as is adverted to in these acts of parliament; and yet, to secure certainty, and to prevent the inconveniencies and the miseries that arise from the uncertain state of the law of marriage, we are told that it is referred by the legislature to those spiritual courts to say in each particular case what was the law of God, and that by direct reference to the Scriptures. Of these Scriptures there may be various interpretations and translations that is one of the stumbling-blocks at the very threshold of such an inquiry. If it were possible to launch the subject upon a sea of doubt and controversy and eternal litigation, it would be by calling upon the spiritual courts in the first place to adjudge what in their opinion the law of God ordained, and then referring it, in a case of prohibition, to the common law courts to make inquiry upon this subject. The opinions and practice of the Jews and Talmudists, and particulars of Christian councils would thus have to be discussed before us; but to make those the guides, in point of law, for the decisions of the courts of justice, is to do exactly that which this act of parliament meant to prevent when it took upon itself to declare what were the prohibitions of the law of God.

Whether

it decided rightly or not, in a theological, or a moral, or a critical point of view, I cannot pretend to say. It has been declared by the legislature, and that declaration, in my opinion, is binding upon all Courts; and I think that we are to look at that declaration of what the prohibited degrees are, in order to pronounce what the rule of law is to which the statute 5 & 6 Will. 4. c. 54. refers; and upon those acts of parliament, looking to their language and to their object, and to the only mode in which that object can be carried into effect, I come to an undoubted opinion that the prohibited degrees are well laid down in these two statutes, and that the marriage is therefore made void by the 2nd section of the act of 5 & 6 Will. 4. c. 54, referring to the then state of the law. Upon the authority to be found on this subject, there is such a fulness and uniformity of decision as in my judgment to remove in a remarkable degree all doubt from this case. The first document to which I shall refer is the canon of 1603; not that I attribute any more legal force to

these canons than Lord Hardwicke and Lord Holt and other great Judges have done, but they are very important, as shewing the state of opinion upon the subject, and that authoritative opinion which prevailed in truth, because it ruled the Courts which had to decide upon that matter. They may have gone out of their way, and proceeded beyond the Levitical degrees, and beyond what reason and propriety would have authorized; but they shew what, in point of fact, was the prevailing law upon this subject. The canon of 1603 is in these terms:-"No person shall marry within the degrees prohibited by the laws of God, and expressed in a table set forth by authority in the year of our Lord God 1563, and all marriages so made and contracted shall be adjudged incestuous and unlawful, and consequently shall be dissolved as void from the beginning, and the parties so marrying shall, by course of law, be separated; and the aforesaid table shall be in every church publicly set up and fixed at the charge of the parish." Thus, in 1563, about twenty years after the passing of this act, this law was promulgated in a most remarkable manner, and brought to the knowledge of every individual who could read. With regard to the earlier cases, Man's case and Parson's case, upon which much observation has been made, I think it is claimed as if those cases were rather in favour of the plaintiff in error in this case, as shewing that the Court would proceed to inquire what was the law of God without reference to the act of parliament. I confess that they seem to me to leave that point very much as they find it, because when they use the expression "the law of God," I attribute the same meaning to those words as I attribute to them in the act of parliament, and I think that the Court inquired what was within the prohibited degrees with reference to that act of parliament, and not by proceeding to examine the Scripture, or to examine all the various historical matters that might throw light upon the Scripture. But it was said that Lord Coke had expressed great doubt upon this subject in the 1st Inst. f. 235, a; not a doubt, I think, of his own, but he makes a statement of Parson's case, which it seems King James and his council took exception to, and therefore

