had been made; but the evidence was admitted; and the Court of Queen's Bench held that it was properly received, as the fiat was an act done in the course of official duty, showing that two persons bearing the names of the lessor of the plaintiff's parents were at that time engaged in taking measures for contracting a marriage; and that it might probably be taken into consideration by the jury as confirming the evidence of their union, which arose from cohabitation and reception. The affidavit and register were proofs of the same general fact.(8)

It has been seen that the 4 Geo. 4, c. 76, s. 16, makes the consent of the father, guardians, or mother, necessary to the validity of a marriage by license, where the party is a minor. And it appears to have been held, upon the former marriage Act, that the party prosecuting must show such consent.

Upon an indictment for bigamy, the first marriage imported by the register to have been by license, and the prisoner proved that at that time he was under age. A question was raised, whether this threw it upon the prosecutor to prove consent; and, it appearing that by the Marriage Act the register ought to state consent, if either party was under twenty-one, Wilson, J., held it did; and he directed an acquittal.(t) So, after a conviction, the judges, upon much discussion, were of opinion that the form of the register of the first marriage, then in question, which expressed the marriage to have been by license generally, without saying by consent of parents or guardians, together with the fact of the parents never having been known to have been in England, was primâ facie evidence that the first marriage was had without the consent of parents or guardians, upon which the jury might have found the prisoner not guilty.(u)

If the prisoner prove that his first marriage took place while he was a minor, and while the 26 Geo. 2, c. 33, was in force, it must be shown on the part of the prosecution, that such marriage, if by license, was with the proper consent. The prisoner was indicted for bigamy, in marrying Elizabeth Field, his first wife Lydia being still living; and it was proved that on the 12th of Feb. 1791, he was married to Lydia Blackwell by license, and that she was living on the 8th of June last: and that on the 14th of December, 1800, he married Elizabeth Field. On behalf of the prisoner it was proved that he was born on the 2d of January, 1771, and that his father was then alive and it was then contended that the first marriage was void, as it was not proved to have been by the consent of his father. *304] *Lawrence, J., told the jury that he thought the marriage was to be presumed valid, unless the prisoner proved that he had not that consent, and under his direction the prisoner was found guilty. But the point being saved for the consideration of the judges, they held the conviction wrong; as it was clearly proved that the prisoner was under age at the time of the first marriage, and as there were no circumstances from which consent could be presumed.(v)

Though il'egitimate children are regarded by the law as not having any father, yet they were held to be within the Marriage Act of 26 Geo. 2; and a marriage by license between two illegitimate children, who were minors, without consent of parents or guardians, was therefore held to be void.(w) And formerly it was the opinion of the Court of King's Bench, that the power of consent given by the Act

(s) Doe dem. Earl of Egremont v. Grazebrook, 4 Q. B. 406 (45 E. C. L. R.). In the argument it is said that "the performance of a ceremony was proved;" "but the ceremony was shown to have been performed in a private house." "The same parties went through a ceremony which, at any rate, was professedly a marriage." See Doe dem. France v. Andrews, 15 Q. B. 756 (69 E. C. L. R.), as to the entry in the register.

(t) Rex v. Morton, cor. Wilson, J., Newcastle, 1789. MS. of Bailey, J., and R. & R. 19, note (a).

(u) James's Case, R. & R. I7. And the judges directed the prisoner to be discharged on his own recognizance. Lord Kenyon at the first meeting seemed to be of opinion that it was sufficient for the prisoner to prove himself under age at the time of the first marriage; and that it then rested with the prosecutor to show that the marriage was with the consent of parents or guardians, but that the prisoner ought not to be called upon to prove a negative.

(v) Rex v. Butler, Mich. T. 1803, MS., Bayley, J., and R. & R. 61. It seems that subsequent countenance from parents or guardians, or other circumstances of a similar kind, might afford ground for presuming the necessary consent.

