Priestly, and Mary his Wife, against Jane Wynne Hughes, an Infant, and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1809 |
| Date | 01 January 1809 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 903
IN THE COURT OF KING'S BENCH.
REPORTS of CASES ARGUED and DETERMINED in the COURT of KING'S BENCH. By EDWARD HYDE EAST, Esq. of the Inner Temple, Barrister at Law. Yol. XI. Containing the Cases of Easter, Trinity, and Michaelmas Terms, in the 49th and 50th Years of GEORGE III. 1809. [1] cases aegued and determined in the court of king's bench, in easter term, in the forty-ninth year or the eeign of george III. priestly, and mary his Wife, against jane wynne hughes, an Infant, and others. 1809. All marriages, whether of legitimate or illegitimate children, are within the general provisions of the Marriage. Act, 26 G. 2, c. 33, which requires all marriages to be by banns or licence: and by three Judges a marriage of an illegitimate minor had by licence with the consent of her mother is void by the llth section ; the words father and mother in that section meaning legitimate parents : by one Judge it is casus omissus in the Act, and the marriage good. Upon a bill filed, which came on to be heard before the Master of the Rollsy wherein it appeared that the plaintiff Mary claimed certain estates of considerable value in the counties of Merioneth and Carnarvon, as heiress at law of one Zacheus Hughes, who had an only son John Wynne Hughes, who died in the lifetime of his father; the principal question turned upon the validity of that son's marriage, whose lawful issue the defendant Jane Wynne Hughes claimed to be; and his Honour directed the following case to be made for the opinion of this Court. [2] On the 9th of September 1792, a marriage was solemnized in the parish church of Denis, in the county of Carnarvon, between John Wynne Hughes, then above the age of 21 years, and Jane Hughes, (one of the defendants,) then an infant of the age of 16 years, the illegitimate child of one Jane Roberts, single woman, by Thomas Jones, who died several years before the said marriage. The marriage was had by licence, and without the publication of banns, but the licence was obtained and the marriage had with the consent of Jane Roberts, but without the consent of any guardian of the person of Jane Hughes appointed by the Court of Chancery. After the marriage John Wynne Hughes and Jane Hughes had issue the defendant Jane Wynne Hughes, and no other child. On the 30th of January 1795 John Wynne Hughes died; and on the 10th of February 1796 Zacheus Hughes, the father of John Wynne Hughes died intestate, and seised in fee of certain real estates. The question was, whether the marriage between John Wynne Hughes and Jane Hughes the mother, on the 9th of September 1792, in manner aforesaid, were a good and lawful marriage, to entitle Jane Wynne Hughes to succeed as heir to the real estates of which Zacheus Hughes died seised; or whether such marriage were not void by the Marriage Act 26 Geo. 2, c. 33. This case was first argued in Easter term 48 Geo. 3, by Owen for the plaintiffs, and Williams Serjt. for the defendants; and again in Hilary term last by Lens Serjt. for the plaintiffs, and the Attorney General for the defendants. The Slat 26 Geo. 2, c. 33, for Better Preventing of Clandestine Marriages, prescribes (s. 1,) the manner and place in [3] which banns of matrimony shall be published, 903 904 PRIESTLY V. HUGHES U EAST, 4. and enacts, "That all other the rules prescribed by the rubrick concerning the publication of banns, and the solemnization of matrimony, and not hereby altered, shall be duly observed." Sect. 3 provides that no minister shall be punishable for solemnizing marriages of infants " without-consent of parents or guardians, whose consent is required by law, unless he shall have notice of the dissent of such parents or guardians;" and such dissent publicly declared at the time in the church where the banns are published shall avoid them. Sect. 4 regulates the granting of licences of marriage by any Ordinary or other person having authority to grant them. And sect. 6 saves the right of the Archbishop of Canterbury to grant special licences. Sect. 8 enacts that " all marriages solemnized in any other place than a church or such public chapel, unless by special licence as aforesaid, or that shall be solemnized without publication of banns or licence of marriage from a person having authority to grant the same first had, shall be null and void to all intents and purposes whatsoever." And then sect. 11 (on which the question turned) enacts, that all marriages solemnized by licence, " Where either of the parties (not being a widower or widow) shall be under the age of 21 years, which shall be had without the consent of the father of such of the parties so under age, (if then living,) first had and obtained ; or, if dead, of the guardian or guardians lawfully appointed, or one of them; and in case there shall be no such guardian or guardians, then of the mother, if living and unmarried; or if there shall be no mother living and unmarried, then of a guardian of the person appointed by the Court of Chancery; shall be absolutely null and void to all intents and [4] purposes whatsoever." Sect. 12 reciting that the guardian or mother of the party so under age, may be non compos, or beyond seas, or unduly refuse their consent to a proper marriage, enables the Lord Chancellor, &c. on petition to authorize the same, as if such the guardian or mother had consented. Sect. 15 gives a form for the marriage register required to be kept, which mentions the "consent of parents, guardians," &c. The questions made in argument were two; 1st, whether illegitimate children were bound by all or any of the provisions of the Marriage Act, and particularly by those in the llth section: and if they were, then, ,2dly, whether the consent of a natural father or mother to the obtaining of a marriage licence for their infant child would satisfy the words father and mother, as used in that clause. For the plaintiffs it was contended, that the 8th section, enacting that all marriages solemnized without banns, or licence, should be void, necessarily included the marriages of illegitimate as well as of legitimate children; and both were equally within the general policy of the law, which was for the prevention of clandestine marriage, and to protect infants from surprize and imposition in contracting matrimony. The Act is framed with reference to the ancient approved usages and discipline of the Church as to the manner of celebrating marriages; the common and regular manner of doing which is by banns, and in that mode of celebration a bastard would have no more difficulty than any other person. But the Act also recognizes another mode, by licence, which was practised before in the Church, not as a matter of right, but indulgence granted, upon special application and for good cause ; and for which the consent of lawful [5] parents, authenticated upon oath, was an indispensable requisite; on pain of avoidance of the licence, as well as of ecclesiastical punishment (a). Then the Act allowing of marriages by the one mode as well as by the other, also imposes a condition upon the party obtaining the licence, which must be complied with in order to make it effectual, and that, by the llth section, is the consent of the father of such party, if living; or, if dead, of the guardian lawfully appointed; or if no such guardian, then of the mother, if living and unmarried; or, if no such mother, then of a guardian appointed by the Court of Chancery. Now it is no argument to say that if some of these required consents cannot be obtained by a bastard, therefore he is absolved from thp necessity of having any consent whatever for obtaining bis licence; for the 8th section having first avoided all marriages solemnized without banns or licence; which would clearly include the marriages of bastards; the llth section avoiding all marriages by licence, unless with the consent therein required, must necessarily also include all such persons. Nor will it follow, if the words, father, guardian lawfully appointed, and mother, used in that clause, must be confined to legitimate father and mother, and guardian appointed by a legitimate father, that a bastard cannot be married by (a) Canon, 101, 103, 104. 2 Burn's Eccl. Law, tit. Marriage-Licence. 11 EAST, 6. PBIESTLY V. HUGHES 905 licence; because a guardian may still be appointed...
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