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The Pamphlet Collection of Sir Robert Stout: Volume 12

Some brief remarks on Vice-Chancellor Sir W. Page Wood's vindication of the law prohibiting marriage with a deceased wife's sister; in a letter to a friend. - London: Houlston and Wright, 1861

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Some Brief Remarks

By The Rev. H. F. Bacon,

London: Houlston and Wright, 65, Paternoster Row. 1861.

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Brief Remarks, &c.

My Dear

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I remain,

Yours sincerely,

Hugh Ford Bacon.

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My Dear—,

I revert to Sir W. P. Wood's second letter—his argument on scriptural principles.

The necessities of the Vice-Chancellor's argument require that he should prove—1. That there is in Scripture a clear prohibition of this marriage; or, 2. A constant prohibition by the whole Church from the beginning, inferring a Scriptural prohibition; 3. That such prohibition was made on the ground of invest. With what success he has attained these objects I will briefly examine.

The prohibition from the Bible he rests entirely on two inferences from 18th Lev. He insists that the words "near of kin," in ver. 6, must be applied to every relation in that chapter. That is not a necessary or logical construction. Near of kin are prohibited. And some connections of affinity are prohibited. But it is a forced construction to say that all the affines are therefore included in near of kin. Scripture itself has expressly defined who are "near of kin," and confined it to blood relations in near degree. But there is a peculiarity of expression in Lev. xviii. which indicates, that not only is there no inexorable logic which obliges us to believe that, because both are prohibited in the same chapter, they must therefore be included in the same degree of kin, but that a distinction between them is carefully defined. In all the instances where the kin mentioned is expressly acknowledged elsewhere in Scripture (sec Lev. xx. 19; xxi. 2, 3; xxv. 49), either the prohibition is simple, or words are added repeating the blood relationship; for instance, of the granddaughter it is said, it is his own nakedness; of the half-sister, she is thy sister. But, in the case of the Affines, a substantive reason is always assigned for the prohibition, where none would have been required if they had all been included in "near of kin." It says, because "it is thy father's nakedness;" "the uncle's nakedness;" "thy son's wife;" "thy brother's nakedness." In the case of the wife's granddaughter, the reason given is because she is the "wife's near kinswoman." It does not say his own near kinswoman. In Lev. xx. 19, where the instance is repeated of father's sister and mother's sister, it is said distinctly; he uncovereth his near kin. Whilst in the case of uncle's wife and brother's wife, in the following verses, nothing is said of kin, but that he uncovers his uncle's or his brother's nakedness, and in both these latter cases the penalty attached is, not "cutting off," as in the case of all admitted blood relations, but that "they shall die childless." The distinction seems to me clearly to mark a difference of degree, and to shew that "near of kin" is not intended to be ascribed beyond those very instances which, as I observed, page 12 have alone been acknowledged in other places of Scripture, viz. father, mother, brother, sister, half-sister, uncle, aunt, child, grandchild.

I have no time to examine that elaborate pedigree of prohibition which is drawn out on page 42. Notwithstanding its formidable aspect, I have no idea that many will fall in with its remarkable conclusion, that a wife's sister is "related in the same degree of nearness as a grandchild." Nor do I think, if the Vice-Chancellor was distributing an estate in his Court, he would admit that relationship to be quite so close; or he would certainly come into collision with an Act of Parliament of long established authority.

Next, it is inferred that everything between the third and twenty-fourth verses must be included in the curse on the Canaanites. That is clearly not the case, for one tiling included is a legal uncleanness, created by Leviticus itself, and peculiar to the Jews. Supposing it, however, to be granted, it would amount to this and no more, that to marry two sisters at the same time was an accursed act of the Canaanites. That does not show that to marry them in succession was, but quite the contrary. The Vice-Chancellor's Scriptural prohibition, then, rests on nothing more than two doubtful inferences from one chapter of the Old Testament. To anything in its support from the New he does not so much as pretend. But, as many men not inferior to the Vice-Chancellor in learning, ability, or conscientiousness, regard such inferences to be quite unwarranted and untenable, assuredly he has no right to insist on a clear prohibition in Scripture.

