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The Pamphlet Collection of Sir Robert Stout: Volume 48

An Historical View of the Restrictions Upon Marriage Especially in Relation to England with the True Reasons Why Marriage with the Sister of a Deceased Wife was Prohibited

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An Historical View of the Restrictions Upon Marriage,

Lonbon: S. Golbourn, 66, Whitcomb Street, Leicester Square, W.C.

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Historical View, etc.

The prohibition of marriage with the sister of a deceased wife now occupies a considerable share of public attention in consequence of the late decision against the validity in England of such marriages, whether contracted in Protestant states, where they are lawful, or in Roman Catholic countries, where dispensations are readily granted.* The rule of international law, that "a marriage, valid by the laws

* Cardinal Wiseman, in his evidence before the Commissioners of the House of Commons, was asked the following question:—"With reference to Scripture, is such a marriage [as that with a sister of a deceased wife] held by your church as prohibited?' He answered, "Certainly not; it is considered a matter of ecclesiastical regulation" (Report, p. 104). Afterwards he said, "I have had a great many cases of the sort, and have never refused a dispensation. The children are attached to their aunt, and it appears altogether the most natural arrangement for their happiness" (p. 105).

page 4 of the country in which it is contracted, is valid everywhere," is decided to be subservient to "the law of the country in which the matrimonial residence is contemplated."

In this respect our law differs from that of the United States of America. The celebrated American jurist, Judge Story, says,—"If a foreign state allows of marriages contrary to the law of nature, as between parent and child, such marriage would not be allowed to have any validity here; but marriages, not naturally unlawful but prohibited by the law of one State and not of another, if celebrated where they are not prohibited, would be holden valid in a State where they are not allowed." (Conflict of the Laws, p. 107.)

When Judge Story wrote this book (little more than thirty years ago), there were some States of America, and some cantons of Switzerland, in which marriage with the sister of a deceased wife was still prohibited. The last of these prohibitions was repealed in America in 1850, and (except in the thinly populated canton of Vaud, where the old law has not yet been disturbed) the last in Switzerland in 1853. So that, at the present time, our own country, and a twenty-second part of Switzerland, are not merely the only parts of Europe, but the sole remaining portions of the globe in which such a marriage may not be legally celebrated.

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Even Russia is a pattern of liberality to England in this respect, for although the Greek Church maintains such singular prohibitions as "spiritual affinity," to members of her own creed, she does not impose them upon others.

It is, therefore, worthy of inquiry—Upon what foundation was this restriction originally laid? Why was the prohibition of marriage with the sister of a deceased wife retained in England, when so many others, equally unsupported by Scripture, were swept away? The answer is easily given, and it is desirable that the facts should be more generally known.

As to the Theological Part of the Inquiry, no such prohibition is to be found in any part of the Old or New Testament. On the contrary, the case of marriage with two sisters is included in the very chapter from which all our prohibitions are derived, and the only limitation being to the lifetime of the first sister,* seems to preclude the possibility of misconstruction on this point. It is not a case overlooked, undetermined, or left to conjecture.

The arguments for the prohibition which lay claim to any authority from Scripture, are therefore de-

* "Neither shalt thou take a wife to her sister, to vex her, to uncover her nakedness, beside the other in her life time" (Levit. xviii. 18).

page 6 rived from inferential reasoning. The first inference is, that such a marriage must be forbidden under the words, "None of you shall approach to any that is near of kin to him" (v. 6). But in the first place, this, the preliminary verse, is immediately followed by a specification of the nearness of kin prohibited. Secondly, even if the sister of a deceased wife were not excepted, as she is, from those prohibitions, she could not be included in this, being neither akin to the man in the Hebrew nor in the English sense. "Consanguinity, or kindred," says Blackstone, "is defined by writers on those subjects to be 'vinculum personarum ab eodem stipite descendentium,' the connexion or relation of persons descended from the same stock or common ancestor" (Commentaries, bk. ii. c. 14). The meaning of the Hebrew words, "col shear besaro," which we translate "any that is near of kin," is literally "any remnant of his flesh." No one contends for any further variation than to make it "flesh of his flesh," or, "relations of his flesh," in any case blood relations.

