place merely to recapitulate such grounds. Marriages, which have been celebrated since the 1st November, 1823, the day on which the 4 Geo. 4, c. 76, came into operation, may be void for the following causes: 1. Where both parties knowingly and wilfully intermarry without due publication of banns.(x) The publication of the banns of a minor is void after open and public dissent of the parent or guardian at the time of publication.(y) *2. Persons knowingly and wilfully intermarrying [ *481 ] without a license from a person or persons having author ity to grant the same.(z) 3. Or knowingly or wilfully consenting to, or acquiescing in, the solemnization of such marriage by any person not being in holy orders.(a) 4. Knowingly and wilfully intermarrying in any other place than a church, or such public chapel wherein banns may be lawfully published.(b) 5. All marriages celebrated after the 31st August, 1835, between persons within the prohibited degrees of consanguinity and affinity, are absolutely void.(c) By 6 & 7 Will. 4, c. 85, s. 42, after the last day of June, 1837, marriages of persons knowingly and wilfully intermarrying under the provisions of that act in any other place than 1. The church, registered building, office or other place specified in the notice and certificate. 2. Or without due notice to the superintendent registrar. 3. Or without certificate of notice duly issued. When the issue of a certificate has been forbidden, the notice and proceedings thereon are void.(d) 4. Or without license in case a license is necessary under that act. 5. Or in the absence of a registrar or superintendent registrar, where his presence is necessary under that act.(e) A marriage originally void must always continue so, whether sentence of nullity has or has not been obtained during the lifetime of the parties. Where a sentence of the ecclesiastical court is obtained in such cases, it does not dissolve the marriage, inas[ *482 ] much as no lawful marriage has taken place, it merely declares the fact of marriage to be a nullity.(f) In many cases, where the law makes a thing void for the benefit of the parties con (x) Ante, pp. 255-258. (y) 4 Geo. 4, c. 76, s. 8, ante, p. 236. "The effect of forbidding the publication of banns. Lord Brougham said, that he had taken pains to inquire, both from bishops and priests, what would be the consequence in their practice if, upon publication of banns, a person were to interpose and forbid the banns, or afterwards to forbid the marriage, which may be done at the altar, when the marriage is about to be solemnized. The answer they have given is, I should suspend the solemnity till I made inquiry. But sup pose the person forbidding should say, I give no reason, but I only forbid the banns; or suppose he gave another reason, that he was (a) 4 Geo. 4, c. 76, s. 22, ante, 270. (f) See post, sect. 5. cerned, they may waive such advantage if they please. Quilibet potest renunciare juri pro se introductio.(g) But the marriage acts, in declaring marriages void, are made against both the contracting parties, as well as the innocent children, so that an irregular celebration, without banns or license, makes the marriage void, even though the parties are willing to acquiesce in the marriage, and should afterwards agree to it.(h) Distinction between Void and Voidable Marriages.]-The temporal courts recognize the distinction between voidable marriages and marriages void ab initio; the former are esteemed valid to all civil purposes, unless sentence of nullity is actually declared during the lifetime of the parties; and consequently, after the death of one of the parties, the issue cannot be bastardized, but the latter is a meretricious and not a matrimonial union; no sentence of avoidance is necessary, and the issue may be bastardized after the death of one or both the parties, by proving that the supposed marriage was void ab initio.(i) Thus a woman was libelled ex officio for adultery with a deceased person. She pleaded that they were married and had issue; it was replied that she had a former husband then living. A prohibition was prayed, alleging that the suit would have the effect of bastardizing the issue. But Holt, C. J. said, "the issue are bastardized without any proceedings, if the parents were never married; the ecclesiastical court shall not proceed to dissolve a marriage de facto after the death of either party, as in the case of consanguinity, precontract and the like; but in this case, if the replication be true, the marriage was ipso facto void," and no prohibition was granted.(k) So where a defendant pleaded in bar that at the time of executing a certain bond, *she was wife to A. B.. But the plaintiff [ *483 ] proved that A. B. had a former wife living at the same time; and that the second marriage had been declared void in the spiritual court; judgment was given for the plaintiff. For by reason of the first marriage the second was ipso facto void, and the defendant therefore was always a feme sole; and the sentence of the ecclesiastical court was only declaratory of the nullity, for what was void from the beginning required no sentence.(1) So the ecclesiastical court would not grant administration of the effects of a wife to her alleged husband, on the ground that the marriage was void on account of having been contracted with a person of unsound mind.