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OUGHT MARRIAGE WITH A DECEASED WIFE'S
SISTER TO BE LEGALIZED ?
AFFIRMATIVE ARTICLE.-I. THE question on the consideration of which we are entering is a very important one, and has, of late, attracted much attention in various quarters; and, like many other matters on which a great deal can be said on both sides, is frequently made the medium of much personality and misrepresentation. Let us see if we cannot investigate it fairly and impartially, without dogmatism on the one hand, or a disregard for conscientious scruples on the other.
If we turn to the Bible, and open it at the part intermediate between the Old and New Testaments, we find, in many copies, “A table of kindred and affinity, wherein whosoever are related are forbidden in Scripture, and by our laws, to marry together.” The seventeenth relationship, on the one side, refers to a “wife's sister," and on the other to a “husband's brother."
There is, unfortunately, a large class of persons who are too apt to take things for granted, without any previous inquiry into their intrinsic merits, or any examination of the basis on which they rest. We see this daily exemplified in matters of religion, politics, and social economy. Men are found ranged with a particular class or sect; saturated, as it were, with the prevalent ideas and prejudices of their sect or party; prepared to do battle with all comers on behalf of that body with which what men call “ chance," or education, has identified them; intolerant of opposing views and theories, and yet often totally incapable of giving a rational reason for their own opinions, or of answering satisfactorily the objections of their opponents. To persons of this stamp, the very existence of the Table of Affinity above referred to, in connection with the Bible, is a sufficient warrant for any amount of dogmatism ; and they are very apt, when they condescend to argue the question at ail, to assume that Scripture is on their side, and that those who hold different views must be in a very dangerous state. The wording of the heading affixed to the table has also a certain amount of misstatement, calculated to convey an erroneous impression to the reader who looks at it superficially, without considering the facts in connection with its compilation. The words, “ forbidden in Scripture, and by our laws,” would perhaps convey the idea that Scripture and the laws of the land both agreed in condemning the union of those related to each other in the degree contained in the table; whereas the fact is not so, some of the degrees of affinity being alluded to in Scripture with prohibition of intermarriage
affixed, but in others the exact contrary seems to have been not only permitted, but appointed. For instance, if we turn to Deute. ronomy XXV., we find it expressly commanded, “If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not marry without unto a stranger: her husband's brother (or next kinsman) shall go in unto her, and take her to him to wife, and perform the duty of an husband's brother unto her. And it shall be that the first-born which she beareth shall succeed in the name of his brother which is dead, that his name be not put out of Israel, And if the man like not to take his brother's wife (or next kinsman's wife), then let his brother's wife go up to the gate unto the elders, and say, My husband's brother refuseth to raise up unto his brother a name in Israel, he will not perform the duty of my husband's brother. Then the elders of the city shall call him, and speak unto him: and if he stand to it, and say, I like not to take her; then shall his brother's wife come unto him in the presence of the elders, and loose his shoe from off his foot, and spit in his face, and shall answer and say, So shall it be done unto that man that will not build up his brother's house. And his name shall be called in Israel, The house of him that hath his shoe loosed." Here we have, in the Mosaic command, an injunction exactly opposite to the prohibition contained in the Table of Affinity. :
Again : we read of Jacob serving Laban seven years for Rachel his younger daughter; and, on being deceived with Leah, taking Rachel also to wife, and serving for her other seven years. Such an arrangement seems to have been afterwards modified, for we find it ordained (Lev. xviii. 18), “Neither shalt thou take a wife to her sister, to vex her, to uncover her nakedness, besides the other, in her lifetime.” Of course, it may be argued, if the marginal reading be accepted (“One wife to another"), that this was simply a prohi. bition of polygamy; but such a deduction can, I think, hardly be sustained. If it be argued that those laws and ordinances formed part of the Mosaic dispensation, and, that having passed away, they, too, have ceased to be of any weight, we grant the fact, but, in reply, ask, “Where, except in the Mosaic records, can we find any Scriptural enunciation of the subject of marriage, as connected with affinity ?” Our object is to show that, if Scripture be taken as the test by which to try the question, it is on our side rather than on the side of our opponents.
