almost every year after that

Transcription

CynthiaFanslerBehrman
THE
A SIDELIGHT
ANNUAL
ON VICTORIAN
PARLIAMENTARY
BLISTER:
SOCIAL
AND
HISTORY*
"And he shall prick that annual blister,
Marriage with deceased wife's sister."
-The Queen of the Fairies'
curse fromlolanthe
IN NOVEMBER 1882, THE SEVENTH OF GILBERT AND SULLIVAN'S OPERETTAS,
the
Iolanthe,or,thePeerand thePeri,openedin London.In thestory,
an
QueenoftheFairies,angrywiththeHouseofLords,sendsStrephon,
mischief.
Arcadianshepherd,
intoParliament
to makea littlelegislative
is tosettlea perennial
problem:
legislative
Amongotherthings,
Strephon
Thisis theonlytimewe hearofthe
withdeceasedwife'ssister.
marriage
than
butitwas a moreappropriate
fromGilbert,
"annualblister"
epithet
before
he knew,fornotonlyhad it beena perennial
lolanthe,
problem
but after1882the questionof legalizingsucha marriagecame up in
back into
everyParliament
excepttwountil1907.The issuestretched
Act
and
Lord
of
to
1835, even,insome
Lyndhurst's
history
parliamentary
senses,to HenryVIII's quarrelwiththeChurch.
The marriagequestionwas onlyone of a numberof different
between
sides to the continuing
storyof the unresolvedrelationship
a
was
not
churchand stateinEngland.The EnglishReformation
simply
ofTudorand Stuarttimes,butextendedintothepolitical
phenomenon
* I should like to acknowledgethe generoustheological and legal assistance of two
friends: the Rev. Benedict Green, C.R., of Mirfield,Yorks., and the Rev. E. S. S.
Sunderlandof Cambridge,Mass. They are not to be held accountable,however,for
errors,nor formyown perverseopinions.
JUNE 1968
This content downloaded from 198.91.37.2 on Mon, 19 Jan 2015 13:11:15 PM
All use subject to JSTOR Terms and Conditions
484
CynthiaFansler Behrman
and religioushistoryof laterreigns.In thenineteenth
century,underthe
general influenceof liberal thought,Parliamentbegan to assertmore
oversubjectswhichhad been chiefly
inthehandsoftheChurch.
authority
In particular,marriagelaw came in formuch scrutiny,
as attemptswere
made to disentanglea hideous knotof civil regulations,churchcustom,
biblical proscriptions,
commonlaw, and conflicting
as well
jurisdictions,
as certaininequitiesimposed on Jews,Roman Catholics,Quakers,and
Nonconformists.
Marriage law had never been solely the provinceof
ecclesiasticalauthority,althoughfrommedieval timesthe Church had
triedto impose regulationson the civil law, in the interestsof greater
and clarity.Since so much of importance- for example,inspecificity
heritance,wardship,and property- hungon thequestionofthevalidity
of a marriage,the impositionof stricterstandardson the marriagecontractwas verydesirable.' Commonlaw requiredonlythe declarationof
consentto marriage;no religiousformality
was required. The Fourth
LateranCouncil requiredthepublicationof banns and urgedthe clergy
to solemnizethe marriage,althoughthe Churchcontinuedto recognize
thevalidityof a consensualmarriagecontract.2
With the more specificquestionof the definition
of legallypermissiblemarriagesParliamentwas also vitallyconcerned,and for the
same reasons as above: the need to regulatevalidity.As Maitland remarks,"marriageis not a matterthatcan be leftto judicial discretionor
a matterabout which theremustbe
naturalequity.It is preeminently
rules."3
hard and fast
There certainlyhad been no lack of rules. Generally speaking,English law followedcanon law and prohibitedmarbut the questionwas hisriage withincertaindegreesof consanguinity,
and
be
worth
toricallyverycomplex,
examiningbriefly.
might
I
In its earlyyearsthe ChristianChurchconformedto Jewishlaw
In Jewishmarriagelaw, as foundin
and to Roman civil proscriptions.
LeviticusXVIII, marriagewas forbiddenwith a long list of collateral
1 Sir FrederickPollock and Frederic William Maitland, The Historyof English Law
Beforethe Time of Edward I, 2 vols. (Cambridge,1895), II, ch. vii, gives a veryclear
accountoftheseproblems,and oftherelationbetweenchurchand civillaw.
2 JamesT. Hammick,The MarriageLaw of England: A Practical Treatiseon the Legal
IncidentsConnectedwiththeConstitution
oftheMatrimonialContract,2nd ed. (London,
1887), p. 4.
8 Roman Canon Law in the Churchof England, Six Essays (London, 1898), p. 38.
VICTORIAN
STUDIES
THE
ANNUAL
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485
relatives,includingone's father'swidow, one's daughter-in-law,
aunt,
and brother'swidow,among others.As one authority
has remarked,it is
uncertainon what principlethe listwas framed,but it seems likelythat
the purpose was to preclude discordwithinthe home, and that those
excludedfrommarriagewere the ones mostlikelyto be membersof the
same household.4DeuteronomyXXV, 5, 6, appears to be in contradiction
to the earlierlaw forbiddingmarriagewithbrother'swidow (Leviticus
XVIII, 16), but theDeuteronomypassage referredto thespecial circumstance of the so-called "levirate"marriage:the case of a childlessmarin order
riagewherethewidow was requiredto marryherbrother-in-law
to providethe deceased withan heir.
The earlyChristianChurchalso obeyedtheRomancivilmarriage
law. In early Republican times,Romans seem to have forbiddenmarriage between all related persons. During the years of the Republic
restrictions
were graduallyrelaxed.In theRoman Empire,marriagewas
and in the collateralline to the
forbiddenin the directline indefinitely,
thirddegree,thatis,betweenbrothersand sisters,or nephewsand aunts,
centuriestheChurch
but notbetweenfirstcousins.5By thefourthor fifth
and
its
to
assert
own
began
independentauthority, canonicallegislation
became stricter,
althoughthe emphasiswas always upon tradition,corratherthan on innovation.When St. Basil the Great
rectlyinterpreted,
(c. 330-379) forbadein his diocese the marriageof a man withhis deceased wife'ssister,he answeredobjectionswiththe defensethat such
thisprinhad alwaysbeen the local law.6 SuccessiveCouncilsconfirmed
sixth
cousins
the
extreme
of
to
extended
the
forbidden
and
degrees
ciple
because Roman law recognizedblood relationshipto this degree. The
to enforce.
was, understandably,
verydifficult
prohibition
The Church also forbademarriagebetweentwo personsrelated
on St. Paul's principlethatsexual unionmakes two people
by "affinity"
4 George Hayward Joyce,S.J., ChristianMarriage: An Historicaland Doctrinal Study
(London, 1933), p. 532.
