This suit springs out of the ancient suit of jactita

1837.

V.

tion, Duchess of Kingston's Case (c), which, though of SHERWOOD rare occurrence, is still recognised by the Ecclesiastical Court, Hawke v. Corri (d).

There is no species of suit, except that for alimony, known to the spiritual courts, where pecuniary interests are the objects of the jurisdiction. Their functions are chiefly for the protection and furtherance of religion and morals. How then can it be argued that the Spiritual Court requires a pecuniary interest, and that the father, quà father, without such an interest, has no locus standi to support such a suit as this? I deny that such a rule ever existed; but if it did, it is in effect abolished by the statute 26 Geo. II. c. 33, which recognises and enforces the right of a parent in the marriage of his child; and supposing the argument respecting the Canon law so much insisted on to be correct, that statute has in effect abrogated the Canon law, by recognising and giving express authority to the father in the marriage of his child. I speak of the spirit and effect of the statute, not its legal operation, that I allow is limited; but for the purpose of the argument, the statute proves the abolition of that law, if it ever existed here, which made the child sufficiently independent to contract an illegal and incestuous marriage, without any power in the parent to oppose or question it.

If the suit be only for the purpose of ascertaining the status of the parties, the father has, of all persons, the greatest interest in that question, and that is the sort of interest which I contend is intended by the learned judges who, in the dicta they have delivered, say, "any person interested."

(c) 20 State Tri, 355.

(d) 2 Hagg. Cons. R. 284.

RAY.

1837.

v.

RAY.

The term "interest," in its legal and purely technical sense, is definite and distinct, and applies to some ascertained and tangible right; but as applied to jurisdiction it has a wider meaning, and extends to moral as well as legal obligations (e)—is merely such as will give a party a locus standi; an interest of this kind is familiar to our law, and is recognised in every action brought in the Courts of Exchequer or Common Pleas

Now blood is an interest sufficient to support a suit. "Persona conjuncta æquiparatur interesse proprio" is a maxim of law (f); and the comment upon that maxim by Lord Bacon is, that "the law hath, in this, respect of nature and conjunction of blood, as in divers cases it compareth and matcheth nearness of blood with consideration of profit and interest, yea in some cases alloweth of it more strongly."

and

Here is interesse, not interesse speciale, which is a mere feudal interest unknown to our law (g). But the interest of blood; the natural tie is recognised not in this maxim alone, but in various other instances; thus, between father and child, blood is sufficient consideration to raise a use, Grey (h). So the word privies in the statute 4 Hen. 7, for barring estates tail and levying fines, is construed to be to privies in blood as well as privies in estate (i).

Grey v.

Again, the heir may maintain an action for its being reported that he is a bastard, though he allege no special damage.

1837.

In the action for criminal conversation, one of the allegations is that the husband has been deprived of SHERWOOD the comfort, society, and fellowship of his wife, and of her aid and assistance in his domestic affairs.

In the action by a father for the seduction of his daughter, though the allegation that gives jurisdiction is the loss of service, yet proof of the smallest possible act of service was sufficient; and of late it has been held that it is sufficient to show the daughter under the general control of the father without proving any service, Maunder v. Venn (k).

Now all these instances prove, beyond controversy, that there are other interests than pecuniary ones, recognised and sanctioned in our Courts, and that blood forms one of the strongest.

In Brown v. Ricketts, Lord Stowell says, the father can institute this suit because his authority is violated; the observation, as to interest, in Turner v. Myers is obiter dictum.

The case of Watson v. Faremouth (1) is directly in point, and entirely overrules the authority of Balfour v. Carpenter. In that case, the sisters, who were devisees in remainder, in case there was no issue of the marriage, were allowed to prosecute the suit. The Ecclesiastical Court has no jurisdiction to determine the validity of devises, and could not, therefore, determine whether the parties had, in fact, any interest; yet upon the allegation of an interest, which may turn out utterly untenable and unfounded, they are admitted to prosecute the suit. Is that more than requiring the party to allege something which will give him a locus standi?

Mr. Ray claims and shows a higher interest than this; though contingent, it is definite and certain, (7) 1 Phil. Rep. 355.

(k) 1 Mood. & Mal. 323.

V.

RAY.

v.

RAY.

1837. and must accrue if not defeated; it is a spes succesSHERWOOD Sionis-may be subject of contract, and if so, is enforceable in a court of equity (m). But in a case where it is assumed that a pecuniary interest is requisite, but at the same time admitted that the smallest quantity of interest is sufficient, I have a right to enlist any interest. Mr. Ray may maintain an action for the maintenance of his daughter since the marriage; this is a pecuniary interest.

Dr. Addams (in reply):

The term incestuous, as applied to this marriage, is improper, and ought not to weigh with the Court. It is not an incestuous connexion; were it so, every act of cohabitation would be the commission of a crime which is legalised and sanctioned by the recent Act of Parliament. The prohibition against such marriages in Scripture is vexata quæstio; and the assertion that they are against the law of nature, is contrary to all the books which treat of such laws (n).

The assumed invalidity of such a marriage was the very hinge upon which the Reformation turned, and was urged by Hen. 8 as the ostensible reason for the divorce from Catherine of Aragon. But the foreign reformers were, at that time, divided in opinion as to the legality of the plea; and the question was settled for a time, in the only way it could be satisfactorily, by the Act 25 Hen. 8, c. 22 (o).

That was the first and the only statutory prohibition of these marriages, and was repealed by the sub

(m) Lord Dursley v. Fitzhardinge Berkeley, 6 Ves. 251.

(n) Grotius de Jure Belli et Pacis, B. II. ch. V. s. 13. Parson's Case, 2 Co. Litt. 235 a. Wortley v. Watkinson, ib. et Levinz, 245. Snowling v. Nursey, ib. Vaughan, 302.

(0) Burnet's Hist. of the Reformation, Append., ante, note, p. 355.

1837.

sequent Acts of 28 Hen. 8, c. 7, and 1 Mary, sess. 2, c. 1, which latter declared the Queen's title to the SHERWOOD throne of these realms, and recognised and sanctioned a marriage in all respects similar to Mr. Sherwood's.

Before the late Act such marriages were, in fact, valid; they could only be questioned or dissolved during the lifetime of the contracting parties (p), which clearly shows the impropriety of terming them incestuous. The prohibiting them was, in fact, only a question of policy (q).

The various Marriage Acts passed since the time of Hen. 8 are only provisionary for the celebration, and not declaratory of the status of the contracting parties. No inference of the authority of the parent can be drawn from the consent of parent or guardian, required to the marriage of a minor by the 26th Geo. 2, c. 33. The very fact of such authority being conferred, is a proof it did not previously exist; and that the rule, as stated by Mr. Austin, was the prevailing law.

Though there has been neither cohabitation nor consummation of this marriage, yet it must be presumed; and if not proved, the cause would be dismissed (r). The Ecclesiastical Courts pronounce hypothetical sentences, as, if the marriage has taken place, it is void (s). As to the interest requisite to sustain the suit, the whole argument on the other side, as well as the libel, entirely proves that a pecuniary interest is the one claimed by Mr. Ray. There is no authority for holding that the remote expectancy, in case of the intestacy of his daughter, and her being a

(p) Innocentius, Institutiones Canonici, 1 vol. 432. (1) Paley, tit. Incest.

(r) Griffiths v. Read, 1 Hagg. 195.

(8) Nokes v. Milward, 2 Addams Rep. 386.

v.

RAY.