Sin, Sanctity and the Sister-in-Law

Marriage with a Deceased Wife's Sister in the Nineteenth Century

David Barrie

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351247832
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This is the first book specifically devoted to exploring one of the longest-running controversies in nineteenth-century Britain – the sixty-five-year campaign to legalise marriage between a man and his deceased wife's sister. The issue captured the political, religious and literary imagination of the United Kingdom. It provoked huge parliamentary and religious debate and aroused national, ecclesiastical and sexual passions. The campaign to legalise such unions, and the widespread opposition it provoked, spoke to issues not just of incest, sex and the family, but also to national identity and political and religious governance.

1 ‘A Passage in Our History which We Could not Look Back Upon without Shame’

The roots of discontent, c.1835–48¹

Introduction

Marriage between a man and his deceased wife’s sister had a long history of church–state conflict, self-interest and controversy. Prohibited by the Church of England, English common law had been adapted at various times to meet the self-serving interests of governing elites – a situation which made for much confusion and uncertainty. This chapter examines the historical roots of the MDWS quarrel. It explores the law and practice of prohibited degrees of affinity and the ways in which both laid the foundations for the ensuing sixty-five-year campaign to reform Britain’s marriage laws. The chapter exposes the tensions that existed between legal and religious theory and practice, including how ordinary people imposed their own morality on what constituted incest and what did not. Religious and political leaders pointed to the distinctive nature of Scottish opinion and practice, but their claims were overstated. As in England, there was ambiguity over the illegal status of sister-in-law marriage and evidence that not all Scots were as repulsed by the concept as church leaders liked to portray.

Lord Lyndhurst’s 1835 Marriage Act and its origins and legacy

In its formative years, the Christian Church conformed to Jewish marital law and to Roman civil proscriptions.² Chapter XVIII of the Book of Leviticus – the third book of the Jewish Torah (Hebrew law) and the third book of the Old Testament – forbade marriage with a long list of relatives, including the widow of a deceased brother. Prohibitions included three passages on which much MDWS controversy was based: section 6, ‘none of you shall approach any that is near of kin’; section 16, a man should not uncover ‘the nakedness of thy brother’s wife’ (and, by analogy, his wife’s sister too); and section 18, ‘Neither shalt thou take a wife to her sister, to vex her, to uncover her nakedness, beside the other in her lifetime’.³ There were, though, special circumstances, articulated in the fifth Torah. In the Book of Deuteronomy, Chapter XXV, sections 5 and 6, a widow was obliged to marry her deceased husband’s brother in cases of childless marriage (known as ‘levirate marriage’) in order to ensure that the male family name be preserved.⁴ In republican and medieval times, a series of enactments and religious laws forbade marriage to a wider range of persons related by affinity, including MDWS which was viewed as incest. In what was referred to as the ‘one flesh’ principle, the blood relatives of a partner were deemed to be one’s own relatives, as articulated in the Gospel of Mark (X, 8) and in the Old Testament (Genesis, I, 24).⁵ Unions between affinal relations were viewed in the same light as relationships between consanguineous relations. A succession of religious and political decrees reduced the restriction of the collateral line to the third and fourth degrees – i.e. distant cousins – but the ‘one-flesh’ principle continued to be widely held for siblings-in-law.⁶ These restrictions stood in contrast to other parts of the world – most notably Africa – where there was a cultural expectation among certain peoples that a widower would marry his deceased wife’s sister or have sex with her if she was infertile in order to preserve and strengthen alliances (known as sororate marriages).⁷

The Reformation swept away many medieval rules and religious laws, but those relating to MDWS were reiterated. In Scotland, the Marriage Act of 1567 narrowed the prohibition concerning affinal relations to persons related within the second degree, but sexual activity with a spouse’s sibling continued to be viewed as incest along with other relationships proscribed in Leviticus. In post-Reformation Scotland, Leviticus was used to justify the legal regulation of incestuous behaviour according to a theologically grounded system of morality.⁸ Up until that point incest had been an ecclesiastical offence. It was, in the words of Baron Hume, to be ‘chastised with the weapons of spiritual censure’.⁹ However, in an attempt to equate sin with crime, the Incest Act of 1567 classified incest as a criminal offence, as scriptural influence over Scots criminal law was extended.¹⁰ Incest, and by association MDWS, was now punishable by death – and remained so in Scotland until the 1887 Criminal Procedures Act reduced the punishment to imprisonment.¹¹ In 1649, the Act for Punishing the Horrible Crime of Incest with Death rejected a strictly literal interpretation of Leviticus, ‘considering also that there be many other degrees of incest both in affinity and consanguinity, no less heinous and punishable than these expressed in the letter of that Text’. It decreed that those who sinned in such degrees should also face the death penalty and published a table setting out the prohibited degrees for clarification.¹² This helped to turn moral offences ‘into an engine of death’, with the authorities in practice extending prohibitions to those who had intercourse with two sisters to whom they were not related.¹³ In 1690, the Confession of Faith, which formed the basis for Presbyterian church government in Scotland, upheld the scriptural basis for prohibiting MDWS:

