By the Marriage Act, 6 & 7 Will. 4, c. 85, s. 39, 'Every person who after the said first day of March (1837), shall knowingly and wilfully solemnise any marriage in England, except by special licence, in any other place than a church or chapel in which marriages may be solemnised according to the rites of the Church of England, or than the registered building or office specified in the notice and certificate as aforesaid, shall be guilty of felony (except in the case of a marriage between two of the Society of Friends, commonly called Quakers, according to the usages of the said society, or between two persons professing the Jewish religion, according to the usages of the Jews), and every person who in any such registered building or office shall knowingly and wilfully solemnise any marriage in the absence of a registrar of the district in which such registered building or office is situated, shall be guilty of felony: (e) and every person who shall knowingly and wilfully solemnise any marriage in England after the said first day of March (except by licence) within twenty-one days after the entry of the notice to the superintendent registrar as aforesaid, [or if the marriage is by licence, within seven days after such entry,] (ƒ) or after three calendar months after such entry, (e) shall be guilty of felony.'(g)

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Sec. 40. Every superintendent registrar who shall knowingly and wilfully issue any certificate for marriage after the expiration of three calendar months after the notice shall have been entered by him as aforesaid, or any certificate for marriage by licence before the expiration of seven days after the entry of the notice, or any certifi cate for marriage without licence before the expiration of twenty-one days after the entry of the notice, (h) or any certificate, the issue of which shall have been forbidden as aforesaid by any person authorised to forbid the issue of the registrar's certificate, or who shall knowingly and wilfully register any marriage herein declared to be null and void, and every registrar who shall knowingly and wilfully issue any licence for marriage after the expiration of three calendar months after the notice shall have been entered by the registrar as aforesaid, or who shall knowingly and wilfully solemnise in his office. any marriage herein declared to be null and void, shall be guilty of felony.'

Sec. 41. Every prosecution under this Act shall be commenced within the space of three years after the offence committed.'

Sec. 42. If any person shall knowingly and wilfully intermarry after the said first day of March, under the provisions of this Act, in any place other than the church, chapel, registered building, or office, or other place specified in the notice and certificate aforesaid, or without due notice to the superintendent registrar, or without certificate of notice duly issued, or without licence, in case a licence is necessary under this Act, or in the absence of a registrar or superintendent registrar, where the presence of a registrar or superintendent registrar is necessary under this Act, the marriage of such persons, except in any case hereinafter excepted, shall be null and void: pro

(e) See the 19 & 20 Vict. c. 119, s. 9, &c. (f) The part within brackets is repealed by 37 & 38 Viet. c. 35.

(g) This is a felony for which no punish

ment is provided; it is therefore punishable under the 7 & 8 Geo. 4, c. 28, s. 8, and 1 Vict. c. 90, s. 5.

(h) See the 19 & 20 Vict. c. 119, s. 9, &c.

vided always, that nothing herein contained shall extend to annul any marriage legally solemnised according to the provisions of an Act passed in the fourth year of His late Majesty George the Fourth, entituled, "An Act for amending the laws respecting the solemnisation of marriages in England."

By the 1 Vict. c. 22, s. 3, 'Every superintendent registrar, who shall knowingly and wilfully issue any licence for marriage after the expiration of three calendar months after the notice shall have been entered by the superintendent registrar, as provided by the said Act for marriages, (j) or who shall knowingly and wilfully solemnise, or permit to be solemnised in his office any marriage in the last recited Act declared to be null and void, shall be guilty of felony.'

