CORRESPONDENCE.

Nelson Examiner and New Zealand Chronicle, Volume III, Issue 143, 30 November 1844, Page 154

CORRESPONDENCE.

To thk Editor op thb Nblsok Examiner.

Sir — Since writing the letter which you kindly inserted in your paper of last week, I have had the opportunity of consulting a valuable commentary upon colonial and foreign laws, &c, with reference to the validity of the marriage supposed to have been solemnized here by a justice of the peace. May I ask a short space in your columns to state briefly a few points bearing upon this subject? In the first place, then, the marriage law of the British colonies is that which either prevailed in England before the passing of the Marriage Act in 1753, or which has been established by their own municipal laws. Secondly. According to the authority of judicial decisions and text writers, the interventicn of a minister at the celebration of the marriage (before the passing of the Act in 1753) was deemed essential to its validity.

Thirdly. According to the New Zealand Ordinance, a minister (for the purposes of solemnising matrimony) is either one episcopally ordained, or " any minister of any Christian denomination, who had not received episcopal ordination."

However, the tenor of various colonial laws seems to allow that marriages may be celebrated by other individuals, " under circumstances of peculiar and extreme difficulty in procuring a person in holy orders to perform the celebration, &c." But, in the case which has elicited these remarks, no difficulty whatever existed.

Fourthly. It appears that a license should be issued by persons having authority to grant such license; or that banns of marriage Bhould be published three Sundays in succession : and even in those instances where laymen were permitted to officiate, these precautions are insisted upon — licenses issuing from the Governors or other colonial dignitaries, or public notice being affixed to some public building. One or other of these steps is of so much importance that any person, minister or other, solemnizing marriage and neglecting to observe these preliminaries, subjects himself to heavy penalties. By an act passed in the reign of George 11., had the circumstance occurred in England, it would have been held a felony, and have subjected the party officiating to fourteen years' transportation ; and the marriage would have been deemed null and void to all intents and purposes whatsoever. From a careful consideration of the subject, I come to the conclusion that the supposed marriage is altogether void; because there was neither license nor publication of banns, and because it was celebrated neither by a person in holy orders, or supposed orders, there being no circumstances of difficulty to warrant the step taken.

It may be desirable for me to mention, in conclusion, that, unless licenses are procured from those authorised to grant them, banns of marriage must in every instance be published in order to secure the validity of the marriage, and to prevent serious trouble and inconvenience arising.to the parties employed to solemnize the union.

It will give me great pleasure to find myself wrong in the opinion I have expressed ; but, whether I am right or wrong, it is of consequence that we should have the question decided.

I remain, Mr. Editor, Yours, &c, Charles Lucas Reay.

P.S. If any of your subscribers have copies of the following acts, they might help materially to settle the question : — The marriage acts of 7 William IV., and Ist Victoria 1., c. 22.

[The following remarks form part of another communication on the same subject. The late hour at which it came to hand must be our excuse for not inserting it entire. — Ed.] In " Burn's Justice," under the heading of " Poor — Marriage," a case is cited, Doe dem. Britwhistle v. Vardill, in which " it was admitted and laid down by the Court, that in questions as to the validity of a marriage the lex loci must prevail."

The Marriage Ordinance which passed on the 2lßt February, 1842, establishes the lex loci of Nelson, for it declares that " marriages in the [this] colony are governed according to the common law of England." By 4 George IV., c. 76, s. 22, it is provided " That if any person shall knowingly and wilfully intermarry in any other place than a church," or such public chapel where banns may be lawfully published, unless by special license, or shall intermarry without publication of banns or license, " or shall knowingly and wilfully consent to or acquiesce iv the solemnization of such marriage by any person not being in holy orders, the marriage of such person shall be null and void to all intents and purposes whatsoever." And by the same act, s. 21, it is declared that " if any person shall solemnize matrimony in any other place than a church or public chapel wherein banns may be published, unless by special license," or shall solemnize matrimony without publication of banns, or at any other time except between eight and twelve a.m., unless by license, &c, " every such offender shall on conviction be guilty of felony, and transported for fourteen years." It is true that there is a later act than the 4th George IV., but the machinery of it does not exist in New Zealand. Even if it ever should be applicable here, at present the proper " person or persons having authority," are not appointed under it; and therefore it is not the lea tod of Nelson. Besides, J.P.s are not ex officio "registrars of births and marriages/ even at home.

A colonial ordinance has abolished all port charges and dues at the Cape of Good Hope.