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the libel in the first place pleaded the marriage of the father and mother of the party in the suit in October, 1799; it pleaded the birth of several children, and amongst others of a daughter born on the 4th January, 1807, and baptized Anna Rachel Louisa, and who was the first wife of Mr. Sherwood. It then pleaded the birth of another daughter on the 14th June, 1812, who was baptized Emma Sarah, and who was the party in the cause; so that, at the date of the marriage, she was not a minor but of full age. The libel then pleaded the marriage of the elder of the two sisters on the 17th July, 1827, at the parish of St. George, Bloomsbury, by license; and that the issue of that marriage were two children, both living. It pleaded the death of Mrs. Sherwood, the first wife, on the 3d April, 1834, and then set forth the law applicable to the question before the court, namely, the law and canons ecclesiastical, then in full force in this kingdom, particularly the 99th canon of 1603, as to marriages within the prohibited degrees. It then pleaded, that by the first table of the degrees of marriage, set forth by Archbishop Parker, in the year 1563, it is expressly ordered that a man may not marry his wife's sister; and it then referred to the canon and table. The 10th article of the libel pleaded, that immediately after the marriage, for the pur-. pose of preventing the marriage coming to the knowledge of the father and her family, and as previously arranged, Miss Ray returned *to her father's house, and continued to live and reside [ *172 ] with him and his family as she had theretofore done; that

she and Mr. Sherwood concealed from them the fact of marriage, as well as their previous intention to be married; and that the same was not discovered till the 22d of August following, the citation being extracted on the 24th of that month, the intervening day between the discovery and the 24th being a Sunday, so that no step could have been taken earlier after the marriage was discovered; and the last article concluded with praying "that the marriage so had may be pronounced and declared to have been and to be absolutely null and void to all intents and purposes in the law, from the beginning, by reason of incest, in pursuance of and in conformity with the aforesaid 99th canon, and laws ecclesiastical of this realm; and that the parties proceeded against may be condemned in the costs of the proceedings. The marriage was pronounced to be void by the Arches Court,(p) and that sentence was affirmed on appeal by the judiciał committee of the privy council.(q).

The marriage of a widow with the brother of the deceased husband is prohibited by law, and such a marriage, when set aside by the ecclesiastical court, being void ab initio, gives the husband no right over the property of the wife.(r)

The same rule concerning parity of reason prohibits the uncle to marry his niece, which though not expressly forbidden, is virtually prohibited in the precept that forbids the nephew to marry the aunt; nor is it of moment to allege that the first is a more favourable case,

(p) Ray v. Sherwood, 1 Curteis, 173. The principal points in this case, which were, whether a suit was pending at the time the stat. 5 & 6 Will. 4, c. 54, ante, p. 156, passed, and whether the father of the

lady had a sufficient interest to sustain a
suit for setting aside the marriage, will be
hereafter noticed, pp. 179-182.
(9) 6th December, 1837.

(r) Aughtie v. Aughtie, 1 Phill. R. 201.

as the natural superiority is preserved; since the parity of degree, which is the proper degree of judging, is the very same. (s)

A nephew by affinity is within the prohibited degrees, as where the husband was the sister's son of the woman's former husband.(1) *Soon after the passing of the 32 Hen. 8, c. 38, Lord [ *173 ] Cromwell applied for a dispensation for a party who had contracted to marry the sister's daughter of his late wife; but the archbishop refused it, as contrary to the law of God; for as it is expressed that the nephew shall not marry his uncle's wife, it is implied, by parity of reason, that the niece shall not be married to the. aunt's husband.(u)

There are instances in which a prohibition had been granted to the ecclesiastical court, and a consultation awarded in cases of marriages upon the same proximity.(2)

But in Denney v. Ashwell,(y) the court refused a prohibition to a suit in the spiritual court for marrying his wife's sister's daughter. Such a marriage had previously been held to be incestuous.(z)

It is therefore settled that a man cannot marry his wife's sister's daughter, for by affinity, he is(a) in the same degree as an uncle to his niece by consanguinity.

