TOPICS. OF THE DAY.

MARRIAGES OF AFFINITY.

THE Conservative Lord FRANCIS EGERTON, following last session's example of the Conservative Lord WHARNCLIFFE, has introduced a bill into the House of Commons to settle the law with regard to marriages between persons connected by " affinity," or what is po- pularly called "relations in law." The principle of the bill is to legalize matrimony between collateral but not lineal connexions : thus, a widower may marry his late wife's sister, but not his mother- in-law or daughter-in-law. As the history and principles of the subject are curious, and the question important from the number of persons and the amount of property that are alleged to be affected by it, we will consider it at some length.

The whole law respecting marriages, especially of affinity, is in a state of great uncertainty ; indeed it may be said that there is no well-defined English law upon the subject. Under the Papal Canon law, the degrees between which marriages were prohibited were gra- dually increased to an indefinite number, in order to bring money into the Papal courts ; the marriage being forbidden as a rule, but a dis- pensation being obtainable by those who could pay for it. By the same Canon law, a variety of matters were usurped by the ecclesi- astics—as every case directly or indirectly relating to the priest- hood, or in which a single priest was a party—all questions con- nected with marriages, as being a sacrament—and with wills, as being made pro salute anima.; considerable remains of which grasping encroachments of the Popish clergy over the laity are still trace- able in the Ecclesiastical Courts of Doctors Commons, &c. When HENRY the Eighth finally broke with the Pope, divorcing KATHA.■ BINE of Arragon and marrying ANNE BOLEYN, a statute was passed, (25 Henry VIII. c. 22.) which, so far as it was not personal in its objects, was temporary. By this statute, the divorce of KATHA■ RINE was confirmed, the marriage of ANNE BOLEYN established, the crown settled on the children by that marriage, and the Princess MARY excluded. After providing for other matters in relation to the King personally, it enumerates the prohibited degrees within which marriages are not to be contracted ; and among them, un- doubtedly, is that of a wife's sister. When HENRY, getting tired of ANNE BOLEYN, beheaded her and married JANE SEYMOUR, he passed another act, (28 Henry VIII. c. 1,) repealing the former, declaring both his previous marriages void, both the Prin- cesses MARY and ELIZABETH illegitimate, establishing the marriage with JANE, settling the crown upon her children, &c., and re- enacting the prohibited degrees. Four years afterwards, an act (32 Henry VIII. c. 38.) was passed expressly to regulate mar- riages. It repeals the last-named statute (28 Hen.) ; it enumerates the various evils which the usurpations of the "Bishop of Rome" had caused by "other prohibitions than God's law admitteth, for their lucre by that Court invented," "and all because they would get money by it, and keep a reputation to their usurped jurisdic- tion." Bluff HAL then proceeds—for the act carries internal

evidence of his own right royal style-

" whereby not only much discord between lawful married persons bath (contrary to God's ordinance) arisen, much debate and suit at the law, with wrongful vexation, and great damage of the innocent party bath been procured, and many just marriages brought in doubt and danger of undoing, and also many times undone, turd lawful heirs disherited, whereof there had never else, but for his [the Pope's] vainglorious usurpation, been moved any such question, since freedom in them was given us by God's law, which ought to be most sure and certain ; but that, notwithstanding, marriages have been brought into such an incertainty thereby, that no marriage could be so surely knit and bounden but it should lie in either of the parties' power and arbiter, casting away the fear of God, by means and compasses to prove a precontract, a kindred and alliance, or a carnal knowledge, to defeat the same, and so under the pretence of these allegations afore rehearsed, to live all the days of their lives in detestable adultery, to the utter destruction of their own souls, and the provocation of the terrible wrath of God upon the places where such abomina- tions were used and suffered."

