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of the "well understood hibited degrees to which learned friend alluded. I now draw your lordship's attention to the case of "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 Leviticus, 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 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, hat they never were confirmed by Parliament, and for this reason;

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

it

Mr. Foster.-True, my lord, but

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

in Selkeld, and referred to in Burn's "Eeclesiastical Law," p. 501, in which the court of law prohibited the sentence of the Eeclesiastical Court from taking effect, except as to the assumed incest.

The Court again interrupted the argument of counsel, doubting the propriety of entertaining a question of such a nature in a trial of this kind.

Mr. Monk begged to say, that he did not assent to the proposition of his learned friend as to the repeal of the statute 25 Henry VIII. He submitted, confidently, that statute was still in existence; and, that statute being in existence. there was a legislative exposition of what were the prohibited degrees of the Levitical law. If the 25th Henry VIII. were repealed by the 32nd Henry VIII, the 32nd Henry VIII. was repealed in its turn; and the repeal of that immediately worked a re-enacting of the 25th Henry VIII. It was, therefore, revived. But, assuming it was not revived, there was in the 28th Henry VIII. that which his learned friend had not stated—a re-enacting and a restatement of the prohibited degrees which were previously contained in the 25th Henry VIII.; so that, for the purpose of his lordship's decision now, it was wholly immaterial whether the 25th Henry VIII. were repealed or not. Mr. Justice Wightman (stopping Mr. Monk) then retired and consulted Mr. Baron Rolfe. On his

return

The learned Judge said: My brother Rolfe agrees with me, that the best course to be pursued on this occasion would be for the Jury to find a special verdiet. The state of the facts is very simple; it is to find the marriage and the consanguinity specially, referring, in the ordinar of a special

The following special verdiet was then taken and recorded: “Th Jurors. &e., do say, that on the 14th of September, a. D. 1843, the said James Chadwick was married to one Anne Fisher, spinster, at the collegiate and parish church a the parish of Manchester, in the county of Lancaster, according t the rites and ceremonies of the Established Church; and that afterwards, that is to say, on the Cor of March, A. D. 1846, the sid James Chadwick was married, st St. John's Church, in the parish if Manchester, in the county of Laseaster, to one Eliza Bostock, spinster, according to the rites and c remonies of the Established Church, she, the said Anne Fisher, then being still alive. And the Jurors aforesaid, upon their oath, do further say, that the said Ann Fisher, to whom the said James Chadwick was so married, as aforesaid, on the 14th of September, 1845, was the lawful sister of one Hannah Fisher, to whom the said James Chadwick had been lawfully married on the 27th of June, 1825, and which said Hannah Fisher departed this life before the said time when the said James Chadwick was married to the said Ann Fisher as aforesaid; but whether or not, upon the whole matter, so as aforesaid, by the Jurors aforesaid, in form aforesaid found, the said James Chadwick is guilty of the felony and bigamy within specified, the Jurors aforesaid are altogether ignorant, and therefore they pray the advice of the Court of our said Lady the Queen, &e."