That  this  is,  or  was,  the  law  of  the
chnrch,  is,  I  presume,  unquestionable,
since  we  have  it  on  such  high  author-
ity ;  and  since,  moreover,  it  was  so
declared  by  Bishop  Horsley  in  Mrs.
Tensh's  case  (Session  1805,  infra).  It
is  probable,  too,  that  a  precise  canon


may  be  found  for  it  by  those  who  are
more  conversant  than  I  am  with  this
kind  of  learning.  I  have  searched  for
it  in  vain.
An  act  of   the   Scots  Parliament,
passed  in  1649,  declares  that  affinity  is
equally  contracted  by  unlawful  com-
pany of  man  and  woman,  as  by  mar-
riage.   But  even  before  that  act  was
passed,  there  was  a  case  about  1625  of
George  Sinclair,  a  schoolmaster,  who
was  convicted  of   carnal  intercourse
with  two  sisters,  his  pupils  ;  for  which
he  was  sentenced  to  be  dro^vned.    The
charge  against  him  was,  **  that  he  maist
shamefully  gave  the  use  of  his  body
to  twa  young  damosells,  baith  being
sbters ;  the  ane  namit  Margaret  Hen-
derson, and  the  other  Catharine  Hen-
derson, baith  his  scholars,  and  young
virgins ;  and  thereby  committed  no-
tour and  manifest  incest."    This  sen-
tence clearly  proceeded  on  the  notion
of  an  affinity  incident  to  the  guilty
commerce,    independently    of  matri-
mony.   The  act  of  1649,  however,  was
rescinded  in  1661 ;  and  the  case  of  the
schoolmaster   is  not  now  considered
law  in  Scotland.    See  Appendix,  No.  8.
The  preposterous  extremes  to  which
this  doctrine  of  an  affinity  created  by
mere  illicit  intercourse  between  the
sexes  was  carried  in  former  tiroes,  ap-
pears from  the  singular  case  of  Mar-


478


THE  PRACTICE  ON   BILI^  OP   DIVORCE.