The second inference is drawn from the prohibition in the sixteenth verse against marrying a brother's wife.

The only way in which such an inference can touch the question is to take it as a parallel degree, and then to suppose it to overrule the subsequent exception made in the case of a wife's sister.

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Against the parallel it has been argued, that a married woman becomes a member of her husband's family, and that he does not of the wife's.*But the broad ground is, that this case, so far from condemning is wholly confirmatory of the other. Although forbidden to marry his brother's wife, yet, if the husband left no child, his brother was not merely

* The Rev. Dr. M'Caul says:—"The inference from brother's wife to wife's sister has been conceded for the sake of argument; but according to the principles of the Mosaic law and of the New Testament, this inference is invalid. The ground of the inference is supposed to be the union of man and wife into one flesh; whence it is argued, that the relations of the one become the relations of the other, and in the same degree. The fallacy of this argument has already been pointed out by others, by showing how many marriages, now allowed by the Church and civil law of England, would thus become incestuous and unlawful. I therefore confine myself to Scripture, and observe that, according to the Mosaic law, the wife becomes incorporated into the family of the husband as long as the husband lives, and after his death, so long as she remains a widow; but the husband is not incorporated into the family of the wife. His relations become her relations, but her relations do not become his relations. In the first place, the wife loses her family name, and obtains of right that of her husband. In the next, she is so entirely reckoned as part of her husband's family, that she is entitled to all the privileges to which birth in that family would have entitled her. Thus Ruth, the Moabitess, became by marriage a member of the tribe of Judah, and when a widow, entitled to all the privileges of the law of the Levirate, just as much as if she had been descended from Judah himself, but her husband did not become a Moabite." This argument is further supported by quotations from the law of Moses, etc., etc. (see The Ancient Interpretation of Levit. xviii. 18, as received in the church for more than 1500 years, by the Rev. A. M'Caul, D.D., Prebendary of St. Paul's, etc., 8vo. pamphlet, 1859, p. 36).

page 8 permitted, but commanded to marry the widow,*—a clear proof that there was nothing of a moral nature involved in the prohibition. If it had been otherwise, Moses would have ordered a more remote kinsman of the husband, and not the brother, to marry the widow. Saint Augustin, "comparing the prohibition with the command," admits that "it is no little question" whether the former may not have been intended for the wife of a living and not of a dead brother; adding, that a prohibition was necessary in the case of a living brother among the Jews, because Moses suffered them "for the hardness of their hearts to put away their wives."

The necessity cannot be more clearly shown than in the case of Josephus, the Jewish historian, who tells us in his Life, "About this time I put away my wife, who had borne me three children, not being pleased with her manners."

The New Testament affords instances both of the Mosaic prohibition and of the command. First, Herod reproved by John the Baptist for putting away his wife to marry Herodias, his brother Philip's wife, while Philip was living. Secondly, the case

* Deuteronomy xxv. 5: "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 shall go in unto her, and take her to him to wife, and perform the duty of an husband's brother unto her."

page 9 submitted to our Lord in the 22nd chapter of St. Matthew, of seven brothers who had married one woman in compliance with the command. Now, our Saviour overruled the decision of the old law with regard to polygamy, by teaching us that it is contrary to the purpose of the Creator. He again overruled the law as to the putting away of wives; but as He neither reproved, nor in any way altered this law, though brought immediately before Him, who shall say that it ought to be overruled?

Some have argued for extending prohibitions, by asserting that Moses has forbidden marriage with the mother, but has not forbidden marriage with the daughter. Yet, in the seventeenth verse he forbids a man to take to wife "a woman and her daughter," and surely one who should marry his own daughter would violate this law in its most execrable form.

