tions of the Church of Rome, who made the law of God of none effect by their traditions; and yet they expound the law of God in its full latitude, and forbid marriage only to such persons as are in equal degree to those mentioned in the eighteenth chapter of Leviticus." This, my Lords, was the decision of the Court, and the opinion of a great and eminent judge upon the canons of 1603, and the effect that was to be attributed to them: he takes them, as I submit they must be taken, as very strong evidence of what had been the law of the Church of England, and what was the understanding of that Church, as to the Levitical degrees, proving that these degrees had been left in statu quo by the Statute of 32 Henry VIII.; and that the ecclesiastical courts, in adopting and enforcing the prohibitions as they had been used to do, were left entirely to themselves, their jurisdiction and their rules not being at all interfered with.

My Lords, in noticing just now the distinction in the canon law, between the Levitical degrees, and the prohibitions which were engrafted on them, and stating that it had been recognised in England, I forgot to mention a curious work which I have here, the Summa Theologica of Alexander de Hales, the eminent English schoolman of the 13th century, to whom I have already referred. He treats of the Levitical prohibitions as binding universally, and constituting, where they were broken, the crime of incest; and he regards the additional ones, which were merely sanctioned by ecclesiastical authority, as resting on entirely different grounds from the others, of which he says, "Quod incestus in quantum hujusmodi malum est secundum se, quia transgreditur limites ratione vel lege Dei sine auctoritate ecclesiæ determinatos;" and after showing that incest in the first ages of the world must necessarily have been different, he says: "Postea vero factâ multiplicatione amplore generis humani exclusæ sunt personæ aliæ et factæ sunt illicitæ quæ prius erant licitæ sicut habetur in Levitico, et sunt plures numero sicut ibidem dicitur, procedente vero tempore secundum constitutionem ecclesiæ facta est ulterior multiplicatio et plures factæ sunt personæ illegitimæ ad contrahendum, et hoc modo dicitur incestus in quolibet statu esse malum secundum se."

He is considering how far incest was in itself a crime, as committed within one set of degrees or the other. I adduce this merely by way of illustration, and as evidence that the distinction of the canon law which I have proved from the Corpus Juris itself, was recognised in England at a very early period; and therefore that the statute of Henry VIII. adopted only that which the canon law and the English Church had already admitted and sanctioned. We have seen that when that statute was made, the previous statute of Henry VIII., viz., the 28 Henry VIII., cap. 7, which declared the degrees of Leviticus according to the form contained in the canon law, and included the case of the wife's sister, was undoubtedly in force. From the time of Henry VIII. we have not only the contemporaneous exposition of that period, but we have the authorities I have cited to your Lordships down to the canon itself of 1603. It remains, therefore, to see how the courts have decided, for if the contemporaneous exposition is not sufficient in a case of this sort, and if there is any doubt as to its correctness, that doubt must be resolved by a reference to the decisions of the ecclesiastical courts themselves, those ecclesiastical courts having, from the most ancient period, exclusive jurisdiction in matrimonial causes, and having been left untouched, and their jurisdiction unimpaired, by the statutes of Henry VIII. These courts for all such purposes are

superior courts, as was laid down in this very court, in the case of Ricketts v. Bodenham by Mr Justice Littledale, 4 Adolphus and Ellis, 433. He there says, that "the ecclesiastical courts, in matters within their jurisdic tion, are superior courts, and not inferior to the courts of Westminster Hall." And, my Lords, in Bunting v. Leaping well, in 4th Coke's Reports, 29a, Lord Coke says this: "Forasmuch as the cognisance of the right of marriage belongs to the Ecclesiastical Court, and the same court has given sentence in this case, the judges of our law ought (although it be against the reason of our law) to give faith and credit to their proceedings and sentences, and to think that their proceedings are consonant to the law of holy Church; for 'cuilibet in suâ arte perito est credendum,' and so have the judges of our law always done."

Lord Lyndhurst's judgment, in the case of the Queen v. Millis, was to the same effect, for he said: "It must always be remembered that the spiritual courts were the sole judges of the lawfulness of marriage, where that question was directly in issue. If the question whether a marriage be lawful or not, was raised upon a distinct issue in the courts of common law, the rule was that it should be tried, not by a jury, but referred for decision to the spiritual tribunal, and the certificate of the bishop was conclusive." There is a case in Sir Thomas Raymond's Reports, p. 464, Watkinson v. Mergatron; I think it was referred to the other day, and I refer to it now merely to show the value to be attached to the decisions of the ecclesiastical courts in any case of doubt with respect to the law of marriage. "The plaintiff brought the defendant into the Ecclesiastical Court for marrying his wife's sister's daughter, and the defendant prayed a prohibition, because out of the Levitical degrees; but denied by the whole court, because it is a cause of ecclesiastical cognisance, and divines better know how to expound the law of marriage than the common lawyers, and though sometimes prohibitions have been granted in cases matrimonial, yet if it were now res integra they would not be granted."

