Lord Cranworth.
"Their decision proceeded on the ground that, as the marriage took place in England between parties domiciled there, the law of England must decide whether the marriage was or was not valid, and whether the issue of that marriage was or was not capable of entering as heir of the body of his parents lawfully procreate. They came to the conclusion that by the law of England the marriage was valid, and that the respondent was the eldest son of that marriage lawfully procreate, and therefore was entitled to succeed to the lands in question. After giving to this subject my best attention, I have come, though not without some fluctuation of opinion, to the conclusion that the Court of Session was wrong in treating this marriage as a valid marriage by the law of England, and in treating the respondent as the legitimate son of Thurstanus for the purpose of the Scotch succession. The stat., 25 Hen. VIII., c. 22, s. 4, expressly enacts, inter alia, that no man shall marry his deceased wife's sister, and, in case of any marriage being contracted in violation of that prohibition, the Ecclesiastical Court, with whom, in this country, jurisdiction on this subject exclusively rests, would declare any such marriage to be void. It is true that, by the construction put on that statute, no inquiry as to the validity of marriage could be instituted by the Ecclesiastical Court after the marriage itself had come to an end by the death of one of the parties; so that, inasmuch as the Temporal Courts had no jurisdiction, the issue would succeed to the estate of a deceased parent, as his or her heir, if no proceedings had been taken in the lifetime of both parents to declare the marriage void. I say to declare it void,—for it must be observed that the Court had no