(m) A large portion of the cases which have arisen upon the validity of marriages had been decided by the Court of Queen's Bench in cases respecting the settlement of paupers. In such cases orders unappealed against, or confirmed on appeal, have been held conclusive evidence on questions as to the marriage and legitimacy of the parties named in such orders.(n) By an order of removal, D. S., his wife and six children, were removed to the parish (g) 2 Inst. 183; Wing. 483. (h) Chinham v. Preston, 1 W. BL 192; Bull. N. P. 114; see Poynter, 157, 2d ed. (i) Philips v. Bury, Skinn. 470; Pride v. Earl of Bath, 1 Salk. 120; Hayden v. Gould, ib. 119; Co. Litt. 244 a. (k) Hemming v. Price, 12 Mod. 432. (1) Cro. Eliz. 857. (m) Browning v. Reane, 2 Phill. R. 69. (n) Rex v. Inhabitants of Woodchester, Burr. S. C. No. 67; ib. No. 86; Rex v. Inhabitants of Stockland, Burr. S. C. No. 163; Rex v. St. Mary Lambeth, 6 T. R. 615. of W., which order was confirmed on appeal. Subsequent to that confirmation the marriage of D. S. was dissolved by the decree of the ecclesiastical court for incest. W. D., a son of D. S., and his wife, but not named in that order, was subsequently removed to the parish of W. It was held, on an appeal against the second order, that evidence of that decree was admissible to negative the derivative settlement of the pauper, who was not named in the former order of removal, by showing that since the first order the marriage had become void ab initio, and that the pauper was illegitimate.(0) Voidable Marriages.]-Voidable marriages are such as are valid for all civil purposes, unless sentence of nullity be actually declared during the lifetime of the parties. (p) Originally by our law marriage by persons subject to canonical disabilities were not only void ab [ *481 ] initio, but always continued *so. Dr. Lushington said, "it has been truly stated that it was the interference of the common law courts, which, in such cases, prohibited the spiritual courts from bastardizing the issue after the death of one of the parties, that created the distinction-the very unnatural distinction-of voidable and void; for void is voidable ab initio." (r) The canonical disabilities, such as consanguinity, affinity, and certain corporal infirmities,(s) only make the marriage voidable, and not ipso facto void until sentence of nullity be obtained.(t) We have already seen that formerly marriages within the prohibited degrees were voidable only, and that the law on this subject has been altered in some important particulars. Marriages solemnized before the 31st of August, 1835, within the prohibited degrees of consanguinity, remain voidable during the lives of both parties.(u) A voidable marriage continues a marriage till it is dissolved.(x) The ecclesiastical courts have cognizance to punish persons marrying within the Levitical degrees ;(y) and may proceed to dissolve marriages which are voidable on the ground of being within those degrees.(z) But after the death of one of the parties no suit can be prosecuted in the spiritual court for avoiding a marriage. And if such court do proceed to call a marriage in question after the death of either of the parties, the courts of common law will prohibit such suit so far as relates to avoiding it, because it tends to bastardize and disinherit the issue, who cannot so well defend the marriage as the parties themselves when living might have done. (a) Therefore where a man had married his wife's sister, the ecclesiastical court cannot proceed to bastardize the issue after the death of either of the parties, on the ground that the marriage was incestuous, although the second wife died pending the suit, but the party may be punished for in (0) Reg. v. Inhabitants of Wye, 7 Ad. & And. 185; Jenk. 258. Ell. 761. (p) 2 Phill. R. 19. (r) Ray v. Sherwood, 1 Curteis, 188. (8) Ante, p. 201-213. (t) 2 Phill. R. 19-21. (u) 5 & 6 Will. 4, c. 54; ante, pp. 155157. (x) Bury's case, 5 Co. 98; Mo. 225; 2 Dyer, 179 a; 2 Leon. 169 Noy, 72; 1 (y) Harrison v. Burwell, 2 Vent. 22. (z) Wortley v. Watkinson, 2 Show. 71; Holt, 457; 1 Mod. 156. (a) 3 Bl. Comm. 93; 1 Bl. Comm. 431; Brownsword v. Edwards, 2 Ves. sen. 245; Kenn's case, 7 Rep. 43 b; Co. Litt. 244 a; Salk. 151. 548; 4 Mod. 182; Comb. 200; 1 Brownl. 42; Moore, 228. [ *485 ] cest. (b) So where a marriage was *had between parties within the prohibited degrees, and such marriage, though voidable, had not been declared void in the lifetime of the parties, the husband remained husband to all civil purposes, and is clearly entitled to the administration of his wife's effects.(c) Although a sentence of divorce cannot be pronounced after the death of the parties, yet a sentence of divorce may be repealed in the spiritual court by a suit there after the death of the parties. (d) But it is said that a divorce by sentence cannot be re-examined after the death of the parties. (e) SECT. IV. OF THE MODE OF PROCEEDING IN THE ECCLESIASTICAL COURTS. Jurisdiction of the Ecclesiastical Courts.