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 I E> RARY 
 OF THE 
 U N IVLR5ITY 
 or ILLINOIS
 
 ^y^ cy,i>,fUif- /^t>^ 
 
 A VINDICATION 
 
 OF THE 
 
 LAW PROHIBITING MARRIAGE 
 
 DECEASED WIFE'S SISTER.
 
 EIVINGTONS 
 
 IConljon . . . . • . . . . . . . Waterloo Place 
 
 ©xfortf Siglt Street 
 
 ©amliriljgt . . . : . . . . . . . . Trinity Street
 
 A VINDICATION 
 
 OF TllK 
 
 LAW PROHIBITING MARRIAGE 
 
 WITH A 
 
 DECEASED WIFE'S SISTER : 
 
 I. ON SOCIAL PRINCIPLES; 
 11. ON SCRIPTURE PRINCIPLES: 
 
 In ^too fetters, 
 
 ADDRESSED TO THE 
 
 DEAN OF WESTMINSTER 
 
 (now aechbishop of dublix), 
 chairman of the marriage law defence association. 
 
 By Sir WM. PAGE WOOD 
 
 (now lord hatherlet). 
 
 RIVINGTONS, 
 
 ILonUon, (©jifortJ, anti CamftnUs?. 
 
 1869.
 
 " It is good also not to try experiments in States except the 
 necessity be urgent, or the utility evident ; and well to beware 
 that it be the reformation that draweth on the change, and not 
 the desire of change that pretendeth the reformation." 
 
 Bacon's Essays.
 
 LETTER I. 
 
 THE LAW VINDICATED ON SOCIAL 
 PRINCIPLES. 
 
 Dear Mr. Dean, 
 
 On tlie 27tli of February, 1850, I discliarged 
 a very painful duty by taking part in the debate on 
 tlie 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 su£S.cient reasons. 
 
 From the tone and temper evinced by some mem- 
 bers 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 Scrip tm^al 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 higlier prin-
 
 Z LETTER I. 
 
 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 im- 
 pressing 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 pro- 
 posed in 1850 ^ad, in 1859, not only passed the 
 House of Commons, but had been rejected by a ma- 
 jority 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
 
 ON SOCIAL PEINCIPLES. 6 
 
 Association, over which you preside, and on the 1st 
 February, 1860, I was requested to move the first 
 resolution at a pubhc meeting convened by that 
 Society at WiUis'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 argu- 
 ments. But I have continued to observe such re- 
 markable ignorance of the former and existing state 
 of our law upon the subject, such persevering mis- 
 representation (I vnll not caU it wilful) of the effect 
 of Lord Lyndhurst's Act of 1835, such bhndness 
 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 conse- 
 quences of its alteration. The Lord Chancellor, 
 some very eminent retired Judges, and other dis- 
 tinguished members of my own profession, are 
 to b,e found enrolled as members of our Associa- 
 tion, and though they will not be responsible
 
 4 LETTER I. 
 
 for any errors of law on my part, yet it is a 
 satisfaction to me to know that I assert no legal pro- 
 positions, but tliose wliicli I can venture to submit 
 even to tlieir 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 argu- 
 ments 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 autho- 
 ritatively on the subject. 
 
 Some of the supporters of the proposed change 
 have, with an unfairness which always implies con- 
 scious weakness in the advocate, adopted the vulgar 
 course of nicknaming their opponents. "The oppo- 
 sition to the 'Wife's Sister's Marriage Bill' (it has 
 been said) is a High Church, or Puseyite oppo- 
 sition." 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 es- 
 tablished Kirk in Scotland, has ever been suspected 
 of ultra High Church tendencies, yet all support the
 
 ON SOCIAL PRINCIPLES. 6 
 
 views of the Marriage Law Defence Association. 
 Our opponents have printed and paraded the Scrip- 
 tural expositions of Cardinal Wiseman, and of Jewish 
 Talmudists (the upholders of tradition amongst the 
 Jews), as favom^able 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 
 rehgiously 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 exist- 
 ing 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.
 
 6 LETTER I. 
 
 The following propositions will be found to be 
 beyond dispute. 
 
 I. 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. 
 
 II. 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. Con- 
 sequently 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. 
 
 III. 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.
 
 ON SOCIAL PRINCIPLES. 7 
 
 TV, That Lord Lynclhurst'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 ques- 
 tion, 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 YIII. had been so dealt with 
 by statute. The mistake arose in the manner de- 
 scribed 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) 
 
 ^ I observed that two of our more respectable papers, the 
 " Globe " and " Daily News," in commenting on the proceed- 
 ings at Willis's Rooms, fell into this common blunder, and 
 much of their reasoning was built on this false assumption.
 
 8 LETTEK I. 
 
 married his deceased wife's sister aud had by. her a 
 son. This marriage was not declared void during 
 the Hfetime of those who had contracted it, and 
 could not, owing to the pecuharity of the juris- 
 diction of our Ecclesiastical Court, to which I have 
 referred, be declared void afterwards, so that a 
 child could not, in England, be afterwards j^rot'et? to 
 be illegitimate. It was therefore contended that the 
 marriage was a valid marriage, and that the child 
 could inherit landin 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 Eules 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 ah 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 possi- 
 bility 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
 
 ON SOCIAL PKINCIPLES. Vf 
 
 tlie rules of the Ecclesiastical Court (that Coiu't 
 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 Lich- 
 field 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 remark- 
 able 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 in- 
 herited 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
 
 10 LETTER I. 
 
 the reverend gentleman's accusations of " partial 
 views of evidence," " incorrectness of statement," 
 " impotence of argument," further than by asking, 
 " Tantaene animis coelestibus irge ?" 
 
 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. Living- 
 stone, 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-
 
 ON SOCIAL PRINCIPLES. 11 
 
 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 sup- 
 posed 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
 
 12 LETTER I. 
 
 Ecclesiastical Court could not declare tlie marriage 
 void after tlie death of either party, but it could 
 punish the survivor for incest. And so it could in 
 the case of parties whose marriages were prohi- 
 bited 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 Eeformation 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 Eomish sys- 
 tem 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 im- 
 putation of most disgraceful incest. The Church 
 of Rome had indeed adopted a course which led to
 
 ON SOCIAL PRINCIPLES. 13 
 
 great abuse. Tliey extended the proliibited degrees 
 far be^^ond 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. YIII. 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 Yaughan'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, how- 
 ever, 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.
 
 14 LETTER I. 
 
 The social consequences of sucli 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 inter- 
 course, going far beyond that which is allowed be- 
 tween 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 
 
 ^ See an interesting communication from an American 
 Clergyman in tlie Appendix to my second letter on the total 
 change of social relationship introduced by such a change of 
 the law as is now advocated.
 
 ON SOCIAL PlilXCIPLES. 15 
 
 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 mar- 
 riages, as being all equally open to raoral objection. 
 In this country, till very lately, and in Scotland to 
 the present hour, this repugnance has been an all 
 but universal feehng. 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 uni- 
 versal 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 pro- 
 duced by the prevalence of such a state of the law for 
 such a period; I have thrown, I think, a heavy
 
 16 LETTEE I. 
 
 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 pur- 
 pose, 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 re- 
 stricted the liberty of marriage, and certain bar- 
 barous 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
 
 ON SOCIAL PEINCIPLES. 17 
 
 by heathen authors as instances of depraved affec- 
 tion. 
 
 I can take my stand then on social gi-ounds, 
 independently of revelation, in saying that human 
 laws have in all ages restricted marriage. I say 
 they have rightly done so. What, indeed, is mar- 
 riage itself but a restriction of promiscuous inter- 
 course ? 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 Enghshman, at present at least, 
 will uphold promiscuous intercourse, or even poly- 
 gamy ^ The home, the undivided affection of the 
 wife, the children, not too numerous for the exer- 
 cise of the affections, nor the offspring of so many 
 mothers as to create family dissension, are felt to 
 justify the restraint independently of higher mo- 
 tives. The restriction then of marriage itself, as 
 was beautifully said by the Bishop of Oxford at the 
 
 ^ Mr. Bacon, in his pamphlet before referred to, commenting 
 on an objection raised by the Bishop of Oxford, and insisted 
 on also by myself, to the raising of such social questions as the 
 present, says that such remarks savour of the Inquisition. He 
 does not appear to have reflected on the possibility of good 
 feeUng extinguishing discussion on some subjects. I do not 
 believe that the House of Commons would tolerate a debate on 
 the lawfulness of marriage with a man's own sister, and they 
 would stop it without recourse to the methods of the Inqui- 
 sition. Mr. Bacon, I am sure, would not desire discussion on 
 some of the subjects mooted by Anacharsis Clootz. I believe 
 that much mischief has already arisen from attempts to with- 
 draw oniB case from the well-defined list of prohibited marriages. 
 
 C
 
 18 LETTER I. 
 
 late meeting at Willis's Rooms, tliougli in form a 
 prohibition, is in reality a blessing. It is a fence 
 round tlie home, and all that that word contains. 
 But the same foresight, human only if you will, 
 which has discountenanced promiscuous inter- 
 course 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 regu- 
 lations, 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 imions 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 re- 
 strained marriage as to the step-mother and certain 
 other relationships, though only by affinity.
 
 ON SOCIAL PRINCIPLES. 19 
 
 2. The promoters of tlie 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 apphes more espe- 
 cially 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 abohtion. Now to repeal 
 the law necessarily involves the total abohtion 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 in- 
 timacy of a brother and sister, in which case the 
 idea or desire of a marriage union will never pre- 
 sent itself to a well-regulated mind ; or it will be 
 
 c 2
 
 20 LETTER I. 
 
 an intimacy as close, but of a totally different 
 character, in wliicli case it will be liiglily perilous 
 to botli ; for wliat 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 happi- 
 ness; 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 hard- 
 ship 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. Eoebuck 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
 
 ON SOCIAL PEINCIPLES. 21 
 
 compete witli tliem is rather, if any tiling, an im- 
 pediment to lier doing so; and wliy too is tlie 
 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 think- 
 ing of their children. Few men who marry a 
 second time think so piuch 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 off- 
 spring. 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 as- 
 sumption. It can be demonstrated to be utterly 
 
 '' In the extraordinary evidence collected on the inquiry 
 into the existing state of the law by the professional exer- 
 tions of the able firm of Crowder and Maynard, and laid before 
 Her Majesty's Commissioners, there is, among the honourable 
 exceptions to the general rule of first breaking the law and 
 then finding fault with it, one case of a gentleman, who, in 
 answer to question 919 as to what feeling restrained him from 
 asking his sister-in-law to live in his house, says, " I should say 
 it was partly from the feeling that it was a delicate position to 
 place a young female in to Avhom I was attached." This un- 
 happy and perverted attachment thus deprived him of the com- 
 fort that thousands enjoy.
 
 22 LETTER I. 
 
 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, there- 
 fore, Httle 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 pro- 
 moters of all the agitation on this subject, who 
 retained the respectable firm of Crowder and May- 
 nard to bring their case before the Royal Commis- 
 sion of 1847. That evidence alleged that there 
 were 1648 cases of marriages either had, orpre- 
 vented (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 indi- 
 viduals constituting the classes themselves. 
 
 I myself institiited an inquiry amongst the poor 
 of the parishes of St. Margaret and St. John, West- 
 minster, which contain more than 60,000 inhabit- 
 ants, 40,000 (at least) of the poorer class. I
 
 ON SOCIAL PRINCIPLES. 23 
 
 found one case only, and in tliat case the man was 
 "looked down upon," as my witness ascertained, 
 tlie general feeling being very strong against sucli a 
 marriage. I stated tliis in the House of Commons, 
 in 1850, and a City Missionary of the same district 
 wrote to the '* Times" to say I had made a mis- 
 statement, for he had found two more cases ! This 
 was the result of our several, and, I believe, toge- 
 ther very complete researches. 
 