It is not then on scriptural grounds that this prohibition can be defended; its origin is wholly derivable from Rules and Ordinances of the Monastic Ages, which we will now consider.

When the Hindoo widow prepares to sacrifice herself upon the funeral pyre of her husband, it is because she has been taught that his death is but an interruption to the conjugal union, and that the contract will be revived in its full vigour upon her page 10 own decease. The same belief was imported from Heathenism into Christianity by some of the early converts. Upon this Elysian-Fields-principle they raised the long favourite doctrine of Monogamia—that a man or woman should marry but once, because the rights of the deceased would be violated by any fresh contract into which the survivor might enter.

"Sic nos consociabimur sepulti
Et vivis erimus beatiores."

Hence all second marriages were branded as improper and unbecoming in Christians.

After this doctrine had full and uninterrupted sway for one hundred and fifty years, it was first discovered that marriage with the sister of a deceased wife should be especially prohibited.

The following authorities were first adduced by the Rev. Dr. M'Caul in A Letter to Vice-Chancellor Sir W. Page Wood, and are here cited after due reference to the originals.

Athenagoras, who wrote between A.D. 160 and 170, says that "second marriage is a sort of decent adultery," and boasts that the practice of Christians was to remain unmarried, or to marry but once. Theophilus of Antioch, who wrote about the same time, also affirms that Christians married page 11 but once; and Tertullian, another contemporary, wrote two books to his wife to warn her against second marriage as contrary to the original institution in the time of Adam and Eve.

In the middle of the next century, Origen not only declared that a second marriage excludes him that is guilty from being bishop, priest, or deacon; but also that "second, third, and fourth marriages exclude from any part of the kingdom of heaven."

Fifty years after this came the first prohibition against second marriage with the sister of a deceased wife. It was from a small provincial council of Spanish bishops held at Eliberis in A.D. 305. This council enjoys also the distinction of having been the first to prohibit absolutely the marriage of the clergy.

Nine years later followed the first prohibition against marriage with a brother's widow. This came from the council of Neocæsarea (a city of Pontus, in Asia Minor), in A.D. 314. Marriage with a wife's sister was not there prohibited, but all who married a second time were to undergo penance, and priests were forbidden to be present at the marriage feast. It also commanded the degradation of those who married after ordination.

A somewhat similar law is found in the so-called page 12 "Apostolic Canons," which are equally of the beginning of the fourth century. By these, any man who married a widow, a servant-maid, two sisters in succession, or contracted any second marriage, was not to be admitted into holy orders. It is now confessed that these Canons have no claim to their "Apostolic" title.

The first check to these doctrines proceeded from the General Council of the Eastern and Western Churches, assembled at Nice in A.D. 325. By its eighth Canon it was made a primary condition, upon receiving the Katharoi, or Purists, into the Catholic and Apostolic Church, that they should hold communion with those who had contracted second marriages, and with those who had only lapsed from the faith through persecution. This general Council did not prohibit second marriage with a wife's sister or brother's widow, neither did it enforce celibacy upon the clergy.

So far it was a church question only; but in A.D. 355 Constantius altered the law of the Roman Empire. Some, not liking to owe the first prohibition of marriage with the sister of a deceased wife to an Arian, have quoted this law as of Constantius and Constans, although history says that Constans was killed five years before. It may also be remarked, that the greatest restrictions upon marriage (such as prohibitions of "spiritual affinity"), and page 13 the most cruel laws (such as burning to death cousins who intermarried), proceeded not from the most moral, but from some of the very worst of Roman Emperors.

