Marriage with a Deceased Wife's Sister: Evidence Given Before the Commission

Front matter

MARRIAGE WITH A DECEASED WIFE'S SISTER

PROHIBITED BY HOLY SCRIPTURE,

AS UNDERSTOOD BY THE CHURCH FOR 1500 YEARS.

Preface

The object of the writer in delivering the evidence which he was requested to give before Her Majesty's "Commissioners appointed to inquire into the law of marriage as relating to the prohibited degrees of affinity," was chiefly to bring before them the weight of what was said or implied by Holy Scripture upon this subject, and to show how those Scriptures had been understood by the whole body of the Christian Church, down to the Council of Trent. And if people could but bring themselves to think what is the weight of the deliberate judgment of the Church, century after century, from the first, they would not treat this argument so lightly as they sometimes allow themselves to do. It was, at an early period, spoken of as a sacred tradition from the Fathers; and those early traditions in the whole Church do express the mind of the Apostles, who had "the mind of Christ." This mind of the Church continued to be expressed in Councils and Fathers, and later by almost all the most thoughtful of the Schoolmen; it was only contravened in an unsatisfactory school, Scotus and certain followers of his, who went so far as to say that "no affinity" (not even with a mother-in-law or daughter-in-law) "was against the law of nature, only against the law of the Church." It was the deliberate judgment of the Church, and ex- pressed by thoughtful writers, that Lev. xviii. is part of the moral law and unchangeable, and that the words "Thou shalt not approach any one near of kin," &c. do furnish a general principle, including cases not actually expressed in the letter of Leviticus. One case, at least, not so expressed, must be included, since marriage with the daughter is not prohibited, while marriage with the mother is. Even the better heathen detested the incest with the mother. Yet God saw good to lay down the one and omit the other. And it is as reasonable an account as any other, of this omission, to suppose that He willed that it should be omitted, in order that we might not think that the whole range of forbidden relations was contained in those which are expressly, and in the letter, laid down. It can, neither, then be said that cases are omitted, because they are forbidden by nature itself, since cases most abhorrent to nature are included; nor, since purity is the same in both sexes, can any ground be alleged, without destroying that fundamental law, why marriage with a wife's sister should be lawful, since marriage with a husband's brother is not, or why an uncle may marry his niece, since an aunt may not marry her nephew. In this case the marriage which human passion is most likely to court, is forbidden by parity of reason only; that which it would rarely wish for, is expressly forbidden. We cannot tell the reasons why one was expressly named; but it would be a very narrow Pharisaic interpretation of Holy Scripture which would so insist upon the letter, as to conceive every thing, not in so many words forbidden in the letter, to be permitted, although equivalent to that which is forbidden. It is a sort of interpretation professedly borrowed from the Jews, and resting upon their authority, yet more like the argument of a Jew with which most minds are familiar, "It is not in the bond," than that of teachable minds wishing to know the mind of God.

It would, in human laws too, be considered as a presumption against a novel interpretation of those laws, that it was introduced under an evident bias. Passion pleads acutely; corruption is very dull to see very evident grounds against it. I suppose it would be imagined to be the very strongest ground against a case being drawn into a precedent, that a judgment in a single case went against the deliberate judgment of all before, and was given under a bias. Much more in Divine laws. Holy Scripture being given by inspiration of God, and written for such as have in their degree the Spirit of God, is understood through that Spirit by which it is given. When then the first precedent in favour of the infringement of what up to that time had been, by the deliberate judgment of the Church, century after century, accounted the law of God, took place through the judgment of a man stained with almost every crime by which human nature has been disgraced, and that to conciliate the favour of princes,—it will hardly be thought, except by the extremest upholders of Papal infallibility, that he was guided in this by the Spirit of God. Yet such, in the person of Alexander VI., was he who, amid the continued protests of eminent Canonists, innovated, in this case, upon the received practice of the Church. This was followed by a Pope, who, whatever may have been his military or political talent, certainly was not one whom the Church could trust in any religious matters, Julius II. His act furnished the ground for the quarrel with England; and although in this case, probably, there was no real affinity, the first marriage not having been completed, the Council of Trent, espousing the side of the Pope, established a power of dispensation, which, except by these two bad Popes, had never been assumed.