(w) Rex v. Hodnett, 1 T. R. 96.

to the father and mother was intended to include reputed parents, as being interested in their children's welfare, and bound to provide for them by the laws of nature:(x) but in a case which came before the Consistorial Court in London, in 1799, a different doctrine was held by the very learned judge of that Court, who was of opinion that the reputed parents were not enabled to consent, and that the consent could be lawfully given only by a guardian appointed by the Court of Chancery.(y) And in a more recent case three of the judges of the Court of King's Bench adopted the latter opinion; and, after much argument and consideration, certified to the Master of the Rolls that all marriages, whether of legitimate or illegitimate persons, were within the general provision of the Marriage Act 26 Geo. 2, c. 33, which required all marriages to be by banns or license; and that the consent of the natural mother to the marriage, by license, of an illegitimate minor, was not a sufficient consent within the eleventh section of that Act; and that consequently the marriage in question was void by the said statute.(z)

But a marriage solemnized by license since the 4 Geo. 4, c. 76, without consent of parents, where one of the parties is a minor is valid: for the section, which requires such consent, is only directory. The pauper, being under the age of twentyone years, was married in 1826, by license, without the consent of his father, who was then living; it was objected that this marriage was void under the 4 Geo. 4, c. 76, for want of the father's consent; but it was held that the marriage was valid. The language of sec. 16(a) is merely to require consent; it does not proceed to make the marriage void, if solemnized without consent. Sec. 22, declares that certain marriages shall be null and void, and a marriage by license without consent is not specified; and if there were any doubt, it is removed by sec. 23, which in such a case enacts, not that the *marriage shall be void, but that all the property accruing from the marriage shall be forfeited. (b)

[*305 As the marriage of a minor, under the 4 Geo. 4, c. 76, without the necessary consent of parents is now valid, it seems that it is not necessary for the prosecutor to prove such consent, and that the absence of such consent would furnish no defence if proved on the part of the prisoner. The 6 & 7 Will. 4, c. 85, s. 25, expressly provides, that after any marriage shall have been solemnized, it shall not be necessary, in support of such marriage, to give any proof of the consent of any person, whose consent thereunto is required by law; nor shall any evidence be given to prove the contrary in any suit touching the validity of any marriage.(c) Unless a clergyman in holy orders was present at the marriage ceremony, the marriage was null and void at common law before the marriage Act. Where, therefore, A, a member of the established Church in Ireland, went, in 1829, accompanied by B, a Presbyterian, to the house of C, a regularly placed minister of the Presbyterians of the parish where C resided, and there entered into a present contract of marriage with the said B, the minister performing a religious ceremony between them, according to the rites of the Presbyterian church, and A and B lived together as man and wife for some time afterwards; but A, afterwards during B's life, married another person in a parish church in England; it was held, on an indictment for bigamy, that the first contract thus entered into was not sufficient to support the indictment. (d)

(z) Rex v. Edmonton, Cald. 435.

(y) Horner v. Liddiard, Rep. by Dr. Croke.

(2) Priestly v. Hughes, 11 East 1, Grose, J., differed, and sent a separate certificate. The question was afterwards brought before the House of Lords in an appeal from the decree in this case.

(a) See the section, ante, p. 281.

(b) Rex v. Birmingham, 8 B. & C. 29 (15 E. C. L. R.), s. c., 2 M. & R. 230; Reg. v. Clark, 2 Cox C. C. 183.

(c) See the section, ante, p. 289.

(d) Reg. v. Millis, 10 Cl. & F. 534, March, 1843. In the Queen's Bench in Ireland, Perrin and Crampton, JJ., held the first marriage good: but Pennefather, C. J., and Burton, J., held it to be void. In order that error might be brought in the House of Lords, Perrin, J., withdrew his opinion, and judgment was given for the prisoner. In the House of Lords, Lords Brougham, Denman, and Campbell held the first marriage good; but the Lord Chancellor (Lyndhurst), Lord Cottenham, and Lord Abinger held it void; whereupon, according to the ancient rule in law, semper præsumitur pro negante, judgment was

