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Marriage with a Deceased Wife's Sister.-Scotch Decision.


some passages in the reasons for the judgin affinity. (Stair, i. 4, 6; Erskine, i. 6, 9; ment, showing as well great research and Mackenzie, i. 6, 5; Bankton, i. 5, 47; Bell's egal acumen as much eloquent expression; Prin., sec. 1527.) It is, however, to be nobut we trust we have omitted no material ticed, that Mr. Erskine, whose authority on statement or argument in support of the decided, deduces his opinion not from the the precise point here raised is very clear and proposition that a marriage can be legally 14th, but from the 15th chapter of the Act effected with a deceased wife's sister. It 1567, and states that the connection is virtuwill be observed that the marriage in ques- ally prohibited' by the law of Moses. He tion took place long before Lord Lynd- does not say 'expressly prohibited,' which is hurst's Act, and that it remained undis- required by the 14th chapter. In the Confesturbed during the life of the parties; and sion of Faith, ratified by Act of Parliament in the marriage being irrevocable in England, 1690, it is expressly stated, that the man may and the parties being domiciled there, the blood than he may of his own, nor the woman not marry any of his wife's kindred nearer in Courts of Scotland were bound by the law of her husband's kindred nearer in blood than of England, whatever might have been the of her own.' (Confession of Faith, cap. 24, decision of the Scotch Courts if the mar- sec. 4.) This declaration may be taken as an riage had taken place in Scotland. We authoritative construction of the Divine law conceive, therefore, that the effect of this Scotch decision has been much overrated, although the Lord Ordinary has added his authority to the construction that the passage in Leviticus does not prohibit such marriages.

by the Presbyterian Church; for the Confession of Faith is the public and avowed Confession of the Church of Scotland,' and was Scripture, the standard of Faith to all Presratified as such; and it is, in subordination to byterian bodies. But it has been serioulsy doubted by high authority whether, in con"The Lord Ordinary having heard counsel struing the Statute 1567, cap. 14, which crefor the parties, and made avizandum with the ates a capital crime, anything short of express proof, productions, and whole process, and prohibition by Divine law can be received as considered the same for the reasons explained sufficient. (Hume on Crimes, vol. i., p. 447, in the annexed note-Finds that the defender 449.) The Statute creates no crime, but that was born in England, the offspring of a mar- which consists in the breach of an express riage celebrated in England, between parties prohibition of the Divine law, and the only domiciled in England at the date, and during canon of construction is the 18th chapter of the subsistence, of the marriage: Finds, as Leviticus. It is a highly penal Statute, and matter of fact, that the defender is legitimate must be rigidly interpreted. (Hume, vol. i., according to the law of England: Finds that p. 447.) The capital sentence which it athis legitimacy ought to be recognised by the taches to the crime which it creates, cannot Scottish Court: Therefore assoilizes the de- rest on inference, implication, or analogy. fender from the conclusions of this action of Connection with a wife's sister during the life declarator of bastardy, and decerns: Finds the of the wife has been frequently punished as pursuer liable to the defender in expenses, al- incest; and it has been very recently found to lows an account thereof to be given in, and, be incestuous, and has been followed by a when lodged, remits the same to the auditor to sentence of transportation. (Hume, vol. i., p. tax and report. 450. Alison's Prin., p. 564. Case of Oman, (Signed) "JAS. CRAUFurd.” 14th April, 1855. Irvine's Just. Rep., v. ii., "Note.-There are now before the Lord p. 146.) But the Judges who decided that Ordinary two actions relative to the succes-point reserved their opinions on the question sion to the estate of Bedlormie. The first is a of the legality of a marriage after the wife's process of advocation from the Sheriff in death, and also on the question, whether such Chancery, of conjoined petitions for special a marriage, if illegal, would be incestuous; service, as nearest and lawful heir of tailzie and there is no decision of modern days upon and provision,' to Admiral Sir Thomas Li- either point. vingstone, Baronet. Mrs. Fenton is the sister of Sir Thomas. Mr. Alexander Livingstone is his nephew, being the eldest surviving son of his brother, Thurstanus Livingstone. It is not disputed, that, if Alexander Livingstone is legitimate, he is entitled to the estate. But it is alleged by Mrs. Fenton that Alexander Livingstone is a bastard, in respect that he is the offspring of the marriage of Thurstanus with the sister of his deceased wife-such connection being said to be unlawful and incestuous. "The institutional writers on Scottish law Concur in stating that, in so far as regards the alidity of marriage, the same degrees which if it had occurred in Scotland. are prohibited in consanguinity are prohibited

