but it seems to me the point in this case is very short. If you can tell me who are the persons to whom this second section applies, and what are the degrees of consanguinity or affinity to which it applies, it would materially shorten the case.

Mr. Foster. I shall show your lordship the point is far from being a short one. The case of "Middleton v. Croft" (to which I draw your lordship's attention), reported in 2 Atkins, has decided that the canons of 1603, which adopt Archbishop Parker's table, passed in the sixteenth century, which is the table inserted in the Prayer Book, are not binding upon the laity of this country, because they have not been sanctioned by Parliament.

Wightman, J.-But I suppose this second section (5th and 6th William IV.) alludes to somebody "All marriages celebrated between persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void, and so on?

Mr. Foster. No doubt, my lord; but I contend

Wightman, J.-Where do you say are the prohibited degrees?

Mr. Foster. The prohibited degrees, my lord, are set out in the 32nd Henry III., chap. 38.

Wightman, J.-Let me see that act. If you satisfy me it does not apply to a deceased wife's sisters, very well.

Mr. Foster. I hope to do so, my lord. Your lordship will find there are certain degrees there called "the Levitical degrees," without which no marriage shall be prohibited. All marriages within the Levitical degrees are there expressed to be contrary to God's law. The Levitical degrees are the test which your lordship

must take, as to the prohibited degree of affinity.

Mr. Monk. Your lordship will find that these degrees are themselves declared by a previous statute.

Mr. Foster. Having now convinced your lordship there is a point in the case of some importance, and a point well worthy of consideration, I will endeavour to go consecutively through my argument. The 5 and 6 William IV. sets out that all degrees within the prohibited degrees of affinity shall be void after the passing of that statute. Therefore, my lord, if there be any degrees which were voidable previously to that statute, and this marriage is included in those degrees, the statute 5 and 6 William IV. applies to that class of voidable marriages, and the marriage becomes ipso facto void. The first question to be determined, then, is-Is this marriage within the prohibited degrees, voidable by any means? There are three modes, my lord, by which a marriage of this kind may be agreed to be voidable. First, it may be argued it is voidable by the statute law of this country; secondly, by the canon laws, which, if valid, are held to be binding; and, thirdly, by the Levitical degrees, which are named in the 32nd Henry VIII., chap. 38, and of which your lordship must be the expounder. I will take the statutory law first; and I will take it in the order of time, in order to make the argument more clear. I will then first draw your lordship's attention to the act 25 Henry VIII., chap. 22. That statute was the first statute which contained any list whatever of the prohibited degrees of affinity. It will be found in page 439 of Burn's

Ecclesiastical Law, under the title "Marriage." In the list there given is contained this marriagenamely, with a wife's sister. Subsequently the act 28 Henry VIII., chap. 7, was passed, which expressly repeals the act 25 Henry VIII., chap. 22.

Wightman, J.-We need not trouble ourselves with going through the repeal of statutes. The 25th Henry VIII. and the 28th Henry VIII. are both repealed by the 1st Mary. Then go to the 1st Mary.

Mr. Foster. That is the next in order, my lord; it enumerates the statutes repealed.

Wightman, J.-Does it say any thing about the Levitical degrees? Mr. Foster.-No, my lord. It repeals the 28th Henry VIII., chap. 7, and the 32nd Henry VIII., chap. 38. Subsequently to this statute the act 1st Elizabeth, chap. 1, was passed.

Mr. Monk.-If your lordship will refer to the repealing section in the act 1st Philip and Mary, you will find it does not repeal the 28th Henry VIII., only in a part which has no reference whatever to the question now before your lordship. My friend, therefore, is mistaken.

Mr. Foster.-I am not mistaken. The 1st section Philip and Mary repeals the 22nd Henry VIII., chap. 7, and I shall show your lordship that the case of "Hill v. Good," reported in Vaughan, contains a full exposition of those statutes, which, till now, have been held to be repealed. In "Hill v. Good" (Vaughan, 325) there is a statement of the acts repealed, and I will state them. The 1st Philip and Mary repealed the 28th Henry VIII., chap. 7; the 28th Henry VIII., chap 26; and the 32nd Henry

