Secondly, of evidence of settlement, &c. 3, Evidence of settlement by marriage. place than a church, &c. The marriage of a minor by the consent required by 4 Geo. 4, c. 75, s. 16, is valid. shall knowingly and wilfully intermarry without due publication of banns, 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 whatsoever." Rex v. Birmingham, 8 B. & C. 29; 2 M. & R. 230; 1 M. & R. Mag. Ca. 408. Luke Smith, and Elizabeth, his wife, were removed from St. Michael and the Holy Trinity, in Coventry, to Birmingham. Order confirmed, sublicence, without ject as respects Elizabeth to a Case: Luke was married to Elizabeth in 1826, by licence, he then being a minor, and his father living, who did not consent to his marriage. It was objected, that his marriage was void under the 4 Geo. IV. c. 76, for want of the father's consent. The objection was overruled. The appellants then offered to prove, that, at the time of the marriage, Elizabeth was settled in, and chargeable to Little Packington, and that the marriage was brought about by a fraudulent contrivance and conspiracy of the overseers of Little Packington, for the purpose of changing the settlement of Elizabeth from Little Packington to Birmingham, in which Luke Smith was then settled. The sessions refused to admit the evidence. After argument, the Court took time to consider their opinion, and the judgment was delivered by Lord Tenderden, C. J. We have considered the various statutes referred to by counsel, and are all of opinion that the marriage in question is valid. A marriage, under such circumstances, would, by the 26 Geo. II. c. 33, s. 11, have been void, but the 3 Geo. IV. c. 75, s. 1, recites that section, and that it had been productive of great evils and injustice, and then proceeds to enact, "That so much of the said statute as is hereinbefore recited, as far as the same relates to any marriage to be hereafter solemnized, shall be and the same is hereby repealed." The second section enacted, that marriages theretofore solemnized by licence, without such consent as required by the former act, should be valid, with certain limitations imposed by the third and four following sections. Then the eighth and subsequent sections contained new provisions as to granting licences in future. These were repealed by the 4 Geo. IV. c. 17, which restored certain parts of the 26 Geo. II. c. 33, and some question might be raised as to whether that part of the 3 Geo. IV. c. 76, remained in force, which repealed the 11th section of the 26 Geo. II. But that question is now rendered immaterial by the 4 Geo. IV. c. 75, which repealed the 4 Geo. IV. c. 17, and so much of the 26 Geo. II. c. 33, as was then in force. The only statute, therefore, now to be considered, is the 4 Geo. IV. c. 75, the fourteenth section of which points out the mode in which licences are to be obtained, and the matters to be sworn to by the parties, or one of them; and one of those matters, where either of the parties, not being a widower or widow, shall be under the age of twenty-one years, is, 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. Then the sixteenth section specifies the persons who shall have power to consent, and proceeds, “and such consent is hereby required for the marriage of such party, so under age, unless there shall be no person authorised to give such consent." The language of this section is merely to require consent, it does not proceed to make the marriage void, if solemnized without consent. Then the twentysecond section declares, that certain marriages shall be null and void, and a marriage by licence without consent is not specified. Thus far, therefore, the question depends upon the direction in the sixteenth section; and if there were any doubt upon the construction of that section, it would be removed by the twenty-third, which enacts, that "If any valid marriage solemnized by licence shall be procured by a party to such marriage to be solemnized between persons, one or both of whom shall be under age, by means of falsely swearing to any matter to which such party is required personally to depose," not that the marriage shall be void, but that all the property accruing from the marriage shall be forfeited, and shall be secured for the benefit of the innocent party, or the issue of the marriage. This is a penalty for disobeying the direction of the legislature given in the sixteenth section, and is calculated to prevent fraudulent and clandestine marriages, by depriving the guilty party of the pecuniary benefit, which is most commonly the inducement moving to the fraud. For these reasons it appears to us that the marriage in this case is valid, and the order of sessions right. Order of sessions confirmed. In Chilham v. Preston, 1 Bla. Rep. 192. E. Young, Rebecca his wife, and child, were removed from Chilham to Preston. Order confirmed. Case: E. Young was, in 1758, without the consent of his father, who was then living, married by licence in the parish church of Tenham, to Rebecca, (who was removed by the order, as the wife of the pauper), E. Young being then an infant. Afterwards, Rebecca was brought