The case of R v Chadwick was as follows
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1847 |
| Date | 01 January 1847 |
| Court | Court of the Queen's Bench |
English Reports Citation: 116 E.R. 452
QUEENS BENCH
[205] The case of Eegina v. Chadwick was as follows. James Chadwick was indicted at the Sessions of Oyer and Terminer and Gaol Delivery held at Liverpool, in and for the County Palatine of Lancaster (Liverpool Winter Assizes, December, 1846), for bigamy. The indictment charged in the usual form that the defendant married one Ann Fisher, and afterwards, and whilst he was (a) But, by the Scotch law, " incest is not committed by connexion with bastard relations, how near soever;" Allison's Principles, ch. xxix. s. 2 (p. 565). (b) The argument in this case is partly reported by H. Merivale Esq. 11Q. B. ZM. THE QUEEN V. CHADWICK 453 ao married to the said Auu, feloniously married oue Eliza Bostock, big said former wife being then alive. A special verdict was found, in the following words. "That, on the 14th day of September, A.D. 1845, the said James Chadwick was married to one Ann Fisher, spinster, at," &c., "according to the rites and ceremonies of the Established Church; and that afterwards, viz. on the 23rd day of March A.D. 1846, the said James Chadwick was married, at," &c., " to oue Eliza Bostoqk, spinster, according to the rites and ceremonies of the Established Church, she the said add Fisher then being atill alive. And that tbe said Ann Fisher, to whom the said James Chadwick was so married as aforesaid, on the 14th day of September, A.D. L84, was the lawful sister of one Hannah Fisher to whom the said James Chadwiqk had been lawfully married on the 27th day of June, a.b. 1825; and that, after the marriage of the said James Chadwick with the said Hannah Fisher, they the said James Chadwick and Hannah Fisher lived together as man and wife: and wbich said Hannah Fisher departed this life before the said time when the said James Chadwick was married to the said Ann Fisher aa aforesaid. .But whether or not upon the whole matter," &c. "found tbe [206] said James Chadwick is guilty of the felony," &c., "tbe Bald jury are altogether ignorant);" &c. Judgment was given, at the assizes, by Wightman J., that the said J. C. is not guilty, &c., and that he go without a day, &c. Error was brought on the judgment; the only cause assigned being that judgment! had been given for the defendant on the special verdict, whereas it should, by law, have been given against him. Prayer of reversal, &c. Joinder. Tbe writ of error was argued in the present Michaelmas term, November 17th and 20th. Sir F, Kelly for the Crown. Stat 5 & 6 W. 4, c. 54, a. 2, annuls all marriages thereafter to be celebrated between persons within " the prohibited degree! of consanguinity or affinity :" and the question will be what, and by whom imposed, Js the prohibition to which this force is given. The principal statutory authority, before the Act of William, is stat. 32 H. 8, c. 38, a. 2; and that continue, notwithstanding any pre-contract (not consummate) or dispensation, all marriages contracted within the Church of England between " lawful persons," such marriages being contract and solemnized in tbe face of the Church, and consummate; and declares "all persons to be lawful, that be not prohibited by God's law to marry." Then, what is prohibited by God's law 1 The prohibition must be looked for in the express words of icripture. By the law of nature all marriages are free, though some may be highly inexpedient. A law to abridge that natural freedom must be construed strictly, not extended by analogy or on the ground of a supposed parity of degree. [207] The divine erditmnce on this subject is found in the 18th chapter of Leviticus, and does not in terra* include marriage with a wife's sister: and the letter of that law was acted upon by the Jews and early Christians down to the year of our Lord 313, when the Council of Eliberia imposed a penance on the man who should contract such a marriage. The history of this and similar usurpations is traced in Reeve's History of the English Law,'vol. iv. 52, et seq. (3d ed.), c. 25, and Hallam, Middle Ages, c. 7 (vol. ii. p. 293, &e., 4th ed.): and they were still in force when, by stat. 32 H. 8, c. 38, the prohibition was, in this country, brought within the limits prescribed by the law of God. (He then proceeded to discuss the material passages of the 18th chapter of Leviticus. This part of the argument, being laid oub of consideration by the Court in its judgments, is not further stated here: but a notice of tbe discussion on tbe same points will be found in the report of the preceding case.) It is suggested, in favour of the inferential construction, that, without it, some marriages clearly not allowable, as between a man and his grandmother, are unprohibited by the Levitical law; but in many other instances the divine law is silent as so offences which God cannot have intended to sanction, bub which it has been unnecessary to point out, either because there was no liken'hood