5 H. A. Ayrinhac,S.S., D.D., D.C.L., MarriageLegislationin the New Code of Canon
Law (New York, 1918), p. 170. There were two ways of reckoningthe degree of
relationshipin the collateralline: the Roman, in which one counted the generations
on both sides to a commonancestor,and the Teutonic,in whichone countedthe generationson one side (the longerif theywere unequal) only.Thus, forexample,second
cousinswould be relatedin the sixthdegreeunderRoman law, and in the thirddegree
under Teutonic law. In the eighthor ninthcenturythe Church,which had followed
the Roman methodof counting,began to adopt the Germanic (pp. 168, 171). The
Churchhas alwaysforbiddenmarriagein the directline.
6 Ayrinhac,p. 174. FatherGreencommentsthatsome scholarshave conjecturedthatthe
greaterstrictnessexercisedby the ChristianChurchwas probablydue to sensitiveness
about the charge of incest,which was a commonplaceof anti-Christian
propaganda,
possiblyowingto garbledreportsof the kiss of peace in the eucharist,and of Christians
calling each otherbrotherand sister.
JUNE 1968
486
a principle
"oneflesh,"
whichwas derivedfromJesus'teaching(Mark
and
the
Old
Testament
X, 8)
(GenesisII, 24). Thusthebloodrelatives
ofone'sspousewereconsidered
and thesame
to be one'sownrelatives
wouldexistas in consanguineous
tomarriage
impediments
relationships.
- carried, as they
These two principles-consanguinity and affinity
themarriage
were,to theseventhdegree,so limitedand complicated
questionthatby 1215theChurchrecognizedthatsomesimplification
was necessary.
The FourthLatheranCouncilreducedthelimitation
to
thefourth
third
in
the
collateral
and
in
line,
cousins)
degree(thatis,
the late medievalperiodbothfourthand thirddegreeswerewidely
dispensable.
The Christian
ofRomanand
law,based on thesetwotraditions
lasteduntil
Jewishcodes,but withconsiderable
subsequentaccretion,
theReformation,
whentheProtestant
churches
sweptawaythemedieval
rulesand based theirruleson thoseto be foundin scripture.
In the
was a thorny
AnglicanChurchthesubjectofpermissible
one,
marriages
sinceforbothof HenryVIII's daughters
the legitimacy
of birthand
thronedependedon interpretation
ofthemarriage
law. Henryhad also
tinkered
withthequestionofaffinity
in trying
to extricate
from
himself
hisfirst
and secondalliances(Hammick,pp. 7-8).In 1563,Archbishop
MatthewParker,apparently
on his own authority,
issueda Table of
a
Prohibited
table
which
became
the
list
fortheAnglican
official
Degrees,
Church.He also restatedthemedievalChurch'sprinciple
thataffinity
was contracted
as
well
as
a
man
andwoman
of
byillegal
legalcompany
idea
had
This
been
since
theeighth
(Joyce,p. 556).
widelyaccepted
to AnneBoleyn
indeed,HenryVIII claimedthathismarriage
century;
was void on thegroundthathersisterMaryhad previously
been his
mistress.
In 1603,theconvocation
fortheprovinceof Canterbury
issued
severalCanonsconcerning
thegovernment
oftheChurch,theninetyninthof whichstatedthat"No personshallmarrywithinthedegrees
prohibited
by thelaws of God and expressedin a tableset forthby
in theyearofOurLord1563.Andall marriages
so madeand
authority
shallbe judgedincestuous
contracted
and unlawfuland consequently
shallbe dissolvedas voidfromthebeginning."7
theCanons
Although
receivedtheroyalassent,theydid nothave the assentof Parliament
and thusdid nothavetheforceofstatutory
law,but,in statingancient
the
of
Church
in
usage
theybecame, effect,
morallybindingon the
7
Quoted in G. K. A. Bell, Randall Davidson, Archbishopof Canterbury,2 vols. (New
York, 1935), I, 551.
VICTORIAN
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THE
ANNUAL
BLISTER
487
laity.In fact,thelaitywerealreadyboundby Tudorstatutelaw which
had recognizedtheprohibited
Parker
degreesevenbeforeArchbishop
had issuedhistable.8
II
Allhumansocieties
havebeenfearful
ofincest,
andhavewrestled
withtheproblemsof definition
and withvariousincesttaboos.In the
nineteenth
relaxedtheirrigidrestriccentury
manyEuropeancountries
In
tionson permissible
for
marriages. England,too,therewas pressure
in
from
theNonconformists,
who did notsubscribeto the
reform, part
ofthedissenting
had
Anglicanrules.Since1753themembers
religions
to Anglicanceremony
in order
also beenundertheonusofconforming
as valid.Lord Hardwicke's
thattheirmarriages
be recognized
Act (26
to do awaywiththe"evil"consequences
Geo. II, c. 33) had attempted
thatall marriages
had to be
of clandestine
by establishing
marriages
in a parishchurchorpublicchapel,afterproperpublication
solemnized
and officially
of banns,in the presenceof two witnesses,
registered.
these
but
and
were
from
exempted
provisions,
Quakers Jews
specifically
The law was so stringent
not RomanCatholicsand Nonconformists.
in
evadeditbygetting
married
thatmanypeopledeliberately
initsterms
Thesegrievances
wereremoved
Scotland.9
bytheMarriageActof 1836
to different
according
(6 & 7 Will.IV, c. 85), whichallowedmarriages
a
thevalidity
of marriage
whichwas
and recognized
customs,
religious
purelycivilin character.
led to
of the degreesof affinity
The pressureforliberalization
at
this
too.
ofpermissible
ofthematter
consideration
time, The
marriages
courtshad been in the habitof pronouncing
ecclesiastical
marriages
null
and
Either
or
both
of the
as
void.
withintheprohibited
degrees
It
lead
court.
could
the
was
suit
to
when
be
dead
brought
partiesmight
declaredilif theheirto a marriagefoundhimself
to somebitterness
relative.
a
or
a
suit
success
the
of
on
jealous
by spiteful
brought
legitimate
andprohibited
law courtsinterfered
In thetimeofJamesI thecommon
8 32 HenryVIII, c. 38, confirmed
by 1 Elizabeth I, c. 1, s. 3. See Halsbury'sLaws of
England,2nd ed. (London, 1935), XVI, 566, notesk and 1,whichcontainthecomplete
table.
9 For more detail on the provisionsof this Act and its amendments,see P. M. Bromley,
Family Law (London, 1957), pp. 35-38; Nevill Geary, The Law of Marriage and
Family Relations,A Manual of Practical Law (London and Edinburgh,1892), pp.
12-15; and Hammick,pp. 12-16.
