affirmative (2). Deaf and dumb persons may marry if of sufficient mental capacity to understand that by the act of marriage they contract to cohabit together, and with no one else (a).

During a long period, Lord Hardwicke's Act, 26 Geo. II. c. 33, was the only statute relating to marriage, but several statutes have since been made with a view to amend the provisions of that act; and finally it has been altogether repealed.

The first of these, viz. 3 Geo. IV. c. 75, after repealing the 11th sect. of the 26th Geo. II. c. 33, relating to marriages, by licence, of minors, without consent of proper parties, by sect. 2 enacts, that marriages solemnized by licence before the passing of this act, that is, before 22nd July, 1822, without the consent required by the 11th sect. of Lord Hardwicke's Act, shall be good, (if not otherwise invalid,) where the parties shall have continued to live together as husband and wife until the death of one of them, or until the passing of this act, or shall only have discontinued their cohabitation for the purpose or during the pending of any proceedings touching the validity of such marriage. [As to what shall not be a living together as husband and wife within this section, see Poole v. Poole, 2 Cr. & J. 66, and 2 Tyrw. 76.] But this act (sect. 3) is not to render valid any marriage which has been declared invalid by any court of competent jurisdiction before the 22nd of July, 1822, nor any marriages where either of the parties shall at any time afterwards have lawfully intermarried with any other person. [This 3rd section (which is not repealed by 4 Geo. IV. c. 76 (b)) has a retrospective operation only; hence it has been held that a marriage which would have been void by the 11th section of Lord Hardwicke's Act, and had once been rendered valid by the 2nd section of the 3 Geo. IV. c. 75, cannot subsequently be rendered invalid by the marriage of either of the parties during the life of the other with a third person (c).] Nor is this act (s. 4) to render valid any marriage the invalidity of which has been established before the 22nd of July, 1822, upon the trial of any issue touching its validity, or touching the legitimacy of any person alleged to be the descendant of the parties to such marriage; nor (sect. 5) any marriage of which the validity or legitimacy of descendants has been brought in question, in law or equity, where judgments or decrees or orders have been made before the 22nd of July, 1822, in consequence of proof having been made. of the invalidity of such marriage, or the illegitimacy of such descendants. The right and interest in property and titles of honour, which have been enjoyed upon the ground of the invalidity of any marriage, by reason that it was solemnized without such consent, shall not be affected by this act, although no sentence or judgment

(z) Beamish v. Beamish, 6 Irish C. L. R. 142; and see now 7 & 8 Vict. c. 81, s. 13. (a) Harrod v. Harrod, 1 Kay & S. 4; S. C. 18 Jur. 853.

(b) Rose v. Blakemore, Ryan & Moody,

382.

(c) R. v. St. John Delpike, 2 B. & Ad. 226.

ADULTERY.

has been pronounced in any court against the validity of such (d). This statute shall not affect any act done before the 22nd of July, 1822, under the authority of any court, or in the administration of any personal estate, or the execution of any will, or performance of any trust (e). The remaining sections of this statute, from the 8th to the 26th, were repealed by the 4 Geo. IV. c. 17, 26th March, 1823, which was also repealed by stat. 4 Geo. IV. c. 76, except as to any act done under its provisions, and also except as to its repealing the clauses contained under any former act (ƒ).

This statute, viz. 4 Geo. IV. c. 76, which passed on the 13th of July, 1823, repealed so much of Lord Hardwicke's Act as was then in force, from the 1st Nov. 1823. The principal provisions are as follow: The 2nd section relates entirely to the mode in which banns shall be published. The 3rd section empowers bishops to authorize publication of banns in chapels.

By sect. 7, no minister is obliged to publish banns, unless the persons to be married shall seven days before first publication deliver to such minister notice in writing, dated on day of delivery, of their true Christian names and surnames, and of the houses of their respective abodes within the parish or chapelry, and of the time during which they have dwelt therein.

