PART I. CLASS III. Marriage. [ No. I.] 25 Henry VIII. c. 22.-An Act concerning the King's Succession. p. III. AND furthermore, since many inconveniences have fallen, as Marriage within well within this realm as in others, by reason of marrying the Degrees 'within degrees of Marriage prohibited by God's laws, that is to say, prohibited by 'the son to marry the mother or the stepmother, the brother the sister, God's Law. the father his son's daughter or his daughter's daughter, or the son to marry the daughter of his father procreate and born by his step- 2 Vent. 11. mother, or the son to marry his aunt being his father's or mother's 32 H. VIII. 'sister, or to marry his uncle's wife, or the father to marry his son's wife, c. 38. or the brother to marry his brother's wife, or any man to marry his wife's daughter, or his wife's son's daughter, or his wife's daughter's daughter, or his wife's sister; which marriages, although they be plainly prohibite and detested by the laws of God, yet nevertheless at some times they have proceeded, under colours of dispensations by man's power, which is but usurped, and of right ought not to be granted No man hath admitted nor allowed; for no man, of what estate degree or condition Power to dissoever he be, hath power to dispense with God's laws, as all the Clergy pense with of this realm in the said convocations, and the most part of all the God's Law. 'famous universities of Christendom, and we also, do affirm and think.' IV. Be it therefore enacted by the authority aforesaid, That no person or persons subjects or resiants of this realm or in any your dominions, of what estate degree or dignity soever they be, shall from henceforth marry within the said degrees afore rehearsed, what pretence soever shall be made to the contrary thereof; and in case any person or persons, of what estate dignity degree or condition soever they be, hath been heretofore married within this realm, or in any the King's domninions, within any the degrees above expressed, and by any the Archbishops or Ministers of the church of England, be separate from the bonds of such unlawful marriage, that then every such separation shall be good lawful firm and permanent for ever, and not by any power authority or means to be revoked or undone hereafter, and that the children proceeding and procreate under such unlawful marriage shall not be lawful ne legitimate; any foreign laws licences dispensations or other thing or things to the contrary thereof notwithstanding. (1) (1) This statute is repealed by 28 Henry VIII. c. 7. entitled An Act for the Establishment of the Imperial Crown of this Realm, which proceeds upon some alleged grounds of invalidity in the marriage with Anne Bullen, but adopts the same principles, and contains the same prohibitions with respect to the degrees of consanguinity or affinity within which persons are prohibited from marriage. Both statutes are repealed, by stat. 1 Mary, Sess. 2. Chap. 1. entitled An Act declaring the Queen's Highness to have been Born in a most just and lawful Matrimonie, and also repealing all Acts of Parliament and Sentences of Divorce past and made to the contrary. The Act after a very curious Preamble, declares all Sentences against the Marriage of Henry VIII. with Queen Katherine to be void; and repeals the two statutes of 25 and 28 Henry VIII. and declares "the said Marriage had and solemnized betwixt your most noble Father King Henry and your said most noble Mother Queen Katherine, shall be diffinitively clearly and absolutely declared deemed and adjudged to be and stand with God's Laws, and his most holy Word, and to be accepted reputed and taken of good effect and validity, to all intents and purposes."-The two statutes of 28 Henry VIII. and 1 Mary, are in the Appendix to Runnington's Edition of the Statutes; and there does not appear to be any subsequent act by which the latter of these statutes is repealed. In statute 32 Henry VIII. c. 28. (See the following Number of this Collec No. I. XIV. Provided always, That the Article in this Act contained concerning prohibitions of marriages within the degrees afore-mentioned in 25 H. VIII. this Act, shall always be taken interpreted and expounded of such Marriages, where Marriages were solemnized and carnal knowledge was had. c. 22. *Marriage with carnal know ledge. What Mar riages are lawful, and what are not. 2 Inst. 683. [ No. II. ] 32 Henry VIII. c. 38.—For Marriages to stand notwithstanding Pre-contracts. [See 26 Geo. II. c. 33. s. 13. infra.] 32H.VIII. c.32. WHEREAS heretofore the usurped power of the Bishop of Rome hath always entangled and troubled the micer Jurisdiction and regal Power of this Realm of England, and also unquieted much the subjects of the same, by his usurped power in them, as by making that unlawful which by God's Word is lawful, both in Marriages and other things, as hereafter shall appear at more length, and till now of late in our Sovereign Lord's time, which is otherwise by learning taught than his predecessors in times past of long time have been, hath so continued the same, whereof yet some sparks be left, which hereafter might 'kindle a greater fire, and so remaining, his power not to seem utterly ' extinct: 6 The enormity II. Therefore it is thought most convenient to the King's Highof avoiding ness, his Lords Spiritual and Temporal, with the Commons of this Marriages by Pre-contracts. Vin. V. 15,262. tion) it is provided that all marriages shall be lawful between persons that be not prohibited by God's law to marry-and that no reservation or prohibition, God's law except, shall trouble or impeach any Marriage without the Levitical degrees. The 99th Canon of 1603, establishes a Table of Prohibitions conformable to the Levitical degrees, and excluding a Marriage with the Sister of a deceased Wife, but this Canon as being made subsequent to the Reformation is expressly decided to be