The marriage of a man with the daughter of his deceased wife by a former husband, was declared to be null and void, in a suit promoted by the churchwardens of the parish against the husband for incest, and the parties were ordered to do the usual penance, and to pay the costs of the suit.(b)

The marriage with the wife's mother's sister is incestuous.(c)

The libel was exhibited for the marriage of E. with his now wife, being the daughter of the sister of his former wife. (d)

But the marriage of a man with the widow of his great uncle was held to be good, because it is in the fourth degree, and by stat. 32 Hen. 3, c. 38, cousins-german, who are in the same degree are allowed to marry.(e)

The kindred of the husband are not of affinity to the [ *174 ] kindred of the wife; and therefore the husband's brother may marry the wife's sister, as well as the husband's son by a former wife may marry the wife's daughter by a former husband. The affinity is terminated in the husband himself from the wife's kindred, and in the wife herself from the husband's kindred.(f)

On a motion for a prohibition to the court of the bishop of Oxford, for presenting J. S. for incest, who had married the daughter of hist brother of the half-blood, it was resolved that no prohibition should go; for the court said, though the brothers were not of the whole blood, yet were they brothers, and therefore the marriage incestuous:

(8) Gibs. Cod. 413.

(t) Elliott v. Gurr, 2 Phill. R. 16.

(u) Gibs. Cod. 412.

(x) Morris's case, Cro. Eliz. 228; Leon. 16; Moody, 907; Watkinson v. Mergatron, Sir T. Raymond, 464; 3 Keb. 660; 2 Lev. 254; Sir T. Jones, 118; Show. 70; Howard v. Chancellor of Salisbury, 1- Mod. 25. (y) Str. 53.

(z) Snowling v. Nursey, 2 Lutw. 1075.

(a) Clement v. Beard, 5 Mod. 448; Co. Litt. 235; 2 Jones, 191; Noy, 29; Hob. 181; Vaugh. 303.

(b) Blackmore v. Brider, 2 Phill. R. 359. (c) Butler v. Gastrill, Gilb. 156. (d) Ellerton v. Gastrell, Com. R. 318. (e) Harrison v. Burwell, Vaugh. 206; 2 Vent. 9; Gibs. Cod. 413.

(f) Wood Civ. L. 119; Taylor's Civ. L. 339.

they agreed, that if the father marries the mother, and the son the daughter, this was lawful enough; and North cited the case of the Earl of Manchester, who had married his great aunt's husband's second wife; and this was held by divines and civilians a good marriage, for affinis mei affinis non est mihi affinis.(g)

Illegitimate Children.]—Consanguinity or affinity is equally an impediment where the children are illegitimate.(h) "Nec intererit quod ad consanguinitatem vel affinitatem contrahendam ex justis nuptiis aliqui an ex damnato coitu invicem copulati fuerint.(i) Cognati sunt qui a communi stipite descendunt, sive ex justis nuptiis ea cognatio sit, sive ea illegitimo coitu."

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On a motion for a prohibition for proceeding against a person in the ecclesiastical court, who had married his sister's bastard daughter, it was urged for the prohibition that the Levitical law could not extend to a bastard, because he is of kin to no person whatever, and the court inclined not to grant the prohibition.(k) Although a bastard, being the first of his family, has no relation of which the law takes notice; this must be understood principally for civil purposes, as rights of inheritance and succession to property,(7) for he has [ *175 ] relations *for moral purposes, and therefore he cannot marry his own mother or bastard sister.(m) Lord Stowell observed, According to the general policy of the law in matters merely moral, a person is said to be restrained from marriage with illegitimate relations, as much as with legitimate ones; because the rules of prohibition of marriage arise out of natural relations; and though these rules (as received by our law) are perhaps carried further than might seem necessary, on mere moral and natural grounds, so far as they can be exactly ascertained by mere reason, yet as they are taken from the law of God and have one common origin therein, they are all considered as of the same moral nature and religious obligation. It is, however to be observed, that even this matter does not appear to have received a final decision at law,(n) although undoubtedly the ecclesiastical court, the proper forum on questions of that nature, conceived that this marriage came within the reach of the prohibition."(o)