expunged that passage from one or two editions of the book (25). It really seems to me perfectly immaterial whether they did so or not-we cannot explain the history of things of that kind-but this we know, that Lord Coke, in the most valuable of all his works - 2nd Inst. p. 683, writes a commentary upon the statute of 32 Hen. 8. c. 38, and he never insinuates that the repeal of those former statutes with reference to the succession to the Crown repealed the table of prohibited degrees, but on the contrary he states what the prohibited degrees are in the very words of those acts of parliament; and now we are told, that Lord Coke thought there was no rule or law defining the subject of an obligatory nature, but that every man was to go to the Scripture and to form his own opinion upon what he found there, instead of being bound by a plain and clear act of parliament, which in its very terms Lord Coke himself recites as enumerating the whole list of prohibited marriages. Perhaps the treatment of the case of Hill v. Good does give some foundation for the argument urged on behalf of the plaintiff in error. The result of it, however, was, that a consultation was granted. And in that case of a marriage with a wife's sister, it was held that it was a marriage clearly bad, and that it was therefore not a subject for prohibition of the spiritual court. Vaughan, C.J. said that the spiritual court must go on with the inquiry, because it belonged to them. That was a case of prohibition; and everybody who has considered that subject must be well aware that there is no head of the law subject to so much doubt and ambiguity as the doctrine of prohibition: and I agree that, whether a prohibition or a consultation was the result of the argument in a particular case has very little to do with, and throws very little light upon, the actual question. However, we have the opinion of Vaughan, C.J., and of the Court of Common Pleas, at full length, that the affinity of a wife's sister was such as to make a marriage voidable by a Court Christian, on a proper application to it. Therefore the decision of that case is entirely in conformity with the view which I take of

(25) See Harg. & Butl. Note, 149.

the law itself; but when we come to the reasons, it is certainly a most dangerous thing to speak of a judgment which runs through twenty folio pages, and to enter into a discussion of all these reasons. Perhaps Vaughan, C.J. thought that he could put an end to all doubts by entering into a very long discussion of the matter. That was a course which was much more likely to raise doubts than to put an end to them. But, however, he does go directly to the chapter of Leviticus, and he forms his opinion upon that chapter, and also upon other circumstances,—an opinion which is clearly open to many of the observations made by the learned counsel for the plaintiff in error, in commenting upon his judgment. The only important point is that a consultation went. In Harrison v. Burwell, the Court granted a prohibition, because there they thought the marriage was clearly without the Levitical degrees. That was not a marriage with a wife's sister, but a wife's sister's daughter. The Court said, these degrees do not touch so remote a relation, and therefore we shall issue a prohibition. When the Courts were dealing with those cases, they thought themselves authorized to deal with them, and they formed their conclusions; and from that time to the present, it is admitted that all opinion and authority have gone along with the case of Hill v. Good, and that has been the universal opinion since. But it is said, that we ought to set that decision aside, because we find that it is founded upon bad reasons. I cannot at all agree with that. In so very long and so very learned a judgment, dealing with so many subjects, which are not at all before the Court, entering into the whole question of marriage among the Hebrews, and quoting the work of Selden, it is very likely that many mistakes would be made, which may now be easily explained; and it would have been, in my opinion, much better that Vaughan, C.J. should have proceeded simply on the act of parliament; and I think there are two or three passages in which he refers to the act of parliament as having decided the question itself, and if they had stood alone they would have made the judgment what I have now stated. However, from that time to the present it is admitted

that this opinion has prevailed,—an opinion, not, as I think, founded in error; in which case, if I saw it clearly, I should feel myself bound to set aside the authority, or at least not to act upon it, and after inquiring into the result, if I found it absolutely a mistake, as has been done in other cases, I think the Court would be bound to say that the foundation falls, and the superstructure must fall also. But this is an opinion founded upon an act of parliament, and consistent with that act of parliament; and what in my opinion that act of parliament required the Judges to say and to do upon these occasions, and then the opinion of all mankind having followed in the same line, it appears to me that there is such an extent of authority as no other case perhaps could possibly have. Now, if that be so, what is it that the last act of parliament contemplated when they said, marriages between such persons are voidable only, and now we make good those marriages which have been contracted, but those which are to be contracted we make entirely void? Did they not know that the invalidity of those marriages had proceeded upon the ground of the Levitical degrees, as laid down in the statute of 32 Hen. 8. e. 38? and if that be so, the legislature has given a complete sanction to that course of proceeding, and a distinct opinion that it was the law of the land. Marriages between persons within the prohibited degrees were then voidable only, but thereafter they were to be altogether null and void, to all intents and purposes. It is impossible for any authority to be more direct, full, and complete than the declaration of the legislature in the first instance and in this very act. Then, are there any considerations of expediency or supposed humanity, or any other matters upon which legislation may be properly founded, which could possibly warrant a court of justice in saying that that which the act of parliament has so declared void should not be so considered? I am not insensible to those appeals which may certainly suggest a number of most painful cases with regard to unfortunate poor people whom we hear of, who may have been marrying with perfect good faith, believing that all was pure and right, and of whom the weaker party may be abandoned by the stronger, when he finds that she has no legal

