Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Anent a Step-father marrying his Step son's Relict
Date: 14 November 1671
Click here to view a pdf copy of this documet : PDF Copy
This day it was questioned amongst the advocates, What was to be judged of a marriage where a step-father married his step-son's relict. Exempli gratia, if John Boyd, bailie, could marry Adam Steven his step-son's relict, (supposing Adam had been married and were dead,) or if rather it were not incest. That same question will occur in a step-mother, if she might lawfully marry her stepdaughter's husband, the step-daughter being dead. The advocates were divided in their opinions. Sir George Lockhart thought it lawful. In my humble opinion, I think it noway safe; seeing inter eas personas quæ locum parentum liberorumve inter se obtinent, nuptiæ contrahi non possunt usque in infinitum, they being ascendentes et descendentes; so that if Adam were now on life and not Eve, he could not find a wife whom he could lawfully marry. Item, in recta linea quicunque gradus prohibentur in cognatione seu consanguinitate, iidem prohibentur in affinitate. And though the relation that intervenes betwixt me and my step-son's wife, be only affinitas affinitatis or affinitas in secundo radu, uxoris meæ filius being to me in primo genere affinitatis, illius uxor in secundo, and so ought to be no impediment of marriage betwixt us; and though I may lawfully marry the relict of my wife's brother, cap. Non debet, et ibi Glossa, ext. de consanguinitate et affinitate,—Covarruvias de matrim. part. 2, cap. 6, p. 7, num. 6; yet I conclude with Papinian, lege 15. D. de ritu nuptiarum, uxorem quondam privigni conjungi matrimonio vitrici non oportet, nec novercam in matrimonium convenire ejus qui privignæ fuit maritus. The reason is well assigned by Vinnius ad par. 6tum num. 2do Instit. de nuptiis: not because they are in linea ascendentium et descendentium in secundo genere affinitatis, as Gothofred would have it, ad. D. l. 15, but because natural shamefacedness and honesty will not suffer me to marry his relict, whose mother was my wife, and so became in a manner my son; no more than a man can marry his son's relict. And though it be not expressed in the tree published at the 16th act of Parliament in 1649; yet by analogy it will be easy for any man to find it there defended and discharged; seeing there is too great a commixtion of blood therein.
Vide Antonium Matthæum ad Tit. de Adulteriis, capite 7, No. 26; infra, No. 492, § 8, in July, 1676. A man may lawfully marry his wife's brother's relict. Vide Trentleri selectas disputationes, titulo De nuptiis, thesi 3tia.
