A Vindication of the Law Prohibiting Marriage with a Deceased Wife's Sister

Front matter

A VINDICATION

OF THE

LAW PROHIBITING MARRIAGE

Letter 1

LETTER I.

THE LAW VINDICATED ON SOCIAL PRINCIPLES.

Dear Mr. Dean,

On the 27th of February, 1850, I discharged a very painful duty by taking part in the debate on the Bill for enabling widowers to marry the sister of their deceased wife. I say a painful duty, for the very discussion of such a subject is, to my mind, most perilous to the best interests of society; for which opinion I shall, I hope, before I conclude, adduce sufficient reasons.

From the tone and temper evinced by some members of the House of Commons it was clear to me that I should damage the weight of the arguments I might adduce against the proposed measure, were I to lay any stress upon Scriptural denunciations against such a marriage. I rested, therefore, my argument solely on the comparatively low, yet firm, ground of social policy, contenting myself with a simple avowal of my own belief in the higher prin- ciples on which the discussion might be based. I had the satisfaction of convincing some who had previously voted for the Bill, and whom I had the pleasure of seeing in the same lobby as myself on subsequent divisions; I have subsequently found that several earnest believers in Scripture (such, indeed, were the gentlemen I have referred to) have, on considerations of social policy, been led to abandon the notion that any alteration of our long settled law is desirable, though yet unconvinced of the Scriptural prohibition of the marriages in question.

I have no longer the opportunity of orally impressing my views on the Legislature, but I cannot conscientiously remain silent on a question which involves a moral and social revolution. I have laboured, and will, whilst health and life remain, labour to the utmost of my power, to avert a great national calamity. The affair assumed a far more menacing aspect, when a Bill similar to that proposed in 1850 had, in 1859, not only passed the House of Commons, but had been rejected by a majority of 10 only in the House of Lords. You, sir, were among the first to arouse us to associated action in opposing the systematic efforts of an anonymous association, making up by wealth for what it wanted otherwise in weight, to unsettle our homes and destroy the fraternal relationship now existing between brother and sister in law. I gladly united myself to the Marriage Law Defence Association, over which you preside, and on the 1st February, 1860, I was requested to move the first resolution at a public meeting convened by that Society at Willis's Rooms. The meeting was a remarkable one in many ways. Not only was the room crowded, but, although it was held during the business hours of the day, it was attended by a majority of men as compared with women, and by a majority of laymen as compared with clergymen. I was then asked to print a correct copy of the speech, and did my best, with the assistance of the short-hand writer's notes, to reproduce my arguments. But I have continued to observe such remarkable ignorance of the former and existing state of our law upon the subject, such persevering misrepresentation (I will not call it wilful) of the effect of Lord Lyndhurst's Act of 1835, such blindness to the inevitable, and not remote, consequences of breaking down the barriers, that from the first existence of our nation have separated incestuous from lawful marriages, that I am not content to let another Session of Parliament pass without doing my best to make the law known, so that its misrepresentation shall no longer be excusable, and without pointing out the necessary consequences of its alteration. The Lord Chancellor, some very eminent retired Judges, and other distinguished members of my own profession, are to be found enrolled as members of our Association, and though they will not be responsible for any errors of law on my part, yet it is a satisfaction to me to know that I assert no legal propositions, but those which I can venture to submit even to their scrutiny. I have, however, divided the substance of my argument into two letters, because I wish carefully to separate the ordinary, though cogent, moral and social reasons for objecting to an alteration of the law, from those that are founded on a belief in Revelation. I shall in this my first letter address myself to those who either altogether reject Scriptural authority on the subject, or deny that it can be cited in opposition to the marriage in question. If the Bible had never existed, the arguments contained in this letter would lose no weight. In my second letter I shall give my reasons for believing that the Word of God has spoken authoritatively on the subject.

Some of the supporters of the proposed change have, with an unfairness which always implies conscious weakness in the advocate, adopted the vulgar course of nicknaming their opponents. "The opposition to the 'Wife's Sister's Marriage Bill' (it has been said) is a High Church, or Puseyite opposition." This assertion is simply ridiculous in face of the facts. Neither the Archbishop of Canterbury amongst our prelates, nor the Earl of Shaftesbury amongst our distinguished religious laity, nor the "Record" amongst religious journals, nor the established Kirk in Scotland, has ever been suspected of ultra High Church tendencies, yet all support the views of the Marriage Law Defence Association. Our opponents have printed and paraded the Scriptural expositions of Cardinal Wiseman, and of Jewish Talmudists (the upholders of tradition amongst the Jews), as favourable to their views, and they shall enjoy their advocacy without any suspicion on my part of a tendency on theirs to Popery or Judaism. I hope they will not accuse me of Puritanism if, in my second letter, I should refer to the opinion of the "Assembly of Divines," or of Puseyism because I may borrow an argument from some of the learned writings of Dr. Pusey. Let the controversy be carried on, at least as between gentlemen, and "God defend the right."