But it appears to me that the whole question is one of expediency, and must be weighed and examined as such. Polygamy is not forbidden in the New Testament; but polygamy, being inconsistent with the spirit of Christianity, and the genius of modern civilization, is properly made unlawful. In answering the question at the head of this article in the affirmative, we should first have satisfied ourselves of two things, namely,—that marriage with a deceased wife's sister is consistent with Christianity and social requirements, and that the practical want of such an enactment is sufficiently felt to justify the repeal of existing prohibitory laws
on the subject. To those two points I shall now briefly address myself.
And, first, as to the consistency of such marriages with Christianity and social requirements, it appears to me that, until some valid objection to them on those grounds is started, it would but be wasting time and space to create giants for the purpose of destroying them. Assuming the propriety, and sometimes the necessity, of second marriages (without, however, advocating them as a rule), I am inclined to think that a marriage with a deceased wife's sister would, in general, have more than the usual chances of “ turning out” a happy one. I am persuaded that a great cause of unhappy marriages is the want of real knowledge of each other, possessed by husbands and wives before they gain those titles. Without entering on the question of marriages in “high life," where, if all we hear be true, affection and compatibility of disposition are often the last things thought of, we know that in middle-class life too many marry in haste to repent at leisure. A young man and a young woman are thrown in each other's way it may be at a party, it may be at a prayer-meeting. They meet for a short time as friends, and, perhaps, having one or two sympathetic ideas, or a more than necessary stock of sentimentalism in common, think themselves kindred spirits. Their acquaintances kindly lend their aid to forward “the match," and, in due time, they marry. In a very short time sentimentalism evaporates, and real, hard, every-day life begins. Shut up together in one home, they soon discover that they have made a great mistake. Daily association soon rubs off the veneer that politeness and the desire to please had applied to their real character, and they find out, when it is too late, that they are not at all suited to each other; and then, unless strong sense, and an earnest determination to do their duty by one another, and to gain mutual love by mutual forbearance and mutual respect, come to the rescue, woe to that household.
Now, I think that there is not much probability of such ignorance of each other existing in the case of a man and his sister-in-law. They are pretty sure to know one another's dispositions more or less perfectly; and in the event of his wife's death, if he should, after a time, think of marrying her sister, both parties will, I fancy, nearly always be found cognizant of what they have to expect from each other in such a union. Besides, as the chance of such a marriage is, at most, but a remote contingency, the young lady will have no object in “setting her cap" at her brother-in-law; as I must say (at the risk of being called a brute by lady readers of the British Controversialist), nearly all girls above fifteen seem to consider their bounden duty, in reference to all “eligible" young men with whom they are brought in contact. It may be said that the legalizing such marriages would tend to weaken marital affection, by holding out certain inducements to contemplate a union under the contingency of a wife's death; but surely such an objection is not tenable. In the event of a happy marriage, it is not
likely that either party would complacently anticipate events consequent on the death of their loved partner; and in an unhappy marriage, it is not likely that the busband, even should he build castles in the air on the chance of his surviving his companion, would proceed to lay the foundation of his fabric “under the nose," so to speak, of his better half.
