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Resummons

custodia.

Fitz. Proces. 33.

the defendant or his heirs, if the executors be not sufficient to

satisfy for the value of the marriage, after it is contained in other 20 H. 3, c. 6. statutes, but not as to the pain of imprisonment; for none ought to 3 Ed. 1, c. 22.

be punished for the offence of another. In the same manner when in communi

a plea hangeth between parties for the ward of land, or of an heir, 52 H. 3, c. 7. or of both, by the common writ that beginneth præcipe tali fc.

quod reddat, &c. Resummons shall be made between the heirs and executors of the plaintiff; and likewise the heirs and the executors of the defendant, if death prevent any of the parties before the plea determined. And when they have passed to the great distress, a day shall be given, within which three county courts may be holden at the least, in every of which open proclamation shall be made, that the deforcer shall come into the bench at the day contained in the

writ, to answer the plaintiff; at which day if he come not, and the Dyer 369. Ejectione proclamation be so returned once, twice, or thrice, the judgment shall Regist . 161, pass for the plaintiff

, saving the right of the defendant, if after he will claim it. In the same manner it shall be done in a writ of trespass, OBS, by 12 Car. 2, c. 24. when any complaineth himself to be ejected from such wardships.

18 EDWARD 3, Stat. 3, CAP. 2.-Bigamy shall be tried by the ordinary, and not by inquest.—See Title—“BIGAMY," vol. i. p. 277.

25 EDWARD 3, ŠTAT. 2.-In what place bastardy pleaded against him that is born out of the realm shall be tried.--See Title—“BasTARDY,” vol. i. p. 235.

9 Henry 6, Cap. 11.-Proclamations before a writ be awarded to the bishop to certify bastardy. See Title—“ BASTARDY," vol. i.

Fitz, Gard. 89.

custodia,

&c.

p. 236.

25 HENRY 8, CAP. 22, Secs. 2, 3, 4, 5, & 14.-An act concerning the king's succession.

II. In consideration whereof, your said most humble and obedient subjects, the nobles and commons of this realm, calling further to their remembrance, that good unity, peace and wealth of this realm, and the succession of the subjects of the same, most especially and principally above all worldly things consisteth and resteth in the certainty and surety of the procreation and posterity of your highness, in whose most royal person at this present time, is no manner of doubt nor question; do therefore most humbly beseech your highness, that it may please your majesty, that it may be enacted by your highness, with the assent of the lords spiritual and tem

poral, and the commons, in this present parliament assembled, and Themarriage by the authority of the same, that the marriage heretofore solembetween the nized between your highness and the lady Katherine, being before lady Kather- the lawful wife to prince Arthur, your elder brother, which by him ine shall be adjudged

was carnally known, as doth duly appear by sufficient proof in a void, and the lawful process had and made before Thomas, by the sufferance of good, God, now archbishop of Canterbury, and metropolitan and primate

of all this realm, shall be, by authority of this present parliament, definitively, clearly and absolutely declared, deemed and adjudged to be against the laws of Almighty God, and also accepted, reputed and taken of no value nor effect, but utterly void and adnihiled, and the separation thereof, made by the said archbishop, shall be good and effectual to all intents and purposes; any licence, dispensation or any other act or acts going afore, or ensuing the same, or to the

consonant to

contrary thereof, in anywise notwithstanding; and that every such licence, dispensation, act or acts, thing or things heretofore had, made, done, or to be done to the contrary thereof, shall be void and of none effect; and that the said lady Katherine shall be from hence- The lady forth called and reputed only dowager to prince Arthur, and not shall be calqueen of this realm; and that the lawful matrimony had and led dowager solemnized between your highness and your most dear and entirely Arthur, and beloved wife queen Anne, shall be established, and taken for un- not queen. doubtful, true, sincere and perfect ever hereafter, according to the just judgment of the said Thomas, archbishop of Canterbury, metropolitan and primate of all this realm, whose grounds of judgment have been confirmed, as well by the whole clergy of this realm in both the convocations, and by both the universities thereof, as by the universities of Bonony, Padua, Paris, Orleans, Toulouse, Anjou, and divers others, and also by the private writings of many right excellent well learned men; which grounds so confirmed, and judg- Themarriage ment of the said archbishop ensuing the same, together with your king and his marriage solemnized between your highness and your said lawful wife queen wife queen Anne, we your said subjects, both spiritual and temporal, be taken for