But the preceding case must not be taken to decide that marriages of British subjects in the colonies, or on board ship or elsewhere, where a clergyman cannot be obtained, are invalid. Indeed in a case in India where no clergyman could be obtained, it was held that the preceding decision did not apply.(e)

The law does not admit of any difference, as to the manner in which a marriage is to be celebrated, between the marriage of a clergyman and a layman, and consequently if the bridegroom be a clergyman in holy orders, and perform the ceremony himself, no other clergyman being present, the marriage is invalid.(ƒ)

Where, on an indictment for bigamy, it appeared that the first marriage professed to be under the provisions of the 6 & 7 Will. 4, c. 85, and the superintendent registrar produced the register *returned to him by the registrar, who

*306] proved that he was present at the marriage, that it was registered, that the

parties signed their names, and he witnessed it; and the superintendent registrar produced the register of the place where the marriage was celebrated, and the certificate he issued was produced and proved by him. A witness stated that he was present at the marriage, and that notice of it was duly given to the superintendent registrar, but the latter did not produce it, and said, if he had received it, he had left it at home; it was contended, on behalf of the prisoner, that it was incumbent on the prosecution to show that the first marriage was celebrated in the registered building specified in the notice and certificate, to prove that due notice had been given to the superintendent register, and that the certificate of the notice had been duly issued. But, on a case reserved, all the judges present held the evidence sufficient.(g)

Upon an indictment for bigamy, which alleged that the prisoner, in July, 1818, married Eliza Goodman in a Wesleyan chapel duly licensed for marriages, and afterwards in her lifetime married E. Outley, a witness proved that he was present at the first marriage at the Wesleyan chapel at Dunstable, in the presence of the registrar, and signed the register as a witness, and that the parties lived together as man and wife for two or three years. A witness proved that a certificate of this marriage was examined by him with the register book, kept at the office of the superintendent registrar of the district of Luton, within which Dunstable was, and that it was correct, and that it was signed by the superintendent registrar. This certificate contained a copy of the register, which the registrar certified to be correct. The witness also proved that he examined another certificate with the register book at the office of the superintendent registrar, and that it was correctly. extracted, and was signed by the superintendent registrar in his presence.(h) The witness also proved that another document was signed in his presence by the superintendent registrar, and that he examined it with the register at his office, and found it was correctly extracted.(i) The reception of these documents was objected to, on the ground that certificates were not admissible to prove a marriage in a given for the defendant; and in Beamish v. Beamish, infra, it was held that this judgment was as much binding as if it had been pronounced nemine dissentiente. On the authority of this case, it was held that a marriage solemnized at the consulate office at Beyrout in Syria, according to the rites of the Church of England, between two British subjects who were members of that church, by an American missionary, who was not a priest in holy orders, was void: Catherwood v. Caslon, 13 M. & W. 261, 1844. See the 12 & 13 Vict. c. 68, post, p. 315.

(e) Maclean v. Cristall, Per. Oriental Cas. 75. And the Lords, in Beamish v. Beamish, infra, expressly declared that this question was not decided by the preceding case. (f) Beamish v. Beamish, 9 H. L. C. 274.

(g) Reg. v. Hawes, 1 Den. C. C. 270. As the production of the original register of marriages cannot be enforced, a witness, who has seen the register, may prove the handwriting of a party to a marriage therein registered, although such register be not produced: Sayer v. Glossop, 2 Exch. R. 409.

(h) This certificate was, "I, the undersigned, T. E. Austin, Superintendent Registrar fo the district of Luton, &c., do hereby certify that the Wesleyan chapel, situate at Dunstable, in the county of Bedford, was duly registered for the solemnization of marriages, pursuant to the Act 6 & 7 Will. 4, c. 85, on the twenty-eighth day of November, 1845. Given under my hand, &c., Thos. Erskine Austin."

(i) This document was, "Henry Manwaring and Eliza Goodman were married after notice, read at the Board of Guardians of the Luton Union, without license. Thos. Erskine Austin, Superintendent Registrar.”