Marriage ought not to be within the degrees of consanguinity and affinity forbidden in the Word; nor can such incestuous marriages ever be made lawful by any law of man, or consent of parties, so as those persons may live together as man and wife. The man may not marry any of his wife’s kindred nearer in blood than he may of his own, nor the woman of her husband’s kindred nearer than in blood of her own.¹⁴

In other words, to legalise marriage with a man’s sister-in-law would be tantamount to legalising marriage with his own sister. The belief that husband and wife were one and the same was also embedded in the legal doctrine of coverture – whereby a woman’s legal rights, upon marriage, were subsumed by those of her husband. This principle formed the basis of marital property law in both Scotland and England well into the nineteenth century.¹⁵

In the eighteenth century, the courts took a more liberal approach and affinal offences were not always pressed to the letter of the law.¹⁶ Nonetheless, the above statutes and decrees governed marriage within prohibited degrees in Scotland for centuries. English developments, however, took a different course. In 1509, Henry VIII married Catherine of Aragon, the widow of his brother, after obtaining a dispensation from the Pope on the grounds that such marriages were not forbidden by the law of God, only by canon law.¹⁷ This decision, and Henry VIII’s fraught relationship with Catherine and the Catholic Church, helped to lay the foundations for much confusion and discord over marriage law in nineteenth-century England. Henry later sought to have his marriage with Catherine annulled so he could marry his second wife, Anne Boleyn. Pope Clement VII, however, refused.¹⁸ Henry responded by calling upon the clergy in England to declare his marriage invalid on the grounds that marriage with a sister-in-law was repugnant to the word of God and within prohibited degrees. The Anglican church courts subsequently declared MDWS null and void with no appeal to Rome after Henry broke with the Church of Rome and established himself as the head of the reformed Church of England in 1534. Elizabeth I, who was Henry’s daughter with Anne Boleyn, secured her succession by constructing a table of marriages within prohibited degrees, which included those to a deceased wife’s sister and a deceased husband’s brother. The ‘table of kindred and affinity’ listed thirty prohibited relationships and confirmed the illegality of her father’s first marriage, the legality of his second and, therefore, the legitimacy of her succession.¹⁹ The list was almost as ‘important to some bishops as the table of the ten commandments’.²⁰

As Ellen Pollock has argued, the break from Rome meant that English discussions on incest would be subsequently ‘embedded in larger questions of political and religious liberation’.²¹ Debates about incest in the early modern era spoke to sexual hierarchies – most notably, the preservation of male privilege and women as social currency – which polarised opinion.²² Elizabeth’s table received royal, but not parliamentary, assent. Many aristocrats were unwilling to prohibit unions that would reduce their choice of marriage partner. Under James I, the courts of common law sought to clarify the situation by determining that MDWS, while prohibited in ecclesiastical law, could only become null and void if challenged in an Anglican court during the lifetime of those concerned. If they were not, then the validity of the marriage could not be challenged posthumously.²³ The arrangement drew much criticism in early modern religious pamphlets, which professed the supremacy of God’s law.²⁴ It flourished, though, because the state – while seeking to limit ecclesiastical influence over marriage – needed to rely upon the church in order to police irregular marriages. This was confirmed under Lord Hardwicke’s 1753 Marriage Act, which established the Anglican Church as the sole agent of the state in determining the legality of marriage contracts.²⁵ Indeed, church courts administered marriage law in England according to canon law until the Matrimonial Causes Act of 1857 permitted marriage based on civil contract.²⁶

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Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication Page
• Table of Contents
• List of tables and figures
• Abbreviations
• Acknowledgments
• Introduction
• 1 ‘A Passage in Our History which We Could not Look Back Upon without Shame’: The roots of discontent, c.1835–48
• 2 Restraining the ‘Devil in Our Sisters’: James Wortley’s Marriage Affinity Bills and the Scottish response, 1849–51
• 3 The ‘Misery of Scotch Law’: Political discourses, legal precedents and cultural representations, c.1851–69
• 4 ‘Sleeping While the Enemy is Busy Sowing His Tares’: The challenge to scripture, c.1851–88
• 5 ‘The Man is Everything, and the Woman Nothing’: Protecting, purifying and conceptualising the family, c.1862–88
• 6 ‘It is Too Readily Assumed that all Those Who are Opposed to this Kind of Marriage are Idiots’: Public opinion, print and personal conscience, 1862–1906
• 7 ‘It is Time this Controversy should End’: Reform and reaction
• Select bibliography
• Index