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niece to the former wife of her deceased husband, was entitled to her widow's estate in copyhold land according to the custom of the manor, inasmuch as she was never during the life of her husband divorced, it is added “ though there were cause." " [Blackburn J. Wortley v. Watkinson (a), except as reported in Keble, is against the marriage.] That case is first mentioned, nom. Worthy v. Buxton (6), upon an application in Hil. 27 Car. 2. 1675, for a rule nisi for a prohibition to the Court of York in a suit for dissolving a marriage between one Stephenson and the daughter of his first wife's sister, which was granted T. 28 Car. 2. (c). The plaintiff was directed to declare in prohibition, and the argument on the demurrer was in T. 30 Car. 2. (d). Ultimately a consultation was awarded, and therefore the words “and per curiam Prohibition,” in 3 Keb. 661, mean that the plaintiff was to declare in prohibition for the purpose of a solemn argument. The same course was followed in Snowling v. Nursey (e), in which the question was several times argued. In Clement v. Beard (f), which was an application for prohibition of a suit in the Ecclesiastical Court for marrying the wife's sister's daughter, Holt C. J. said : “Now for your case, it is certainly within the degrees of affinity; and in the same degree of consanguinity there would be no doubt of it; for a man cannot marry his own sister's daughter. I thought this case had been settled; there is a case against you in point.” In Denny
(a) 3 Keb. 620, 660 T. Jones, 118: 2 Lev. 254; 2 Show. 70.
(c) 3 Keb. 660.
(c) 2 Lutw. 1075. (f) 5 Mod. 448, 449, cited in 1 Com. 320.
V. Inhabitants of BRIGHTON.
v. Ashwell (a), it is said : “A prohibition was denied to a suit in the spiritual Court for marrying his wife's sister's daughter, though cases were quoted where such a marriage has been held legal; Moore, 907; 2 Keb. 551; 1 Sid. 434 ; 1 Mod. 25; 2 Lev. 254 ; contra 2 Ventr. 12.” But, on looking at the cases referred to, after several arguments prohibition was refused, and a consultation was granted; and this was the result in Mann's Case (6), as is said by Vaughan C. J. in Hill v. Good (c), and in Harrison v. Dr. Burwell (d); though, also according to Vaughan C. J. (p. 248, 322), the record of Man's Case could not be found. All the authorities were considered and affirmed, and the same decision given, in Ellerton v. Gastrell (e); and in 5 Bac. Abr., 7th ed., Marriage and Divorce (A.), 294, it is assumed to be undoubted law; and, since that case, the question has not been raised. [They also cited 2 Stephen's Commentaries, 256, 4th ed.] The opinion of the Ecclesiastical Courts is recognised by Lord Denman C. J., in Regina v. Chadwick (f), as determining what marriages are prohibited by God's law; and that opinion appears from the cases cited, in all which the Ecclesiastical Court was proceeding to dissolve the marriage. Those Courts have always obeyed the injunctions of the Canons, and Canon 99 of the Canons of 1603 incorporates Abp. Parker's Table (g) in the reign of Elizabeth, in which marriages between a woman and her mother's sister's hus
(a) 1 Str. 53.
(e) 1 Com. 318. S. C. nom. Butler v. Gastrill, Gilb. Ca. Eq. 156. S. C. nom. Butler v. Gastrell, Bunb. 145.
(S) 11 Q. B. 205. 231, 232.
band, and between a woman and her husband's brother's son, are expressly mentioned as unlawful (a).
Cur. adv. vult.
