guinity or affinity, as is above written, to any of the parties so carnally offending, shall be deemed to be within the cases and limits of the said prohibitions of marriage; all which marriages, albeit they be prohibited by the laws of God, yet sometimes have proceeded under colour of dispensation by man's power; it is enacted, that from henceforth no person shall marry within the degrees afore rehearsed. -ss. 10 & 11. And by 32 Hen. 8, c. 38, (u) all such marriages as shall be contracted between lawful persons (as by this act we declare all persons to be lawful, that be not prohibited by God's law to marry) such marriages being contracted and solemnized in the face of the church, and consummate with bodily knowledge or fruit of children or child being had therein, between the parties so married, shall be deemed lawful, just, and indissoluble; notwithstanding any pre-contract not consuminate with bodily knowledge, which either of the parties so married or both shall have made, with any other person, before the time of contracting that marriage, which is solemnized and consummate, or whereof such fruit is ensued or may ensue as aforesaid; and notwithstanding any dispensation, prescription, law, or other thing granted or confirmed by act or otherwise; and no reservation or prohibition, God's law except, shall trouble or impeach any marriage without the Levitical degrees; and no person shall be admitted in the spiritual court to any process, plea or allegation to the contrary. The latter act differs from the preceding in this, that if any man carnally know any woman, all persons in any degree of *consanguinity or affinity of the parties so offending are [ *165 ] within the prohibition, in like manner as if the parties carnally knowing one another had been married; for example if a man carnally know a woman, not marrying her, he is prohibited to marry her daughter or daughter's daughter, or è converso. In other respects the two statutes agree. The stat. 28 Hen. 8, c. 7, is said to be in force.(x) And by the 2 & 3 Ed. 6, c. 23, before mentioned, it is thus enacted, as concerning precontracts, the said statute of the 32 Hen. 8, c. 38, shall be repealed, and be of no force or effect, and be reduced to the estate and order of the king's ecclesiastical laws of this realm; so that when any cause or contract of marriage is pretended to have been made, it shall be lawful for 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 before the statute he might have done.(y) Provided, that this act do not extend to make good any of the other causes, to the dissolution (u) This act was repealed by 2 & 3 Edw. 6, c. 23, so far as relates to the not annulling marriages for cause of pre-contract, and confirmed as to the other parts of it. By 1 & 2 P. & M. c. 8, s. 4, this act was wholly repealed. By 1 Eliz. c. 1, s. 3, so much of this act is revived as was not repealed by 2 JULY, 1841.-N & 3 Edw. 6, c. 23. (x) Vaugh. 215. It is said that the statute 28 Hen. 8, c. 7, was revived by the reviver of the 28 Hen. 8, c. 16, in 1 Eliz., and made as effectual as before it was repealed, and so it continues; Vaugh. 325. (y) Section 2. or disannulling of matrimony, which be in the said act spoken of and disannulled; but that in all other causes, and other things therein mentioned, the said act do stand in force.(z) The 33 Hen. 8, c. 6, (Ir.) is the statute in Ireland corresponding exactly with 32 Hen. 8, c. 38; the Irish statute was repealed by 3 & 4 Ph. & M. c. 8, (Ir.,) but is revived as to so much only as concerns degrees of consanguinity by 2 Eliz. c. 1, s. 2,(Ir.)(a.) The object of these acts is to prevent the impeaching marriages for consanguinity or affinity without the Levitical degrees. The words, "God's law except," refer to cases of natural impotency, polygamy and adultery; for if the act had been general, that no marriage shall be impeached without the Levitical degrees, [ *166 ] it might have included cases of that description. Pre viously to these statutes, the distinction between lawful and unlawful marriages certainly existed in this country, and the lawfulness of them depended upon the divine law and the canon law, to judge of which the common law judges had no cognizance. No instance of any prohibition of the spiritual court for questioning a marriage, can be found before these acts.(b) Since the stat. 32 Hen. 8, c. 38, it has been clearly agreed, that if the spiritual courts proceed to impeach or dissolve a marriage out of the Levitical degrees, that then the temporal courts are to prohibit them; for by that statute all marriages that are out of those degrees are declared to be good and law. ful; and, therefore, if the spiritual court molest persons in doing that which is declared lawful to be done by the statutes of the realm, they are by the temporal courts to be prohibited, because they exceed their jurisdiction, thus bounded by the temporal law; but where the law. has not bounded them, their jurisdiction still continues; and, therefore within the Levitical degrees they are still judges of incest.