JUNE 1968
488
the ecclesiasticalcourtsfromintervening
afterthe death of one of the
Since
these
were
called
then,
"voidable,"meaningthat
marriages
parties.
their validitycould be questioned only during the lifetimeof both
Lord Lyndhurst'sAct (5 & 6 Will. IV, c. 54), passed in 1835,
partners.10
the
situation.Marriageswithinthe prohibiteddegrees,which
changed
had been voidable, now became null and void ab initio,at the outset.
This act caused a great outcry.Previously,the easiest way to assure
yourselfof an "unimpeachable"marriageif therewere some question
about its validityhad been to get a friendto bringa suitin courtchallengingthe marriage- a suit which would be continuedmore or less
While a suitwas beforethe courtit was impossibleto bring
indefinitely.
anotheron thesame subject,therefore
themarriagewas safe fromquestion and the childrensafe in theirinheritanceuntil the death of the
parents.And thereafter
theywould stillbe immunebecause of the common law provision.But such was no longerthe case.
Accordingto a supporterof reform,a barristerand Member of
thereweremanypeoParliamentnamedJamesArchibaldStuartWortley,
the
wished
law
He
to
the
who
House "numerous
ple
changed.
presented
petitions,prayingforan alterationof the law of marriageas relatingto
the prohibiteddegrees of affinity,"
and claimed that among the petitionerswere: 1oo Anglican clergymen,141 Dissentingministers,126
Mr. Wortleyconsolicitors,6 mayorsof boroughs,and 68 magistrates."1
cluded his speech witha motionthata Royal Commissionbe appointed
to look into the question.The House agreed, and accordinglyin 1847
such a commissionwas appointed,among whose memberswere the
redoubtableMr. Wortleyhimself;Dr. StephenLushington,an experton
ecclesiasticallaw; JusticeSir Edward Vaughan Williams;a Mr. Blake, a
Roman Catholic and late Chief Remembrancerof Ireland; the Lord
an experton Scots law; and the Chairman,
Advocate,Mr. Rutherford,
This Commissionheard a greatdeal
Lichfield.
of
Lonsdale,
John
Bishop
bothof supportand opposition,fromclergyand laity,legal
oftestimony,
experts and anonymous "interested"people, and ultimatelyrecommended liberalizationof the prohibiteddegrees along the lines of the
laws of theContinentalnations,includingmarriagewithdeceased wife's
sister.The fact that othercountrieswere movingin this directionleft
some criticsunimpressed.Dr. E. B. Pusey, in his testimonybeforethe
10 First Report of the Commissioners Appointed To
Inquire Into the State and Operation
of the Law of Marriage as Relating to the Prohibited Degrees of Affinity,and to Marriages Solemnized Abroad or in the British Colonies, Parliamentary Papers (PP)
(1847-48), xxviii, 237; and Hammick, pp. 32-33.
11 Hansard, Parliamentary Debates, 3rd Ser., xcii, 742 (Thurs., 13 May 1847).
VICTORIAN
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489
Commission,sharplydisposedofthisargumentwhenhe pointedoutthat
it was perfectly
possibleforall othercountriesto be wrong,and England
to be right!12
But his positionon the questionwas probablya minority
one.
It was commonlyassumed that the Church forbade such maron
riages the groundsthatancientJewishlaw forbadethem.A rabbi,a
certainDr. Adler,in a letterto the Commission,stated that "the marriage of a widowerwith the sisterof his deceased wife is not onlynot
understoodto be permitted,
consideredas prohibited,but it is distinctly
and on thispointneitherthe Divine Law, nor the Rabbis, nor historical
Judaismleave roomfortheleast doubt."'3
If the Jewsallowed such alliances,where did the idea thatthey
were impermissible
originate?Clearly,withthe earlyChristianChurch,
which was followingRoman traditionas much as Jewish.But the reof
formedchurches,as partof their"protest,"
had rejectedthe authority
as
the Catholic Church,and substitutedscripture sole authority.This
attitudethen put them in an awkward spot: marriagewith deceased
wife'ssisterwas not prohibitedin Leviticus,yetmostpeople feltthatit
ought to be. Argumentforprohibitionwas made by a parallel to the
ofmarriageto brother'swife (Lev. XVIII, 16), but itwas cerprohibition
a
in the Protestantcase. Dr. Pusey offeredthisexplanaweakness
tainly
tion: "It is as reasonablean accountas any other,ofthisomission,to suppose that He willed that it should be omitted,in orderthatwe might
not thinkthatthe whole range of forbiddenrelationswas containedin
thosewhichare expressly,and in the letter,laid down" (p. lv). In other
words, God purposelyleft out obvious prohibitionsin order that we
should realize that the list was incomplete.This ratherMachiavellian
explanationsurelyputs God in an odd light,but perhapsPusey did not
mean it quite the way it sounds. The more usual explanationwas that
what held for one partnerheld also for the other.An Anglicanvicar
a wife'ssistermight
laterin thecenturycommentedthatthoughmarrying
not be expresslyforbidden,"yet by parity of reason it is virtually
implied."'4The fact thatboth these positionsopen the door to purely
arbitraryrules seems not to have botheredanyone.
As pressureforreformmounted,the AnglicanChurch brought
up its theologicalheavy artillery.Members of Parliamentlearnedly
12 E. B. Pusey and Edward Badeley, Marriage with a Deceased Wife's Sister, Pro-
hibited by Holy Scripture,As Understoodby the Church for 1500 Years (Oxford,
1849), p. lxxxv.It containsPusey's evidencebeforethe Commission.
13 Reporton the Law of Marriage,PP (1847-48), xxviii,424.
14 Charles Wheatly, A Rational Illustrationof the Book of Common Prayer of the
Churchof England (London, X885), p. 404.
JUNE
1968
490
but therewas no real agreequoted the Bible, and biblical authorities,
menton justwhatconstituted
thatauthority,
noron how scripturewas to
be interpreted.Gladstone argued in debate that Levitical law (as
amended by "parityof reason,"presumably)applied to everybody,not
justto Jews,usingthisingeniousanalogy:"theCanaaniteswerepunished foroffending
againstthe law of God by thiscrime[incest];but if
it had been a law prohibitory
to theJewsonly,thenit was notbindingon
the people of Canaan. But since they,too, were punished under this
law, the inference was that it was of universal application to
mankind."15
Feelingranhighon bothsides ofthequestion,and one frequently
comes across referencesto Marriagewith Deceased Wife's Sister (for
brevity'ssake, hereinafterMDWS) in essays and fictionof the whole
mid-Victorian
period.KathleenTillotsonmentionsas an exampleof the
use of fictionforpropaganda purposesan anonymousnovel published
in 1849; The Inheritanceof Evil, or the Consequences of Marryinga
Deceased Wife'sSister.16
Therewere undoubtedlymanyotherexamples,
Marianne
too.E. M. Forsterin 1956wrotea biographyofhis great-aunt,
Thornton,in whichhe tellswithaffectionate
sympathyof the bitterness
and upheaval caused in the Thorntonfamilyby the marriagein 1850 of
Marianne's brotherHenry to his deceased wife's sister.17 Henry was
ostracizedby mostof thefamily,and had to live abroad formanyyears.