Nearly twenty years after its thus passing into a law, St. Basil wrote the answer to Diodorus which has been so much quoted as an authority for continuing the prohibition. Some are disinclined to admit that Basil's correspondent was "the learned Diodorus," Bishop of Tarsus, and previously a presbyter of Antioch; but as the writer who called forth this reply was considered "an authority"—one whose "letter was carried about as a trophy against Basil,"—as he named other parts in which such marriages were permitted—and as we further know Basil to have been in correspondence with this Diodorus, and have no proof even of the existence of any other, it would be reasonable to assume the identity, if we had not also the corroborative evidence of a later Greek writer. In one of Basil's letters he thanks Diodorus for two books that he had written, praises them, and hopes he will write more.

Diodorus had been appealed to on the subject of second marriage with the sister of a deceased wife. He did not consider it unlawful, and addressed himself to Basil, who had forbidden it, defending such marriages from Scripture. Basil replied indignantly, page 14 affecting to believe that Diodorus could not have written such a letter, and answered it three ways.

"The first argument," says St. Basil, "and the strongest in all such questions, is our custom, which has the force of law, inasmuch as our rules were handed down to us by holy men." His second argument is, that Christians are not under the law, and that "if we find anything in the law favourable to our pleasures, we are not on that accouut to put ourselves under the yoke of the law." In the third, he endeavours to prove a prohibition from the Old Testament, by bringing in the wife's relations under the head of kindred to the husband, because the wife and he were "one flesh." According to this argument, if two brothers married two sisters, the second marriage would be of brother and sister, and must therefore be forbidden. How very unlike this is to the teaching of the Old Testament will be best shown by the following extract from the book of Numbers xxxvi. 10. "Even as the Lord commanded Moses, so did the daughters of Zelophehad: 11. For Mahlah, Tirzah, and Hoglah, and Milcah, and Noah, the daughters of Zelophehad, were married unto their father's brothers' sons."

Neither the church nor the civil law of England agrees with the second and third of St. Basil's propositions. We retain the moral law of the Jews, unless modified by the New Testament. We do page 15 not treat affinity as consanguinity, or else many marriages now lawful would be forbidden.

Let us examine the first, the "customs which had the force of law" with St. Basil. These will be best exemplified by extracts from his own Canons, which he recommends to Amphilochus, Bishop of Iconium.

Canon 4 treats all second marriages as so sinful as to subject the offender to a year's excommunication, and by Canon 12 he is excluded ever after from holy orders. By Canons 4 and 50, third marriages are denounced as "filthy, worse than habitual fornication," and entail five years excommunication. This he justifies wholly by "custom;" for although they had a canon against second, there was none against third marriages. By Canon 26, if persons live together as husband and wife, but refuse to marry, they are not to be separated, "lest worse should come of it." By Canons 9 and 21, he considers that a married man living in lewdness with an unmarried woman is not an adulterer. "We have indeed," says he, "no Canon to subject him to the accusation of adultery, if the sin be committed with an unmarried woman." "But he who committeth fornication shall not be excluded from cohabitation with his wife, so that the woman shall receive her husband when he comes back from fornication." He tells us that "the reason of page 16 these things is not easy, but so the custom has prevailed."

The reason is not indeed easy; and we doubt if Englishwomen would approve the custom, or consent to be guided by such authority.

St. Basil was Bishop of Cæsarea, and corresponded with the Bishop and others of the neighbouring province of Neocæsarea, where Origen had taught. He was evidently not a submissive churchman, for he maintained their doctrine of Monogamia after it had been condemned by a general council.

From the time of St. Basil restrictions went rolling on, with occasional fluctuations, until they rested at seven degrees of consanguinity, seven of affinity, and seven of spiritual affinity.

Some reader may ask the meaning of the last. It was a supposed spiritual relationship created by baptism; so that if a young man and a young woman, of different families, stood godfather and godmother to the child of a third family, the godfather could not marry the godmother or goddaughter, and the three families could not intermarry within seven degrees. Coke instances as a case, that a marriage would have been declared null, and the issue illegitimate, if the husband had been godfather to the wife's cousin.