In a subsequent case, although it was unnecessary to decide the point, it was said by Sir John Nicholl, that the marriage of a man with the illegitimate daughter of his deceased wife, is equally incestuous as in the case of a legitimate child.(p)

Proceedings in the Ecclesiastical Courts for punishing Incestuous Cohabitation.]-Persons within the prohibited degrees living and cohabiting together as man and wife, may be prosecuted in the ecclesiastical court for incest. (q) The points to be established by evidence are the nature of the cohabitation, and the relationship of the parties.(?)

(g) Oxenham v. Gayre, 30 Car. 2, in C. B. Bac. Abr. Marriage (A.)

(k) Voet. lib. 23, tit. 2, ss. 25. 33. (i) Inst. Jur. Can. lib. 2, tit. 13; Dig. lib. 23, tit. 3, s. 54.

(k) Haines v. Jeffcott, 5 Mod. 168; Comb. 356; Comb. R. 2; 1 Lord Raym. 68. (1) Rex v. Hodnett, 1 T. R. 101. (m) Regina v. Chafin, 3 Salk. 66.

(n) Haines v. Jeffcott, 5 Mod. 168; 1 Ld. Rayın. 68.

(0) Horner v. Horner, 1 Hagg. Cons. R. 352, 353.

(0) Blackmore v. Brider, 2 Phill. 361. (9) See stat. 13 Edw. 1, st. 4; 2 Vent. 22. (r) Burgess v. Burgess, 1 Hag. Cons. R. 384.

In cases of incest there are two forms of proceeding, criminal and civil. In the criminal form of proceeding, the office of the judge may be promoted by any one with the permission of the judge himself, the promoter need have no interest; for the object of the suit is to punish and prevent the commission of that which the law deems [ *176 ] the offence; it does not seek to secure or advance the interest of any one; if such effect is produced by the sentence it is purely incidental, and no part of the judicial object of the suit. In Blackmore v. Brider,(s) the suit was promoted by the churchwardens of the parish against a man who had married the daughter of his deceased wife by a former husband. The churchwardens are to a certain degree the guardians for supporting the moral character and public decency of their parish.(t)

In a criminal suit it is not a fatal variance that the defendant in the citation was designated "Harris," and in the articles "Harris" alias "Harry," for in the ecclesiastical courts such variances only are fatal as might lead to some substantial injustice.(u)

In a prosecution for incestuous cohabitation, the relationship may be established by circumstantial evidence, without the production of the register of baptism, more especially where it appears that the registers have been carelessly kept. Such a register is only circumstantial evidence, for it contains nothing but the recorded acknowledgment of the parents.(x)

In a charge of incest, with a view to substantiate it, the eight first articles pleaded the genealogy of the defendants; supplying in some instances the absence of proper exhibits (owing to the register books of baptism having been lost or mislaid) by acknowledgments, and by general reputation that the parties in the pedigree were respectively related to each other in the manner set forth.(y)

As incest is considered highly criminal, and subjects the party to severe punishment, the proof of the charge must be clear and full. In a criminal suit for incest, instituted under circumstances indicative of vindictive feelings, sleeping in the same room in which there were two beds (conduct which the parties proceeded against had been allowed without objection or complaint to continue for thirteen years,) although attended by other facts, inducing a strong presumption of guilt, was held not to be sufficient proof of the offence; and the court *dismissed the defendants, leaving each party to the pay[ *177 ] ment of their own costs; the court observing, that if the suit had been brought by the parish officers, or by some neighbour, apparently from a sense of moral duty, the defendants would probably have been condemned in costs, as a vehement suspicion of guilt was proved.(2)

The usual punishment for incest is the performance of public penance on a Sunday, in church, during divine service. (a) The parties were also formerly subject to excommunication, which, by stat. 53

(8) 2 Phill. R. 359.

