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abroad, or in the house of any British subject residing at such factory, as well as from any possibility of doubt concerning the validity of marriages solemnized within ihe British lines, by any chaplain or officer, or other person officiating under the orders of the commanding officer of a British army serving abroad-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 forms required by law. The second section provided, that nothing in this act contained shall confirm or impair, or anywise affect the validity in law of any marriages solemnized beyond the seas, except such as have been or shall be solemnized in the places, form, and manner herein specified and recited. The marriage of an officer, celebrated by a chaplain of the British army, within the lines of the army when serving abroad, is valid under 4 Geo. 4, c. 91, though such army is not serving in a country in a state of actual hostility, and though no authority for the inarriage was previously obtained from the officer's superior in command.(d)
The statute 4 Geo. 4, c, 91, applies where only one of the Parties is a British subject.]—On a question as to the admission of the libel in a suit of nullity of marriage, by Mr. George Lloyd, natural son of Sir William Lloyd, against Mrs. Lloyd, otherwise Mademoiselle Petrijean, it appeared that the parties were married in France on the 26th October, 1837, in two forms: first before the mayor of the arrondissement, according to the code civil of that country, and afterwards at the chapel of the British ambassador at Paris. Mr. Lloyd was a British subject, Mademoiselle Petitjean, a subject of France. The grounds of nullity were, that first, by the law of France, the consent of the father of a man, under twenty-five, was necessary to the validity of his marriage ; that Mr. Lloyd, at the time of the contract, was but twenty-two, and that his father's consent had not been obtained ; secondly, that the stat. 4 Geo. 4, c. 91, for legalizing marriages solemnized at the house of a British ambassador, did not extend to marriages where one of the parties was a foreigner. Dr. Lushington thought that it was unnecessary to consider the first marriage, nor had the law of France been properly proved. With respect to the second marriage, the construction of the statute had not been hitherto deliberately decided by any court after argument. A case had occurred in the court of Chancery, O'Connor v. Ommaney, in which such a marriage had been reported valid by the master; but he (the learned judge) could not find, upon inquiry of the lord chancellor and the master of the rolls, that either had given any judicial decision on the point. The first observation he should make on the statute in question was, that it was a remedial statute, and was therefore to have an extended and not a restricted construction. Then it expressly professed to remedy the grievance and hardship of “all” his majesty's subjects. Again, although it did not expressly provide for marriages where only one of the parties was a British subject, yet on the other hand, there were no words of exclusion. Under these circumstances, by invalidating the marriage, he should confine the
(d) Waldegrave Peerage, 4 Clark & Finn. 649.
sense of the word all, without any words of exclusion. He was therefore clearly of opinion, that the statute might be considered to include marriages where one of the parties was a British subject. He was not unaware of the danger of legalizing in England marriages celebrated in foreign countries; but ihe legislature had thought proper to pass a remedial law, and his duty was merely to administer it. He was of opinion that the validity of the marriage in this case could not be impeached, and consequently that the libel must be rejected.(e)
A marriage solemnized at Antwerp, between two English persons, by a protestant clergyman, appointed by the English government, but without performance of the Belgium ceremonies, is void, and does not come within the-provisions of the stat. 4 Geo. 4, c. 91. In this case, a ward of the court of Chancery, in her eighteenth year, had eloped with a gentleman and been married, on the 15th of July, 1838, in ihe English church at Antwerp, according to the rites of the church of England, before the chaplain of such church, in the presence of the British consul. The parties had been subsequently married in England. On a reference to the master to ascertain when the parties were legally married, he found that the lady was a native of Ghent, and born in October, 1820 ; that the gentleman was a British subject, in his twenty-fourth year at the time of the above marriage. The master then stated, that what is called the code civil is the law in force in Belgium; and that no marriage contracted in Belgium can be valid by reason of there having been a religious ceremony only, but that a civil ceremony is necessary, and that by the 165ih and 166th articles of the code civil, it is provided that marriage shall be celebrated publicly before the civil officer of the domicile of one of the two parties, and certain notices are requisite; but a marriage contracted without these prescribed ceremonies would not be void, but only voidable. That by the 148th article of the code civil, a man before the age of eighieen years and a woman before fifteen cannot contract marriage, and that a son, not having attained twentyfive, cannot contract marriage without the consent of his parents, or in case of no parents, then by a family council of relations or friends. And the master then found that the husband was only twenty-four years of age, and his wife nearly eighteen, at the time of the marriage at Antwerp: and that no civil ceremony whatever took place between them in Belgium. And the master iherefore found, that no valid marriage according to the lex loci was made at Antwerp, by the marriage ceremony performed at the English church on the 15th July, 1838, resting therefore the proof of such finding on the ground that, without proof of a civil celebration of marriage having been done at Antwerp, to give legal validity there to the marriage, no perfect marriage valid according to the lex loci was effected. The master then stated his opinion, that previous to the act 26 Geo. 2, c. 33, the marriage would have been good as an English marriage, celebrated according to the rites of the church of England, by an English chaplain in full orders, between persons both of more than the age of consent, and describing themselves, whether accurately or not, but without fraud, to be both British subjects: that although
(e) Lloyd v. Pelitjean, falsely calling herself Lloyd, Consist. Court, 30th May, 1839.
