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Archives provinciales du Nouveau-Brunswick

Fort Havoc (Wallace Hale)

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CAP. V.

An ACT for regulating Marriage and Divorce, and for preventing and punishing Incest. Adultery, and Fornication.

Preamble.

 
WHEREAS, it is necessary, in order to the keeping up of a decent and regular society, that the Matrimonial union be settled and limited by certain rules and restraints; and the state of this Province, requires some provisions in this behalf, as also, for cases of divorce and alimony.

Persons making known to any Clergyhman of the Church of England,

 

or to any Justice of the Quorum

 

their intention of marrying, such Clergyman shall publish the banns three Sundays successively,

 

or such Justice shall advertize the same on three Sundays successively, and if no impediment such or any other Clergyman of the Church of England or such Justice to solemnize Marriage.

 

 

If either party be within 21 years, consent of the father to be first had.

 

Justices to use the form directed by the Governor.

 
I.   Be it enacted by the Lieutenant Governor, Council, and Assembly, That when any persons of lawful age and capacity, to make a contract of Marriage shall make known, to any 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 shall be no Parson, Vicar, Curate or other person, in Holy Orders of the Church of England, in such Town or Parish, then, to any of His Majesty's Justices of the Peace, being of the Quorum, in the County, where they respectively reside, their intention, of making a contract of Marriage, such Parson, Vicar, Curate, or other person, in Holy Orders of the Church of England, shall cause proclamation to be made, with an audible voice, of such intention of Marriage, at some Church, Chapel, or other public place of meeting, for religious worship, in the Town or Parish, or Towns, and 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 Parson, Vicar, Curate or other person, in Holy Orders of the Church of England as aforesaid, such Justice of the Peace as aforesaid, 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, 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 and may 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 authorized 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 thereto be first had of the Father or Guardian of the party or parties within the age last mentioned.   Provided also, that any marriage, so to be solemnized, by any such Justice of the Peace as aforesaid, shall be solemnized and performed, in the manner and form, which shall be directed, by the Governor, Lieutenant Governor or Commander in Chief of the Province.

Penalty for celebrating Marriage before publication, without licence.

 

 

Prosecution to be commenced within twelve months.

 
II.   And be it further enacted, That if any Parson, Vicar, Curate, or other person in Holy Orders of the Church of England, or any such Justice of the Peace as aforesaid, shall presume to solemnize, or celebrate Marriage, between any persons whatsoever, before proclamation, or notification of banns of Matrimony, between them made in form aforesaid, except a Licence be first had, and obtained therefor, by, and under the hand and seal of the Governor, Lieutenant Governor, or Commander in Chief, of this Province, he shall forfeit, and pay to His Majesty, the sum of Twenty Pounds, to be recovered, with costs of suit, by bill, plaint or information, in the Supreme Court of Judicature.   Provided always, that every prosecution, for any offence, penalty, or forfeiture, in this clause contained, shall be commenced, within the space of Twelve Months, after such offence committed, and not afterwards.

Any person other than a Clergyman of the Church of England, or Justices of Peace celebrating or assisting in any Marriage,

 

contrary to the meaning of this Act,

 

to be fined and imprisoned.

Not to extend to Ministers of the Kirk of Scotland,

 

nor to Quakers,

 

nor Clergymen of the Church of Rome.

 
III.   And be it further enacted, That if any person, other than a Parson, Vicar, Curate, or some person in Holy Orders of the Church of England as aforesaid, shall presume to solemnize, or celebrate Marriage, or shall officiate, or assist in solemnizing, or celebrating, or making any Marriage, or Contract of present Marriage, between any persons whatsoever, or if any such Parson, Vicar, Curate, or other person in Holy Orders of the Church of England, or any such Justice as aforesaid, shall solemnize or celebrate Marriage, or shall officiate, or assist, in solemnizing, or celebrating, or making, any Marriage, contrary to the provisions, and the true intent and meaning of this Act, every such offender, who shall be thereof convicted, upon indictment, or information of His Majesty's Attorney General, before the Supreme Court of Judicature, or any Court of Oyer and Terminer, or Gaol delivery, shall for every offence, forfeit and pay a fine to the King, not exceeding One hundred Pounds, nor less than Fifty Pounds, and suffer Twelve Months imprisonment.   Provided always, that nothing in this Act contained, shall exend, or be construed to extend, to prevent any Minister of the Kirk of Scotland, regularly ordained, according to the rights thereof, from celebrating and solemnizing Marriage, agreeable to the forms and usages of the Church, between person of that communion.   Provided also, that nothing herein contained shall extend, or be construed to extend, to prohibit, or restrain, persons called Quakers, from the full and free liberty, of solemnizing Marriage, according to the usages forms and cusoms of that sect, in case both parties to such Marriage are Quakers.   And provided also, that nothing in this Act, shall extend, or be construed to extend, to prohibit, or restrain, any person regularly ordained, in Holy Orders of the Church of Rome, from solemnizing Marriage, agreeable to the forms of their Church, between persons of that communion only.

 
 
IV.   [Repealed by 52 G. 3, C. 21, which makes provisions for the registering of Marriages, and See 54 G. 3, C. 12 requiring parties to sign Certificates.]