 You will find many witnesses before the Com- 
 missioners dealing in vague generalities about the 
 number of the poor who wish to make such mar- 
 riages. Every body well knows the worthless- 
 ness of such generahties. A Clergyman wrote to 
 me, in 1850, and said he knew amongst the poor 
 many such instances, and that I was quite mis- 
 taken. I answered, " Send me the exact number 
 you know, with an assurance that the case is 
 within your oivn hioioledge, and I will state the 
 facts in an appendix to my speech which I am 
 printing." I received no answer. 
 
 And now, sir, I have really gone through every 
 alleged ground for the change. Assume, if you 
 will, 5000 instead of 1648 persons who have so 
 married, or desire to marry, I should not admit 
 this as a ground for altering the condition of every 
 other family in the kingdom \ 
 
 ^ The evidence before the Commissioners of Inquiry of 1847 
 was analyzed, and its ntter worthlessness exposed, in a very 
 able letter of Alexander Beresford Hope, Esq., to Sir Robert 
 Harry Inglis, published by Ridgway in 1849, which every one
 
 24 LETTER I. 
 
 But I come to graver questions, and I venture 
 to assert some positive propositions of my own : — 
 
 I. Tlie breaking of a law by a large number of 
 persons is no ground for its repeal. 
 
 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. 
 
 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 tamper- 
 ing with the feelings that have sprung up as 
 to Avhat is or is not an incestuous union. 
 
 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. 
 
 V. The relaxation once commenced must neces- 
 sarily lead to increased appetency for unions 
 still left out of reach. 
 
 VI. The happiness of the many would by any 
 
 slioiild peruse who wishes to give a serious thought to the 
 subject before lie aids by his vote so mischievous an alteration 
 of our social system.
 
 ON SOCIAL PRINCIPLES. 25 
 
 change of the law be sacrificed to the gratifi- 
 cation of a morbid craving on the part of the 
 few. 
 My first proposition will be probably conceded. 
 The statistics of crime would otherwise furnish 
 ground for the repeal of every law. If the statistics 
 of unions deemed by all (at present) to be inces- 
 tuous (such as brother and sister, uncle and niece), 
 had been collected by Messrs. Crowder and May- 
 nard, they would in the case of the poor, at least, 
 have been found far more abundant than those of 
 the marriages in question : one clergyman sent to 
 our Society a statement that he had found in a 
 large district but three cases of the marriages in 
 question, and ten cases of brother and sister hving 
 together. This is no doubt owing to the wretched 
 arrangements of the poor man's dwelling ; a subject 
 to which every philanthropist should give his 
 attention ^ 
 
 My second proposition is, that the alleged fact 
 that persons do not lose by breaking the law affords 
 no ground for its repeal, and it rests on this 
 
 ^ It is not, happily, a common occurrence for educated people 
 in this country to talk so coolly of breaking the law as an 
 anonymous Solicitor before the Commissioners, who in answer 
 to question 874 says, " I had a communication with two or three 
 Clergymen, and the expression of one in particular was, that it 
 was neither inconsistent with the divine law nor any other law, 
 because he repudiated, very much as many gentlemen have done, 
 the late Act ! " Pickpockets repudiate Acts of Parliament, but 
 it is not usual for Clergymen or Solicitors to do so.
 
 26 LETTER I. 
 
 ground. They do not lose caste for many tilings 
 whicli no moralist, however lax, would sanction. 
 It is grossly immoral, I conceive, in the existing 
 $tate of the law, for a man to induce a woman to 
 place herself in such a position that a large pro- 
 portion of society will withdraw themselves from 
 her company, and that her children must be ille- 
 gitimate. It is still more immoral if he commit 
 perjury (as those married to a wife's sister by licence 
 must have done), in order to make such an illegal 
 marriage. If people think this respectable, what 
 will they not think so ? Indeed, in the evidence I 
 have before referred to, Mr. Thorburn, in answer 
 to question 123, states the case of '' a man of 
 wealth who keeps his carriage, and lives avoivedly, 
 in fact, with his deceased ivife^s sister, whom he 
 would gladly marry but for the uncertain state of 
 the law. He is much respected, and hears a high 
 character as an excellent man and a good citizen; 
 and though he is living in open concubinage, his 
 neighbours sympathize with him, and in a manner 
 excuse him, because of the restraint of an inexpedient 
 law r^ If this witness had but recollected his 
 Latin Grammar, he would have known a heathen's 
 notion of a good citizen and moral man, even in 
 Rome's degenerate days, to be of a far higher 
 stamp of morality : 
 
 " Vir bonus est quis ? 
 Qui consulta patrum, qui leges juraque servat." 
 
 It appears to me I can hardly say more to show
 
 ON SOCIAL PRINCIPLES. 27 
 
 tlie wortli of connivance by respectable people at 
 law-breaking, as evidence of a propriety of altering 
 the laws. Neither marriage effected by perjury, 
 nor illicit concubinage with the deceased wife's 
 sister, seem to shock such respectability. This, 
 indeed, proves my fourth proposition and my 
 second at once. 
 
 My third proposition depends on the simple 
 operation of the law of association. There has 
 hitherto been no distinction between the marriage 
 in question and other prohibited marriages. The 
 same law forbids a marriage with a man's own 
 sister, or his aunt, or niece, and with his wife's 
 sister. Lord Lyndhurst's (the most recent Act) 
 draws no line of distinction whatever. If this case 
 is to be an open question, why not necessarily all 
 the others ? In truth this circumstance, to some 
 extent, has been pointed out, as I shall have oc- 
 casion to show, by Lord John Eussell in debate. 
 
 Fourthly, on the tendency of mankind in an age 
 of relaxed morality to demand relaxations in mar- 
 riage restrictions, I have, more than once, quoted 
 the well-known case of the Emperor Claudius 
 seeking for a bill to enable him to marry his own 
 niece. Any one may read what Tacitus says of such 
 a proof of degenerate morality. But the speech of 
 the Emperor's satellite to the senate is worthy of 
 again being cited : " Nova nobis in fratrum filias 
 conjugia, sed aliis gentibus solemnia, nee ulla lege 
 prohibita, et sobrinarum, diu ignorata, tempore
 
 28 LErrER i. 
 
 addito percrebuisse : morem accommodari jproitt 
 conducat, et fore lioc quoque in his quaB mox usur- 
 pentur." I may paraphrase the argument thus : 
 " Well, our people don't much like these marriages, 
 our ancestors had prejudices on the subject, but 
 look at Germany and America, they are very com- 
 mon there. Our manners must be adjusted to the 
 spirit of the age. People will soon get used to it." 
 Claudius married his niece, and she poisoned him ! 
 But as to the relaxation of morals, let me point 
 out an analogy pregnant with warning. Divorces 
 had been almost unknown during the Koman re- 
 public, but had under the Emperors become rife. 
 What do our own Divorce Courts show of the moral 
 state of our people on the subject of marriage ? I 
 was a member of the Divorce Commission. I do 
 not regret our recommendation, that what has been 
 conceded to the rich should be allowed to the poor. 
 It is not the remedy I regret, I conceive divorce for 
 adultery to be justified by God's law, but I am 
 appalled at the extent of the disease. We are told 
 to look at Germany and America on the wife's 
 sister question. Now in Germany, and I believe 
 in most of the states of America where these mar- 
 riages are allowed, divorce is allowed almost at 
 will. Our Commission resolved that nothing but 
 adultery ought to afford a ground for divorce. 
 Will any one cognizant of either American or 
 German society tell you that morals are not there 
 fearfully relaxed on the question of marriage ? I
 
 ON SOCIAL PRINCIPLES. 29 
 
 insert in the Appendix to my second letter extracts 
 fi'om an interesting letter of a clergyman of South 
 Carolina on the subject of these two nearly con- 
 nected questions, the selection of one of the pro- 
 hibited degrees for relaxation, and the facility of 
 divorce. I have given the extracts fully and fairly, 
 whether they appear in any way to press for or 
 against my view. The whole result is to my mind 
 clear as to the result of the relaxation. In either 
 of those two countries the wife can scarcely invite 
 her sister-in-law to her home, without the possible 
 prospect of her immediate succession to her as its 
 mistress. At present in our country, even should 
 the law be altered, the sister-in-law could only 
 look forward to the reversion. True it is, that 
 nearly every country, that has relaxed the pro- 
 hibition as to the wife's sister, has also relaxed the 
 law of divorce ; and we may easily see that argu- 
 ments used to promote the one relaxation lead at 
 once to the others. Why is there so much adul- 
 tery, it will be said ? And it will be answered, 
 because a man is tied for Hfe to his wife. Yet I 
 think England is not yet prepared to see gentlemen 
 meeting two or three women, who have been suc- 
 cessively their wives, in society ; and such is the 
 case in Germany and the United States of America. 
 Nor are we prepared to see a fastidious gentleman 
 making the experiment, as to which of two or 
 three sisters he may prefer in succession as his 
 wife. Yet few can say that this will not be the
 
 30 LETTER I. 
 
 next demand of liberty. It is a liberty wliicli exists 
 in Germany, and in several of the United States. 
 
 There is in truth no species of moral relaxation 
 so narrowly to be watched, as that which affects 
 the intercourse between the sexes. And it has been 
 thought a bad sign of the times when " Is habitus 
 animorum fuit, ut pessimum facinus auderent 
 pauci, plures vellent, omnes paterentur." And 
 this applies far more to moral than political 
 breaking of a law. You will find many men 
 breaking the moral law, that should regulate their 
 conduct towards women, who will neither cheat 
 you, nor rob you — nay, they may even be (I have 
 known such cases) kind husbands and fathers, — 
 but they are not moral men, nor in any but the 
 most vulgar sense respectable — a word, however, 
 which appears now simply to mean rich. 
 
 But, fifthly, I say that there will be no hope of 
 retracing our steps, or arresting this relaxation of 
 morals when once begun, — " Vestigia nulla retror- 
 sum." You break through the settled law as to 
 incest. When are you to stop in picking and 
 choosing your exceptions? Lord John Russell, 
 who to my deep regret supported the proposed 
 change, said with his usual straightforward fi:*ank- 
 ness the law would be imperfect if it stopped at the 
 wife's sister. It seems to me that brothers-in-law 
 and brothers' widows, and uncles and nieces, as in 
 Spain, must at least be allowed the same liberty ! 
 
 Lastly, I ask, why is the happiness of every
 
 ON SOCIAL PRINCIPLES. 31 
 
 home to be sacrificed to this caprice, for really it 
 is no more, of a few, who are determined to marry 
 some one person put out of their reach by law ? 
 Why are all men to lose their sisters-in-law because 
 some disclaim that relationship ? Why are all 
 sisters-in-law now living with widowed brothers- 
 in-law to be ordered either to quit or marry them? 
 Above all, why is every man in the country who is 
 free from the monomania of desiring a forbidden 
 union to feel that his home is broken up by the 
 snapping of the first link of moral restraint, to 
 fear lest (as the next step) his own brother should 
 desire his daughter in marriage, or look even to 
 the reversion of his wife ? Why is distrust to be 
 sown where perfect love, frank familiarity, sweet 
 and pure affection were before unrestrained ? 
 Why, lastly, is England to be selected for this 
 blighting curse upon her homes ? Ireland will 
 have none of these relaxations ; Scotland rejects 
 them with abhorrence ^ 
 
 I have taken mere heathen ground in this letter. 
 But by all the joys of that tie of real brotherhood 
 which binds us to the sister of our wife ; by all the 
 aspirations of a high and holy morality, be the 
 man's rehgious faith what it may; by all the 
 horrors of an ever deepening, hopeless sinking 
 
 ^ The Bill last passed by the Commons would render it pos- 
 sible for an Irish or Scotch gentleman to have two wives at 
 once ; one, his wife's sister, at Holyhead or Carlisle, the other, 
 an Irish or Scottish wife, for his English wife would in Ireland 
 or Scotland be a concubine only.
 
 32 LETTER I. 
 
 into the abyss of cold cynical indifference as to the 
 purity of our national Hfe, I implore all men to aid 
 us in resisting the proposed change of the home 
 life of England. 
 