The statute then enacts,

" That from the first day of the month of July next coming, in the year of our Lord God IMO, all and every such marriages as within this Church of England shall be contracted between lawful persons, (as by this act we declare all persons to be lawful that be not prohibited by God's law to marry,) such marriages being contract and solemnized in the face of the Church, and con- summate with bodily knowledge or fruit of children or child being had therein

between the parties so married, knowledge, be by authority of this present Parliament aforesaid deemed, judged, and taken to be lawful, good, just, and indissoluble. • * Notwithstanding any dispensation, prescription, law, or other thing granted or confirmed by ACT or otherwise; and that no reservation or prohibition, God's law except, shall trouble or impeach any marriage without the Levitical degrees; and that no person, of what estate, degree, or condition soever he or she be, shall, after the first day of the said month of July aforesaid, be admitted in any of the Spiritual Courts within this the King's realm, or any his Grace's other lands and dominions, to any process, plea, or allegation contrary to this foresaid act."

On the accession of " bloody MARY," the whole of these acts were repealed, arid matters restored, as far as possible' to the old Popish state. Under ELIZABETH, the last-named act of HENRY was reenacted, and the passage just quoted formed the whole of the English law upon the subject of degrees in marriages. As "God's law," however, was not defined, Archbishop PARKER, in the early part of ELIZABETH'S reign, after vainly urging the subject upon Parliament, drew up, on his own authority, the table of prohibited degrees printed in our Book of Common Prayer. But, although ordering it to be hung up in the churches of his own province, he offered it not as a law, but as his opinion of what ought to be the law ; making marginal notes on certain of the degrees, and among others on the one which is practically the most important, the mar- riage of two sisters in succession. This, he admits, five authorities favour ; and he seems to hold that existing marriages ought not to be dissolved. In the early part of Jamas the First, this Arch- bishop PARKER'S table was adopted by the Convocations of the Clergy, and confirmed by the King. From that time they became established as the guidance of the Ecclesiastical Courts ; but they have always been repudiated by the English Law Courts, "ex- cepting in so far as they are declaratory of the common or cus- tomary law of the realm." An example will make this clearer. If a man married the sister of his deceased wife and had children his remotest "heirs-at-law " might dispossess those children of the father's property after his death, if the Ecclesiastical Courts had dis- solved the marriage during the lives of both parents. If this dissolu- tion had not taken place during the lives of both parents, the English Courts would recognize the marriage as valid, and, dis- regarding the authority or pretended authority of the Canons, confirm the property to the children. The marriages were voidable in the Spiritual Courts, but not void by the law of England. Things remained in this state till 1835, when Lord LTICD- immix introduced a bill upon the subject. His object was to benefit a single individual under the colour of a general principle. An English Marquis, now an English Duke, had married two sisters ; and the original bill, limiting suits in the Ecclesiastical Courts to short periods after the solemnization of such marriages, was drawn to cover his particular case, though it would extend to others. By some intrigue or subserviency to prejudice in the Upper House, the character of the bill was totally changed, by enacting, that all such existing marriages should be legalized up to the date of the act, but declaring them illegal in future. The Commons at first proposed to reject the clause affecting the future ; but that wretched system of yielding the conviction of what was right to some fancied expedient, which ultimately ruined the Whig Government and the powerful Reform party, induced the Lower House to submit to the Peers. The consequences have been most mischievous. The people, and many above the people, hear- ing of the original scope of the measure, and not understanding the actual change, supposed the questions respecting this class of marriages were set at rest ; and it is conceived by professional persons that more alliances of this kind have taken place than before. As the new law was opposed to practice and opinion, the middle and higher classes have disregarded it, or endeavoured to evade it by going to Scotland or to foreign countries to get married ; but as the legality of this proceeding is doubtful, both as regards the personal disqualification worked by the act, and the question of what the Courts might hold a sufficient domicile in a foreign country to enable English subjects to contract a binding matrimony, a fearful prospect of future litigation is opened up, with the bastardizing of families, and the transference of their property to remote kindred. The legal, social, and moral evils of the late alteration, are, how- ever, so clearly unfolded in the petitions of the London solicitors and some hundreds of the parochial clergy, presented, among many others, by Lord WHARNCLIFFE to the House of Lords, that it will be best to allow them to speak for themselves.