"In the view which the Lord Ordinary takes of the present case, it is not necessary for him to express any opinion on the validity of the marriage by Scottish law. It may, for the sake of the argument, be assumed that, if such a marriage occurred in Scotland, it would not be valid; and certainly no Presbyterian clergyman could knowingly celebrate it without a breach of duty, and the risk of deprivation of office. But it does not follow that the defender, Alexander Livingstone, is to be declared a bastard, and refused the inheritance, because the marriage of his parents would have been unlawful

"The father and mother of the defender


Marriage with a Deceased Wife's Sister.-Scotch Decision.

were regularly married in England on the 7th
of August, 1808, and the defender was born in
England on the 13th of June, 1809. The
marriage was dissolved by the death of Mrs.
Livingstone, the mother of the defender, who
died in England in August, 1832. Thurstanus
Livingstone, the father of the defender, died
in England in December, 1839. Sir Thomas
Livingstone died in Scotland in April, 1853;
and the competing petitions for service were
presented on 4th June and 4th July, 1853.
"The point directly and primarily involved
in this case is not the marriage of Thurstanus,
but the legitimacy of Alexander Livingstone.

"1st, This question of legitimacy is a question of personal status; and as a general rule, apart from the specialty to be afterwards noticed, it must be decided according to the lex loci contractus, if that be the domicile of the father at the date of the marriage.

"This is the rule laid down by all the most eminent jurists. Where the law of the contract and that of the domicile differ, nice questions may arise; but if a marriage is celebrated in the place of the husband's domicile, and a child is born in the same place, the legitimacy of the issue of the marriage will be regulated by the law of that country. (Story's Conflict of Laws, sects. 51, 105, 113. Kent's Com., v. ii., p. 91. Burge's Com., v. i., p. 184. Lord Stowell's opinion in Dalrymple v. Dalrymple, 2 Hag. Cons. Rep., p. 54.) In the present case the locus of the marriage from which the defender sprung was in England, and it is necessary to ascertain what was the domicile of the defender's father at that time.

"2nd, At the date of the marriage in 1808, the domicile of Thurstanus Livingstone was in England.

"After careful consideration of the evidence, the Lord Ordinary has formed a decided opinion on this point. It is true that Thurstanus was born in Scotland, but he quitted his native country at a very early age, and he never again returned to reside in Scotland, but died in England in 1839, and is said to have been 70 years of age. His first marriage was in October 1797. He is designed in the certificate of that marriage as of the Parish of St. Matthew, Bethnal Green, and he was married by banns,' so that the certificate is proof of residence; and evidence to the contrary in a suit touching the validity of the marriage is incompetent. (Starkie's Law of Evidence, v. ii., p. 702; 26 Geo. 2., cap. 33, sect. 11, and 4 Geo. 4, cap. 76.) But there is sufficient parole evidence in support of the certificate to leave no doubt on the point. After his first marriage he and his wife lived in London, and not in mere lodgings, but in houses taken for themselves. He was indeed frequently from home; for, being a seafaring man, he was often and for considerable periods at sea. But he left his wife in London in a house which was to both spouses a home, and to which he returned when he came on shore. He had no home in Scotland. His