It is not necessary to occupy much space in proving that a necessity exists for the repeal of the prohibitive law at present in force on this subject. Granting that it is not wise to set aside laws passed by the wisdom of our ancestors, unless some grave require ment for such repeal exists, we contend that such requirement does exist in the present case. Probably, many of those whom I address know of cases where the rendering of marriage with a deceased wife's sister lawful, would have spared much pains, have avoided much scandal, and tended materially to increase individual comfort and happiness. If we do not know of such cases ourselves, we must all have heard of them; sometimes in the vague gossip of daily life ; sometimes in the columns of the newspaper. We have heard of unhappy couples who, under the mistaken idea that such a marriage, if solemnized in a country where those unions are not forbidden, would be recognized as legal in the United Kingdom, have gone to the continent, returned as man and wife, lived together for years, and then have discovered that they are not legally united ; that their union is looked on by the eyes of the law as a shameful one, and their offspring as illegitimate. We have heard, very lately, of a case where a man married his sister-in-law, lived with her as long as it suited his taste, and then refused to support her, alleging that she was only his mistress; and on the magisterial authority being appealed to, his view of the matter was confirmed, and the scoundrel was released from the consequences of his marriage with his unhappy victim. Seeing, then, that there is a necessity for a revision of the law in this respect, and that the legislature should remove a barrier and a stumbling-block from the way of those who desire unions not opposed to any religious or moral obligation ---10t repugnant to any principle of social propriety, we confidently reiterate that marriage with a deceased wife's sister ought to be legalized.
J. H. W.
NEGATIVE ARTICLE.-I. THIS question of marrying a deceased wife's sister has excited considerable agitation, and is still likely to remain a vexed ques tion; there being uniformly, wherever it is discussed, a considerable diversity of opinion. It is right, therefore, that the readers of the British Controversialist should come to a matured conclusion on the subject. It is one of those questions in which the female readers of this serial will no doubt take considerable interest, and from their pens we may hope to see a lively and intelligent discussion upon it, The women of Aylesbury, in 1860, felt so interested in the matter, that 300 of them, through Lord Dangannon, presented a petition
to the House of Lords, praying that marriage with a deceased wife's sister might not be legalized; but on the same night Lord Wodehouse presented a petition from 428 women, also of Ayles. bury, praying that such marriages might be legalized. It is clear that the Aylesbury women are quite alive on the subject. Edwin James, also, in the same session, presented a petition in favour of an alteration of the law from a number of unmarried ladies in Pimlico. One would have preferred that the ladies of Pimlico should have chosen an advocate who, though a dealer in, was less a breaker of, the law. These, and numerous petitions, we say, prayed for an alteration in the law, although there are not wanting those who affirm that if that was strictly rendered, marriage with a deceased wife's sister is already legalized. This is not 80, however. The statutes, as rendered in Burn's “Ecclesiastical Law,” run thus: “Since many inconveniences have fallen by reason of marrying within the degrees of marriage prohibited by God's laws, that is to say, the son to marry the mother or the stepmother, the brother the sister, the father the son's daughter or his daughter's daughter, or the son to marry the daughter of his father procreate; or the son to marry his aunt, being his father's or mother's sister; or to marry his uncle's wife; or the father to marry his son's wife, or the brother to marry his brother's wife; or any man to marry his wife's daughter, or his wife's son's daughter, or his wife's daughter's daughter, or his wife's sister; which marriages, albeit they be prohibited by the laws of God, yet nevertheless, at some times they have proceeded under colour of dispensation by man's power: it is enacted, that no person shall from henceforth marry within the said degrees.” In 1563, it was set forth in a canon to be exhibited within every church, that “all marriages so made and contracted shall be adjudged incestuous and unlawful, and consequently shall be dissolved as void from the beginning, and the parties so married shall by course of law be separated."
The ecclesiastical law being founded upon the law of the Old and New Testaments, so it was conceived, left no choice in the matter. If the statements of that law were clear, it was not for the lawmakers, or rather interpreters, to turn aside or warp that law other than it was. It was for them to ascertain the true meaning and spirit of the law, and then to frame the statutes accordingly. This brings us at once to the very marrow of the subject, when the question is asked, “Is the law of England, on this matter, the law of the Bible p” That question forms legitimately the first step in the discussion. If, upon examination, it is so proved, then any or every other reason must give place it will be found neither politic nor lawful to legalize marriage with a deceased wife's sister.
The law upon the subject is to be found in the 18th chapter of Leviticus, from the 6th to the 18th verse. All that the reader will require, to understand the law, as there set down, will be the exercise of common sense; he must by no means suffer himself to be led away by the hair-splitting notions of lawyer-divines, who