(t) 1 Hagg. Eccl. R. 208.

(u) 1 Hagg. Eccl. R. 196, n.

(x) Burgess v. Burgess, 1 Hagg. Cons. R. 384.

(y) Griffiths v. Reed, and Harry alias

Harris, 1 Hagg. Eccl. 196.

(z) Griffiths v. Reed, and Harry alias Harris, 1 Hagg. Eccl. R. 195.

(a) Gibs. Cod. 1043; 1 Hagg. Cons. R. 393; Blackmore v. Brider, 2 Phill. R. 359.

Geo. 3, c. 127, s. 3, is commuted for " such imprisonment, not exceeding six months, as the court pronouncing or declaring a person excommunicate shall direct."

In a case where it did not appear that there had been a marriage celebrated between the parties, and no such fact was pleaded in the articles, the court enjoined the parties to live separate and apart for the future, but considering the age and infirmity of one of the parties, public penance was not inflicted. The court condemned the man in the full costs of the prosecution, accompanied with the injunction that the same intercourse must not continue, but must be bona fide and substantially removed. That it would not be sufficient for persons who had lived as they had done, to have separate beds in the same house, but in future they must live separate and apart; with an intimation, that if the order were not obeyed, that excommunication and other consequences would necessarily follow.(b)

In a case where a marriage was pleaded in the articles for incestuous cohabitation between a father-in-law and the daughter of the first wife, and the articles prayed the judge to pronounce such marriage null and void; the sentence passed in that form, enjoining also separation and penance. (c)

*In the case of Ray v. Sherwood, (d) although it was [ *178 ] not a question which the court was called upon to determine, Sir H. Jenner expressed an opinion that parties who had married within the prohibited degrees of affinity before the passing of the stat. 5 & 6 Will. 4, c. 54,(e) may be punished by the ecclesiastical court for the incest, though the validity of the marriage cannot be called in question. The learned judge said, “I do not think, where the enacting part of the statute is to the effect that all marriages which shall have been celebrated before the passing of this act, between persons being within the prohibited degrees of affinity, shall not hereafter be annulled for that cause by any sentence of the ecclesiastical court,' that this amounts to a prohibition to the ecclesiastical court to punish the parties under another branch of the law for incestuous cohabitation. I apprehend the law is not altered in this respect, and that the court is not prohibited by this act from punishing parties for such cohabitation, although it cannot declare the marriage null and void. Again, if we look to the preamble of the act, it is not for the protection of the parties who have been guilty of the offence, for such it is by the ecclesiastical law and by the law of God, but for the protection of the children; for that is the purpose and object of

(b) Burgess v. Burgess, 1 Hagg. Cons.

R. 393.

(c) Blackmore v. Brider, 2 Phill. R. 359; 1 Hagg. C. R. 393, n. In this case the sen tence, after declaring the marriage incestuous and unlawful, and void ab initio, and admonishing the parties to abstain from all future cohabitation, proceeded: "And we do also pronounce, decree, and declare, that the said William Brider ought, by law, to be canonically punished and corrected for his excess and temerity in the premises, and that he ought to be enjoined and compelled to perform public penance for the same. And

we do enjoin and command him, the said William Brider, to perform such public penance in the parish church of Harting aforesaid, on Sunday, the 19th day of May next ensuing, during the time of divine service, in the forenoon of the same day, and whilst the greater part of the congregation shall be then assembled to see and hear the same;" and the said William Brider was ordered to certify the due performance of the said pub. lic penance on or before the 23d day of May, 2 Phill. R. 362.

(d) Ante, p. 171; 1 Curteis, 202, 203, (e) Ante, p. 155.

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