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The 12 Geo. 3, c. 11, confirms the prerogative of the Crown to superintend and approve of the marriages of the royal family. (1) The first section enacts, That no descendant of the body of King George the Second, male or female (other than the issue of princesses who may have married, or may hereafter marry, into foreign families), shall be capable of contracting matrimony without the previous consent of His Majesty, his heirs, or successors, signified under the great seal, and declared in council (which consent, to preserve the memory thereof, is hereby directed to be set out in the licence and register of marriage, and to be entered in the books of the privy council); and that every marriage or matrimonial contract of any such descendant, without such consent first had and obtained, shall be null and void to all intents and purposes whatsoever.' (m) Provision is then made. for a marriage, without the royal consent, of any such descendant, being above twenty-five years of age, after notice to the privy council, and the expiration of twelve months after such notice; in case the two Houses of Parliament do not before that time expressly declare their disapprobation of the marriage. (n) The third section of the statute enacts, That every person who shall knowingly or wilfully presume to solemnise, or to assist, or to be present at the celebration of any marriage, with any such descendant, or at his or her making any matrimonial contract, without such consent as aforesaid first had and obtained, except in the case above mentioned, shall, being duly convicted thereof, incur and suffer the pains and penalties, ordained and provided by the statute of provision and præmunire made in the sixteenth year of the reign of Richard the Second.'

Upon the trial of any offence mentioned in this chapter the defendant may, under the 14 & 15 Vict. c. 100, s. 9, be convicted of an attempt to commit the same, and thereupon may be punished as if he had been convicted on an indictment for such attempt.

(j) 6 & 7 Will. 4, c. 85.

(2) 1 East, P. C. c. 13, s. 7, p. 478.

(m) See the Sussex Peerage Case, 11 Cl. & F. 85. (n) Sec. 2.

CHAPTER THE EIGHTH.

OF KIDNAPPING, AND CHILD-STEALING.

SEC. I.

Of Kidnapping.

THE stealing and carrying away, or secreting of any person, sometimes called kidnapping, is an offence at common law, punishable by fine and imprisonment. (a)

The forcible abduction or stealing and carrying away of any person, by sending him from his own country into some other, or to parts beyond the seas, whereby he is deprived of the friendly assistance of the laws to redeem him from such his captivity, is properly called kidnapping, and is an offence of a very aggravated description.1 Its punishment at common law is, however, no more than fine and imprisonment; though, as has been remarked concerning it, the offence is of such primary magnitude that it might well have been substituted upon the roll of capital crimes, in the place of many others, which are there to be found. (b)

The 31 Car. 2, c. 2 (the celebrated Habeas Corpus Act), makes provision against any inhabitant of Great Britain being sent prisoner to foreign countries. The twelfth section enacts, that no subject of this realm, being an inhabitant or resiant of England, Wales, or the Town of Berwick-upon-Tweed, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier or into parts, garrisons, islands, or places beyond the seas, within or without the dominions of His Majesty. Such imprisonment is then declared to be illegal; and an action for false imprisonment is given to the party, with treble costs, and damages not less than five hundred pounds. The section then proceeds thus: And the person or persons who shall knowingly frame, contrive, write, seal or countersign, any warrant for such commitment, detainer, or transportation, or shall so commit, detain,

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imprison, or transport, any person or persons, contrary to this Act, or be any ways advising, aiding, or assisting therein,' being lawfully convicted thereof, shall be disabled from thenceforth to bear any office of trust or profit within England, &c., or the dominions thereunto belonging, and shall incur the pains, &c. of the statute of præmunire, 16 R. 2, and shall be incapable of any pardon from the King of such forfeitures or disabilities. There are some exceptions in the Act relating to the transportation of felons: and the sixteenth section provides, that offenders may be sent to be tried where their offences were committed, and where they ought to be tried. The seventeenth section enacts, that prosecutions for offences against the Act must be within two years after the offence committed, if the party grieved be not then in prison; and if he be in prison, then within two years after his decease, or delivery out of prison, which shall first happen.

By the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), sec. 187, The master of or any other person belonging to a British ship, shall not wrongfully force on shore and leave behind, or otherwise wilfully and wrongfully leave behind, in any place, on shore or at sea, in or out of Her Majesty's dominions, a seaman or apprentice to the sea service before the completion of the voyage for which he was engaged or before the return of the ship to the United Kingdom, and if he does so he shall in respect of each such offence be guilty of a misdemeanor.'

