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ARGUED AND DETERMINED

BEFORE THE

JUDICIAL COMMITTEE

AND THE

LORDS OF THE PRIVY COUNCIL.

ON APPEAL FROM THE ARCHES COURT

OF CANTERBURY.

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THOMAS MOULDEN SHERWOOD

Appellant,

and ROBERT RAY

Respondent.* 1, 2, 7, 8 Feb.

28 Nov.

16 Dec. This

1837. was an Appeal in a cause of nullity of marriage, by reason of affinity, promoted by the Respon

The Act dent against the Appellant and Emma Sarah Ray, his 5 & 6 Will. 4,

c. 54, provides daughter, under the following circumstances :

that all

marriages Present: Lord Brougham, Mr. Baron Parke, the Chief Judge of the which shall

have been Court of Bankruptcy, and Sir John Nicholl.

celebrated

before the passing of the Act, between persons being within the prohibited degrees of affinity, shall not thereafter be annulled for that cause by any sentence of the Ecclesiastical Court, unless pronounced in a suit which shall be depending at the time of the passing of the Act: Held, that the issuing of the Citation in a cause of nullity of marriage seven days previous to the Act receiving the royal assent was within the meaning of the Act, so as to constitute such suit depending.

The patria potestas of the civil law as respects the marriage of children was abolished by the Canon law, which is the law by which marriages are governed in this country, except so far as it has been restricted by the Marriage Acts.

Any interest, however slight, provided it be specific and pecuniary, whether to be secured in a contingent right, or released from a possible obligation, is sufficient to entitle a party to sustain a suit in the Ecclesiastical Court for nullity of marriage, on the ground of affinity.

Where, therefore, a father brought such suit to dissolve a marriage contracted by his daughter, after she was of age, by reason of incest:-Held, that his possible liability, under the 43d of Eliz. č. 2, to maintain the issue of such marriage, if legitimate, in case of the death or impotency of the parents, was an interest sufficient to entitle him to sustain such suit; and a sentence of

nullity of marriage was pronounced therein. VOL. I.

в в

1837.

Ray.

Mr. Ray, by his marriage, amongst other children Suenwood had two daughters, Anna Rachael Louisa, and Emma

Sarah Ray.

On the 17th July 1827, Mr. Sherwood, the Appellant, was married to Anna Rachael Louisa, who died on the 3d of April 1834, leaving her husband and two children, the issue of the marriage, surviving. On the 29th of June 1835, the Appellant was married to Emma Sarah Ray, the sister of his former wife. The marriage was secret and clandestine, Miss Ray having gone from her father's house at Edmonton to the church of St. Mary, Whitechapel, where the ceremony was performed, and immediately after returned to her father's, where she continued to reside, and had never lived or cohabited with Mr. Sherwood as his wife.

The marriage was not discovered until Saturday the 22d of August following; and on Monday the 24th of that month a Citation, returnable the third day after service, issued from the Consistory Court of London, at the suit of the Respondent, “as the natural and lawful father of Emma Sarah Ray, falsely calling herself Emma Sarah Sherwood, and, as such, a person interested in the legitimacy or illegitimacy of her issue,” calling on the Appellant, Mr. Sherwood, and Emma Sarah Ray, to answer in a cause of nullity of marriage, by reason of incest.

The Citation was served personally on both parties on the day it issued.

On the 31st of August 1835, the Act 5 & 6 Will. 4, c. 54, intituled, “An Act to render certain Marriages valid, and to alter the Law with respect to certain voidable Marriages,” received the royal assent. After reciting, that “Whereas marriages be

1837.

v. Ray.

tween persons within the prohibited degrees are voidable only by sentence of the Ecclesiastical Court, pro- SHERWOOD nounced during the lifetime of both the parties thereto, and it is unreasonable that the state and condition of the children of marriages between persons within the prohibited degrees of affinity should remain unsettled during so long a period, and it is fitting that all marriages which

may

hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity should be ipso facto void, and not merely voidable,” it enacts, “ That all marriages which shall have been celebrated before the passing of the Act, between persons being within the prohibited degrees of affinity, shall not thereafter be annulled for that cause, by any sentence of the Ecclesiastical Court, unless pronounced in a suit which shall be depending at the time of the passing of the Act: provided that nothing hereinbefore enacted shall affect marriages between persons being within the prohibited degrees of consanguinity:" and it also enacts, sec. 2, “That all marriages which shall thereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void, to all intents and

purposes whatsoever (a).”

(a) As there is no definition in the above Act of the "prohibited degrees” of consanguinity or affinity, and as there is some controversy respecting the table of the Levitical degrees, a statement of the law respecting them will, it is hoped, not be thought irrelevant.

The first mention of the “prohibited degrees” in the Statuto Book is in the 25 Hen. 8, c. 22*, intituled, “A Act concerning the King's Succession,” which was passed to legalize his divorce from

The 25 Hen. 8, c. 22, is printed in all the editions of the Statutes as unrepealed, and the 28 Hen. 8, c. 7, is not printed; but it is to be found in the Appendix to Remington's Statutes, vol. 9. See also Vaughan's Reports, 215; Gibson Cod. 410, where it is partially set out.

1837.

On the 9th of September following (being the first court day after service of the Citation), an appearance

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Catherine of Aragon, and consequently bastardized the Princess Mary.
Sec. 3 contains an enumeration of the degrees of marriage prohibited by
God's law.

The 28 Hen. 8, c. 7, s. 4, intituled, “ An Act for the Establishment of the Succession of the Imperial Crown of this Realm,” repealed that Act. This Act was passed for the purpose of legalizing the divorce from Anne Boleyn, and declaring the issue of that marriage (viz. the Princess Elizabeth) illegitimate. So much, however, of the former Act, 25 Hen. 8, c. 22, as respected marriages within the prohibited degrees was re-enacted, with some slight modifications respecting the want of carnal knowledge of the first wife, and an enumeration of the prohibited degrees was again set forth. The remainder of the Act contained a limitation of the Crown to the issue of the Lady Jane Grey by the King, and in default, to the heirs of the body of the King lawfully begotten, with a general power to the King to name his successor, either by letters patent, or his last will.

In pursuance of these powers, the Crown was subsequently limited by the King in Succession to Edward, Mary, and Elizabeth, and that appointment was duly confirmed by the 35 Hen. 8, c. 1, which recited the powers and authority of 28 Hen. 8, c. 7, touching the succession, by the execution of which so much of that Act as provided for the succession was rendered void.

In the 28 Hen. 8 (the same year as the second Act of Settlement (c. 7) just alluded to had passed), another Act respecting marriages was passed, c. 16, intituled, “An Act for dispensing with Rules and Licences from the Pope,” whereby it was enacted, s. 2, that all marriages had and solemnized before the 3d of November, in the 26th of the reign (the date of the Parliament held next after the passing of the 25 Hen. 8, c. 22), should be valid, whereof there was no divorce or separation had by the Ecclesiastical laws of the realm, and which marriages were not prohibited by God's law limited and declared in the Act made in that present Parliament for the establishment of the King's succession, should be good, and they were thereby confirmed. For the interpretation, therefore, of what marriages were prohibited by God's laws, this Act expressly referred to the previous Act (c. 7) of the same year in which the prohibited degrees forth.

The next statute respecting the “prohibited degrees"

were set

was the

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