VIII., chap. 38. Then comes the statute 1st of Elizabeth, chap. 1, which expressly revives the 28th Henry VIII., chap. 16, which contains no prohibited degrees whatever, but concerns the succession to the Crown, and that only. It also revives the 32nd Henry VIII., so far as that statute related to consanguinity or affinity; and that statute, the 32nd Henry VIII., is now a binding statute. If your lordship will turn to the 32nd Henry VIII., you will find all the Levitical degrees are marked out which are prohibitory; and at the conclusion express jurisdiction is given to the courts of law upon the subject. I will now draw attention to Coke upon Littleton, 235 B. Speaking of the statute 32 Henry VIII., Coke says:-"By the statute 32 Henry VIII., chap. 38, it is declared that all persons be lawful (that is, may lawfully marry), that be not prohibited by God's law to marry, that is to say, that be not prohibited by the Levitical degrees." Coke then illustrates this by the case of one Parsons, who married the daughter of the sister of his first wife, and was drawn into question:-"A man married the daughter of the sister of his first wife (that is, his niece), and was drawn in question in the ecclesiastical court for this marriage, alleging the same to have been against the canons. And it was resolved by the Court of Common Pleas, upon consideration had of the same statute, that the marriage could not be impeached, for that the same was declared by the said act of Parliament to be good, inasmuch as it was not prohibited by the Levitical degree, et sic de similibus." This, my lord, is one of the cases contained in the table in the Prayer Book, and it is one

of the "well understood prohibited degrees to which my learned friend alluded. I now draw your lordship's attention to the case of 66 Harrison v. Burwell" (Vaughan, page 248). You will find this case of Coke's mentioned by Vaughan. He alluded to Parsons' case, and also to one Mann's case.

A discussion here arose as to the manner in which the Court could deal with a case of this description. Mr. Justice Wightman expressing his willingness to hear the arguments.

Mr. Foster proceeded. I was stating then, my lord, that the statute of 32nd Henry VIII. is revived by the statute of 1 Elizabeth, chap. 1. That statute also revives the 28th Henry VIII., chap. 16, which concerns only the succession to the throne, and it does not contain within it the prohibited degrees. The statute 28th Henry VIII. is, therefore, the binding statute upon your lordship. [The learned counsel read a passage from Wooddeson's Vinerian Lectures to show the power of the temporal Courts to issue prohibition where the ecclesiastical Courts showed a disposition to construe the Levitical law more largely than the common law, by the glosses and comments of the canonists and civilians.] Mr. Foster proceeded.-If your lordship is satisfied upon the point, that the Levitical degrees are those degrees which are to govern your lordship, I will draw your attention to those Levitical degrees. The 18th chapter of Leviticus contains those degrees. The verse containing the binding clause is, "None of you shall approach to any that is near of kin to him, to uncover their nakedness: I am the Lord." (v. 6).

That is the general law laid down in Leviticus; and that general law is subsequently expounded by examples given of those degrees which will be admitted as near of kin. In the 16th verse thus: "Thou shalt not uncover the nakedness of thy brother's wife; it is thy brother's nakedness." That verse prohibits marriage with a brother's wife. It is attempted by canonists, from that verse, to argue, that by parity of reason there is an implied prohibition contained in that verse to marry a deceased wife's sister, the relationship being the same with the difference of sexes. To meet that implied prohibition, I turn your lordship's attention to the 18th verse of the same chapter in Leviticus, which says, "Neither shalt thou take a wife to her sister to vex her, to uncover her nakedness, beside the other in her lifetime." The only implication that can be drawn from the verse is, that you shall not marry two sisters at one and the same time; but that after the death of one you may then consecutively marry two sisters. This view of the law is not only so laid down in Levitieus, but subsequently in Deuteronomy it is made a command, that if a brother dies leaving no issue, then his widow shall take to husband the second brother, in order that issue may be raised up to the first brother, that his name be not lost in Judah. There is, therefore, a direct Mosaical command, that a marriage even with a brother's widow is not unlawful. Upon the marriage with a brother's widow rests entirely the implied prohibition in this case; and, if that is not unlawful, marriage with a deceased wife's sister is not unlawful. In Deuteronomy xxv. 5, the same view is carried out; so

in the 1st chapter of Ruth; and the same law is repeated under the new Gospel dispensation. In MatIn Matthew xxii. 24, an instance is given of a wife having married seven brothers consecutively; and the question is put to our Saviour whose wife she shall be. According, then, to this exposition of the Levitical law, this marriage is clearly valid. I do not think my learned friend has it in his power, from any verse other than those I have read, to answer this part of the case. According to the Levitical law, there is no express prohibition of marriage with a deceased wife's sister. There is an express prohibition of marriage with the wife of a deceased brother, upon which the canonists have attempted to found the objection, by parity of reason, that a marriage with a deceased wife's sister is invalid. I now call your lordship's attention to the state of the canon law upon that subject. [The learned counsel here referred the learned judge to the 99th canon, which prohibited this marriage.] Then (he continued) I call attention to the case of "Middleton v. Croft," 2 Atkins' Rep. It appeared in that case the question arose whether, by virtue of the canons of 1603, lay persons are punishable by ecclesiastical censures; and Lord Hardwicke delivered a very celebrated judgment, part of which I will read "The authority whereby these canons were made is well known to have been by the bishops and clergy, in convocation convened by the King's writ, allowed to treat of and make canons by the Royal licence, and afterwards confirmed by the King under the great seal; but the defect objected to them is, that they never were confirmed by Parliament, and for this reason;

