Sayfadaki görseller

India, by ordained ministers of the church of Scotland, as by law established, and that it was expedient that such doubts should be quieted, and that the law respecting such marriages should be declared for the future, declared and enacted, " that all marriages heretofore had and solemnized, or which shall be had and solemnized within the said territories in India, before the 31st day of December now next ensuing (1818,) by ordained ministers of the church of Scotland, as by law established, shall be and shall be adjudged, esteemed, and taken to have been and to be of the same and no other force and effect as if such marriages had been had and solemnized by clergymen of the Church of England, according to the rites and ceremonies of the Church of England; and that from and after the said thirty-first day of December now next ensuing, all marriages between persons, both or one of such persons being members or member of or holding communion with the church of Scotland, and making a declaration to the effect hereinafter mentioned, which marriages shall be had and solemnised within the British territories in India, by ordained ministers of the church of Scotland as by law

established, and appointed by the United Company of Merchants of England trading to the East Indies, to officiate as chaplains within the said territories, shall be and shall be adjudged, esteemed, and taken to be of the same and no other force and effect as if such marriage were had and solemnized by clergymen of the church of England, according to the rites and ceremonies of the church of England: provided always, that from and after the said thirty-first day of December, no such marriage as aforesaid shall be had and solemnized till both or one of such persons, as the case may be, shall have signed a declaration in writing, in duplicate, stating that they, or he, or she, as the case may be, are or is members or member of or holding communion with the church of Scotland, by law established.”

Delivery and Transmission of Certificate of Marriage by Minister.]—By the second section it is enacted, “that the minister by whom such marriage shall be solemnized, shall, immediately upon the solemnization thereof, certify such marriage *by a writing under his hand in duplicate, subjoined to or indorsed upon the

[ *45

] declaration in duplicate hereinbefore mentioned, specifying in such certificate the names and descriptions of the parties between whom, and of the witnesses in whose presence the said marriage has been had and solemnized, and the time and place of the celebration of the same; and such certificate in duplicate shall be also signed forthwith by the parties entering into such marriage, and by the witnesses to the same; and the minister officiating shall deliver one duplicate of such declaration and certificate to the persons married, or to one of them, and shall transmit the other duplicate of such declaration and certificate to the chief secretary of government at the presidency within which such marriage shall have been had and solemnized."

British Guiana, the Cape and Ceylon.]—In British Guiana, the Cape, and Ceylon, the solemnities required in the celebration of the act of marriage, in order to render it valid, are:

1st. A declaration before the magistrate or commissaries for mar


riage causes, of the desire of the parties to intermarry, and a request of the three Sundays' publication of the banns. (f)

2ndly. The payment of the stipulated duty on marriages.(g)

3rd. The marriage banns or proclamations, which are three in number,(h) and must run without interruption, are published at the court house, or in the church, in the domicil of the bride and bridegroom, or where within a year and a day they last lived.(i) These publications run from eight to eight days: unless for very weighty reasons it be permitted to publish two or three in one day.(k)

In the case of opposition to the marriage, on the ground of a previous contract, or for other reasons, the party opposing applies to the *46 ] judge, or proper authority, and enters a caveat *against

the marriage,(l) whereon the usual proceedings take place and an appeal lies.(m)

4thly. After the regular and uninterrupted publication of the banns, follows the completion of the marriage. Formerly, where the parties were of the reformed religion, the marriage was performed by a minister in the church; and if they were of a different religion,(n) by a magistrate at the court-house. But now, in all cases, it is celebrated by the magistrate.(o) Many persons still adhere to the old custom of having the ceremony performed in church, but this is optional and not necessary.

A marriage, wherein the above solemnities are not observed, is null and void. (p)

Order in Council as to the Celebration of Marriages in the Crown Colonies.)-An order in council has been made respecting marriages within the colonies of British Guiana, Trinidad, St. Lucia, the Cape of Good Hope, and Mauritius, and all islands and territorities dependant upon any of such colonies, and for establishing such regulations relative to marriages as are rendered necessary by the change which has taken place in the condition of society in such colonies.(q) The order recites, that “since the abolition of slavery throughout the British colonies, plantations and possessions abroad, the marriage laws of the said colonies, plantations, and possessions have been found inappropriate to the altered condition thereof, and inadequate to the increased desire for lawful matrimony therein: and recites that it is expedient and necessary to amend the said marriage laws, and to adapt the same to the altered state and condition of society in the said colonies, plantations and possessions," it is therefore ordered, that it shall be lawful for any minister of the christian religion, ordained or otherwise set apart to the ministry of the christian religion, according to the usage of the persuasion to which he may belong, to publish, within the colonies of British Guiana, Trinidad, St. Lucia, the Cape

(5) Voet. lib. 23. tit 2, n. 3; Van Leeuen (1) Arntzenii Inst. Jur. Belg. Civ. d. 1. s. Cens. For. lib. 1, c. 14; Van der Keessel 61. Thes. 83, 84, 85; Pol. Ordonn. art. 3.