He spenta good deal of his own moneyin tryingto persuade influential
membersof Parliamentto change the marriagelaw, but of coursewith
no success.
Consideringthe feelinggeneratedby the question,it seems very
odd thatthematterwas notsettledforoversixtyyears.Sometimesa bill
to legalize MDWS would pass a second readingin the House of Comin the House of Lords; morerarelyit was
extinction
monsonlyto suffer
the otherway around. In the House of Commons,between 1849 and
1907,such a Bill was carriedby large majoritiesnineteentimes,and yet
never succeeded.18 The answer to this curious situationlies partlyin
the factthatextra-Parliamentary
supportforchangewas neverwell ora
could
be
it
touchysubject.A supportermightbe
ganized. And, too,
asked awkward or embarrassingpersonal questions.Why should any-
15 Hansard,3rd Ser.,cvi, 629 (Wed., 20 June1849).
16 Novels of the EighteenForties (Oxford,1954), p. 15.
17 Marianne Thornton,A Domestic Biography, 1797-1887 (New York, 1956). See
especiallych. vi.
18 There is a good summaryof the Bill's parliamentary
historyin Lord Tweedmouth's
speech,Hansard,4th Ser.,clxxxi,348 (Tues., 20 Aug. 1907).
VICTORIAN
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THE
ANNUAL
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491
hislatewife'ssister?
Therewas onecompelling
onewanttomarry
sociothe
for
classes:
need
to
the
lower
providea
logicalreason,particularly
It was theusual customforan unmarried
motherforminorchildren.
sisterto movein withthefamilyofa widowerin orderto careforher
a housekeeper
ornurse,
nephewsandnieces.Mostmencouldnotafford
an intimacy
and thiswas the mostreasonablesolution.Frequently,
thesituation
wouldgrowup and thepartieswouldwishto regularize
Lord Tweedmouth
withmarriage.
quotedin 1907theRoyalCommission'sreportof 1847,whichnotedthatwhena poormanwas widowed,
"all feelings
pointto thesisterofthedeceasedwife,and whenonceshe
theresultin thisclassis almostinvariably
becomesa permanent
inmate,
No doubtif the
theformof marriage."19
withor without
cohabitation
richweremoremoralthanthepoorin 1847it was becausetheycould
tobe.
afford
It is interesting
to noticethatover the sixty-year
periodthe
thefirst
oneadvancedbythe
reasonis invariably
orfamilial,
sociological,
in arguingforchange.Its opponents
Bill'ssupporters
usuallyconcede
a billto
Whenever
Bill
on
attack
the
but
theneed,
theological
grounds.
wereeloquenton
members
legalizeMDWS was debatedin Parliament,
discriminate
law. How could Parliament
the injusticeof the existing
herservice
for
sister-in-law
his
to
whose
a
gratitude
against poorman,
a
lead to loveforher, lovewhich
wouldverynaturally
to his children
The othersideretorted
couldnotbe legallyconsummated?
that,on the
As
the
of
in
the
interests
not
be
would
reform
poor. theEarl of
contrary,
the
Shaftesbury
pointedout,since,undertheBill, widowerandhissisterforthem
itwouldthenbe immoral
tomarry,
in-lawwouldbe permitted
would
Bill
the
the
of
effect
to liveunwedin thesamehousehold.
Thus,
maintain
"I
to:
wished
whether
or notthey
be to forcethemto marry,
the [present]law,ifonly
to maintain
thatit is thepoorman'sinterest
- andsheis his
whichhissister
toenablehimtohavethelovingservices
as such- can so wellbestow."20
sisterand is alwaysrecognized
Obviously,then,the poorman withminorchildrenwas in a
hisdevotedsister-indilemma:undertheold laws,he mightnotmarry
must
he
the
her,or giveup
law evenifhe wantedto;under new,
marry
so emotionally
freechildcare.As Lord Shaftesbury
put it: "It is the
the
of
and
the
and
home
of
Englishhome,
purity
life,
peace
sanctity
member
as
another
the
Bill."21
remarked,
whichare threatened
Or,
by
19 Hansard,4th Ser.,clxxxi,351 (Tues., 20 Aug. 1907).
20
Hansard,4th Ser.,clxxxi,356 (Tues., 20 Aug. 1907).
21 Hansard, 4th Ser., clxxxi,357 (Tues., 20 Aug. 1907).
JUNE
1968
492
theeffectof theBill would be to "place our sisters-in-law
withwhomwe
now associate as freelyand intimatelyas if theywere our own sisters,
upon the footingof firstcousins. How cruel a privationthis will bel
We shall be deprivedof thatpure love and affection,
unconnectedwith
of
which
adds
much
so
to the charm
any thoughts
marriage,
oflife."22
When some membersargued thatpeople who wished to marry
were respectablebecause theydid notwant to live in an illegalrelationship,othersretortedthatsuch people could not possiblybe considered
respectablesince theirmarriagewould necessarilyinvolve perjuryor
and no respectableperson would perjure himself.
misrepresentation,
The Commissionof 1847 had soughtevidenceon thefrequencyof these
marriagesand reportedthe resultsof a privateinquiryconductedover
a threemonthperiod in fiveselected districtsof the country:parts of
Yorkshireand Lancashire,of Norfolk,Suffolk,Lincoln, and Essex, of
Warwickand Staffordshire,
of Hampshire,Dorset,and Devon, and the
townsof Bristol,Bath,and Cheltenham.It was apparentlya selectionin
an attemptto coverbothruraland urban areas, but it was certainlynot
comprehensive.The barristerin charge of the survey,T. C. Foster,
reportedthathe foundthatsinceLord LyndhurstsAct (that is, 1835,or
about eleven years) in the areas studied, 1364 DWS marriageswere
contracted,and among thesewere people of "respectable"rank,includnaval and militaryofficers,
baring fivemayorsand seventymagistrates,
One of Foster'sassistants,who had
risters,physicians,and clergymen.23
canvassed the Bristol,Bath,and Cheltenhamarea, found133 cases, but
was convincedthatwithmoretimeand assistance,he could have found
easilytwicethatnumber(p. 285). All ofthe investigators
thoughtthere
were moremarriagesthanthosefound,but thatthe exact numberwas
difficult
to ascertainbecause of people's reluctanceto admitknowledge
ofthem.
This surveyconstitutes
theonlystatisticalevidencethattheCommissionhad, and we may be sure that therewere more instancesof
MDWS than this rather superficialsurvey reported,although Mr.
