The comment which follows is perfectly just, and the censure it implies most richly deserved. Though of course nothing could be more natural, or less objectionable, than that parties feeling, in their own persons, the mischievous effects of the then existing laws as to voidable marriages, should be the moving parties to a change, yet it is certainly to be lamented that measures professedly enacted on public grounds should so often have, in their origin, a personal reference to some individual case. The law in such a case necessarily is more imperfect in its future bearings and operations. If a law be really started for some personal and individual purposes-to quiet, for instance, the title of the son of the earl of A., or the conscience of the duchess of B.-it is impossible that its workings on society and on international rules can be so fully considered as they should. The marriage law, of all branches of law, has been peculiarly unfortunate in this respect; for almost all the acts on this subject in the statute book, if their secret history could be traced, would, from the earliest of them, be found to have had much of personal reference in their origin. There being but little consideration how far laws of this sort are adapted to the state of the public mind, as a consequence, when passed, they are looked upon like the revenue laws, as having been made to be evaded. Indeed here evasion is actually allowed by act of parliament; and all the wholesome provisions for the protection of minors and their fortunes, and for the prevention of clandestine marriages, may, by express authority of the law itself, be broken through, by taking a carriage over the Tweed, or a steamer across the straits of Dover. Now, any law on any subject systematically disregarded by the public, has beyond doubt a very bad moral tendency on the public mind. The mere dead-letter-law brings a mischievous ridicule on law in general; but enactments, though good perhaps in the abstract, on subjects so connected with the moral and religious feelings of men, as that under consideration, if so far against the public sentiment as to be constantly broken, have an effect on the national character and tone of public principle, deeply and widely detrimental. No such law should be enacted without full consideration; nor should any bias from personal events be allowed to bear upon it; and when enacted it should be a strong law, and not one nugatory, and by common consent to be broken without the slightest penalty. But if this be the desideratum, the law of marriage will appear to be every thing but what it should be.' It is true that this very objectionable statute seems to be made with the view of enabling the rich and independent to evade it. But on the popular mind it must exert a most baneful influence. Common intellects will be puzzled to understand what difference an act of parliament can make in the moral character of two marriages solemnized under precisely the same circumstances with the same relationship of affinity. If the one is incestuous, the other must be incestuous also. On what principle, then, can the one be legalized and the other prohibited? Is there no moral turpitude in either-no violation of the sanctity of religion?-Why, then, is the one to be surrounded with protections and immunities, and the other to be branded with infamy and visited as a crime? Yet this is the legislation of the ex-chancellor Lyndhurst; marriages that before the passing of his act were voidable, were by that act constituted legal; and many persons in these circumstances, that had not contracted matrimony, took advantage of the interval between its passing and coming into operation to marry under its sanction; whereas, had they suffered another day to pass, their marriage would have been stigmatized as incest, and their offspring, which are now legitimate, would have been bastardized, without inheritance, and without a name. It is such legislation as this that brings laws and law-makers into contempt. While the noble author of this measure held the chalice of domestic happiness to the lips of hundreds, what right had he, by the same act, to withhold it from the eager and outstretched hands of thousands? Where was the morality, the justice, the expediency of such a procedure? The particular marriage of affinity almost exclusively struck at, as far as Lord Lyndhurst's act is prospective, namely, with a deceased wife's sister, is precisely that which humanity suggests, reason justifies, and religion sanctions. That such a marriage is the dictate of our natural humanity, the history of civilized man universally attests. There is no precise law in any considerable nation of the world where such a union is prohibited. A man may marry the sister of a deceased wife, either as a matter of course or upon a formal application to the authorities, throughout the whole of Prussia (including the Rhenish provinces), Saxony, Hanover, Baden, Mecklenburgh, Hamburg, Denmark, and most of the other Protestant states of Europe. Catholic countries afford no guide, their fashion being to extend the list of prohibitions, that the church may enjoy the privilege of dispensing with them. But the Levitical degrees are clearly not binding in practice, for there is a lady of rank now living who was married to her father's brother, an English baronet, under a license from the pope; and a son, by this marriage, inherited the title and estate.* * A writer in the British Magazine (we presume Dr. Pusey) says, 'Rome only permits such unions in single cases which, to her judgment, warrant the departure from the rule; she acknowledges the rule, while in the plenitude of her power she dispenses with it.' If by the rule is here meant the will of God, as expressed in holy Scripture, Rome does not recognize it on the subject of affinities, within or beyond which marriage may be contracted. The Priests were the first to enact so nefarious a canon, and Henry VIII's the only conscience that affected to be wounded by its violation.* The Jews, who may be considered as the best qualified to interpret their own laws, as we have already shown, were never swayed in their conduct by what has been designated their law of marriage. Modern Jews, and more especially those who pique themselves on a strict adherence to their own law, are practically strangers to the Levitical degrees. Lord Lyndhurst's act indeed has thrown some of them into consternation, lest their marriages within the degrees prohibited in the statute should be rendered absolutely void; and certainly if the twentyfifth of Henry VIII. chap. xxii. c. 4, applies to Jewish marriages, this would be the inevitable result. Whether by the recommendation of a wife and a mother in her last moments, in which she breathes her expiring tenderness on the bosom of her husband, and in the presence of her infant children, he contemplates a union with her sister; or whether the husband and the father, feeling his forlorn and desolate condition, and deeply anxious for the well-being of his offspring, turns to the nearest surviving relative of their departed mother to be his solace and her substitute, we maintain that such a marriage