But that there must be a prohibition by Scripture the Vice-Chancellor considers proved by the continued prohibition of the Church from the earliest period:—"The Church of Christ from the earliest period held that marriage with a wife's sister is forbidden by God's law." If by the words "from the earliest period," is meant from the days of the Apostles, as it should be, this is not true. If from a later period, the proposition is of no value. Now, if there is a clear prohibition in Scripture, the custom of the Church from the earliest period is quite superfluous. If it is necessary to call in aid the custom of the Early Church, then he can claim no clear prohibition in Scripture. He mentions a challenge of Dr. Pusey's, that no Christian writer can be found for fifteen centuries who had any doubt that the marriage with a deceased wife's sister was forbidden by the Law of God. That is nothing to the purpose. What he should show to avail anything is, that any writer of the first Three centuries ever expressed a doubt of this marriage being agreeable to the Word of God. Soon after erroneous opinions page 13 quite sufficient were held without doubt by Christian writers. The first three centuries alone are of any weight in the argument. How stands the case? At the time the Gospel was promulgated the marriage was customary, and regarded as blameless, both by Jew and Gentile. Neither Christ nor his Apostles ever disapproved of it. The onus probandi clearly lies with the opponent to show that any one doubted its lawfulness People declare their doubts when they have any. They don't make spontaneous declarations of the absence of doubt when nothing is questioned. That there is not one single expression of such a doubt to be found for 300 years is admitted on all sides. St. Basil, who wrote some fifty years later, is the first authority given for the "Church of Christ from the earliest period." The Vice-Chancellor begins his testimony in fact precisely where it ought to have terminated. St. Basil, writing a friendly letter to Diodorus Bishop of Tarsus, reprobates the marriage, and says, "we have no such custom." St. Basil, we contend, was speaking of local custom. The Vice-Chancellor maintains he spoke the opinion of the whole Church of Christ. But at the conclusion of his letter, there are words which make it as certain as it well can be, that he did not—"At all events, let no such customs come into my diocese," which clearly implies that there might be such customs in other dioceses. And, as it is clear, from this very letter to Diodorus, that in the diocese of Tarsus the contrary custom prevailed, and was considered scripturally good by a Bishop of acknowledged piety and eminence, he could not be speaking of the whole Church. But if we ask, how is it that no one objected to such marriage before St. Basil, who is ludicrously out of date as a witness to the earliet period, the Vice-Chancellor boldly replies, "Because it was never heard of before." That is not correct, for it is spoken of very expressly in the Apostolic canons fifty years earlier. These canons forbid Ordination to any who has married twice, or married (amongst others) a widow, or a servant-maid, or an actress, or two sisters. I presume the Vice-Chancellor would allow that marriages of widows, servant-maids, and second marriages were not unknown in the Church. If not, then neither were these unknown, or they would not have been mentioned with the others. Neither is this distinct mention made in a general prohibition of the marriage. It occurs in a restraint of marriage to the Clergy, one of the earliest corruptions of the Church. The restriction is confined to them alone, and is no more forbidden to the laity than second marriage, or marriage with a widow, a servant-maid, or an actress. It is obvious that if this marriage had been looked upon as contrary to Scripture the prohibition would have gone beyond Ordination—if considered clearly contrary to Scripture no prohibition would have been needed. The marriage is mentioned also in the page 14 Canon of Eliberis, fifty years before St. Basil. That Canon was probably directed, the Vice-Chancellor says, without a moment's hesitation, against heathen practices. That is an easy way of surmounting a difficulty. But the censure attached was exclusion from the communion for five years, unless in case of sickness. As heathens were not communicants, they could not be excluded, and the practices to which it was directed must have been Christian. Here is ample evidence that they were well-known in the whole Church before St. Basil. But the "decree of the Emperor Constantius in 355," he adds, "is remarkable evidence of the feeling of the early Christians, for as soon as Christianity is established we find the heathen practice is at once repealed." Christianity was not established by Constantius, but by his father, some fifty years before, The Great Council of Nice had sat in the meantime, after it had been established, and treated of marriage. It did not prohibit this. The law of Constantius was not directed to the practices of heathens, or it would have been addressed to the heathens. It is obvious it alludes to what was then a general practice.

