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was given both for Mr. Ray and his daughter; and on the same day a Libel was brought in on behalf of SHERWOOD
32 Hen. 8, c. 28, which provided that all marriages should be lawful between persons that were not prohibited by God's laws to marry, and that no reservation or prohibition, God's law except, should trouble or impeach any marriage without the Levitical degrees. This Act contained the first mention of the Levitical degrees as the “prohibited degrees”; it was passed for the purpose of destroying what was termed spiritual affinity, which precluded the marriage between godfathers and their godchildren, &c. &c. without licence from the Pope", and was confirm d by the 1 & 2 Ed. 6, c. 23, s. 2.
The first act of Queen Mary, upon her accession, was to declare the legality of her birth, which was accordingly done by an Act passed 1 Mary, Sess. 2, c. 1, by which the whole of the 25 Hen. 8, c. 22, was again repealed, and so much of the 28 Hen. 8, c. 7, as went to bastardize her, or to pronounce the marriage between her father and Catherine illegal; which marriage was there declared to stand with God's law, and to be valid to all intents and purposes. The remainder of that Act, however, containing the “prohibited degrees,” and the provision for the succession, was left untouched until the ensuing session, when, by 1 & 2 Phil. & Mary, c. 8, s. 17, so much of the 28 Hen. 8, c. 7, as concerned a prohibition to marry within the degrees expressed in the said Act, together with the whole of the subsequent Act of that year, 28 Hen. 8, c. 16, and the 32 Hen. 8, C. 28, was repealed.
It is upon the revival of these Acts, or such parts of them as define and enumerate the “prohibited degrees,” that the law respecting them at the present day stands : so far, at least, as regards their recognition by statute law.
By the 1 Eliz. c. 1, s. 2, it is enacted, “ that the 1 & 2 Phil. & Mary, c. 8, and all and every branches, clauses, and articles therein contained (other than such branches, clauses, and sentences as hereafter shall be excepted) shall be repealed, and thenceforth utterly Foid and of none effect.” The Act then proceeds to revive most of the statutes repealed by 1 & 2 Phil. & Mary, c. 8, omitting the statute 25 Hen. 8, c. 7, but terminating with the 28 Hon. 8, c. 16, which is expressly revived by sec. 10, which section concludes in the following words, “and all and every branches, words, and sentences in the said several Acts and statutes contained are
* Co. 2 Inst. 683.
Mr. Ray, setting forth the circumstances of the marSHERWOOD riage, and alleging its illegality, as contrary to the
revived, and shall stand and be in full force and strength to all intents, constructions, and purposes."
By sec. 12 the 32 Hen. 8, c. 28, is revived, and the 13th section provides
“that all other laws and statutes, and the branches and clauses of any Act or statute repealed and made void by this first Act of repeal of 1 & 2 Phil. & Mary, c. 8, and not in the present Act specially mentioned and revived, shall stand, remain, and be repealed and void, in such like manner and form as they were before the making of this present Act.”
The reason for the omission of the 28 Hen. 8, c. 7, from this Act, or at least so much of it as applied to the succession, is obvious; but the revival of the subsequent Act, 28 Hen. 8, c. 16, in which (sec. 2,) the “prohibited degrees” were expressly referred to the former Act, has induced the conclusion, that notwithstanding the words of the 13th section, the “prohibited degrees,” as contained in the 28 Hen. 8, c. 7, are within the intent, construction, and purpose of 28 Hen. 8, c. 16, and consequently that 28 Hen. 8, c. 7, is to that extent revived*.
It must be observed, however, that the 32 Hen. 8, c. 28, is without doubt in force, having been fully revived by 1 Eliz., and that the “prohibited degrees” are there declared to be the Levitical degrees, a table of which, compiled from the previous statutes 25 & 28 Hen. 8, Lord Coke sets forth in his comments on that statutet.
In the year 1603, the year following the settlement of the Thirty-nine Articles, the table of the “prohibited degrees” which is usually prefixed to the Bible and Book of Common Prayer was drawn up by Archbishop Parker, by whose name it is known, and was published by the authority of the Queen ; it is intituled, “ A Table of Kindred and Affinity, wherein whosoever are related are forbidden in Scripture and our Laws to marry together."
By the 99th canon of 1603 it is provided, that “no persons shall marry within the degrees prohibited by the Laws of God, and expressed in a table set forth by authority, A. D. 1563; and all marriages so ade and contracted shall be adjudged incestuous and unlawful, and consequently shall be dissolved as void from the
* Harrison v. Burwell, Vaughan, 325; 2 Ventris, p. 11. Hill v. Good, Vaug. 302; 3 Keble, 166.