Wortleymay well have overestimatedthe factswhen he suggestedin
debate thatthenumberof such marriageswas as highas
Parliamentary
at least 40,000 children.24
13,000, affecting
Evidently,however,it was
not onlythe poorerclasses who contractedsuch marriages,particularly
22 Hansard,3rd Ser.,civ, 1237 (Thurs.,3 May 1849).
23 Reporton the Law of Marriage,PP (1847-48) xxviii,249.
24
Hansard,3rd Ser.,cii, 1111 (Thurs.,22 Feb. 1849).
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as the investigators
foundthatall but thirty-eight
of the reportedcases
had been Scottishor foreignmarriages(in an attemptto get aroundthe
provisionsof Lord Lyndhurst'sBill), and the poor mightnot be expected to affordthe expenseof a foreigntripto evade the law. Furtherforthe surveyadmittedthatit was verydifficult
more,the investigators
to get information
fromthe workingclass, so that on the whole they
had confinedtheirinquiriesto the "middle ranks."25The Commission
reported:"We do not findthat personswho contractthese marriages
have a less strongsense thanothersof religiousand moralobligation,or
are marked by laxityof conduct" (p. 243). Not everybodywas convinced,however;manypeople consideredit preposterousthata "moral"
it would be
personcould contractan "immoral"marriage.Furthermore,
for
unwise
Parliament
to
reward
such
very
personsfortheirimmorality
by makingtheirmarriageslegal.
it was usuallystatedthatit was thepoorwhomthe
Nevertheless,
Bill to legalize MDWS was to benefit,and the second half of the nineteenthcenturywas a periodin which"reforms"
forthebenefitofthepoor
were popular. Yet it is certainlydebatable how closelyin touch Parliamentwas withthe real desiresand needs of the workingclass. As the
Archbishopof Canterbury,Edward White Benson, rather shrewdly
pointed out in debate, it was significantthat "the workingman was
always broughtforwardas a sortof spectreon occasionsof thissort,or
he was thrownin as an unknownquantityto make up some weight
thatwas feltto be too lightto pass withouthim."26The Archbishopwas
of the opinionthatthe poor were just as much against the Bill as the
rich,and in about the same proportion,but one mightask the Archbishopwhetherhe was not in factalso throwingin the workingman to
make up someweight.In any case, Benson'spositionwas a personalone
and by no means all of the Anglican clergy agreed with him. The
of them) who formedthe core of oppointwas, the clergy(a minority
the
Bill
were
to
unable
position
reallyto finda compellingargumentfor
theirside. Those who contendedthattheprohibiteddegreesrepresented
the "law of God" were on shakyground,inasmuchas the pre-Reformation Church and the presentRoman Catholic Church had never contended that these degrees of affinity
representedGod's law, but only
Church law, an importantdistinctionsince God's law would not have
been dispensableby theChurch.Accordingto theevidencegivenbefore
the Commission,a wide varietyof opinion prevailed even withinthe
25 Reporton the Law of Marriage,PP (1847-48), xxviii,285.
26 Hansard,3rd Ser.,cccv, 1815 (Mon., 24 May 1886).
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494
a "majority"
communion,
Anglican
although
apparently
opposedreform.
The Dissenters,
and
did
not
feel
that
MDWS
violated
thelaw
large,
by
ofGod.27
thencontendedthatthe
Deprivedof thisargument,
opponents
chiefbenefit
oftheexisting
law was social- thatis,theobjectbeingto
discordwithina family.
rather
But,as theCommissioners
prevent
wryly
sincenoneofthereasons- religious,
remarked,
social,orlegal- seemed
to preventthecontracting
of suchmarriages,
it did notmattermuch
whatthelaw said.A DWS marriage
occurred,
theyfelt,muchas any
othermarriage
did: as theresultofa man'sandwoman'sdesiretomarry
(p. 242).
The majorpushforreform
camefromDissenters,
and fromliberal-minded
peoplewhofeltthatthelaw ofthelandshouldnotimpose
theological
proscriptions
uponthoseof a different
religiouspersuasion.
MatthewArnoldwas particularly
scathingin his remarksabout his
"Liberalfriends"
whoconfused
withlicence.In an argument
not
liberty
unlikePusey's,he favoredtheprinciples
ofJewishlaw whiledeploring
manwouldorshouldfollowthepractices
thatWestern
ofa "semitic
people, whosewisestkinghad sevenhundredwivesand threehundred
Thereseemstobe noevidencethatthefeminist
concubines."28
movement
interested
in theMDWS question.
Feminists
was particularly
whowere
withreform
ofmarriage
concerned
lawweremuchmoreexercised
bythe
whichthelaw imposeduponwives- thequestionofmarinequalities
riedwomen'sproperty,
forexample,or therightsof guardianship
over
minorchildren.MDWS was, by its verynature,of course,an issue
thatwouldconcern
menrather
thanwomenas a group.
Therewas muchvaguediscussion
in Parliament
aboutwhether
wantedorneeded.Members
ornottheBillwas "really"
quotedpetitions
to LordJamesofHereford,
bothforand againsttheBill,butaccording
it was verydifficult
whatthepublicthought.
It was
to knowprecisely
nota questionon whichyou couldhave popularmeetings
of support.
A bachelor?Hardly.A married
man?
Whowouldgo to suchmeetings?
He wouldbe veryfoolishto do so. A widower?"Is it likelyhe would
When we read
parade his wish [to marry]at a publicmeeting?"29
Hansardwe feelthatthereis indeeda littleoftheGilbertian
farceabout
thesubject.The soundof severalgenerations
ofmembers
all solemnly
a
little
about
of
the
home"
the
seemed
English
"purity
amusing
talking
27 Reporton the Law of Marriage,PP (1847-48), xxviii,238-239.
28 "Our Liberal Practitioners,"
Cultureand Anarchy,ed. WilliamS. Knickerbocker
(New
York, 1935), pp. 180-184.
29 Hansard,
4th Ser., clxxxi, 368 (Tues., 2o Aug. 1907).
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even at the time. But the recurrenceof argumentsover the years
obscured the fact that progresswas actually being made toward a
settlement.
In 1906, Parliamentwas asked to approve a Colonial Marriages
Bill whichwould, its supportersclaimed,merelyremovean inequityin
English law whichwroughthardshipon colonists.As the situationthen
stood, MDWS was permissiblein many parts of the Empire and had
been formanyyears,throughactionof thelocal legislatures.These marriages were recognizedas valid in the United Kingdom,but problems
arose in the area of inheritanceof real propertyand of honorsand titles.
For example,ifa colonistwho had contracteda MDWS were to retireto
England, purchase an estate,and perhaps receive a title,his children
would be preventedfromsucceedingto thattitleand estatebecause of
themarriage.