Yet the mind of the Church remained, as far as could be, unaltered. The Council of Trent manifestly discourages the marriage of two sisters. It affirms, under anathema, the disputed power of dispensation; and then, in a very remarkable manner, passes in entire silence over this, the 1st degree of affinity. Of this it says nothing, but goes on to insist on the necessity of extreme rareness of dispensations in the 2nd: "Let a dispensation never be granted in the 2nd degree, except between great princes and for a public cause." If such were to be the urgent cases which alone would allow of any dispensation in the 2nd degree, à fortiori was it the design of those assembled in that Council to discourage dispensations in the 1st. The marriage with the wife of the deceased sister is left in reverent silence, wrapped up in that with the sister herself. It is all but forbidden absolutely, since with regard to it dispensations are not spoken of, and in the degree next below it are limited so extremely. This silence is the more marked, by reason of the recent quarrel with England on this very ground. The Council claims to the Church the authority to dispense with certain Levitical degrees, and so, by implication, defends the authority which had been disputed. But, unlike other cases in which any existing practice or teaching in the Church had been questioned, it avoids any specific declaration on the subject. It passes in silence over the very point which had been at issue, as if to prevent its being drawn into a precedent, even while it did not allow the authority of the Pope in this to be questioned. It discouraged the use of that power, while it maintained the power itself.

So strongly has the meaning of this silence been felt, that in the pleadings in the case of the M. de Sailli, it was alleged in the appeal, that "the Council of Trent forbad such dispensations;" and Fagnan, "the most esteemed of the Italian Canonists," regards these marriages as absolutely prohibited by the Council of Trent. He says, "To this is added the prohibition of the Council of Trent, in that the holy synod, after it had decreed universally, that in contracting marriages, either no dispensation was to be given, or very rarely, decrees as to the 2nd degree, that in it dispensations are not to be granted except among great princes, and for some public cause, and so very evidently implies that in the 1st degree, which is our case [the wife's sister] dispensation is never to be given." This intention of the Council of Trent seems for a long time to have been acted upon. In my evidence (p. 37), I stated that Estius, a celebrated Canonist, who died A.D. 1613, mentioned only one such case in addition to the two previous. Subsequently to this, the Code Matrimonial, cited, in the Evidence, to establish the frequency of these marriages in France, shows the reverse. The whole number of cases mentioned in a period extending over a century, is seven. In two of these there had been previous sin; in one of them, that of adultery; a third was allowed on the very ground that the first wife had fallen down dead on leaving the Church, so that there was no affinity; in a fourth, the dispensation was declared illegal in the civil courts; in two others the dispensation was given after the marriage was completed, in which case, practically, dispensations were more readily granted, on account of the evils to be apprehended from the separation. Again, so novel were these marriages at the close of the 17th century (a. 1683), that it could be pleaded against them, that they were forbidden by the ancient councils and ancient laws of France, and that it was one of the essential points of the Gallican liberties, that the Pope could not do any thing contrary to their laws or the canons of their councils. Different facts appear also in these few pleadings illustrative of the rareness of these marriages, and the difficulties put in the way of them. Thus, although the Council of Trent expressly prescribes that all dispensations as to marriage shall be gratuitous, it appears that the cost of a dispensation in the 1st degree, i.e. of these marriages with the wife's sister, was about 1000l. This, of course, was intended to limit them, and did make them impossible to the middling or poorer classes. In one case, a marquis, notwit htanding all the influence which he could use at the court of Rome, had to wait ten years, until the death of Pope Innocent XI., who, it is said, uniformly refused them; and it is said "that a multitude of similar instances might be adduced." And now, too, the mind of that large portion of the Western Church remains unchanged; and it carries out, in this respect, the practice of the earlier Church, where other circumstances do not seem to them to hinder it. "Abroad," "in [Roman] Catholic countries," it is said by a Roman Catholic bishop, "you very seldom find marriages within the prohibited degrees." "I hardly," he says, "recollect such a thing" [as even "marriages of 1st cousins" "in Italy"], "and it is far more difficult to obtain a dispensation." "In England and all countries of mixed religion, dispensations are granted the more readily, so as to prevent mixed marriages." These marriages are tolerated then as the least of two evils. The existing canon of the Church of England represents, in this respect, the better mind and wishes of the Church of Rome, which, but for what seems to her a greater evil, she would wish to see adopted. In the whole extent of the Greek and Russian Church, and all the bodies which in the whole East bear the name of Christ, even those involved in heresy, these marriages with a wife's sister are wholly unknown and abhorred as incest, as in the time of St. Basil, and those before him. Whatever, then, may be the decay in practice, the mind of the three great portions of the Church is in accordance with that of the Apostles, as attested by the universal practice of the whole Church, wherever she was planted in all lands, and which, until a late unhappy period, remained unimpaired.