claim upon him as his wife; it is a most melancholy feature, and a fact very much to be deplored. But if I am told of persons in a higher rank of society, who have contracted such marriages after this act of parliament had passed, I must say that I think they have no right to complain, and no right to make the appeal which is urged on their part. There was enough to teach them that they ought not to have proceeded, in defiance of such an act. Particular consequences we cannot look to the general consequences of an act of parliament we may justly look to, as affording a light for the interpretation of it; but these are all in favour of the general rule-that rule which was laid down, and has uniformly been acted upon, and which is afterwards sanctioned and set up to the fullest extent by this statute. I therefore am of opinion, that the judgment which was given is perfectly right, because I think a party cannot be guilty of the crime of bigamy for contracting a second marriage, when the former one was in point of fact null, and in point of law was void to all intents and purposes.

COLERIDGE, J.-I am entirely of the same opinion; and important as this case undoubtedly is, it appears to me, remarkably clear from any serious difficulty. The question which is raised in this case has been argued in both cases with very remarkable learning and ability; and being so very important to the interests, and touching so nearly the tenderest feelings of a vast number of persons, I am glad that it has attracted so much zeal and industry in its discussion. But the grounds upon which my judgment will proceed are such that it will not be necessary that I should dwell at any great length upon the argument. This case comes before us upon a writ of error upon a charge of bigamy. The verdict has passed in favour of the prisoner, upon the ground that the first marriage proved was one that was contracted with the sister of a deceased wife, since the passing of the 5 & 6 Will. 4. c. 54. The defence, therefore, of the prisoner rested upon that statute; and if I reasonably and seriously believe that he is entitled to his acquittal upon the fair construction of that statute, I cannot hesitate to give him the benefit of my judgment from any consideration of the interests that

may be affected, to which I may look,

and to which the learned counsel for the Crown has appealed in the course of his argument. Now, the 5 & 6 Will. 4. c. 54, being the statute upon which this case has turned, I confess it struck me as somewhat remarkable the very little place it has had in the argument for the Crown. The question is, what is the meaning of the legislature in that short act of parliament ? Looking at the preamble, it begins in this way :-"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," &c. It therefore refers us to the decisions of the ecclesiastical court as to something well known. It states that marriages between persons within the prohibited degrees were only voidable during the lifetime of the parties. It points out the evil that resulted from that; and what, for the future, would be the proper alteration to be made in the law. It makes use of the words "prohibited degrees" twice in that preamble, and it announces the inconvenience that had resulted from the course of practice in the ecclesiastical courts. Nothing, therefore, I should say, can more distinctly strike the attention of any man who has to interpret that statute, than the duty cast upon him of examining what was going on in the ecclesiastical courts-what marriages were held to be voidable only upon sentence in the lifetime of the parties. It directs our whole attention to that particular channel for the purpose of ascertaining what the meaning of the legislature was. And then it goes on to enact, "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 hereafter be annulled for that cause by any sentence of the ecclesiastical court.' It therefore, assumes that such marriages would have been liable to be set aside but for the act

of parliament; and it makes an exception even with regard to them,-"unless the sentence was pronounced in a suit which shall be depending at the time of the passing of this act of parliament." So that even out of those marriages that had already been celebrated, those respecting which a suit was then pending were still left to be acted upon by the ecclesiastical courts. That being the first provision having relation to by-gone marriages, we come to the clause in question," that all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity, shall be absolutely null and void to all intents and purposes whatsoever." Now, it would be idle to suppose that the words "prohibited degrees" have a different meaning in any one of these three places from that which they have in the others. And it must be taken that when they speak of future marriages within the prohibited degrees they are speaking of the same prohibited degrees as are mentioned in the preamble and in the enacting part of the first section. And, they there refer us distinctly for the interpretation of what those prohibited degrees are to the decisions of the ecclesiastical courts. If that be so, it seems to me that (whatever we may think of the foundation of the decisions of the ecclesiastical courts) we cannot do otherwise than look to those decisions to discover what the legislature meant. Suppose, for example, that the 32 Hen. 8. c. 38, being now come under consideration for the first time, we should find reason to give it the meaning contended for on the part of the Crown,-but supposing all other facts to remain the same