 A friend smiled when I said, " I would rather 
 hear of the landing of 300,000 French at Dover 
 than of the passing of this Bill." It was no ex- 
 aggeration of my feelings. We can, and should, 
 repel an external foe ; but inward decay and rotten- 
 ness will destroy us, sap our morals, and our only 
 life worth having is at an end. Rome was burnt 
 by the Gauls, but the Roman senate was un- 
 appalled. Hannibal caused her power to shrink 
 to the dimensions of her walls, but a Roman nobly 
 bought at full price the ground on which he had 
 encamped. In the reign of Claudius, on the con- 
 trary, she seemed to command the known world, 
 but that decree by which he was permitted to 
 impugn her moral code showed that she was totter- 
 ino- to her fall. And most firmly do I believe, that 
 the first breach in the social laws of England that 
 govern marriage will be a clear indication of a 
 moral failure, and a fall graver than any that 
 ancient or modern history has recorded. 
 Believe me. 
 
 Dear Mr. Dean, 
 
 Yours most faithfully, 
 W. P. WOOD. 
 
 February, 1861.
 
 LETTER II. 
 
 THE LAW VINDICATED ON SCRIPTURAL 
 PRINCIPLES. 
 
 But if any man seem to be contentious, we have no such 
 custom, neither the churches of God." — 1 CoR. xi. 16. 
 
 Dear Mr. Dean, 
 
 The first of these Letters was commenced during 
 the late Session of Parhament, in the expectation 
 that a Bill would be introduced for the purpose of 
 altering the law as regards marriage within the 
 prohibited degrees ; but when, to my great satis- 
 faction, I found the attempt was not to be made, 
 I gladly postponed the preparation of my defence 
 of our social institutions. In the mean time, the 
 Eey. Dr. M'Caul has published a Letter addressed 
 to myself, which commences as follows : " Your 
 recently-published Speech on the Marriage Law, 
 though obviously not intended as an answer to 
 ' The Ancient Interpretation of Leviticus xviii. 
 18,' is yet considered by many, who share your 
 views, as the best and most satisfactory answer to 
 that pamphlet." 
 
 Certainly, Dr. M'Caul does me no more than 
 
 D
 
 34 LETTEPx II. 
 
 justice, when lie says that my speech was not in- 
 tended as any answer to liis learned pamphlet re- 
 ferred to in the same passage. A great portion of 
 what I said was directed to establishing the pro- 
 position, which I hope I have by my first letter to 
 you, sir, established; viz. that though the Book of 
 Leviticus, or indeed all revealed law, had been 
 withheld from us, yet, if we had, as pagans, for 
 1200 years, defined the degrees of relationship 
 beyond which alone our society would recognize 
 marriage as lawful, it would be a fearful social 
 revolution to tamper with the definition that had 
 so regulated the social intercourse of every family 
 of the kingdom, and to begin to select cases in 
 which the law should be relaxed. 
 
 The only part of my address in which I came in 
 contact with the arguments of Dr. M'Caul (in his 
 first pamphlet) was of course that which dealt with 
 the Scriptural sanction of our existing marriage 
 code. With that part of the subject, however, I 
 intend to deal more fully than timxe would allow in 
 a speech, in my present letter. I would rather 
 address you, sir, than Dr. M'Caul, for two reasons : 
 firstly, I am not inclined naturally to controversy, 
 and I am less likely to fall into the snare that besets 
 all controversial writers, viz. a certain irritability 
 of temper towards the opponent, if I avoid engaging 
 in any direct conflict ; and, secondly, I really find 
 (as I shall presently show) that nearly the whole of 
 Dr. M' Caul's very learned labours are directed to a
 
 ON SCRIPTURAL PRINCIPLES. 35 
 
 point whicli, though important, is but a fragment of 
 the great rehgious question at issue, namely, to the 
 mere translation of a single verse of the marriage 
 code contained in the 18tli chapter of Leviticus. 
 If that verse be translated one way, the unlaw- 
 fulness of the marriages in question would not be 
 doubted ; if it be translated in another way, then, 
 at the most, a doubt only is created; and my 
 argument throughout, in the speech referred to by 
 Dr. M'Caul, was, that if but a doubt existed, the 
 argument for abiding by the existing civil law, 
 sanctioned as it is by the Church of Christ having 
 at all times held the marriage in question to be 
 contrary to " God's law," must prevail. That point 
 of my argument I shall proceed to fortify in this 
 letter. I trust Dr. M'Caul will feel that I am offer- 
 ing no discourtesy to him in taking this course. 
 I had no previous intimation of his intention to 
 address a letter to me before its publication ; and 
 I may fairly assume, therefore, that it is a form 
 adopted by him as convenient for a general reply 
 to the notice taken by others, much more than by 
 myself, of his first able pamphlet. 
 
 Let me, however, as a justification of my remark 
 with reference to the evil tendency of controversy, 
 quote, and leave to the consideration of Dr. M'Caul 
 in his calmer moments, the following passages of 
 his letter to me. After endeavouring to point out 
 some discrepancies of view in the various opponents 
 of a change of the law, as regards the interpretation 
 
 D 2
 
 36 LETTER II. 
 
 of the particular verse to wliich Dr. M'Caul mainly 
 directs liis attention, lie says in page 2, " If tlie 
 Marriage Law Defence Association be riglit, Dr. 
 Pusey's interpretation must be rejected as erro- 
 neous. Zealous partisans may tliink tliat tlie end 
 sanctifies tlie means, and that tlie circulation of a 
 little perversion of tbe truth is no great matter, if 
 it tend to the triumph of the good cause. But 
 devout and thoughtful Christians will think dif- 
 ferently, and feel that the diffusion of a false inter- 
 pretation, however good the intentions, is a serious 
 evil, and involves a responsibility which they would 
 shrink from incurring." 
 
 I trust, sir, that neither you nor I may ever have 
 any occasion to be ashamed of the support we have 
 given to the Marriage Law Defence Association. 
 That Association was formed to counteract the 
 proceedings of some person or persons who have 
 never yet ventured to give his or their name or 
 names to the public, but who is or are indefatigable 
 in exertion and purse in attempting to overthrow 
 the existing law. Some proceedings of this anony- 
 mous opponent or opponents I have referred to in 
 my first letter. I do not believe that Dr. M'Caul 
 has seriously intended to accuse the large number 
 of Clergy and of Christian noblemen and gentle- 
 men who constitute the Marriage Law Defence 
 Association of "thinking that the end sanctifies 
 the means," or believing them to be less " devout 
 and thoughtful Christians " than himself. It would
 
 ON SCRIPTUEAL PRINCIPLES. 37 
 
 be absurd to suppose tliat every individual of our 
 numerous Association pledges himself on tlie one 
 hand to an unconditional acceptance of every 
 argument advanced in tlie publications wliich it 
 authorizes, or on the other hand accepts Dr. 
 Pusey's interpretation of Scripture contained in a 
 publication not circulated by the Association, any 
 more than that of Dr. M'Caul, as infallible. 
 
 Let me briefly re-state the arguments which I 
 offered on the occasion referred to by Dr. M'Caul, 
 with reference to the religious aspect of the ques- 
 tion. My propositions are the following : — 
 
 I. The code of prohibited unions contained in 
 the 18th chapter of Leviticus is binding on all 
 men, and is not limited in its apphcation to 
 the Hebrew people. 
 
 II. The general guiding rule is laid down in 
 verse 6 of that chapter, which prohibits ap- 
 proaching to any one that is " near of kin ^" 
 
 III. " J^earness of kin " is there immediately ex- 
 plained by several examples, none of which go 
 beyond the third degree, and such examples 
 include relationship by affinity and by con- 
 sanguinity without distinction. It will be 
 shown also, that some one example, at least, 
 is given of relationship within each of the 
 three degrees, except (for obvious reasons) 
 
 ^ I am indebted to a very able MS paper of the Rev. Canon 
 Woolcombe, of Exter, for the form in which I now state my 
 third and fourth propositions.
 
 38 LETTER 11. 
 
 that of great-grandparent to great-grand- 
 child. 
 ly. Til at the examples are so given as to lead 
 to a clear necessary inference, that the whole 
 class, within the same degree of relationship 
 as the particular example, is included in the 
 prohibition. 
 y. That the Church of Christ from the earliest 
 period so interpreted the Code, and held the 
 marriage with the wife's sister to be forbidden 
 by God's law; and in particular that our 
 branch jof the Church, in England (including 
 always in that word the laity as well as clergy), 
 has from the first so held. 
 yi. That the translation of a particular verse 
 of the Code, viz. the 18th, even when trans- 
 lated after Dr. M'Caul's vievf, has not inter- 
 fered vntli the above construction by the 
 Church, or by any of the early writers, of the 
 entire Code. 
 I. My first proposition, that the Code is binding 
 on all nations, is readily proved by the following 
 considerations. The Code is introduced by the 
 preamble (verse 3) : " After the doings of the land 
 of Egypt, wherein ye dwelt, shall ye not do : and 
 after the doings of the land of Canaan, whither I 
 bring you, shall ye not do : neither shall ye walk in 
 their ordinances." Then follow the enactments 
 of the Code, after which occur these words (vv. 
 24, 25) : '' Defile not ye yourselves in any of these
 
 ON SCRIPTUEAL PRINCIPLES. o9 
 
 things : for in all these the nations are defiled which 
 I cast out before yon ; and the land is defiled : 
 therefore I do visit the iniquity thereof upon it, 
 and the land itself vomiteth out her inhabitants." 
 In the 28th verse similar language is used. Now 
 the Canaanites could not be under any special law 
 peculiar to the Israelites, for that is a contradic- 
 tion in terms ; yet the Canaanites were punished 
 for the filthiness of these prohibited unions, and for 
 the other abominations mentioned in the chapter. 
 Therefore the prohibition must affect all men, and 
 not merely the Israelites. The introductory third 
 verse, which I have cited, shows clearly that the 
 24th and 25tli verses cannot be restricted to the 
 verses immediately preceding them, for the whole 
 Code is introduced and followed by a denunciation 
 of practices opposed to its provisions. 
 
 II. and III. My second and third propositions 
 are patent on the perusal of the chapter — viz. that 
 nnions mth those who are " near of kin " are pro- 
 hibited (verse 6); and that examples are given of 
 what is meant by " near of kin," which do not 
 extend beyond the third degree ; but which, at the 
 same time, include cases of affinity and of consan- 
 guinity indifferently, and include some case of every 
 possible relationship in such degree, with the single 
 exception of great-grandparent and great-grand- 
 child, as to whom, of course, no prohibition would 
 be necessary after man's life had been shortened to 
 its present ordinary duration. The simple and true
 
 4^0 LETTEE II. 
 
 conclusion I believe to be that of the early Fathers, 
 and also of the early expositors in our Reformed 
 Church, viz. that husband and wife become one 
 flesh, and the nearness of kin therefore to one is 
 nearness of kin to the other. It may be worth 
 while to make this point a little clearer. 
 
 Let A. B. be the individual who is desirous of 
 consulting the Code. The following Table repre- 
 sents his possible relations of the first, second, 
 and third degrees, respectively. 
 
 A. B.'s Great-grandparent (male or female). 
 
 A. B.'s Grandparent (male or female). 
 
 \ 
 
 I I 
 
 A. B.'s Parent (male or female). Parent's brother 
 
 or sister (i. e.) 
 Uncle or Aunt to 
 A. B. 
 
 A. B. A. B.'s Brother or Sister. 
 
 I I 
 
 A. B.'s Child. A. B.'s Nephew or Niece. 
 
 A. B.'s Grandchild. 
 
 I 
 A. B.'s Great-grandchild. 
 
 I I 
 
 The degrees are estimated by counting either 
 upwards or downwards from A. B. in his direct 
 line ; and as to collaterals by counting up to the 
 common ancestors and down again to A. B. Thus 
 you count from the nephew to the brother, from 
 the brother to the father, and from the father to 
 A. B., making three degrees. Or again, from the
 
 ON SCRlPTLmAL PRINCIPLES. 41 
 
 uncle to the grandfather, from the grandfather to 
 the father, from the father to A. B., making three 
 degrees. 
 