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In England, the canon law was not fully enforced for some centuries after our conversion to Christianity. Pope Gregory I dispensed with all restrictions of consanguinity beyond that of first cousins, to the Anglo-Saxons, in 597, and it appears from canons of the tenth century that our prohibitions did not then exceed four degrees; but from a period long anterior to the Reformation, the laws of marriage were wholly subject to the canons of the Church of Rome. The restrictions of consanguinity and affinity had been generally reduced from seven to four degrees by the fourth Council of Lateran in 1215; and the reason assigned for this relaxation was "that there are but four humours in the body, which number is proved by the four elements." For such forcible reasons, perhaps, no subsequent increase was attempted; but still the canon law contained so many meshes in which families might unknowingly be caught; such as precontracts on either side, spiritual affinity, adoption, etc., any of which would have the effect of annulling the marriage and bastardizing the children, that the only safe way of escape was by dispensation. Some flaw might be detected in any title where the lineage and intermarriages could be thoroughly traced, if this precaution had been neglected. It was not the policy of the Popes to simplify the canon law, because dispensation had become a great source of revenue; and for the same reason the Church of England retains a dispensing power, reserved to the Archbishop of Canterbury in page 18 all statutes, and profitably exercised in the granting of ordinary and special marriage-licences.

Dispensations were sought as a means of gaining favour with the all-powerful Church, where impediments could scarcely have existed. In the case of Henry VII and Elizabeth of York, no common ancestor could be traced until upon the verge of a hundred and fifty years, and for more than half that time the two branches of York and Lancaster had been at deadly feud. Yet these two were married by dispensation; and so tender did Henry report his conscience to be, that, not satisfied with one dispensation from the Legate, he obtained a second from the Pope, clearly that it might include a recognition of his title.

The History of Our Present Prohibition of marriage with the sister of a deceased wife, hangs upon another dispensation granted in this reign. Not that it was immediately in question, but imported into the case as a parallel degree to brother's widow.

Prince Arthur, Henry VII's eldest son, was married to Catherine of Arragon, at the old Cathedral of St. Paul, when he was little more than fifteen years of age, and the bride twenty. Prince Arthur died at Ludlow, only five months after the marriage. In the following year, after dispensation from the Pope, page 19 a new contract was made for the marriage of Catherine with Prince Henry (Arthur's younger brother), who subsequently came to the throne as Henry VIII. Henry was then only in his thirteenth year, and the marriage took place in his nineteenth, after he had become king.

The character of the Pope who granted the dispensation has been recently held up to obloquy, as a ground for attacking this particular act, but, in the first place, no Pope had the power of dispensing within degrees prohibited in the Old Testament, and in the second, he had here the authority of St. Augustin, who discusses the question, as to whether such a marriage was forbidden, and decides that it was not. Again, the translation of the Scriptures by St. Jerome, the Latin Vulgate, had been the authorized version of the Church for then about eight hundred years, and the interpretation of these passages agrees entirely with that of St. Augustin, and with our own.

Marriage with a brother's widow, or with the sister of a deceased wife, was not prohibited by any of the (Ecumenical Councils which alone does the Church of England acknowledge as of any authority.

Henry was perfectly willing to marry Catherine when he became king, and although far from proving a faithful husband, yet, for seventeen years, he treated page 20 her with every outward mark of respect. At the expiration of that time, all chance of Catherine bearing him a son (which he ardently desired) seemed to have passed away, and Henry had become enamoured of Anne Boleyn, then in her twentieth year. Catherine was in her forty-third, and retained little of her former beauty—still she might live many years! Then his conscience began to prick him for having married his brother's widow. He applied to the Pope to declare the marriage contrary to the law of God, and therefore one for which his predecessor in the chair of St. Peter had no power to grant dispensation. The difficulties in which the Pope was involved seemed to promise well for Henry's suit, but after long negotiations and delays, it was finally refused, and the refusal led to the overthrow of the Papal power in England.

