exists in both cases. Neither is it owing to the fact that the intercourse is fornication; for it is as truly and as fully so with a stranger as with a sister. Incestuous fornication in itself, therefore, involves no more turpitude than that between strangers.

"But it will be said that, although the fornication in the two cases was equally criminal, yet a severer punishment was necessary for that which was incestuous, to prevent the continual occurrence of it in families.

6

"This account of the subject is wholly inconsistent with the language of the law. The intercourse with a sister, as well as with every other kinswoman prohibited in the law, is called a wickedness,' an abomination,' an abominable custom;' and is spoken of as one of the crimes for which the land of Canaan vomited out its inhabitants. But this is not said of ordinary fornication.

"In incestuous fornication, also, detection was almost of course certain, whereas in incestuous adultery it was exceedingly difficult; yet the punishment of adultery, whether incestuous or ordinary, was equally severe; while that of fornication, if incestuous, was death; and only a fine if it was not incestuous. This immense difference could not have existed, in two cases of equal criminality, where detection trode closely on the heels of transgression.

"The scheme alleged, also, would have been wholly incomplete. The language of the law of incest, thus interpreted, was: You may marry your sister, your daughter, or your mother as innocently as a stranger. If you commit fornication with a stranger you shall be fined. Fornication with your sister, or with those near of kin, is no more criminal than with a stranger; yet there is greater danger that you will commit it. Therefore, if you do, you shall be put to death. No law, speaking such a language, could possibly answer its object. Let the consciences of men be once satisfied that sexual intercourse, as such, with their nearest connections, is no more criminal than with strangers, and incest will become equally common with fornication and adultery. No matter what laws are

made, or what punishments threatened, if you remove the consciousness of deep criminality, you also remove, under any government, not completely despotic, the possibility and the dread of punishment; for it is only the enormous guilt of particular crimes which leaves the human conscience satisfied when exemplary punishment is inflicted.

"Why is not the crime of incest now prevalent? Why are our houses pure, and our families innocent? It is because the law of God has placed a guard against the human passions, in that strong sense of guilt, in that instinctive horror at the bare thought of sexual intercourse with our near connections which is impressed on our minds with the force of a second nature. This restraint breaks down every propensity to incestuous commerce, and stifles those inclinations which nature, for wise purposes, has implanted in our breasts at the approach of the other sex. It holds the mind in chains against the seductions of beauty. It is a moral feeling in perpetual opposition to human infirmity. It is like an angel from heaven, placed to guard us against propensities that are evil. It is that warning voice which enables you to embrace your daughter, however lovely, without feeling that she is of a different sex. It is that which enables you, in the same manner, to live familiarly with your nearest female relations without those desires which are natural to man.' Remove this sense of guilt, and families are dissolved. Children, instead of finding a perpetual home under the parental roof, would, at an early age, be banished from its threshold. The sister could not approach her brother without fear of impurity. The father would find a rival in every son, and the mother in every daughter.

"9. If the law of incest did not forbid incestous marriage, it was useless.

"The Israelities had two general laws forbidding fornication and adultery in all cases, as well with strangers as with relations. What necessity, then, was there of particular statutes forbidding them with relatives? It

Lord Erskine.

may be said that the punishment of these offences, when incestuous, is more severe. But this is not true of adultery. When, therefore, it is said, Leviticus xx. 11, 'He that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to death;' why add, 'And the man that lieth with his father's wife, both of them shall surely be put to death;' as well as numerous sections of a similar character, if the latter be mere prohibitions of adultery? What would be thought of the wisdom of a legislature which should enact a similar statute with regard to any other crime; for example, that of horse-stealing : 'He who steals the horse of any person shall be imprisoned three years; he who steals his father's horse shall be imprisoned three years; he who steals his brother's horse shall be imprisoned three years; he who steals the horse of his father's brother shall be imprisoned three years;' and so on through a succession of thirty-three relatives? Is it not, then, equal folly to enact, with regard to adultery: 'He who commits adultery with any woman shall be put to death; he who commits adultery with his mother shall be put to death; he who commits adultery with his brother's wife shall be put to death; he who commits adultery with his father's brother's wife shall be put to death;' and so on through an equal succession?