first wife died in 1806; he returned from se:
soon after, and there is evidence that, whe
not at sea, he continued to live in London,
while there is no evidence or indication of any
other home. He more than once stated that
Catherine Ann Dupuis was married to Tice-
hurst'out of his house' (Advocate's Proof, p.
12, B), and it appears from the certificate (No.
200 of process, p. 87 of Advocate's Proof), that
on 18th September, 1803, he was in London
present as a witness of that marriage. In
August, 1808, he married a second time, and
this marriage was regularly celebrated in the
parish of St. John, Hackney, in the county of
Middlesex, the marriage being again by
banns,' and he being then resident in that
parish, as is clearly proved not only by the
certificate (Appendix to Record, p. 4), but
by the parol evidence. Under these circum-
stances, it is really scarcely possible to doubt
that, at the date of this second marriage in
1808, of which the defender is the offspring,
the true domicile of Thurstanus Livingstone
was in England, where it continued to be at
the date of the defender's birth in 1809, and
down to the death of Thurstanus in 1839. The
fact that England was the place of the matri-
monial domicile, as well as the place of the
contract and the place of the defender's birth,
is most important; because, in that case it is
clear that the Law of England regulates the
personal status of the defender, and the next
question is, what is the personal status of the
defender according to the Law of England?

"3rd, The defender is legitimate according to the Law of England; and, his parents being dead, his legitimacy cannot, by the Law of England, be now affected by any allegation of affinity between them.

"He is the offspring of a marriage regularly celebrated in facie ecclesia in 1808, and not challenged in any suit during the life of the parties. His mother died in 1832. The Act 5 & 6 Wm. 4, c. 54, commonly called Lord Lyndhurst's Act, passed in 1835; and it provides 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 be hereafter annulled for that cause by any sentence of the Ecclesiastical Court, unless pronounced in a suit which shall be depending at the time of the passing of this Act.' The Act proceeds to declare that all marriages celebrated after its date, between persons within the prohibited degrees of consanguinity or affinity, shall be absolutely null and void, to all intents and purposes whatsoever. The learned gentlemen examined as witnesses, differing a little in regard to the theory of the ecclesiastical jurisdiction in the matter, concur in stating explicitly that the defender is by the Law of England legitimate. (Pursuer's Proof, pp. 47 and 49; Respondent's Proof, p. 61.) The marriage, apart from Lord Lyndhurst's Act, was beyond challenge from the date of the wife's death (Ray v. Sherwood, 1 Curteis's Rep. 199), and the allegation of affinity cannot now be inquired into, to the effect

Marriage with a Deceased Wife's Sister.-Scotch Decision.


of bastardising the issue. Both by the Law | prevent its recognition, and to require the reprevious to Lord Lyndhurst's Act (Blackstone, pudiation of its validity. But, in the present Book i. cap. 15, sects. 1 and 2, and Book iii., case, it is not alleged that there has been any cap. 7, sect. 2), and by the express enactment of that Statute, the marriage of the defender's parents is now unassailable on the ground of alleged affinity, and the defender's legitimacy is absolute, and cannot on such grounds be now called in question. He is a domiciled Englishman, born in England, of a marriage celebrated in England between parties domiciled in England; and the personal status of legitimacy has been impressed upon him by the Law of England, which is alike the Law of the contract and the Law of the domicile.


4th, The Scottish Court ought, on the principles of international Law, to recognise the legitimacy of Alexander Livingstone.

"That this is the general rule is abundantly clear. The status of legitimacy is a personal quality, and when once impressed by the Law of appropriate jurisdiction qualitas personam sicut umbra sequitur. The marriage of the defender's parents was, from the death of his mother, absolutely and unassailably valid; and being valid according to the lex loci contractus, and continuing valid according to the lex domicili, the personal status of the issue was fixed, so as to become a quality. A marriage once valid, and a validity creating legitimacy as a quality of the child, by the law of the contract and of the domicile, is, in the general case, valid everywhere.

breach of Scottish Law within Scotland, for the married parties were never in Scotland, and therefore the Scottish Court, when asked to recognise the defender's legitimacy, is not called on to deal with the marriage, or to pronounce any opinion on its validity according to Scottish Law, but may assume the legitimacy as a fact. In this view, the interesting cases in regard to the recognition of slavery afford an apt illustration. If a slave is within the realm of Great Britain, it has long since been decided both in England and in Scotland, that the state of slavery is inconsistent with the principles of the Laws of this kingdom, and cannot be supported. (Case of Somerset, Lofft, Rep. 1. Knight v. Wedderburn, January 15, 1778, M. 14, 545.) But if the slave was not within the realm, if the value or price of slaves in the West Indies formed part of a succession claimed in this country, the Courts both of England and Scotland have not hesitated to adjudicate on the question of succession, without inquiry into the lawfulness of the relation of slavery according to English and Scottish Law. (Newlands v. Chamber's Trustees, 22nd November, 1832, S. & D. Smith v. Lauder, 30th May, 1834, S. & D. Robertson v. Landell, 2nd December, 1843, S. & D. Stewart v. Garnett, 3 Sim. Rep. 398.)

