neglecting to nou

of 201.

X. And be it further enacted, That so much of the said firsts No. 35.1 recited Act as enacts, That any Person neglecting to notify any Reason 54 G. Niễc2178/5 of any Exemption from Residence, for which it is not necessary to Repealing the Pro obtain a Licence, shall not be deemed to be entitled to the Benefit of vision of former such Exemption, shall be and the same is hereby repeated and from Act as to Petsons" and after the passing of this Act, every Spiritual Person Having lawful tity Cause of Ex Cause of Exemption from Residence under the said Act, or any other emption, and imAct, and being Non-resident, who shall neglect to make such Notis Posing a Penalty fication thereof, as in the said Act is directed, shall forfeit and pay for every such Offence the Sum of Twenty Pounds, to be levied by Se questration, if not otherwise paid after Monition to pay the same, of mo the Profits of the Benefice, Donative, Perpetual Curacy, or Parochial! 2 Chapelry, for which he shall claim Exemption from Residence, bys the Archbishop or Bishop of the Diocese to whom the Notification ought to be made, to be applied as he may direct, to useful and charitable Purposes, with the like Power of remitting or ordering the Re-payment of any Part of such Penalties, as is directed or allowed in the said Act, in Cases of Non-compliance with an Order for Residence.

as enacts that In

Death of Curate

XI. And be it further enacted, That so much of an Act passed So much of 53 in the last Session of Parliament, intituled An Act for the further co III. c. 149Support and Maintenance of Stipendiary Curates, as enacts, that every cumbents neglectIncumbent of or Person holding any Benefice, Donative Perpetual ing to notify the Curacy, or Parochial Chapelry, who does not nor shall not duly reside Shall lose his Exthereon (except as therein excepted) and who shall, for the Period of emption, repealed, Three Months after the Death or Resignation of any Curate who has and Penalty of 201. imposed. served his Church or Chapel, neglect to notify to the wBishop of the Diocese such Death or Resignation, shall forfeit and slosesallothed Benefit of any Dispensation or Exemption from Residence, or Licence for Non-residence, and be subject and liable to such and the likes Penalties for Non-residence, as if he had no such Dispensation, A Exemption from Residence, or License for Non-residence, shall be:: and the same is hereby repealed; and from and after the passing of this Act, every such Person shall, for such neglect, forfeit and pay the Lam of Twenty Pounds, to be levied,, applied, and remitted, simdiker Manner as is herein-before provided with respect to the Neglectsoff notifying Exemptions from Residence,

House of

XII. And be it further enacted, That every Spiritual Persom haves In cases of ing any Benefice, Donative, Perpetual, Curacy, or Parochial Chapelry, o Residence. what and who shall not have, nor during any Part of his Incumbency have should be deemed had any House of Residence thereon, and who shall have tesided Residency. Nine Months in the Year within the Limits of his Benefice, Donative, Perpetual Curacy, or Parochial Chapelry, shall not be liable to/auy Penalties on account of Non-residence, nor be obliged to take out abyss - 8% Licence therefore; but that the same shall be deemed a legal Residences to all the Intents and Purposes of the said first recited Act and this: Act; and in all Returns made by the Bishops, Persons so residing shall be returned as Resident. 326954_201

Q Aune's Bounty

XIII. And whereas the Governors of Queen ANNE'S Bounty Houses" purchased have in some Instances purchased, or may hereafter purchase Houses by Governors of not situate within the Parishes for which they are purchased,; botaso to be deemed Re contiguous as to be equally convenient and suitable for the Residence sidences. of the officiating Ministers thereof; be it enacted, That such Houses.s having been previously approved by the Archbishop or Bishop, by Writing under his Hand, shall be deemed Parsonage Houses appertaining to such Livings, to all Intents and Purposes what de to essor a

sgever.

No. 37.

XIV. And be it further enacted, That in all Cases of Sinecure $4 G.III. c. 175 Rectories having Vicarages endowed, the Residence of the Vicar in the Sinecure Recto Rectory House shall be deemed a sufficient legal Residence, to all Intents and Purposes whatever.

ries.

Continuance of

Act.

XV. And be it further enacted, That this Act shall continue and be in force for One Year, and from thence until Six Weeks after the Meeting of the then next Session of Parliament.

155

PART I. CLASS III.

MARRIAGE.

No. 1.

25 Henry VIII. c. 22.-An Act concerning the King's

Succession.