Nothing, indeed, can surpass the easy way in which the Vice-Chancellor gets rid of any unpleasant fact by assuming something for which there is no authority. The Jews considered themselves permitted by the Law to marry two sisters in succession. "That," he says, "is the interpretation of Talmudists and Rabbis," though sanctioned by the Bible before there were either Rabbis or Talmudists. Eliberis shows these marriages known before St. Basil. "It probably speaks of heathen practices." Yet both the Apostolic Canons, and this canon of Eliberis, in express words connect them with Christian practices. Constantius prohibits them in the Empire. "Yes, he prohibits heathen practices." I will say nothing at present of Constantius being an Arian, but I can by no means agree with, what I am sure I may call, the Vice-Chancellor's hasty assertion, that the question "of this marriage being incestuous lies far deeper than any difference of doctrines, however important in themselves." Most Christians, I think, hold such doctrines as the Divinity of our Lord, and the Atonement made for sin, to lie far deeper than a doubtful question of incestuous marriage.

The Vice-Chancellor has not then found a prohibition—certainly not a clear prohibition—in Scripture, or in the Church from the earliest period. But to whatever prohibition he may pretend, his case requires that it should be a prohibition on the distinct ground of incest. His objection to the marriage throughout is that it is incestuous. Now his inference from Lev. xviii. 6, can weigh nothing against direct testimony. If marriage with a brother's wife was not incestuous, neither was marriage with page 15 a wife's sister. Whatever might be the reason of the prohibition of marrying a brother's wife if he left children, Lev. xviii. 16, (and reasons sufficient have been assigned in the Jewish polity,) it was not because it was incestuous. That is quite certain, because God, in Deut. xxv. 5, absolutely commanded it if a brother died childless. The Vice-Chancellor, true to a system of passing lightly what is inconvenient, touches this very gently. The prohibition, he says, "is happily clear from all cavil, and the injunction in the excepted case is enforced by penalties, as if it was foreseen that it would be reluctantly and with repugnance observed." To believe that God would command a marriage, which he regarded with abhorrence as incestuous, is a thing impossible. It is more impossible still to believe that he would force the struggling conscience of the Jews, by penalties, to commit an act to which they were reluctant and repugnant, on account of its inherent wickedness. That would be to make the Jews more righteous than God. To marry a deceased brother's childless wife was a custom of the Jews sanctioned by the Almighty long before the Law. It was commanded them by the Law, and they did not think it incest. The Law allowed them, as they believed, to marry a deceased wife's sister. They did marry them, as is not denied, and do now, and they believed it a praiseworthy, not an incestuous act.

As to the Church, neither the Apostolic Canons, nor Eliberis, nor even the ascetic St. Basil, either called or treated the marriage as incestuous. The Apostolic Canons simply class it with second marriage, marrying a widow, and other blameless unions. Eliberis assigned to incest excommunication and total exclusion from the Church for ever. To this marriage it awarded only five years' exclusion from Communion, or less in case of sickncss. St. Basil assigned to it only seven years' separation from the Church, but to incest twenty years, incest is a pretence which has no support. Yet without incest there is and can be no ground of objection.

