44

CIVIL LAW OF ENGLAND-MR BADELEY.

the authorities by which I think these reasons are supported. I have shown that the statute of William IV. (Lord Lyndhurst's Act), whether it be looked at by the light of the statute law, or the ecclesiastical law, or the decisions of the courts of common law as explaining and affirming both, can be interpreted but in one way, and that that interpretation necessarily includes within the prohibited degrees the case of the marriage with the wife's sister. I have shown this with reference to the statute of 28 Henry VIII., cap. 7, which I submit is in force. I have shown it with respect to the 32 Henry VIII. with reference to the term 'Levitical degrees,' and with reference to the chapter of Leviticus itself. I have shown the proper mode the mode always adopted of interpreting that chapter of Leviticus, and that the objections which have been made to this mode of interpretation are of no force, that they have not been acted upon, and that they are not recognised. I have shown that the statute of Henry VIII., and the decisions upon it, are not interfered with by the statute of Queen Mary, and that Queen Mary's statute cannot be allowed to have any weight. And lastly, my lords, I have shown that the ecclesiastical law of this country, from the earliest period to the present, has gone in one uniform course; and that whether before the Reformation, at the time of the Reformation, or since, the decisions have been uniform regarding marriage with a wife's sister as incestuous. I have shown not only that the authorities are all one way, and that they are all consistent, but that there is not a single authority, as far as I can discover, the other way; and not a single statute which really interferes with the construction for which I contend and I have shown your lordships that upon the Continent the rules of the canon law, the rules of the civil law, and the practice of other nations, concur and conspire with the decisions of the courts of this country, and that the illegitimacy of one of the parties makes no difference. I would ask your lordships, therefore, whether a case can be put before you more clear or more conclusive than this?"

Mr Badeley was well entitled, after the vast body of proof he had adduced, to put this question, not as a mere special pleader, but as an honest man. His concluding remarks are well worthy of serious consideration. He adds-" My friend, Mr Foster; at the conclusion of his argument, mentioned that there were certain States upon the Continent which had adopted a different practice, and had of late allowed marriage with a wife's sister. Be it so, my lords; in so doing, they have broken the ancient rule of the Christian world, and set at nought the opinions of the more eminent reformers, whom they most profess to venerate. We need not envy them their liberty, I should have rather said their license; for I believe that many of the more thinking persons in these countries are ready to admit that the consequences of the alteration have been by no means happy, and that they regret in vain the loss of that domestic familiarity and confidence which are at once the comfort and the boast of England. My learned friend mentioned also that there are a number of persons in this country who have already contracted these marriages. If they have, we can only regret the fact. It can have no influence here, and I humbly submit that it ought to have no influence anywhere, because, my lords, I believe that in those very districts where these marriages have been principally contracted, quite as numerous instances might be found, if sought for, of persons who are living in the lowest and most degrading species of vice; and certainly, if the violations of a law are

LAW OF SCOTLAND-ERSKINE'S INSTITUTES.

45

to be urged as an argument against the law itself, then I think the records of our criminal courts will show that neither our property nor even our persons are likely to be long secure. And perhaps, my lords, if those who are curious in the statistics of incest examined the matter farther, they would find how many of these marriages owe their origin to that unfortunate agitation which has of late prevailed upon this subject, and to that mischievous industry with which people have been taught to believe that these marriages are not illegal; for we know how readily those who are intent on the commission of any offence, particularly one against the laws of purity, are led to think that the offence is, after all, nothing, or that 'the sin,' in their case at least, is not so exceeding sinful.'

