OF THE COMMISSIONERS APPOINTED TO INQUIRE INTO THE STATE AND OPERATION OF THE LAW OF MARRIAGE, AS RELATING TO THE PROHIBITED DEGREES OF AFFINITY, AND TO MARRIAGES SOLEMNIZED ABROAD OR IN THE BRITISH COLONIES;' WITH MINUTES OF EVIDENCE, APPENDIX, Presented to both Houses of Parliament by Command of Her Majesty. LONDON: PRINTED BY WILLIAM CLOWES AND SONS, STAMFORD STREET, 1848. COMMISSION. VICTORIA R. VICTORIA, by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith: To the Right Reverend Father in God, JOHN Bishop of LICHFIELD, Our Right Trusty and Well-beloved Councillors JAMES STUART WORTLEY, STEPHEN LUSHINGTON, Doctor of Civil Law, and ANTHONY RICHARD BLAKE, and Our Trusty and Well-beloved Sir EDWARD VAUGHAN WILLIAMS, Knight, and Andrew Rutherfurd, Esquire, Greeting. WHEREAS an humble Address has been presented to Us by the Knights, Citizens, and Burgesses, and Commissioners of Shires and Burghs, in Parliament assembled, humbly praying that We would be graciously pleased to appoint a Commission to inquire into the State and Operation of the Law of Marriage as relating to the Prohibited Degrees of Affinity, and to Marriages solemnized abroad or in the British Colonies: NOW KNOW YE, that We, reposing great trust and confidence in your knowledge and ability, have authorized and appointed, and do by these presents authorize and appoint, you, the said JOHN Bishop of LICHFIELD, James Stuart WORTLEY, STEPHEN LUSHINGTON, ANTHONY RICHARD BLAKE, Sir EDWARD VAUGHAN WILLIAMS, and ANDrew RutherfurD, to be Our Commissioners for the purposes aforesaid: And for the better effecting the Purposes of this Our Commission, We do by these Presents give and grant to you, or any Three or more of you, full power and authority to call before you such persons as you shall judge likely to afford you any information upon the subject of this Our Commission; and also to call for, have access to, and examine all such Books, Documents, Registers, and Records as may afford the fullest information upon the subject, and to inquire of and concerning the premises by all other lawful ways and means whatsoever. And We do by these Presents will and ordain that this Our Commission shall continue in full force and virtue, and that you Our said Commissioners, or any Three or more of you, may from time to time proceed in the execution thereof, and of every matter and thing therein contained, although the same be not continued from time to time by adjournment. AND Our further Will and Pleasure is, that you do, with as little delay as possible, report to Us, under your hands and seals, or under the hands and seals of any Three or more of you, your several proceedings under and by virtue of this Our Commission, together with what you shall find touching or concerning the Premises. AND We further ordain that you, or any Three or more of you, may have liberty to report your proceedings under this Commission from time to time, should you judge it expedient so to do. And for your assistance in the due execution of these presents, We have made choice of Our Trusty and Well-beloved HERMAN MERIVALE, Esquire, to be Secretary to this Our Commission, and to attend you, whose services and assistance We require you to avail yourselves of from time to time, as occasion may require.* Given at Our Court at St. James', the Twenty-eighth Day of June, 1847, in the Eleventh Year of Our Reign. By Her Majesty's Command, G. GREY. * Mr. Herman Merivale having received an appointment in the Colonial Office, Dr. Haggard, in November, 1847, was appointed Secretary to the Commission. FIRST REPORT. TO THE QUEEN'S MOST EXCELLENT MAJESTY. WE, the Commissioners, appointed by your Majesty, "to inquire into the state " and operation of the Law of Marriage, as relating to the prohibited degrees "of affinity, and to marriages solemnized abroad or in the British Colonies," having taken evidence upon the first branch of our inquiry, and considered the same, have agreed to the following Report: We have first directed our attention to the question of marriages within the prohibited degrees of affinity, and to the law affecting such marriages. We conceive that it is not necessary, in the discharge of the duty intrusted to us, that we should attempt to enter into any examination of the law, or practice, in respect of such marriages in the early ages of Christianity. In reference to this, it may be sufficient to state, that, for several centuries, marriages within certain degrees of affinity were prohibited by the Church, but that, by the authority of the Pope, dispensations were granted, though to what extent, and in what cases, we do not inquire. In England we apprehend that this was the state of the law up to the time of King Henry VIII. Marriages within the present prohibited degrees of affinity were null and void, unless dispensation had been first obtained. The question, whether marriages within the present prohibited degrees of affinity were permitted by the law of God, was the subject of much discussion when King Henry VIII. sought to be relieved from his marriage with Queen Katharine. This marriage was pronounced null and void by Archbishop Cranmer. From that period the Ecclesiastical Courts dealt with these marriages, at first, by pronouncing them null and void, notwithstanding one or both of the parties might be dead when the suit was sought to be commenced. But in the time of James I. the Courts of Common Law interfered, and prohibited the Spiritual Courts from proceeding to pronounce them null and void after the death of one of the parties (a). Hence all these marriages came to be called voidable marriages, in contradistinction to those which were void, as in the case of a marriage where there was a first husband or wife living at the time of the second marriage; or where one of the parties was a lunatic at the time of celebrating a marriage (b). Marriages therefore within the prohibited degrees were only voidable; and if they were not pronounced null and void, by the competent ecclesiastical tribunals, during the lives of both parties, their validity could not be afterwards questioned, nor the legitimacy of the children be impeached. This state of the law continued unaltered in England until the year 1835, when the Statute 5 and 6 Will. IV., c. 54 (commonly called Lord Lyndhurst's Act) passed. (c) The effect of that Statute was to prohibit the Ecclesiastical Courts from entertaining any suit for the purpose of pronouncing null and void marriages, within the prohibited degrees of affinity, celebrated before the passing of the Act; and all such marriages, celebrated after the passing of the Act, were declared by it to be null and void. This statute extends to Ireland; and, consequently, the law on this subject is the same in that country as in England. (a) Ray v. Sherwood, I. Curteis Reports, 199. Appendix, No. 7 d. (b) Turner v. Myers, I. Consistory Reports, 414. (c) See the Statute, App. No. 47. b |