It seems, therefore, my Lords, from all these authorities (authorities of undoubted weight), that supposing the question was at all doubtful upon the statute of 32 Henry VIII., and upon the rule of the canon law, as left untouched by that statute, the decisions of the ecclesiastical courts from that period downwards are the best evidence, and the most conclusive evidence, of the law upon the subject.

Then, my Lords, I would ask, how have these courts decided? The answer is, uniformly in one way. The cases which were cited to your Lordships in the former argument were some of them cases distinctly upon this very point-as to the validity of a marriage with a wife's sister. Öne of them, that of Hill v. Good, was brought under the notice and subjected to the most careful investigation of the courts of common law, and those decisions have been acted upon from that period to the present. I shall not refer to the cases which have been already cited to your Lordships, further than just to give the names of those in which marriage with a wife's sister has been expressly declared to be incestuous and prohibited. You had first the case of Hill v. Good, reported in Vaughan, p. 302; then you had Harris v. Hicks, in 2 Salkeld, p. 548; Collet's case, in Sir Thomas Jones, p. 213; Butler v. Gastrill, in Gilbert's Equity Cases, p. 159; Brownsword v. Edwards (the decision of Lord Hardwicke), in 2 Vesey, Sen., p. 248; Falmouth v. Watson, in 1 Phillimore, p. 355; Chick v. Ramsdale, 1st Curtis, p. 44-a very recent case; and lastly

Sherwood v. Ray, decided by the Privy Council, and reported in 1 Moore, p. 353, in which Baron Parke and the other judges held, that the canon law is the law by which marriages are governed in this country, except so far as they are restricted by the Marriage Act, and that a marriage with a wife's sister is incestuous according to the divine law; and towards the conclusion of his judgment, Baron Parke says, that "the marriage of a wife's sister is illegal by the divine and the human law." Thus, my Lords, the law appears in regular chronological order from the earliest period of the Church and of this country to the present; you have had the law of the State and the law of the Church, both going uniformly in one direction,-down to the period of Henry VIII., the canon law adopted generally; at the time of Henry VIII., and subsequently, only a portion of the canon law struck off, the rest being left untouched, and the decisions of the courts uniformly adopting the same rule, and uniformly holding these marriages to be incestuous.

I would ask your Lordships, therefore, whether any case can be stronger than this, to show what the law really is, and whether, when the statute of William IV. speaks of marriages "within the prohibited degrees of consanguinity and affinity," and refers to the practice of the ecclesiastical courts, the legislature could have had in view any other prohibitions than those which had been so acted upon, and universally adopted by the ecclesiastical courts of this country, as the prohibitions contained in Leviticus, and enjoined by the statute of Henry VIII.? I would call your Lordships' attention to the words of the statute in reference to this point: "Whereas, marriages between persons within the prohibited 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 ;-Be it therefore enacted, by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons in this present Parliament assembled, and by the authority of the same, that all marriages which shall have been celebrated before the passing of this Act, between persons within the prohibited degrees of affinity, shall not hereafter be annulled for that cause by any sentence of the Ecclesiastical Court, unless pronounced in a suit which shall be pending at the time of the passing of this Act." Upon these words, my Lords, I do submit with confidence to your Lordships, that nothing can be clearer than that the statute of William IV. must be taken to refer to the prohibited degrees as adopted and acted upon by the ecclesiastical courts; and that those, and those only, are within the meaning of the Act. Nothing can be clearer than that when a statute thus refers in its preamble, as well as in the body of it, to the ecclesiastical law in connection with the subject of marriage, it must be taken to mean those degrees which are prohibited by that law, and to adopt them as the rule which is intended to be enforced.

My Lords, in Bacon's Abridgment, title "Statute," it is said, "It is in the general true that the preamble of a statute is a key to open the mind of the makers as to the mischiefs which are intended to be remedied by the statute."

Then, my Lords, if we see that the rule of the Church, from the earliest period, was the ecclesiastical law of this country down to the period of the Reformation, and that from the Reformation down to the canon of 1603 no alteration at all was made with respect to cases which were within the Levitical degrees, then it follows that the canon of 1603, in the regulations which it made, and in the persons whom it included within those degrees, merely adopted the ancient law of the land; and if so, I have established my point, that the case of Middleton v. Croft becomes a direct authority in my favour; for without troubling ourselves with Lord Hardwicke's questionable doctrine about the operation of canons generally, we have his judgment about the very point before him, precisely tallying with the present case, and declaring that such a canon as I have proved this of 1603 to be, is binding upon the laity as well as upon the clergy, and may be enforced as the law of the land; and as it is clear, from repeated cases, that this canon has been acted upon ever since it was made, without any doubt of its validity, its reception becomes evidence on Lord Hardwicke's principle of its being in affirmance of the ancient law.

