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which the marriage of Henry VIII. with Anne Boleyn was pronounced void must have been that of the king's previous criminal intercourse with her sister Mary Boleyn.

But it has been holden by the full court for divorce and matrimonial causes that a marriage is not null because the husband has had a previous criminal connection with the wife's mother (n).

c. 54.

On the 31st of August, 1835, was passed the statute 5 & 6 Will. 4, intituled, "An Act to render certain Marriages valid, and to alter the Law with respect to certain voidable Marriages." It Voidable recites that "marriages between persons within the prohibited marriages. degrees are voidable only by sentence of the ecclesiastical court pronounced during the lifetime of both the parties thereto, and it is unreasonable that the state and condition of the children of marriages between persons within the prohibited degrees of affinity should remain unsettled during so long a period, and it is fitting that all marriages which may hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity should be ipso facto void, and not merely voidable;" and enacts that "all marriages which shall have been celebrated Former before the passing of this act between persons being within the marriages prohibited degrees of affinity shall not hereafter be annulled for within the that cause by any sentence of the ecclesiastical court, unless prohibited pronounced in a suit which shall be depending at the time of degrees not to the passing of this act: Provided that nothing herein before enacted shall affect marriages between persons being within the prohibited degrees of consanguinity.

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of persons

be annulled.

Sect. 2. "All marriages which shall hereafter be celebrated Future between persons within the prohibited degrees of consanguinity void. marriages or affinity shall be absolutely null and void to all intents and purposes whatsoever."

By sect. 3 this act is not to extend to Scotland.

Consanguinity and affinity, before the passing of this statute, were considered as canonical disabilities, which rendered a marriage voidable and not void; and therefore such marriage could only be annulled by a sentence of nullity during the lifetime of the parties (o). But now no sentence of nullity is necessary in all cases of consanguinity and affinity. These are now considered as rendering the marriage ab initio void; the parties having been under a legal incapacity to contract a marriage, their union has been meretricious and not matrimonial. This act, which legalizes all marriages within the prohibited degrees of affinity contracted before the 31st of August, 1835, and renders them all void for the future, did not legalize those within the prohibited degrees of consanguinity.

The case of Ray v. Sherwood underwent three successive deci- Ray v. sions before the Consistory Court of London, the Arches Court, Sherwood.

(n) Wing v. Taylor, 2 Sw. & Tr.

p. 278 (1861).

(0) Elliott v. Gurr, 2 Phillim.

p. 19.

and the Privy Council (p), the two latter reversing the judg ment of the former. It was a suit brought by the father to annul the marriage of a daughter, who was of age, with the husband of her late sister. The questions raised were chiefly whether the father had such interest as would enable him to bring a civil suit in behalf of a daughter who was of age (q); whether the citation, being had before the act passed, constituted a lis pendens or not; and what interpretation was to be put upon the act, and how it had affected the jurisdiction of the ecclesiastical courts. It was decided that the service of the citation constituted a lis pendens, and that the marriage was void. The following extract from Sir Herbert Jenner's judgment (r) relates chiefly to these latter points:

"These are the contents of the libel and additional articles, and if what is there pleaded can be established by proof, it is quite impossible to say, that this is not a case which calls loudly for the interference of those Courts to whose cognizance such questions properly belong. In the first place, this is a contract which is prohibited by the laws of both God and man-for so, sitting in an Ecclesiastical Court, I should be bound to consider it, even if I were, as I am not, among the number of those who privately entertain any doubt upon the subject. In the second place, it is a secret and clandestine marriage; perhaps not clandestine in the strict legal meaning of the term, for the term 'clandestine' is applied by the law to a marriage where there has not been a due publication of banns, and I am not at liberty to enter into that question-but, morally speaking, and using the common acceptation of the term, it is a secret and clandestine marriage, purposely and studiously concealed from the knowledge of those who were directly interested to prevent one of the parties from entering into the unhallowed contract. Lastly, it is a case calling for the interference of the Court; because, as I collect from the libel, there has been no cohabitation of the parties since the marriage, so that it is not too late now for the Court to prevent the consummation of the offence, if the law has not placed an insuperable barrier to any proceeding for that salutary purpose.