LONDON SOLICITORS.

a The effect of the existing law, which prohibits marriage within certain de- grees of affinity, admits of serious doubts as applied to such marriages solem- nized abroad ; some of our most eminent civilians and lawyers being of opinion that it works a personal disqualification between the parties which nothing can remove, others considering that domicile in a foreign country where such mar- riages are lawful removes the disability, and others again conceiving that the mere celebration of the marriage in such a country is sufficient.

"That your petitioners have reason to believe that numerous marriages of this kind, especially between widowers and their deceased wives' sisters, have been solemnized abroad since the passing of the Act 5th and 6th Will. IV. chap. 54.

That, in the opinion of your petitioners, such a state of the law is highly inexpedient being calculated to create doubts as to the legitimacy of children, to promote litigation among the nearest relatives, and to place the titles to nu- merous estates upon an insecure footing."

PAROCHIAL CLERGY.

"That, in the opinion of your petitioners, the existing law which prohibits marriage between a man and his deceased wife's sister is an inexpedient law, and ought to be repealed ; for the following reasons—

"1st, That there is no Divine command to be found in the Scriptures either directly or indirectly prohibiting such marriages. "2dly, That there is no consanguinity or kindred between the parties which makes such marriages undesirable in a physical point of view, or which dis- qualifies the parties according to any of the received notions oimankind upon such subjects.

" 3dly, That, judging from past experience, nothing is more natural than for a widower, who finds in his wife's sister congenial habits, feelings, and temper, to regard her as the most fitting substitute for the wife whom he has lost.

" 4thly, That, in the great majority of instances, no person is so well qualified to discharge the duties of the deceased mother towards her surviving children as the sister, who is already endeared to them by the ties of affection and kindred, who in most instances has acquired, as their aunt, a certain degree of influence over them, and who can therefore exercise the necessary control of a stepmother, without incurring the odium or exciting the jealousy which her authority, however leniently exercised by a stranger, usually creates. "5thly, That, as your petitioners are informed, great numbers of persons among the higher and middling classes of society have resorted to foreign countries to celebrate such marriages; thus proving that the existence of the prohibition, as applied to marriages celebrated here, has no moral effect in dis- countenancing the practice with parties whose circumstances enable them to evade the law.

"flthly, That the validity of such marriages, though celebrated in a foreign country, is, in the opinion of many eminent lawyers, at least doubtful; so that each separate example is calculated to disturb the future peace of families, by raising up a doubtful offspring, and exposing them to all the miseries of litiga- tion with their nearest relatives.

" 7thly, That among the poorer classes, a prohibition so directly at variance with natural impulses has a direct immoral tendency, by enabling the unprin- cipled to contract such marriages, and then to repudiate their wives when it outs their purpose ; and your petitioners have reason to believe that these effects have already been extensively produced."

In the Apostle Paul's sense of " straightness," the history and effects of the law are however, of less consequence (save inas- much as the effects indicate public opinion) than the true reasons upon the case ; and these are of three kinds—Physical, Moral, and Scriptural.