that act was repealed by the 4 Geo. 4, c, 76, yet by sect. 33 it is made to extend' to England only, so that such marriage solemnized abroad, as it would have been good before the passing of the act 26 Geo. 2, so it would be now good, and therefore he found that a valid marriage did take place between the parties on the 15th July, 1838, at Antwerp, according to the subsisting English law. But if the court should not adopt such view of the case, then that a valid marriage subsequently took place in England. And the master further stated, that there was no ambassador from the British court accredited at Antwerp, nor any British factory; and that the minister who performed the ceremony was appointed by the secretary of state for foreign affairs to officiate at the English church at Antwerp. The petition prayed the confirmation of the master's report so far as it found that the marriage at Antwerp was bad and the subsequent marriage was valid. Sir L. Shadwell, Vice Chancellor, said, it seems to me that this case is now brought forward in a manner which induces me to suppose that any farther inquiry will not alter it. I think the report must be adopted, so far as the master finds the marriage contrary to the lex loci, and so far as that a valid marriage took place in England. My opinion is, that this case is not within the statute 4 Geo. 4, c. 91,(ğ) for that statute provides for the case of a marriage solemnized by a minister of the church of England in the chapel or house of any British ambassador or minister residing within the country to the court of which he is accredited, or in the chapel belonging to any British factory abroad, or in the house of any British subject residing at such factory. Now, as there is no factory or ambassador at Antwerp, the case could not come within that statute. In the judgment of Lord Slowell, in the case of Ruding v. Smith,(h) although the reasoning is very good and very beautiful, so far as it leads to the ultimate conclusion, still when you look at the conclusion, you cannot but see that he is meditating on the difficulties, which he denominates as the insurmountuble difficulties, of effecting a marriage according to the Dutch law. Now in this case there were no insurmountable difficulties to having had a marriage according to the Belgiuin law, and therefore it appears to me that there are no cir. cumstances of exception here operating to take the marriage out of the general rule, that it should have been according to the lex loci.(i) And it having been found by the master void, according to that lez loci, I really think, there being no exception to take it out of the rule, that the master's report must be confirmed as to the first finding, and the subsequent finding as to the English marriage being good, and I think the case is in that state at present, that there can be no iinpropriety in making the decision in that way.(k)
upon an interlocutory application, may direct (h) 2 Hagg. Cons. R. 390, post, pp. 140— an inquiry, in the first place, to ascertain a 142.
fact, as that of marriage, which is necessary (i) See post, pp. 132–140.
for the final decision of the cause. See (k) Keni v. Burgess, Dec. 12th, 5 Jurist, Golden v. Uliate, 5 Jurist, 169; Fulluger v. 166-169; Reg. book A. 1840, fol. 150. Clerk, 18 Ves. 481. Another point decided was, that the court,
SECT. 6.-OF MARRIAGES IN IRELAND,
The first marriage act, 26 Geo. 2, c. 33, and the present marriage acis,(u) being confined to England and Wales, the general matrimonial law of Ireland is that which prevailed in England before the passing of the first act in 1753, except so far as it has been regulated by statutes relating exclusively to Ireland. Marriages in Private Houses.]—By the law of Ireland,
] a marriage had and celebrated by a Roman Catholic priest, in a private house, according to the rites and ceremonies of the Roman Catholic church, between two persons both of the Roman Catholic religion, is valid. It may be celebrated by a Roman Catholic priest, or by a priest of any other denomination, without any restriction as to time or place, either in a private house, or in the church, and in the afternoon as well as at any canonical hour.(6) In Ireland, the marriage of two Roman Catholics, by a Roman Catholic priest, is good, and if a person, at the time of such marriage, declare himself to be a Roman Catholic, and the woinan be a Roman Catholic, this is a good marriage against him; and if he be after'wards tried for bigamy on this marriage (he having been before married to another wife who is still alive, he will not be allowed to set up his supposed protestanism as a defence to the charge. To prove such a marriage, evidence was given that the person who officiated acted as a Roman Catholic priest, and that the marriage (as was usual) took place at his house, and he asked the parties if they were Roman Caiholics, and that they said they were so; that part of the ceremony was in English and part in Latin, and that having asked the man whether he would take the woman as his wife, and the woman if she would take the man as her husband, and each having answered in the affirmative, he pronounced them married. This was held sufficient.(1)
A marriage in Ireland by a clergymen of the established church is good, though it takes place in a private room, either with(c) or without any special license.(d)
A marriage by a dissenting minister in Ireland in a private room is valid.