(m) Van der Keessel Thes. 81., (g) Ordonn, 26 Oct. 1695; Public, 3 (n) Pol. Ord. art. 3; Arntzenii, d. I. s. 64, December, 1695.

seq. (h) Pol. Ordonn. art. 3.

(0) Public Holl. 7 May, 1795. (i) Arntzenii Inst. Jur. Belg. Civ. part 2, (p) Pol. Ordonn. art. 13; 1 Burge on tit. 3, 8. 69.

Foreign Law, 174, 175. (k) Loenius Decis. et Observ. Cas. 79, pp. (9) London Gazette, Tuesday, September, 513, 528.

18, 1838.

of Good Hope, and Mauritius or any of them, banns of marriage between *persons desirous of being joined together in matrimony, and after such banns shall have been duly

[ *47 ] published in the manner therein prescribed, to solemnize matrimony between the said parties according to such form and ceremony as shall be in use or be adopted by the persuasion to which the minister solemnizing such marriage shall belong. The order then proceeds to authorize the solemnization of the marriages of persons under age, without the consent of the parents or guardians or other person (if any) whose consent is required by law, unless such parents or guar. dians or other person, or one of them, shall forbid the marriage, and give notice thereof to such minister before he has solemnized the same. And in places where there may not be any such minister of religion, or not a sufficient number of such ministers to afford convenient facilities for marriage, it provides for the appointment, by the governor of the colony of a marriage officer to solemnize marriages within such part or parts of the colony in which such appointment shall be made, as the governor shall from time to time direct. The order also provides for the public solemnization of the marriages before witnesses, and for the registration of the marriages. The order then legalizes retrospectively all marriages contracted and solemnized previous to the abolition of slavery in the said colonies, plantations and possessions, between slaves, and between parties, one of whom was a slave, and also in some cases between free persons of colour, and since the abolition of slavery, between apprentices and other persons of free condition, by ministers of the christian religion other than clergymen of the church of England; and indemnifies all persons who may have solemnized any such marriages or reputed marriages, or who have in any manner assisted thereat; and provides for the preservation of the evidence and registers of such marriages; and also legalizes retrospectively marriages de facto between persons, one or both of whom were in the condition of slavery, but which marriages de facto had never been sanctioned by any public ceremony, or formally registered, upon such persons, within one year after the coming into operation of this order, duly solemninizing the marriage ceremony before any clergymen of the established church, *or in any manner authorised by this order; and making a declaration, attested by the wit

[ *48 ] nesses present, and signed by the minister or marriage officer before whom the ceremony was performed, of the fact of the marriage, and the names and ages of the children born of the marriage. This order also contains directions as to the registration of marriages.

Newfoundland.]—The stat. 57 Geo. 3, c. 51, for regulating the celebration of marriages in Newfoundland,-after reciting that a doubt existed whether the law of England, requiring religious ceremonies in the celebration of marriage to be performed by persons in holy orders, for the perfect validity of the marriage contract, was in force in Newfoundland; and by reason of this doubt, marriages had been of late celebrated in Newfoundland by persons not in holy orders; and that great inconvenience and irregularities might arise if these doubts should continue to prevail,-enacted, " that after the 1st January, in the year 1818, all marriages had in Newfoundland

should be celebrated by persons in holy orders; and all marriages which should be contracted or celebrated in Newfoundland contrary to the act, after the 1st of January, in the year 1818, should be void." This act did not extend to any marriages which might be had under circumstances of peculiar and extreme difficulty in procuring a person in holy orders to perform the celebration, and in which the law might on that account otherwise determine on the validity of such marriages. In all such cases the circumstances of the case, and the actual contract of marriage, were required to be certified on the oath of the parties, before the magistrate nearest to the usual residence of the parties, or either of them, or before some other person duly authosised by the governor or officer administering the government at Newfoundland, to administer such oath.

This act did not extend to marriages had before the 1st January, 1818.