The greater part of the evidence given before Her Majesty's Commissioners does not touch upon these questions. It is mostly taken up in the attempt to establish two contradictory points, that the present civil prohibition of these marriages is at once nugatory and oppressive: nugatory, in that it has not hindered these marriages; and oppressive, in that it has. Not, of course, that the parties who gave that evidence were indifferent to truth; but that they who united to agitate the question, and to bring the civil prohibition into disrepute, were so intent upon their one object, that they took up whatever weapon came in their way, not observing that they were, in fact, confuting themselves.

Again, great pains are taken to show how "respectable" and pure-minded the persons are who desire these marriages; and then, again, it is urged that sinful intercourse is the result of the prohibition to celebrate them; i.e. among the rich, all are pure-minded; among the poor, all debased, united only in this one wish! Of the persons themselves I have no call to speak, nor any knowledge. Persons may often be "respectable" in one way, and have a miserably low standard of moral duty in others. Tens of thousands have of late years been ruined by what were, in fact, dishonest proceedings of "respectable" persons in whom they trusted. And so in this case, it appears, on the very surface of the evidence, that neither gross immorality, nor marriage against parental authority, nor perjury, interferes with this reputed respectability. Such marriages as have not been contracted abroad are, among the wealthier classes, mostly celebrated by license, not by banns. It is even urged as a ground for altering the law, that those who break it commit deliberate perjury; and yet it is urged in the very same evidence, that they who commit perjury in order to contract a marriage held by the Church to be against the law of God, are respectable, blameless persons. In the face of the statements as to perjury, elicited by themselves, the Report of the Commissioners says, "We do not find that the persons who contract these marriages, and the relations and friends who approve them, have a less strong sense than others of religious and moral obligation, or are marked by laxity of conduct."

Again, it is, of course, impossible to prove that the law, certainly that the law of the Church, is a dead letter. The multitude of those who break it has no weight at all to show that multitudes many more are not healthfully restrained by it. It might, in this way, be argued that every commandment of Almighty God is a dead letter. The commandment, "Thou shalt do no murder," is doubtless no dead letter, even in Ireland, even amid its weekly murders, where the murderers, although known, are again and again screened by the population. The commandment, "Thou shalt not commit adultery," is not, God be praised, a dead letter yet, although the breach of it is no hindrance to the male adulterer being received into "respectable society." It is within recent memory how one, who had seduced his deceased wife's sister, being married, and, although the bill of divorce in the House of Lords expressly made her marriage with him illegal, married her abroad, was, after her decease, received into high and respectable society. The English dislike giving pain; and they overlook almost. any thing, when it cannot be mended. They shut their eyes to guilt as long as they can, when it costs them pain to own it; they overlook it, when they can. Of course, there may be much which is amiable mingled with this; in many cases it may be charity and humility, not indifference. But while this is the English character, their mere tolerance of what is amiss is no proof that they would wish their wives and daughters to do what they tolerate; that they do not think things wrong simply because they endure them, and do not refuse to visit those who do them.