All controversies concerning Marriage and divorce to be determined by the Governor and Council,

 

who are constituted a Court for that purpose.

 

Nothing in this Act to control the rights of any Court,

 

 

and no sentence of the Court of Governor and Council to affect the right of action of any person.

 
V.   And be it further enacted, That all causes, suits, controversies, matters and questions, touching and concerning Marriage, and contracts of Marriage, and Divorce, as well from the bond of Matrimony, as divorce, and separation, from bed and board, and alimony, shall, and may be heard, and determined by, and before the Governor and Commander in Chief of this Province, and His Majesty's Council:   And that the Governor, or Commander in Chief, and Council aforesaid, or any five, or more of the said Council, together with the Governor, or Commander in Chief as President, be, and they are hereby constituted, appointed, and established, a Court of Judicture, in the matters and premises aforesaid, with full authority, power, and jurisdiction, in the same:   Provided, and it is hereby declared, that nothing herein contained, shall deprive, diminish, control, obstruct or abridge, or be construed, deemed, or extended, to deprive, diminish, control, obstruct or abridge in any manner, the rights, powers, authority, judicature, or jurisdiction, of the Court of Chancery, or of the Supreme Court of Judicature, or of any Inferior Court of this Province, in, and touching the matters and premises aforesaid, or any of them; and that no sentence, decree, judgment, or proceeding of the said Court of Governor, or Commander in Chief, and Council, in any informaion, prosecution, suit, or process, touching and concerning any Marriage, or contract of Marriage, or Divorce, or alimony, shall take away, annul, bar, suspend, or in any wise alter, or affect the right of action of any person or persons, for any injury or damage, sustained for or by reason, of any breach, of any covenant, or contract of Marriage.

Terms of holding the Court of Governor and Council.

 
VI.   And be it further enacted, That the fixed and stated terms, of holding the said Court, of the Governor and Council, for the purposes and causes herein mentioned, shall be, and commence, on the First Tuesday in February, and the Third Tuesday in July, in each and every year, and shall continue during the space of Ten days.

 
 
VII.   And whereas, The arduous affairs of Government, may render it impossible, for the Governor or Commander in Chief, at all times to preside in person, in the Court aforesaid,
 

The Governor or Commander in Chief to appoint a Deputy in the said Court.

 

 

 

 
Be it further enacted, That it shall and may be lawful, for the Governor or Commander in Chief, by warrant, or commission, under his hand and seal, to depute, constitute, and appoint, the Chief Justice, or either of the Justices, of the Supreme Court of Judicature, or the Master of the Rolls, to preside in his place, and stead, in the said Court, of the Governor and Council, and to have, hold, and exercise all the powers, privileges, authority, and jurisdiction, of the Governor, or Commander in Chief, in the same Court; and that such Deputy, or Vice-President, shall have, hold and exercise all such powers, privileges, authority, and jurisdiction, accordingly, as are hereby given, and granted to the Governor, or Commander in Chief, in the same Court, in all the causes, matters and things therein cognizable by this Act.

 
 
VIII.   And, for the more effectually preventing, and punishing of Incest, Adultery, Fornication, and all acts of lewdness, and unlawful cohabitation, and intercourse between Man and Woman;
Punishment of persons convicted of Incest, &c.

 

 
Be it further enacted, that every person, who shall be hereafter lawfully convicted of any of the crimes aforesaid, before the Supreme Court of Judicature, or any Court of Oyer and Terminer and Gaol Delivery, in this Province, shall be punished, by fine, and imprisonment, or either of them, at the discretion of the Court, in which such offender, or offenders shall be convicted.

Causes of divorce.

 

 

 
IX.   And be it further enacted, That the causes of divorce, from the bond of Matrimony, and of dissolving, and annulling Marriage, are, and shall be frigidity, or impotence, adultery, and consanguinity within the degrees prohibited, in and by an Act of Parliament, made in the Thirty-second year of the reign of King Henry the Eighth, intituled, "An Act, for marriages to stand, notwithstanding precontracts," and no other causes whatsoever.

In case of divorce for Adultery, the issue not to be bastardized, nor the wife barred of dower, &c. unless so adjudged.

 

 
X.   Provided always, and be it further enacted, That in case, of a sentence on divorce, from the bond of Matrimony, or Marriage, for the cause of Adultery, the issue of such Marriage, shall not in any case be bastardized, or in any way prejudiced, or affected, with any disability thereby.   Provided also, That the wife in such case, shall not be, thereby, barred of her dower, or the husband be thereby deprived, of any tenancy, by the courtesy of England, unless it shall be so expressly adjudged, and determined, in and by such sentence of divorce.

Former Law repealed.

 

 
XI.   And be it further enacted, That an Act, made and passed in the Twenty-seventh year, of His present Majesty's reign, intituled, "An Act, for regulating Marriage and Divorce, and for the preventing and punishing Incest, Adultery, and Fornication," be, and the same is hereby, repealed, and declared to be utterly null and void.*

________________

C. 5. Anno XXXI. Geo. III.   A. D. 1791.

________________

[*   The Act thus repealed does not appear, either in the Index or the text, of Berton's 1838 publication of "The Acts of the General Assembly," and the fact that no reference number is above cited would seem significant — the repealed Act may have been discarded.]


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