Lord Elgin,in movingthesecondreadingoftheBill,said thatthe
Bill was simplyintended"to removea bar whichpreventsa personwho
has been honourablyunited in legal wedlock withinthe Empire from
enjoyingthe rightsand privilegesin thispart of the Empire which we
ourselvesenjoy."What could be fairer?He wenton to suggestanother,
mercenary,and less sentimentalreason: "I cannot see that anything
but loss could resultif we were to throwan obstacle in the way of the
colonistwho desiredto returnhome to take up his abode in thiscountry
to add to itsresourcesthewealthhe had accumulatedin otherregions."30
but,
(It is temptingto thinkLord Elgin was speakingtongue-in-cheek,
the
All
of
Bill's
of
ofcourse,thereis no way knowing.)
supporterspointed
out that therewas pressurefromthe colonies and dominionsforpassage of remediallegislation,and theyemphasized the need to prevent
colonists'feeling they were being slightedor treated as second-class
citizens.
Some membersobjectedthattheBill was simplya footin thedoor
to get an MDWS Bill passed for the home country.But the Governmentprotestedthiswas not the case. WinstonChurchill,then UnderSecretaryforthe Colonies,statedin Commonsthatthe generalquestion
of the deceased wife'ssisterdid not arise in the Bill in any way. "The
But there
argumentfor this Bill [is] solely the Colonial argument."31
were several opponentswho agreed with the Marquess of Salisbury's
sour predictionthat"what is intendedis, by a flankmovement,to give
strengthto the case for the Deceased Wife's Sister Bill."32Curiously
30 Hansard, 4th Ser., clvii, 319 (Tues., 15 May 1906).
31 Hansard,4th Ser.,clxii,583 (Mon., 30 July1906).
32
Hansard,4th Ser.,clvii,328 (Tues., 15 May 19o6).
JUNE 1968
496
enough,all the oppositionto the Bill came in the House of Lords; it
aroused verylittleinterestin the Commons,wheretherewas no debate.
Even the opponentsin the upper chamberrealized thatoppositionwas
pointlesssince the Governmentapparentlyhad a comfortablemajority.
The Bill passed with ease in August 1906.
to thefactthattheimportant
Perhapsitssuccesscan be attributed
the
a
form
of
of
question
legalizing
marriagewhichwas anathemato
many sincereindividuals seemed remote,and in spite of Lord Salisburymanymemberswere indeed lulled intoa falsesecurityby the Government's
protestthattheBill was nota changein themarriagelaw, but
an
simply Act to removean injusticedone to colonials.At any rate,in
1907,when the MDWS Bill was again presentedto Parliament,the fact
of the previous year's Bill seemed to make it psychologicallyeasier
for Parliamentto accept the idea of change, although Lord Tweedmouth'sargumentthatbecause a Bill had passed forthecoloniesitought
to make the
to be passed at homepromptedLord Shaftesbury
therefore
mock-seriousprotest:"I submitthat thatis carryingthe feelingof imperialismtoo far."33
One new featurewas thatthe MDWS Act, always previouslya
measure;the weightof a
privatemember'sbill,was now a Government
large Liberal majoritywas behindthereform.This factplus a changein
the social climateare of greatimportancein the ultimatesuccess of that
perennialfailure.By the turnof thecentury,England had become more
secular in outlook; theologicalargumentscarried less weight; people
were moretolerantof dissentand of the idea thatpersonalmoralswere
thebusinessoftheindividual,notof thestate.Finally,too,it seemedless
equitablein 1907thanithad in 1847forthelaw oftheland to supportthe
stricturesof one religion (albeit the majorityone) against those of
Review stated,afterthe final
others.As one writerin the Contemporary
success of the Bill, "The whole questionwas one not of moralsbut of
social convenience,and that is a question for the nation and not the
Church to decide. And the nationhas decided."34Lord Tweedmouth,
speakingfor the Government,stressedthat while they surelydid not
or even to abandon his
want to forceany man to marryhis sister-in-law,
freedom
forthosewho take
"an
claimed
equal
religiousprinciples,they
that
the
civil law of the
think
it
and
do
a different
we
not
view,
right
countryshould impose grave disabilitiesand hardshipson a numberof
33 Hansard, 4th Ser., clxxxi, 357 (Tues., 20 Aug. 1907).
34 J. E. G. de Montmorency, "The Marriage Law - II," Contemporary Review, XCII
(1907), 559.
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men,women,and innocentchildren,who are at presentpenalisedsolely
out of deferenceto the theologicalopinionsof a sectionof theirfellowsubjects."35
The extentto whichtheChurchshouldbe governedin itsconduct
the
civilauthorityhad always been a touchyone, but the clergyhad
by
assumed that in aim the two would usually be in harmony.As Archin his diaryin 1883- on one ofthose
bishopBensonwroteratherbitterly
occasionswhen thereseemed some possibilitythata MDWS Bill would
pass - "This is the firstreal dissilienceof the Law of England and the
Law of the Church."36(The Archbishopwas entitledto his opinion,of
course,thoughprobablymorepeople would regardthe Divorce Act of
1857as thereal turningpoint.) Bensondolefullyremarkedin debate that
it would be a "grievousday when ... the Divine law and the law of
England shouldbe at variance."37Grievousor not,theday was to arrive,
and Benson'spredictionofa lesseningofChurchinfluencein Englishlife
had alreadybeen fulfilled.The traditionalstressof European liberalism
on the separationof churchand state is reflectedin the Government's
positionof 1907. Tweedmouth'sspeech clearlystatedthat"in questions
of theologythe civil law of the land should adopt an impartialattitude
and leave fulllibertyofconscienceto all shades ofopinion,providedthat
cannotbe shownto entailseriousdangers
itsabstentionfrominterference
at large."38
to thereligious,moral,and physicalwelfareofthecommunity
III
The essentialdifference
between1847 and 1907,then,is precisely
this last point.To Dr. Pusey and others,the danger seemed clear and
present;thereforethe Governmentdid have an obligationto interfere.
To themajorityof sixtyyearslater,thereseemed to be no dangerat all;
had an obligationnotto interfere.
At anyrate,
theGovernment
therefore
in 1907,theMDWS Bill had smoothsailing.In August,itpassed thefinal
readingand receivedthe royalassent.The Governmentdid agree to an
amendmentmakingit optionalforthe clergyto celebrate,or allow the
35 Hansard,4th Ser.,clxxxi,353 (Tues., 20 Aug. 1907).
86 ArthurChristopherBenson,The Life of Edward White Benson,SometimeArchbishop
of Canterbury,2 vols. (London, 1899), II, 12.
37 Hansard,3rd Ser.,cccv, 1817 (Mon., 24 May 1886).
38 Hansard, 4th Ser., clxxxi,354 (Tues., 20 Aug. 1907). One mightremarkin passing that it could probablybe demonstratedthat mortalityof wives was much lower
century.
by 1907 than in the mid-nineteenth
JUNE
1968
498
use of theirchurchesforthecelebrationof,such marriages.(This proviwas a markeddifference
fromtheDivorce Act of 1857,
sion,incidentally,
in whicha clergyman,
whilefreeto refuseto celebratethere-marriage
of
the "guiltyparty"to a divorce,could neverthelessbe requiredto lend
his churchforthemarriage.)
