Sayfadaki görseller

and the parties who had contracted such marriage, and the issue thereof, intitled to all the rights and benefits, and subject to all the obligations arising from marriage and consanguinity, in as full and ample a manner as if the said marriages had respectively been solemnized according to law.” The act prescribes the method of preserving the testimony of such marriages, and makes the register of such marriage or an attested copy thereof, sufficient evidence of such marriage and the birth of children.(d) The act then provides,(e) " that until there should be five parsons or ministers of the Church of England, severally incumbent or doing duty on and in their respective parishes, in any one district within the province, parties, when neither of thein are living within the distance of eighteen miles of any parson or minister of the Church of England, might apply to any neighbouring justice of the peace within the district, and declare the same; whereupon such justice should cause to be affixed in some public place within the township or parish wherein the parties reside, or if they should reside in different townships or parishes, then in the most public place within each of the said townships or parishes, a notice of their intention, in the form therein mentioned.” The marriage may

then *be celebrated by the justice of the peace according [ *52 ] to the form prescribed by the church of England. The act having pointed out the manner in which the arrival of the requisite number of ministers shall be made known, enacts “that the authority of the justices of the peace to marry shall then cease, and that any marriage performed by them shall be null and void to all intents and purposes whatsoever."(f)

It is no valid objection to the legality of any marriage theretofore solemnized by any, parson or minister, either hy licence, or after due publication of banns, or thereafter to be solemnized, that the same was not solemnized in a church or chapel duly consecrated, nor is any such marriage on account thereof to be held or taken to be illegal.(g)

By a subsequent act of the legislature of Upper Canada, (h) " the minister and clergyman of any congregation or religious community, of persons professing to be members of the church of Scotland, or Lutherians, or Calvinists, who shall be authorized in manner thereinafter directed, may celebrate the ceremony of matrimony according to the rites of such church or religious community between any two persons, neither of whom are under any legal disqualification to contract matrimony, and one of whom shall have been a member of such congregation or religious community at least six months before the said marriage."

But “no person is to be taken or deemed to be a minister or clergy. man of any such congregation or religious community, within the intent and meaning of this act, who shall not have been regularly ordained, constituted, or appointed, according to the rites and forms of such congregation or religious community, and unless he shall have appeared before the justices of the peace assembled in quarter sessions, in the district which he shall reside, when not less than six magistrates, besides the chairman, shall be present, and shall have

(d) Sect. 2. (e) Sect. 3, (S) Sect. 5.

(g) Sect. 6.
(h) 38 Geo. 3, c. 4, s. 1.

then with him at least seven respectable persons, members of the congregation or religious community to which he belongs, who shall declare him to be their minister or clergyman, and unless he shall produce proofs of his ordination, *constitution, or appointment [ *53 ] to that office, and have taken the oath of allegiance."(i)

It is further enacted, “ that no such minister or clergyman shall at any time celebrate the ceremony of matrimony between any two persons as above described, unless he shall, on three several Sundays before he shall celebrate the said ceremony, openly, and with a loud voice, in the church, chapel, meeting-house, or other place of worship of such congregation or religious community, either in some intermediate part of the service, or immediately before it begins, or immediately after it is ended, declare his intention so to do; and shall, at each time of making such declaration, also declare the number of times he shall have made such declaration respectively; or unless such minister or clergyman shall have been duly authorized by license, under the hand and seal of the governor, to celebrate the said ceremony between the two persons therein named.”(j)

The parties married 'may demand of the minister, in the form therein mentioned, a certificate of the marriage, which is to be registered.(k)

Lower Canada.]—The decrees of the council of Trent were never admitted as of authority in France. The ordinance of Blois, art. 40; the edict of Henry 4, of Dec. 1606; and the declaration of Louis 13, 1639, art. 1, constituted the marriage law of that kingdom before the revolution. It was required that at the celebration of the marriage, four witnesses should assist with the curé, who was to receive the consent of the parties, and join them together in wedlock according to the form practised in the church. The priest was prohibited from celebrating the marriage of any other persons than those who were his own parishioners, unless with the written permission of the curé of the bishop. There must have been a previous publication of banns for three successive days in the church of the parish in which the parties resided ; or in the churches of both their parishes, if they resided in different parishes.(l) Those ordinances were extended to Lower Canada.(m) Since this province has

[ *54 ] become part of the British dominions, certain marriages celebrated there have been made legal by the legislature.

