with effect, according to the rules of the Ecclesiastical Court, that Court alone having jurisdiction upon the question, by the rules which govern the Temporal Courts. But they hold the same principles on this subject as the Ecclesiastical, and would act upon them if they could entertain the question. Indeed, the 5 & 6 Will. IV., c. 54 (Lord Lyndhurst's Act), proceeds upon the ground that marriages within the forbidden degrees of affinity are void if questioned, void because illegal; and enacts that henceforth they shall be ipso facto void, and not voidable by any proceeding. And why? Because they are within the forbidden degrees, that is, because prohibited by law. It is unnecessary to inquire whether a marriage so void, if questioned in England before the Act, but prevented from being questioned by the course of procedure in the English court, could be questioned in Scotland, if the Scotch and English law differed upon the grounds of the objection, because the Scotch law is so much more stringent on the subject than the English, holding all marriages within the forbidden degrees not only to be incestuous, but severely punishable, even capitally."
"If the lex loci contractus were to prevail absolutely, and a marriage good in a country where it took place, and where the party claiming it was born, were to make that party inheritable in Scotland, then, uncle and niece marrying in a foreign country with papal dispensation, their issue might claim to take a Scotch estate and Scotch honours, although, had the marriage been contracted in Scotland, the parties might have been capitally convicted, and sentenced to death or transportation, as in the case of Stewart and Wallace."