Therewas thefurther
problemof Churchmemberswho werenot
opposed in conscience to the Bill, who might,for example, wish to
marrya deceased wife'ssistereven thoughtheirChurchdeploredsuch a
marriage.Lord Robert Cecil proposed to limitthe Bill's provisionsto
those who were not membersof the Church of England. Mr. Jesse
Collingsrepliedthattwo people in love would simplyleave the Church
in orderto get married,and thatthiswould be bad. Cecil retortedthat
Collingsseemed to thinkthata churchwas a "kindof club which was
desirousof havingas manypeople in it as theycould possiblyget,quite
of theiropinionsor conduct."39
Aftera shortaltercationthe
irrespective
toucheda
amendmentwas negatived,but Lord Roberthad unwittingly
fundamentalpoint: to manypeople, being an Anglicanwas as natural
and unpremeditatedas being a Britishsubject; in some ways Church
- it denoted a certainstatus
membershipwas like a club membership
and privilegeunconnectedwith religion,privilegewhich its members
rules.When,
werenotdisposedto give up because of a fewinconvenient
Randall
Davidson,
therefore,as the then Archbishopof Canterbury,
wrote,the law of the land was broughtinto"direct,open, overtcontrast
of,the specificand divinelaw laid down in the
with,and contradiction
authoritativeregulationsof the national church,"individual conflicts
werebound to arise (Bell, I, 552).
The Archbishopwas in somethingof a quandary. Aftermuch
thought,he decided to allow freedomof conscienceto his clergy,but his
"advice"to themwas thatsuch marriagesoughtto take place elsewhere
thanin thechurch.Withrespectto theotherministrations
oftheChurch,
Davidson feltthatthosepeople who were otherwiseentitledto the sacramentsof the Church ought not to be denied themon the basis of a
questionablemarriage(Bell, I, 553-554).
A testcase arose almostimmediately.
A certainMr. Alan Neville
the
of
of
Banister,
Eaton, Norfolk,had marriedhis deceased
village
wife'ssisterin thePresbyterian
Churchin Canada. The couple had gone
to Canada in orderto marry,legally,underthe Colonial MarriagesAct
of 1906 (6 Edw. VII, c. 30), and had later returnedto theirnormal
domicile.The vicarof Eaton, Canon HenryThompson,refusedto admit
39 Hansard,4thSer.,clxxx,1468 (Wed., 14 Aug. 1907).
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Mr. and Mrs.Banisterto HolyCommunion
on thebasis of therubric
in theBookofCommonPrayerwhichallowstheexclusion
of"an open
andnotorious
evilliver."Therewasan acrimonious
ofletters,
in
exchange
whichBanister,
a pillarofthecommunity,
askedifThompson
apparently
wereactuallycharging
himwithimmorality.
The vicarreplied:
Dear Sir, -
If you chooseto inferthatI chargeyouwithbeingan open and notorious
evilliver,
I cannothelp it. The inference
is yourown.... My simplereasonfordecliningto
admityou to the Lord's Table is thatyou knowingly
and wilfullycontracteda
unionwhichwas declaredunlawfulbothby theChurchand by thelaw of theland;
have no claim upon the privilegesof the Church.You cannot
you can therefore
allege thatyou thoughtwhat you were doing was lawful,foryou went away to
anothercountryto do it. The personalcorrespondence
mustnow cease, forI have
nothingto add.40
Mr.Banisteraccordingly
suitin theecclesiastical
Court
brought
ofArches,and wonhiscase.CanonThompson
thenappliedto thecivil
butthejudgment
ofthechurchcourtwas upheldon all appeals.
courts,
The articlesofsuithad citedbothstatute(1 Edw. VI, c. i) and ecclesiasticallaw to showthat"theincumbent
of a parishmaynot,without
lawfulcause,denytheholysacrament
thatwould
to any parishioner
and
it"
desire
v.
p. 366). The
devoutly humbly
("Banister Thompson,"
of Canterbury
himselfconcededthattherewas no real
Archbishop
forThompson's
that"itis in myjudgjustification
position,
remarking
the
mentimpossible
to
these
words
[of rubric]on account
rightly apply
a
and
man
wife
to
whohavecontracted
as a civilconoftheirmarriage
tracta marriage
sanctioned
expressly
byEnglishlaw" (Bell,I, 554).
oftroubleon accountofthisrubrichad beenanThe possibility
in parliamentary
debate
earlier.LordHoraceDaveyprotested
ticipated
thatclergy
in 1896thatitappearedtohim"monstrous
oftheEstablished
as
notorious
evillivers
to stigmatise
Churchshouldbe at liberty
people
whentheyweremarriedwiththesanctionand approvalofthelaw."41
ViscountGalway,agreed,notingthatsuch
GeorgeEdwardArundell,
"set
the
abovethelaw oftheland,becauseitwould
would
clergy
liberty
enablethemto say thatpeoplewerenotmarriedalthoughtheirmarby law."42The anomalyof thepositionwas acriagewas recognized
knowledgedby someof the clergy,however,and manyof themno
doubtwouldhaveagreedwithArchbishop
Davidson,whowrote:"We
us
thesemarriages
in every
of
and
most
will,discourage
may,
probably
40 The exchange
in thereports
ofthecase: "Banister
is reproduced
ofletters
v. Thompson," Law ReportsProbate (90o8), pp. 365-366.
41 Hansard,4th Ser.,xlii,1091 (Thurs.,g July1896).
42 Hansard,4th Ser.,xlii, lo9o (Thurs.,9 July1896).
JUNE 1968
500
reasonableway. But thisis a verydifferent
thingfromimposingupon
who
have
a
contracted
such
persons
marriagethegravestcensurewhich
we can legallylay upon an evil-doer"(Bell, I, 554). It is clear thatthe
Archbishoprecognizedthat,howevermuch he mightregretit, times
were indeed changingand it was necessaryforthe Church to change,
too,at least to some extent.
The appeal hingedmainlyon thequestionofthelegal relationship
between the Church and Parliament.Counsel forBanisterand forSir
Lewis Dibdin (Dean of the Arches,who had given the originaljudgment) sought to show that the Church was dependentupon statute,
citingin particulartheraftoftortuoussixteenth-century
legislationwhich
and remarking:"It followsthat the
effectedthe English Reformation,
whole of the respondent's[thatis, Canon Thompson's]justification,
the
is
and
the
the
the
the
of
which
rubric, canons,
invalidity
marriageitself,
basis of the defenceunderthe rubricand canons,is statutory.