 Let us then show how the degrees are dealt 
 with by examples. 
 
 In the first degree we find mother and son dealt 
 with by verse 7, then this is extended to the case 
 of affinity, viz. a step-mother, by verse 8, then to 
 the wife's mother by verse 17 (though that verse 
 supposes the mother to have been first taken as 
 wife). The case of a father and his son's wife is 
 specified in verse 15. But there is no express 
 mention of the case of father and daughter ; for 
 verse 17, though it would, perhaps, involve this 
 case, is clearly directed to the case of a step-father 
 and step-daughter. 
 
 As to the relationship in the second degree, or 
 that of A. B.'s grandparents and his brother and 
 sister respectively, the case of grandfather and 
 srranddauo-hter is dealt with in ver. 10. In verse 
 
 o o 
 
 17 the prohibition is extended to the wife's 
 granddaughter. There is no mention of the con- 
 verse prohibition of marriage between grandson 
 and grandmother, or between a husband and his 
 wife's grandmother. The case of brother and sister, 
 either of the whole or half blood, is provided for by 
 verse 9, which seems indeed to include the case 
 mentioned in verse 11; a point not unworthy of 
 notice, as the prohibition is extended to the 
 brother's wife by verse 16; and there is no direct
 
 42 LETHEU II. 
 
 mention of the wife's sister, unless it be in verse 
 18, the interpretation of which has been so much 
 disputed. 
 
 As to relations in the third degree, viz. great- 
 grandparent, and uncle and aunt, and the common 
 cases of great-grandchild, nephew and niece, I 
 have observed that great-grandparent and great- 
 grandchild, probably from physical unlikelihood, 
 are not dealt with. The marriage of a nephew 
 with his paternal or maternal aunt is prohibited 
 in vv. 12 and 13, and is extended to an uncle's 
 wife by verse 14. There is no mention of the 
 converse case of the uncle and niece, whether by 
 consanguinity or affinity. 
 
 Tlie result of the examination is this : — "We find 
 in the first degree express prohibition of every 
 possible case between those related in that degree, 
 either by consanguinity or by affinity, except the 
 case of father and daughter, which is very in- 
 directly met by verse 17. We find in the second 
 degree, an express prohibition of union with a 
 granddaughter, either by consanguinity or by 
 affinity ; but no express prohibition of the con- 
 verse case of union with a grandmother. 
 
 Yie find express prohibition of union between 
 brother and sister of the whole or half blood, ^vith 
 a repetition as to a father's wife's daughter be- 
 gotten by the father (in verse 11). We find an 
 express prohibition of marriage with a brother's 
 wife, but no express prohibition of union with a 
 wife's sister, unless verse 18 be interpreted as a
 
 ON SCRIPTURAL PRINCIPLES. 48 
 
 special and limited prohibition of that particular 
 case. We have further to observe that the mar- 
 riage with the wife's granddaughter, which is a 
 relationship by affinity of the second degree, is 
 prohibited in verse 17 on the very ground of her 
 being "a near relation" of his wife, and such a union 
 is said to be u'ichedness, whilst the union with the 
 wife's sister (related in the same degree of nearness 
 as a grandchild) is supposed by our opponents to 
 be sanctioned by the verse next immediately 
 following. 
 
 In the third degree vfe find no prohibition as to 
 great-grandparents and great-grandchildren; but 
 we find express prohibition of marriage between 
 nephew and his paternal or maternal aunt, and 
 between nephew and uncle's wife, whilst nothing 
 is said as to uncle and niece, whether the rela- 
 tionship be by affinity or consanguinity, or even as 
 to a man and his wife's aunt. 
 
 It appears to me that our opponents must either 
 take the course of refusing to recognize any but 
 direct prohibition, which would leave the cases 
 perhaj)S of father and daughter, and certainly of 
 the grandmother and of the niece, open amongst 
 relations by consanguinity, and the cases of the 
 wife's sister and of the aunt as regards relationship 
 by affinity, whilst, nevertheless, by verse 17 union 
 with the wife's grandmother and grandchild is 
 prohibited; or they must admit the inference to 
 the extent for which I contend, but then say that 
 verse 18 affords a special exemption. In the first
 
 44 LETTER II. 
 
 case the absurdity is involved of holding the general 
 prohibition in verse 6, as to union between those 
 who are " near of kin " (even confining it to con- 
 sanguinity), to extend to a marriage of aunt and 
 nephew, but not to that of uncle and niece, so that 
 the relationship of the aunt to her nephew is to be 
 held nearer than that of the uncle to his niece. 
 If extended to affinity, then the wife's sister must 
 be taken by them to be less near than the wife's 
 grandchild or grandmother. In the other alter- 
 native, "I again say, that which has been my argu- 
 ment from the first, you require a very clear 
 permission to overthrow a series of strict enact- 
 ments, all levelled against the iniquity of approach- 
 ing to those who are *' near of kin " to yourself or 
 to your wife, and including prohibitions against 
 union with relations, either by consanguinity or 
 affinity, further removed than the wife's sister. 
 If the permission be not clearly made out, either 
 by a clear translation or a clear exposition of the 
 18th verse, then great is the hazard of those who 
 would risk the denunciations contained in the 27th 
 and 28th verses ^ 
 
 ^ I do not think it necessary to dwell on the direction (con- 
 tained in another portion of Scripture) to many a deceased 
 brother's wife, where the brother has left no child. Dr. 
 M'Caul does not contend, nor would any sound expositor con- 
 tend, that a distinct prohibition is revoked by an exception, 
 beyond the extent of the excepted case. Now the prohibition 
 as to the brother's wife is happily clear from all cavil, and the 
 injunction in the excepted case is enforced by penalties, as if 
 it were foreseen that it would be reluctantly and with repug- 
 nance observed.
 
 ON SCRIPTTTEAL PEINCIPLES. 45 
 
 It will be observed I speak of two classes of 
 doubts — first, as to translation; secondly, as to 
 exposition and effect. Dr. M'Caul conceives tliat 
 lie lias triumpliantly proved liis case, when lie lias 
 accumnlated authorities to prove the translation 
 given in the text of our authorized version to be 
 preferable to that given in the margin. He cites 
 passages from the early Fathers, especially dwell- 
 ing on Jerome and Augustine, to prove that they 
 interpreted the verse as he does, viz. as prohibiting 
 marriage with a wife's sister during the hfe of the 
 wife; and thence conceives that such a translation 
 can only be expounded as giving direct permission 
 to marry the wife's sister after the decease of the 
 wife. 
 
 Now I shall certainly not follow^ Dr. M' Caul's 
 example, by attributing that bad faith to him 
 which he so unpleasantly and uncharitably im- 
 putes to his opponents, when he imagines he has 
 shown them to be illogical in their reasoning, or 
 inaccurate in their history ^ ; but I do say that a 
 most complete mystification of the argument of his 
 opponents, and misrepresentation of its effect, has 
 been the result of Dr. M' Caul's mixing together 
 the questions of translation and exposition. For 
 those ancient writers, and many of the modern 
 
 ^ See besides the passage before cited as to " zealous partisans 
 circulaticg a little perversion of Scripture that the good cause 
 may triumph," his statement as to Mr. Baddely insinuating 
 without directly stating what is contrary to fact, page 9 of his 
 letter to myself.
 
 46 LETTER II. 
 
 authors wlio agree with Dr. M'Caul in his trans- 
 lation, nevertheless concur with us in holding the 
 marriage in question to be forbidden by the Levi- 
 tical Code, as will appear more fully hereafter. 
 
 Dr. M^Caul, in page 5, rather ingeniously lays 
 hold of the interpretation of the 18th verse as a 
 prohibition of polygamy, and says that all who so 
 interpret it, " and infer that on the death of the 
 first wife a second marriage is lawful, help to esta- 
 blish his third point, the inference from the words 
 in her lifetime, as an obvious and legitimate con- 
 clusion." The fallacy here is so obvious, that I 
 am surprised it did not occur to Dr. M'Caul that 
 there are no such persons as he mentions. Those 
 who read the 18th verse as a prohibition of poly- 
 gamy, do not infer any thing as to the lawfulness 
 of a second marriage after the first wife's death. 
 No such inference is necessary, because a second 
 marriage is nowhere forbidden. But the question 
 with Dr. M'Caul is, whether when we have proved 
 a prohibition in the preceding verses of the chapter 
 by the course of reasoning I have used, there can 
 be found a licence to marry within the prohibited 
 degrees in a verse that merely (even in his trans- 
 lation) prohibits a special kind of polygamy. It 
 will be seen as I proceed that this translation may 
 be granted to Dr. M'Caul, and has been assumed 
 by numerous authorities, who reject utterly the 
 inference he would draw from it. 
 
 That I may not misrepresent this singular blun-
 
 ON SCRIPTUEAL PRINCIPLES. 47 
 
 cler, I will quote from the Doctor's letter to myself 
 tlie following passage (page 49) : — " Moreover tliis 
 translation, ichicli is in truth an interpretation, has 
 become the public teaching of the whole Chmxh of 
 England and Ireland in all parts of the world. It 
 is the translation read in churches, and by the 
 translators intended to be read, and not the mar- 
 ginal version. It has remained undisturbed in its 
 place of honour for two centuries and a half, ac- 
 quiesced in by sovereign, clergy, and people, and 
 therefore appears to me to express more certainly 
 the mind of the whole English Church than the 
 99th Canon, which was never confirmed by Parlia- 
 ment. And this is one reason why I cannot re- 
 ceive your statement that the Church of England 
 always held, and still holds, that m^arriage with a 
 deceased wife's sister is unlawful. No doubt the 
 Anglo- Saxon Church received the law as laid down 
 by Gregory the Great. Wlien the English Church 
 lay prostrate at the feet of Rome it received Homan 
 Canon Law and all her prohibited degrees. But 
 the Eighth Henry's Acts of Parliament no more 
 represent the decision of the Church of England 
 than the counter Act of Philip and Mary or the 
 modern Act of 1835. Archbishop Parker's Table 
 of Prohibited Degrees was the act of one individual, 
 no more involving the judgment of the English 
 Church than Wliitgift's sanction of the Lambeth 
 Articles. The only authentic declaration of the 
 English Reformed Clergy is the 99th Canon of the
 
 48 LETTER II. 
 
 Convocation of tlie Province of Canterbury, 1603-4, 
 subsequently adopted by the Convocation of York, 
 but which never received the confirmation of the 
 laity in Parliament, not even in the Act of 1835. 
 Indeed, so far is that Act from confirming that 
 Canon, that it contradicts its main proposition by 
 legitimating already contracted marriages which 
 this Canon pronounces 'incestuous and not lawful 
 . . . and void from the beginning.' Against this 
 Canon of such partial authority is to be tveighed 
 the later declaration of the Church of England 
 contained in the authorized version of 1611, ac- 
 cepted by the whole Church, the sovereign, the 
 clergy, and the laity, and appointed to be read in 
 the public service.'^' 
 
 I think the above passage plainly shows that 
 Dr. M'Caul conceives the translation of the au- 
 thorized version to be conclusive in its exposition 
 (or as he terms it interpretation), and that he even 
 assigns such efficiency to this translation, as to 
 regard it (in the last sentence above quoted) in the 
 light of a repeal of the Canon of 1603-4, for one 
 does not otherwise see the force of his observation 
 that this " declaration of the Church of England " 
 has been accepted by the Clergy. The translation 
 of the Bible is, in other words, supposed in 1611 
 to have got rid, by a side-wind, of a solemn Canon 
 passed about eight years previously, and the King 
 and Parliament are taken to have acquiesced in 
 this ingenious contrivance.
 