is, not only beyond all reproach, but the very path which God and nature would point out to the afflicted widower, as well for himself as for the sake of his helpless orphans. In either case it proves that his attachment to his departed wife is the predisposing cause which induces him to unite himself with her nearest resemblance, and, next to himself and his children, her best beloved on earth. It gives new vigor to an affection which only degrees which she acknowledges to be the general rule for the guidance of her subjects, are those which she has constituted by her own authority, not pretending to derive them from the Bible. By the same authority she dispenses with them; for even the pope does not arrogate to himself the power of cancelling a divine command. Rome, therefore, denies that the Levitical degrees are founded on the will of God. In this Puseyite article (see British Magazine for November) marriage with the sister of a deceased wife is gravely reprobated on the construction which the writer chooses to put upon the text, they are no more twain, but one flesh.' The wife's sister, by this mysterious process, it is maintained, becomes the sister of the husband. The same method of interpreting scripture is adopted by the Romanist when he attempts to prove the doctrine of transubstantiation. * Chamberlain. It seems the marriage with his brother's wife Suffolk. No; his conscience Has crept too near another lady. Shakspere. death could not extinguish, and a natural mother to the children in the person of one they had from their infancy been taught to love. Where such a contract is formed it is an evidence of previous domestic happiness, and shows an anxiety on the part of the husband to perpetuate the felicity he had enjoyed in his former hallowed connexion; that he loves his children as much for the sake of their mother as his own, and that he clings to her memory in the person of her living representative. It is a new and interesting link which binds the domestic circle in a more intimate and delightful relation at the moment which threatened its disruption. It sanctifies the past, and is the least disturbance, while it proves at the same time a happy addition to those circumstances of domestic solace and enjoyment, which death has altered, but not destroyed. In such a case the family still goes on. It is the same. A selfish stranger is not obtruded with a totally new class of interests to estrange hearts which bereavement has knit together by the tenderest ties of love and sorrow. We shall not condescend to notice objections against legalizing marriage with a deceased wife's sister, derived from the depravity which might induce prospective and criminal advances on the part of the brother-in-law during the life-time of his wife, because we feel assured, that a being so deliberately and so unutterably base is not to be found upon the globe in which we live; and that if there be such a villain, he will not be prevented from attempting the accomplishment of his atrocious purpose by the existence of an act of parliament, which declares that he shall never marry the woman whose virtue he has destroyed. Reason has nothing to urge against marriages which violate no physical law, which are rather marriages of quiet calculation as to the future welfare of children than marriages of passion; and as for morality and religion, the great majority of parties contracting such marriages have paid them the profoundest reverence, and their practice has been for the most part in conformity with the strictest virtue. One of the writers before us observes pertinently on this subject, 'We may observe that in those countries of Europe in which the laws permit these marriages to be contracted, the power of contracting them has never been supposed to have an injurious effect on the state of morals in those countries. And we may further remark, that marriages of this kind have been common amongst the Jews for many centuries in every country in which they have sojourned, and that this circumstance has never been found to be productive of any immorality amongst them. Why, then, are we to conceive that this would be its effect amongst ourselves? Moreover, it is well known that many women, in the hope of thereby securing the happiness of their husbands, and providing the most fitting step-mother for their children, have been desirous that their husbands should marry in one or other of the cases of relationship now under consideration, after their own decease; this is known to have been the earnest wish of many of the most delicate, and intelligent, and amiable of their sex, when they were standing upon the borders of eternity; and the best feelings of our nature forbid us to think that the removal of the impediments which prevent the accomplishment of the last earthly wish of such women as those we have adverted to, would be followed by any injurious effects upon the domestic peace and morals of society.' Before the passing of Lord Lyndhurst's Act, the practice of marrying a deceased wife's sister prevailed to an infinitely greater extent than was at all imagined; nor did it imply any moral depravity, nor provoke any public censure. To these cases, therefore, might in all strictness the axiom be applied'whenever a law is openly and avowedly transgressed by persons occupying a respectable position in society without losing 'character or caste, that law is morally speaking a bad law, ' and, unless there are strong grounds of policy for continuing it, 'should be repealed.' In exact proportion as it was wise, just, and politic for Lord Lyndhurst to legalize all the past marriages of this nature was it the reverse when he established their absolute prohibition for the future. This act has in no respect altered public opinion-nor are these marriages less frequent, though they are contracted in some cases under perilous circumstances, and in others at vast expense and inconvenience, and with some uncertainty; and in some instances where the law is broken with a view of violating the solemn engagement which is secured by no bond but that of honor and principle. In the first the parties brave all consequences, and deem a marriage which is celebrated by a spiritual or civil functionary, whether legal or not, a sufficient justification to their conscience. The second put themselves to the trouble, anxiety, and expense of going abroad, depending on the lex loci for securing the legality of their marriage in their own country; and this, in the opinion of some eminent lawyers, is rather a hazardous procedure. The authors of The Present State of the Law as to Marriages 'Abroad,' have entered at considerable length into this part of the subject; which, according to them, is anything but satisfactory. We believe that heartrending cases have occurred among the lower classes, especially in large manufacturing towns, of the wanton dissolution of these marriages; because the law as it now stands affords no protection to the ignorant and deluded sufferers. We must conclude our long article. It is high time for the public voice to be raised on the subject. The question ought now to be thoroughly discussed and settled. |