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By sec. 188, The master of a British ship shall not discharge a seaman or apprentice to the sea service abroad, or leave him behind abroad, ashore or at sea, unless he previously obtains, endorsed on the agreement with the crew, the sanction, or in case of leaving behind, the certificate' of a superintendent, British consular officer, or two merchants resident at the place, stating the cause of the seaman being left behind, and the section continues: 'If a master acts in contravention of this section, he shall be guilty of a misdemeanor; and in any legal proceeding for the offence, it shall lie on the master to prove that the sanction or certificate was obtained or could not be obtained.'

Where on an indictment on the 5 & 6 Will. 4, c. 19, against a master of a vessel for leaving one of his crew at Quebec, in Lower Canada, for the defence a certificate stating that the defendant appeared before E. B. a commissioner for carrying into effect the imperial Act of the 5 & 6 Will. 4, c. 19, respecting merchant seamen, and being duly sworn, said that the seaman in question did desert from the vessel while at Quebec, and was then absent without leave, it was held that this certificate was insufficient. It did not state the facts as ascertained by the proper authority, but merely proved that the captain swore certain things before him. The Act required the proper officer to certify that the truth is so, not that another deposed to it. (c)

The indictment alleged that the defendant was master of a merchant ship called the Sarah Charlotte, belonging to a subject of the United Kingdom, namely, J. H., and that E. W. and H. G. were persons belonging to the crew, and on board the said ship, duly engaged (c) R. v. Smison, 1 Cox, C. C. 188, Commr. Bullock, after consulting the Recorder.

to serve in a voyage, which was not then completed; and that one. E. P. was Her Majesty's consul at Bahia, and that the defendant at Bahia unlawfully, wilfully, and wrongfully did leave the said E. W. and H. G. behind on shore, before the completion of their voyage, on the plea that they were not in a condition to proceed on the voyage, he not having obtained a previous certificate in writing of the said consul or of any such functionary of their not being in such condition, there being time to obtain such certificate. (d) It appeared from the evidence for the prosecution, that E. W. and H. G. were both ill when the vessel put into Bahia on her voyage, and went ashore, and saw the doctor, who said they were not sick enough to be left on shore, and go to the hospital, as they wished; they then went to the English consul, who said he could do nothing without the doctor's certificate, and the captain then said they might take his boat and fetch their things ashore, and keep out of the consul's sight till the ship had sailed. They did so, and the captain sent them some dollars by a passenger. For the defence it was shewn that E. W. and H. G. asked the captain's leave to go ashore to see the doctor or consul, as they did not wish to stay in the ship, not being able to do their duty, and that the captain said he could not put them on shore till he had seen the consul; that they went ashore, and came again and asked for their clothes, and the mate, believing that they had got their discharge, though they did not say so, let them have them; that they were very ill, and if they had not gone on shore at Bahia and got medical advice, one of them would have died; that the consul refused them a certificate, and the passenger, thinking it was a cruel refusal on his part, gave them the dollars out of his own pocket, to relieve them on shore, and did not pay them as the agent of the captain. The collector of customs of the port of Harwich produced a certificate of the registry of the ship with the name James Howard in it, which he knew to be his signature, but did not see him write it: the declaration was signed by him. He knew Howard personally. He lived near Harwich, and was the proprietor of several ships. He did not know where he was born: he was a British subject; he knew he was so by the declaration which he had made. He believed him to be an Englishman. Cresswell and Coleridge, JJ., were of opinion, first, that the allegation of ownership was a material allegation, and must be proved as laid; secondly, that the 41st (e) and 42nd sections of the 5 & 6 Will. 4, c. 19, did not create separate offences, but that they should be taken together, and were intended to shew that certain conduct on the part of the seaman will not excuse the captain, unless he produce the required certificate; and therefore, thirdly, that on this indictment, which charged the defendant with wrongfully and wilfully leaving behind him two persons belonging to his crew, the only answer he could give would be either to prove the certificate, or shew the impossibility of obtaining it; and not having done either of these things, if the jury believed the evidence, he must be found guilty. (f)

(d) The count concluded with an averment that the defendant was found within the jurisdiction of the Central Criminal Court.

(e) Quære, 40th.

(f) R. v. Dunnett, 1 C. & K. 425.