The Sun.
London, England, 1861-01-19 00:00:00

MARRIAGE WITH A DECEASED

WIFE'S SISTER.

The following important decision was given on
Thursday by the Court of Session :

4OHN THOMAS FENTON AND MANDATORY V. ALEXANDER

THURSTANUS LIVINGSTONE AND OTHERS:

Admiral Sir Thomas Livingstone of West Quarter and
Bedlormie, died in April,lBs3, and a competition immediately
arose between his sister, Mrs. Fenton, and the son of her
brother, Thurstanus Livingstone, for the entailed estate of
Bedlormie. Petitions were presented by each party respec-
tively to the Sheriff in Chancery, to be served nearest and
lawful heir to the deceased, which were conjoined and advo-
cated to the Court of Session. Mrs. Fenton then raised an
action of declarator of bastardy against Alexander Living-
stone. The Lord Ordinary found that Alexander Living-
stone was entitled to be served, and also assoilzied him from
the action of declarator of bastardy. The first division of a
reclaiming note adhered to this result. These judgments
were reversed by the Home of Lords, and the case was re-
mitted back to the Court of Session to proceed, and do
therein as should be just. The question referred for deter-
mination by the House of Lords was whether Alexander
Livingstone, the original defender, but now deceased, *as
the lawful son of Thurstanus Livingstone, the brother of
Sir Thome. Livingstone ?

The court to-day proceeded to give judgment upon the
cause.

The Lord President, after stating that the question re-
garded the heritable estate of Sir Thomas Livingstone alone,
said : The House of Lords had found by their judgment
that the Court of Session was entitled and bound to inquire
whether by the law of Scotland the marriage of Thurstanus
Livingstone with his deceased wife's sister was a lawful
marriage; that was, whether the persons who celebrated
that marriage were within the prohibited degrees, according '
to the law of. Scotland. He understood from the opinions
expressed in the House of Lords, that it was not a lawful
marriage in England, They could not inquire into that
matter by the rules of the courts in England, but they
were not precluded from doing so as to the law of Scot-
land. There were, perhaps, two questions presented to
them. If they went entirely by the law of Scotland, they
might find that the marriage celebrated in England was
within the degrees prohibited by the law of Scotland, and
therefore they could not give effect to it as legitimating the
offspring of that marriage. Next, it was said that England
was the country in which the marriage was celebrated, but,
according to the law of that country, there was no lawful
marriage according to the law of the domicile, and thus
there had been no lawful marriage anywhere. Now, with
reference to the law of Scotland, he must say it was a ques-
tion upon which he had no doubt at all. It was a question
he had by no means considered for the first time, and he
never had any doubt upon the question. He did not
think it necessary to go into the discussion upon the
footing of biblical criticism which had been indulged in
with reference to that case. He thought, in reference to the
construction to be put upon the prohibitions in Leviticus,
that they had an authoritative interpretation by the law of
Scotland, which lawyers must follow. He left other ques
tions to other classes of persons. There was, perhaps, no
book with reference to which questions had been raised
more generally and widely, or where interpretations more
perverse had been adopted, than with reference to the sacred
volume. Hence the great variety of sects which existed in
this Christian country. There were sound views. But they
had to deal with this question as lawyers, and he found an
authoritative interpretation given by the law of Scotland in
that matter. It was an interpretation which they were to
follow, and that interpretation ran through all their writers.
He did not think it necessary to go further back than the
act of 1567, which implied that provisions more stringent,
perhaps, existed previously with reference to the degrees in
which marriage might be celebrated. The interpretation
authoritatively laid down in that statute, and put upon the
18th chapter of Leviticus, was that, without ambiguity of
any kind, that marriage within the degree here, namely,
with the sister of a wife, was the same as if of consan-
guinity, and was a forbidden degree of marriage. On
that statute law that construction had been put by
every writer on the subject. Stair, Erskine, Wallace,
and others, were of that opinion ; and, still more, it was
the opinion of Professors Bell and More, and of Mr.
Ferguson, who was much experienced in consistorial law.
Hume only raised doubts as to the penal consequences.
That was with reference to criminal law. They were
here, however, not dealing with criminal law, but with civil
law, and with reference to that there was no room for
hesitation. He had no doubt in saying that, according to
the law of Scotland, this was an unlawful marriage, and
was within the prohibited degrees. The consequence of that
was that, according to the instructions they had received
from the House of Lords, this party was not the legiti-
mate son of his reputed father. With reference to the
question arising out of the English law, he had already
said that if it was to be held that there was no lawful mar-
riage, and that it was between parties within the prohibited
degrees, then it never was a marriage at all. Then he
could not understand how a ceremony which did not make
a marriage where the parties lived and died, could be re-
garded as a marriage anywhere ; and he could not take it
as the law of Scotland that what did not constitute a mar-
riage between parties who never were in Scotland, could be
a marriage in Scotland. Therefore, in either view this party
must be regarded as the illegitimate son of the marriage,
between h's father and the sister of his deceased wife, and
consequently the judgment must go to that effect. The
terms of the judgment would require a little care. They
had to deal both with a declarator and an advocation, and
the judgment would receive consideration.
Lord Ivory entirely concurred.
Lord Curiiehill gave a long and elaborate opinion entirely
in conformity with that of the Lord President.
Lord Deas held that the law in Scotland rightly recognised
the status of legitimacy in Alexander Livingstone, because
he held that status by the law of England, and it followed
him everywhere. He, however, agreed, that according to
the interpretation put by the constitutional writers or statutes
regarding the 18th chapter of Leviticus, and laying
down the prohibited degrees of marriage, that Thurstanus
Livingstone's marriage was a nullity by the law of Scot-
land; and therefore that the judgment of the court should
be as suggested by the Lord President.
The interlocutor, it was arranged, should be adjusted at
an after day; but should be to the effect that the defender
was illegitimate by the law of Scotland.
Agent for pursuer, W. Waddell, 'W. S.