to bed in Chilham, of the child, removed by the order. It was argued in support of these orders, that the word void in the 26 Geo. II. c. 33, s. 11, may be construed voidable; and that it is highly unreasonable, that a virtuous young woman, and her innocent children, should be turned adrift, and be considered as a whore and bastards, without having any opportunity to contest so severe a judgment against them: Therefore, that this marriage ought to be avoided by a sentence in the Ecclesiastical Court; and not in a collateral method, by an ex parte order of justices, made without hearing them, or any person on their behalf. -By Lord Mansfield, C. J. This point will admit of no manner of doubt. There is this plain distinction between things void and voidable. Where the law makes a thing void for the benefit of the parties concerned, they may waive the advantage if they please. But the marriage act is avowedly made against both the contracting parties; and, therefore, they shall not waive the disabilities of it at their own option. The marriage is void and null to all intents and purposes, even though the parties should afterwards agree to it, wherever the fact appears directly contrary to the statute. And by the whole Court: Let the order be quashed as to Rebecca and the child, and confirmed as to Edward. Before the repeal of 26 Geo. II. c. 33, it was held, in Rex v. Hodnet, 1 T. R. 96; that a marriage of illegitimate minors, without consent, was void under sect. 11(a). In Horner v. Liddiard, 1 Hagg. Rep. 337. 360, Lord Stowell held the same point, and that the necessary consent could be only given by a guardian appointed by Chancery: and in Priestly v. Hughes, 11 East, 1, it was decided that the consent of the natural mother to a marriage by licence was not sufficient. Secondly, Of evidence of settlement, &c. 3. Evidence of settlement by marriage. Marriage under age of children, of parents. without consent Consent to mar riages of illegitimate minors before repeal of 26 Geo. 2, c. 33, 4, c. 75, s. 1.(a) s, 11, by 3, Geo. "It is part of the law of England, that the law of the country where a Marriage in marriage is solemnized shall be adopted."-Holroyd, J., Doe in d. Birtwhistle foreign countries. v. Vardill, 5 B. & C. 438; Dalrymple v. Dalrymple, 2 Hagg. C. R. 54; Ruding v. Smith, id. 371(b). (a) 26 Geo. II. c. 33, s. 11, (repeal ed by 3 Geo. IV. c. 75, s. 1, from and after 22nd July, 1822,) provided that marriages by licence, where either party, not being a widow or widower, is under twenty-one years of age, had without the previous consent of the father or lawful guardian, or one of them, or if no guardian, then of the mother, if living and unmarried, or if none such, then of a guardian appointed by chancery, shall be null and void. (b) In that case Lord Stowell observes, that it is not e converso established that marriages of British subjects, not good according to the law of the place where celebrated, are universally, and under all possible circumstances, to be regarded as invalid in England: the safest course is to be married according to the law of the country, but if this cannot be done, on account of legal or religious difficulties, Secondly, Of evidence of settlement, &c. 3. Evidence of settlement by marriage. "By the ancient general law of Europe, a contract per verba de præsenti, or a promise per verba de futuro cum copulâ, constitutes a valid marriage. The intervention of a priest was first required by the council of Trent."Lord Stowell in Dalrymple v. Dalrymple. This general rule prevails in Scotland, but there the intervention of a priest is unnecessary. It is an undoubted proposition, that a marriage celebrated in Scotland is Marriage in Scot such a marriage as would entitle the woman to dower in England. Ilderton v. Ilderton, 2 Hen. Blac. 145. land. By Romish priests. Marriage abroad by a French Catholic priest in the French tongue, according to the English rite. Marriages by Romish priests, whose orders are acknowledged by the church of England, have been deemed to have the effect of legal marriages in some instances, (at least before the 26 Geo. II.; per Lord Ellenborough, 10 East, 288). Rex v. Brampton, 10 East, 282. Whilst the British army was at St. Domingo, the pauper and a man belonging to that army, went to a chapel, in order to be married; and there a service was read in the French language by a person dressed like a priest, and interpreted into the English language, by a person who officiated as clerk. The pauper did not understand French, but by the interpreter she understood it was the marriage service of the established church of England read in French. She did not know that the person officiating was a priest. She received a certificate of marriage, which she lost. There was no chaplain with the British forces at that time in St. Domingo. No evidence was given of the laws or usage of the island respecting the marriage ritual there. She and the man lived together as man and wife till his death, and she was removed to his settlement. Order quashed. -Lord Ellenborough, C. J. First, considering it as a marriage celebrated