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The Pamphlet Collection of Sir Robert Stout: Volume 12

Brief Remarks, &c

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Brief Remarks, &c.

My Dear

I Am obliged to you for Sir W. Page Wood's "Vindication of the Law prohibiting Marriage with a Deceased Wife's Sister." I observe that twice he does me the honour directly to notice my letter to the Bishop of Lichfield. Once in a tone somewhat supercilious. I appear, he says, "to have been in a great passion with him for his speech." If the Vice Chancellor means that for an answer, I am content. As an imputation, it is not impossible to bear it. As an argument, it is not particularly convincing. In the few brief remarks I intend to make on this "Vindication," I am sorry that my respect for truth will, I am afraid, make me appear to him to be in "a great passion" still.

The Vice-Chancellor says, that in charging his speech and the Bishop of Oxford's with some shew of intolerance, I do not appear to have reflected on the possibility of good feeling extinguishing discussion on some subjects. He is sure I would not "desire discussion on some of the subjects mooted by Anacharsis Clootz." I am grateful for the compliment. But this subject had been already mooted, and certainly not by Anacharsis Clootz. Neither the Vice-Chancellor nor the Bishop of Oxford exhibited the slightest disinclination to discuss it vigorously themselves. They only wished discussion by others "to be put down." That, I intimated, had some savour of the spirit of the Inquisition. It strikes me in the same light now.

The Vice-Chancellor is amused because I "complain that he asserts such marriages were always void by the law of England," and because I mistook a question of English law for a question of Scotch law. I made no such mistake. I did not say a word about Scotch law. My observation,—which he gives, though not faithfully,—was, that to cite a decision disinheriting a child of such a marriage of property in Scotland, whilst the decision must have been reversed if the property had been in England, so important a distinction being quite unnoticed, was calculated to page 4 mislead ordinary readers; the question being—not whether these marriages were void or voidable—good or bad—but whether they were ever virtually permitted in England before 1835. I am of that opinion still.

I do not attempt to follow the Vice-Chancellor through all that his letters touch upon; but there are some salient points, either errors of argument or errors of fact, which offer themselves prominently to remark. I shall begin with his first division—his argument on social principles.

He lays great stress on the fact, that the time during which "the existing system of law prevailed dates, at least, from the conversion of Ethelbert in the 6th century," and "for 1200 years has governed the domestic habits of every family in the kingdom." These assertions are very free, but very incorrect. The time during which the existing system of law has prevailed dates not from king Ethelbert, but from the 31st day of August, 1835, precisely. Before that day a very different system prevailed. But whatever law of prohibition may have existed at any time before, it was not made by Ethelbert, as might be supposed. It was not an English law. It was brought from Rome, which gradually usurped ecclesiastical jurisdiction here. It could not govern the habits of "every family in the kingdom" before it was established amongst them; but a large part of the kingdom was pagan long after Ethelbert. That part was largely converted by native missions. The Saxon Bishops for centuries withstood the pretensions of the Roman See. It was not till after the Norman Conquest that the usurpation was complete: so that the Vice-Chancellor's twelve centuries must be considerably reduced. Moreover, for a considerable portion of the time, if not all, it was held to be prohibited, not as contrary to the Word of God, but as an ecclesiastical regulation. As the Vice-Chancellor well observes, "no doubt corruptions had crept in, by which the prohibitions had been extended beyond the Levitical degrees." During Henry the Eighth's time, Rome (and Henry himself, until he saw Ann Bulleyn) held it to be, as it does now, valid on dispensation. I pass the fluctuations of the law in the days of Henry, Mary, and Elizabeth. But I beg to point out that, whenever and however this law came to England,—in the same way, by the same authority, in like degree, and on the same grounds of imputed incest and nearness of kin, the marriage of cousins was prohibited in England. That law "governed the domestic habits of every family in the kingdom," according to the Vice-Chancellor's views, for 900 years. Will he affirm then that this latter prohibition, founded also on a false imputation of incest, ought not to have been removed? Or does prescription for wrong require precisely twelve centuries, and 900 years are within time page 5 of limitation? if venerable antiquity did not prevent truth from prevailing in the one case, neither ought it in the other. Essential untruth cannot be maintained on any principles, even if it had prevailed for twice 1200 years. Henry VIII. wished to marry Ann Bulleyn's cousin. Such a marriage was then invalid with-out a dispensation. Henry made his own dispensation. Marriage with cousins was made valid. If we suppose that Henry VIII. instead of wishing to repudiate his brother's widow and to marry his wife's cousin, had wished to repudiate the cousin and marry the brother's widow, is there any sane man who believes that we should not then have had marriage with cousins declared incestuous and unscriptural, and marriage with a brother's widow agreeable to the Word of God?