The physical reason for prohibiting marriages between persons closely allied in blood is well known : the offspring degenerate physically, or intellectually, or both ; and if such intermarriage; or "breeding in and in," be rigidly kept up for several genera- tions, physiologists tell us the family would be extinct, either from the barrenness of the nuptials or the premature death of the off- spring. It was these intermarriages among each other, to preserve the pedigree unblemished, which rendered the Spanish grandees so insignificant in person' and both the Austrian and Bourbon branches of the Spanish Royal Family so ugly or so unhuman in countenance and so feeble in mind; and which is said to have touched the intellects of other royal families. And the same rule obtains among brutes. Important as are these considerations, the law of England, as we shall show presently, pays a very insufficient regard to them • pretty much leaving the marriage of collateral relations by blood, beyond the first degree to be regulated by pub- lic opinion and private prudence. But, be the physical considera- tions affecting marriage what they may, they do not apply to the present proposal, which only deals with connexions in affinity, not relations by blood. The moral reasons forbidding marriages between near connex- ions have been succinctly stated by HURLS- " The natural reason why marriages in certain degrees is prohibited by the civil laws, and condemned by the moral sentiments of all nations, is derived from men's care to preserve purity of manners ; while they reflect, that ifs commerce of love were authorized between near relations, the frequent oppor- tunities of intimate conversation, especially during early youth, would intro- duce an universal dissoluteness and corruption. But as the customs of countries vary considerably, and open an intercourse more or less restrained between different families, or between the several members of the same family, we find that the moral precept, varying with its cause, is susceptible, without any in- convenience, of very different latitude in the several ages and nations of the world. The extreme delicacy of the Greeks permitted no communication be- tween persons of different sexes, except where they lived under the same roof; and even the apartments of a stepmother and her daughters were almost as much shut up against visits from the husband's sons as against those from any stranger or more distant relation : hence, in that nation it was lawful for a man to marry not only his niece, but his half-sister by the father : a liberty un- known to the Romans and other nations, where a more open intercourse MU authorized between the sexes." • To this rationale of marriage the case of collateral affinity extends in a very limited degree. As a general rule, the evil anticipated by Hussz from "the opportunities of intimate conversation in early youth" cannot apply ; and the familiarity in after years varies consi- derably with the taste, habits, station in life, and all the other circum- stances which influence familiar intercourse. Some persons are more intimate with friends than they are with blood relations, much less with connexions in affinity, and possess greater opportunities of the apprehended seduction without using it or thinking about it. The argument that a wife might be jealous of her sister's succeeding her, would, according to the disposition of the wife and the habits of the husband, apply to every other woman of her acquaintance ; and it is clearly a matter beyond the reach of legislation. Nor do we think that legalizing the marriage with the sister of a deceased wife would either tend to embitter the happiness or to injure the morals of society. As Lord WRARNCLIFFE observed in his speech last session, "that there are men who would set at nought all proper considerations on this subject and seduce the sister of their wife is undoubted." Whether, in the present state of opinion respecting connexions of this nature, or in any state of opinion that may be likely to arise, the law of marriage would re- strain such persons, may be questionable. It is indeed probable, that the apprehended seduction would be more likely- to be at- tempted when the seducer could refuse to marry his victim, (sup- posing the eventual death of the wife,) by pleading its legal impos- sibility. On the other hand, the advantage of permitting such marriages for the sake of the children is undeniable. No human being, excepting perhaps their grandmothers, can entertain finch feelings of affection towards them ; no one is likely to have had such knowledge of their characters, or to have acquired such in- fluence over them, or to be so well fitted to fulfil the duties of a mother towards them. The practice of nearly the whole of Christendom on this subject, though of no consequence at all if English opinion were opposed to it, is of great weight when that opinion supports them ; as is the practice of America espe- cially, where such marriages are not only legal but held to be the most proper one that a widower can make. We say of Christendom ; for in the greater part of the Protestant countries this class of marriages are allowed; and though nominally prohibited in Roman Catholic communities, a dispensation can be obtained for a suffi- cient consideration.

But all objections that apply to marriages of affinity, apply with much greater force to marriages of blood relations ; which the law permits in the case of cousins. If, as is said, the happiness of a wife would be disturbed by seeing a possible successor in her sister, what horrible jealousies ought to arise when she sees a pos- sible successor in every female cousin of her husband, and with several of whom he is probably on more free and familiar terms than with any sister of her own ? The woman who marries her

• History of England—Henry the Eighth.