† Co. 2 Inst. 683. See also 1 Inst. 235,
99th Canon of 1603, being within the degrees prohibited by the laws of God, expressed in a table set Suerwood forth by authority in the year
1563. On the 14th of October Mr. Sherwooil's proxy appeared for him; the appearance was absolute, and not under protest.
On the 14th of November, Additional articles were exhibited on the part of Mr. Ray, alleging, among other things, “that Emma Sarah Ray had become entitled to, and was possessed of, considerable sums of money or shares of Three per Cent. Stock, bequeathed to her by Henry Barker, her maternal great uncle,
beginning; and the parties so married shall be by course of law separated; and the aforesaid table shall be in every church publicly set up and fixed at the charge of the parish.”
This Canon was extended to the province of York the year following, and to Ireland A. D. 1634*.
In suits for nullity of marriage by reason of incest, this Canon is pleaded in the Ecclesiastical Courts; but the authority of the Canons of 1603 to bind laymen has been doubted, even in the Spiritual Courtst; and Lord Hardwicke, in an elaborate judgment in the King's Bench, declared the opinion of the judges to be, that the Canons of 1603, not having been confirmed by Parliament, did not proprio rigore bind the laity f. It has been said also, by very high authority in the Ecclesiastical Court, that the Canons are in many instances only declaratory of the law, as to what shall be its execution, and not always introductory of the offence S.
It would seem, therefore, that unless the statute 28 Hen. 8, c. 7, is kept in force by the revival of 28 Hen. 8, c. 16, there is at this time no statutory definition of what are the “prohibited degrees.”
As to the continuance of the suit for nullity of marriage by reason of incest, since the statute 4 & 5 Will. 4, c. 54, see Elliott v. Gurr|l; or the proceeding by suit of Jactitation, see Hawke v. Corris.
* Gibson Cod. 414; Consilia Mag. Brit. 4 vol. 244-5.
and to which, with other personal estate of the said SHERWOOD Emma Sarah Ray, he the said Robert Ray, her
natural and lawful father, would be entitled in case of her death, a single woman, without lawful issue and intestate.”
The admission, both of the Libel and Additional articles, was opposed, and on the 18th of January 1836, the Judge of the Consistory Court (Dr. Lushington) rejected the Libel and Additional articles.
From this decree Mr. Ray appealed to the Arches Court of Canterbury; and on the 5th of July 1836, the appeal came on for hearing before that Court, when the learned Judge (Sir Herbert Jenner) having taken time to consider, pronounced for the appeal
, and admitted the libel and additional articles (a).
Mr. Sherwood appealed from this decision to His
Serjeant Wilde, K. S., with whom was Sir William Follett, K. C., and Mr. M. D. Hill, K. C., for the Respondent.
Dr. Addams : This is a cause in which the marriage is not void, but only voidable; until therefore it is declared void, Mrs. Sherwood is entitled to the status of her husband; if he die pending these proceedings she alone will be entitled to administration; or if she die, she will die his wife, and the children, if there are any of the marriage, will be legitimate, Elliot v. Gurr ().
(a) See both Judgments reported, 1 Curt. 173 & 193.
There are two questions for the determination of the Court:
First, Whether the marriage is within the recent statute of 5 & 6 Will. 4, c. 54.
Second, Whether Mr. Ray, the father of this lady, has such an interest in the marriage as entitles him to question its validity in the Ecclesiastical Court.
With regard to the first point, we must look to the words of the Act of Parliament. The marriage was celebrated some time before the passing of the Act, and therefore, if not within the exception in the Act, is valid to all intents and purposes, and cannot be dissolved by any sentence of the Ecclesiastical Court, whereas, if it is not within the exception of the Act, it is absolutely void. This is the dilemma in which the party seeking to dissolve this marriage is; and in order to extricate himself from it, Mr. Ray insists, that the Citation having issued on the 24th of August, seven days before the Act of Parliament received the royal assent, he is within the provision for the saving of suits then existing, and that in the words of the statute this was a suit “ depending at the time of the passing of the Act."
Now this involves the main question in the case, viz. in what sense the Legislature has used the word “ depending." It is clear, both from the title as well as the provisions of the Act, that the object of the Legislature was to validate marriages heretofore questionable, as well as to prevent such marriages in future.
The exception is of suits “depending," that is not merely commenced, but so commenced as to be actually depending; the term has been used advisedly, and cannot be rejected as surplusage. In all statutes where there is a limitation to actions, the word “com