"That this Court would and ought to lend its aid and assistance towards the accomplishment of so desirable an object cannot be doubted; and I have myself no hesitation in saying that I should feel great regret if I were to find myself placed in such a situation as to be obliged to reject this libel, and thereby in effect to pronounce that the validity of this marriage could not be questioned. What would be the condition of the parties and of the Court if such should be its present decision? Mr. Sherwood would have a right to claim the consortium of his wife; and if she refused to cohabit with him he would be entitled to

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institute a suit in these Courts, not for the purpose of compelling her to return to cohabitation in his house (for into it she has never entered as his wife), but to afford him the consortium vitæ, which she has withheld from him by his own consent from the date of the marriage to the present time. The Court would thus be accessory to the commission of that offence, of which there is every reason to believe she is at the present moment innocent. And when the Court has issued its fiat to compel her to cohabit with her husband, it may the next day, in another branch of its jurisdiction, be called upon to punish her for the very crime, to the commission of which the Court itself has been an instrument; for, looking at the words of the act of parliament, I am by no means prepared to say that, in prohibiting the Ecclesiastical Courts from annulling marriages of this kind, subsisting at the time of the passing of the act, the legislature has altered the law in any other respect.

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"I am not prepared to say that the parties may not be Parties to punished by the Ecclesiastical Law for the incest, though the incestuous validity of the marriage cannot be called in question.' After giving much consideration to this point, the learned the Ecclesiasjudge continues: "I do not think, where the enacting part of tical Court. the statute is to the effect that all marriages which shall have been celebrated before the passing of this act between persons being within the prohibited degrees of affinity, shall not hereafter be annulled for that cause by any sentence of the Ecclesiastical Court,' that this amounts to a prohibition to the Ecclesiastical Court to punish the parties under another branch of the law for incestuous cohabitation. I apprehend the law is not altered in this respect, and that the court is not prohibited by this act from punishing parties for such cohabitation, although it cannot declare the marriage null and void.

"Again, if we look to the preamble of the act, it is not for the protection of the parties who have been guilty of the offence, for such it is by the Ecclesiastical Law and by the law of God, but for the protection of the children, for that is the purpose and object of the act, to settle the state and condition of the innocent issue of such marriages, not to screen the delinquent parties. But whatever may have been the intention of the legislature, and whatever may be the effect of this act of parliament, the marriage had between the two parties, Thomas Moulden Sherwood and Emma Sarah Ray, is an incestuous marriage, and must ever so remain. The law of God cannot be altered by the law of man. The legislature may exempt the parties from punishment; it may legalize, humanly speaking, every prohibited act, and give effect to any contract, however inconsistent with the Divine law, but it cannot change the character of the act itself, which remains as it was, and must always so remain, whatever be the effect of the act of parliament.

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Any person may promote a criminal suit for incest in a cause Who may of office, all people having an interest in putting an end to that institute suit

P. VOL. I.


for incest; effect where proved.

which is a public scandal; and if in the course of the evidence, a marriage appears or is proved, though all the proceedings are in pœnam, the Court will pronounce the marriage null and void in the first instance, and then sentence the parties to penance (s).

Royal Marriage Act.

12 Geo. 3, c. 11.

SECT. 4.-Conditions Precedent—Restrictions as to Descendants of
George II.

In 1717, upon a question referred to all the judges by King George I., it was resolved by the opinion of ten against the other two, that the education and care of all the king's grandchildren, while minors, did belong of right to his majesty as king of this realm, even during their father's life. But they all agreed that the care and approbation of their marriages, when grown up, belonged to the king their grandfather. And the judges afterwards concurred in opinion, that this care and approbation extend also to the presumptive heir of the crown; though to what other branches of the royal family the same did extend they did not find precisely determined. The most frequent instances of the crown's interposition go no farther than nephews and nieces; but examples are not wanting of its reaching to more distant collaterals. And the supposed statute of 6 Hen. 6, which prohibits the marriage of a queen dowager without the consent of the king, assigns this reason for it (t): "because the disparagement of the queen shall give greater comfort and example to other ladies of estate, who are of the blood royal, more lightly to disparage themselves." Therefore by 28 Hen. 8, c. 18 (repealed, among other statutes of treasons, by 1 Edw. 6, c. 12), it was made high treason for any man to contract marriage with the king's children or reputed children, his sisters or aunts ex parte paternâ, or the children of his brethren or sisters; being exactly the same degrees to which precedence is allowed by the statute 31 Hen. 8, c. 10 (u).