(e) The degrees of proximity specified in the 18th chapter of Leviticus, are, by the statute 32 Hen. 8, c: 38, adopted as the legal degrees of marriages in the divine law. The law in Leviticus(d) is, "that none of you shall approach to any that is next of kin to uncover their nakedness," (e) which words *being general, must be understood and expounded by the examples from the 6th to [ *167 ] (z) Section 4. (a) See 1 Browne's Civil Law, 64. (b) Vaugh. 213. (c) Butler v. Gastrill, Gilb. R. 156; Harrison v. Burwell, Vaugh. 206. (d) Chap. 18, v. 6. (e) It has been contended that this expression is never used throughout Scripture to signify marriage, but the contrary expression is always used in the case of marriage, viz. spreading a skirt over a woman and covering the nakedness. Dr. Hammond Mr. Poole, Bishop Patrick, Mr. Pyle. Thus in Ruth, c. 3, v. 9, "Spread thy skirt over the handmaid," or, as explained by Mr. Poole on Ruth, "take me to be thy wife, and perform the duty of a husband unto me." So Ezekiel, c. 16, v. 8, "When I passed by thee, and looked upon thee, behold thy time was the time of love; and I spread my shirt over thee, and covered thy nakedness; yea, I swear unto thee saith the Lord God, and the 20th verse, among which are many prohibitions to collaterals in the third degree, both in affinity, and consanguinity; but there is no example of collaterals in the fourth degree, either in affinity or consanguinity, and therefore the law of marriage opens to relations in the fourth degree; and the Jewish lawyers, in computing their degrees, computed them according to the natural order of things; that is from the propositus up to the common stock, and so down to the other relations.(f) By this mode of computation, all marriages of collaterals in the third degree are unlawful, and all marriages in the fourth degree are lawful.(g) Table of Degrees.]—The provision in the statute 32 Hen. 8, c. 38, that no prohibition, God's laws excepted, shall impeach any marriage without the Levitical degrees, was defined and reduced [ *168 ] to a greater certainty by a table framed not merely according to the letter, but according to the spirit of the Levitical law. This table was set forth by Archbishop Parker, and published in the year 1563, and is usually called Archbishop Parker's Table of Degrees. The 99th canon of 1603 refers to this table, and declares that "No persons shall marry within the degrees prohibited by the laws of God, and expressed in a table set forth by authority in the year 1563;(h) *and all marriages so made and contracted shall be adjudged incestuous and unlawful, and consequently shall be idea of those degrees being by divine law, 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, Sir William Jones, and several English divines, contained in the A man may not marry his 1. Grandmother. 2. Grandfather's wife. 3. Wife's grandmother. 4. Father's sister. 5. Mother's sister. [ *169 ] Appendix to the above work. It is also argued, that the mention of the Levitical degrees, in the 32d Hen. 8, 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 for confirming such marriages. (f) Selden Uxor Hebraica, lib. 1, c. 4. (g) Gilb. 158. (h) The table set forth in the year 1563 is as follows: "An admonition to all such as shall intend hereafter to enter the state of matrimony godly and agreeable to the laws. 46 First, that they contract not with such persons as be hereafter expressed, nor with any of like degree, against the law of God, and the laws of the realm. "Secondly, that they make no secret contracts, without consent and counsel of their parents or elders, under whose authority they be, contrary to God's laws and man's ordi nances. "Thirdly, that they contract not anew with any other, upon divorce and separation made by the judge for a time, the laws yet standing to the contrary. A woman may not marry her 1. Grandfather. 2. Grandmother's husband. 3. Husband's grandfather. 4. Father's brother. 5. Mother's brother. dissolved, as void from the beginning, and the parties so married shall by course of law be separated." Construction of the Statutes as to prohibited Degrees.]-For the better understanding of these prohibitions, with the grounds and limitations of them, the following special rules are mentioned by Gibson as having been laid down both by lawyers and divines: First, that marriages in the ascending and descending line,(i) that is, of children with their father, grandfather, mother, grandmother, and so upwards, are prohibited without limit; because they are the cause (immediate or mediate) of their being: and it is directly repugnant to the order of their nature, which hath assigned several duties and offices essential to each, that would thereby be inverted and overthrown. A parent cannot obey a child; and therefore it is unnatural that a parent should be a wife to a child. A parent, as a parent, hath a natural right to command and correct a child; and that a child, as husband, should command and correct the same parent is unnatural.(k) To which we may add, the inconsistency, absurdity, and monstrousness of the relations to be begotten if such prohibition were not absolute and unlimited. The son or daughter, for instance, born of the mother, and begotten by the son, considered as born of the mother, would be a brother or sister to the father; but as begotten by him would be a son or daughter. So the issue procreate upon the 6. Father's brother's wife. 7. Mother's brother's wife. 8. Wife's father's sister. 