in a place where the law of England prevailed; for I may suppose, in the absence of any evidence to the contrary, that the law of England, ecclesiastical and civil, was recognised by subjects of England in a place occupied by the King's troops, who would impliedly carry that law with them; then, Was it a good marriage before the marriage act? Certainly, before that act, a contract of marriage per verba de præsenti would have bound the parties; this was such a marriage, and performed by one who publicly assumed the office of a priest, and appeared habited as such; of what persuasion does not appear but even if it were performed by a Roman catholic priest, the case would be the same; for such a person would be recognised by our church as a priest capable of officiating as such, upon his mere renunciation of the errors of the church of Rome. But Rex v. Fielding shews that a marriage by a Roman catholic priest (before the marriage act) was effectual for that purpose, which was considered as a contract per verba de præsenti, In this case the ceremony was performed in a public chapel, instead of in private lodgings, as in Fielding's case. Considering, therefore, the case to be that the King's forces carried with them the law of England to St. D mingo, by which they and other subjects who accompanied them (in the absence of proof that any other law was in force there) may be considered as continuing to be governed, this would be a good marriage by that law. But supposing this law of England not to have been carried to St. Domingo by the King's forces, nor obligatory upon them in this particular, let us consider whether the facts stated, would not be evidence of a good marriage, according to the law of that country whatever it might be. And, indeed, after the ceremony of marriage, as it was understood and intended by the parties at the time to be, performed openly in a chapel, by a person appearing there as a priest authorised to perform the ceremony of marriage, and this followed : in the chapel belonging to any British British army serving abroad," it is declared and enacted, That all such marriages, as aforesaid, 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 form required by law.” Secondly, Of evidence of settlement, &c. by a cohabitation between the two parties for eleven years afterwards; every The above elaborate judgment has settled this part of the law upon a clear and indubitable basis. 3. Evidence of settlement by Westbrooke v. Stratville, 1 Stra. 79. A prior marriage subsisting at the A first subsisting time of a second marriage, renders the second void, ab initio. And the marriage. second (i. e. the supposed) wife (when plaintiff in an action against the husband) may give the felony in evidence, in support of her action. See Rex v. Tuyning, 2 B. & A. 386 (a). Marriage solem- King's Norton v. Northfield, Doug. 659. Abigail, widow of Joseph Jones, was removed from King's Norton to Northfield. Order confirmed. Case: The pauper, in 1775, married J. Jones, at Buerlyhill chapel, in Kingswinford, which was erected in 1765, and then duly consecrated, and in which divine service had been regularly celebrated ever since; and wherein banns of matrimony had been often published, and marriages celebrated previous to the marriage in question. The chapel was erected since the marriage act, and not erected on the foundation of one that was ancient. No act of parliament was obtained for erecting it, or for celebrating marriages there. The question was, Whether the marriage was void by the provisions of the said act? It was contended, that the words usually published, in the act, ought, to be considered to mean, usually at the time when the marriage in question took place. If so, there was enough stated in the case for the Court to consider this as a chapel, in which banns had been usually published.---Lord Mansfield, C. J., was for some time averse to determine a question of such serious consequence in a collateral way, on a settlement case. But, upon If there has more consideration, he said, I think we ought now to decide it. been an abuse, we ought to stop it as early as possible. A delay might lead to a supposition that we doubt, when in truth we do not. The act clearly meant chapels existing at the time. I am of opinion that this marriage was void by the provisions of the statute. [Soon after this determination was But legalized by known, the 21 Geo. III. c. 53, was passed, for making all marriages which 21 Geo. 3, c. 53. had been solemnized in any parish church, or public chapel, erected since the 26 Geo. II. and consecrated, valid in law, and to exempt the clergyman who had solemnized such marriages from the penalties of that statute.] By 44 Geo. III. c. 77, it is enacted, that all marriages solemnized, or to be solemnized, before 25th March, 1805, in churches, or chapels, erected since the making of 26 Geo. II. c. 33, and consecrated, shall be good and valid in law. And the ministers solemnizing them indemnified from the penalties of the former statute. By 48 Geo. III. c. 127. The like provisions are enacted with respect to all marriages so