In the twelfth year of George III. (1772) the Royal Marriage Act was passed. This celebrated act owed its origin to the displeasure which the marriage of the Duke of Cumberland with Mrs. Horton (r), and of the Duke of Gloucester with the Countess Dowager of Waldegrave (y), excited in the breast of

(s) Burgess v. Burgess, 1 Consist. p. 384; Blackmore v. Brider, 2 Phillim. 359; Chick v. Ramsdale and Chick, 1 Curt. p. 34; vide infra, Part IV. Ch. I.

(t) The occasion of this statute was the marriage of Catherine, mother to Hen. VI., with Owen Tudor, a private gentleman. See 1 Black. Com. p. 224.

(u) See 1 Black. Com. p. 225, and the authorities there cited.

(x) A widow lady, daughter to Lord Irnham. This marriage took place in 1772. See Letters of Horace Walpole, vol. 5, pp. 347, 348.

(y) Natural daughter of Sir Edward Walpole, brother to Sir Robert. For accounts of her beauty, first

their royal brother, George III. (2). It is intituled "An Act for the better Regulating the Future Marriages of the Royal Family," and is as follows:

"Most gracious Sovereign,

married, or

"Whereas your majesty, from your paternal affection to Preamble. your own family, and from your royal concern for the future welfare of your people, and the honour and dignity of your crown, was graciously pleased to recommend to your parliament to take into their serious consideration, whether it might not be wise and expedient to supply the defect of the laws now in being; and by some new provision more effectually to guard the Nodescendant descendants of his late Majesty King George the Second (other of his late majesty, than the issue of princesses who have married, or may hereafter Geo. 2 (other marry into foreign families), from marrying without the appro- than the issue bation of your Majesty, your heirs, or successors, first had and of princesses obtained, we have taken this weighty matter into our serious who may consideration; And, being sensible that marriages in the royal marry into family are of the highest importance to the state, and that there- foreign families), shall be fore the kings of this realm have ever been entrusted with the capable of care and approbation thereof, and being thoroughly convinced contracting of the wisdom and expediency of what your Majesty has thought without the matrimony fit to recommend upon this occasion; we, your majesty's most previous condutiful and loyal subjects, the lords spiritual and temporal, and sent of his majesty, his commons, in this present Parliament assembled, do humbly heirs, &c., beseech your Majesty that it may be enacted, and be it enacted signified .. that no descendant of the body of his late Majesty King under the George the Second, male or female (other than the issue of great seal, princesses who have married or may hereafter marry into foreign council. Such families), shall be capable of contracting matrimony without the consent to be previous consent of his Majesty, his heirs or successors, signified Privy Council under the great seal, and declared in council (which consent, to books. Every preserve the memory thereof, is hereby directed to be set out in marriage of the licence and register of marriage, and to be entered in the any such books of the Privy Council); and that every marriage or matri- without such monial contract of any such descendant, without such consent consent, shall first had and obtained, shall be null and void to all intents and void. purposes whatsoever."

declared in

entered in the


be null and

descendant of

above twenty

Sect. 2. "Provided always, that in case any such descendant of In case any the body of his late Majesty King George the Second, being Geo. 2, being above the age of twenty-five years, shall persist in his or her five years old, resolution to contract a marriage disapproved of or dissented shall persist to from by the King, his heirs or successors; that then such marriage disdescendant, upon giving notice to the King's Privy Council, his majesty,

marriage, grief at her husband's death, &c., see Letters of Horace Walpole, vol. 3, pp. 170, 218; vol. 4, pp. 61, 63.

(z) The 15th volume of the Annual Register (pp. 91-94*), from

which this extract is taken, con-
tains a fair summary of the argu-
ments and opinions for and against
the act. See also a pamphlet by
Mr. Dillon on the Royal Marriage


contract a

approved of by

such descendant,

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