 ON SCRIPTURAL PRINCIPLES. 49 
 
 Tlie above passage will be again referred to, in 
 respect of its most singular mistakes botli as to 
 our Ecclesiastical and our Civil Law. I shall tlien 
 sliow that our Civil Courts, in the time of Charles 
 II., held marriage with the wife's sister to be void, 
 on the very ground that it was within the Le^atical 
 degrees. But what I am at this moment concerned 
 with is the quiet assumption made by Dr. M'Caul, 
 that the translation which he advocates, and in 
 which he is doubtless supported by the authorized 
 version, and by many authorities ancient and 
 modern, at once settles the question of the law- 
 fulness of marriage with a deceased wife's sister. 
 Now so far is this from being the case, that 
 Dr. M'Caul has not been able to produce a single 
 Christian writer, prior to the Reformation, who has 
 intimated an expression even of doubt as to the 
 illegality of the marriage in question. He was 
 distinctly challenged to do this in a learned pam- 
 phlet, published by Dr. Pusey in 1860, called 
 '' God's Prohibition of the Marriao^e with a De- 
 ceased Wife's Sister not to be set aside by an In- 
 ference fi^om a Kestriction of Polygamy among the 
 Jews." Dr. M'Caul must have read this pamphlet, 
 for in page 17 of his letter to me he quotes with 
 approbation a passage from page 37 of the pam- 
 phlet. And almost immediately preceding the 
 passage quoted by Dr. M'Caul, viz. in page 36, 
 Dr. Pusey says, " But no Christian writer, I believe, 
 can be found for fifteen centuries (except that 
 
 E
 
 50 LETTER IT. 
 
 Diodorus mentioned by St. Basil) who had any 
 doubt that the marriage with the deceased wife's 
 sister was forbidden by the law of God." This 
 challenge Dr. M'Caul has not accepted, nor has he 
 made the attempt, which I believe would have been 
 a vain one, to find the least support from Christian 
 antiquity in favour of his inference from verse 18, 
 as distinguished from its translation. Yet this 
 surely was the very gist of the case. Because if 
 the received translation be proved to be correct, 
 and yet the inference derived from it, so far from 
 being clear (as it ought to be) in favour of a 
 licence to marry a deceased wife's sister, was never 
 recognized, nor the verse regarded as affording 
 such licence by the Church either before, or (as I 
 shall presently show, by the Church of England at 
 least) after the Reformation, then the whole of 
 Dr. M' Caul's learned argument for the translation 
 may be admitted by the opponents of a change in 
 the law of our Church, including in that term (as I 
 always do) the laity, without any fear of their inter- 
 pretation of Scripture being shaken. On the con- 
 trary. Dr. M'Caul, in fact, only makes his own case 
 the worse, when he proves (as he thinks) an all but 
 universal acceptation from the earhest times of his 
 translation, if there co-existed amongst Christians 
 an equally universal belief that the marriage in 
 question was nevertheless prohibited by God's law, 
 and if our own Ecclesiastical and Lay tribunals, 
 with his translation before them, still held the
 
 ON SCEIPTURAL PEINCIPLES. 51 
 
 marriage objected to to be within the Levitical 
 degrees. There is certainly a very feeble, though 
 I doubt not an honest attempt of Dr. M'Caul to 
 fasten on Augustine his own notion that his trans- 
 lation, by inference, settles the whole question. 
 In his letter to me, page 3, he says, " With regard 
 to Augustine it is plain from his words that he did 
 receive the inference. What he considers for- 
 bidden is, ' Sororem sorori superducere.'" He 
 then cites a passage from a different work of 
 Augustine where he says, *' Et nostris quidem 
 temporibus, ac more Eomano nee superducere 
 Hcet, ut amplius habeat quam unam viventem;" 
 and he adds this singular reasoning : "As Au- 
 gustine therefore beheved that to sujoerduce a 
 second wife, was to take a second wife whilst the 
 first was still alive, and that it was lawful (what- 
 ever he thought of the expediency) to have a 
 second wife when the first was dead, so when he 
 uses the same word respecting two sisters ' Sororem 
 sorori noluit superducere,' he means that it is 
 unlawful to have a second wife whilst the first is 
 li^dng, hut that tvhen the first is dead it is laivfulJ^ 
 The words in itahcs beg the whole question. The 
 argument is that the 18th verse, however trans- 
 lated, does not abrogate the law against marrying 
 those who are " near of kin" as contained in the 
 6th verse; and that an inferential permission is 
 not given to marry the wife's sister after the wife's 
 death, by a prohibition to marry her during the 
 
 E 2
 
 52 LETTEE II. 
 
 wife's lifetime. But Dr. M'Caul says that Au- 
 gustine must have held such an inference, because 
 he adopted the translation. Now it is well known 
 that Basil (in 375, if Dr. M'Caul wishes that to be 
 the date) adopted the translation (as Dr. M'Caul 
 triumphantly remarks), but wholly rejected the 
 inference, as our Church has since done. And 
 what possible ground can the fact of Augustine 
 adopting the translation afford for arguing that 
 he necessarily adopted Dr. M' Caul's inference ? 
 Surely his using the same word " superducere" to 
 express the same thing, when speaking of polygamy 
 generally, as when speaking of a prohibition of a 
 particular form of it, does not prove that he inferred 
 from that prohibition a licence to marry a wife's 
 sister after the wife's death. The lawfulness of a 
 second marriage, sim]plicitei\ being abundantly 
 recognized in Scripture, the prohibition of polygamy 
 simply left that right untouched. If Dr. M'Caul 
 could show that the Christian Church ever recog- 
 nized as lawfal a single marriage with a deceased 
 wife's sister, he would do something, but without 
 this his whole argument as to the translation of 
 the words rather leads to a contrary result ; for 
 the Church, though adopting (in that case) his 
 translation, yet rejects his inference as to its effect. 
 Having said so much on the confusion of the 
 argument as to translation, with the argument as 
 to exposition, and intending, as I do, to show that 
 the inferential permission to marry a wife's sister,
 
 ON SCRIPTURAL PRINCIPLES. 53 
 
 after the wife's death, has been uniformly rejected 
 by our Church, I need hardly add one word more 
 as to the translation itself. I will simply say that 
 a sect of the Jews, the Karaites, read the 18th 
 verse as meaning " thou shalt not add one wife to 
 another," — " a wife to her sister" being a common 
 Hebraism for adding one thing to another, even 
 as applied to inanimate things, and so translated 
 in every other passage (about thirty times) where 
 it occurs, and so rendered in our margin*. Many 
 learned men have taken the same view. I am 
 bound to do justice to Dr. M' Caul's research, and 
 to say that he has produced a powerful body of 
 evidence in favour of a contrary translation, and 
 if the matter rested here, and was concluded by 
 translation merely, then though a reverent man 
 might hesitate in a matter of such deep importance, 
 yet less scrupulous minds might be satisfied. 
 There remains, however, even then a question to 
 whom the words " in her lifetime " refer. If they 
 refer to the wife's sister, then it is an absolute 
 
 * The objection that Polygamy could not have been prohi- 
 bited because holy men of old had more than one wife at a 
 time, is not to my mind conclusive. Abraham, Isaac, and 
 Joseph had each but one wife at a time. The case of Abra- 
 ham's concubine Hagar was peculiar, and certainly not favour- 
 ably viewed either in the Old Testament, or by St. Paul in the 
 New. Jacob was tricked into his first marriage. Elkanah's 
 case was certainly one not attended with blessing. David and 
 Solomon openly transgressed the distinct law against the King's 
 multiplying wives. The subject, however, is too long for such 
 a publication as the present.
 
 54 LETTER II. 
 
 prohibition to marry the wife's sister during all 
 her (the sister's) lifetime, and I think Cranmer's 
 Bible, cited in Dr. M' Caul's letter to Mr. Lyall, 
 adopts that view ; but the translation is, after all, 
 a fragment only of the case, and therefore I hasten 
 to the second question, namely. Is the inference 
 from the 18th verse, however translated, clear as 
 a permission to marry the wife's sister after the 
 wife's death ? 
 
 Dr. M'Caul says that the Jews believed they 
 might contract such marriages, whilst the heathen 
 Romans were also allowed like liberty, therefore 
 the Christian opponents of such marriage are bound 
 to show any teaching of the Primitive Church to 
 the contrary of so established a custom. Address- 
 ing me (in page 6) he says, if in lack of JSTew 
 Testament evidence I could have begun with the 
 immediate followers of the Apostles, and continued 
 the chain of evidence, he would have accepted the 
 antiquity and catholicity of the evidence as demon- 
 strative of an Apostolical repeal of Leviticus xviii. 
 18. It will be observed that he assumes the verse 
 to be a conclusive permission. I am not quite sure 
 that I should go so far as Dr. M'Caul in my respect, 
 great though it be, for such evidence. I certainly 
 have never contended that less than absolute Scrip- 
 tural authority would repeal, or rather explain, a 
 clear text of Scripture. In my view of the subject 
 there is nothing to repeal but the 6th verse, which, 
 if it were to be repealed, would have been so by
 
 ON SCRIPTUEAL PRINCIPLES. 55 
 
 Scripture itself. But I ask liow, if Jews and 
 Heathens recognized such marriages as lawful, the 
 quiet acquiescence of the Christian world in the 
 conclusion that the 18th verse does not authorize 
 such marriages can be explained? I had said 
 that Basil, about 350, remonstrated against such a 
 perversion of the verse, and that we did not hear 
 of any earlier remonstrance before, because such a 
 marriage was not heard of amongst Christians. 
 I thought myself justified in saying this from 
 Basil's assertion that such marriages were against 
 custom. Dr. M'Caul attempts to confine that ex- 
 pression to some local custom. Why, he himself 
 reminds me of the Council of Eliberis in 305, and 
 tells me that St. Basil's letter was written in 375. 
 You have, therefore, a law of the Church seventy 
 years before, directed probably against Heathen 
 practices, passed, in a place far from Basil as west is 
 from east, on the same subject. Wlien Basil refers 
 to custom it is of course of general Christian custom, 
 as distinguished from Heathen customs — ^just as 
 St. Paul uses this identical word, when he says, 
 " If any man seem to be contentious, we have no 
 such custom, neither the churches of God \" I use 
 Basil as a loiiness of a pre-established custom. But 
 Dr. M'Caul reminds me further (and I thank him) of 
 the 19th Apostolic Canon, about a.d. 300, and the 
 decree of the Council of Neo-C^sarea in 314, on the 
 subject of marriage with a wife's brother. The 
 ' 1 Cor. xi. 16.
 
 5G I.ETTEE IT. 
 
 decree of the Emperor Constantius in 355 is also 
 remarkable evidence of tlie feeling of tlie early 
 Christians, for as soon as Christianity is established 
 wc find the Heathen practice is at once repealed. 
 Now I freely admit to Dr. M'Caul that if I were 
 advocating a repeal of God's law by the traditions 
 of men, I should be open to his argument " ad in- 
 vidiam," when he refers to superstitious notions 
 entertained at the same period, and asks me if I am 
 prepared to accept such superstitions. This is, 
 however, but an old fallacy. The interpretation of 
 Scripture (as distinguished from mere translation) 
 being the question, reference to ancient and con- 
 tinuous acceptance of a passage, or to ancient and 
 continuous practice, which indicate the sense attri- 
 buted to the passage, is most valuable. This Dr. 
 M'Caul allows, and indeed relies upon with regard 
 to his translation of the 18th verse. The circum- 
 stance that the same writings, or the practice of 
 the same age, afford evidence of superstitious 
 usages also, does not diminish the weight of their 
 evidence as to the fatt, whether Christians did or 
 did not hold the marriage with a deceased wife's 
 sister to be contrary to God's law. The fact that 
 the large majority of Christians from the time of 
 the Apostles down to the present time have 
 deduced the doctrine of the Trinity from Scripture 
 will remain an important fact, whether or not the 
 same Christians have from an early time held 
 ^^arious superstitious notions irreconcilable with
 
 ON SCRIPTURAL PRINCIPLES. 0/ 
 
 Scripture. Our Church does not accept any of 
 the Fathers as authorities overruhng Scripture, 
 but claims them as witnesses to what has been the 
 general assent of the Church from the time of the 
 Apostles with regard to the interpretation of Scrip- 
 ture. 
 