Yet here too is inconsistency. Great pains are taken to show that persons in England lose nothing in good repute with their neighbours, although they contract these marriages. Yet, at another time, when it is wished to throw odium on the prohibition, instances are given of parties losing caste by it; or, if the evidence seem not full enough, it is pleaded in excuse, that "only in a few cases one [a solicitor] can get parties to come forward and proclaim this state of things; very many will not; and this in part on account of the possible effect it might have on their wives." What does this imply but a secret consciousness of something at least questionable? However those whose conscience is the most tender may, for a time, have silenced its voice, it seems to be apprehended that it is still ready to wake up. Were marriage with a wife's sister, a pious act, in such good repute, there would have been no ground why nine witnesses, called upon to establish this fact, should have desired to conceal their names.

Again, the case of the poor is adduced as a hardship, wherein it is forgotten that as many of them as are members of the Church would remain, as such, just in the same condition as now, and the penalties annexed by the law, relating to property only, do not affect them. We are told, "I hardly think that there is a Dissenter of any class, from their clergy downwards, who does not feel it an unjust restriction, and act, accordingly, in defiance of it." It is, at least, no hardship, then, on the dissenting poor, and the poor of the Church would not be affected by any change in the mere law of the state. The removal of civil penalties could not, of course, impose any obligation upon the clergy, or set them free to act contrary to the law of the Church to which they have pledged themselves; nor could the state alone change the table of prohibited degrees, under which and the canons the clergy acknowledge these degrees to be "prohibited by the laws of God," "forbidden by Scripture."

Again, it is urged that the present state of the law interrupts domestic intercourse, and yet one of the grounds assigned as leading to these marriages is "co-residence and confidential intercourse." Whereas, it is, of course, quite plain that the prohibition of such marriages is the safeguard of domestic intercourse; the wife's sister can the more readily be the guardian of her sister's children, when she can stand in no other relation. Ignorance as to the Divine law, and uncertainty as to the human, have been the very hindrances of that tender domestic relation. When the wife's sister is recognized as the husband's own, she is as privileged as his own. This is remarkably recognized by the Rev. J. F. Denham (although advocating the permission of such marriages), as being the case now (Evidence, No. 397–9, 390). The Rev. J. Hatchard, also, taking the same line, admits, "I should think that there is a shield which is thrown over a wife's sister, which is not thrown over another person." (No. 517.) The same ground is strongly taken by Archdeacon Hale, against the permission of such marriages (No. 1273), and Rev. J. E. Tyler (No. 1225–34).

Little specific has been said on the opposite side, in the evidence, upon the topics upon which the writer dwelt,—the prohibition of these marriages in Holy Scripture, and the universal mind of the Church until evil days, understanding those prohibitions to be in force under the Gospel. A few words may be said upon each of those subjects.

Most of those who assert that they believe these marriages to have nothing a contrary to the Word of God, content themselves with this assertion, so that there is no evidence upon what ground they rest their belief. Of the two possible grounds, 1st, That marriage with the wife's sister is not forbidden in Leviticus, because not contained in its letter; 2ndly, That the Levitical law is no longer binding,—it is remarkable that, while the former is the most popular ground, the persons of most name take the latter.

The former is the most popular, because people mostly are timid in relaxing God's law. They wish to persuade themselves that they are not relaxing it, but will not give up their own wishes, which are contrary to its letter or its spirit, and so they persuade themselves that they are not so, and compromise matters by paring it down as little as they can. Single stones are pulled out first; people do not venture to try to shake the whole wall. The thin edge of the wedge is introduced first. Not that they themselves do so advisedly, but they are unwilling instruments in the hands of one who knows better than themselves the minds of men, and the effects of each step in a direction diverse from or against the perfect law of God. He forecasts much more than the next move in his fearful game.