Whilst I was in the House of Commons the question was not treated as a party one, either relgiously or politically. Two of the best speeches that I heard on our side were delivered by the late Mr. Shell, and by Mr. Roebuck, respectively. I saw, however, with regret, symptoms in 1859 of a political and party spirit in the debates. I mention this because I think the principles which are at issue lie far deeper than the very superficial lines that now divide political parties in our country.

I will first endeavour to state exactly our existing law,—the length of time during which it has prevailed,—and the necessary social consequences of its prevalence. We shall thus alone acquire an adequate appreciation of the onus necessarily cast on those who attempt its alteration.

The following propositions will be found to be beyond dispute.

That the Law of England, both Ecclesiastical and Civil, has from the first constitution of our monarchy treated marriage with a wife's sister as an incestuous marriage, and has never, down to the present day, made any distinction whatever between such a marriage, and a marriage with a man's own sister or even mother. That by the same Law, and from the same time, all incestuous marriages have been wholly void, and not merely voidable, but the Ecclesiastical Courts (which alone had jurisdiction in all matters of marriage) were not allowed to declare a marriage void after the decease of either husband or wife, being prevented by prohibition from the Civil Courts from so doing, though they were allowed to punish the surviving parent for incest. Consequently a child born of a man's own sister after a ceremony of marriage between the parents, could not, after the death of either parent, be pronounced to be illegitimate; and the rule as to the offspring of the marriage with a man's own sister was exactly the same. That Lord Lyndhurst's Act of 1835 did not make any difference of degree between incestuous marriages, and the whole of that Act applies exactly in the same manner to a marriage with a man's own sister as to a marriage with a wife's sister. That Lord Lyndhurst's Act did not declare any then existing incestuous marriage to be good, but prevented any suit in the Ecclesiastical Court for declaring void such existing marriage, whether the parents were living or not; but as to any future incestuous marriage, declared it void, and so allowed it to be set aside after the death of the parents.

Fortunately, I am enabled thus to state the law without fear of contradiction, on the authority of the very recent case of Fenton v. Livingstone, decided by the House of Lords in July, 1859, and reported in the "Jurist" of the 3rd December, 1859.

Our opponents frequently represent the Act of 1835, commonly called Lord Lyndhm-st's Act, as that which first invalidated the marriages in question, saying, that till then they were only voidable. I stated in the House of Commons ten years ago that this was a gross mistake, that such marriages were absolutely invalid at all times by our law, and from the time of Henry VIII. had been so dealt with by statute. The mistake arose in the manner described by Lord Brougham in moving the judgment of the House of Lords in Fenton v. Livingstone. There a Scot domiciled in England, had in the year 1808 (long before Lord Lyndhurst's Act) married his deceased wife's sister and had by her a son. This marriage was not declared void during the lifetime of those who had contracted it, and could not, owing to the peculiarity of the jurisdiction of our Ecclesiastical Court, to which I have referred, be declared void afterwards, so that a child could not, in England, be afterwards proved to be illegitimate. It was therefore contended that the marriage was a valid marriage, and that the child could inherit land in Scotland; but Lords Brougham, Cranworth, Wensleydale, and Chelmsford, were unanimously of opinion that the marriage was illegal and invalid by English law from the first, and that the child could not inherit the property. Lord Brougham thus clearly states the law:—

"It (viz. the marriage) was clearly illegal by the law of England. That law treated it as incestuous by the Rules of the Ecclesiastical Court, which alone has cognizance of this objection to a marriage. It could not be questioned except during the lives of husband and wife; but it was illegal, and if questioned while both parties were alive, it must have been declared void ab initio. And why? Because it was contrary to law. The circumstance of one party to it having died before the dispute arose, and before it was questioned, did not make the marriage legal, though it precluded the possibility of setting it aside. And the son was issue not of a lawful marriage, but of a marriage which could not be questioned with efiect, 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."