 The case, then, stands thus. We have, as early 
 as the commencement of the third century, direct 
 testimony that the customary practice of Christians 
 was against the marriage in question, though their 
 heathen relatives allowed them. We have the 
 custom of Christendom, I say, referred to by Basil 
 on this head ; and shortly before his testimony, and 
 almost as soon as Christianity had been firmly 
 estabhshed, we have a law of the Emperor Con- 
 stantius, which never would have been enacted had 
 not this Christian custom been well estabhshed 
 also. To say that Constantius was an Arian, is 
 an observation the force of which I confess myself 
 unable to appreciate. The question of incestuous 
 unions is a Scriptural and social question lying far 
 deeper than any differences of doctrine, however 
 important in themselves. It is, happily, not in 
 this country a Low Church or High Church ques- 
 tion. Such unions are abhorred in Scotland by 
 every denomination of Christians, and in our own 
 country by men of every division of opinion in 
 Church matters. 
 
 There is no Christian writer before the Refor- 
 mation who has been produced by Dr. M'Caul as
 
 58 LETTEE II. 
 
 supporting these marriages, notwithstanding many 
 writers favour his translation of the 18th verse of 
 Leviticus. 
 
 But how has the Church of England on this 
 subject interpreted Scripture ? Dr. M*Caul (in the 
 passage I have already cited) says, " No doubt the 
 Anglo-Saxon Church received the law as laid down 
 by Gregory the First. When the English Church 
 lay prostrate at the feet of Rome it received Eome's 
 Canon Law, and all her prohibited degrees." He 
 mil not, therefore, require me to prove that down 
 to the Reformation, at least, our Church regarded 
 the marriages in question as prohibited. In the 
 word "Church" I include, of course, the laity. 
 No doubt corruptions had crept in, by which the 
 prohibitions had been extended beyond the Levi- 
 tical degrees. It is to be feared this was done with 
 a view of augmenting the revenues of the Pope by 
 dispensations, but until the licence granted by the 
 infamous Alexander YI. to the King of Portugal to 
 marry a wife's sister, dispensations had never been 
 granted to authorize marriage within the Levitical 
 degrees. In Henry the Eighth's case all the foreign 
 Universities were unanimous in opinion as to the 
 unlawfulness hy GocTs Law of marriage with a 
 deceased brother's widow, and many of them dis- 
 tinguished between marriages forbidden by the law 
 of God, and those forbidden by the rule of the 
 Church. The real point of difl&culty in that case 
 was, whether or not the rule applied where there
 
 ON SCEIPTURAL PRINCIPLES. 59 
 
 had been no consummation of tlie first marriage. 
 Wliilst on the subject of dispensation I may notice 
 that, as late as in 1723, the Parliament of Paris, on 
 an "Appel comme d'abus," in the Marquis of 
 Sailly's case, declared his child by a deceased 
 wife's sister illegitimate, notwithstanding the mar- 
 riage had been had under a dispensation from the 
 Pope, on the ground that the Pope could not 
 dispense with God's law. 
 
 But how has our Church dealt with the subject 
 since the Eeformation ? 
 
 Dr. M'Caul, in his letter to Mr. Lyall, page 21, 
 deals with this part of the case in a very singular 
 manner. After quoting several Protestant versions 
 of the 18th verse, which render it as a prohibition 
 against marrying a wife's sister during the lifetime 
 of the former^ he says, " In Cranmer's Bible the 
 translation is similar, ' Thou shalt not take a 
 woman and her sister else to vex her, that thou 
 woldest uncover her secretes as long as she 
 liveth.' " I confess this seems to me a very 
 different translation, for it appears to refer '' as 
 long as she liveth" to the sister, and not to the 
 wife. But this is not all. Dr. M'Caul adds, " And 
 to this translation Cranmer adhered, as may be 
 seen in the ' Reformatio Legum Ecclesiasticarum,' 
 which expresses the joint judgment of Cranmer, 
 Goodwin, Cox, May, Peter Martyr, and Rowland 
 Taylor. Chap. v. is, ' Enumeratio personarum 
 in Levitico prohibitarum, — In Levitico dispositse
 
 60 LETTEE II. 
 
 personae citantur his nominibus, mater, noverca, 
 . . . filia, filia uxoris, soror uxoris.' In the revision 
 of Cranmer's Bible by Cuthbert, Bishop of Durham, 
 and Ridley in 1541, the same translation is re- 
 tained, and a reference given in the margin to 
 Gen. xxix., showing that they understood it of 
 simultaneous marriage with two sisters." Why, 
 if any thing can be clear, it is that in the passage 
 cited by Dr. M'Caul, Cranmer (fortified, as the 
 Doctor says, by the other Reformers whom he 
 refers to) places the wife's sister in exactly the 
 same position as the mother, step-mother, &c., as 
 I shall presently show, our Law, both Eccle- 
 siastical and Civil, has never failed to do. It 
 seems to me, however, that the fallacy running 
 through the whole argument of Dr. M'Caul, and 
 those who follow him, is this : that a special pro- 
 hibition is a licence to do any thing not included 
 within the special words of restriction. On this 
 principle the Eighth Commandment, " Thou shalt 
 not commit adultery," would be a licence to com- 
 mit fornication. 
 
 But the conclusive point on the view entertained 
 by both clergy and laity, since the Reformation, is 
 to be found in the fact that, though the 32 Hen. 
 YIII. c. 38, authorizes interference by the Lay 
 Courts of the realm with the Ecclesiastical Court, 
 when that Court deals with questions of marriages 
 beyond its jurisdiction, it expressly excepts the 
 case of marriages either otherwise contrary to
 
 ON SCEll^XJEAL PRINCIPLES. 61 
 
 God's Law or witliin the Levitical degrees^; and 
 this being tlie only exception, nevertheless the 
 Courts of Common Law uniformly down to the 
 last conclusiye decree of Pent on v. Livingstone 
 (the judgments in which, so far as they bear on 
 this point, are given in the Appendix), have held 
 that marriage with a deceased wife's sister is 
 within the Levitical degrees, and therefore void. 
 
 The clergy, of course, are further bound by the 
 Canon of 1611 ; but both clergy and laity are bound 
 by the statutes as interpreted by the highest 
 courts of the realm, and, therefore, my proposition 
 is established, that the Church of England has for 
 all time held these marriages to be prohibited by 
 the Levitical degrees. Hence will be seen what a 
 singular mistake Dr. M'Caul makes in supposing 
 in the passage I have cited, from page 50 of his 
 letter to me, that the translation of the 18th verse 
 in our Bible has released either clergy or laity from 
 the effect of the Statute as well as Canon Law, 
 which both expressly hold such marriages invalid, 
 as being within the prohibition contained in the 
 18th chapter of Leviticus. 
 
 But Dr. M'Caul, in the same passage, falls into 
 the singularly prevaihng error of supposing that 
 the Act of 1835 rendered valid marriages already 
 contracted, and which the Canon Law declared to 
 be incestuous. I have already shown, in my pre- 
 vious letter, that the Act of 1835 did no such thing. 
 * See the Statute cited in my first letter.
 
 62 LETTER II. 
 
 It prevented the calling in question tlie legitimacy 
 of tlie offspring of marriages tlien existing, and 
 applied to all such marriages, though the parents 
 might be living, the same rule that our Courts of 
 Common Law had always applied when one parent 
 had died ; but it left the marriage invalid, and the 
 parents punishable for incest. I again appeal to 
 the judgment in Fenton v. Livingstone as show- 
 ing that at no time has any such marriage been 
 otherwise than invalid and incestuous in England. 
 Let me here repeat, for it cannot be too often 
 stated, seeing the persevering efforts made by the 
 Anonymous Society for altering our marriage law 
 to mislead the public, that the Law of England 
 has never made any difference between the degrees 
 of incest, — that we are now invited for the first 
 time to pick and choose from the prohibited de- 
 grees. If a man before Lord Lyndhurst's Act 
 married his own mother or sister, and had a child 
 by her, yet after the death of either parent nothing 
 (short of an Act of Parliament) could declare the 
 child illegitimate. After Lord Lyndhurst's Act, 
 the children of any such odious union then existing 
 would have been also freed for ever from the pos- 
 sibility of being declared illegitimate, though both 
 their parents were alive. That Act, however, pro- 
 vided, in my judgment most wisely and humanely, 
 that, in future, the legitimate status should not 
 be acquired by the form of marriage being gone 
 through in any case of incestuous marriages. From
 
 ox SCRIPT UEAL PEIXCIPLES. 6-3 
 
 the beo:iniiing: to tlie end of that Act no difference 
 is made between the marriage with a mother, a 
 sister, or a sister-in-law ; and if it were repealed 
 to-morrow, all those marriages would be equally 
 void ; but the children could not, after the death 
 of either parent, be declared illegitimate. 
 
 This letter has become longer than I intended, 
 from my desire to leave nothing of importance un- 
 touched. I do not enter into the Hebrew dis- 
 quisitions of Dr. M'Caul. To a printed copy of my 
 speech I added an appendix, containing observa- 
 tions by a writer of great ability, to show what 
 mio'ht be said on the other side on that head. I 
 do not profess any critical knowledge of Hebrew. 
 The learned author of the tract I quoted is quite 
 competent to defend himself, if he think it neces- 
 sary, even though his " manifest ignorance " is 
 assumed by Dr. M'Caul as proved by some printer's 
 blunders in setting up Hebrew type, a style of 
 controversy to be greatly deprecated. But I must 
 be allowed to repeat an observation I made in my 
 speech at Wilhs's Rooms : " That it is singular we 
 should be called upon as Christians to follow the 
 Jewish Rabbis in om- interpretation of Scripture." 
 I commented on the Jewish system of narrowing 
 God's law by their traditions. To my great 
 astonishment, Dr. M'Caul (page 36 of his letter to 
 me) disputes this proposition, and says, " that so 
 far from narrowing God's law, the great and 
 fundamental sin of the Jewish traditions is the
 
 64 LETTER II. 
 
 adding to the law, and making it a burden grievoTis 
 to be borne by forbidding ivhat God has not for- 
 hidden:' (The italics are Dr. M'Caurs.) Now 
 certainly, as a mere Englisli reader of my Bible, 1 
 had understood the Sermon on the Mount, as well 
 as the denunciation of the traditions illustrated by 
 the " Corban," to be reprimands by our Blessed 
 Lord of the narrow view that the Jews took of the 
 Divine law. " Ye have heard that it hath been 
 said. Thou shalt love thy neighbour, and hate thine 
 enemy'," I always understood to refer to their 
 traditional interpretation of the command to love 
 our neighbour ; as our opponents hold of verse 18, 
 in the 18th of Leviticus, that the prohibition of 
 one case allows all others. The Rabbinical inter- 
 preters said, " We are told to love our neighbours, 
 therefore we may hate our enemies." Thus it is 
 now said, " We are told not to marry the wife's 
 sister in her lifetime," therefore we may marry her 
 afterwards ^ But as I am no Hebrew scholar I 
 will call in the aid of Lightfoot to show how the 
 Rabbis narrowed the law on the matter of divorce, 
 a subject nearly akin to that in hand. That they 
 also added superstitious rules, and so endeavoured 
 by rigour in outward observances to compensate 
 for laxity of moral conduct, is no doubt very true, 
 but is no answer to my argument. 
 
 ' Matt. V. 43. 
 
 * See Dr. Pusey's very learned pamphlet of 1860 above re- 
 ferred to. He observes that a heresy was built on the words, 
 " Sit Thou on my right hand until I make Thine enemies Thy 
 footstool," as if our Lord's kingdom was then to end.
 