Whilst the Vice-Chancellor has not, I venture to say, shown a clear prohibition, or any prohibition, Lev. xviii. 18, we contend, shows a clear permission. As to the translation of that verse, he hesitates, falters, and remains indecisive. He neither boldly denies the orthodox version, nor candidly accepts it; neither docs he quite adopt, or quite reject the marginal reading. He allows great weight to Dr. M'Caul's argument establishing the text; but he insinuates small difficulties. The uninterrupted testimony of the Church from the year 350, and not before, to the Reformation of the marriage being, as he assumes, contrary to the Word of God, he considers a tradition amply sufficient to establish that point for ever, in contradiction to the version page 16 of our Bible and every other version. But the far closer, stronger, and exclusive testimony of the Church, from the Apostles to this day (besides the testimony of the Jewish Church for ages before), is not sufficient to establish the true text of the Word of God, when it is inconvenient to his argument. He tells Dr. M'Caul there is a difference between translation and interpretation. No doubt there is. But surely we must know what the Word of God really is before we can interpret it, and here the true text fixes absolutely the interpretation, as is evident from the acrobatic feats of grammar and logic that have been resorted to in order to escape it. It is not right, however, though common enough, first to settle the interpretation of God's word to your own satisfaction, and then determine the translation accordingly. The Vice-Chancellor between the text and the margin reminds us somewhat of "Youth between Wisdom and Folly:" reason is with the former, inclination with the latter. Evidently he would gladly unite, if he could, the words of the first with the sense of the last. But he must take one or the other. If, with the whole world, Jew and Christian, he takes the text (which he admits Dr. M'Caul has powerfully supported), and reads "one sister to another," then the words following, "in her life time," show, according to all use of language, that the union was not forbidden after her death. That is a difficulty which the struggles to escape this version prove he considers fatal. If, again, by assuming a Hebrew idiom (which Dr. M'Caul has made even the most unlearned understand to be impossible), he reads "one woman to another," then he denies that polygamy was allowed to the Jews. Here he falls on the other horn of the dilemma. He does not venture to deny that polygamy was part of the Jewish polity, yet he insinuates small doubts against it. "That it could "not have been prohibited, because holy men of old had more than "one wife at a time, is not to his mind conclusive: Abraham, "Isaac, and Joseph had each but one wife." That is, if three holy men had each but one wife, it is conclusive that nobody else was permitted to have more than one wife. But Abraham, unluckily, had two wives, unless we are to accept Sir W. P. Wood as better authority than Genesis (xvi. 3), where we read, Sarah gave Hagar to her husband to be is wife. For that he has an answer:—"Hagar's case was not favourably viewed either in the Old Testament or by St. Paul in the New." Where the Vice-Chancellor discovers that he does not tell us. We read that God twice sent an Angel expressly to comfort her in her affliction, and to promise her that he would make her son a great nation; and "God was with the lad." St. Paul compares Hagar and Sarah to the two covenants, whereof the new was better than the old, but he does not say the old was bad, but just, the con- page 17 trary. Of Hagar herself he says nothing whatever except in her typical character. "Jacob," the Vice-Chancellor proceeds, "was tricked into his first marriage." That might have been an argument if he had been "tricked" into his second marriage, which, on the contrary, was completed after seven years' deliberation. And, moreover, Jacob took two wives in addition without being "tricked." "Elkanah's case was certainly one not attended with blessing." Now, perhaps, there is not a more remarkable case of blessing and prosperity in the whole Bible than Elkanah's. The only alloy to the family happiness was that Hannah was childless. And Eli (the High Priest of God,) blessed Elkanah and his wife, and she bare three sons and two daughters. And one son became the most illustrious Judge and Ruler of Israel. That does not seem a lot "not attended with blessing." As to David and Solomon transgressing the Law against the Kings multiplying wives, amongst the benefits with which God reproaches David, 2 Sam. xii. is this, that He had given him his Masters Wives into his bosom. The fault imputed to Solomon, 1 Kings xi. is, not that he had multiplied wives, but had married strange women who turned away his heart after other Gods. It is idolatry, not polygamy, for which he is blamed. I am obliged to confess, under pain of the Vice-Chancellor regarding me as a person of very irritable temper, that I am not aware that more elaborate—I will not say perversion, for he objects to the word but—misconception of Scripture was ever before crowded into the same space.

He thinks it a fallacy that runs through the whole argument of Dr. M'Caul and others, that a special prohibition is a licence to do anything not included within the special words of restriction. On this principle (he says) the "Eighth Commandment—Thou shalt not commit adultery—would be a licence to commit fornication." The Vice-Chancellor here confounds special with general. That Commandment (which is the Seventh and not the Eighth) is not a special prohibition. It is absolute prohibition. A special prohibition is where something is forbidden under particular circumstances, or time, or place, which would be allowed at others. The restriction, ex vi termini, must be confined to the particular instance, and no more. The Fourth Commandment—general in its obligation—has a special restriction to time. It would be a positive inference from the seventh day only being named, that you might work on the other six, even if it were not expressly said so.