I have, however, given the clear opinions of the several learned lords upon these points more fully in the Appendix. They will repay the perusal. It is amusing to observe that the Rev. Mr. Bacon, who has addressed a letter to the Bishop of Lichfield on the subject, in which he appears to be in a very great passion with myself for my speech at Willis's Rooms, complains that I assert such marriages were always void by the law of England, and then adds these words: "It is a most remarkable thing that the Vice-Chancellor, to prove it not virtually permitted, cites the case of a Scotch gentleman married in England having property in Scotland, in which it was decreed a child of such marriage could not inherit. Why is dust thus thrown in the eyes? We are speaking of England, not of Scotland. Here many properties are inherited under such marriages." If this gentleman will only take the trouble to read the case, or even the Appendix to this letter, he will see the point wholly turned on English law, and not on Scotch law. If the marriage had been good by the law of England, the child would have inherited the land in Scotland. I do not think it necessary to answer the reverend gentleman's accusations of "partial views of evidence," "incorrectness of statement," "impotence of argument," further than by asking, "Tantæne animis cœlestibus iræ?"

The same authority completely settled another point raised by the supporters of a change in the law. They have repeatedly stated, and unhappily a so-called Society for altering the law (which is, however, strictly anonymous, and I know not whether it consists of more than one individual) has frequently advertised that a marriage with a wife's sister contracted in any foreign country where it is not forbidden, will be valid in England. The advertisement stated a well-known decision of Lord Stowell, that a marriage lawfully contracted according to the law of the country where it is celebrated, is a valid marriage every where else. And they then added, "The Law of Denmark allows marriage with a deceased wife's sister." These advertisements, I am sorry to say, were continued, long after the decision in the Sussex Peerage case had established that to this general rule there was an exception, when the parties so marrying were disqualified by the positive law of their own country from intermarriage. The same point has now been expressly decided by Fenton v. Livingstone, and Lord Wensleydale lays down the law on this subject in a clear manner, as may be seen at length in the Appendix.

I fear many women have unfortunately been be- trayed into these illegal marriages by the delusive advertisements I have referred to. In fact, Lord Lyndhurst's Act of 1835, in mercy to those who might be entrapped into marriages that might at any time (during the life only of either party, as the law then stood) be declared void at the caprice of the husband, or from the malice of an enemy, or on the real conscientious interference of friends, made them impossible.

The title of this Act of Lord Lyndhurst is no doubt misleading. It runs thus: "An Act to render certain Marriages valid, and to alter the law with respect to certain voidable Marriages." Now, the Act does not render (as it has often, through inadvertence, been asserted to do) any marriage within the prohibited degrees valid, but only says that the marriages which at the date of this Act had been solemnized within those degrees should not be questioned, although the husband and wife were both living. Sir Herbert Jenner refers to this in his judgment in Ray v. Sherwood Curtis, 193. He says, "The enacting part of the Act does not make these marriages to be good and valid to all intents and purposes, as might be supposed from the title of the Act;" and he proceeds to state his opinion that the parties to such a marriage would still be punishable for incest in the Ecclesiastical Courts, though married before the Act. This, in fact, is the important distinction throughout. Before Lord Lyndhurst's Act, the Ecclesiastical Court could not declare the marriage void after the death of either party, but it could punish the survivor for incest. And so it could in the case of parties whose marriages were prohibited from being declared void by Lord Lyndhurst's Act. When it is recollected that the Act would apply to marriage with a man's own sister, it will be seen to be right to leave the parties punishable.

Such then is our law, and such has it been at all times, the only modification being that which I have last mentioned.

Before the Reformation the Ecclesiastical Courts alone, and without restraint, determined what was a valid, and what was an invalid marriage. The Civil Courts adopted their decision as conclusive. This is wholly irrespective of the merits of such a state of law. I deal only with the facts at present. The Ecclesiastical Courts always held the marriage with the wife's sister to be invalid from the time when Christianity commenced in this island. True it is that when the corruptions of the Romish system prevailed, you could buy a papal dispensation from the law. But even this corrupt course never existed in practice here; and, indeed, the first known grant, any where, of a papal dispensation to marry a wife's sister was made, very shortly before the Reformation, to King John of Portugal by Alexander Borgia, who himself lay under the imputation of most disgraceful incest. The Church of Rome had indeed adopted a course which led to great abuse. They extended the prohibited degrees far beyond those contained in the 18th chapter of Leviticus, and then dispensed with the prohibition for a money payment. At the Reformation this abuse was corrected by the 32 Hen. VIII. c. 38, which enacted amongst other things, "That no reservation or prohibition, God's law except, shall trouble or impeach any marriage without the Levitical degrees." The Common Law Courts upon this statute determined, that the Levitical degrees were to be extended to all degrees of the same proximity, either by affinity or consanguinity, as those named in the 18th chapter of Leviticus (see the very interesting cases of Harrison v. Burwell, and Hill v. Good, in Chief Justice Vaughan's Reports, in the time of Charles II.), and that the case of the wife's sister was within the Levitical degree. At no time, up to the present hour, has any difference been made between that case and the case of a man's own mother or sister.