By 44 Geo. 3, c. 11,(n) all marriages solemnized since 13th September 1759, in Lower Canada, by any minister or reputed minister of the church of Scotland, or by any protestant or reputed protestant dissenting minister, or by any justice of the peace, are declared to be valid in law to all civil purposes. But the act did not confirm any marriage between persons who could not legally marry, nor confirm any marriage which should be celebrated after the passing of that act. The i Geo. 4, c. 19, contains a similar confirmation of mar. riages theretofore solemnized in the inferior district of Gaspé. And the 5 Geo. 4, c. 25, confirms in like manner similar marriages theretofore solemnized in the district of St. Francis.

(i) Sect. 2.
(j) Sect. 4.
(k) Sect. 5.
(1) Pothier, Traité de Mariage, part iv. c.
July, 1841.-F

1, n. 349, 362; D'Aguesseau, tom. 5.

(m), 1 Burge on Foreign Law, 175, 176. (n) 2d May, 1804.

The act 35 Geo. 3, c. 4, was passed in Lower Canada to establish the form of registers of baptisms, marriages, and burials; to confirm and make valid in law the register of the protestant congregation of Christ Church, Montreal, and others which may have been informally kept, and to afford the means of remedying omissions in former registers.

St. Lucia.]-By the ordinance of March, 1685, art. 10, the rites enjoined by the ordinance of Blois, and the declaration of 1639, were extended to St. Lucia, and constituted the matrimonial law of that colony,(0) until the recent alterations made by the order in council already mentioned,(p) which extends to this colony.

Nova Scotia.]— The law of Nova Scotia, in order to obviate the difficulties which the inhabitants experienced in procuring a clergyman, makes valid all marriages theretofore solemnized before magistrates, and other lay persons, in the presence of one or more credible witness or witnesses, where the parties so married have cohabited

together, and enacts that they *shall be deemed to be [ *55 ]

lawful, and of as much force and validity, as if they had been solemnized before a minister of the church of England, with all the forms required by law; and makes the issue of the marriages thereby confirmed legitimate."(9)

By a subsequent act,(r) the governor for the time being is authorized to appoint such fit and proper persons as he shall think necessary, within any of the townships or districts in the province, wherein no regular or licensed clergyman doth reside, to solemnize marriages within such townships or districts, between parties, both of whom shall have resided one month at least, within such township or district, by license or otherwise, as required by the laws of the province; and all marriages so solemnized shall be as good and valid in law as if the same had been solemnized by any regular licensed clergymen."

A certificate of such marriages is directed to be filed within thirty days with the clerk of the peace, who is to record the same.(s)

Upon the application of any persons desiring to enter into the marriage state, the lieutenant-governor or commander in chief of Nova Scotia may direct licenses to the duly ordained and setiled ministers of any congregations of Christians dissenting from the church of England, anthorising such minister to solemnize marriage between such persons without publication of banns, according to ihe forms of the church or religious persuasion to which such minister shall belong, in the same manner as licenses are now granted to clergymen of the established church. But the man or woman to be married without publication of banns shall belong to the same persuasion of Christians to which the minister to whom they shall require such license to be directed shall belong.(t)

1 Vict. c. 17, (171h April, 1838,) enacts that all marriages theretofore celebrated in the island of Cape Breton, bona fide, or which have

[ocr errors]

(0) 1 Burge on Foreign Law, 176.
(P) Ante, p. 46–48.
(9) 33 Geo. 3, c. 5, s. 1.

(r) 35 Geo. 3, c. 2.
(s) Sects. 2 and 3.
(1) 2 Will. 4, c. 31.

been contracted by civil agreement before one or more witnesses, and wherein the parties did truly and honestly believe themselves to be entering into the marriage contract, and where the parties so married have cohabited together as man and wife by reason and virtue thereof, shall be deemed and taken, and are thereby declared to be, from the time of the entering into such marriage contract, for all intents and purposes whatsoever valid and lawful, as if the same had been solemnized with all the forms and requisites required by law.

By the 3 Vict. c. 94, the act 2 Will. 4, relating to marriage licenses is continued for one year, from 27th March, 1840, and thence to the end of the then next session of the general assembly.