-the current of decisions and the practice of the ecclesiastical courts to have been what it has been down to the time of 5 & 6 Will. 4. c. 54, could we in justice construe the 5 & 6 Will. 4. c. 54. at all otherwise, because we should be disposed to put a different interpretation upon the 32 Hen. 8. c. 38? But if the 32 Hen. 8. c. 38. is to

be brought into the argument, and to be construed, as I think it must be, upon precisely the same principles as the 5 & 6 Will. 4. c. 54, I apprehend the very same conclusion will be arrived at. There will be no doubt that the legislature did intend exactly what I have shewn it did in the

5 & 6 Will. 4. c. 54. A great deal of curious historical learning has been shewn in the argument, in tracing out what I may call the labyrinth of the statutes, beginning with the 25 Hen. 8. c. 22, and going down to the time of Phillip and Mary,-to the time of Elizabeth, I should rather say,-for the purpose of seeing which of the statutes of Hen. 8. is to be considered in force and which not. I forbear to follow that argument, because it seems to me not at all material, in the view which I take of this case, whether the earlier statutes, beginning with the 25 Hen. 8. c. 22, and taking the two statutes of the 28 Hen. 8, are to be considered, all, or any of them, or none of them, in force at the present time. I use them only, and I apprehend it is a most legitimate use to make of them, as the best interpreter of the words used in the statute of the 32 Hen. 8. c. 38, which is confessedly in force, and to which all our attention is to be directed according to the argument. The 32 Hen. 8. c. 38, being intituled, "For marriages to stand, notwithstanding precontracts," may be said in substance to enact two things:-All persons are declared to be lawful to marry who are not prohibited by God's law to marry,-that is one proposition which may embrace, as is obvious, questions far beyond that of affinity, or consanguinity, or Levitical degrees. It may relate to persons who, either from their state of body, or their state of mind, or from other circumstances, may not be lawful to marry. Then it goes on to say, that no reservation or prohibition, God's law except, shall impeach any marriage without the Levitical degrees. And "that no person shall be admitted in any of the spiritual courts to any process contrary to this act." I mention that last enactment only for the purpose of shewing that the statute of 32 Hen. 8. c. 38, just like the statute of 5 & 6 Will. 4, points to the ecclesiastical courts as being those in which questions of this sort are to be discussed. The words which we are now

called upon to interpret are, "God's law," and "the Levitical degrees," and these occur in the very same branch of the same sentence, and certainly do not mean merely and simply the same thing and no more. It is assumed on the contrary that God's law may prohibit a marriage that is without the Levitical degrees, the expression being, that NEW SERIES, XVII.-MAG. CAS.

no reservation or prohibition, "God's law except," shall trouble or impeach any marriage without the Levitical degrees. There may be marriages forbidden by God's law, even without the Levitical degrees, which perhaps might lead to an explanation of some of those observations which have been made upon Hill v. Good in the course of the argument. There may be cases in which God's law may be a ground to trouble or impeach a marriage which is, so far as the Levitical degrees are concerned, free from impeachment. In discussing this statute, a great deal of attention has been turned to the 18th chapter of Leviticus. If it be necessary, in the discussion of a statute, to examine into the meaning of a passage in Scripture, of course it must be submitted to; but I own I do hear always with pain any unnecessary critical discussion upon the language of Scripture in a court of common law; I feel that we are very incompetent to enter into it; and I feel very often that it leads us into subjects which have far too much of sacredness in them to be made a matter of wrangling and discussion in a court of justice. And I would here refer to the observations which my Lord has made upon this matter. We have, perhaps from necessity, in this discussion had our attention drawn simply to the present authorized version of the Bible, which it is well known was not in existence at the time this act of parliament was passed. In all probability it was not any translation in the English language that was referred to when the legislature passed this law; and therefore any critical disquisition upon the mere words of the English Bible seems to me to be very much out of place, nor do I think that there is any necessity for our having recourse to it. We are not, in point of fact, examining merely and simply what God's law is, nor are we examining merely and simply what the Levitical degrees are; we are examining directly the statute of 32 Hen. 8. c. 38. Now, to ascertain what is the meaning of these words in this particular statute, what better means of interpreting them can we have than by looking at statutes passed about the same time in pari materiá, framed, it may have been, by the very same hands, undoubtedly with the same intention, and, as I think, expressing a most remarkable uniformity of

G