[280] Woolsey, op. cit., 124.
[281] See First Report of Commissioners (affinity), 1847-48, v; also Hammick, Marriage Law, 32. Originally the decree might be rendered after the death of one or both of the persons, without, of course, affecting the status of the children.
[282] See Pride v. The Earls of Bath and Montague (1695): in 1 Salkeld's Reports, 120, declaring that the reason why the spiritual court cannot give sentence to annul a marriage after the death of the parties is "because sentence is given only pro salute animae, and then it is too late." Cf. Geary, Marriage and Family Relations, 10, 11; Blackstone, Commentaries, I, 444; Jeaffreson, Brides and Bridals, II, 262-64.
[283] Harris v. Hicks (1694): in 2 Salkeld's Reports, 548, where such consort may be proceeded against for incest. "Our forefathers, with exquisite inconsistency, were of opinion that the survivor might (for his or her soul's good) be proceeded against and punished in a spiritual court, for having committed sin in respect of the marriage which might not be adjudged a sinful nullity."—Jeaffreson, op. cit., II, 264. Cf. Geary, op. cit., 10, 11, 32.
[284] 5 and 6 W. IV., c. 54; also in Hammick, Marriage Law, 281. Compare Hansard's Parl. Debates, 3d series, XXXVIII, 203-7; XXX, 661, 662. In general, see Geary, op. cit., 10, 11, 32; Burn, Ecc. Law, II, 501c-501e; Hammick, op. cit., 32, 33, 23; Ernst, Marriage and Divorce, 183, 184; Luckock, Hist. of Marriage, 300-307; Jeaffreson, op. cit., II, 264-66; Bishop, Marriage, Divorce, and Separation, I, §§ 288, 289, 753; Tracts Issued by the Mar. Law Defence Union, II, 91-104.
The act extends to Ireland. "By the law of Scotland the distinction between void and voidable marriages was never recognized, all marriages within the prohibited degrees being void ab initio."—Hammick, op. cit., 33 n. a.
[285] This liberal exception, mainly in favor of existing unions with a deceased wife's sister, is of course denounced by writers such as Luckock, op. cit., 305, as a "mischievous concession and compromise principle."
[286] For the special senses in which the term is used see the discussion of Bishop, op. cit., I, §§ 252-92, already cited.
[287] The only surviving canonical impediment for which a marriage may be voidable, but not void, is impotence. The same principle is also applied to marriages secured by force: Geary, op. cit., 34, 203 ff., 212; Hammick, Marriage Law, 48, 49.
[288] Marriage with a deceased wife's sister or a husband's brother is included in the table of forbidden degrees approved by Archbishop Parker in 1563. It purports to be based on the Levitical code; and it was accepted as the law of the English church by the ninety-ninth canon of 1603: Hammick, op. cit., 32 ff., 350; Tracts Issued by the Mar. Law Defence Union, I, 51 ff.