Wesleyan chapel, or that it was a place in which a marriage could be legally solemnized, or that, if admissible, they must be authenticated by the official seal of the registrar, and not under hand only. But the documents were admitted, and the prisoner convicted; and it was held that the conviction was right, upon the ground that, independently of the two last-mentioned documents, there was prima facie evidence that the chapel was duly registered, and was therefore a place [*307 in which marriages might be legally solemnized. The presence of the registrar at the marriage, the fact of the ceremony taking place, and the entry in the registrar's book, aided, as they were, by the presumption omnia ritè® esse acta, afforded prima facie evidence that the chapel was a duly registered place, in which marriages might be legally celebrated.(k) So where on an indictment for bigamy the prisoner was shown to have been secondly married at a Wesleyan chapel not registered under the 15 & 16 Vict. c. 36, in June 1857, and this marriage was proved by the registrar, who produced the certificate; it was objected that there was no proof of the second marriage, or that it was invalid, having taken place in an unlicensed chapel; but Wightman, J., overruled the objections.()

Upon an indictment for bigamy it was proved that the first marriage was performed in an Independent chapel by a Wesleyan Methodist minister, in the presence of the registrar of the district and two witnesses, and a certificate of the marriage was produced, it was held that there was sufficient proof of the marriage. without proving that the chapel had been duly registered.()

So where in an action for goods sold there was a plea of coverture, and the defendant stated that she was married to J. Lambert in 1844, at a Roman Catholic chapel in George Street, Portman Square; that she and Lambert were both Roman Catholics, and were married by a priest in the way in which Roman Catholic marriages are ordinarily celebrated, and that they lived together for some years, and she produced a certificate of the marriage from the priest who performed the ceremony, and a certificate showing that the civil contract of marriage had been performed before the French Consul; but there was no proof that the person who performed the ceremony was a priest, or that the chapel was a place licensed for marriages, or that the registrar was present at the time; the Court of Common Pleas held that it might be presumed that the chapel was licensed and the registrar present, as well because the 6 & 7 Will. 4, c. 85, s. 39, declares, any person who wilfully solemnizes a marriage in any other place than a registered building or in the absence of the registrar, guilty of felony, as because the ordinary rule omnia præsumuntur ritè esse acta ought to prevail in such a case.(mm)

Where a woman in the lifetime of her first husband married a widower, who had been her sister's husband, which would have been a void marriage under the 5 & 6 Will. 4, c. 52, s. 2,(m) even had the woman's first husband been dead, it was held that the validity of the second marriage did not affect the question. It is the appearing to contract a second marriage, and the going through the ceremony, which constitute the crime of bigamy, otherwise it could never exist in ordinary cases; as a previous marriage always renders null and void a marriage that is celebrated afterwards by either of the parties during the lifetime of the other. Whether, therefore, the marriage of the two prisoners was or was not in itself prohibited, and therefore null and void, does not signify; for the woman having a husband then alive, has committed the crime of bigamy by doing all that in her lay by entering into marriage with another man.(n)

(k) Reg. v. Manwaring, D. & B. C. C. 132, Pollock, C. B. and Willes, J., thought that the certificate that the chapel had been duly registered was admissible and evidence of the fact. The 6 & 7 Will. 4, cc. 85, 86; 1 Vict. c. 22; 3 & 4 Vict. c. 92; 8 & 9 Vict. c. 113; 9 & 10 Vict. c. 119; and 14 & 15 Vict. c. 99, were referred to on the trial. Willes, J., said, "It is a mistake to suppose that the provisions of the 14 & 15 Vict. c. 99, s. 14, are anything more than cumulative, or that they give a rule and the only rule of evidence." (1) Reg. v. Tilson, 1 F. & F. 54.

(1) Reg. v. Cradock, 3 F. & F. 837, Willes, J., and Pollock, C. B.

(mm) Sichel v. Lambert, 15 C. B. (N. S.) 781 (109 E. C. L. R.).

(m) Ante, p. 274.

(n) Reg. v. Brawn, 1 C. & K. 144 (47 E. C. L. R.), Lord Denman, C. J. See the cases, ante, p. 274.

