The parish register is not the only legitimate proof of the fact of marriage, though in general it may be the most satisfactory; one who has been present at the solemnity is as competent to speak to that fact, as the register itself; for there is no principle of evidence which makes the register indispensably necessary as a higher species of proof; nor is there any provision of that kind in the mar riage-act, one great object of which was to facilitate and preserve as much as possible, the evidence of marriages, not to limit or narrow the proofs; and the registration is not essential to the legality of a marriage. The same remark may be made on the testimony of the attesting witnesses in the marriage-entry, as compared with that of any other persons who attended the wedding; the evidence of the former is not of a higher order, nor is it to be resorted to as in any degree superior to the evidence of the other class of witnesses, The entry in the marriage-register proves a marriage, Proof of identity. but not that the parties married are the persons, whose marriage is in question. Some evidence of identity, therefore, will be necessary; and this may be proved in various different ways. It may be proved, for instance, by some person, acquainted with the parties, who was present at the marriage. This is one mode; and such a witness is fully as competent as any of the persons who officiated at the ceremony; since it must constantly happen, that neither the minister, nor the clerk, nor any of the subscribing witnesses, have been since acquainted with the married couple, in which case they would not be able to prove the identity. Another mode of proving the identity is by proof of the handwriting of the parties in the original register;* and The expressions used by Mr Justice Buller, in the report of the case of Birt v Barlow, seem at first sight to imply, that if the origina 150 151 this also may be satisfactorily proved by persons acquainted with the parties and their handwriting, without the evidence of either of the subscribing witnesses named in the register. There appears to be no peculiar advantage, that would result from calling such a subscribing witness. The reason, why the evidence of a subscribing witness is indispensable in the case of a deed or other private document, will not in any degree apply to this subject, nor are the cases in the least analagous; for there the testimony of the subscribing witness is necessary as antecedent proof, and for the purpose of introducing the document in evidence; on the contrary, the register proves itself; if it is directed to be kept as a public book, and is accompanied with every means of authenticity; it may be considered in the nature of a record, and need not be produced, nor proved by subscribing witnesses.(1) And if a subscribing witness were called, what in ordinary cases would he be able to prove? Perhaps, he may never have seen either of the parties at any other time except at the marriage; or, perhaps, he may never have seen any other specimen of their handwriting, besides their signature in the register; so that, in truth, for the purpose of proving the handwriting, and to establish the identity of the parties, a subscribing witness may be one of the most ill-informed and useless witnesses that can be produced. In addition to these proofs, there are several other modes of ascertaining the identity of the parties. Suppose, as Lord Mansfield said in the case of Birt v. Barlow, the bell-ringers were called, and were to prove that they (1) 1 Doug. 174. by Lord Mansfield, is produced, the subscribing witnesses are the proper persons to be called, to prove the handwriting. He is reported to have said, the original register is not necessary to be produced; and it is only where that is required, that the subscribing witnesses must be called." rung the bells, and came immediately after the marriage, and were paid by the parties; or suppose persons cailed, who were present at the wedding-dinner, and there saw the parties treated as the married couple; or suppose it were proved, that the person, whose maiden name is mentioned in the register, always bore that name till the day of marriage, but on that day and ever since has borne the plaintiff's name; all these, and many others that might be mentioned, are distinct marks of identity, Defendant's We have before seen, that the reputation of marriage, and cohabitation of the parties as man and wife, are not acknowledg ment of plainsufficient evidence of the fact of marriage, to support this tiff's marriage. action. In the case of Morris v. Miller, (1) therefore, where it was proved, that articles of settlement had been executed by the plaintiff and his wife, purporting to be made after the marriage with the privity of her relations, that she always bore the name of his wife, and was so considered by the relations on both sides; and