cousin (our gracious Queen for example) must be in a still more terrible plight ; for that man has shown that he does not regard the tie of consanguinity, or the physiological results which it is al- leged may flow from it. Every cousin, her husband's or her own, must, according to these reasoners, be regarded with a jaun- diced eye. The alleged immorality that may flow from permitting a widower to marry his late wife's sister, applies with greater force to the case of cousins. The sisters of a wife must be few, but the name of cousin is legion ; with some at least the husband is probably on terms of almost brotherly familiarity : whilst the strongest objection put by the philosopher, "frequent opportuni- ties of intimate conversation during early youth," before conse- quences are estimated or passions constrained, applies in the fullest extent. It is possible that evil may result from this state of the law ; it is possible that illicit intercourse may occasionally take place between cousins, though we have heard of none : but it may safely be affirmed that the evil is not so great as to affect the general morality or the general happiness, and the risk is far less in the case of the bill before us. The fact is, that opinion is the true check in cases of this kind. If a man's connexions will not visit or receive him in consequence of his marriage or other sexual connexion, the mass of mankind will be restrained : single indivi- duals, no legislation can ever reach. We might as well forbid the accumulation of wealth lest it should tempt somebody to steal.

There remain the Scriptural reasons ; and if Scripture forbids such marriages, there is an end of the question, But, so far as Scripture speaks at all, its voice is in favour of them. We do not believe them to be even censured under the Christian dispensa- tion: if they are, produce the text. That they are not absolutely contrary to what HENRY'S statute called "God's law," is evident from the example of Jacob, who not only married two sisters, but married the second whilst the first was living. The Mosaic dispen- tuition only regulates the "polygamy of the patriarchs " ; assuming that Leviticus, chapter xviii. applies to marriage—" Neither shalt

thou take a wife to her sister to vex her, besides the other in her lifetime." If the string of prohibitions in this chapter is to be held of any authority now, it authorizes plurality of wives. Still, every definite argument based on Scripture, or nature, or opinion, is entitled to respect ; for feeling, or prejudice itself in favour of morality, is not to be hastily or cavalierly put aside. But we must confess that we have as yet met with no reason of this definite kind, nor indeed with any thing beyond canting appeals to the authority of the Universal Church." Except in questions of criticism or history, this is an appeal which all discreet persons will avoid. Scriptural authority is something definite, and reason applied to the circumstances of the time is something intelligible ; but what or where is this Universal Church of "fifteen centuries"? Shall we find it in the Popes of Rome ? or must we go as far as the Patriarchs of Constantinople ? can we fix it in the acts of the canonized Saints, or in the lucubrations of the primitive Fathers? or must we seek it in the Canons or the Councils? In the mean time, we know this—that there is no crime however bloody, no cruelty however revolting, and no indecency however gross, that may not be brought forward on the authority of this "Universal Church."

Yet although we believe, that neither Scripture, nor reason, nor morality, nor physical considerations, are opposed to Lord FRANCIS EGERTON'S proposed change, we should never think of mooting the subject with opinion against it, or even without some definite purpose. In the case before us, the nature of opinion is shown not only by the many marriages that take place in evasion of the law, and the reception of those persons in society, but by the number of petitions in favour of the bill. That a change is needful to settle the law and remove uncertainty in titles, is shown by the petition of the solicitors : and this uncertainty may affect more than the offspring of such marriages. Under the old law, it was suffi- cient that a marriage was not dissolved by the Ecclesiastical Courts : under the Act of 1835, it may in future raise a doubt whether a title is marketable against a repenting purchaser, unless the seller can show that any predecessor who married twice since 1835 did not marry two sisters. At the same time, it is a question whether it might not be advisable to look to the main purpose of the bill and relinquish all beyond it. We perfectly comprehend the principle of permitting marriages in all cases of collateral affinity ; and it gives a broader and more general air to the bill. Still it may perhaps be doubted whether any practical evil is to be remedied by this ex- tension—which we cannot answer; and whether public opinion is so readily prepared to go along with it—which we doubt. Many who would have no objections to a widower marrying his wife's 4-ter would be strongly opposed to a man marrying his brother's widow, &c.; partly from a physical difference in the sexes, which this is not a place to follow out, partly from some instinctive feeling, that cannot be traced or explained. But, as we said before, even a feeling that cannot be accounted for is to be respected on a subject of this nature, unless when made contemptible by cant. .