was, a long time before, and that the ecclesiastical courts complained of the interference of the temporal courts in cases of ecclesiastical cognizance, and, amongst others (in the 20th article), that a prohibition had been awarded in a case of an incestuous marriage, suggesting, under pretence of a statute of Henry VIII., that it appertained to the temporal courts, and not to the ecclesiastical, to determine what marriages are lawful and what incestuous, by the word of God. To which the answer of the twelve judges That these were cases that we (the temporal courts) may deal with, both with marriages and deprivations; as where they (the ecclesiastical courts) will call the marriage in question after the death of any of the parties: the marriage may not then be called in question, because it is to bastardize and disinherit the issue, who cannot so well defend the marriage as the parties, both living, might themselves have done.' The practice, then, clearly existed at that time of declaring these marriages void after the death of the parties, and the temporal courts interfered for the purpose of protecting the interest of the issue of such marriages, and not that of the guilty parties; for as it appears from the case of Harris v. Hicks (b), in the 4 & 5 Will. & Mar., where a man had married the sister of his deceased wife, and it was suggested that the second wife was dead, and a son, the issue of the second marriage, would be entitled to lands: the Temporal Court in that case issued a prohibition against these courts proceeding to annul the marriage between the parties after the death of one of them, but it did not prohibit them from punishing the survivor for the incest committed during cohabitation. "If this, then, was the state of the law at that period, what has occurred to alter it since? Nothing but this act of parliament, passed on the 31st August, 1835, the 5 & 6 Will. 4, c. 54, so often adverted to in the course of these proceedings. What did this act of parliament do? The title of it is, An Act to render certain Marriages valid, and to alter the Law with respect to certain voidable Marriages.' And if the object of the act had been to declare all such marriages existing at the time of the passing of the act, notwithstanding they were originally illegal, good and valid marriages to all intents and purposes (as has been contended it does by the learned counsel for Mr. Sherwood), it might admit of a question, whether, under such circumstances, this court could punish the parties for (b) 2 Salk. 548. incestuous cohabitation; but the enacting part of the act does not declare any such thing. After declaring in the preamble: 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;' then, in the enacting part of the act, I find these words; Be it therefore enacted, that all marriages which shall have been celebrated before the passing of this act between persons being within the prohibited degrees of affinity, shall' not be good and valid to all intents and purposes, but not hereafter 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 this act:' and the act has nothing to do with marriages within the prohibited degrees of consanguinity. "The enacting part of the act does not declare these marriages to be good and valid to all intents and purposes, as might be supposed from the title of the act; and although the title, as well as the preamble, may be important where there is any doubt or ambiguity in the enacting part of a statute, when a reference may be made to the title and preamble for the purpose of explaining such doubt and ambiguity; but the title can give no effect to the enacting words of a statute, where those words are plain and unambiguous. I apprehend that they are independent of the title, which can have effect only so far as to obviate and explain doubt or ambiguity in the enacting part of a statute. I do not think, where the enacting part of the statute is to the effect that all marriages which shall have been celebrated before the passing of this act between persons being within the prohibited degrees of affinity, shall not hereafter be annulled for that cause by any sentence of the Ecclesiastical Court,' that this amounts to a prohibition to the Ecclesiastical Court to punish the parties under another branch of the law for incestuous cohabitation. I apprehend the law is not altered in this respect, and that the court is not prohibited by this act from punishing parties for such cohabitation, although it cannot declare the marriage null and void. "Again, if we look to the preamble of the act, it is not for the protection of the parties who have been guilty of the offence, for such it is by the ecclesiastical law and by the law of God, but for the protection of the children, for that is the purpose and object of the act, to settle the state and condition of the innocent issue of such marriages, not to screen the delinquent parties. But whatever may have been the intention of the legislature, and whatever may be the effect of this act of parliament, the marriage had between the two parties, Thomas Moulden Sherwood and Emma Sarah Ray, is an incestuous marriage, and must ever so remain. The law of God cannot be altered by the law of man. The legislature may exempt the parties from punishment; it may legalize, humanly speaking, every prohibited act, and give effect to any contract, however inconsistent with the divine law, but it cannot change the character of the act itself, which remains as it was, and must always so remain, whatever be the effect of the act of parliament. "I have adverted to these points, which are not immediately connected with the real issue to be decided by the court, in consequence of something which occurred during the argument, suggesting that the court was bound to submit in this matter to the expressed opinion of the legislature; and undoubtedly the court would, if the intention or the opinion of the legislature were clearly and expressly declared, be bound to follow the advice given to it; so that it was not immaterial for the court to