The law of Scotland is not more doubtful than that of England, and proceeds on the very same principles, viz., the degrees prohibited in Lev. xviii., and on the principle of parity of reasoning. Here I am tempted to give the whole of the very lucid statement both of the principle and of the law on this subject as given in Erskine's "Institutes of the Law of Scotland." "On the computation of the degrees of propinquity and affinity,"

he says,

"Propinquity is distinguished by its different lines, and measured by degrees. A line in propinquity is a series of persons descended from the same stock or root. That line where the propinquity is constituted between the persons generating and generated, is called the direct. A father is, with respect to his child, in the direct line of ascendants. Where the persons related are not descended the one from the other, but have the same common parent, by whom the propinquity is formed, the line is called the oblique, transverse, or collateral. In computing the degrees of consanguinity, according to the Roman law, every person who was generated made a degree, without reckoning the common stock. By this rule, father and son were in the first degree of consanguinity, because the son is the only person generated; brothers in the second, uncle and nephew in the third, and first cousins or cousins-german in the fourth. The computation of the degrees of propinquity in the Canon law agrees precisely with that in the Roman, in the direct line of ascendants and descendants; but in the collateral, the Canonists compute, not by the number of persons descended on both sides from the common stock, but by the number of generations upon one side only. According to this reckoning, cousins-german are in the second degree, because each of them is but two generations distant from the grandfather, who is the common stock; whereas they are by the Roman rule in the fourth. In the unequal collateral line, where one of the two is farther removed than the other from the common stock, the Canon law reckons the distance by the number of generations of the person farthest removed, Decretal. 1. 4, t. 14, c. 9. Thus a niece is related in the second degree to her uncle, because she is related in the second degree to her grandfather, the common stock; and, by the same rule, she is no farther removed from her uncle's son; which abundantly discovers the absurdity of that method of reckoning. Affinity is that tie which arises in consequence of marriage betwixt one of the married pair and the bloodrelations of the other; and the rule of computing its degree is, that the relations of the husband stand in the same degree of affinity to the wife in which they are related to the husband by consanguinity; which rule holds also, e converso, in the case of the wife's relations. Thus, where one is brother by blood to the wife, he is brother-in-law, or by affinity, to the hus

46

LAW OF SCOTLAND-HUME'S COMMENTARIES.

band. But there is no affinity between the husband's brother and the wife's sister, which is called by doctors affinitas affinitatis, because there the connection is formed, not between one of the spouses and the kinsman of the other, but between the kinsmen of both.

"As to the degrees in which marriage is prohibited, the law of Scotland has adopted the Jewish law, by Act 1567, c. 15, declaring that marriage shall be as free as God hath permitted it; and that seconds in the degrees of consanguinity and affinity, and all degrees farther removed, contained in the Word of God, may lawfully marry; by which manner of reference it would seem that our legislature hath considered the law of Moses in that matter to be obligatory upon all nations. By Lev. xviii. the following rules are established, either expressly or by consequence. 1st, Intermarriage between ascendants and descendants in the direct line is forbidden in infinitum, let the degrees of propinquity between the parties be ever so distant; for such marriages are universally agreed to be repugnant to the law of nature, and destructive of the ties of birth, Grot. De Jur. Bell. 1. 2, t. 5, § 12, ver. 2. 2dly, Marriage, even in the collateral line, is forbidden in infinitum, where one of the parties is loco parentis to the other, i. e., where he is brother or sister to the direct ascendant of the other party. Thus, one cannot intermarry with his grand-niece, though he be as far removed from her in degree as first cousins are, both by the computatio of the Civil and of the Canon law. 3dly, In every instance which falls not under either of these two rules, marriage is lawful in the second degree according to the Canon law, or in the fourth, according to the Roman; and consequently cousins-german may intermarry, and all that are farther removed than they. It may be observed, that the act 1567, which was enacted not long after the Reformation, has followed the rule of the Canon law, as it was the common way of computing degrees in Scotland at that time, and continues to this day among the vulgar. 4thly, The degrees prohibited by the law of Moses in consanguinity, are, in every case, virtually prohibited in affinity; and by the aforesaid act 1567, the prohibition is equally broad in the degrees of affinity as in those of consanguinity. Thus, one cannot marry his wife's sister, more than he can his own. In all this matter the rules are the same by the law of Scotland, whether the parties be related by full or by half blood." *