A person, whose baptismal and surname was Abraham Langley, was married by banns by the name of George Smith, having been known in the parish where he resided and was married by that name only, from the time of his first coming into the parish till his marriage, which was about three years; it was held that the marriage was valid (g). So where a person had gone by an assumed name for sixteen weeks, in order more effectually to conceal himself, having deserted from the army, and then was married by his assumed name by licence; the marriage was held good, no fraud being intended in respect of the marriage (h). If there be a total variation of a name or names, that is, if the banns are published in a name or names totally different from those which the parties or one of them ever used, or by which they were ever known, the marriage in pursuance of that publication is invalid; and it is immaterial, in such cases, whether the misdescription has arisen from accident or design, or whether such design be fraudulent or not (i). But a licence under which a marriage has been solemnized, and in which one of the parties is described by a name wholly different from his own, is not void by the misdescription (k).

(d) Sect. 6.

(e) Sect. 7.

(f) See Rose v. Blakemore, Ry. & Mo. 382.

(g) R. v. Billinghurst, 3 M. & S. 250. (h) R. v. Burton-on-Trent, 3 M. & S. 537.

(i) Per Lord Tenterden, C. J., delivering the judgment of the court in R. v. Tib

shelf, 1 B. & Ad. 194, recognized in Allen v. Wood, 1 Bingh. N. C. 8. But the case of R. v. Tibshelf was decided as the law stood, under the 26 Geo. II. c. 23, s. 8. See therefore the language of the 4 Geo. IV. c. 76, s. 22, and the decision of R. v. Wroxton, 4 B. & Ad. 640, thereon, post, p. 16.

(k) Lane v. Goodwin, 4 Q. B. 361.

But in this case, Patteson, J., intimated an opinion, that it would have been void, if the name of one person had been inserted with a fraudulent intention, that the licence should be used by another.

"The marriage, except in case of a licence, is to be performed by proclamation of banns, which is to designate the individual in order to awaken the vigilance of parents and guardians, and to give them an opportunity of protecting their rights; it therefore requires that the true name shall be given them, evidently considering that a name assumed for the occasion is a name that will not answer the purposes of these provisions; accordingly this court has conceived itself to be carrying the intention of the law into effect, when it has annulled marriages where a false name has been inserted in the banns, though no fraud were intended; upon the ground that such proclamation was no proclamation referring to that marriage, but to another transaction; the marriage, therefore, was without proclamation of banns, and consequently illegal." Per Sir W. Scott, delivering judgment in Wakefield v. Mackay, 1 Phill. Ecc. Rep. pp. 139, 140, n., in which an illegitimate child was baptized in the name of her mother; and though in the course of her life she had used a variety of names, still, as the banns had been published in the name of her mother, and as it was not upon the evidence demonstrated to be other than the true name, the court sustained the marriage.

By stat. 4 Geo. IV. c. 76, sect. 9, marriages not had within three months after the complete publication of banns, cannot be solemnized without republication of banns on three several Sundays in the form prescribed, unless by licence.

By sect. 16, the father, if living, of any party under twenty-one years of age, such parties not being a widower or widow; or if the father shall be dead, the guardian of the person of the party so under age, lawfully appointed; and in case there shall be no such guardian, then the mother of such party, if unmarried; and if there shall be no mother unmarried, then the guardian of the person appointed by the Court of Chancery, if any, 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 consent. N.-The language of the foregoing section is merely directory; it does not proceed to make the marriage void, if solemnized without consent. Hence, where a marriage was solemnized by licence, the man being a minor, whose father was living, and who did not consent to the marriage; it was held, that the marriage was nevertheless valid (l). In case the father or fathers of the parties to be married, or one of them, so under age, shall be non compos mentis, or the guardian, mother or any of them whose consent is necessary to the marriage

(1) R. v. Birmingham, 8 B. & C. 29.

of such party, shall be non compos mentis, or in parts beyond the seas, or shall unreasonably or from undue motives refuse their consent to a proper marriage, then any person desirous of marrying, in any of the before-mentioned cases, may apply by petition to the lord chancellor, master of the rolls or vice-chancellor, who are respectively empowered to proceed upon such petition in a summary way; and in case the marriage proposed shall upon examination appear to be proper, the said lord chancellor, &c. shall judicially declare the same to be so; and such declaration shall be as effectual as if the father, or guardian, or mother of the person so petitioning, had consented to such marriage (m).