that men would be tempted to them, or because it was clear, without their being specified, that they were contrary to the divine will. If the 18th chapter of Leviticus does not contain a complete code, the same may be said of the 20th chapter of Exodus. The judgment of Vaughan C.J. in Harrison v. Dr. Harwell (Yaughan, 206), shjws the impression, at [208] the time when that case was decided, to have been that our law, in forbidding marriages as contrary to the law of God, included degrees which, "in the meaning of the 18th of Leviticus, were not absolutely, but circumstantially prohibited " (Vaughan, 240); among which was the marriage with a brother's wife, not 454 THE QUERN V. CHADWICK 110. B.209. (as is there said) prohibited by the Levitical law, "but when the dead brother left issue by his wife" (Deut. c. xxv. v. 5-10). Vaughan C.J. adds: "A man is prohibited by 28 H. 8 " (stat. 28 H. 8, c. 7, s. 11, which, however, had been repealed), "and by the received interpretation of the Levitical degrees, absolutely to marry his wife's sister: but within the meaning of Leviticus, and the constant practice of the commonwealth of the Jews, a man was prohibited not to marry his wife's sister only during her life, after he might:" and this agrees with Michaelis, vol. ii. p. 112, cited in T. C. Foster's "Keview of the Law Relating to Marriages within the Prohibited Degrees of Affinity," p. 79. It was argued in Kegina v. St. Giles in the Fields (ante, p. 193), that, in the enactment of slat. 32 H. 8, c. 38, s. 2, "that no reservation," &c. "God's law except, shall trouble or impeach any marriage without the Levitical degrees," the word " degrees" must not be confined to the particular instances of degree mentioned in the 18th of Leviticus, but must be taken as extending to similar degrees, and as comprehending classes. There is, however, no expression in the clause warranting this assumption. And the word "degrees" had before been used in stat. 28 H. 8, c. 7, ss. 11 and 13, as signifying particular relationships enumerated in that Act, and not as a technical term signifying a mode of being related. In G. L. Boehmer's Principia [209] Juris Canonici, p. 322, b. 3, s. 2, tit. 6, s. 396 (7th ed., 1802), it is laid down that, where the divine law specifies persons who may not marry, the interpretation by parity is inadmissible; and it is also said that marriages not expressly prohibited may be permitted by dispensation ; "cujusmodi sunt nuptiee cum defunctre uxoris sorore " (a)1. Kelly then discussed the effect of the repeal and revival of statutes from 25 H. 8 to 1 Eliz.; but the principal arguments on this head are already reported in the preceding case. He observed that stat. 32 H. 8, c. 38, did not, when declaring the lawfulness of certain marriages, refer to the definitions of illegality contained in former statutes, although there were two on that subject in force at the time; lie urged that, when a former Act of the same reign (28 H. 8, c. 16, s. 2) intended to limit the law by reference to previous enactments, it made express allusion to the statute (28 H. 8, c. 7) : and he inferred that, in construing stat. 32 H. 8, c. 32, the Court were bound to consider only "God's law," the sole authority there pointed to, and must enquire this out for themselves. He further contended that, even if this could have been otherwise, there remained no statutory declaration of God's law to be embodied in the last two Acts of H. 8, since all the clauses of stat. 28 H. 8, c. 7, which contained such declaration had been repealed by stat. 1 & 2 Ph. & M. c. 8, ss. 17, 20, *nd were not revived by stat. 1 Eliz. c. 1, the language of which Act, from sect. 10 to sect. 13, shewed no intention to carry back the rule of law on this head, but only to abolish some [210] Acts of the late reign on other subjects, and to continue the repeal of those enactments, made in the time of Henry 8th, which affected the Queen's legitimacy (a)2. When an Act, explained and amended by other Acts, has expired, and is revived, the other Acts, if they also have expired, are revived for the purpose, strictly, of explanation and reference, and no farther: this is the whole effect of Williams v. Rwgheedge (2 Burr. 747). It might be expected from the variety of legislation on this subject that there would be confusion and inconsistency in the decisions. The first case extant, after stat. 32 H. 8, c. 32, is Mantle's case (c) (32 Eliz.), where, according to Moore's report, the party was sued in the Court Christian for marrying one of his wife's sister's daughters, and a prohibition was awarded, because such marriage is not prohibited by the Levitical law. In Leonard's report it is said that, although the marriage was " not expressly within the Levitical degrees, yet because more farther degrees are prohibited the Archbishop of Canterbury and other the commissioners gave sentence against him, upon which he sued a prohibition upon the stat, of 32 H. 8, c. 38." A consultation was afterwards granted...
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