Amendments V and VI
Brownsword v. Edwards28 Eng. Rep. 157 Ch. 1751
Lord Chancellor. This appears a very plain case, in which defendant may protect herself from making a discovery of her marriage; and I am afraid, if the court should overrule such a plea, it would be setting up the oath ex officio; which then the parliament in the time of Charles I. would in vain have taken away, if the party might come into this court for it. The general rule is, that no one is bound to answer so as to subject himself to punishment, whether that punishment arises by the ecclesiastical law of the land. (2 Ves. sen. 389, 451; 1 Atk. 539; 2 Atk. 393; 1 Brown, 97. In case of a bankrupt smuggler, the commissioners may examine him, but he may demur to the interrogatories, and have the opinion of the court. 2 Atk. 200; 1 vol. 247; 3 Wms. 376; 1 Vern. 109.) Incest is undoubtedly punishable in ecclesiastical court; and such a crime is generally excepted out of the acts of pardon. The ecclesiastical court has conusance of incest in two respects, diverso intuitu: first to judge of the legality of the marriage, and to pronounce sentence of nullity; and if they do so, proceeding lawfully and rightfully, it binds all parties, being the judgment of a court having proper jurisdiction of the cause. The other is to censure and punish persons guilty by ecclesiastical censure, as for fornication, adultery, &c. Nor is it material what the nature of the punishment is. It is a punishment which must be performed or got rid of by commutation, which is like a fine. Then consider the present case. The discovery whether lawfully married takes in the whole, whether married in fact, and whether that marriage was lawful. Defendant has pleaded to it; which she may do; and in the plea it is proper to bring in facts and averments to support that plea: whereas a demurrer can be to nothing but what appears on the face of the bill, otherwise it would be a speaking demurrer. (Averments are necessary to exclude intendments which would be made against the pleader, for the court will always intend the matters charged against the pleader unless fully denied. 2 Atk. 241; Gilb. 185.) But here it was necessary to bring in such an averment, that testator was lawfully married before to her sister, and had issue; which is a fact necessary to shew; and that fact she has taken on herself to prove: the plea therefore is regular in form, and good in substance. The objection to the plea is, that one of the parties to the incestuous marriage being dead, there can be no proceeding afterward. I always took the distinction to be what is laid down in Hicks v. Harris, that by the law of the land the ecclesiastical court cannot proceed to judge of the marriage and to pronounce sentence of nullity after death of one of the married parties, especially where there is issue, because it tends to bastardise the issue; and none after death of one of the parties to that marriage is to be bastardised: but there is no rule of law standing to prevent either of the parties from punishment after death of the other. Suppose it was an offence of adultery or fornication, there is no rule of the civil or ecclesiastical law, that after death of one of the parties the survivor may not be punished for the offence: undoubtedly they may, either proceeding ex officio, by office of the ecclesiastical judge, or by promotion of a proper informant. Then why may not the ecclesiastical court do it in the case of incest, whether without the formality of marriage or attended with it? But it is said, Hicks v. Harris is no judicial determination in the point, and that all that was material before the court, was the joint jurisdiction; which is true: but there was a plain difference. If the court held, that the proceeding (and this is an answer to one part of the objection) even for the censure against the surviving party would have tended to affect the legitimacy of the marriage or the issue, the court of B.R. would have stopped there: but they went on this, that it could not be given in evidence against the issue or the plaintiff claiming under that issue: as was determined solemnly in B.R. on a long trial at bar, directed out of this court in Hillyard v. Grantham, in which I was of counsel. (See 3 Wooddeson, 318.) In that cause during life of the father and mother there had been a proceeding against both of them in the consistory court of Lincoln for living together in fornication, and sentence given against them. On the trial that sentence was offered in evidence to prove, that they were not married: the whole court were of opinion that it could not be given in evidence; because first, it was a criminal matter, and could not be given in evidence in a civil cause; next that it was res inter alios acta, and could not affect the issue: but they held, that if it had been a sentence on the point of the marriage on a question of the lawfulness of the marriage, it being a sentence of a court having proper jurisdiction, might have been given in evidence. If indeed there had been collusion that might be shewn on the part of the child to take off the force of it; because collusion affects every thing: but if no collusion, it binds all the world: but in a proceeding in a criminal way that could not be given in evidence: and that was the distinction the court went on in Hicks v. Harris. But if there had not been that authority, I should not have doubted on the nature of the thing, but that the ecclesiastical court might have proceeded after death of one of the party as well for incest as fornication; in which case there is no doubt they may. Thus far as to the merits of the plea. Some collateral arguments have been used, that it is not in every case the party shall protect himself against relief in this court upon an allegation, that it will subject him to a supposed crime. It is true, it never creates a defence against relief in this court, therefore in case of usury or forgery, if a proof can be made of it, the court will let the cause go on still to a hearing, but will not force the party by his own oath to subject himself to punishment for it (if plaintiff waves the penalty, defendant shall be obliged to discover, 1 Vern. 60, or whether the penalty arises from defendant's own particular agreement, he is obliged to discover. 2 Ver. 244. Or where the discovery sought is not of a fact which can subject defendant to any penalty, but connected with some other fact which may, 2 Ves. sen. 493). In a bill to inquire into the reality of deeds on suggestion of forgery, the court has entertained jurisdiction of the cause; though it does not oblige the party to a discovery, but directs an issue to try whether forged. I remember a case where there was a deed of rent-charge suggested to be forged: it was tried twice at law, and found for the deed: a bill was afterward brought to set it aside for forgery, and to have it delivered up to be cancelled. Lord King, notwithstanding the two trials, which has been in Avowry and Replevin, directed an issue: wherein it was found forged, and, I remember, was cancelled and cut to pieces in court. There are several instances of that: so that the relief the party may have is no objection. As to the objection from the consequence of allowing this plea if the defendant should fail in the proof of it, that would be an objection to the allowing any plea to a discovery: though it would be no objection to a demurrer, because that must abide by the bill: but all pleas must suggest a fact (which fact must conduce to one single point, per Lord Thurlow, 1 Brown, 417. 1 Atk. 54): it must go to a hearing; and if the party does not prove that fact, which is necessary to support the plea, the plaintiff is not to lose the benefit of his discovery: but the court may direct an examination on interrogatories in order to supply that. The plea therefore ought to be allowed.
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