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certain degrees is founded are applicable to illegitimate 1861. relations, otherwise an illegitimate brother might marry The QUEEN a sister. Wightman J. In Hains v. Jeffell (a) the
Inhabitants of question, whether a marriage with the illegitimate Brighton. daughter of a sister was valid, arose upon a prohibition to the spiritual Court, but the cause was adjourned. Cockburn C. J.
Suppose persons living under the Scotch law have two illegitimate children, who marry each other; and the parents afterwards marry each other; the children thereupon become legitimate; and then there is a marriage subsisting between a legitimate brother and sister, although in the eye of the law there is no relationship in blood.] Suppose a woman, whose parents are not known, marries a man, afterwards discovered to be her brother, is the marriage to be declared void ? [Cockburn C. J. That is a remote possibility, which is no ground for saying that, when a relationship is known, a marriage between persons within the prohibited degrees is legal.] The relationship of illegitimate children is not recognised by the law either in the case of real descent or personal succession; and therefore the dictum of Buller J., in Rex v. Hodnett (6), that “the rule that a bastard is nullius filius applies only to the case of inheritances,” is not fully borne out. [Cockburn C. J. The father of an illegitimate child is not recognized by the law of England as to civil purposes (c); but in that it differs from the law of other countries.] In Rex v. Hodnett (6) and Priestly v. Hughes (d) it was held that illegitimate
(a) 1 Ld. Raym. 68; 8. C. nom. Haines v. Jescott, 5 Mod. 168; 8. C. nom. Hains v. Jefcott, Comb. 356 ; 8. C. nom. Haines v. Jeffreys, 1 Com. 2.
(6) 1 T. R. 96. 101. (c) See Reg. v. Chafin, 3 Salk. 66. (d) 11 East, 1.
1861. children were within the provisions of The Marriage The Queen Act, 26 G. 2. c. 33., which required the consent of the
father to the marriage of persons under age; but BRIGHTON,
Grose J. dissented from the other Judges in the latter
And in Horner v. Liddiard (a) Lord Stowell held that the consent of parents under that statute was not applicable to the marriage of illegitimate minors. [Cockburn C. J. In note (1) to stat. 25 H. 8. c. 22., in Evans' Statutes, vol. 1, p. 152., a report of Lord Stowell's judgment in that case, by Dr. Croke, is mentioned (b). H. Matthews, contrà. The judgment in that report, which is accompanied by a short statement of facts, is the same as in 1 Hagg. Cons. Rep. Cockburn C. J.
Cockburn C. J. Although the Court did not give any final determination upon the question in Hains v. Jeffell (c), they expressed a strong opinion upon the point. According to that case, as reported in 1 Ld. Raym. 68 : “It seemed to the Court that no prohibition should be granted ; for, though bastards are deprived of privileges by particular laws, the same reason prohibits them from marrying, as others. And it has been always held accordingly, especially where it is the child of a woman relation. And, by Sir Bartholomew Shower's rule, Hains might marry his own bastard, which doubtless could not be allowed.” Then Lord Stowell in Horner v. Liddiard (a), speaking of Hains v. Jeffell, says, p. 353 : “The cause was adjourned, and therefore no decision was given upon the question ; although undoubtedly the Ecclesiastical
(a) 1 Hagg. Cons. Rep. 337.
(6) It is also referred to in the argument in Priestley v. Hughes, 11 East, 16.
(c) 1 Ld. Raym. 68. S. C. nom. Haines v. Jescott, 5 Mod. 168. S. C. nom. Hains v. Jefcott, Comb. 356. S. C. nom. Haines v. Jeffreys, 1 Com. 2.
Court, the proper forum on questions of that nature, 1861. conceived that that marriage came within the reach of
V. the prohibition;" and it was assumed by him that ille
Inhabitants of gitimacy made no difference in the application of the rules BRIGHTON. of prohibition of marriage, which he says, p. 353," arise out of natural relations," and, “as they are taken from the law of God, and have one common origin therein, they are all considered as of the same moral nature and obligation ”(a).] The law of Scotland, in dealing with the crime of incest, does not recognise any affinity between bastards, though in all questions of marriage and legitimacy the Canon law is said to be the law of Scotland; Shelford on the Law of Marriage and Divorce, pp. 21, 22, citing Bell's Case of Putative Marriage. In Alison's Principles of the Criminal Law of Scotland, vol. 1, after defining incest, chap. 29, s. 1, p. 562 : “Incest is committed by carnal knowledge between all those persons who are forbidden to marry in the Divine law ;” it is laid down, s. 2, p. 565, that “incest is not committed by connexion with bastard relations, how near soever," citing Hume Comm. on the Law of Scotland respecting Crimes, vol. 1, p. 452. [Blackburn J. By the statute law in Scotland incest was a capital offence (6), and, in favorem vitæ, such connexion was held not to be incest.]