N their most humble wise shewn unto your Majesty your most

jesty in the impe

Crown.

and the Commons, in this present Parliament assembled, That rial 'since it is the natural Inclination of every Man, gladly and willingly to provide for the Surety of both his Title and Succession, although it touch only his private Cause, we therefore, most rightful and dreadful Sovereign Lord, reckon ourselves much more bound to 'beseech and instant vour Highness (although we doubt not of your princely Heart and Wisdom, mixed with a natural Affection to the same) to foresee and provide for the perfect Surety of both you and of your most lawful Succession and Heirs, upon which dependeth all our Joy and Wealth, in whom also is united and knit the only merely true Inheritance and Title of this Realm, without any Con tradiction; wherefore we your said most humble and obedient Subjects, in this present Parliament assembled, calling to our Re'membrance the great Divisions which in Times past have been in this Realm, by reason of several Titles pretended to the Imperial Crown of the same, which sometimes, and for the most Part ensued, by occasion of Ambiguity and Doubts, then not so perfectly declared, but that Men might upon froward Intents, expound them to every Man's sinister Appetite and Affection, after their Sense, contrary to the right Legality of the Succession and Posterity of the lawful Kings and Emperors of this Realm; whereof hath ensued great The Ambiguity of 'Effusion and Destruction of Man's Blood, as well of a great Number to the Crown of of the Nobles, as of other the Subjects, and especially Inheritors in this Realm, and the same; and the greatest Occasion thereof hath been, because ing of the Succes no perfect and substantial Provision by Law hath been made within sion thereof, hath this Realm of itself, when Doubts and Questions have been moved been the Causes and proponed, of the Certainty and Legality of the Succession and Posterity of the Crown; by reason whereof the Bishop of Rome, and See Apostolick, contrary to the great and inviolable Grants of Jurisdictions given by God immediately to Emperors, Kings and Princes, in Succession to their Heirs, hath presumed in Times past, to invest who should please them, to inherit in other Mens Kingdoms and Dominions, which Thing we your most humble Subjects, both Spiritual and Temporal, do utterly abhor and detest; and sometimes other foreign Princes and Potentates of sundry Degrees, minding rather Dissension and Discord to continue in the Realm, to the utter Desolation thereof, than Charity, Equity or Unity, have many Times supported wrong Titles, whereby they might the more easily and facily aspire to the Superiority of the same; the Continuance and Sufferance whereof deeply considered and pondered,

the several Titles

the pot establish

of much trouble.

No. 1.

95 H, VIII. c. 22.

1

Marriage within

the Degrees prohibited by God's Law.

2 Vent. 11.

32 H. VIII. c 38.

were too dangerous and perilous to be suffered any longer within this Realm, and too much contrary to the Unity, Peace and Tranquillity of the same, being greatly reproachable and dishonourable to the whole Realm.'

II [The Marriage between the King and the Lady Katherine shall be adjudged void, and the Separation good.]

[The Lady Katherine shall be called Dowager to Prince Arthur, and not Queen.]

[The Marriage between the King and his Wife Queen Anne shall be taken for good, and consonant to God's Law.]

III. And furthermore, since many Inconveniences have fallen, as well within this Realm as in others, by reason of marrying within: the Degrees of Marriage prohibited by God's Laws, that is to say, the Son to marry the Mother, or the Stepmother, 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 Stepmother, or the Son to marry his Aunt, being his Father's for 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 or Condition soever he be, hath Power to dispense with God's Laws, as all the Clergy of this Realm in the said Convocations, and the most Part of all 1. the famous Universities of Christendom, and we also, do affirm and think.

No man hath Power to dispense

with God's Law.

be

IV. Be it therefore enacted by the Authority aforesaid, That no Y Person or Persons, Subjects and Kesiants 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 Degress above Vexpressed, and by any the Archbishops, Bishops 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 Y 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.)

W

(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 alledged 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 Catherine 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

1

1

No. 1.

V. [Persons heretofore married within the Degrees aforesaid, shall be separated by the Ordinary's Sentence. Hob. 148. 25 H. 8. c. 21. § 8. n 1.] 25 H. VIII. c. 22. VI. [All the Issue procreate between the King and his Wife Queen Anne, shall be his lawful Children.]

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 Collection) 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 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 Scriptural Authority and Moral Policy.

The Marriage with the Widow of a Great Uncle is Legal. Herman v. Burrell. Vaughan, 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 Hains v. Jeffell, 1 Ld. Raym. 68. 5 Mod. 168. Comyns 2. Comb. 356. but such Marriage appears to have been considered as void by the Spiritual Court. See Sir William Scott's Judgment in Horner v. 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.