Henry became to a limited extent a reformer. He approved of the Reformation so far as becoming his own Pope, and replenishing his coffers from the wealth of the clergy; but on other points his views were far less decided. After taking the lion's share of the plunder, he distributed abbeys, monasteries, and the great tithes of parishes, among his courtiers, who highly approved such a head of the church. The less pliable were less fortunate—their share was fire and faggot, the rope, and the block; and these royal favours were distributed to the zealous of both creeds with the strictest impartiality.

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Henry waited for no decree to annul his marriage with Catherine before he contracted a new one with Anne Boleyn. Queen Elizabeth, the child of the second marriage, was born on the 7th September, 1533, only three months and a half after the sentence of divorce pronounced by Cranmer. The Parliament which passed the statute forbidding appeals to Rome (24 Henry VIII, cap. 12) met in February, 1532-3; the court over which Cranmer presided, derived its authority from that Statute, and Cranmer pronounced the sentence of divorce between Henry and Catherine, on the 23rd of May, 1533.

In the following session of parliament an attempt was made to repair the defect in this marriage, by an act for settling the succession to the throne (25 Henry VIII, cap. 22). By this, the issue of Anne Boleyn was declared to be lawfully begotten, and Catherine was no longer to be called Queen, but "Dowager of Prince Arthur." A marriage with a brother's wife, or wife's sister, was now declared to be void as within the prohibited degrees—"according to the just judgment of Thomas, Archbishop of Canterbury." The "grounds" of Cranmer's judgment are said to have been confirmed by the convocations of the clergy, by the two universities, and some foreign universities. Every one knows how those confirmations were extorted. The mixture of fraud and threat by which thirty-seven votes were page 22 obtained against twenty-five in the university of Oxford, is best detailed by John Longland, Bishop of Lincoln, one of Henry's three Commissioners.* Yet, these sixty-two had been "chosen to decide the King's cause," and were to be taken as the "definition" and determination of the whole university.

Henry had no great regard for his daughters. By this act he bastardized Mary, and three years later, Elizabeth shared her fate. The king had then married Jane Seymour, and an act was passed declaring the issue of both the preceding marriages illegitimate. (28 Henry VIII, cap. 7.)

When Mary came to the throne all was reversed. Henry's marriage with Catherine was solemnly pronounced by Parliament to have been from the beginning "a most true, just, lawful and perfect marriage, having its beginning of God, and by Him continued" (1 Mary, 2 Ses., cap. 1). This statute has never been repealed.

That either Queen Mary or Queen Elizabeth must be illegitimate was manifest to all. If the marriage

* This letter is among the State Papers, and reprinted in the Pictorial History of England, vol. ii. p. 376. It was unknown to our earlier historians, but fully bears out the contemporary account of Lord Herbert, and that of Anthony a Wood. Among other things, Wood says, "That when at last the judgment was obtained, it was extorted by a violent interference with the constitution of the university, and passed surreptitiously at night, amidst open and fearless remonstrances."

page 23 with Catherine was good, then the stigma must rest upon Elizabeth, and if bad, upon Mary. Still, when Elizabeth came to the throne she did not revive the act in which marriage with a brother's wife or wife's sister had been expressly declared within the prohibited degrees. She selected a later statute (32 Henry VIII, cap. 38), which enacts "that all persons are lawful to marry that be not prohibited, by God's law; and that no reservation or prohibition (God's law except), shall trouble or impeach any marriage without the Levitical degrees." This was the first act of Parliament in her reign, and there was no subsequent one upon the subject until the year 1835. It left the question of what is and what is not contrary to God's law undefined, and at the time of its passing, there was a reason why this course should be preferred. Philip of Spain had offered his hand to Elizabeth, upon her accession to the throne, and she stood to him in the degree of sister to a deceased wife. Elizabeth affected no pious horror at such a proposal, but gave him the same hopes as to her subsequent suitors, without any intention of realizing them.