good, and do purely, plainly, constantly and firmly accept, approve and ratify for good, and consonant to the laws of Almighty God, without error God's law. or default; most humbly beseeching your majesty, that it may be so established for ever by your most gracious and royal assent.

III. And furthermore, since many inconveniences have fallen, as Marriage well within this realm as in others, by reason of marrying within the degrees prodegrees of marriage prohibited by God's laws, that is to say, the son to marry the mother, or the step-mother, the brother the sister, the 2 Vent. 11. 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-mother, or the son to marry his aunt, being his father's or mother's sister, or to marry his uncle's wife, or the father to marry his son's wife, 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, albeit they be plainly prohibited 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, admitted nor allowed; for no man, of what estate, degree No man hath or condition soever he be, hath power to dispense with God's laws, power to disas all the clergy of this realm in the said convocations, and the most God's law. part of all the 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 residents of this realm, or in any your dominions, of what estate, dignity or degree 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 dominions, within any the degrees above expressed, and by any the archbishops, bishops or ministers of the church of England, be separate from the bonds of such unlawful marriage, that

hibited by God's law.

32 H. 8, c. 38. Persons heretofore married

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 nor legitimate; any foreign laws, licences, dispensations or other thing or things to the contrary thereof notwithstanding.

V. And in case there be any person or persons within this realm,

or in any the king's dominions, already married within any the said within the degrees above specified, and not yet separate from the bonds of such degrees aforesaid

unlawful marriage, that then every such person so unlawfully marshall be se- ried, shall be separate by the definitive sentence and judgments the ordina of the archbishops, bishops and other ministers of the church of is sentence England, and in other your dominions, within the limits of their 25 H. 8, c.21, jurisdictions and authorities, and by none other power or authority; 9. 8, n. 1. and that all sentences and judgments given and to be given by any

archbishop, bishop or other minister of the church of England, or in other the king's dominions, within the limits of their jurisdictions and authorities, shall be definitive, firm, good and effectual, to all intents, and be observed and obeyed, without suing any provocations, appeals, prohibitions or other process from the court of Rome, to the derogation thereof, or contrary to the act made since the beginning of this present parliament, for restraint of such provoca

tions, appeals, prohibitions and other processes. Marriage XIV. Provided always, that the article in this act contained conknowledge. cerning prohibitions of marriages within the degrees afore mentioned

in this act, shall always be taken, interpreted and expounded of such marriages, where marriages were solemnized and carnal knowledge was had.

28 HENRY 8, CAP. 7, Secs. 9—12.-An act for the establishment

of the imperial crown of this realm. A further IX. And furthermore since many inconveniencies have fallen, as explanation well within this realm as in others, by reason of the marrying within grees prohib- the degress of marriage prohibited by God's laws, that is to say, the carnal know-son to marry the mother, or the step-mother carnally known by his ledge. father: the brother the sister: 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-mother: or the son to marry his aunt, being his father's or mother's sister: or to marry his uncle's wife carnally known by his uncle: or the father to marry his son's wife carnally known by his son: or the brother to marry his brother's wife carnally known by his brother: or any man married, and carnally knowing his wife, 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.