Whenever a marriage shall not be had within three months after the grant of a licence by any person having authority to grant such licence, no minister shall proceed to the solemnization of such marriage until a new licence shall have been obtained, unless by banns duly published (n).

If any persons shall knowingly and wilfully intermarry in any other place than a church or such public chapel wherein banns may be lawfully published, unless by special licence, or shall knowingly and wilfully intermarry without due publication of banns, or licence from a person having authority to grant the same, 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 (0).

In order to render a marriage void under this enactment, it must have been contracted by both parties with a knowledge that a due publication of banns had not taken place. Therefore, where the intended husband procured the banns to be published in a christian and surname which the woman had never borne, but she did not know that fact until after the solemnization of the marriage; it was held, that the marriage was valid (p). In Wiltshire v. Wiltshire, 3 Hagg. Ecc. Rep. 333, marriage by banns under a false publication, by the suppression of one of the husband's christian names by which he was known, with the knowledge and consent of both parties, was held void under this 22nd section. The marriage of parties under a licence from a person not having authority to grant the same is not void under this section, unless both parties knowingly and wilfully intermarry by virtue of such licence (q).

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 the age of twenty-one years, contrary to the provisions of this act, by means of such party falsely

(m) Sect. 17.

(n) Sect. 19.

(o) Sect. 22. But see post, p. 19, 6 & 7 Will. IV. c. 85.

(p) R. v. Wroxton, 4 B. & Ad. 640,

and 3 Nev. & M. 712. See Wright V. Elwood, 1 Curt. Ecc. R. 662.

(9) Dormer v. Williams, 1 Curt. Ecc. R. 870.

swearing to any matter to which such party is hereinbefore required personally to swear, such party shall forfeit all property accruing from the marriage (r).

In order to preserve the evidence of marriages, and to make the proof thereof more certain and easy, and for the direction of ministers in the celebration of marriages and registering thereof, all marriages shall be solemnized in the presence of two credible witnesses, besides the minister who shall celebrate the same; and immediately after the celebration, an entry thereof shall be made in the register book kept for that purpose, in which it shall be expressed that the marriage was celebrated by banns or licence, and if both or either of the parties married by licence be under age, not being a widower or widow, with consent of the parents or guardians, as the case shall be; and such entry shall be signed by the minister with his proper addition, and also by the parties married, and attested by such two witnesses; which entry shall be made in the form therein set forth (s).

This act does not extend (t) to the marriages of any of the royal family; nor to any marriages (u) amongst the people called Quakers, or amongst the persons professing the Jewish religion, where both the parties to any such marriage are of the people called Quakers, or persons professing the Jewish religion respectively; and, lastly, this statute is confined to England.

In consequence of a decision (R. v. Northfield, Doug. 658), which took place, confining the construction of Lord Hardwicke's act, 26 Geo. II. c. 33, s. 1, to chapels existing at the time of passing the act, several statutes have been made from time to time, to give validity to marriages solemnized in chapels erected since Lord Hardwicke's act, and to make the registers of such marriages evidence. See stat. 21 Geo. III. c. 53; 44 Geo. III. c. 77; 48 Geo. III. c. 127; 6 Geo. IV. c. 92. Stat. 5 Geo. IV. c. 32; 11 Geo. IV. & 1 Will. IV. c. 18, relate to the solemnization of marriages where churches are rebuilding or under repair (x). See stat. 7 & 8 Vict. c. 56, concerning banns and marriages in district churches or chapels.

By stat. 5 & 6 Will. IV. c. 54, after reciting that marriages between persons within the prohibited degrees are voidable only by sentence of the ecclesiastical court pronounced during the lifetime of both the parties thereto, it is enacted, that all marriages celebrated before the 31st August, 1835, between persons within the prohibited degrees of affinity, shall not be annulled for that cause by any sentence of the ecclesiastical court, except in suits depending at that time; provided that nothing thereinbefore enacted shall affect marriages between persons within the prohibited degrees of consan

(r) Sect. 23. (s) Sect. 28.

(t) Sect. 30.

VOL. I.

(u) Sect. 31.

(a) See R. v. Bowen, 2 C. & K. 227.

C