The Daily Times.
Liverpool, Merseyside, England, 1861-01-29 00:00:00

SISTER.

The First Division of the Court of Session in Scot-
land, in giving judgment the other day in the we 1
known case of '• Fenton v. Livingstone" (lately before
the House of Lords), have unanimously decided that,
by the law of Scotland, marriage with a deceased wife's
sister is civilly null. In giving their present decision
two points came up for judgment. In the first place,
the Court (Lord Deas dissenting) held that, as the de-
fender was the issue of an unlawful marriage by the law
of England, his place of domicile, he could not be re-
cognised as a legitimate child in Scotland, and entitled
to succeed to a landed estate there. In the second place,
the judges were unanimous that by the old statute law
of Scotland the marriage of a man with his deceased
wife's sister was civilly null, and that the defender was
therefore illegitimate, and not entitled to succeed.
The Lord President, in giving his opinion on the
latter question, said it was a question on which he had
no doubt at all. Ile did not think it necessary to go
into those disquisitions of theology and biblical criticism
which had been indulged in, for he thought, in reference
to the construction to be put upon the prohibitions of the
Levitical law, that they had an authoritative interpreta-
tion of them in the statute law of Scotland. Ingenious
views might be suggested in regard to figurative expres-
sions in Scripture, taking them literally, and in regard to
literal expressions, taking them figuratively; in short,
there was no end to the variety of opinions that might
be held in regard to these matters. But, dealing with
the question as lawyers, and finding an authoritative
and uniform interpretation put by the law of Scot-
land and the institutional writers of Scotland on the
Scriptural prohibitions, that was the interpretation
they were to follow. According to the interpretation
put upon the 18th chapter of Leviticus by the Act of
1567 and by the Confession of Faith, confirmed by Act
of Parliament in 1690, it was clear and explicit that,
taking the marriage here with the sister of a deceased
wife, the degree of affinity was held to be the same as
consanguinity, and therefore that it was a forbidden
degree for marriage. This, said his lordship, is the doc-
trine which has been taught by all our institutional
writers—Stair, Erskine, Bankton, Mackenzie, &e. ; i
is the doctrine which has been taught from the chair of
law ; it is a doctrine that is not controverted by any
writer of note in the law ; and although there are
expressions in Mr. Hume's commentary on the subject
in reference to the penal consequences, yet these
doubts are raised, in the first place, upon a very curt
consideration of two passages in the Levitical law, as
suggesting a doubt upon the subject; and, in the
second place, they are matters relative to criminal con-
sequences—not the expression of an opinion, but the
statement of the existence of a doubt in regard to them,
which I cannot take as counterbalancing those other
authorities. And we are not here dealing mith civil
rights and interests. Therefore, upon that matter of
the illegality of the marriage, these degrees being pro-
hibited, I think that there is no room for hesitation on
the subject. No doubt there may be ingenuous specu-
lations, and I know that there have been ingenuous
speculations by very able and very learned persons upon
the subject, but they go further than mere speculations.
They are beyond my ingenuity, certainly ; and the
impeachment of direct statute law, and of a uniform
train of authority of the highest writers, unbroken and
unshaken, is beyond my courage.
Lord Ivory concurred in repelling the title of the
defender.

Lord Curriehill also concurred, observing, however,
that he did not think a judgment on this question of
marriage law necessary to the decision of this case, as,
if there was no valid marriage in England, there was
no marriage anywhere.
Lord Peas referred at great length to the two acts of
1567—namely, cap. 14, which dealt with the question
criminally ; and cap. 15, which laid down the civil law
on the subject. He remarked that he could not resort
to interpretations put upon the original Hebrew, for
the Scotch statute proceeded upon the translation in
use. After an exposition of the criminal statute and of
the cases recorded of its penal execution, his lordship
expressed his belief that intercourse with a wife's
sister after the wife's death did not, under that statute,
amount to the crime of incest. No doubt, in one case
in 1705 the penalty of death had been inflicted upon a
woman for intercourse with her decease t sister's hus-
band, the husband being banished " furth of the king-
dom;" but this judgment was challenged by Hume,
their greatest criminal lawyer, as having stretched the
penalties of the statute too far. As to the civil statute
of 1567, its terms applied equally to consanguinity and
affinity ; and in the Act of 1690, ratifying the Confes-
sion of Faith, it was distinctly stated " that the man
may not marry any of his wife's kindred nearer in
blood than he may of his own, nor the woman of
the husband's kindred nearer in blood than of her
own." As to precedents for holding such a mar-
riage to be unlawful, it was true they had none,
but among the institutional writers who treated
of the question in a civil point of view, they
found an entire coincidence of opinion. Referring to
the views of the late Lord Rutherfurd, Lord Deas said
he thought too much weight had been given to his
opinion on the criminal statute as displacing the whole
argument against the nullity of the marriage. He
agreed in holding the criminal statute inapplicable,
for that marriage could not be lawful if a statute
were applicable which declared intercourse between
the parties incestuous and punishable with death.
All he could say was, that according to the best opinion
he could form, in the absence of argument to the
contrary, the marriage in dispute, had it been a Scotch
marriage, would have been held civilly null. From
the sanction given by the statute law to the rules of
the established church of Scotland, which denounced
such a marriage, he thought it followed, that whatever
might be the law of England on the subject, this court
could not recognise the marriage as lawful in a question
of succession to a Scotch heritable estate, the House of
Lords having held that they could not recognise the
legitimacy without recognising the validity of the mar-
riage. That being so, ho thought the pursuer must
have judgment in the declarator, so far as it was
directed to the regulation of the succession to the
entailed estate. The effect of this upon the advocation
would, however, require to he considered. Both the
parties who applied to be served were now dead, and
probably an application for service would require to be
presented de novo.