In a note Erskine refers to Professor Hume's "Commentaries on the Law of Scotland," as having some very important observations on the subject. Hume is less clear and distinct than Erskine; but only less clear and distinct as to his own opinion what ought to be the law, than as to what is the law. He gives a case of the double crime of adultery and incest, in which the criminal was punished with death; but the sentence was only on the ground of the incest. He then refers to the doubts on the meaning of Lev. xviii. 18, and adds, "Our practice affords, however, one instance of the pains of incest applied to this situation also. I allude to the case of Tannahill (Jan. 8 and 22, and Mar. 12, 1705), who had sentence of death for incest committed with the sister of his deceased wife; but on which conviction Lord Royston has this remark in his notes, sed dubito an jure,— For, since King James's Act has an express reference to the judicial law, Lev. xviii., it ought not to be extended to other cases not therein expressly mentioned." This opinion of Lord Royston, it will be perceived, takes no notice of the fact that the "Con* "Institutes of the Law of Scotland," book i. tit. vi.

LAW OF SCOTLAND-MR BELL-LORD STAIR.

47

fession of Faith" is part and parcel of the law of Scotland; and his opinion weighed obviously nothing in the mind of Erskine. Bell, in his PRINCIPLES of the Law of Scotland," says,-" In affinity, or relationship by marriage, the husband and wife being one, the blood relations of each are held as related by affinity in the same degree to the one spouse, as by consanguinity to the other. The view on which, in England, it seems to be lawful for a husband to marry his sister-in-law after the death of his wife, has not been admitted in Scotland." The view here referred to has respect to the anomaly in England which Lord Lyndhurst's Act was passed to correct, viz., that while such marriages were unlawful, and so voidable, if questioned during the lifetime of the parties, they were not void as to civil effects after the death of one of them. On the law of Scotland he expresses not a doubt.*

6

Bell refers to Lord Stair. His opinion I quote from a speech delivered by Robert Lamond, Esq., a most respectable and able lawyer and esteemed citizen of this city, at a public meeting held in Glasgow, called for the purpose of opposing Mr Stuart Wortley's proposed bill to legalise such marriages. Speaking of Erskine, Mr Lamond says,-" In the other part of his Institutes, when he comes to treat of crimes, he has these important observations, Incest could not be committed by the law of Moses but by those who stood within the degrees either of consanguinity or affinity in which marriage was forbidden (Lev. xviii. 7-16), and it was punished capitally (ver. 29). Now,' he adds, the law has been adopted by us, in all respects, by the Act 1567, c. 14; and though an act was passed during the Usurpation, in 1649, which extended the former to certain degrees more remote, it was repealed by the Act Rescissory of Charles II., and never revived.' Lord Stair, an earlier institutional writer, and who is by jurists considered our most philosophical writer, lays down the law in these words, and he assigns the reason of the law in his statement: The degrees,' says he, ‘in which marriage is allowed or forbidden are by divine institution. And therefore (Lev. xviii.) where the degrees of marriage are expressed, and unlawful connections forbidden, it is subjoined (ver. 24, 25), “Defile not yourselves in any of these things, for in all these the nations are defiled which I cast out before you, and the land is defiled, therefore I do visit the iniquity thereof upon it." But unless these degrees of prohibited marriage were a part of the law of nature, written in man's heart as a positive law known to all nations, the Lord, who hath declared that he will judge men by the law which is known, could not have judged the Canaanites by the transgressions thereof.' And again, (book i., t. 4, § 6), Stair further observes, Marriage is also void and inconsistent when contracted within the degrees prescribed in Lev. xviii., whereby the next degree collateral is only prohibited both in consanguinity and affinity, which makes those joined in affinity in the same degree as being by marriage one flesh.' And, finally, Professor More, the latest editor of Stair, affirms the same view as law, and supports it by reference to the Confession of Faith, as ratified by Parliament in 1690, and by the Act 1700, cap. 2. Such is the law of Scotland, as laid down by our institutional writers; and the Levitical law, in the question on hand-as expressed in its ordinary acceptation, in the manner in which we have been accustomed to receive it, and not with the gloss of the witnesses

6

"Principles of the Law of Scotland. By G. J. Bell, Esq., Advocate, Professor of the Law of Scotland, University of Edinburgh." Edinburgh, 1830. Part iii. 1527.

