairc *^'."" '""'"'

o c ' I J o riMfies of

shall be of the people called Quakers, or persons professing the Jewish Qu:ikcrs
religion respectively." 'ind Jews.

]}y sec. 83, the act only extends to England.

The 6 & 7 Wm. 4, c. 85, s, enacts, that after the 1st of March, 1837, After let of
(e) « notwithstanding any thing in this act contained, all the rules prc-'i^o'L' j'^jj
scribed by the rubrick concerning the solemnizing of marriages shall rules jjrc-
continue to be duly observed by every person in holy orders of the the nibriJ
Church of England who shall solemnize any marriage in England; pro- to be ob-
vided, always, that where by any law or canon in force before the pass- *^''"^''^'^'
ing of this act it is provided that any *marriage may be solemnized *198
after publication of banns, such marriage may be solemnized in like Mnniages
manner on production of the registrar's certificate as hereinafter pro- "XMn'nizcd
vided ; (/) provided also, that nothing in this act contained shall affect on produc-
thc right of the Archbishop of Canterbury and his successors, and his ^'°" "^ ,

1 , . ~ • 1 !• registrars

and tlieir proper officers, to grant special licenses to marry at any con- certifieate.
venient time and place, or the right of any surrogate or other person
now having authority to grant licenses for marriages."

By sec. 2, "the Society of Friends, commonly called Quakers, and
also persons professing the Jewish religion, may continue to contract and of Quakers

and not iv widower or widow, contrary to the provisions of tlic act, by false oath or fraud,
the guilty party shall forfeit all property nccniing from the marriage.



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