So again with Mary Queen of Scots. Her French relations proposed to her to marry the Duke of Anjou, one of the brothers of her late husband, and it was not from religious scruples, but from purely political motives, that she declined the match.

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In truth, religion had very little to do with the matter. It was the interest of princes by which these laws were guided.

Elizabeth's definition of Levitical degrees was kept back for more than four years after the passing of the act. There could be no doubt as to one degree that must be prohibited, since her own legitimacy, and consequent right to the throne, rested entirely upon the marriage with a brother's widow being void. There was not the same necessity for prohibiting marriage with a wife's sister, but as Philip had re-married, and there was no longer anything to be gained through him, it seemed desirable to follow the example by which her own birth had been declared legitimate; so the act which was passed for the purpose of degrading Queen Catherine, and legalizing Henry's marriage with Anne Boleyn, was implicitly followed.

The table of prohibited degrees was published by authority in 1563, and ordered to be placed in churches. It has sometimes been called Archbishop Parker's table, because he was then primate; but its proper name is the table of Henry VIII, since he was the sole author.

We may judge a little of Archbishop Parker's feeling on the subject, by the following extract from a letter addressed to him by Bishop Jewell, in the page 25 month of June, 1563. (Works of John Jewell, Parker Soc. Edit., p. 1262.) "Chafin, that hath married two sisters, upon his appeal from your Grace and me, hangeth still before the delegates, and, as much as I can perceive, is not likely to take any great hurt at their hands. I would they would decree it was lawful to marry two sisters, so should the world be out of doubt, as now it is passed away in a mockery."

This passage would not have been written by Bishop Jewell if he conscientiously believed such a marriage contrary to the law of God; and while he had the best means of knowing the Archbishop's sentiments, he must equally have believed them to coincide with his own; for, if otherwise, it would have been the duty of both to resist, and the mere suggestion of submission became an insult.

Archbishop Parker has sometimes been charged with too great submission to the will of Elizabeth; but it should be borne in mind that no limit had been imposed to the royal prerogative in ecclesiastical affairs. He had witnessed the despotic exercise of ecclesiastical supremacy from the time it was first assumed by Henry VIII, and Elizabeth was certainly not one to be content with the shadow, and refrain from the exercise of power. History proves that, during her entire reign, she was not merely the nominal, but also the real head of the church.

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When James I came to the throne, this table of prohibited degrees was accepted in No. 99 of Constitutions and Canons Ecclesiasticall, agreed upon in the year 1603; and although this was a convocation of clergy without laity, it has since been treated as Canon law. The Canons were never confirmed by act of parliament. They are a hundred and forty-one in number; but a clergyman, upon ordination, is now required to subscribe one only (No. 36). The first twelve excommunicate ipso facto (i.e., from the very moment), all who deny the king's spiritual supremacy; all Roman Catholics, Puritans, Dissenters, Maintainers of Conventicles, or any who affirm one of the 39 articles to be erroneous. Hallam speaks of them as "obligatory perhaps upon the clergy, but tending to set up an unwarrantable authority over the whole nation." Nonconformists are by these Canons excluded from claiming their debts, from appearing as witnesses, and from all civil rights.

The courts of civil law disregarded the ipso facto excommunications, and in the case of marriage with the sister of a deceased wife, they interfered to prevent the institution of suits after the death of either of the contracting parties. If one suit was commenced in their lifetime, although a friendly suit which would never be carried through, it precluded all others, and the marriage became unimpeachable. So until 1835 Canon No. 99 remained virtually a dead letter. Few lay-members of the page 27 Church of England chose to accept a definition of prohibited degrees from a convocation at which they were unrepresented, especially as that definition is unwarranted by Scripture; and neither Roman Catholics nor Dissenters could entertain any scruple at evading the Canons of a church to which they disclaimed allegiance.