"6th, If the quality of the marriage can be "So stands the general rule. Has the pur- here examined, and assuming its invalidity if it suer shown that this case should be an excep- had occurred in Scotland, there arises a question? The Lord Ordinary thinks that she has tion on which the Lord Ordinary feels it to be not-for, his duty to state his opinion. Is it an inces"5th, The pursuer's allegation that the de-tuous connexion, amounting to a capital crime, It is only fender is the offspring of a marriage between under the Statute 1567, cap. 14? Thurstanus Livingstone and the sister of his on the assumption that the quality of the mardeceased wife does not create an exception, so riage is examinable here that this question as to exclude the comitas, and is not now rele- arises; but, on that assumption it cannot be vant to the effect of bastardising the defender. escaped, because, while mere invalidity will not "It has been already explained that no in- exclude recognition per comitatem of a foreign quiry into this allegation would be permitted marriage, an incestuous marriage is in a difin England. Nor can it, on the state of the ferent position. (Story's Conflict of Laws, sec. facts which must now be assumed, be permitted 114. Kent's Com. vol. ii. p. 81.) in Scotland. "There has been no such series of decisions, "From a marriage now beyond all challenge no such solemn deliverance, and no such settled in England, the defender has derived a legiti-judicial practice as to amount to an authorimacy which, ex comitate, ought to be recog-tative construction of the Statute, and relieve nised in this country. If he brings this per- the Court from the necessity of construing it sonal status to Scotland, and it is here chal- by the canon of the 18th chapter of Leviticus. lenged, the question is-not what was the Then, the declaration in the Confession of quality of the marriage from which he sprang-Faith, and the Parliamentary ratification of but, is his legitimacy to be recognised?

"If the parties to such a marriage had thereafter come to reside in Scotland, and if the marriage were valid by the law of the country where it was celebrated, but unlawful by the Law of Scotland, and if any question had arisen here as to the rights of the spouses, then the Scottish Court would be called on to deal with the marriage, and to recognise or to repudiate it, and would be under the necessity of considering-first, whether the marriage is unlawful; and, secondly, whether the quality and degree of its unlawfulness is such as to

that Confession though binding on the Presbyterian Church, and though, perhaps, binding on the State of a Presbyterian country to civil effects, is not binding as a Legislative construction of the prohibitions of the Divine law to the effect of creating a capital crime, The question, what says the Statute? throws us back on the other question-What is 'expressly prohibited' in the 18th chapter of Leviticus?

Nothing less than an express prohibition can be sufficient. Such a marriage may not be expedient; nor is a marriage expedient where there is great disparity of age, ex


Marriage with a Deceased Wife's Sister.-Scotch Decision.

treme penury, or the taint of hereditary disease. | (sect. 116): In the diversity of religious It may not be consistent with a sound religious opinions in Christian countries,' he adds, ‘a profession; nor is a marriage with an infidel, large space must be allowed for interpretation or a person of bad character. But, if there is as to religious disputes, rights, and solemnino express prohibition, it is not within the ties.' (See also, 2 Kent, p. 85; Grotius, B. Statute. On this point the Lord Ordinary ii. cap. 5, sects. 12, 13, 14.) And when one would willingly defer to the authority of the considers the long-continued dispute on the Confession of Faith; but in this Protestant subject, and the distinguished names arrayed country, which refuses to ecclesiastical autho- on both sides of the controversy, it does seem rity the right to create or declare a crime, it is difficult to conclude that such a marriage is impossible to escape from the responsibility of deemed incestuous by the general consent of forming an independent opinion. With great Christendom.' If, therefore, this marriage is diffidence, therefore, and with unfeigned re- not incestuous by Scottish law, the defender spect for the many learned and excellent per- must be treated as legitimate; and even on the sons who have arrived at an opposite conclusion assumption that it is incestuous by Scottish the Lord Ordinary ventures to express his law, there is some authority for holding that opinion, that there is, in the Divine law, and the international law would still support the more especially in the 18th chapter of Leviticus, legitimacy, on the ground that the connexion no such express prohibition' of this mar- is not incest, by the general consent of Chrisriage as to make it incestuous under the Statute. tendom.' It is not necessary, and not appropriate, to enter here on any explanation of the reasons which have led him to form this opinion. He has reached it, against first impressions, and after anxious and deliberate consideration.

