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The Pamphlet Collection of Sir Robert Stout: Volume 12

Extract from a letter on the marriage laws, addressed by the late Archbishop of Dublin (Dr Whately) to the late Bishop of Norwich (Dr Hinds)

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Extract From a Letter on The Marriage Laws,

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Dublin, Feb. 20th, 1851.

My Dear Hinds,—

The Opposition to Lord St. German's Bill* which is, it seems, so overpoweringly strong is Founded chiefly, as far as I can judge, On Misapprehension. The misapprehension I mean is, that almost all the advocates of the restriction, and a large proportion of those who are for removing it, seem prepared to join issue on the question "Whether a Marriage Between a Brother and Sister-in-Law is or is not a Suitable, Desirable, or Proper Thing." If you will ask the ninety-nine of every hundred women, who, as you say, are opposed to the Bill, What are their sentiments thereon? I think you page 4 will find ninety of them taking for granted that that is the question; and that those who approve of such marriages ought to vote for the Bill, and those who disapprove thereon ought to vote against it.

Now this is, According to My View, not the Question, and it is a point on which I decline giving any opinion.

This, however, I am ready to declare: that if anyone should consult me as to the desirableness of a marriage where there was a very great disparity of age or of rank, or where there was a taint of hereditary disease on either side, I should pronounce against such a marriage. But Heaven forbid we should have laws to prescribe the relative ages of parties who are to marry, or to require so many quarterings on each side like German nobles, or to have the parties examined by surgeons like so many horses for sale!

My Principle is, that the Presumption is Against all Restrictions. Some we must have. But the burden of proof lies on those who advocate either the imposition or the continuance of any restriction. We are not bound to show that page 5 everyone who is left to judge and act for himself will decide and act just in the way that the majority of his neighbours would think best; but the Others are Bound to Shew Some Great and Palpable Evil that would in such and such a Case Result from Leaving Men Free. I am no friend to late hours or to carelessness about fire or lavish feasting and dress; but I do not vote for the old Curfew Law or for laws prescribing how many dishes of meat a man may have on his table, &c.

Then As for the Mosaic Law, there again I decline giving any opinion, because I Cannot bring myself to Believe Men Serious in bringing forward Arguments about that till I Find themselves Conforming to that Law. That consistent procedure would alone entitle them to a hearing. And that is what they therefore may fairly be challenged to. This would be Π∊ριτ∊μν∊ιν τò Πραγμα

But if they say this is part of the Moral Law of Moses, how can we in any case judge of that but by the light of reason? And when the very question is about a point of morality to resort to the Levitical Law is a most palpable begging of the question. "Such and such a thing is immoral because it is page 6 forbidden by the Moral Law, and that it is so is because it is immoral!" If, then, the Levitical Law (and the same may be said of the Canons of foreign Churches and Councils) be. not binding on us it is better to waive all questions about it, unless, perhaps, to make these two remarks.

1st.—That Anything Distinctly Enjoined in that Law Ought not to be Pronounced in itself Universally and Necessarily, Criminal; and the Marriage Under Certain Circumstances of a Brother and Sister-in-Law was Enjoined in that Law.

2ndly.—That the Levitical Law is no Guide for our Legislation, Even in Cases where all Admit that Morality is Concerned; e.gr, no one doubts that gluttony and drunkenness and disobedience to parents are moral offences, yet no legislature has (in conformity with the Mosaic Code) affixed the penalty of death to them.

Waiving, then, the irrelevant questions of what marriages are suitable and desirable and of the Mosaic Law and foreign Canons, Let People be Brought to the Discussion of the True Question; which is, whether a Sufficient Public Benefit from page 7 The Restriction can be Proved to Justify the Abridgment of a Man's Liberty? Whether the evil of leaving all men to judge for themselves in this point is greater than that of meddlesome legislative interference with domestic concerns.