The time, then, during which the existing system of law prevailed dates at least from the conversion of Ethelbert in the sixth century. Observe, however, that in this branch of my argument I claim no additional sanction from its Christian origin, or from the Book of Leviticus; I claim merely a right to rely on the fact of the long duration of the law, and on the fact of the habits of thought and life thereby engendered, to which I will now call attention.

The social consequences of such a state of law were obviously these,—an habitual recognition of the wife's sister as a near member of the husband's own family, and a consequent freedom of intercourse, going far beyond that which is allowed between a husband and any woman with whom he could, in case of his wife's predecease, be at liberty to intermarry. I appeal to every one's experience on this head. It is very well for our opponents, as some have done, to assume a superior degree of purity, and to ask whether there be not grossness of conception at the very root of our objection to a change of the law. I answer them by these other questions. Do not married men exercise privileges of familiarity in regard to their sisters-in-law, which custom does not permit with regard to women in general, although no doubt a pure mind might be trusted equally in either case? Do widowers and ladies with whom they are at liberty to contract marriage reside alone and unmarried in the same house? and do not widowers, without scandal, so reside with their sisters-in-law?

It is not because the majority of men are gross, but because not only the majority, but all, are weak, that all laws, whether of Heathens, Jews, or Christians, have fenced round the inhabitants of our homes with certain prohibitions of marriages, as I shall presently show. The very terms, mother-in-law, brother-in-law, sister-in-law, indicate the ideas that (in our country at least) have grown up in men's minds under the sanction of laws coeval with our social organization as a state. But the proposed Bill will, in fact, if entertained, abolish all those relationships. Moreover, the law having once (rightly or wrongly) classed the mother-in-law and sister-in-law with the mother and sister, as persons with whom no marriage can be had, this association alone (wholly independently of religious belief) has generated a repugnance to such marriages, as being all equally open to moral objection. In this country, till very lately, and in Scotland to the present hour, this repugnance has been an all but universal feeling. It is, perhaps, though I will not now be sure, still universal as to. the mother-in-law. The long acquiescence, indeed, in the law can only be accounted for by the habitual and universal recognition of its propriety.

Having now established—1st, That, contrary to repeated blundering assertions as to the effect of Lord Lyndhurst's Act, marriage with a deceased wife's sister has, from at least the sixth century, or for 1200 years, been as absolutely illegal and void in England as that with a man's own sister; and having commented on the necessary results produced by the prevalence of such a state of the law for such a period; I have thrown, I think, a heavy burden of proof on those who desire a change, to show that such a change would be beneficial.

I proceed to test their arguments for that purpose, without supposing the existence of any special revelation of God's will upon the subject.

1. They say marriage itself is a social institution highly to be favoured, and that where God is silent man should not presume to restrict the liberty of marriage.

I admit the inestimable value of marriage as a social institution; and in this letter, for argument's sake, I take as admitted the silence of God's law, but I totally deny the consequence—that society ought not to restrict the liberty of marriage except with Divine sanction.

I say, as a matter of fact, that no civilized society has ever existed that has not by law restricted the liberty of marriage, and certain barbarous tribes of India are no real exception. The restriction has been applied to different degrees of relationship, according to the different social habits of the country, but no civilized nation has permitted the marriage of father and daughter, or son and mother. I believe the Apostle Paul was not (as a matter of fact) in error when he asserted that none of the Gentiles tolerated a marriage with a step-mother, a case, be it observed, of affinity. It is well known that an unhappy attachment of step-mother to step-son, and the converse, have been recorded, and poetically and historically exhibited by heathen authors as instances of depraved affection.

I can take my stand then on social grounds, independently of revelation, in saying that human laws have in all ages restricted marriage. I say they have rightly done so. What, indeed, is marriage itself but a restriction of promiscuous intercourse? Is this right or wrong? To him who does not admit revelation the test must be—does it produce more or less happiness? I will not stop to argue this. No Englishman, at present at least, will uphold promiscuous intercourse, or even polygamy. The home, the undivided affection of the wife, the children, not too numerous for the exercise of the affections, nor the offspring of so many mothers as to create family dissension, are felt to justify the restraint independently of higher motives. The restriction then of marriage itself, as was beautifully said by the Bishop of Oxford at the late meeting at Willis's Rooms, though in form a prohibition, is in reality a blessing. It is a fence round the home, and all that that word contains. But the same foresight, human only if you will, which has discountenanced promiscuous intercourse and polygamy, has guarded further human weakness by saying, that when a married man or woman is, from circumstances, in constant habits of intercourse and necessary daily familiarity with other women or men, there shall be a prohibition of all thought of union; otherwise the familiarity which now adds largely to our happiness will be but a snare. All nations have, therefore, wisely fenced all the inmates of the home, the mother, the daughter, the sister, by such prohibitive regulations, though you may assume them to have been destitute of all revelation, traditional or written, on the subject. Hence too, perhaps, the peculiarity of the unions allowed in some Eastern nations, where the brothers and sisters are kept separate from infancy.