Parson's

Then, my Lords, if that is so, I am at a loss to find what there is upon the other side. What authority has been cited? None at all of any value; none which can be used on any pretence against us. case and Mann's case, the only two referred to, I think, on the other side by Mr Foster, so far from being for him, were proved to be directly against him; for the decision in both these cases was, that a prohibition to the ecclesiastical courts should not be granted. So far, therefore, from the authorities being, as he stated them to be in part of his argument, in his favour, they are all universally with one consent against him. I cannot find a single authority for determining that these marriages are valid. I cannot find a single instance in which any doubt has been entertained by the courts of this country upon this subject since the decision of the court in Hill v. Good. The very question then was disputed, argued, and considered at very great length, and with very great care; and the result of that decision was, that marriage with a wife's sister was invalid. The ecclesiastical courts were left to enforce their rules upon that subject; and that case has been uniformly acted upon since, and must be law at the present day.

Then, my Lords, what have they produced on the other side? They have merely cited to your Lordships the statute of Queen Mary; but that statute of Queen Mary, as I submitted to your Lordships most confidently the other day, cannot interfere with this question, being merely a private act, relating to that particular marriage, the statute being most guarded in its terms, and never having been, so far as I can discover, used in any single instance to affirm any marriage similar to the one there referred to, much less a marriage with a deceased wife's sister. It has never been used for that purpose, or if it had been, it would, as I argued, have proved too much, inasmuch as it would sanction generally marriage with a brother's wife, which undoubtedly is prohibited in express terms by Leviticus. So that there is nothing in the cases or in the statute cited by my opponents, to impugn in the slightest degree these decisions, or to interfere with the law as I have ventured to lay it down before your Lordships. Then, my Lords, what is the effect of the statute of William IV.? Simply to affirm the judgment of the Ecclesiastical Courts. It makes no difference in that respect; and although objections have been made to the statute, as if it really inflicted a hardship, I apprehend it is not open to that objec

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tion. The statute did not interfere with the principle of the law at all; and when it stated that such marriages should in future be "void and not merely voidable," it merely made a distinction without a difference ;"voidable," in cases of marriage, always meant "void," for void they were according to the ecclesiastical law; and they were only said to be voidable because the courts of common law then had no jurisdiction upon the subject. The determination of the validity or invalidity of a marriage was left entirely to the ecclesiastical courts. It was ecclesiastical law and ecclesiastical courts which regulated those matters; and provided a marriage came before the courts having the stamp of the Church, and the authority of the Church in its favour, the courts of common law received it, and left it to the ecclesiastical courts entirely to set it aside if invalid. But when it was set aside, when the ecclesiastical courts did interfere, then the marriage became void, and void ab initio. It was null and void to all intents and purposes; and in proof of that I would refer your Lordships again to a portion of my Lord Lyndhurst's judgment in the case of the Queen v. Millis, in illustration of that particular point, for he says (mentioning some authorities which had been furnished to him): "It (the libel in the case which he was citing) prays that the marriage may be pronounced to have been and to be, 'fuisse et esse,' null and void, &c. ; the evidence is set forth, and is followed by the sentence, which dissolves the marriage de facto with Alicia, and pronounces it fuisse et esse invalidum." And his Lordship afterwards says: "It further appears from the terms of the sentence, that the dissolved marriage was pronounced to have been and to be (fuisse et esse) void, agreeably to the rule of the ecclesiastical courts,-that when a marriage voidable by reason of pre-contract is annulled, it is annulled ab initio."

And, my Lords, in that work edited by my Lord Medwyn, which I have cited, it is shown, that in all those cases where, by the process of the courts, marriages have been impugned upon the score of consanguinity or affinity, the marriage is declared fuisse et esse nullum. Therefore it was merely a distinction arising from the want of jurisdiction in the temporal courts which led to the expression, "voidable" and "void ;" voidable meant void, and the marriage was only awaiting the decision of the ecclesiastical court to determine that it had been void ab initio. The statute, therefore, of William IV., when it said they shall be “void and not merely voidable,' did this-it merely transferred to the temporal courts, or, at least, gave to them jointly with the ecclesiastical courts, that power of determination upon the validity of certain marriages which had been confined to the ecclesiastical courts before. It enabled the courts of common law to determine at once that a marriage was void when it appeared to be within the prohibited degrees. It authorised them to take immediate cognisance of a matter of which before they had no judicial knowledge, and rendered it unnecessary for them to wait for the decision of the ecclesiastical courts to judge that a marriage was invalid. The statute made no alteration with regard to marriages themselves in that respect, because they were always void by the ecclesiastical law when within the prohibited degrees. It only enabled the courts of common law in a more summary manner and at once to determine for themselves, when the question came before them, without the assistance of the ecclesiastical courts.

Then, my Lords, objection was made to that statute, as if it were inconsistent with itself, in allowing certain marriages within the prohibited