The Vice-Chancellor insists that the Act of 1835 did not make the marriages good. The title is "An Act to render certain marriages valid." It will be said the title is no part of the Act. It shows, nevertheless, that the intention of the Legislature was to make them good, which is not unimportant to the question. The preamble, however, is part of the Act. It recites that such marriages are voidable only by the Ecclesiastical Court. That is, according to ordinary use of language, they cannot be made void except by decree of the Ecclesiastical Court; that without such decree they did stand good. It proceeds, "hereafter all such marriages shall be ipso facto void, and not merely voidable." Words could not more plainly intimate that they were not void, but merely might be made void. Then it enacts that all such marriages of affinity shall not hereafter be annulled for that cause. There must necessarily then have been something to annul. There was a marriage: the Act pronounces it not void, but merely liable to be made void. It then declares it shall not be made void. A marriage must either be void, or voidable, or valid. The Act declares it was not void, and shall no longer be voidable. It must then be valid, as the Legislature intended. By law, each party could claim conjugal rights. They could not be separated. If that is not valid marriage, what can it be? The Act recites that it is unreasonable that the state and condition of children of such marriages should remain unsettled during so long a period as the lifetime of both parents. How did it effect that object? All the Legislature thought requisite to establish at once the legitimacy of the children was, simply to enact that the Ecclesiastical Court should not meddle with the marriage. It was thus made good; or we come to the inevitable conclusion that children of illicit unions without any marriage may be legitimate, and inherit. If the object had been only (as the Vice-Chancellor asserts) to make the children secure of the inheritance without making the mar- page 6 riage good, the Act would have simply declared the children entitled to inherit notwithstanding the marriage should he called in question in the Ecclesiastical Court. Let us, by way of an ad absurdum, look at the wording of the Act on the Vice-Chancellor's view: "Whereas two affines have contracted a marriage, which is void and null! and it is voidable only by sentence of the Ecclesiastical Court: We therefore enact that, being now absolutely void and null, it shall not be annulled!"

The Vice-Chancellor deals in a most remarkable manner with the Act of 1835. He always calls it "Lord Lyndhurst's Act," thus seeming to give to the prohibitory clause, which was contrary to that noble Lord's views entirely, a false support from the name of Lyndhurst. He seems forgetful that the very House of Commons which passed the Act was opposed in principle to the prohibitory clause, first rejects it, and only let it pass at last as a temporary measure, and that on any other supposition it would not have passed at all. He commits himself to the astonishing assertion that, from the beginning to the end of that Act, "no "difference is made between the marriage with a wife's sister and "a man's own sister or mother"—that, "after the Act, the children "of any such odious union then existing would have been freed "for ever from the possibility of being declared illegitimate, though "both parents were alive." This he writes with the Act of Parliament before him—an Act of only four short clauses, little more than a page in length—and he does it with the utmost deliberation; for he numbers it formally as one in a list of four distinct Propositions which he lays down as being beyond dispute, and he repeats it several times. And what is the truth? Here are the very words of the Act, in open and direct contradiction to every word and syllabic of this remarkable assertion, "that all prior" marriages between persons being within the prohibited degrees of " affinity shall not hereafter be annulled," "provided that nothing" hereinbefore enacted shall affect marriages between persons being "within the degrees of consanguinity." It declares that marriages of affinity shall not be annulled. In express words it refuses that protection to marriages of consanguinity. It carefully provides against "the children of any such odious union being freed "from the possibility of being declared illegitimate," in most explicit terms. Yet we are confidently told that the Act makes no difference. This appears to me, I own, as painful an instance of the length of hazardous statement to which an estimable man may be betrayed, by permitting his feelings to overcloud his judgment, as can well be; met with.

The Vice-Chancellor ventures to assert "some positive propositions of his own." They are six in number. That they are positive there is no doubt. Their value beyond that I will proceed to test by examining them seriatim.