The 5 Geo. 4, c. 68, repealed the preceding act after the 25th March, 1825, and declared all marriages before the 17th June, 1824, in Newfoundland, and which had not been adjudged void, and all [ *49 ] valid as if the 57 Geo. 3, c. 51, had not passed.

marriages there previously to the 25th March, 1825, as The 2d section of 5 Geo. 4, c. 68, required all marriages thereafter to be had in Newfoundland to be celebrated by persons in holy orders, except in the cases thereinafter provided for. One of the principal secretaries of state, or the governor of the colony, was empowered to grant licenses to celebrate marriages within the colony or its dependencies any teacher or preacher of religion in the colony, not following any trade or business, or other profession or employment than that of a schoolmaster, provided such persons took the oaths prescribed by 52 Geo. 3, c. 155.(s) Such licensed persons were empowered to celebrate marriages in cases where, by reason of the difficulty of internal communication, the woman could not without inconvenience repair, for the purpose of contracting marriage, to some established church or chapel. A penalty was imposed for cele. brating a marriage in any case where such inconvenience did not exist, although the marriage was not rendered invalid by reason of any such illegality on the part of the person celebrating it.(0) The presence of two credible witnesses was required at the celebration of such marriages under a penalty; but the want of such witnesses did not invalidate the marriage. (u) The act also contains provisions as to the certificates and registers of marriages.(x)

This act was to remain in force for five years only,(y) but it was continued by subsequent acts.(z) By statute 2 & 3 Will. 4, c. 78, s. 1, his majesty, or any governor, lieutenant-governor, or officer administering the government of Newfoundland, in pursuance of any commission addressed by his majesty, with the advice or consent of the Houses of General Assembly convoked by his majesty from the inhabitants of the colony, was empowered by any acts to be from time to time for that purpose passed, to repeal in whole or in part, or to amend, alter, or vary the act, 5 Geo. 4, c. 67, (for the better adminis

[ocr errors][ocr errors]

(0) 5 Geo. 4, c. 68, s. 3.
(1) Sect. 4.
(u) Sect. 5.

(1) Scctions 6-8.
(y) Sect. 10.
(2) 10 Geo. 4, c. 17; 2 & 3 Will. 4, c. 18.

tration of justice in Newfoundland,) and the abovementioned acts 5 Geo. 4, c. 68, and the 10 Geo. 4, c. 17.

*In pursuance of this power by stat. 3 Will. 4, c. 10, of the colonial parliament, the 5 Geo. 4, c. 68, was repealed,

[ *50] except so far as such act repealed the 57 Geo. 3, c. 51, and except so far as it legalized all marriages in Newfoundland had within a certain period, and declared them to be valid. By the 2d section, all marriages are to be celebrated by persons in holy orders, or by any resident minister publicly recognized as the pastor and teacher of any congregation having a church or chapel, or employed as such teachers or preachers, being duly licensed to celebrate marriage by the governor. Such marriages must be celebrated in the presence of two credible witnesses, under a penalty; but the want of such witnesses shall not invalidate the marriage. It is made a misdemeanor, subject to a penalty not exceeding 501., for persons authorized to celebrate marriage to perform any marriage between any two persons, either of whom shall be under age without having published banns thereof on three successive Sundays in some church or chapel; or if there be no church or chapel, then after notice of the intended marriage shall have been placarded in some conspicuous public place of resort for three weeks preceding the celebration of ihe proposed marriage, or without having first obtained the consent of the parents or guardians of such person or persons under age.

All marriages are to be registered in a book to be kept for that purpose in the church or chapel

where the marriage is celebrated. The register, or a copy attested by the clergyman or teacher licensed as aforesaid, is made proof of the due celebration of the marriage.(a)

Where the residence of any woman about to be married shall be distant ten miles from the residence of the nearest clergyman, or teacher or preacher licensed as aforesaid, any magistrate, being first duly licensed by the governor to celebrate such marriage, and if there be no such teacher, nor any magistrate licensed as aforesaid, · residing within fifteen miles of the woman about to be married as aforesaid, then any layman duly licensed by the governor may cele. brate marriage between any persons resident in such place as aforesaid.(6) Persons celebrating marriages where there is no church or *chapel, are to transmit a certificate thereof to the colonial secretary within twelve months, under a penalty of 5l.,

[ *51 ] who is to enter the same in a register of marriages to be by him kept for the purpose, and to be open for inspection, and on payment of 2s. 6d. a correct copy of such entry is to be given.(c) And such lastmentioned register, or an attested copy thereof, is to be received as evidence of the due celebration of such marriage.

Upper Canada.]—In Upper Canada, by the 33 Geo. 3, c. 5, s. 1, “ marriages of all persons not under any canonical disqualification to contract matrimony, which before the passing of the act had been publicly contracted before any magistrate or commanding officer of a post, or adjutant, or surgeon of a regiment acting as chaplain, or

person in any public office or employment, were confirmed,

any other

[blocks in formation]
« ÖncekiDevam »