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INFANT-REARIIIO.-
51iss Martineau, who, like allphiltOisl-
phical ladies, has studied the matter thoroughly, says,
" in England alone, 40,000 babes die annually ; and one-third
more of that number grow up either idiotic, sickly, or de-
formed." The reason is evident, as mothers, through inability
to nurse their offspring, resort to the administration of baked
flour, biscuits, tops-and-bottoms,or pap. The infant stomach,
cannot assimilate such crude preparations, and frequently
rejects them; but still the nurse or mother continues them,
under the hope of soothing the child. Internal inflammation
place—eructations, diarrhoea, and consumption appear—and
most frequently convulsions are induced which seal the infant's
fate. The Medical Times and Gazette, August 28, 1858,
p. 215, conveys Dr. C. B. F. Routh's views on the same im-
portant subject, and his opinion of Du Barry's Revalenta
Arabica Food, as adapted to obviate the mischief effectually.
Dr. Routk is physician to the Samaritan Hospital for Women
and Children. This learned and experienced practitioner says :
" The human milk contains, besides salts of lime, chloride of
potassium. Now, in common with carbonic acid, this salt
enjoys the peculiar property of dissolving carbonate of lime
or chalk. An absmce of it in the food, as in wheta 'read. Is
very injurious to a growing child ; hence, a child fe.. on pap
for a time grows fat, 'Out the bones are soft ; frequently it
sickens, and severe symptoms supervene. Amongst the vege-
table substances, that which comes closest to mi k in its com-
position, besidesbeing more easily assimilated and strengthen-
ing, is, without doubt, Du Barry's Revalenta Arabica Food.
containing both phosphoric acid in abundance, and chloride of
potassium; it also includes caseine, the same principle which
is found in milk in its constituent parts. No wonder, there-
fore, that under its influence many children affectedftwith
atrophy (wasting away of the body) and marked debility
have completely recovered. I have given it with the greatest
advantage in such cases ; and, so far as I may judge from my
own experience, practice fully carries out what theory, from
knowledge of its composition, led us to anticipate. It give a
good snuscle and strengthens the bones, restoring tone, and
healthy. regular action to the stomach and bowels,i
whether
constipation or a relaxed state of the systeTnsciilainedof.'
C. B. F. ROUTH, M.D.—Packed in tins, with i
full comp
instructions:
11b., 2s. 9d.; 2 lb.. 4s. 6d. ; 51b., 121b.7, Regent-street;,722s..ilb.,frec
of carriage, 40s. Barry du Barry and,
also Fortnum, Mason and Co.,
church-street, London; and through Abbiss, 60, Grace-
h_a.hlal
wgtrolc,ecrsaaatnied-acthreemeti;st
J.
Agents in this district :_Nixon
. and
AFipaGa.a;JoEn.esi,,esa,raaPaaraaddses-sotare;e
J.
Low ; J. Kirkus ; Forsyth.,
It. Sumner and Co. ; 11.
rp,s•Higgins, and Co. ; Clay and Abra-
ham, -treet • Evans, Sons, and Co., wholesale agents;
hodpso n and Capper ;J. Strawson Isaac
John 1337eynno°111dr T
C. Bromlow, 1, London-road;
G. Bramwell and Son;
Woodville, tea dealer, Raimes and holesale druggists;
druggist, Price-street ;T. C0.,,D. Walker, Ranelagh-
Staveley,
,t'rect 11. 72, Dale-street; Ifingston, druggist,
J.
; Henry Middleton; Gilbert Brothers; J. Cruiee;
Grace Kelk ; Barber, 21, Great George-street, Birken-
head T. Fore, druggist ; B. J. Candler : J. Dutton ; J. F..
Hargraves ; Sanders and Co.; C. Jones; J. Green; J. Lloyd,
69, Islington • J. C. Wales, 7, St. Anne-street; Thomson and
Capper, 43, Bold-street ;J. Hamilton, 49, Mill-street; R.
oulds, FAt-str .

AT EST NEWS.

(EY BRITISH AND IRISU MAGNETIC TELEGRAPH.)

THE ITALIAN PARLIAMENT.

FLORENCE, Jan. 28.
The deputies elected to the Italian Parliament
at Florence are Baron Ricasoli and Signori
Peruzzi and Gimorn; at Bologna, Signori Ming-
hetti, Pepoli, Berti, and Pichat. The result of
the elections are generally favourable to the
Ministry.

RESULT OF THE ELECTIONS.

TURIN, Jan. 28.

The number of elections in Upper Italy, of
which the result is already known or assumed, is
134. Of this number two belong to the party of
Dr. Bertani, two to the Garibaldian party, four-
teen to the Opposition or to the centre, and the
remainder more or less to the Minister ial party.
Signor Cabello has been defeated at Genoa, Dr.
Bertani in Milan, Guerazzi in Leghorn, and Mor-
dini in Lucca. The first electoral news received
from Naples have been good.
TURIN, Jan. 28, Evening.
The number of elections now definitely known
is 200, of which 20 are of the opposition party.
Garibaldi and Poerio have been elected at Naples.

HUNGARY.

PESTII, Jan. 28.

The Assembly of the Comitat of Stahlweissen-
burg has voted an address energetically demand-
ing the restitution of the property of Count
Batthyany, which the Comitat says has been
illegally confiscated. The same Comitat has also
demanded the recall of the heirs of Count
Batthyany, who are abroad as refugees.