of no authority, in the case of Middleton and Croft, the famous and elaborate judgment of Lord Hardwicke in which is contained in the second Volume of Atkins's Reports, p. 650. In Hill v. Good, Vaughan's Reports, 305, a Marriage with the Sister of a deceased Wife, and in Butler v. Gastrell, Gilb. Rep. 156, a Marriage with the Aunt of a deceased Wife, are decided to be invalid ;-but in neither of these Cases, is any notice taken of the statute of Mary, and in both of them reliance is placed on the Canon of 1603: A very learned argument upon this subject was published by Mr. Alleyne, of which the second Edition was printed in his lifetime, in 1773, and a third Edition has lately been published, entitled "The Legal Degrees of Marriage stated and considered." The object of the argument is to shew, by a critical Examination of the 11th Chapter of Leviticus, and a Comparison of of it with the 25th Chapter of Deuteronomy, (which especially enjoins a Marriage with the Wife of a deceased Brother) that the former relates not to Prohibitions of. Marriage, but to Adultery. This construction is approved by the Correspondence of several eminent Scholars, and amongst others the celebrated Sir William Jones, and several English Divines, contained in the Appendix. It is also argued, that the mention of the Levitical degrees in the 32d-Henry VIII. is only by way of instance, and not as a legislative enactment, that those degrees shall be considered as marking the Prohibitions by the Divine Law. The Treatise was written with a view to the obtaining a declaratory act upon the subject. The Marriage with the Widow of a deceased Brother is certainly held invalid by the Spiritual Court; and although the Cases of Hill v. Good, and Butler v. Gastrell, decided in the Courts of Common Law, are subject to the observations already mentioned, of admitting the authority of the Canon, and of not adverting to the statute of Mary, and the subject does not appear to have been ever brought before these courts upon a view of the arguments which have been referred to, the Cases I conceive would be regarded as of binding authority.-But in case the subject should at any time be submitted to the attention of the Legislature, the publication alluded to would be found to contain very important matter for consideration, with respect both to Scripturak authority and moral policy. The Marriage with the Widow of a Great Herman v. Burrell. Vaughan, Uncle is legal. 206. I take it to be agreed, that a Marriage between the Illegitimate Son and Daughter of the same Mother, is invalid; but the question whether a Marriage with the Bastard Daughter of a Sister is invalid, arose and was not decided in Huins v. Jeffell, 1 Ld. Raym. 68. 5 Mod. 168. Comyns 2. Comb. 356. but such a marriage appears to have been considered as void by the Spiritual Court. See Sir William Scott's judgment in Horner Liddiard, reported by Dr. Croke. It is clear that a marriage cannot after the death of either of the parties be impeached for consanguinity or affinity. No. II. c. 38. 'realm, assembled in the present Parliament, That two things specially for this time be with diligence provided for, whereby many in- 32 H. VIII. 'conveniences have ensued, and many mo else mought ensue and follow; as where heretofore divers and many persons, after long continuances together in Matrimony, without any allegation of either of the parties, or any other at their Marriage, why the same Matrimony should not be good just and lawful, and after the same Matrimony solemnized and consummate by carnal knowledge, and also sometime fruit of children ensued of the same Marriage, have nevertheless, by an unjust law of the Bishop of Rome, which is, That upon pretence of a former contract made and not consummate by carnal copulation (for proof whereof two witnesses by that law were only required) been divorced and separate, contrary to God's Law, and so the true Matrimony, both solemnized in the face of the church and consummate with bodily knowledge and 'confirmed also with the fruit of children had between them, clearly ⚫ frustrate and dissolved: Further also, by reason of other prohibitions The inconvenithan God's Law admitteth, for their lucre for that court invented, the dispensation whereof they always reserved for themselves, as in kindred ences of Dis pensations to Cro. El. 228. or affinity between cousin-germanes, and so to fourth and fourth degree, marry. ⚫ carnal knowledge of any of the same kin, or affinity before in such outward degrees, which else were lawful, and be not prohibited by God's 'Law, and all because they would get money by it, and keep a reputation to their usurped jurisdiction, whereby not only much discord between lawful married persons hath (contrary to God's ordinance) arisen, much debate and suit at the law, with the wrongful vexation, and great damage of the innocent party hath been procured, and many just Marriages brought in doubt and danger of undoing, and also many times ⚫ undone, and lawful heirs disherited, whereof there had never else, but for his vain-glorious usurpation, been moved any such question, since freedom in them was given us by God's law, which ought to be most sure and certain; but that notwithstanding, Marriages have been brought into such an incertainty thereby, that no Marriage could be so surely knit and bounden, but it should lie in either of the parties power and arbiter, casting away the fear of God, by means and compasses to prove a pre-contract a kindred an alliance or a carnal knowledge to defeat the same, and so under the pretence of these allegations afore rehearsed to live all the days of their lives in detestable adultery, to the utter destruction of their own souls, and the provocation of the ⚫ terrible wrath of God upon the places where such abominations were suffered and used;' Be it therefore enacted by the King our Sovereign Lord, the Lords Spiritual