But what
a statutecan do a statutecan undo" [myitalics].43This view prevailed,
and Mr. JusticeCharles JohnDarling (later Lord Darling) supported
it in an acidly worded opinion: "I am of the opinionthatthismarriage,
whichbeforewas contraryto the law of God merelybecause thestatute
condemnedit as such,is so no longer,and thatby virtueof the statute
whichlegalisesit." In otherwords,Parliamentcould make and unmake
the "law of God." He went on to say:
If itbe thought
myviewdoesnottakedue accountofthecanonsand oftheLevitical
rules,norof that"law of God" to whichappeal is so oftenmade,I can onlyreply
thatthecanons,and likewisetheLeviticalrules,have in England,sincethe Reforbut such as theymayderivefromthe statutelaw. Then as to
mation,no authority
the "law of God," as applicableto marriage,it is manifestthatHenryVIII, with
Cranmerand others,settingno morestoreby Leviticusthan
the aid of Archbishop
in Parliament
enactments
[which
theydidbythePope,achievedbythoseinconsistent
theCounselhad cited]all thatcertaintheologians
... claimedto do fortheself-same
laws by meansof over-subtle
interpretations. ("Rex v. Dibdin,"pp. 81, 82)
With the conclusion of the appeals, the subject was virtually
over the Churchand had
closed. Parliamenthad assertedits superiority
had
been upheld in the courts.Those who
direlypredictedthatpassage
of an MDWS Bill would open the gates to all sorts of new (and to them
-shocking) relaxationswere correct:in 1921,Parliamentallowed marriage with deceased husband's brother,and in 1931, eightprohibitions
includingaunt
regardingmarriagewith persons related by "affinity,"
withdeceased husband'snephew,and uncle withdeceased wife'sniece,
were overturned.
Further,in 1931,Parliamentstatedthatno incumbent
43"Rexv. Dibdin,"Law Reports
Probate(1910), p. 67.
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of a parishmightrefuseto allow his churchto be used forthe celebraThe routwas complete.
tionof such a marriage.44
IV
The whole storysheds lighton the intricateand ever-changing
relationshipbetween the Church and Parliament.As Maitland has
in England has
of the Reformation
pointedout,one of the majoreffects
under
the
direct
ecclesiastical
courts
limitation
been to put the
of the
temporallegislature.Henceforwardnot onlywas theirsphereof action
limitedby Parliament(actually an old phenomenon),but theirdecisionswere dictatedto themby a secular power (Maitland, pp. 9o-91).
This factwas especiallytruein thematterof themarriagelaw, although
not fullyapparenteven in the nineteenthcentury.It was, of course,the
ecclesiasticalcourtwhichupheld the legalityof Banister'sposition.
The decrease of Church controlwas not a continualand even
development,however.By Lord Hardwicke'sAct (1753), the Church
was made the sole agent of the state in the matterof marriagecontracts.It seems clear, however,that this fact was more an accidental
consequenceof theneed to removesociallyunacceptablesituationsthan
it was a move in the directionof greaterChurchcontrolof the marriage
law. Certainlythegeneraltrendwas in theotherdirection,
althougheven
ofHardwicke'sActessentiallyrenderedthe
thesubsequentmodifications
legal value of the contractdependentupon a questionof religiousbelief
- surelyan invidiouspositionforthe stateto put itselfin.45After1836,
througha seriesof definitesteps,Parliamentwas asserting,as one barristerput it,"theparamountrightoftheStateto definewhat [should] be
the contractof marriage,and withwhat civil ceremoniesit [should] be
This statementclearlyrepresentsthe majority'sopinion,alattended."46
side urgedthatthe emotionaland spiritualqualitiesof
the
other
though
be ignored;that marriagewas a moral and social,
not
could
marriage
44 See Joyce,pp. 549-550. A shrewd and perceptivewriter,Father Joyce points out
that the Act of 1907 must have proved very embarrassingfor the AnglicanChurch,
to the Churchin determining
what
Parliament'ssuperiority
since it essentiallyaffirmed
marriageswere dispensable: "The breach withRome was largelyconcernedwiththis
very question; and the Convocationshad solemnlydeclared that no human power
could dispense in this degree. Now Parliamenthad declared such marriagesto be
lawful, and those who contractedthemwere in a positionto claim the privilegesof
the Church" (p. 549).
45 Montague H. Cookson, D.C.L., "The Marriage Laws of England and Ireland,"
Transactions of the National Association for the Promotion of Social Science
(TNAPSS) (1862), 173. This article contains an interestinganaylsis of several
problemsattendanton the marriagelaw in the mid-century.
4 William O'Connor Morris,"On the MarriageQuestion,"TNAPSS (1861), 212.
JUNE 1968
502
Parliamentessentiallycompromisedthese
as well as a legal contract.47
the
civilcontracttheprimaryone, and arrogating
two positions,making
to itselfthe right to establish requisitesfor marriage,yet allowing
religiousorganizations,under propercontrol,to become agents of the
statein the celebrationof marriage.
V
So ends the tale of the "annual blister."It is an involvedstory,
made even moreinvolvedby the tanglingof threadsof theology,social
welfare,and liberalism.Progressin biblical criticismover the years
meantthatlaymenas well as churchmenacceptedwithmoreequanimity
in scripture,
and, as one writerpointedout,even
apparentcontradictions
thosepeople who reveredthe Old Testamentwould no longerbe willing to go along withDr. Puseyin speakingof everypreceptin thelaw as
the directutteranceof God.48By 1907 thepoliticalclimatehad changed
fromthatof 1849,when,duringdebate
too; itwas certainlyverydifferent
on an MDWS Bill, one memberbecame so angrythathe cried out in
exasperation:"Marriages of this descriptionare in themselveseither
incestuousor not; if theyare incestuous,you may pass an Act of Parliamentto allow them,but theywill remainjust as immoralas incestuous
cohabitation[outside]themarriagewas before."49
By 1907,such was no
the
case.
Incest
after
an
is,
all, arbitrary
longer
concept,sociallydefined.
not
had
considered
thesemarriagesincestuousfor
really
Englishsociety
a long time;it simplytook a good while forthe law to catch up with
social opinion,to changeincestuouscohabitationintolegal wedlock.
Post scriptum:
By theMarriageActof 1949,a man maymarryhis deceased wife'ssister,
but he may not marryhis divorcedwife'ssister(Bromley,p. 34).
WittenbergUniversity
47 For a particularlyemotionalpresentationof thisfeelingsee Rev. NathanielW.
Carre,
"The Law of Marriagein its Bearingon Morality,"TNAPSS (1881), 235.
48 Rev. W. E. Addis, "The New
Marriage Law I," ContemporaryReview, XCII
49
(1907),
553.
Hansard, 3rd Ser., civ, 1232 (Thurs., 3 May 1849).
VICTORIAN
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