though they bind the clergy of this realm, yet they cannot bind the laity. the laity. This is a question of very extensive learning and great consequence, upon which there is some appearance of variety in the law books, notwithstanding which I always understood, till it was disputed in this cause, that the law, in later times, has been universally taken to be, that the canons of 1603 did not bind the laity for want of a Parliamentary confirmation. Upon the best consideration we have been able to give it, we are all of opinion that the canons of 1603, not having been confirmed by the Parliament, do not proprio vigore bind the laity; I say proprio vigore."Page 653.

Wightman, J.-Binding proprio vigore?

Mr. Foster.-Yes, my lord. Subsequently, it is acknowledged these canons may be binding, as containing within themselves canons which were previously binding, and of which these canons of 1603 merely became declaratory. That throws us back to the earlier canons, to see if they are binding. Now, I shall submit to your lordship that there is no canon in the Church previously to the canons of 1603 (which gave authority to Archbishop Parker's table, issued without authority), which renders this marriage voidable. If the marriage be not voidable by these canons, the statute of William IV. does not apply to render the marriage void. I refer your lordship to two of the canons, which will be found in

Wightman, J-This canon (99th) is the only one to be relied upon?

Mr. Foster. It is the only one. There do not appear, any where, canons that were of authority in the Church, rendering this marriage voidable, previously to that canon ;

on the contrary, there are canons which show that no such prohibitory law existed in the Church previously to the table of Archbishop Parker's, which table is acknowledged in the canons of 1603; but those canons are not held binding on the laity.

Wightman, J.-Not proprio vigore. I do not think you need to trouble yourself by referring to former canons, because the question will turn upon this. It is said this canon does not bind proprio vigore; but the question is, whether these are the prohibited degrees to which the statute 5 and 6 William IV. refers?

Mr. Foster. If the laity are only bound by the statute law, I submit there is no statute referring to this subject save the 32nd Henry VIII., chap. 38. That statute is now in force and valid. Unless this marriage be within the statute 32nd Henry VIII., and be declared voidable by that statute, it is not rendered void by the statute of William IV. The 32nd Henry VIII. says, that all marriages which be not within the Levitical degrees shall be lawful; and no marriage without them shall be concluded to be contrary to God's law. I will now draw your lordship's attention to the statute the 1st Mary, session 2, chap. 1. That statute is not alluded to in the decision in "Hill v. Good," which is the only decision of a court of law adverse to my argument on this question. shall submit to your lordship, that the decision in that case was founded in mistake. It was founded partly upon the statute law, and partly upon the canon law. The canon law, proprio vigore, is not binding upon the laity; and the statute 1st Mary, session 2, chap. 1, was mentioned neither in the arguments nor in the judgment in "Hill v.

I

Good." This statute, 1st Mary, expressly declares the marriage in question, by implication, to be a valid marriage. The decision in "Hill v. Good was, therefore, founded on mistake, and your lordship is not bound by it. The 1st Mary was passed for the purpose of rendering legitimate Queen Mary, upon her accession to the throne. It terms the marriage of Henry VIII. and Queen Catherine of Arragon a lawful marriage." That marriage, your lordship remembers, was a marriage with a deceased brother's widow - the marriage forbidden in the Levitical degrees, and the marriage upon which, by implication, depends the prohibition of marriage with a deceased wife's sister. If, therefore, there is a valid statute in force and existing, declaring a marriage with a deceased brother's widow binding; if your lordship finds that the Queen sat upon the throne under that statute, and that under it laws were made which now affect our properties; I apprehend your lordship will hold that legislative declaration of what are the prohibited degrees to be valid. This statute takes marriages with a deceased brother's widow out of the prohibited degree, and upon that, as I have said, depends, by implication, the present case.

Wightman, J.-It raises this inference, that but for this statute the marriage would be bad. The act was passed to make it good. Mr. Foster. True, my lord, but

it

Wightman, J.-It is a strong circumstance.

Mr. Foster proceeded to read passages from this act, some of which were very curious; and, in continuation of his argument, he referred the learned Judge to the case of "Hill v. Harris," reported