"10. If the law of incest did not prohibit incestuous marriages, its only effect was to weaken the force of the general statute respecting adultery. Every thing is lawful which is not prohibited by some law; and every thing is lawful, so far as a given law is concerned, which that law does not prohibit. And the more particular and circumstantial the terms of a penal law are, as the prohibition of the given offence is less general, so the stronger is the implication that the conduct, under different circumstances, is lawful. A law forbidding fornication with females under twenty years of age, and assigning their age as the ground of the prohibition, would give rise to a strong implication that with those who were older it was lawful.

"The bare recitation of several of the prohibitions in

question, altered to adapt them to the scheme which I oppose, will set the subject in a convincing light.

"None of you shall commit adultery with any that are near of kin to him.

"Thou shalt not commit adultery with thy mother; for she is thy mother; thou shalt not commit adultery with her. "Thou shalt not commit adultery with thine uncle's wife; for she is thine aunt.

"Thou shalt not commit adultery with thy daughter-inlaw; for she is thy son's wife.

"Thou shalt not commit adultery with thy brother's wife; for she is thy brother's wife.

“Thou shalt not commit adultery with a woman and her sister, during her lifetime.

"Thou shalt not commit adultery with a woman and her daughter, nor with her grand-daughter; for they are her near kinswomen.

"And if a man commit adultery with a woman and her mother, it is wickedness.

"Who does not see, from bare inspection, that the limitation of the prohibition to these cases of propinquity with the regular assignment of the propinquity in each case as the reason why the connection is wrong, and why it is prohibited, carries with it to the mind an almost irresistible implication, that where propinquity did not exist, such connection was lawful? Is any one ready to charge such a mode of legislation on God?

"11. The law of incest, established in the Koran, furnishes a striking commentary upon the gross licentiousness of the opposite interpretation. Mahomet had the Arabic translation of the Old Testament, and often made use of it in writing the Koran. In the fourth chapter of that work, he says: 'Marry not women whom your fathers have had to wife, for this is uncleanness, and an abomination, and an evil way. Ye are forbidden to marry your mothers, and your daughters, and your sisters, and your aunts, both on the father's and on the mother's side, and your brother's daughters, and your sister's daughters, and your wives'

mothers, and your daughters-in-law, and the wives of your sons; and ye are also forbidden to take to wife two sisters.'

"This, as far as it extends, is substantially a repetition of the Levitical Law of Incest, accommodated, however, to a state of polygamy, and is in express terms a prohibition of incestuous marriages. It will not be contended that Mahomet was influenced by any violent bigotry against licentiousness. Yet he had too much integrity to foist such an interpretation as that which I am opposing on the Old Testament, and too much purity to enact such a law as that which is here charged on the Lawgiver of Israel.”

So much as to the explanation and argument on the principle; now as to the inferential, or, if you choose, logical results. The principle being held to be, that whatever is forbidden in relationship by consanguinity, is also forbidden in the same relationship by affinity; or, in other words, that when Moses forbids aunts and nephews to marry, he forbids the marriage of uncles and nieces as relationships of the same propinquity; or, when he interdicts the marriage of a deceased brother's wife, he, at the same time, interdicts the marriage of a deceased wife's sisterthis principle, I say, being conceded, the logical results turn out to be as follows. I give the classification first in lineals, and second in collaterals.

1. LINEALS OF THE FIRST DEGREE BY CONSANGUINITY.

Lev. xviii. 7. "The nakedness of thy father, or the nakedness of thy mother, shalt thou not uncover; she is thy mother: thou shalt not uncover her nakedness."

Lev. xx. 11. "And the man that lieth with his father's wife hath uncovered his father's nakedness; both of them shall surely be put to death: their blood shall be upon them."

Deut. xxii. 30. "A man shall not take his father's wife, nor uncover his father's skirt."

Deut. xxvii. 20. "Cursed be he that lieth with his father's wife; because he uncovereth his father's skirt."

In these passages marriage is expressly forbidden

B