The real pressure, the real restriction upon all, came after the act of Parliament passed in 1835. Although known as Lord Lyndhurst's act, the restrictive clause was added against the wish and intention of its framer. A late bishop bargained for the future prohibition of such marriages as the price of his influence to the legalizing of all that preceded the passing of the bill. In spite of the seeming in-consistency of this proposal, the terms were accepted, because the immediate object of the act was to remove all question as to the marriage of a late amiable duke with the half-sister of his deceased wife.

Any one who will now turn back to the debate on that bill, will find, that while the part by which such marriages were legalized, met with general assent in the House of Commons, the prohibitory clause nearly caused it to be rejected. It was only permitted, because the legalizing up to that date seemed the greater good, and the bill could not otherwise have passed in that session of parliament. The House of Commons has since affirmed page 28 its decision by majorities for the repeal of the restriction in thirty-one divisions out of thirty-three.

After the passing of the act, many believed that their marriages could not be called in question if celebrated abroad, but recent decisions prove that there is no escape. Although the social position of the parents has in no way been affected, the children have in many cases paid the penalty, and until the act shall be repealed, every year will add to the number.

In those states of America where no prohibition existed, the testimony to the good effect of such marriages were universal—not one to the reverse. Hence the removal of their last prohibition.

Where there are young children, no second marriage can be so likely to restore the happiness of families as that of the husband with the sister of the deceased wife. In any other marriage the children become so many incumbrances to the stepmother, and the feeling between them is rather one of duty than affection. Affection may grow up, but experience shows that more frequently discord takes its place, especially where there are children by the second wife.

If good and conscientious people differ in opinion upon this point, a removal of the restriction will compel no one to marry his wife's sister. Surely, page 29 then, the restrictionists may have toleration for the opinion of many of the best among their own countrymen, backed as it is by Protestant and Roman Catholic countries all over the world.

Weakness of argument has tempted some to use harsh words—words that create prejudice among the unthinking, and so supply the place of argument. The favourite cry for this purpose has been "incest," as having the most hateful sound. It has been used in the form of quotation, where no equivalent exists in the original. They who adopt it should bear in mind that they accuse Moses of commanding the Jews to commit "incest," for the mere purpose of keeping up the families of Israel; that they accuse our Saviour of countenancing the continuation of this "incest" when the occasion had passed away; and that they charge every other country, Protestant or Roman Catholic, with permitting and practising "incest" at the present time. Indeed, they convict themselves; for the same persons would permit two brothers to marry two sisters, and yet, upon their St. Basil theory, the second marriage is clearly as much one of brother and sister as when a man marries the sister of his former wife. Indeed, the first has a double link, the second but a single. So the harsh words recoil only upon their authors. May we all live to see this intolerant spirit die away!

May it not be truly said, that the prohibition had its origin in a heresy? that it was first made law page 30 by a heretic? and that it was imposed upon his subjects by Henry VIII, not from any real scruples of conscience, but for the purpose of getting rid of an old wife, and making room for a young one?

There are many who readily admit that marriage with the sister of a deceased wife is not prohibited in Scripture, yet desire to maintain the present prohibition as a social protection. This objection is by far the most generally adopted, and yet no position can be more untenable. The experience of every other country has proved the fear of ill consequences from the absence of such "social protection" to be groundless. In the meantime the prohibition is productive of a real social evil. While it acts as a harsh restriction upon some, it leads others to contract marriages which are not recognized by the laws of their country, and, with the poorer classes, too often induces a disregard of all ceremony, if not a false oath to a registrar, when they are refused marriage by the clergy. Among the very poor, a wife's sister is generally the most fitting, and not unfrequently the only person who will take charge of her sister's children.

There is surely more reason for extending "social protection" to the female servants of a household than to a wife's sister, a member of another family, brought up under another roof.

Printed by S. Golbourn, 66, Whitcomb Street, Leicester Square, W.C.