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I. "The breaking of a law by a large number of persons is no ground for its repeal."

  • That is only partial truth. It depends upon the nature of the law; whether it be just or unjust. The breaking by a large number of priests of the law which forbad their marriage as contrary to the Word of God, was an excellent and conclusive ground for its repeal. That is a case in point.

II. "The alleged fact that a law can be broken without the offenders losing caste (as it is termed), in such a delicate matter as that which is the subject of our inquiry, would not, if true, afford ground for its repeal."

  • Alone it would not. But it would be a good ground amongst others. It shews that the law is very widely felt to be oppressive and unjust. It rebuts the oftrepeated assertion, that there is no difference between an own sister and a wife's sister. It proves that the instinctive feelings of nature acknowledge a very wide difference.

III. "The fact that the prohibition of the given description of union, has for centuries been part only of a series of prohibitions of other unions, such as that of father and daughter, brother and sister, uncle and niece, which last union at present no one is bold enough to advocate, affords in itself a chief ground for not tampering with the feelings that have sprung up, as to what is or is not an incestuous union."

  • Which amounts to this—that call any union incestuous, however untruly, for a given length of time, and the untruth must be persisted in for ever. It mistakenly affirms that error, if of respectable antiquity, cannot be corrected without weakening truths with which it has been improperly associated. It asserts that right and wrong depend on time not on truth. It amounts in effect to a claim of Right of Prescription for falsehood.

IV. "The desire for a relaxation of laws relating to intercourse between the sexes has occurred, historically, in times of general relaxation of the morals of the society where that desire is experienced."

  • That relaxed morals desire relaxed restraint, is a mere truism. If by the phrase, "laws relating to intercourse between the sexes," Marriage Laws are intended, then it is not true "historically" that desire of relaxation has occurred in times of general relaxation of the morals of society. There is a very widespread desire for a relaxation of this particular law now. But the morals of society are not nearly so relaxed as in the days of Charles II. or George II., when no such desire was expressed.
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V. "The relaxation once commenced must necessarily lead to increased appetency for unions still left out of reach."

  • This necessity certainly is not obvious; and as certainly it has not been proved, either physically or philosophically. Marriage with cousins was for ages prohibited by exactly the same authority, and precisely the same moral and religious pretexts as the marriage in question. The relaxation of that prohibition to marry cousins was not followed necessarily by an "increased appetency" amongst mankind to marry their sisters. No desire for "unions still out of reach" has, in consequence of the prohibition at present in debate being relaxed in other countries, shown itself "necessarily" or otherwise.

VI. "The happiness of the many would, by any change of the law, be sacrificed to the gratification of a morbid craving on the part of a few."

  • Such loose, unbalanced statements must "necessarily" shock the spirit of moderation. The many, the vast majority, are ignorant of, and indifferent to the subject. Their happiness would not be in the slightest degree affected. Those who seek a change from conviction of its propriety, are,—as the petitions distinctly shew—the "many" The opponents are "the few" To talk of that conviction as "morbid craving" seems little better than morbid nonsense. Or, if by "morbid craving," those who desire to contract such unions are indicated, the absurdity deepens. No body of men are affected, as soon as they marry, with a diseased craving to marry their wives' sisters in general; any more than all who enter the Law are seized with a diseased craving to filch the Great Seal. The desire is determined altogether by circumstances, precisely as in other unions. By the relaxation, the happiness of a number of excellent people would be established. No one's would be diminished; except so far as a very few might be briefly annoyed, that the violence of prejudice had not borne down the voice of argument and experience, which pronounces these unions free from objection on social, moral, or religious grounds.