On the trial of an indictment for bigamy, it was contended on behalf of the prisoner, that the first marriage was illegal, from the clandestine manner in which it was celebrated; and several Irish statutes were cited, from which it was argued that the marriage of dissenters in Ireland ought at least to be in the face of the congregation, and not in a private room. But the recorder is said to have been clearly of opinion that the marriage was valid, on the ground that as before the inarriage act, a marriage might have been celebrated in England in a house, and it was only made necessary, by the enactment of positive law, to celebrate it in a church, some law should be shown, requiring dissenters to be married in a church, or in the face of the
(0) 4 Geo. 4, c. 76; 6 & 7 Wm. 4, c. 85.
(c) Smith v. Maxwell, 1 Carr. & P. 271; 1 Ry. & M. 80.
(d) Wright v. Elwood, 1 Curteis, 49.
congregation, in Ireland, before this marriage could be pronounced to be illegal; whereas one of the Irish statutes, 21 & 22 Geo. 3, c. 25, enacted, that all marriages between protestant dissenters, celebrated by a protestant dissenting teacher, should be good, without saying at what place they should be celebrated.(e)
* Evidence of Marriage.]-As marriages in Ireland may [ *98 ) be had without any celebration in facie ecclesiæ, or in the presence of witnesses, such marriages may be proved by slenderer evidence than is requisite to the proof of a marriage in England. Circumstantial evidence is admissible for that purpose ; and if a fact of marriage be clearly proved by such evidence, the presumption is in favour of the legality of the marriage. Such presumption will not be rebutted by the circumstance of the marriage having been secret as to the precise time when it was solemnized, where the marriage was neither tainted with fraud nor contrary to the policy of the law. A party relying upon the invalidity of a marriage, upon the ground of its having been celebrated by a Popish priest, must prove that fact by clear evidence.(S)
(e) Rex v. Old Bailey, January Ses. taken place accordingly. Nor was this per. sions, 1815, cor. Sir J. Sylvester, Recorder, 1 mitted by the duchess to rest upon the report Russ. on Crimes, 205, 2d ed. The first mar. of the parties, or upon general rumor merely; riage upon which the question arose, took an instrument, purporting to be a certificate place in 1787, at Londonderry; the second of the marriage, was produced to the Duchess marriage was in London, according to the of Rutland, and was shown by her to the ceremonies of the church of England. duke, her husband, whu being satisfied (as
(f) Steadman v. Powell, 1 Addams, R. it should scem by inspection of this certifi. 58. The facts whether the parties had been cate) that the parties were really married, married in Ireland, were briefly as follows: suffered the deceased to retain her situation
- Margaret Steadman, the deceased, was in his wife's service. This certificate was an attendant upon the late Duchess Dow. pleaded to bave been lost or mislaid; it was ager of Rutland, and accompanied her said by the Duchess of Rutland to have been grace to Ireland, whither she proceeded, torn or destroyed, as she understood, on the in the summer of 1784, to join her hus. occasion of some quarrel between the parties. band, the late Duke of Rutland, then in It was further proved, that from and after Ireland, of which kingdoin he had been that time, the deceased was constantly ad. recently appointed lord lieutenant. Powell, dressed by the name and treated as the wife the party in the cause, was at that time in of Powell; that she was permitted by the the service of General Finch, one of his duke and duchess to lie-in at the Phenix grace's aid.de.camps, and living, as such, at Lodge, where she gave birth to a son, who Dublin Castle, or the Phænix Lodge, near was baptized as her lawful issue by Powell; Dublin, the official residences of the Irish that on the return of the duchess from Ire. viceroy ; so that Powell and the deceased, on land, the deceased accompanied her still as the arrival of the latter in Ireland, were mem. an attendant, and continued in her service, bers in a manner of one family. In the sum. uninterruptedly, until compelled to relinquish mer of 1786, the deceased became pregnant, it by bodily infirmity, in the month of Janu. as she said, and as it " was rumoured,” by ary, 1819; that during this whole interval, Powell: on becoming acquainted with which Powell and the deceased acknowledged each
pregnancy, her mistress, the duchess, refused other as husband and wife, and were so re. , to continue her in her service, unless as the ported and taken by all who knew them ;
wife of Powell. It further appears, that Dr. ihat Powell was under the necessity of living Preston (then or soon after Bishop of Ferns,) much apart from the deceased, both whilst at that time private secretary to the duke, he continued in the service of General Finch, interested himself to procure a marriage be. and when, upon quitting it, he became a tween the deceased and Powell, at the request king's messenger, in which capacity he was of the duchess, and caused it to be intimated occasionally absent in foreign parts; but that to the latter, through a fellow servant, that he frequently did, and was permitted at all his marriage with Steadman was necessary times, io cohabit with the deceased, as well to either of the two keeping their places. Å at the several residences of the Duchess of fact of marriage between the parties, to say Rutland, specified in the plea, as elsewhere ; the least, was asserted by themselves, and lastly, that the deceased had iwo other chilwas generally understood by others, to have dren, the issue of her connection with Pow