-]The proceedings in the ecclesiastical courts are regulated according to the practice of the canon and civil laws; or rather according to a mixture of both, corrected and new modelled by their own particular usages, and the interposition of the courts of common law. For if the proceedings in the spiritual court be ever so regularly consonant to the rules of the Roman law, yet if they be manifestly repugnant to the fundamental maxims of the municipal laws, to which, upon principles of sound policy, the ecclesiastical process ought in every state to conform (as if they require two witnesses to prove a fact, where one only will suffice at common law,) in such cases a prohibition will be awarded against them. (a) So many important alterations in the present constitution and jurisdiction of the ecclesiastical courts have for some time been contemplated by the legislature as to render it expedient to defer for the present an enumeration of the ecclesiastical courts. (b) It is probable that in conformity with the recommendation of the [ *486 ] *commissioners on ecclesiastical courts in England and Wales, and the debates in parliament, that the jurisdiction of the inferior ecclesiastical courts will be abolished; and that a court will be established, having jurisdiction throughout England and Wales of all matrimonial causes.(c) We have already adverted to the jurisdiction of the ecclesiastical courts to decide upon the validity of foreign marriages. (d) In matrimonial causes the power of the court is in personam, and depends upon the locality of the person cited. Though a defendant may usually reside out of the kingdom, yet if he is served with a citation within the jurisdiction of an ecclesiastical court in England, as that (b) Hicks v. Harris, 4 Mod. 182; Harris v. Hicks, 2 Salk. 548. (c) Elliott v. Gurr, 2 Phill. R. 16; see Co. Litt. 33 a. (d) Kenn's case, 7 Rep. 44 b. (e) Com. Dig. Baron and Feme, (C. 6). (a) 3 Bl. Comm. 100; see ante, p. 465. Since the stat. 1 Will. 4, c. 70, the first day of each term in the courts at Doctors' Com mons continue to commence us theretofore A IGUST, 1841.-Y on the day on which such term commences in the courts of common law.-Order, 14th Feb. 1832, 3 Hagg. Eccl. R. 655. (b) See 3 Bl. Comm. 61-67; 2 Bac. Abr. Eccl. Courts; Report of Ecclesiastical Commissioners, 1832, pp. 11, 12. (c) Hans. Parl. Deb. vol. xxv. p. 806; Hans. Parl. Deb. vol. xxxi. 3 Ser. pp. 323— 330; ib. vol. xlvii. pp. 522–548. (d) Ante, pp. 130, 131. of the Consistory court of London in a suit for nullity of a marriage, that court has jurisdiction to try the validity of the marriage wherever it might have been contracted.(e) Damages cannot be recovered in the ecclesiastical courts, but costs only.(f) But the penance enjoined in a private suit may be commuted or dispensed with for money paid to the complainant.(g) A court of limited jurisdiction as that of an archdeacon, bishop, or archbishop, on the plainest principle of the common law, can have no jurisdiction beyond its local limits. Both the canon() and the statute law forbid the citing of parties out of their dioceses or peculiar jurisdictions. The statute 23 Hen. 8, c. 9, was made with the view of inforcing that principle, and imposed a penalty and forfeiture for citing persons out of the diocese where they resided at the time of the issuing the citation. This statute was made for the benefit of the subject, which it hath been held to provide for sufficiently by giving defendants who are so cited a privilege of pleading to the jurisdiction. Consequently, if a party who is so cited once waive that privilege, by appearing and submitting to the suit, such party is bound to the jurisdiction.(i) It is not *competent to the ecclesiastical court [ *487 ] to compel persons resident without their jurisdiction to answer to a citation in a matrimonial cause; and if upon the face of the citation it appears that the party was resident in Ireland, out of the jurisdiction of the consistorial court, then it is perfectly clear that whatever that court may do in the suit, may at any time, even after any sentence, be reversed, in respect of the want of jurisdiction, apparent on the face of the record.(k) But it is not competent to a party only cited to see proceedings in a marriage suit, to object to the jurisdiction on the ground that the party proceeded against has been unduly cited. Thus in the case of the Marquis of Donegal v. The Marchioness of Donegal: C. against whom a decree to see proceedings in the cause had been directed, applied for a prohibition to restrain the judge of the Consistorial court of London from proceeding in a suit of nullity of marriage, instituted by the marquis against the marchioness. One ground for prohibition was that the marchioness had been constantly residing in Ireland for the last four years, out of the local jurisdiction of the court. But the vice-chancellor refused the prohibition, observing that the writ of citation against the marchioness described her as resident in the parish of St. James, Westminster. If it had been directed to the marchioness as living in Ireland, then on the face of the record it was clear that the court had no jurisdiction in the case. She might, if she had chosen, have objected that she was living in Ireland, and consequently was not resident within the jurisdiction of the court; but she did not think fit to do so, but appeared and pleaded to the citation. This then was an admission on her part that she was properly described as living in the parish of St. James, Westminster, and he was bound to say, that having once pleaded (e) Morse v. Morse, 2 Hagg. Eccl. R. 610; Donegal v. Donegal, 3 Phill. R. 611.588; 6 Madd. 375; Hurford v. Morris, 2 Hagg. Cons. R. 425. (f) Watson, c. 30; Burn's Eccl. L. tit. Courts, 50, 51. (g) 5 Mod. 70. (h) Canon, 106; Gibs. Cod. 1004. 1008. (i) Addains, 17; Hetley, 19; 1 Ventr. 61; Carth. 33; Show. 161, &c. (k) Donegal v. Donegal, 3 Phill. R. 599. |