New Brunswick.]-By the law of New Brunswick,(u) “the intention of the parties making a contract of marriage being made known to the parson, vicar, curate or other person in holy orders of the church of England, in the town or parish where they respectively reside; or in case there be no person *in holy orders in

*56 such town or parish, then to a justice of the peace, pro

[ clamation thereof shall be made by such person in holy orders at some church, chapel, or other public place of meeting for religious worship in the town or parish, or towns or parishes, where such parties and each of them respectively reside, during the time of divine service, on three Sundays successively; or in case there shall be no person in holy orders of the church of England, such justice of the peace shall cause a notification of such banns of matrimony in writing, subscribed with the hand of such justice of the peace, to be affixed to some visible part of such church or chapel or other public place of meeting for religious worship, or some other public building, to be directed and appointed by such justice of the peace and situate as aforesaid, on three Sundays successively; and if there shall be no lawful impediment or objection after such publication or notification of banns as aforesaid, it shall be lawful for such or any other parson, vicar, curate, or other person in holy orders of the church of England, or any such justice of the peace as aforesaid, where there shall be no parson, vicar, curate or other person in holy orders of the church of England as aforesaid, and they are hereby respectively authorised to solemnize and take the acknowledgment of marriage between such parties.” Provided that in case they, or either of them, are within the age of twenty-one years, consent ihereto shall be first had of the father or guardian of the party or parties within the age last mentioned.” It provides also “ that any marriage so to be solemnized by any such justice of the peace shall be solemnized and performed in the manner and form which shall be directed by the governor.”(u) A penalty was imposed on any person other than a clergyman of the church of England or justice of the peace, assisting in any marriage contrary to the act, which did not extend to ministers of the kirk of Scotland solemnizing marriages between persons of that communion, nor to Quakers, in case both parties to the marriage were Quakers, nor to Roman Catholic priests between persons of that communion. But "no justice of the peace can celebrate a marriage

(u) 31 Geo. 3, c. 5.

General Assembly of New Brunswick, vol. 1, (0) 31 Geo. 3, c. 5, & 1. Acts of the pp. 170, 171.

without a *commission from the governor. And then [ *57


only when no clergymen of the church of England resides and officiates in the parish.(x)

4 Will. 4, c. 30, an act for the further rezulation of the formation of the court of governor and council, for the determination of all suits and controversies touching and concerning marriage and divorce.

By 4 Will, 4, c. 46, s. 1, it is enacted, that nothing contained in stat. 31 Geo. 3, c, 5, shall extend to prevent any minister or teacher of any denomination of Christians in this province, such ministers or teachers not being engaged in any secular calling, and being Britishborn subjects, actually resident in the province, chosen and elected or licensed, and having taken the oaths agreeably to the directions and provisions of the act, 26 Geo. 3, c. 4, from celebrating and solemnizing marriage agreeably to the forms and usages of their respective churches or denomination, such minister being licensed by the governor for that

purpose. Sect. 2. Every marriage solemnized under this act shall be in the presence of two or more credible witnesses, besides the minister who shall celebrate the same, and certificate to be made, attested, transmitted and registered as required by 52 Geo. 3, c. 21, and 54 Geo. 3, c. 12.

Sect. 3. No marriage shall be solemnized by any minister, teacher or ordained person, thereunto authorised either by the 31 Geo. 3, c. 5, or this act, until after proclamation shall be made, with an audible voice, of such intended 'marriage, in some church, chapel, or other place of meeting for religious worship, in the town or parish where such parties or one of them reside, during the time of divine service, except a license be first had and obtained therefor under the hand and seal of the governor or commander in chief.

i Vict. c. 42, confirmed by order in council, dated 5th November, 1838, it is enacted, that any ordained person, minister or teacher, duly authorised or licensed to solemnize marriage, either under 31 Geo. 3, c. 5, or 4 Will. 4, c. 46, entitled "An act to extend the privilege of solemnizing marriage to all ministers or teachers of the several religious congregations in this province,” may solemnize marriage between any persons, whether or not such persons be of the communion or denomination of the ordained person, minister or teacher solemnizing the marriage, any thing in either of the said recited acts to the contrary notwithstanding, subject nevertheless in all other respects to the respective regulations and provisions of the said recited acts.

Prince Edward's Island.]—By an act of the legislature of Prince Edward's Island, “ marriages which had theretofore been solemnized by any clergymen or minister of the gospel officiating as such, or by any justice of the peace, or other lay person, either by virtue of license from any governor, lieutenant-governor, or other commander in chief of the island, or by publication of banns, or otherwise, where such marriages have been solemnized in the presence of one or more credible witness or witnesses, and where the parties so married have

(2) 8 Geo. 4, c. 9, s. 1.

« ÖncekiDevam »