June 26. The judgment of the Court was delivered by
COCKBURN C. J. My brothers reserved their judgment in this case, not on account of any
doubt as to what that judgment should be, but in consequence of my unavoidable absence during part of the argument, and from a wish to ascertain whether my opinion would coincide with theirs. It is a case of settlement, which depends upon the question, whether a marriage with the niece of a deceased wife is or is not valid ; and I now state, as the united opinion of the Court, that such a marriage is not lawful. In Ellerton v. Gastrell (6), where all the authorities are collected, on a review of many cases all leading to the same result, the Court was of opinion that a marriage with the daughter of a wife's sister was within the degrees prohibited by the Levitical law. Then we have stat. 5 & 6W. 4. c. 54., which, by section 2, enacts" that all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity shall be" not merely voidable, but "absolutely null and void to all intents and purposes whatsoever.” We must consider that Act of Parliament to have been passed with reference to the known and ascertained state of the law in the Ecclesiastical Courts, and as laid down by the Court in Ellerton v. Gastrell, and consequently we have that law sanctioned and confirmed by an Act of Parliament. We there
(a) See 2 Burn, E. L. 444, 445, 9th ed., by Phillimore.
(6) 1 Com. 318. S. C. nom. Butler v. Gastrill, Gilb. Ca. Eq. 156. S. C. nom. Butler v. Gastrell, Bunb. 145.
fore entertain no doubt, upon the authority of that case 1861. and upon stat. 5 & 6 W. 4. c. 54., that this marriage is The QUEEN void.
BRIGHTON. Another point was made,—whether the illegitimacy of the sister of the deceased wife makes any difference. We stopped counsel in the argument of that point; and I only advert to it now, because in a newspaper report of this case it is said that the Court took time to consider it. That is clearly an error, and contrary to what fell from the Court. For I then stated (somewhat emphatically perhaps), that it would be a public scandal to say that there must be legal as well as natural consanguinity, to bar such a marriage. If this matter was not perfectly plain on the face of it, we have ample authority for so holding. In Haines v. Jeffreys (a), the Court with equal determination repudiated the notion that a bastard should not be accounted within the prohibited degrees. I should not have thought it necessary to repeat this, but for the mistake in the public prints, to which I have referred, in a matter of great public importance. The order of Sessions must, therefore, be quashed.
Order of Sessions quashed.
(a) 1 Com. 2. ; S. C. nom. Hains v. Jeffell, 1 L. Raym. 68; nom. Haines v. Jescott, 5 Mod. 168; nom. Hains v. Jefcott, Comb. 356.
B. & s,
Wednesday, June 26th.
The QUEEN against John BARFF CHARLESWORTH.
Criminal trial. Discharge of jury without giving verdict. Collusion. Double pleading.
1. Where, in a case of misdemeanor, the jury are improperly, and against the will of the defendant, discharged by the Judge from giving a verdict after the trial has begun, this is not equivalent to an acquittal, nor does it entitle the defendant to judgment quod eat sine die.
2. Quære, whether the same holds in treason and felony?
3. Semble, that in a criminal case a Judge is not justified in discharging the jury from giving a verdict because material evidence on the part of the Crown is not forthcoming, the absence of which will be productive of a defeat of justice; but
4. Quære, whether he may not do so if the absence of the evidence is occasioned by collusion between a witness and the accused ?
5. Information by The Attorney General for bribery at an election of a member of Parliament. Plea, not guilty. At the trial, a material and necessary witness for the Crown refused to give evidence, and was committed for contempt; whereupon, at the application of the counsel for the Crown, the defendant objecting, the Judge discharged the jury from giving any verdict: Quære, whether he was right in so doing ?
6. The Court in that case refused to allow the defendant to add a plea puis darrein continuance, stating the above facts : on the ground that this would be to allow double pleading; and also, as the facts would be set out on the record, the defendant could take advantage of them.
INFORMATION for bribery, filed by The Attorney
General. The first count charged that the defendant unlawfully and corruptly advanced and caused to be paid to one José Louis Fernandes the sum of 37501., with intent that it should be expended in bribery at the election of a member of Parliament for the borough of Wakefield, in April, 1859, contrary to stat. 17 & 18 Vict. c. 102. There were seven other counts charging the defendant with distinct acts of bribing voters.
Plea: Not guilty.
On the trial, before Hill J., at the Spring Assizes for the county of York, in 1861, J. L. Fernandes, who had received a certificate from the Commissioners appointed under stat. 15 & 16 Vict. c. 57., to examine into corrupt