Lord Chelmsford.
"The marriage of the parents of the respondent having taken place prior to 1835, it is necessary to consider what was the law of England, with respect to a marriage with a deceased wife's sister before the Act of Parliament of that year. I think it cannot properly be questioned that such a marriage was void ad initio[1]. Now there was a wellknown maxim of our law, 'Quod ab initio non valet, in tractu temporis non convalescit.' This rule would have had its full force and operation in these marriages, if it had not been for the interference of the Temporal Courts with the proceedings of the Ecclesiastical Courts after the death of one of the parents. This jurisdiction of the Temporal Courts appears to have been exercised in favour of the issue of the marriage, which they thus protected from being bastardized, by preventing the Ecclesiastical Courts from declaring a marriage to have been void, which had been already dissolved by death. For it is to be observed, as has been stated, that in these cases the Ecclesiastical Courts pronounced no decree of divorce, but merely made a declaration of the nullity of the marriage; and the Temporal Courts only restrained the Ecclesiastical Courts from making this declaration at a time when it could have no practical effect upon the marriage itself, and when its only operation would be to bastardize the issue. This is not unimportant, as showing that the question of the original validity of the marriage was not at all touched by the Temporal Courts thus disabling the Ecclesiastical from pronouncing a declaration respecting it. And that the Temporal Courts by their interposition did not profess to
- ↑ Within a few weeks a Scottish tribunal has held the same marriage to have been always illegal in Scotland, as being contrary to Scripture.
