Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 WINTER SESSION. - Anni 1973.

Anent the Marriage of Relations

1676. July.

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John Sueidivin, in his commentary ad tit. Institut. de Nuptiis, ubi tractal de gradibus cognationum, in 3tia regula, pag. mihi 79, 80, et 81, maintains, from Cardinalis Hostiensis, &c. that collaterals, distant in the fifth degree, may marry lawfully together; ex. gratia, my good-son's brother might marry my daughter. And it is not enough to say, that cannot fall out through the brevity of men's age, that one can scarce see the fourth or fifth generation, either direct or collateral; or, 2do, if he did see it, it were a most unequal disparage for years; because this is but tergiversation, and, if it did exist, we behoved to answer from some rule and principle in law. My objection against the lawfulness of such a marriage is, that, jure civili, not only ascendentes et descendentes in recta linea are prohibited to marry together in infinitum, but likewise ii qui vicem locumque parentum et liberorum inter se obtinent; parag. 1, Institut. de Nuptiis, L. 53. D. de Ritu Nuptiarum; now a great-grand-uncle is in room of a parent to his abniece. See Vinnius, ad dictum par. 1, et par. 3 et 5, Insiit. de Nuptiis; and moral honesty seems to avoid such a congress. Vide Constitutionem 2. Alexii Commeni, et Constitutionem 2. Isaaci Angeli. Vide supra, November, 1671, No. 257.

Advocates' MS. No. 492, § 8, folio 258.