"The difficulty of construing the prohibitions, the prudent wish to keep wide of every illdefined boundary between right and wrong, the duty of avoiding even the appearance of evil, and strong views of the inexpediency of such connexions, may have led the assembly of divines who framed the Confession of Faith to testify and declare against them as unlawful to Christians, whose duty it is to marry only in the Lord,' and who are in the preceding section of the same chapter (Confession of Faith, chapter 24, sec. 3) forbidden to marry with 'infidels or Papists,' or with 'such as are notoriously wicked in their life;' and yet that declaration may not be received as probatio probata of the construction of Scripture to the effect of creating a crime. There is no reason to doubt that, in Scotland, the testimony of the Confession of faith in this matter will continue to receive an almost universal recognition, and to be binding, in foro conscientiæ, on all who adhere to the standards of the Presbyterian Church. The mere fact that this marriage is not a crime will not go far to commend it to the favour of Scotsmen, who, if left at liberty, are most unlikely to form such connexions, particularly as they could not be married by a Presbyterian minister.

"But if it be not an incestuous connexion in Scotland, then there is no ground for refusing to recognise here the legitimacy which the law of England has conferred on the defender. Story, concurring with all the leading authorities on international law, after stating that no Christian country can recognise incestuous marriages, proceeds to say-But when we speak of incestuous marriages, care must be taken to confine the doctrine to such cases as by the general consent of Christendom are deemed incestuous.' (Story, sect. 114, 115.) And the marriage with the sister of a deceased wife is referred to, as an illustration of a connexion not incestuous by such general consent

"7th, In the last place, the fact that the defender is claiming a Scottish estate affords no reason for refusing to recognise his legitimacy.

"This is an action of declarator of bastardy, and there can be no doubt, as it was indeed admitted, that, on the result of this declarator, the succession to Bedlormie depends. If the status of the defender is that of bastardy, then he is a bastard whether he claims the estate or not; if his status is not that of bastardy, then he cannot be declared a bastard because he claims the estate. If the Lord Ordinary is right in holding that the legitimacy of the defender, as a question of status, is to be determined by inquiry into the law of England which conferred on him his status, and that his legitimacy, when once so ascertained must be recognised, then effect ought to be given to it just as to any other fact competently and sufficiently ascertained. There are many strong objections, in reason and in law, to a divided or fluctuating legitimacy, in respect of which a person might be legitimaté in England and a bastard in Scotland. But the objections are yet more weighty to a partial legitimacy, in respect of which a person may be at the same time and in the same Court legitimate and a bastard.

"The decision in the well-known case of Birtwhistle v. Vardell, 7 C. & F. 875, has been referred to as an authority against the recognition of the defender's legitimacy in a question of succession to Scottish heritable estate. That decision, however, when carefully analysed, will be found to be not a judgment on the question of status, or on the question of international law, but a judgment exclusively on a question of the transmissibility of English landed estate. The action in which it was pronounced was not in form or substance equivalent to a declarator of bastardy. The point of right to succeed was raised in an action of ejectment. The ground and foundation of the judgment was the Statute of Merton, a rule of positive law annexed to land, and qualifying the right to inherit land in England. Had it not been for this peculiar rule of positive law the legitimacy would have been recognised in the case of Birtwhistle to

Marriage with a Deceased Wife's Sister.-Notes of the Week.


in the foremost rank as a public Writer and Author, both in law and literature.