solemnized, or to be solemnized, before the 23rd of August 1808. The registers are to be preserved, and to be evidence, as in 26 Geo. II. c. 33. And again, by 44 Geo. 3, c. 77. chapels. By 59 Geo. III. c. 134, s. 6. Marriages may be solemnized in the chapels Solemnizing of consolidated chapelries (viz. parts of contiguous parishes and places united marriages in new into separate districts for ecclesiastical purposes), which were built by order of the Commissioners for Building New Churches; and by s. 16, the same commissioners may direct whether marriages shall be had, or not, in chapels erected by them in parishes divided into ecclesiastical districts, or district parishes. By 4 Geo. IV. c. 76, s. 3, "The bishop of the diocese, with the Bishop, with con (a) A parish may be precluded even from this evidence, where, by a certificate, they have recognised the man and woman Secondly, Of evidence of settlement, &c. 3. Evidence of settlement by marriage. sent of patron and incumbent, may authorise publication of banns in any public chapel. Notice to be placed in such chapel. but it is enough for one present at the ceremony of marriage. Nor necessary to produce the copy of the register. 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 authorise, 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." Sect. 5. Provided "That 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.'" St. Devereux v. Much Dewchurch, 1 Bla. Rep. 367. The question Not necessary to before the sessions was, Whether the marriage of John and Susannah Mercprove publicadith was sufficiently proved? One witness made oath, that he and another tion of banns, were present, in 1758, when a marriage was solemnized in the church of St. Devereux, between John and Susannah Meredith, by the minister of the to prove the fact parish, by banns. The entry of the marriage in the parish register, was, "1758. John Meredith and Susannah Jenkins were married by banns ;" but neither the minister, parties, nor witnesses signed the entry; they were therefore, of opinion, that the marriage was not legally proved. It was urged, in support of their opinion, that this appeared to be a void marriage. For although the omission of banns was originally only an offence against the ecclesiastical law, and even after the 7 & 8 W. III. c. 35, s. 2, the minister and clerk, and man married without licence or banns, were only subject to a penalty; yet, since the 26 Geo. II. c. 33, an entry of this, properly signed, is become so essential a circumstance, that without it the marriage is void. But the Court were of a different opinion. And Lord Mansfield, C. J., said, It was not incumbent on the persons married to prove that the banns were published, nor doth the entry directed to be made, affect the validity of the marriage. In a suit, perhaps, in the ecclesiastical court for jactitation of marriage, it may be necessary to prove, that all the solemnities of the mar riage act have been punctually and regularly complied with: but, God forbid that in other cases (the legitimacy of children and the like), the usual presumptive proofs of marriage should be taken away by this statute! It was canvassed in parliament, at the time when the act was made, and universally agreed, by all whose opinions were worth having, that it would not become necessary to prove the publication of banns. But at the same time he declared, that it was a matter of great public concern, for the preservation of pedigrees (which were now become very difficult to prove): and the entry ought to have been made according to the directions of the act. He went so far as to declare, that an information ought to be granted by the Court, against the minister for omitting it, if it should appear clearly that it was owing to his neglect; and that such information should be prosecuted by the attorney-general at the King's expence; which he did not doubt would be readily directed, upon the recommendation of the Court. Non publication of banns. After solemnization under banns, proof of affidavit made not necessary. Though it is not necessary for the party insisting on the marriage to prove publication of the banns, yet the want of due publication may be shewn on the other side. Standen v. Standen, Peake's Rep. 32. The 3 Geo. IV. c. 75, s. 19, 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 any such affidavit, nor shall any evidence be received to prove that such affidavit was not made and delivered as required by this act, in any suit touching the validity of such marriage; not shall such marriage be avoided for want of or by reason of any defect in any such affidavit, or on account of the true name or names of either party not being used in the publication of such banns, or for such name or names not having been affixed as aforesaid; but it shall be lawful in support of such marriage to give evidence, that the persons who are actually married by the names specified in such publication of banns were so married, and such marriage shall be deemed good and valid to all intents and purposes, notwithstanding false names or a false name, assumed by both or either of the |