endeavour to ascertain what its true and real meaning was; and I am not prepared to say, looking at the act of parliament, that the legislature has declared any opinion that such marriages are not contrary to the divine law; on the contrary, I think the act itself shows that the legislature entertained no opinion of the kind;-for what is the fact? it says, that all marriages which shall have been celebrated before the passing of this act,' that is, the 31st August, 1835, between persons being within the prohibited degrees of affinity, shall not hereafter be annulled,' and so on. But after having stated in the preceding section the inconveniences arising from the existing state of the law, and the prejudice which the children, the issue of such marriages, who are innocent, sustain thereby, it goes on to enact, That all marriages which shall hereafter (that is, after the 31st August, 1835) be celebrated between persons within the prohibited degrees of consanguinity or affinity shall be absolutely void to all intents and purposes whatsoever.' So that instead of expressing 6 c. 54. 5 & 6 Will. 4, Ray v. Sher wood. Effect of a who may institute, and its evidence. an opinion tending to show that it considered such marriages innocent, and that they are not contrary to the divine law, the legislature rather affirms the proposition, by declaring all such marriages in future absolutely null and void to all intents and purposes whatsoever.' The legislature has expressed, as strongly as it could do, that these marriages are still illegal, and contrary to the law of God; although, for the protection of innocent parties, not to screen the delinquents, it has declared that those marriages shall be unquestioned which were celebrated at the time of the passing of the act, under the particular circumstances and conditions mentioned in the first section. But this is not a question which the court is called upon to determine, and it is therefore not necessary to proceed further into the consideration of it." Any person may promote this criminal suit in a cause suit for incest, of office, all people having an interest in putting an end to that which is a public scandal; and if in the course of the evidence, a marriage appears or is proved, though all the proceedings are in pœnam, the court will pronounce the marriage null and void in the first instance, and then sentence the parties to penance (c). But in a criminal suit of this kind, instituted under circumstances indicative of vindictive feelings, sleeping in the same room, (conduct which the parties proceeded against had been allowed to continue without complaint for fourteen years,) though attended by other facts inducing a strong presumption of guilt, was not held sufficient proof of the offence in Griffiths v. Reed (d); and the court, requiring most stringent and conclusive evidence, dismissed the suit without costs. SECT. 4.-Conditions Precedent-Restrictions as to Descendants of George II. In 1717, upon a question referred to all the judges by King George I., it was resolved by the opinion of ten against the other two, that the education and care of all the king's grandchildren, while minors, did belong of right to his majesty as king of this realm, even during their father's life. But they all agreed that the care and approbation of their marriages, when grown up, belonged to the king their grandfather. And the judges have more (c) Burgess v. Burgess, 1 Consist. 384; Blackmore v. Brider, 2 Phill. 359; Chick v. Ramsdale and Chick, 1 Curteis, 34. recently concurred in opinion, that this care and approbation extend also to the presumptive heir of the crown; though to what other branches of the royal family the same did extend they did not find precisely determined. The most frequent instances of the crown's interposition go no farther than nephews and nieces; but examples are not wanting of its reaching to more distant collaterals. And the supposed statute of 6 Hen. 6, which prohibits the marriage of a queen dowager without the consent of the king, assigns this reason for it (e): " because the disparagement of the queen shall give greater comfort and example to other ladies of estate, who are of the blood royal, more lightly to disparage themselves." Therefore by 28 Hen. 8, c. 18 (repealed, among other statutes of treasons, by 1 Edw. 6, c. 12), it was made high treason for any man to contract marriage with the king's children or reputed children, his sisters or aunts ex parte paternâ, or the children of his brethren or sisters; being exactly the same degrees to which precedence is allowed by the statute 31 Hen. 8, c. 10" (ƒ). 12 Geo. 3, c. 11. In the twelfth year of George III. (1772) a statute, Royal Marcommonly called the Royal Marriage Act, was passed. riage Act. This celebrated act owed its origin to the displeasure which the marriage of the Duke of Cumberland with Mrs. Horton (g), and of the Duke of Gloucester with the Countess Dowager of Waldegrave (h), excited in the breast of their royal brother, George III. (i). It is intituled "An Act for the better Regulating the Future Marriages of the Royal Family," and is as follows: "Most gracious Sovereign, "Whereas your majesty, from your paternal affec- Preamble. tion to your own family, and from your royal concern for the future welfare of your people, and the honour and dignity of your crown, was graciously pleased to recommend to your parliament to take into their serious con (e) The occasion of this statute was the marriage of Catherine, mother to Hen. VI., with Owen Tudor, a private gentleman. See 1 Bl. Com. 223. (f) See 1 Bl. Com. 225, and the authorities there cited. (g) A widow lady, daughter to Lord Irnham. This marriage took place in 1772. (h) Natural daughter of Sir Edward Walpole, brother to Sir Robert. For accounts of her beauty, first marriage, grief at ence. (i) The 15th volume of the Annual Register (pp. 91-94), from which this extract is taken, contains a fair summary of the arguments and opinions for and against the act. See also a pamphlet by Mr. Dillon on the Royal Marriage Act. |