Very remarkable, in this way, is the utter inconsistency of the position which this class are endeavouring to take up. At present, the one object is to gain the one point, that men should be allowed to marry their deceased wives' sisters. Whatever be the secret human agency which, with large means at its command, has set all this machinery at work, first sending private commissioners of its own to investigate the practice as to these marriages, canvassing the clergy for their opinions, taking them sometimes by surprise, getting up petitions, and, at last, procuring a Royal Commission—this has been the object in view. This is visible in the pains taken to show that in the actual breaches of the present law of marriage the cases of consanguinity are few in proportion, and in Germany, also, are less frequent than with the wife's sister. Pains are taken to separate from them marriages which stand precisely upon the same ground as to Holy Scripture, but on which the English mind is not equally prepared. On any ground of Holy Scripture, whether in itself or as understood by the Church, the marriage of the uncle and niece stands upon exactly the same footing as that with the deceased wife's sister. Both are virtually included in Holy Scripture; both were neglected, at all events, by the rabbins; both prohibitions were enforced during the purest ages of the Church; both relaxed in evil times, by dispensations from the Pope; both continue to be forbidden in the Greek Church; both were, after the model of the Primitive Church, anew forbidden among ourselves; both were discouraged, at first, by the Protestants abroad; both are since allowed by them; one altogether, the other by dispensation from the civil power; both take place, by dispensation of the Pope, in Roman Catholic countries; both practically take place where allowed. It is simply absurd to suppose, that if the English mind is familiarised with the one, the other will be far off.

This broad distinction between consanguinity and affi- nity, which is implied in many of the questions and by some of the witnesses, is opposed not only to the word of God, but even to the voice of human nature itself, as attested by the better heathenism. The primeval law given by God in Paradise, which our Blessed Lord revived, "They twain shall be one flesh," however defaced or buried oftentimes by man's passions, lived on where the law of marriage was most respected. The provision of the Roman law, that a man should not marry a wife's daughter or a son's wife, is founded on the principle that "both are daughters;" the ground of the prohibition of the mother-in-law or step-mother, that "they are in the place of a mother." This reason of the law cuts away the very ground on which the distinction is now attempted to be made. The law of God explains the principle upon which some marriages by affinity are forbidden by the very nature of marriage itself; it brings out plainly that the mysterious oneness of those "whom God hath joined" knits them together indissolubly (except in the case of that special sin which dissolves it), and so, by their own oneness, incorporates each into the family of the other. Holy Scripture applies the principle beyond the first sacred relation of parent and child; but the principle itself God had graven on the human heart by His words to the common parents of all mankind, "They twain shall be one flesh." One and the same principle establishes the great holiness of marriage, its depth of