 ON SCRIPTUEAL PRINCIPLES. 65 
 
 Liofhtfoot, in a comment on tlie Sermon on the 
 Monnt ^ contained in liis Hebrew and Talmudical 
 Examples, says, " The School of Hillel said, ' If 
 the wife cook her husband's food illy by over-salt- 
 ing or over-roasting it, she is to be put away.' " 
 And a little lower down he says, " But not to 
 relate all the things for which they pronounce a 
 wife to be divorced (among which they produce 
 some things that modesty allows not to be re- 
 peated), let it be enough to mention that of Rabbi 
 Ahikah instead of all. R. Ahikah saith. If any man 
 sees a woman handsomer than his own wife, he 
 may put her away, because it is said, ' If she find 
 not favour in his eyes.' " 
 
 And for this passage Lightfoot cites the Mishna. 
 I think I have shown that the Rabbis are not safe 
 interpreters of their own law for Christians. 
 
 I have purposely also passed by Dr. M'Caul's 
 list of foreign divines since the Reformation. I 
 deal with an English question. I do not consider 
 Luther, who assumed a power to license polygamy, 
 a very safe guide upon such a point. It is more 
 interesting to know how the Kirk of Scotland 
 has dealt with the subject. In 1643 the Assembly 
 of Divines at "Westminster resolved, " A man may 
 not marry any of the wife's kindred nearer in blood 
 than he may of his own, nor a woman of her hus- 
 band's kindred nearer in blood than she may of 
 her own." This is still the doctrine of the Kirk, 
 ' Matt. V. 31.
 
 66 LETTER II. 
 
 notwithstanding their translation of the 18th verse 
 agrees with that of our version and of Dr. M'CauP. 
 
 With regard to the Clergy of Scotland, I believe 
 them to be all but unanimous on the subject. 
 With regard to our English Clergy, I think that 
 the small minority who favour a change in the law, 
 would do well to consider the position in which all 
 Clergymen will be placed if the law be changed, 
 whilst the prohibiting Canon remains; and whether 
 disunion between the Church and State on so 
 grave a subject must not eventually and speedily 
 lead to the entire separation of the two. This has 
 been so much felt by Parliament, that in one Bill 
 it was proposed to insert a clause freeing the 
 Clergyman from the necessity of celebrating such a 
 union. Certainly it would be a singular anomaly 
 to compel a Clergyman to incur the Ecclesiastical 
 penalties consequent on a breach of the Canon. 
 
 I have now accomplished what is to me in all 
 respects a very irksome task. It is irksome to me 
 at all times to commit my thoughts to writing. 
 Controversy, again, affords no pleasure to me. 
 Few of us can escape the evils that environ the 
 disputant. Few, alas ! can bear in mind, in the 
 heat of controversy, Hooker's truly Christian 
 warning, " That an hour will come when a few 
 
 ^ The New School Presbyterians of the United States about 
 a year ago passed in their general assembly a Resolution against 
 marriage with a deceased wife's sister, and deposed a minister 
 who had so married.
 
 ON SCEIPTURAL PRINCIPLES. ^7 
 
 words spoken in cliarity will outweigh whole 
 volumes written with disdainful sharpness of wit." 
 I can only ask pardon of all whom I may offend, 
 whilst endeavouring to uphold what I firmly be- 
 lieve to be God's law. I desire not by sharpness of 
 tone to offend against His highest law, even the 
 great law of love. 
 
 If we had no revelation of His will, I believe 
 that we should commit an act fatal to the peace of 
 society in abrogating a law that has regulated our 
 homes since we became one people; but if there be 
 any weight whatever in the constant acknowledg- 
 ment from our first becoming Christians, not 
 merely by our Church, but by our Parliament 
 and our judges, that the unions in question are 
 contrary to " God's law," surely every Christian 
 legislator will pause before he advises the nation 
 to incur a risk of judgments so fearful as those 
 that overwhelmed the ofiending heathens of old ; 
 even if in doubt he will ponder, well and seriously 
 and with prayer, the question, whether the sup- 
 posed evil to be remedied be such as to demand a 
 remedy so perilous. 
 
 Believe me. 
 
 Dear Mr. Dean, 
 
 Yours most faithfully, 
 W. P. WOOD. 
 
 Fehrvary, 1861. 
 
 F 2
 
 POSTSCRIPT. 
 
 Since tlie above letter was written, a pamphlet 
 lias been put into my hands which purports to be 
 written by Viscount Gage. I protest against 
 the tone of it, by which he endeavours to throw, 
 what he conceives, the odium of the opposition to 
 the change of our law, on the clergy. For though 
 I conceive it to be a glory, and not a shame, that 
 our national Church has adhered to the sound in- 
 terpretation of Leviticus on this subject, yet as a 
 matter of fact Lord Gage may see, even by the 
 names of the members of our Society, that the 
 laity are quite as anxious for the preservation of 
 the law as the clergy. He speaks of the " inge- 
 nious opponent prelates," and ends his somewhat 
 violent invective on the Church of England by 
 asking, " Will the House of Lords continue to 
 show more deference to antiquated Church laws 
 than to the report of their own Commissioners 
 and the repeated votes of the representatives of 
 the people ? " I will venture to ask, will the 
 House of Lords venture to outrage the moral
 
 POSTSCEIPT. 69 
 
 feeling of Scotland and Ireland, whicli tlie repre- 
 sentatives of the people have respected ? If not, 
 whether Lord Gage will support a bill which will 
 enable a man to have two wives, one in Scotland 
 or Ireland, and one in England? His lordship 
 says, "Every example given in Leviticus, with the 
 one exception of the maternal aunt, is either of 
 blood relations, or of one imported and installed 
 as a member of the family." I do not quite 
 understand this passage, for a maternal aunt is a 
 blood relation, and must not therefore be excepted. 
 But possibly the uncle's wife is meant (verse 14). 
 I do not myself see how it is made out that any of 
 the three cases in verse 17 are necessarily imported 
 or installed as members of the family, and certainly 
 they are not blood relations. I can, however, 
 vouch for the sister-in-law being very frequently 
 " installed as a member of the family," and 
 thousands of them would be driven from their 
 homes by any alteration of the law. Lord Gage 
 thinks a sister-in-law is "by fiction of law called 
 sister ; and is in fact, and on a matter of incest, as 
 entirely unrelated to him as she was before." 
 That is simply begging the question, a remark 
 which I may apply to a great portion of his lord- 
 ship's letter. As far as there are arguments to 
 meet, I think I have dealt with them. His lord- 
 ship will probably in the House of Lords meet 
 both with " opponent prelates " and opponent 
 laymen who will do them more ample justice.
 
 70 POSTSCEIPT. 
 
 Pages 15 and 16 afford strong instances of the 
 inexpediency of such discussions as the present. 
 I will not follow his lordship upon such a ground, 
 nor answer his jests upon our Marriage Service.
 
 APPENDIX TO LETTER I. 
 
 Penton V, Livingstone. Livingstone v. Livingstone. 
 
 Extracts from the Speeches of the Laio Lords in delivering 
 Jtidgriient. 
 
 Lord Brougham. 
 
 "Was the marriage^ then, of the respondent's parents 
 such that the law of Scotland could recognize its validity 
 in dealing with the rights of the issue of it to take real 
 estates by inheritance? First of all_, let us consider if it 
 was legal in the country where contracted, and where the 
 parties had their domicile. It was clearly illegal by the 
 law of England. That law treated it as incestuous by the 
 rules of the Ecclesiastical Court, which alone has cogni- 
 zance of this objection to a marriage. It could not be 
 questioned, except dining the lives of both husband and 
 wife; but it was illegal, and if questioned while both 
 parties were alive, it must have been declared void ah 
 initio. And why ? Because it was contrary to law. The 
 circumstance of one party to it having died before this dis- 
 pute arose, and before it was questioned, did not make the 
 marriage legal, though it precluded the possibility of set- 
 ting it aside ; and the son was issue, not of a lawful mar- 
 riage, but of a marriage which could not be questioned
 
 72 APPENDIX TO LETTER I. 
 
 with effect, according to the rules of the Ecclesiastical 
 Court, that Court alone having jurisdiction upon the ques- 
 tion, by the rules which govern the Temporal Courts. But 
 they hold the same principles on this subject as the Eccle- 
 siastical, and would act upon them if they could entertain 
 the question. Indeed, the 5 & 6 Will. IV., c. 54 (Lord 
 Lyndhurst^s Act), proceeds upon the ground that mar- 
 riages within the forbidden degrees of affinity are void if 
 questioned, void because illegal; and enacts that hence- 
 forth they shall be ipso facto void, and not voidable by any 
 proceeding. And why? Because they are within the 
 forbidden degrees, that is, because prohibited by law. It 
 is unnecessary to inquire whether a marriage so void, if 
 questioned in England before the Act, but prevented from 
 being questioned by the course of procedure in the English 
 court, could be questioned in Scotland, if the Scotch and 
 English law differed upon the grounds of the objection, 
 because the Scotch law is so much more stringent on the 
 subject than the English, holding all marriages within the 
 forbidden degrees not only to be incestuous, but severely 
 punishable, even capitally .''^ 
 
 " If the lex loci contractus were to prevail absolutely, 
 and a marriage good in a country where it took place, and 
 where the party claiming it was born, were to make that 
 party inheritable in Scotland, then, uncle and niece mar- 
 rying in a foreign country with papal dispensation, their 
 issue might claim to take a Scotch estate and Scotch 
 honours, although, had the marriage been contracted in 
 Scotland, the parties might have been capitally convicted, 
 and sentenced to death or transportation, as in the case of 
 Stewart and Wallace.^'
 
 APPENDIX TO LETTER I. 73 
 
 LoED Cranwoeth. 
 
 "Their decision proceeded on the ground that, as the 
 marriage took place in England between parties domiciled 
 therC;, the law of England must decide whether the mar- 
 riage was or was not valid, and whether the issue of that 
 marriage was or was not capable of entering as heir of the 
 body of his parents lawfully procreate. They came to the 
 conclusion that by the law of England the marriage was 
 valid, and that the respondent was the eldest son of that 
 marriage lawfully procreate, and therefore was entitled to 
 succeed to the lands in question. After giving to this 
 subject my best attention, I have come, though not without 
 some fluctuation of opinion, to the conclusion that the 
 Court of Session was wrong in treating this marriage as a 
 valid marriage by the law of England, and in treating the 
 respondent as the legitimate son of Thurstanus for the 
 purpose of the Scotch succession. The stat., 25 Hen. VIII., 
 c. 22, s. 4, expressly enacts, inter alia, that no man shall 
 marry his deceased wife^s sister, and, in case of any mar- 
 riage being contracted in violation of that prohibition, the 
 Ecclesiastical Court, with whom, in this country, juris- 
 diction on this subject exclusively rests, would declare any 
 such marriage to be void. It is true that, by the con- 
 struction put on that statute, no inquiry as to the validity 
 of marriage could be instituted by the Ecclesiastical 
 Com't after the marriage itself had come to an end by the 
 death of one of the parties; so that, inasmuch as the 
 Temporal Courts had no jurisdiction, the issue would 
 succeed to the estate of a deceased parent, as his or her 
 heir, if no proceedings had been taken in the lifetime of 
 both parents to declare the marriage void. I say to declare 
 it void, — for it must be observed that the Court had no
 
 74 APPENDIX TO LETTER I. 
 
 authority to interfere actively to dissolve any marriage 
 validly contracted, but only to declare what the law was as 
 to the alleged marriage, — the marriage de facto, as it was 
 called, — to declare that there never was any marriage ; to 
 declare it ' fuisse et esse invalidum ab initio/ That such 
 a result must have followed a proceeding in the Eccle- 
 siastical Court, calling in question the second marriage of 
 Thurstanus, is a matter which can admit of no doubt. But 
 if so, how can the true character of the marriage be altered 
 by the accident of whether any third person did or did not 
 think it worth while to call it in question ? It is not the 
 proceeding in the Ecclesiastical Court which made such a 
 marriage void ; the Court in this country could not affect 
 by its decree a valid marriage; its jurisdiction was only of 
 a declaratory nature, that is, to declare the legal invalidity 
 of an act already complete, but which was not what it 
 purported to be — a marriage. 
 