Now that the near relations of the wife should be entitled to the privilege of this prohibition, for so I regard it, is a natural step in civilization, and will prevail more and more where the intercourse becomes more familiar, as in all Christian countries it has done. The Romans, the Greeks, and all other civilized nations have therefore rightly restrained marriage as to the step-mother and certain other relationships, though only by affinity.

2. The promoters of the change next aver, that at all events the particular restraint in question has become irksome in this country, has long since been so in Germany and in some states of America, and ought now to be abolished.

3. That the aunt is the natural substitute for the mother to her deceased sister's children.

4. That this last observation applies more especially to the poor, by whom the abolition of the whole law is, they say, accordingly more especially desired.

I will take these three arguments together. That there may be some people to whom this restraint, like all other restraints, may be irksome, of course I will not deny. The restraint of marriage itself is irksome to many. Whether impatience, on the part of some, of a law that for 1200 years has governed the domestic habits of every family in the kingdom, justifies its abolition, depends on the comparative degree of injury to be inflicted on the impatient few by its retention, or the, at present at least, acquiescent many by its abolition. Now to repeal the law necessarily involves the total abolition of the relationship of sister-in-law. There are only three possible ways in which a man can treat his wife's sister. Either their intimacy will be, as at present, in its degree and character—viz. the intimacy of a brother and sister, in which case the idea or desire of a marriage union will never present itself to a well-regulated mind; or it will be an intimacy as close, but of a totally different character, in which case it will be highly perilous to both; for what woman with whom a union by marriage is possible is ever allowed the degree of intimacy in question? or, lastly, the intimacy will cease, the wife's sister will be as any other woman. She may not any longer venture on the innocent familiarities of a sister, nor reside alone with an individual brother-in-law. The last is the best result that can occur from our relaxation of the law.

Great indeed will be the loss—great the misery to sisters-in-law—and in thousands of families the brother-in-law, on his part, loses an equal happiness; nay, the wife herself will have far less frequent intercourse with her own sister. If her husband now become a widower, he has all the world to choose a wife from, except only his sister-in-law and the other near relations of his wife. This last is the whole amount of the hardship of the existing law—for I really can give no weight to the argument that the aunt is the best substitute for a mother to his children. The argument is all the other way. She can act as such mother now, and live with him after his wife's decease for that purpose, and does so continually; but why must she marry him? Mr. Roebuck well observed, the aunt's fitness for taking charge of the children is not improved by her becoming their step-mother. Her having children of her own to compete with them is rather, if any tiling, an impediment to her doing so; and why too is the husband's own sister thought incompetent to the office? If this change be made, it is only as a step-mother that you can ask a wife's sister to take care of your children, for she cannot reside as a single woman in your house, and you will lose the most delicate-minded aunts as guardians. You literally, therefore, defeat your alleged object. It is too much to assume that the persons who have broken the law by making these alliances have been thinking of their children. Few men who marry a second time think so much of their children as of their own comfort in a second wife and family, though they may deceive themselves into a belief that their motive is pure benevolence to their offspring. But then again, the poor man wishes (it is said) for the change. Now I must protest against this often repeated, and as often disproved assumption. It can be demonstrated to be utterly untrue that there is any special prevalence of such, illegal marriages, or any special wish for such, among the poor.

In the first place, the poor are usually the last persons to change old habits and ideas, and, therefore, little likely to think of marriages contrary to the accustomed course. In the next place, the poor marry so early that it rarely occurs that the widower finds a sister of his wife disengaged, unless she be herself a widow. Those who do not marry early are in service, and not likely to leave it for a poor brother-in-law's house, in order to take on them the care of a sister's family.

But I do not rest on conjecture as to this; I go to the evidence produced by those wealthy promoters of all the agitation on this subject, who retained the respectable firm of Crowder and Maynard to bring their case before the Royal Commission of 1847. That evidence alleged that there were 1648 cases of marriages either had, or prevented (as they stated) by Lord Lyndhurst's Act, within the prohibited degrees. These instances have been tabulated, and show 1608 to be in the upper and middle classes, and 40 only among labourers and mechanics. The ratio is literally infinitesimal, if we reflect on the comparative number of individuals constituting the classes themselves.