mystery, its indissolubleness (except in that one case), excludes in the wife's or husband's lifetime the union of more than one pair, i.e. polygamy; and, after the decease of either, prohibits the survivor from marrying such of the relations of the departed as would be forbidden if they were the survivor's own. One and the same Divine principle is the groundwork and rule of all. Holy Scripture insists upon cases under each head with equal weight of authority and of appeal to the conscience. As instances of the one general principle, "None of you shall approach to any that is near of kin," it does prohibit in express terms "the father's wife," "the daughter-in-law," "the brother's wife," "the wife's daughter or grand-daughter." There is no difference in the words of the prohibition, save that, for fear man should sever them, Holy Scripture even more carefully identifies the relation with the "brother's wife," than with the "aunt." Of the father's and mother's sister it is only said, "she is thy father's near kinswoman," "she is thy mother's near kinswoman." Of the nakedness of the brother's wife it is said, "It is thy brother's nakedness," as of "the father's wife," it is said to be "the father's own nakedness." And for those who contend that no law of nature would be broken by marriage with the sister of her whom a man first took to wife, because she is commonly termed a "sister-in-law" and not a person's own, and there is no nearness of blood, it would be impossible to say what law of nature would be broken by marriage with the daughter of her whom a man first took to wife, since she also is commonly called a daughter-in-law, and with her also there is no nearness of blood. But such special pleading is rebuked by heathen Rome itself, which says, A man shall not marry such, "for both are daughters." One may say more. Since Holy Scripture does prohibit not only marriages "near of kin" universally, but a marriage altogether undistinguishable, on any principle, from this of the wife's sister, viz. that with the brother's wife, it would be hard to say on what plea this particular case would not be included under the general, so that the same plea should not be equally valid that suicide should not be held not to be included under the general law, "Thou shalt do no murder." Of course, suicide is forbidden; as is also gambling. One would not even call to mind the sophistry by which persons have persuaded themselves, that to destroy their own lives did not come under the sixth commandment. Of course there is proof enough for those who will see, even apart from our Christian instincts, or the first principles of the relation of the creature to his Creator. And there is abundance of proof that all reckless waste of wealth is an offence against Almighty God, Who entrusted it to us, and that gambling belongs to covetousness. Yet the proof is really not more direct and constraining than that the prohibition of marriage with the wife's sister is contained both in the general law, "None of you shall approach to any that is near of kin to him," &c., and in the particular application of it, "Thou shalt not uncover the nakedness of thy brother's wife."

I said, above, that one and the same principle is the groundwork of the whole sacredness of marriage. And now, again, keeping as a first principle that sacred law, "They twain shall be one flesh," as excluding the multiplying of wives, I would say more explicitly that it is impossible to adduce any principle either of Holy Scrip- ture or of regenerate nature, (for to degraded heathen nature nothing may be unnatural,) whereby polygamy may be accounted to be prohibited, and the marriage with the wife's sister allowed. Beyond question, polygamy is prohibited in principle by our Blessed Lord's words, "They twain shall be one flesh," and by the way in which He revives and explains the original law of marriage, from the creation itself of woman, and by the mystery involved in it. But this is the very mystery upon which these marriages are forbidden. The Church has read in our Lord's words the sanction of monogamy, and has held polygamy a sin, as she did these marriages incest. But if people will find in God's word nothing but the bare letter, it might as well be argued that what our Blessed Lord was immediately prohibiting was capricious divorce; that the special permission of Moses for the hardness of their hearts, which He repealed, was (what foreign Protestants allow) to put away a wife for any cause save that which in itself dissevers the mysterious oneness between the man and his wife, and breaks the original law of marriage; and in support of this supposed absence of prohibition of polygamy, the construction of those writers might be adduced who regard the direction, "the husband of one wife," to "mean, that if a person had two wives, he was not required to put one away, or dissolve the marriage; but he was not to be an officer of the Church, not to be a bishop." One speaks, on this ground, of bigamy, as well as slavery, as "both apparently tolerated at first, under the circumstances of the times." But, according to him, it is tolerated by Holy Scripture itself. What authority then can he, on his principles, produce, whereby it should be forbidden now? Both cases stand on precisely the same ground. Both polygamy and these marriages are prohibited by the principle of the first law of marriage; in both cases God of old suspended, in cer- tain cases, His own law, although polygamy began with the accursed race of Cain; polygamy God allowed under the law; and when a man died childless, allowed the marriage with a brother's wife, which else He forbad: but the principle which forbad both, He sanctioned, the one by Moses, the other by His Son; and our Blessed Lord, in reviving that first mysterious law, "They twain shall be one flesh," re-established a principle, which, as He spake it, directly asserted neither, yet threw its light equally over both, and re-awakened our purer, holier instincts; and His Church understood His words, and founded her laws upon them, and shrank from both as violations of nature herself, when rightly understood. It is observable in this respect that one who advocates these marriages speaks of the infamous case of polygamy sanctioned by Luther, Melanchthon, and other foreign reformers, as "one which was held to be a difficult question, even among those most opposed to it."