G. Denman and H. Matthews, for the appellants.[Cockburn C. J. It would be a great scandal if it was thought that the Court doubted that a marriage, unlawful between legitimate relations, was equally so between natural relations, though one of them was illegitimate.
(a) See Dr. Lushington in Woods v. Woods, 2 Curt. 516. 522.
1861. Therefore the Court wish the argument for the appellants The QUEEN
to be confined to the question, whether a marriage with Inhabitants of
the daughter of a deceased wife's sister is void.] As to Briguron. that question, Regina v. Chadwick, in error (a), governs this case.
In that case, and in Brook v. Brook in the House of Lords (6), it was said that the legislature of Henry the Eighth's time, in stats. 25 H. 8. c. 22. s. 3., 28 H. 8. c. 7. s. 7. and 32 H. 8. c. 38., which are in pari materiâ, had laid down what were the “prohibited degrees of consanguinity or affinity” intended by stat. 5 & 6 W. 4. c. 54. s. 2., and what marriages are prohibited as “contrary to God's law,” as being within the Levitical degrees. The question whether stat. 28 FI. 8. c. 7. is repealed or not is discussed by Lord Wensleydale in Brook v. Brook (1), and he came to the conclusion that the part of it which contains an enumeration of the degrees within which marriage is unlawful, which was repealed by stat. 1 & 2 Ph. & M. c. 8. s. 17., was revived by stat. 1 El. c. 1. s. 2.; he adds, p. 432: “But, whether it is or not, the statements in the statute are to be looked at as a statutory exposition of the meaning of the terms 'Levitical degrees.'” If stat. 28 H. 8. c. 7. is repealed the reference to its provisions in sect. 2 of stat. 28 H. 8. c. 16., which is still in force, sufficiently incorporates them to make them part of stat. 28 H. 8. c. 16. In the enumeration of prohibited degrees in stat. 25 H. 8. c. 22. s. 3., is the marriage between “the son" and "his uncle's wife ;” and this prohibition applies when the sexes are changed, and prevents “the daughter” marrying "her aunt's husband.” The statute indicates the degrees of relationship in which persons standing towards each
(a) 11 Q. B. 173.
(6) 7 Jur. N. S. 422,
other are prohibited from marrying, and is not confined 1861. to the particular case mentioned. Lord Coke, in his
V. reading on stat. 32 H. 8. c. 38., 2 Inst. 683, says : “ These
Inhabitants of be the Levitical degrees, which extend as well to the BRIGHTON. woman as to the man. And herein note, that albeit the marriage of the nephew cum amita et matertera is forbidden by the said 18th chapter of Leviticus, and by express words the marriage of the uncle with the niece is not thereby prohibited, yet is the same prohibited, Quia eandem habent rationem propinquitatis cum eis qui nominatim prohibentur, et sic de similibus.” And in Ellerton v. Gastrell (a), where the marriage was with the first wife's mother's sister, it is said: “And in this manner of computation all marriages of collaterals in the third degree are unlawful—and all marriages in the fourth degree are lawful. .... Thus the marriage with the wife's sister's daughter is incestuous, which is in the same degree with this marriage : Moore, 907, Cro. El. 228, 4 Leon. 16, Man's Case.” According to this construction of the statute, it contains a prohibition of the marriage of a man with his wife's niece. Moreover the Ecclesiastical Court has decided that such a marriage as this is void ; and the Judges of the common law Courts have not interfered down to the passing of stat. 5 & 6 W. 4. c. 54. The cases are all referred to in the arguments in Regina v. St. Giles (6). In Rennington v. --, E. 16 Jac. l., cited in Howard v. Bartlett (c), though it was held that the widow, who was
(a) 1 Com. 318. S. C. nom. Butler v. Gastrill, Gilb. Ca. Eq. 156. 158. S. C. nom, Butler v. Gastrell, Bunb. 145.
(6) 11 Q. B. 173.
(c) Hob, 181, 5th od. S. C. Rennington y. Cole, Noy, 29; Butl. Co. Litt. 235 a., note 1.