X. And further to dilate and declare the meaning of these prohibeing car

bitions, it is to be understood, that if it chance any man to know nally known, the prohibi-' carnally any woman, that then all and singular persons, being in any extend to all degree of consanguinity or affinity, as is above-written, to any of the allied in any parties so carnally offending, shall be deemed and adjudged to be both parties,

within the cases and limits of the said prohibitions of marriage. All which marriages albeit they be plainly prohibited and detested by the laws of God, yet nevertheless at sometimes they have proceeded under colours of dispensations by man's power, which is but usurped,

See 1 Eliz. c. 1,

A woman

and of right ought not to be granted, admitted nor allowed. For with which no man of what estate, degree, or condition soever he be, hath power pense. to dispense with God's laws, as all the clergy of this realm in the said convocations, and the most part of all the universities of Christendom, and we also do affirm and think.

XI. Be it therefore enacted by authority aforesaid, according as it Recital and is declared and contained in the said act, made in the last parliament of the forefor the establishment of your succession, that no person or persons, SH.S. subjects, or residents of this realm, or in any your dominions, of what estate, degree or dignity soever they be, shall from henceforth marry within the degrees afore rehearsed, what pretence soever shall be made to the contrary thereof. And in case any person or making all persons, of what estate, dignity, degree or condition soever they be, good, that be heretofore married within this realm, or in any other the king's dominions, within any the degrees above rehearsed, and by any the archbishops or ministers of the church of England be separate from the bonds of such unlawful marriages : 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 or procreate under and the issue such unlawful marriage, shall not be lawful nor legitimate : any

illegitimate, foreign laws, licences, dispensations, or other thing or things to the contrary thereof notwithstanding.

XII. And that in case there be any person or persons within this and comrealm, or in any the king's dominions, already married within any such marriof the said degrees above specified, and not yet separate from the ages to be

separated, bonds of such unlawful marriage, that then every such person so unlawfully married, shall be separate by the definitive sentence and judgments of the archbishops, bishops, and other ministers of the church of England, and in other your dominions, within the limits of their jurisdictions and authorities, and by none other power or authority. And that all sentences and judgments given and to be without given by any archbishop, bishop, or other minister of the church of Kome. England, or in any other the king's dominions within the limits of their jurisdictions and authority, shall be definitive, firm, good, and effectual to all intents, and be observed and obeyed, without suing any provocations, appeals, prohibitions, or other process from or to the court of Rome, to the derogation thereof, contrary to the act made sithence the beginning of the last parliament for restraint of such provocations, appeals, prohibitions and other processes.

32 HENRY 8, CAP. 38.- For marriages to stand notwithstanding pre-contracts.—Whereas heretofore the usurped power of the bishop What marof Rome hath always entangled and troubled the mere jurisdiction lawful, and and regal power of this realm of England, and also unquieted much what not.

2 Inst. 683 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 more at 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 :

tracts.
Vin. v. 15,
262.

sations to

Theenormity II Therefore it is thought most convenient to the king's highness, marriage to his lords spiritual and temporal, with the commons of this realm, by pre-con- assembled in this present parliament, that two things specially for

this time be with diligence provided for, whereby many inconveniences have ensued, and many more else might ensue and follow : as where heretofore divers and many persons, after long continuance 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) being divorced and separate, contrary to God's law, and so the true matrimony, both solemnized in the face of the church, and consum

mate with bodily knowledge, and confirmed also with the fruit of The incon- children had between them, clearly frustrate and dissolved: further of dispen- also, by reason of other prohibitions than God's law admitteth, for marry.

their lucre by that court invented, the dispensations whereof they always reserved to themselves, as in kindred or affinity between cousin-germans, and so to fourth and fourth degree, 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 wro gful 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 uncertainty 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 and 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 Cro. El. 228. the places where such abominations were used and suffered : be it Co. Lit.235, a. therefore enacted by the king our sovereign lord, the lords spiritual be lawful to and temporal, and the commons, in this present parliament assemmarriage

bled, and by the authority of the same, that from the first day of that be not the month of July next coming, in the year of our Lord God, one by God's law, thousand five hundred and forty, all and every such marriages as Vaugh. 206. within this church of England shall be contracted between lawful riage is in- persons (as by this act we declare all persons to be lawful, that be which is con- not prohibited by God's law to marry) such marriages being contract tracted and and solemnized in the face of the church, and consummate with

contract

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