9. Wife's mother's sister. 10. Mother. 11. Stepmother. 12. Wife's mother. 13. Daughter. 14. Wife's daughter. 15. Son's wife. 16. Sister. 17. Wife's sister. 18. Brother's wife. 19. Son's daughter. 24. Wife's daughter's daughter. 27. Brother's son's wife. 28. Sister's son's wife. (i) Marriage in the ascending and descending line is prohibited without limit, not so between collaterals. Harrison v. Burwell, 2 Ventr. 18. Prima regula est, nuptiæ inter adscendentes et descendentes in lineâ rectâ in infinitum prohibentur quam regulam et canones et ob mores hodierni sequuntur. Altera regula est, in lineâ obliqua æquali jure civili secundus gradus semper est prohibitus, quartus permissus; in inæquali tertius semper prohibitus, quartus 6. Father's sister's husband. 9. Husband's mother's brother. 11. Stepfather. 12. Husband's father. 13. Son. 14. Husband's son. 15. Daughter's husband. 16. Brother. 17. Husband's brother. 18. Sister's husband. 19. Son's son. 20. Daughter's son. 21. Son's daughter's husband. 22. Daughter's daughter's husband. 24. Husband's daughter's son. 26. Sister's son. 27. Brother's daughter's husband. 28. Sister's daughter's husband. 30. Husband's sister's son. et reliqui tantum inter eas personas sibi invicem parentum ac liberorum loco sunt. At jus canonicum prohibitionem ad gradum quartum suæ computationis extendit idque in linea æquali. Nam in inæquali respectus parentelæ etiam ulterius impedit nuptias. Heineccius Elem. Jur. Nat. lib. 1, tit. 10, per Nuptiis, ss. 158, 159. (k) See Grotius de Jure Belli et Pacis, lib. 2, c. 5. grandmother, as born of the grandmother, will be uncles or aunts to the father; but as begot by the son, they will be sons or daughters to him, and this *in the first degrees of kindred. Further, there are several degrees which, although not expressly [ *170 ] named in the Levitical law, are yet prohibited by that, and by the statute of 32 Hen. 8, c. 38, by parity of reason, which is thus illustrated in the Reformatio Legum (7) This in the Levitical degrees is to be observed, that all the degrees by name are not expressly set down; for the Holy Ghost there did only declare plainly and clearly such degrees, from whence the rest might evidently be deduced. As, for example, where it is prohibited that the son shall not marry his mother, it followeth also, that the daughter shall not marry her father. And by enjoining that a woman shall not marry her father's brother, the like reason requireth that she shall not marry her mother's brother. To which the same book adds two particular rules, for our direction in this matter: 1. That the degrees which are laid down as to men, will hold equally as to women in the same proximity. 2. That the husband and wife are but one flesh; so that he who is related to the one by consanguinity, is related to the other by affinity in the same degree.(m) Upon the foregoing rule, from parity of reason, rests the prohibition against marrying a wife's sister, which is well expressed by Bishop Jewel in his printed letter upon that point: "Albeit," says he, "I be not forbidden by plain words to marry my wife's sister, yet I am forbidden so to do by other words, which by exposition are plain enough. For when God commands me that I shall not marry my brother's wife, it follows directly by the same, that he forbids me to marry my wife's sister. For between one man and two sisters, and one woman and two brothers, is like analogy or proportion." And when this point of marrying the wife's sister came under consideration in the case of Hill v. Good,(n), though it was alleged that the precept prima facie seemed to be only against having two sisters at the same time, and prohibition to the spiritual court was granted, yet afterwards, after hearing civilians, a consultation was granted as in a matter within the statute of 32 Hen. 8, though the former statute of 28 Hen. 8 had never been revived, which yet it virtually was; and there, as in the *statute of 25 Hen. 8, the wife's sister is [ 171 ] expressly prohibited. (o) It is now most clearly settled, that a marriage between a man and his late wife's sister is incestuous, as being within the prohibited degrees. In a recent case for setting aside a marriage on that ground, (1) Fol. 23, a. (0) Gibs. 412; Vaugh. 302; 3 Keb. 166. "In this case Vaughan, C. J. affirmed, 1st, the marriage to be expressly prohibited in the 18th Leviticus, and then it must be within the Levitical degrees; 2dly, if it were not so prohibited, yet it is not a marriage without those degrees, but within them; and therefore no prohibition would lie for im peaching it; for marriages not to be impeached must be without the degrees, and for that some marriages within the degrees may be lawful; 3dly, that if the marriage be without the Levitical degrees, yet it is a marriage prohibited by God's law, and therefore to be impeached, notwithstanding the stat. 32 Hen. 8, whose words are, 66 no marriage, God's law excepted, shall be impeached without the Levitical degrees." Vaugh. R. 305. |