and Temporal and the Commons in this present Parliament assembled, and by authority of the same, That from the first day of the month of July next coming, in the year of cur Lord God one thousand five hundred and forty, all and every such Marriages as within this church of England shall be contracted between lawful persons (as by consummate this Act we declare all persons to be lawful, that be not prohibited by with bodily God's law to marry) such Marriages being contract and solemnized in the knowledge or face of the church, and consummate with bodily knowledge, or fruit of fruit of Child, children or child being had therein between the parties so married, shall notwithstanding be by authority of this present parliament aforesaid deemed judged any pre-conand taken to be lawful good just and indissoluble, notwithstanding any pre-contract or pre-contracts of matrimony not consummate with bodily Repealed by knowledge which either of the persons so married or both shall have 2 and 3 Ed. 6. made with any other person or persons before the time of contracting that Marriage which is solemnized and consummate, or whereof such fruit is ensued or may ensue as afore, and notwithstanding any dispensation prescription law or other thing granted or confirmed by Act or byl El.c. 1.§12. otherwise; and that no Reservation or Prohibition, God's Law except, shall as to so much as trouble or impeach any Marriage without the Levitical Degrees ;" and that is not repealed no person of what estate degree or condition soever he or she be, shall, by 2 & 3 Ed.6. after the first day of the said month of July aforesaid, be admitted in any That Marriage which is conis indissoluble structed and solemnized in the face of the Church, and tract. 1 c. 23. § 2. and & 2 Ph. & M. c. 8. § 20 and in part revived c. 23. * See Note on No. 1. the last Starte No. II. 32 H. VIII. c. 38. of the Spiritual Courts within this the King's realm, or any of his Grace's Part of the Sta- " tracts repealed. [ No. III. ] 2 and 3 Edward VI. c. 23.-The Repeal of an Act made in the xxxij. Year of King HENRY the Eighth, which was made, That Marriage contracted in the Face of the Church, and consummate with bodily Knowledge, to be deemed lawful, any former Contract notwithstanding. WHEREAS in the thirty-second year of the reign of the late King tute of Precon- " of famous memory, King Henry the Eighth, because that many 'inconveniences had chanced in this realm by breaking and dissolving of good and lawful Marriages, yea, whereupon also sometime issue ' and children had followed, under the colour and pretence of a former 'contract made with another, the which contract divers times was but very slenderly proved, and often but surmised by the malice of the party who desired to be dissolved from the Marriage which they liked not and to be coupled with another, there was an Act made, That all and every such Marriages as within the Church of England should 'be contracted and solemnized in the face of the Church, and consum' mate with bodily knowledge, or fruit of children or child being had between the parties so married, should be by the authority of the said Parliament deemed judged and taken to be lawful good just and indis⚫ soluble, notwithstanding any pre-contract or pre-contracts of Matrimony not consummate with bodily knowledge, which either of the persons so married or both had made with any other person or persons before the time of contracting that Marriage which is solemnized or consummated, or whereof such fruit is ensued or may ensue as by the same Act more plainly may appear: Sithe the time of the which Act, although the same was godly meant, the unruliness of men hath ungodly abused the same, and divers inconveniences (intolerable in manner to christian cars and eyes) followed thereupon, women and men breaking their own promises and faiths made by the one unto the other, so set upon sensuality and pleasure that if after the contract of Matrimony they might have whom they more favoured and desired, they could be content by lightness of their nature to overturn all that they had done afore, and not afraid in manner, even from the very church door and marriage-feast, the man to take another spouse, and the espouse to take another husband, more for bodily lust and carnal knowledge than for surety of faith and truth, or having God in their good remembrance, contemning many times also the commandment of the ecclesiastical judge forbidding the parties having made the 'contract to attempt or do any thing in prejudice of the same:' A Repeal of so much of the Statute of 32 H.VIII.c.38, as maketh that Marriage indis soluble which is solemnized in the Church, and consummated with bodily knowledge and fruit of Child. Vin. V. 15,622. II. Be it therefore enacted by the King's Highness the Lords Spiritual and Temporal and the Commons in this present Parliament assembled, That as concerning pre-contracts, the said former statute shall from the first day of May next coming cease, be repealed and of no force or effect, and be reduced to the estate and order of the King's ecclesiastical laws of this realm, which immediately before the making of the said estatute in this case were used in this realm: So that from the said first day of May, when any cause or contract of Marriage is pretended to have been made, it shall be lawful to the King's ecclesiastical judge of that place to hear and examine the said cause: And (having the said contract sufficiently and lawfully proved before him) to give sentence for Matrimony, commanding solemnization cohabitation consummation and tractation as becometh man and wife to have, with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said statute the King's ecclesiastical judge by the King's ecclesiastical laws ought and might have done if the said statute had never been inade; any clause * In the printed copy it is styled the twenty second. |