The Vice-Chancellor's resolute and unquenchable determination to connect facility of divorce with marriage with a deceased wife's sister, and both with all relaxation of morals, amounts almost to monomania. "What do our divorce courts show of the moral state of our people on the subject of marriage?" "He is appalled at the extent of the disease." "In Germany, and, I believe, in most states of America, where these marriages are allowed, divorce is almost at will." Supposing for a moment it were so, that would page 9 not prove that we should have divorce at will here. Fully to substantiate such an argument he must prove that there is no instance where divorce at will did not follow the relaxation of this prohibition. He asserts much. He proves nothing. The cases in our new Divorce Court (which Court he assisted to found) are the arrear of sin for a whole generation. There are deep thinking men who are surprised, not that they are so many, but that they are not more. Every year, I believe, the instances are fewer. But what are we to think of the reasoning here? These immoralities now revealed cannot have been owing to a Court of divorce, for they arose before there was such a Court. They cannot have been owing to permission to marry a deceased wife's sister, for they arose under absolute prohibition. And if, leaving the Vice-Chancellor's assertion, we come to fact: what is the truth respecting Germany and America? In Catholic Germany this marriage is allowed with dispensation, but divorce is not allowed at all. In Protestant Germany all allow this marriage; but none allow unlimited divorce, except Prussia. Whilst in America, if the Vice-Chancellor had but consulted Chancellor Kent's Commentaries he would have found, that in not one of the States is divorce permitted with facility; that they require an Act of the Legislature, or sentence of a Court, and, happily, in one or two a "Decree in Chancery," which last he will, I am sure, allow is sufficient security for deliberation. In most, adultery is the only cause allowed; in some, great cruelty and habitual desertion are added to adultery. But if all that the Vice-Chancellor alleges of America had been true, instead of untrue, what reliance could be placed in such a question on the conclusions of a mind, which in countries where domestic slavery is an institution, where scientific breeding of human cattle for the market is a calling, can pass by elements of moral corruption so hideous, and see the source of all evil only in marriage with a deceased wife's sister?

The Vice-Chancellor gives us in the Appendix "an interesting "letter from a clergyman of South Carolina on these nearly-connected questions of the selection of one of the prohibited degrees "for relaxation and the facility of divorce." It is interesting, no doubt;—particularly because it overthrows all that the Vice-Chancellor asserts. It tells us, certainly, of a worldly woman who was made miserable in her decline by the affectionate intercourse between her equally worldly husband and an attractive sister of hers. On the other hand, it allows that such marriages have been "advised by dying wives; and one joined the hands of her husband and sister over her own dying bed." The first instance of such a marriage, it tells us, was celebrated by a Bishop after careful deliberation with another Bishop. To his own mind they are revolting; but not only do people thus mar- page 10 ried "stand well with society, but clergymen of good reputation formed such connexions, and Bishops have officiated at them." I think, then, we may fairly take the testimony of the Bishops, clergy, society, and dying wives, that these marriages produce good, not evil, against this gentleman's dislike, and the flirtation of a worldly husband with an attractive sister-in-law.

The Vice-Chancellor mourns justly the evils anywhere arising from too great facility of divorce; but he fails entirely anywhere to connect that with marriage with a deceased wife's sister. And it must be a relief to him, though fatal to his assertions, that in South Carolina itself, his own chosen instance, divorce is allowed only for adultery, and then only by Act of the Legislature; and, though marriage with sisters-in-law is common and much approved, not a single instance of divorce has been known. On the other hand, a recent case in the Rolls Court discloses a very different state of things. A certain Mrs. Dolphin, residing abroad, entertaining a liberal desire to put away her husband and marry a Frenchman, was advised that there was one Country where her object might be easily effected, after a residence there of forty days. And that country was Scotland. There accordingly she went, and was accommodated with a Divorce under circumstances of disgusting collusion and of appalling flagitiousness. Yet Scotland "rejects these marriages with abhorrence." If then I felt myself at liberty to adopt the Vice-Chancellor's line of argument, and assume an indissoluble connection between facility of Divorce and the state of Law on this subject, I might justly say to him, look at Scotland and the reputable Dolphins, and see what comes of prohibiting marriage with a deceased Wife's Sister.

This I must say: if we consider the great weight in the argument which the Vice-Chancellor lays on facility of Divorce inevitably following relaxed prohibition, and that in the two countries he specially instances, the truth is, that strict prohibition is accompanied with facility of Divorce; and relaxed prohibition with Divorce jealously guarded and as yet unknown—if facts are arguments and not the mere puppets of discussion—then, the assumed facts on which the Vice-Chancellor founds his opinion being exactly opposite to what is true, we may reasonably expect him to modify his opinion.

Enough for one letter; I will devote another to the Scriptural argument in the Vice-Chancellor's second letter.

I remain,

Yours sincerely,

Hugh Ford Bacon.