A marriage celebrated by banns, in a chapel erected after the 26 Geo. 2, c. 33, was passed, and not upon the site of any ancient church or chapel, was held to be void, although marriages had been de facto frequently celebrated there; the words of the statute "in which chapel banns have been usually published" being held clearly to mean chapels existing at the time it was passed. (0) But as soon as this determination was known, the 21 Geo. 3, c. 53, was passed, making valid all marriages which had been celebrated in any parish church or public chapel, erected since the passing of the 26 Geo. 2, c. 33, and consecrated, and providing that the registers of such marriages should be received as evidence. The fourth section enacted, that the registers of marriages thereby made valid should, within twenty days after the 1st of August, 1781, be removed to the church of the parish in which such chapel should be situated; or, if it should be situated in an extraparochial place, to the parish church next adjoining, to be kept with the registers of such parish. These provisions were extended by the 44 Geo. 3, c. 77, and the 48 Geo. 3, c. 127, to marriages celebrated in such *chapels before the 23d *308] August, 1808; and the registers of such marriages are in like manner to be removed to parish churches, and transmitted to the bishop. The 6 Geo. 4, c. 92, recites, that since the 26 Geo 2, c. 33, and the 44 Geo. 3, c. 77. divers churches and chapels had been erected in England, Wales, and Berwick-uponTweed, which had been duly consecrated, and divers marriages had been solemnized therein since the passing of the 44 Geo. 3, c. 77; but by reason that in such churches and chapels banns of matrimony had not usually been published, before or at the time of passing the 26 Geo. 2, c. 33, nor any authority obtained for solemnizing marriages therein, under the provisions of the 4 Geo. 4, c. 76, such marriages had been or might be deemed to be void; and then enacts, that all marriages already solemnized in any church or public chapel in England, Wales, and Berwick-upon-Tweed, erected since the 26 Geo. 2, c. 33, and consecrated, shall be as good and valid in law as if such marriages had been solemnized in parish churches or public chapels, having chapelries annexed, and wherein banns had usually been published before or at the time of passing the 26 Geo. 2. By sec. 2, it shall be lawful for marriages to be in future solemnized in all churches and chapels erected since the 26 Geo. 2, c. 33, and consecrated, "in which churches and chapels it has been customary and usual, before the passing of this Act, to solemnize marriages;" and that all marriages hereinafter(p) solemnized therein shall be as good and valid as if they had been solemnized in parish churches, &c., wherein banns had usually been published before or at the time of passing the 26 Geo. 2. And the registers of marriages solemnized in the churches or chapels, by the 6 Geo. 4, enacted to be valid in law, or copies thereof, are to be received as evidence, in the same manner as the registers of marriages in parish churches, &c., in which banns were usually published before or at the time of the 26 Geo. 2, c. 33, or copies thereof, are received; but liable to the same objections as would be available to exclude the latter from being received.(q) But such registers of marriages, solemnized in any public chapel, and made valid by the 6 Geo. 4, c. 92, are, within three months from the passing of the Act, to be removed to the parish church of the parish in which such chapel is situated; and if it be situated in an extra-parochial place, then to the parish church next adjoining, to be kept with the marriage registers of such parish, and in like manner as parish registers are directed to be kept by the 26 Geo. 2.(r)

Where a marriage was solemnized in a chapel, there must be some evidence given that banns were usually published there before the possing of the 26 Geo. 2, c. 33; but it was prima facie sufficient for that purpose to produce an old register of marriages solemnized in the chapel before that Act, and a regular register of banns published there since, and to prove that within the recollection of witnesses banns had been published and marriages solemnized in it from time to time of late years. (s) But where on an indictment for bigamy it appeared that the first marriage was celebrated at the chapel of Great Barr, which was a chapel (o) Rex v. Northfield, Dougl. 659. (p) Sic, it should be "hereafter." (r) Id. sec. 4.

(9) 6 Geo. 4, c. 92, s. 3.

(8) Taunton v. Wyborn, 2 Camp. R. 297.