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FERGUSON'S CONSISTORIAL LAW.

who support this new bill-has been confirmed by decisions in our supreme courts; decisions, however, most honourable to Scotland, occurring at very distant intervals, even with centuries intervening."

Mr Lamond then proceeds to give cases.

In a work bearing date, "Edinburgh, 1829," and a high authority on such subjects, I find the following statement of the law of Scotland," By the act of the 1st Parliament of James VI., it was 'statute and ordained that halie bond of marriage made by all estates and sorts of men and women be als lawful and als free as the law of God has permitted the same to be done.' It was, too, thereby further declared 'that seconds in degrees of consanguinity and affinity, and all degrees outwith the samin contained in the Word of the eternal God, and that are not repugnant to the said Word, might and may lawfully marry at all times sen the viii day of March, the zeir of God one thousand five hundredth fifty-aucht zeirs, notwithstanding ony law, statute, or constitution made in the contrarie.' Again, in the 4th sec. of the 24th chap. of the Confession of Faith, as renewed at the Revolution, and ratified by and engrossed in the statute chap. 5 of the 1st Parliament of King William and Mary, anno 1690, it is so expressed." The writer quotes the said section, and adds," But the difficulties of explaining so as to reconcile the texts of Leviticus on this head were found to be so great, that the Act 1649, chap. 16, was passed for the purpose. It was rescinded by the Act 1661 as illegal, on account of the rebellion. By the 18th chapter of Leviticus, ver. 12 and 13, the intermarriage of nephew with aunt is prohibited. From parity of reason, our law has extended this prohibition to the intermarriage of uncle with niece; and the criminal courts have punished the violation of the rule capitally, as incest (case of Strange, 24th April 1649; of Johnston, 8th June 1705). The application of this rule to intermarriage by either spouse in widowhood with the relatives of the deceased, whether by consanguinity or affinity, within the prohibited degrees as thus interpreted, has likewise in various cases been capitally punished as incest by our criminal tribunals (case of Tannahill, 2d March 1725; of Gourlay, 5th July 1626; of Blair, 7th September 1630.-Report, Second Division-see title). Nevertheless, a question is understood to have been agitated in private consultations which was lately brought to trial in the Consistory Court, whether it was not lawful for a husband, on the decease of his wife, to marry her sister, either of full or half-blood, or vice versa for a widow to marry the brother of her late husband. From the foregoing quotation it must, however, be evident that such marriages as are prohibited must likewise be set aside ab initio, if a regular action of nullity or of divorce shall be instituted during the lives of any of the spouses. Accordingly, in this shape the Commissioners have given that judgment upon the question, and this decree has been carried into effect without being subject to review."‡

After all this, one is astonished that Dr Eadie should have hazarded the following opinion, without more careful inquiry, even on the authority of the Lord Advocate. Dr Eadie says,-"The provisions of Lord Lynd

* At the above meeting another able speech was delivered on the same side, by Anderson Kirkwood, Esq., another of the ablest and most esteemed lawyers and citizens of Glasgow. +This, like many other facts, demonstrates that instead of being fettered by the Popish laws of marriage, Protestants formally repudiated them whenever the Word of God permitted them to do so.

"Consistorial Law in Scotland. By James Ferguson, Esq., lately one of the Judges of the Consistorial Court of Edinburgh." Edinburgh, 1829.