superseded by the 32 Hen. VIII., c. 38, which enacts in general terms, without any enumeration of degrees, "that all lawful persons may marry;" that "all persons shall be considered lawful that be not prohibited by God's law;" and that "no reservation or prohibition, God's law except, shall trouble or impeach any marriage without the Levitical degrees." This act has been termed the Magna Charta of Matrimony, and was clearly intended as a definitive settlement of the law; but with reference to the present argument, there is a subsequent statute to which at least a passing allusion may be allowed, namely, the statute 1 Mary, sess. 2, c. 1, by which Henry's marriage with Catherine is solemnly pronounced to have been from the beginning" a just, true, and holy union, in strict accordance with God's law and his holy word." So far, then, as legislative declarations are concerned, it would be difficult to say whether this particular degree be or be not prohibited; nor is the meaning of the principal statute (32 Hen. VIII.) by any means so clear as could be wished. It evidently implies the existence of cases contrary to God's law, though without the Levitical degrees; yet all may marry that be not prohibited by God's law. It is a mistake, therefore, to take the Levitical degrees as the limit, unless these are also to be taken as identical with God's law; for the statute says neither that all marriages without the Levitical degrees shall be lawful, nor that all marriages within them shall be bad.1

Moreover, some of the most venerated writers on sacred subjects, including Jeremy Taylor, have contended that the

'See Vaughan's Rep. 319, 320.

2 In his Ductor Dubitantium, book 2, ch. 2, bis third rule is—"The judicial law of Moses is annulled or abrogated, and retains no obliging power either in whole or in part over any Christian province, commonwealth, or person." He subsequently proceeds to this very question, aud remarks-" All these degrees on which Moses' Law hath forbidden marriages, are supposed by very many now a-days that they are still to be observed with the same distance and sacredness, affirming because it was a law of God, with the appendage of some penalties to the transgressors, it must still oblige us Christians. This question was strangely tossed up and down upon the occasion of Henry the Eighth's divorce from Queen Catharine, the relict of his brother, Prince Arthur ; and, according as the interest of princes uses to do, it very much employed and divided the pens of learned men, who, upon that occasion, gave too great testimony with how great weakness men that have a bias do determine questions, and with how great force a king that is rich

marriage laws of the Jews in the patriarchal ages (which, according to Grotius, authorised polygamy) are not binding on Christians; and some of our best Oriental scholars, including Sir William Jones, assert that the precepts of Leviticus are not directed against marriage. But waving all considerations of this kind, and disclaiming all intention to dispute the authority of these precepts, we shall prove that they impliedly sanction the very marriage in dispute.

The eighteenth verse, on which the whole question turns, is

"Neither shalt thou take a wife to her sister, to vex her, to uncover her nakedness, beside the other in her life time."-Leviticus, chap. xviii. ver. 18.

Upon this, Dr. Dodd's commentary is

"Custom and practice are the best interpreters of law; and it appearing from these that polygamy was allowed amongst the Jews, as well as from Deut. xxi. 15, &c. xvii. 17, it is plain that the marginal interpretation (viz. one wife to another) cannot be true, but that the marriage of two sisters at the same time is here prohibited; and Grotius justly observes, that as the feuds and animosities of brothers are, of all others, the most keen; so are, generally, the jealousies and emulations between sisters. Therefore, the historian used the strong expression to vex her: but though a man might not marry two sisters together, it seems a natural conclusion, from the phrase in her life time, that he might marry the sister of his deceased wife and thus, we learn from Selden, the Jews in general understood it."

Adam Clarke says:

"Thou shalt not marry two sisters at the same time, as Jacob did Rachael and Lea; but there is nothing in this law that rendered it illegal to marry a sister-in-law, when her sister was dead: therefore the text says, thou shalt not take her in her life time to vex her, alluding probably to the case of the jealousies and vexations which subsisted between Lea and Rachael, and by which the family peace was so often disturbed."

In Walton's Polyglot, the Septuagint, Vulgate, Syriac, Samaritan, Arabic and Chaldee paraphrases agree in this interand powerful can make his own determinations: for though Christendom was then much divided, yet before then there was almost a general consent upon this proposition, That the Levitical degrees do not by any law of God bind Christians to their observation."

pretation, which is adopted by Grotius, Montesquieu, Mr. Justice Story, and Chief Justice Vaughan. The last ob

serves:

"Within the meaning of Leviticus, and the constant practice of the commonwealth of the Jews, a man was prohibited not to marry his wife's sister only during her life, after he might so the text is (citing it). This perhaps is a knot not easily untied, how the Levitical degrees are God's law in this kingdom, but not as they were in the commonwealth of Israel, where first given."

This is the only manner in which the precept can be reconciled with the precept in Deuteronomy (xxv. v. 5), where a marriage in the same degree of kindred is injoined as a duty:

"If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not marry without unto a stranger; her husband's brother shall go in unto her, and take her to him to wife, and perform the duty of an husband's brother unto her."