But the Vice-Chancellor asks, "How, if Jews and heathens recognised such marriages as lawful, the quiet acquiescence of the Christian world in the conclusion that the 18th verse does not authorise such marriages, can be explained?" Because false opinions early crept into the Church; because, from before St. page 18 Basil and downwards, the Church frequently misinterpreted Scripture and perverted doctrines; because, as the ages grew darker and the Popes stronger, prohibitions multiplied upon an ignorant and superstitious people. What says the Vice-Chancellor himself:—"No doubt corruptions had crept in, by which the prohibition had been extended beyond the Levitical degrees." He solves the whole mystery himself. Will the Vice-Chancellor tell us how the acquiescence of the Christian world, in the con-clusion that Scripture prohibits marriage of cousins, can be explained? How is acquiescence in the prohibition by Scripture of marriage to the Clergy to be explained? We know how transubstantiation, for instance, came to be received as the word of God, and acquiesced in by the Church and Realm of England; and we know how prohibition of this marriage came into the Church. It began in restrictions on the marriage of the Clergy, whilst permitted to the Laity. As days grew darker, the restriction was, with others beyond the Levitical degrees, gradually extended to the laity; and quietly acquiesced in by the Christian world. And if it should be asked further how, at the Reformation, the Church of England acquiesced in the marriage of cousins being Scriptural, but not in marriage with a sister-in-law, the answer is plain,—because it suited the lusts of Henry VIII. to allow the one and prohibit the other. If it should be asked how the marriage of the Clergy came at length to be acquiesced in,—It was because they felt that the alleged prohibition of Scripture was a falsehood, as this is, and broke the law; till at last shame compelled its repeal. Yet, at first, marriage of priests and cousins was received by many well-meaning persons with more repugnance and louder wailing than is surging round us now. And, doubtless, now, as then, in a short time this marriage would be regarded as commendable; and people would wonder how men could have been so moved against what seems so blameless.*

The Vice-Chancellor "purposely passes by Dr. M'Caul's list of foreign Divines since the Reformation. He deals with an English question." He does not think Luther a very safe guide upon such a point. "It is more interesting to know how the Kirk of page 19 Scotland has dealt with the subject." But, when certain well-bribed foreign divines favour Henry VIII. with the opinion he needs, the Vice-Chancellor is very respectful to foreign divines on an English question. He lightly esteems Martin Luther as a guide on the point. But the perjured, blood-stained Constantius—a heretic—an Arian—who let loose bands of armed Pagans to murder the faithful in their churches, he considers may be a safe guide. His theological predilections are certainly somewhat singular. He deals with an English question, and rejects foreign divines; but thinks the opinion of the Kirk of Scotland very interesting. Of course it is interesting to him, on the principle which pervades his work throughout, of receiving nothing whatever that inconveniences him, accepting anything in any shape that agrees with him. The Scotch are, proverbially, in their prejudices a stiff-necked people. The Vice-Chancellor is a member, a sincere and enlightened member, of the Church of England and its government by Bishops on the Apostolic model. But the Kirk of Scotland holds that to be an erroneous view of Scripture, and Presbytery to be the only Scriptural plan of government. Does the Vice-Chancellor feel inclined to take his belief in this respect from the Kirk of Scotland, and let go his own faith? If not, the Kirk of Scotland is not an infallible guide, and he can scarcely require those who think that Church wrong on so important a question to bend to its authority in this.

I am,

Very truly, yours,

Hugh Ford Bacon.

Westminster: Printed by J. B. Nichols and Sons, 25, Parliament Street.

* By 31 Hen. VIII. c. 14, after long consultation with Convocation it was agreed by King, Lords Spiritual and Temporal, and by Commons, that Priests may not marry by the Law of God; and, if any person taught or held that they might, he should suffer death, and forfeit lands and goods as a felon. After the prohibition was repealed, for long the people would not receive the Sacraments from the hands of married Priests. Yet they were not ignorant that Priests and Levites were married under the Old Dispensation, and Apostles and Ministers were expressly permitted to marry under the New, and many were married men. Yet such prejudice as this is precisely what we are now invited to admire and imitate.