 " Where it has been the policy of the law of any country 
 to prohibit marriage under any circumstances, the pro- 
 hibition attaches to the subjects of that country wherever 
 they go. It was on this principle that the case of the 
 Sussex Peerage was decided. The marriage there was 
 clearly valid according to the laws of the country where it 
 was contracted ; but it was held in this House that the 
 Royal Marriage Act having prescribed certain steps by 
 which alone the descendants of King George II. could 
 contract marriage, the laws of this country would prevail 
 wherever the marriage was contracted. ^^ 
 
 LoED Wensleydale. 
 "My opinion is, that by the law of England the 
 marriage of a widower with his deceased wife's sister was 
 always as illegal and invalid as a marriage with a sister.
 
 APPENDIX TO LETTER I. 75 
 
 daughter, or mother was. This appears to be clear by the 
 decision in the well-considered case of Reg. v. Chadwick, 
 and Reg. v. St. Giles, in which the several statutes and 
 authorities prior to Lord Lyndhurst^s Act, 5 & 6 "Will. IV._, 
 c. 54, are commented upon and considered. It was always 
 deemed as being within the prohibited and Levitical 
 degrees ; but, from the peculiarity that the question of the 
 validity of marriage (with reference to this objection of 
 being within the Levitical degrees) was matter of Ecclesi- 
 astical cognizance, and cognizable in the Spiritual Court 
 alone, it could not be questioned after the death of either 
 party, for it could not be dissolved by the Court then, as 
 death had already dissolved it; nor could the issue be 
 bastardized, though the survivor might be visited with the 
 ecclesiastical censures. But the marriage was still an un- 
 lawful and forbidden marriage, and the issue really was 
 born illegitimate, though the validity of the marriage and 
 the legitimacy of the issue could not be questioned in the 
 country of domicile, by reason of the rules of the peculiar 
 law, which made these matters cognizable in one tribunal 
 only in that country. The marriage would be good in one 
 sense, because it could not be set aside, and the issue would 
 be legitimate in that sense, because there were no means 
 provided by the English law to deprive them of the rights 
 belonging to legitimate issue ; but such marriages were all 
 forbidden at the time of contracting them, all illegal, all 
 capable of being set aside, as void ab i?iitio, on account of 
 their illegality ; and the comity of nations cannot require 
 them to be held valid in another country, where there 
 exist no means of setting them aside."
 
 76 APPENDIX TO LETTER I. 
 
 LoED Chelmsford. 
 
 '^ The marriage of the parents of the respondent having 
 taken place prior to 183 5_, it is necessary to consider what 
 was the law of England^ with respect to a marriage with a 
 deceased wife's sister before the Act of Parliament of that 
 year. I think it cannot properly be questioned that such 
 a marriage was void ad initio \ Now there was a well- 
 known maxim of our law^ ^ Quod ab initio non valet, in 
 tractu temporis non convalescit.-' This rule would have 
 had its full force and operation in these marriages, if it 
 had not been for the interference of the Temporal Courts 
 with the proceedings of the Ecclesiastical Courts after the 
 death of one of the parents. This jurisdiction of the 
 Temporal Courts appears to have been exercised in favour 
 of the issue of the marriage, which they thus protected from 
 being bastardized, by preventing the Ecclesiastical Courts 
 from declaring a marriage to have been void, which had 
 been already dissolved by death. For it is to be observed, 
 as has been stated, that in these cases the Ecclesiastical 
 Courts pronounced no decree of divorce, but merely made 
 a declaration of the nullity of the marriage; and the 
 Temporal Courts only restrained the Ecclesiastical Courts 
 from making this declaration at a time when it could have 
 no practical effect upon the marriage itself, and when its 
 only operation would be to bastardize the issue. This is 
 not unimportant, as showing that the question of the 
 original validity of the marriage was not at all touched by 
 the Temporal Courts thus disabling the Ecclesiastical from 
 pronouncing a declaration respecting it. And that the 
 Temporal Courts by their interposition did not profess to 
 
 ' Within a few weeks a Scottish tribunal has held the same marriage to 
 have been always illegal in Scotland, as being contrary to Scripture.
 
 APPENDIX TO LETTER I. ' I"! 
 
 deal in any way with the validity of the marriage itself is 
 shown, by their leaving the Ecclesiastical Courts at liberty 
 to proceed to punish the sui-viving party for incest: a 
 power which_, according to the opinion of Sir H. Jenner Fust, 
 continues even as to marriages protected by the Act of 
 1835. The respondent's condition therefore in England 
 was this, — he was the offspring of a marriage which was 
 incestuous and void, but of a marriage which by the course 
 of events had become irrevocable/"'
 
 APPENDIX TO LETTER II. 
 
 Extracts from a Letter of a Clergyman of South Carolina to 
 a Clergyman in England. 
 
 " Maeeiage tvith a deceased wife^s sister has^ I am sorry to 
 say, been growing to be customary among us. At the 
 beginning of our colonial history it was forbidden, of 
 course, under the English law then in force among us, as 
 in other parts of the British dominions; and in an Act 
 passed by the Legislature, in a.d. 1707, it was enjoined that 
 the ^ Table of Prohibited Degrees '' should be affixed 
 openly to every church-building as a guide to the people. 
 This Act has never been repealed, and it is pronounced by 
 high legal authority to be still binding. But it has been 
 going into desuetude of late years, only however since our 
 Independence. The first instance of its infringement was 
 somewhere about the year 1797, when a gentleman of 
 prominent social position in Charleston, and of eminent 
 services in the Revolutionary War, wishing to marry his 
 wife's sister, applied to Bishop Smith, the first of our 
 Bishops, ^to officiate. Bishop Smith, an Englishman by 
 birth and education, said he was not satisfied that it would 
 be right to comply with the gentleman's wishes, but 
 promised to consult some of his brethren elsewhere. He 
 did consult Bishop White, our first Bishop of English
 
 APPENDIX TO LETTER II. 79 
 
 ordination^ and returning to Charleston consented to 
 officiate. 
 
 "The marriage shocked the moral sense of the com- 
 munity very much, and the second wife, it was well known, 
 was often troubled in her own mind about it. But the 
 example nevertheless had weight, and became a precedent, 
 followed at first by one and then another ; the public mind 
 each time revolting less and less, until such matches have 
 become to be not only justified by many, but commended 
 and preferred by some, and even advised by dying wives, 
 one of whom, some years ago, joined the hands of her 
 husband and her sister over her own dying bed, and gave 
 them to each other ! Whether this was because she saw 
 they would marry, whether or no, may be a question. At 
 any rate, now when a man-'s wife dies, the first idea of 
 many if she leaves a sister is, that the widower ^ill marry 
 lier. And he is almost regarded as wanting in due respect 
 for her if he do not at least give her a chance of becoming 
 her sister^s successor. The plea on which these unions are 
 recommended is, that the sister being already attached to 
 the children of the previous marriage, and acquainted with 
 the ways of the deceased, is better qualified and disposed 
 than any one else could be to take her place and train up 
 her offspring. 
 
 " But it is evident to those of us who are old enouo-h to 
 remember the state of things previously to this innovation, 
 that it has brought about already a change for the worse. 
 I can well recollect when ladies in the lifetimes of their 
 husbands used to feel as if their brothers-in-law were 
 their own brothers, and to treat them accordingly, in all 
 the unreserve of domestic intercourse ; when a brother-in- 
 law, after an absence, would kiss his brother^s wife ^ in all 
 purity^ as his own sister, and she would confide in him 
 without a thought of evil, or a feeling of embarrassment ;
 
 80 APPENDIX TO LETTER II. 
 
 and when too^ in case of a wife dying*, her sister would 
 remain in charge of his family, or would remove to the 
 bereaved home, to live with the widower and take care of 
 his children as a thing of course, without a whisper of 
 slander, or any occasion for it; when the children, too, 
 knowing that their aunt could never be in any nearer 
 relation to them, loved and reverenced her, and confided in 
 her, and yielded readily a most wholesome influence to 
 her. 
 
 ^^ But since such increased nearness of connexion has 
 been deemed not improper and even desirable, there has 
 grown up in families a perceptible and painful constraint, 
 the children learning to look with apprehension on their 
 mother^s sisters, and the wives becoming jealous of their 
 influence with their husbands, while familiarities which 
 formerly were thought to be and really were innocent, 
 have come to possess a consciousness of evil tendency 
 which itself is of the nature of sin. 
 
 ^^ I know of a wife whose health was gradually declining, 
 a woman of the world, with a husband as worldly as her- 
 self, and in their house was a young and attractive sister 
 of hers, between whom and her husband there had grown 
 up gradually a degree of affectionate intercourse which in 
 the days of the wife^s health had been thought only na- 
 tural. But as her end drew near it became on his part 
 more pointed, and drew to it her attention so agoniz- 
 ingly, that it became the one engrossing- feeling of her 
 soul for the few last weeks of her life, exciting in her an 
 undisguised dread of what she foresaw would, as it did take 
 place, and so absorbed her as to shut out all thought of 
 religion and make her miserable to her very death. 
 
 ^' In another instance I knew of an excellent sister-in-law 
 who had been living with and watching over her sister^s 
 children until the death of their mother, but who on that
 
 APPENDIX TO LETTEE 11. 81 
 
 mothei'-'s death would not remain another night in the 
 widower's house, though he was left with children too 
 young for him to take care of, and to whom she had be- 
 come warmly attached, as they to her. 
 
 " I need not say that to my mind the matches referred to 
 are very revolting. I never have officiated at one of them, 
 and do not think I ever shall. 
 
 '^ Eut it is fair for me to add that others do not share the 
 feelings I have thus expressed. Not only do laymen and 
 laywomen thus married stand well in the communities 
 wherein they live, but clergymen in good repute have 
 formed such connexions, and bishops have officiated at 
 them. 
 
 ^^Our Church in General Convention has never acted 
 bindingly, i. e. by the joint action of the two Houses. But 
 the House of Bishops in the year 1808 gave it as their 
 opinion that the English Table of Prohibited Degrees is 
 binding, and the two Houses appointed in 1838 a joint 
 Committee to consider the subject, but the Report of that 
 Committee was laid on the table in 1811, and attempts to 
 take up the subject have been ineffectual, arising partly, I 
 think, from apprehension of conflict with the civil authori- 
 ties, but in great measure also from a feebleness of ob- 
 jection to, if not a positive approval of, marriages of the 
 sort. 
 
 " Indeed, the public mind of our entire country seems to 
 me to be alarmingly unsettled on this whole subject of 
 marriage — the laws and usages in the different States 
 being' exceedingly diverse as to alike the formation and 
 dissolution of the tie. In many of the States divorces 
 and remarriages are shamelessly common, and for most 
 trivial causes, and even pretences, and not a meeting takes 
 place of Legislature, or Court, without numerous divorces 
 being granted. Men meet in society sometimes with 
 
 G
 
 82 APPENDIX TO LETTEK II. 
 
 several women who have been successively their wives^ and 
 a story is told, I believe truly, of four couples in the same 
 dance, each of whom hy regular progress of law had ex- 
 changed wife or husband with one of the others, so that 
 each man saw before him two women of whom one had 
 been, as the other was then, his wife. 
 
 " That may be an extreme case, I will not vouch even for 
 it being a fact; but I do know of persons in the best 
 society in the town where they live, who do meet in 
 that society those that once were joined to them in this 
 closest of earthly ties, but who now are united to others, 
 while they themselves in their turn have formed that tie 
 anew, and yet associate familiarly with their discarded 
 consorts. 
 
 " My best wishes attend you in your efforts to avert from 
 your favoured isle such a state of things. 
 
 " If you make any public use of this letter, I request only 
 that you do not mention my name, though if the accuracy 
 of my statements be questioned, I shall be ready to sub- 
 stantiate them under my own signature if you desire it. 
 
 " I mention, as a perhaps not uninstructive instance of 
 the unsteady movements of civil legislation when once the 
 Bible is lost sight of, that in a neighbouring State, where 
 divorce is allowed for almost any allegation, first cousins 
 are forbidden to marry.'''' 
 
 THE END.
 
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