that the parties cohabited as man and wife; this evidence was held to be insufficient. It appears further, from the report of this case, that there was some evidence of an acknowledgment by the defendant, of the adultress being the plaintiff's wife; "the defendant having confessed to the landlord of the lodgings (to which he resorted after the elopement) that she was the wife of Captain Morris (the plaintiff,) and that he had committed adultery with her." This was stated to be the evidence on one side, and not questioned on the other. Upon this point, the plaintiff's counsel contended, that such a confession was better than the evidence of witnesses, and rendered strict proof of the fact of marriage unnecessary; and that a confession would be good evidence of the marriage on a prosecution for bigamy. Lord Mansfield, in delivering the judgment of the court, has not taken any notice of this circumstance; excepting (1) 4 Burr. 2057. 152 in one passage, in which he stated, (alluding probably to the argument which had been used,) that in prosecutions for bigamy a marriage in fact must be proved. Lord Mansfield, and the rest of the court, appear to have considered this evidence, not as an unqualified and clear acknowledgment of the marriage, but rather as a mere admission that the person in question was reputed to be the plaintiff's wife, and therefore that it could not dispense with the strict proof of an actual marriage. This appears from the statement of this part of the case by Mr. Justice Buller;(1) after citing the case of Morris v. Miller, he says, "so where the defendant was surprised at a lodging with the plaintiff's wife, and on being asked where Major Morris's wife was, he answered, "in the next room," this was holden not to be sufficient, for it is only a confession of the reputation, and that she went by the name of the defendant's wife, and not a confession of 'he fact of the marriage." The decision, therefore, in the case of Morris 2. Miller does not warrant the conclusion, that a distinct and full acknowledgment of the marriage, made by the defendant himself, will not be evidence of the fact as against him, and sufficient to dispense with the more formal and strict proof of marriage; but, on the contrary, an oppo site inference may properly be collected from the statement of Mr. Justice Buller, namely, that such an acknowledgment is good evidence of the fact of marriage against a party acknowledging. And a variety of instances might be mentioned, in which the strict and regular proof of a fact has been considered unnecessary, when the party, against whom it would otherwise be requisite to prove the particular fact, has himself admitted it to be true.(2) Even in the case of a prosecution for bigamy, with which the action for adultery has been often compared in one respect, as requiring the same strictness of proof, the (1) Bull. N. P. 28. (2) See Maltby v Christie, 1 Esp. N. P. C. 340. cited by Ld. Ellenborough in 16 East, 193. Dickinson v Coward, 1 Barn & judges have held, that the prisoner's acknowledgment of the first marriage is admissible as evidence of that fact. (1) (a) Here, it is true, the confession relates to a fact, which must necessarily be within the prisoner's knowledge; whereas in the other case, it may be said, the defendant might have spoken vaguely and without any means of information. Still, however, upon the general principles of evidence, an acknowledgment of the fact of marriage seems admissible, as proof of that fact against the defendant; though, perhaps, in some cases, it may be entitled to a slight degree of weight, and it would certainly be highly imprudent and perilous for the plaintiff to rest upon such proof, when more satisfactory evidence can generally be supplied. 153 With respect to the proof of the act of adultery, it is Proof of adul enough to say, that whatever convinces the jury of the con- tery. summation of the act, will be sufficient for this purpose. Any number of adulterous acts may be proved within the limits of the time specified in the declaration; and in addition to this, with a view of explaining the nature of the intimacy between the parties, indecent familiarities may be proved even earlier than the first-mentioned day, though not a previous criminal connection.(2)(b) (1) Truman's case, 1 East, P. C. 470. Russell, vol. 1. p. 300. S. In this case there was also produced a copy of a proceeding against the man and woman in a Scotch Court for having contracted marriage improperly. Two of the judges thought that the prisoner's acknowledgment did not rest singly by itself, but was backed by the copy of the pro- (2) Duke of Norfolk v Ger- (a) But in The People v Humphrey, 7 Johns. Rep. 314. it was held that a marriage in fact must be proved, and that the mere confession of the prisoner was not sufficient evidence. (b) Gardner v Madeira, 2 Yeates' Rep. 466. acc. |