It Savours of Puerility and of Barbarism to be Always Keeping Men in the Leading Strings of Legislative Injunction and Prohibition. "There ought to be a law to make men to do this and to prevent their doing that!" is just what occurs to an intelligent and well-disposed child of twelve years old

We have been told in discussion on this subject "That men must learn to control their inclinations."There is One Inclination it would be well for Members of Parliament to Control—the Inclination to Overgoverning—the Lust of Legislation and of Imposing or Keeping up Restrictions.

If the Opponents of the Bill can be Brought to Confine Themselves to the Real Question—to the making out a sufficient case to justify an abridgment of liberty—I think Many of them will themselves Perceive that their Cause has Very Little to Rest on.

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"There would Arise a Scandal," they say, "at a sister-in-law residing in a widower's house if they were allowed to marry; but none at all as long as a marriage is quite out of the question:" viz., "unnatural by Act of Parliament."

I can't believe that in either condition of the law any scandal would arise among people of sense and decorum, and as for those who are dead not only to virtue but to shame, they would be out of the reach of the law. But Whatever Little Danger there is of Scandal is Greater now. If some gossiping neighbours suggested that Mr. A. was likely to marry Miss B. because she was taking charge of her deceased sister's children the rumour would soon wear away when it was found they did not marry when they might. But if the marriage is illegal then an attachment might be suspected, such as might tend to illicit intercourse. And the sister-in-law would feel it much more a matter of delicacy and doubt to reside with the widower. But I Don't Think Any Decent People would Incur Suspicion in either case. It is plain, However, that the more shocking and atrocious is any act the less likely are tolerably respectable persons to incur page 9 The Suspicion of it. Now, Undoubtedly, to have Illicit Intercourse with a Sister-in-Law would be Doubly Atrocious when the Parties are Left at Liberty to Marry if they will. And it is therefore less likely to be suspected if the law were altered than as it stands.

As For Legislating with a View to Guard any Possible Jealousy between Husband and Wife, we should Surely have Enough to do if we were to Attempt that.

A Man and a Woman Either had at Once Better be Prohibited from any Second Marriage Or perhaps from marrying anyone he had ever seen before his first wife's death! For it might be argued "he may become acquainted after his marriage with some lady who he thinks would have suited him better than his actual wife; and if this be suspected jealousy may arise"! Now In the Case of Sisters, it is Worth Observing, that a Man is in Most Cases Acquainted with the Whole Family and Singles out of all the Sisters the One he Prefers. So that this is Precisely the Case in which Jealousy is the Least Likely to Occur.

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There appears to me, therefore, a total failure in all the few attempts that have been made to support this restriction on the true grounds. But the advocates of the Bill have often, to their loss, been seduced into arguing a different question on which, though they may be very right, they are not so triumphantly and clearly in the right.

They should reiterate that The Question is not "whether a Man should or should not Contract Marriage," but "whether each should be left to Act in the way that he Thinks best, or whether the Minority should be Oppressed by the Majority and Compelled to Conform without Sufficient Cause to the Opinion of another in their Own Private Concerns."

That minority, though it be such, is considerable and respectable. Lord Campbell, indeed, says in one of his books, in a note, that it is pleaded in behalf of these marriages that they are common: and the same may be said of bribery and cheating. I cannot say I ever heard such a plea urged: though I cannot prove that it never was. What I have heard urged and I think fairly, is that such marriages are page 11 common among worthy, respectable and well conducted people.

Certainly Experience Proved for a Century and more, before the act of 1835, That the Evils to Society now Apprehended are Chimerical for there was then no Real Prohibition of such Marriages.

They were nominally illegal: but at the expense of a little trouble the law was evaded; and I believe was never enforced. At any rate it is quite certain that at that time, and long before, such a marriage was not looked upon as a thing quite impossible and out of the question,—as much as between brother and sister.

It was Well Known that these Marriages Might and did not Seldom take Place, and Yet no such evil Results to Society as Men now Dreaming of, ensued. Those Dreams are Refuted by Experience as well as by Reason.

* A Bill to legalise marriage with a Deceased Wife's Sister.