It is quite clear, therefore, that the judges have erred in holding marriages between persons thus connected to be prohibited. As for the canons, under which the table hung up in churches was prepared, they were never confirmed by parliament, and have been held by Lord Hardwicke to possess no binding authority as laws.1

It is to be feared, however, that the current of judicial authorities has grown too strong to struggle against, and our sole object in these observations is to pave the way for the interposition of the legislature, by shewing that no infringement of the divine law is demanded, and that the whole resolves itself into a question of expediency.

In the first place, and with peculiar reference to the test proposed at the outset of these remarks, it is important to consider, not merely the direct moral effects of such marriages, but the present state of opinion regarding them. "When (says Jeremy Taylor) a thing is disputed on both sides by good and learned men, to do either is not against public honesty. That's a certain rule; for when a thing is called good and honest by wise and good men, the question is divided, and therefore cannot be united against either of them." It will appear that this thing has been deemed good and honest, not

1 Middleton v. Croft, 2 Atkins Rep. App.

merely by wise and good men, but by entire states and communities, as full of zeal for good morals and as much attached to Christianity as ourselves.

A man may marry the sister of a deceased wife, either as a matter of course or upon a formal application to the authorities, throughout the whole of Prussia (including the Rhenish provinces), Saxony, Hanover, Baden, Mecklenburgh, Hamburgh, Denmark, and most of the other Protestant States of Europe. Catholic countries afford no guide, their fashion being to extend the list of prohibitions, that the Church may enjoy the privilege of dispensing with them. But the Levitical degrees are clearly not held binding in practice, for there is a lady of rank now living who was married to her father's brother, an English baronet, under a licence from the Pope; and a son by this marriage inherited the title and estate.

"In the collateral line," says Mr. Justice Story, one of the most eminent of living jurists, " marriages between brother and sister by blood are deemed incestuous and void, and indeed seem repugnant to the first principles of social order and morality. Beyond this, it seems difficult to extend the prohibition upon principle. Incestuous marriages by the English law are not absolutely void; but are voidable only during the lives of the parties; and if not so voided, are deemed after their death to all intents and purposes valid. But upon the point, whether a marriage between a man and the sister of his deceased first wife is lawful, there has heen a diversity of opinion and practice. In England it would be held invalid. In many of the American states it is held clearly valid, not merely in a civil sense, but in a moral and Christian sense; in others, the English rule prevails."-Conflict of Laws, p. 105, 106.

"This distinction between marriages incestuous by the law of nature, and such as are incestuous by the positive code of a state, has been fully recognised by one of our most learned American courts. If,' say the court, a foreign state allows of marriages incestuous by the law of nature, as between parent and child, such marriage would not be allowed to have any validity here. But marriages not naturally unlawful, but prohibited by the law of one state and not of another, if celebrated where they are not prohibited, would be holden valid in a state where they are not allowed. As in this state (Massachusetts) a marriage between a man and his deceased wife's sister is lawful; but it is not so in some states; such a marriage celebrated here would be held valid in any other state,

and the parties entitled to the benefits of the matrimonial contract.' Indeed, in the diversity of religious opinions in Christian countries, a large space must be allowed for interpretation as to religious duties, rites, and solemnities."-Id. p. 107.

The same distinction is taken by Grotius and Montesquieu, who hold that marriages between collaterals merely connected by affinity are matters of municipal regulation exclusively.

In the commentaries of the Ex-chancellor Kent, the Blackstone of America, we find—

"Whether it be proper or lawful, in a religious or moral sense, for a man to marry his deceased wife's sister, has been discussed by American writers. Mr. N. Webster, in his Essays, published at Boston in 1790, No. 26, held the affirmative; and it is made lawful by statute in Connecticut. Dr. Livingston, in his Dissertation, published at New Brunswick in 1816, and confined exclusively to that point, maintained the negative side of the question. It is not my object to meddle with that question; but such a marriage is clearly not incestuous or invalid by our municipal law. (New York)."

Mr. Justice Story, also, mentions Dr. Livingston's Essay (which we have been unable to procure), and adds, “The opposite doctrine has been maintained by many able writers." In England, dating from the middle of the last century, a strong suspicion has got abroad as to the soundness of the view supposed to be taken by our legislature. Most of the foregoing topics were then set forth, with additional illustrations and authorities, by Messrs. Fry and Alleyne. Their pamphlets went through two or three editions, and appear to have attracted considerable attention at the time; and in the Appendix to Mr. Alleyne's (first published in 1774, and reprinted in 1810) may be seen confirmatory letters from laymen and clergymen of all persuasions. Amongst them is the following:

"Dear Sir,

"Craven Street, 15th Oct. 1773.

"I have never heard upon what principles of policy the law was made, prohibiting the marriage of a man with his wife's sister, nor have I ever been able to conjecture any political inconvenience that might have been found in such marriages, or to conceive of any moral turpitude in them. I have been personally acquainted with the parties in two instances, both of which were happy matches, the second wives proving most affectionate mothers-in-law to their VOL. XXI. NO. XLIV.

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