all effects, and the rule founded on the Statute | are new or will shortly be under the consideraof Merton was only applied to the effect of re- tion of Parliament. gulating the succession to the English real esIt must be acknowledged tate. This is the view of the judgment in on both sides of the House that, considering Birtwhistle, taken by Lord Corehouse in Mr. Warren's standing at the Bar, his rank as Munro v. Munro (15 November, 1837, 16 S. one of her Majesty's Counsel, and his position and D., p. 58). It humbly appears to the as Recorder of Hull, he is well entitled to a Lord Ordinary to be correct; and the explana-seat in Parliament. Above all which he stands tion of this decision, otherwise difficult to be reconciled with the jus gentium, is to be found in the peculiar character of the rule of positive law resting on the Statute of Merton-a rule historically and constitutionally so remarkable -a rule sanctioned by uniform institutional authority and universal public recognition-a Mr. Napier, on the 12th instant, moved rule so inseparably connected with English 66 that, as a measure of administrative reform, land that it might be said to be inscribed on provision should be made for an efficient and her soil. By such a rule the Judges of Eng- responsible department of public justice, with a land felt compelled-perhaps it may be per-view to secure the skilful preparation and promitted to say felt reluctantly compelled-to re- per structure of Parliamentary Bills, and profuse full effect to the status of legitimacy, mote the progressive amendment of the laws which, ex comitate gentium, they recognised as of the United Kingdom." conferred by the law of Scotland. (See Lord Brougham's opinion, 10th August, 1840, Rob. app. cases, p. 631, 632.)

"But there is no Scottish Statute of Mertonno rule of positive law annexed to land which can interpose to prevent, or limit, the full recognition of the status of legitimacy. In Scotland the right to succeed to land depends simply on propinquity and on the status of legitimacy. The converse of the case of Birtwhistle cannot occur. There is nothing in the law of Scotland to prevent effect being given to the principles of international law. If the defender is legitimate, that is sufficient to satisfy all the conditions of law.

"On these grounds the Lord Ordinary is, on the whole matter, of opinion that the defender is entitled to absolvitor from the conclusions of the action of declarator of bastardy."

Counsel for the Pursuer-The Dean of Faculty and Mr. Patrick Fraser. Mr. T. H. Ferrier, Agent.

Counsel for the Defender-The Lord Advocate and Messrs. Hamilton Pyper and G. H. Pattison. Mr. James Somerville, Agent.




After much discussion the resolution was carried, omitting the words in italics, which would have interfered with the position of the Lord Chancellor and the Attorney and Solicitor-General. The resolution, as carried, may also interfere with the province of the Statute Law Commissioners. It is, however, admitted on all hands that the "skilful preparation and proper structure" of Parliamentary Bills should take place forthwith.


8th February. 1856. Ordered, That this House will not receive any petition for a private bill after Monday, the 17th day of March next, unless such private bill shall have been approved by the Court of Chancery; and the House will not receive any petition for a private bill approved by the Court of Chancery after Tuesday, the 20th day of May next.

Ordered, That this House will not receive any report from the Judges, upon petitions presented to this House for private bills after Tuesday, the 20th day of May next.

Ordered, That the said Orders be printed and published, and affixed on the doors of this House and Westminster Hall.

NOTICE has been given by Lord Redesdale, that no private Bill shall be read a second time after Tuesday, the 8th day of July next.

That no bill confirming any provisional re-order of the Board of Health, or authorising any enclosure of lands under special, report of the Enclosure Commissioners for England and Wales, shall be read a second time after Tuesday, the 15th day of July next.

THE election for the University of Cambridge has terminated in favour of Mr. Walpole, his opponent, Mr. Denman, having tired from the contest at the close of the third day. The election was conducted, as might be anticipated, with great courtesy on both sides. Mr. Walpole voted for his opponent, and the latter returned the compliment,

Mr. Warren was elected, without opposition, for Midhurst and made an admirable speech to the electors, touching eloquently on all the prominent topics in Church and State which

That when a Bill shall have passed this House with amendments, these orders shall not apply to any new Bill sent up from the Committees shall report is substantially the House of Commons which the Chairman of same as the Bill so amended.

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