1837.

SHERWOOD

v.

RAY.

and service of the citation, or at furthest on the return of the citation whenever it may

be.

There is no question but that this marriage is contrary to the canon law. By the 99th Canon of 1603, "It is ordered and directed that no person shall marry within the degrees prohibited by the laws of God, and expressed in a table set forth by authority in the year 1563; and that all marriages so made and contracted shall be judged incestuous and unlawful, and consequently shall be dissolved as void from the beginning, and the parties so marrying shall by course of law be separated." And by the first table of the degrees of marriage set forth in the year 1563, it is expressly ordered, "That a man may not marry his wife's sister." The recent Act of Parliament has therefore only declared that to be the law which was previously in force, making, however, such marriages which were before only voidable now absolutely void. Previously to the canon of 1603, by the law of the Ecclesiastical Court, these marriages were void ab initio, when sentence was pronounced, and might be dissolved even after the death of one of the parties to the marriage (y). In the time of William and Mary the Court of King's Bench for the first time interfered, and granted a prohibition against the Ecclesiastical Court's proceeding to annul a marriage between the parties after the death of one of them, because it was to bastardize and disinherit the issue, but it did not prohibit the Ecclesiastical Court from punishing the survivor for the incest (2).

Subject to such interference the law has ever since remained; and a sentence of nullity pronounced by the

(y) Bancroft, Articuli Cleri, 2 Inst. 614. 2 Jas. 1.

(z) Harris v. Hicks, 2 Salk. 548.

Ecclesiastical Court must, in order to be valid, have been pronounced in the lifetime of both the parties to the marriage. This is recognised in the preamble to the statute of 4 & 5 Will. 4, c. 54: "Whereas marriages between persons within the prohibited degrees are voidable only by sentence of the Ecclesiastical Court, pronounced 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."

The object of the statute is to declare the status of the children of such marriages as have already taken place, and to provide effectually against any future marriages of this kind; but it never can be intended to give indemnity to the parties guilty of such a marriage, or to interfere with the powers still possessed by the Ecclesiastical Court to punish the incest.

The question then is, Can Mr. Ray, in his character of the father, sustain this suit? It has been insisted upon at great length, and with infinite learning, that Mr. Ray has no interest which can give him a locus standi in the Court; that he has not any pecuniary interest. Now, presuming that the argument was right, so far as the numerous authorities have been cited, and that, in order to sustain a suit, there must be speciale interesse, it is no where proved, or even laid down, that it must be interesse pecuniam.

There is no authority in the decisions in the Ecclesiastical Court for such a position. The case of

1837.

SHERWOOD

V.

RAY.

1837.

v.

RAY.

66

Turner v. Meyers only goes the length of stating that SHERWOOD the interest must be specific, not that it must be a specific pecuniary interest. Pertreis v. Tondear (a) is more general; for the learned Judge there says, Every person interested" may apply for a sentence of nullity of marriage. But if a pecuniary interest were indispensable, surely Mr. Ray has sufficient; his daughter is in possession of funds to which, in case of intestacy, he would be entitled. Now this is more than heirdom, or spes successionis; for the statute of Distributions points him out as a person entitled to succeed, whereas the rule nemo est hæres viventis prevents the vesting of the interest of an heir, even though in tail; and the spes successionis is neither a legal or equitable prospect of succession, but a mere hope, a barren expectation.

I apprehend, however, the interest of Mr. Ray to support this suit is superior to any such technical rule; his daughter is domiciled in his house; she is part of his family, receiving from him the care and protection which he, as her father, as well as the head of his family, is bound to afford her; and though she has reached the age of maturity, she has not assumed its privileges, or asserted its rights. In such circumstances a father is bound to counsel, advise, and protect his child; and if that is a moral obligation, which no man will be bold enough to deny, he has such a moral and, as it has been termed, natural interest in the welfare of his child, that he may come into a Court and claim to be heard to dissolve a marriage alike contrary to the laws of God and man. The welfare of his family, the status of his children, the inte

(a) 1 Hagg. Cons. Rep. p. 647.

rests of society, require that he should not only have, but that he should vindicate such a right.

[Their Lordships intimated their opinion, that the word "depending" must be taken in its popular and general sense, and that the suit was properly before the Ecclesiastical Court at the time of the passing of the Act.]

Mr. Serjeant Wilde:

The Court having disposed of the question of jurisdiction, it remains for me only to apply myself to that part of the case which respects the capacity of Mr. Ray to institute this suit.

In order to ascertain the nature of this kind of suit we must look, not only to the object of the suit itself, but the jurisdiction from which it proceeds. It is insisted on the other side, that the suit is purely a civil suit, for the sole purpose of ascertaining the status of the parties. To a certain extent that is true; but the jurisdiction of the Ecclesiastical Court extends farther, and the suit is, in fact, both criminal and civil; and though the proceedings may be distinct, it is impossible to argue that they are unconnected, for the civil suit proceeds on the very assumption that there is ground for the criminal process. It is admitted, that though all the world have an interest in upholding the morals and decorum of society, and may therefore maintain the criminal suit, yet that none but the parties to the marriage have an interest in the status of the marriage, and, consequently, that they only can maintain the civil suit. But the status of marriage is one in which all mankind are interested,

1837.

SHERWOOD

v.

RAY.

RAY.

1837. the very existence of society depends on its being SHERWOOD duly regulated and ascertained, and that consideration alone might seem sufficient to support this suit. It is true, that to support the criminal suit there must have been cohabitation as well as marriage; but the law presumes that, wherever a marriage has been solemnized, and though it is well known and admitted that in this case no cohabitation has taken place, Miss Ray never having left her father's roof, yet it is pleaded in the very first article of the libel, and would be legally presumed if it were not stated, Patrie v. Patrie (b). Now, suppose the argument of my friend's well founded, and that the father has no interest to dispute such a marriage as this, but can only proceed like the rest of the world to punish for the criminal act. In what situation is he placed? Is he to stand by, to witness his daughter's dishonour, to see her commit an illegal, immoral, and irreligious act, to wait for its very accomplishment before he can take any step to repair it, or prevent its further commission, and be told all the while that he has no authority to interfere, though his child be under his own roof, and by all the ties of nature and law he would be bound to defend her? But this is not all: if this marriage is valid, Mr. Sherwood has a right to the consortium of his wife, and may institute a suit to compel her to cohabit with him, to commit, in fact, the very offence which forms the criminal charge, yet the Ecclesiastical Court, and even this Court, must, if the cause was brought before it, issue its fiat and thus be accessory, nay, the very instrument to effect that, which, as soon as accomplished, the same tribunal may be called upon to punish!

(b) 3 Phil. Rep. 496,