The law of Scotland does not recognize, in this matter, the distinction between void and voidable marriages, but holds void, ab initio, all marriages contracted within the prohibited degrees of consanguinity, or affinity. In that country the sister of a deceased wife is declared to be within the prohibited degrees, by the whole authority of the Church, and, generally, by lawyers. Doubts, however, have been stated, and upon strong grounds, by some eminent Scottish lawyers, whether that degree be within those prohibited, so as to render void the marriage which may be contracted by a widower with the sister of his wife (a).

A question has lately arisen, upon an indictment of one Chadwick for bigamy, as to what were the prohibited degrees intended by the Statute of the 5 and 6 Will. IV., c. 54 (b): and the Court of Queen's Bench unanimously were of opinion, that the degrees intended were those mentioned in the table annexed to the Book of Common Prayer (c).

It further appears, that many other questions of great difficulty, which have relation to such marriages, have been submitted to the consideration of eminent counsel, but have not received any judicial decision. We will state some of them whether a marriage had abroad between two English subjects, within the prohibited degrees of affinity, would be held null and void by the tribunals in England, if it were legal by the law of the country where it was solemnized; whether a bona fide domicile would make any distinction; and what would be the law if one of the parties were a subject of a foreign state, and particularly of the state where the marriage was solemnized (d).

We have directed our inquiries to the laws of other countries with respect to marriages within the prohibited degrees of affinity, and more especially to a marriage with the sister of a deceased wife. From the evidence which we have taken, there can be no doubt that this last class of marriages is, of all those within the prohibited degrees, by far the most frequent; so much so, that it necessarily forms the most important consideration in the whole subject. When, therefore, for the future, we speak, in this Report, of marriages within the prohibited degrees, we intend, when it is not otherwise declared, to confine our observations to marriages with the sister of a deceased wife.

We find, from the evidence, that marriages of this kind are permitted, by dispensation, or otherwise, in nearly all the Continental States of Europe (e). We have inquired upon what principle these marriages are permitted, or prohibited. In the Roman Catholic Church, they are prohibited as matter of discipline: but such prohibition may be, and is, dispensed with by the Pope, or where, from distance, resort cannot without great inconvenience be had to Rome, by others authorized by him; and upon this principle, that the Church, and not the Law of God, has imposed the prohibition; and therefore that the Church, for fitting reasons, may dispense with it (ƒ).

Protestant States on the Continent of Europe, with the exception of some of the cantons of Switzerland, permit these marriages to be solemnized by dispensation, or licence, under ecclesiastical or civil authority (g).

With regard to the law on this subject in the United States of America, we cannot better illustrate it than by quoting the following passage from the late Mr. Justice Story: he says: "In many, and indeed in most of the American "States, marriages between a man and the sister of his former deceased wife "are not only deemed in a civil sense lawful, but are deemed in a moral, religious, and Christian sense lawful, and exceedingly praiseworthy. In "some few of the States, the English rule is adopted (h)." And in a letter, which has been communicated to us, the same learned Judge thus expresses

(a) Q. 1141 a, e, 1142, 1144 a.

(b) Q. 3 a, 23-4-5; and Epitome of Evidence, p. xvii., (a.) (c) This table is known under the title of Archbishop Parker's table of degrees; it was published in 1563, and is referred to in the 99th Canon. See Appendix, No. 48, 9.

(d) Q. 226 (note), 1149a; Appendix, No. 6..

(e) Q. 206, b, d, 223, 233–5, 259, 280-2 a, 824 a, 875, 883, 965, et seq.; and App., No. 9-11, 25-6. (ƒ) Q. 81-4, 463-7-71-4-9, 481-8, 965-7-8, 1034-63, 1155-6, 1162-8 b, 1166, et seq., 1312-3. (g) Q. 965, et seq.; Appendix, No. 9, 25, 26.

Conflict of Laws, chap. v. sect. 115. Ed. 1841.

himself: "Nothing is more common in almost all the States of America than "second marriages of this sort: and, so far from being doubtful as to their "moral tendency, they are, among us, deemed the very best sort of marriages. "In my whole life I never heard the slightest suggestion against them, founded "on moral or domestic considerations (a)."

In the Greek Church these marriages are considered incestuous, and unlawful, and are not allowed, either by dispensation, or otherwise. But in the case of a marriage, solemnized in Russia, between persons not in communion with the Eastern Church, it seems, that such a marriage, if permitted by the law or discipline of the community to which those persons belong, would not be invalidated by the law of the state (b).

The opinion prevalent among the Jews is, that Scripture does not prohibit such unions; and so far are the Jews from regarding these connexions with disfavour, that, when there are children, the usual time prescribed for remaining in widowhood is abbreviated in such cases. The law and practice prevailing among the Jews as to this matter are stated with great clearness and ability in the evidence of their Chief Rabbi in this country (c).

The various bodies of Dissenters in England do not appear to entertain the opinion that these marriages are interdicted by Holy Writ; or that they are in themselves reprehensible (d).

We have been particularly desirous to ascertain the opinion of the clergy of the Established Church in England, on the two questions, whether the marriage with the sister of a deceased wife is prohibited by the Law of God; or, if not, whether it ought to be interdicted upon any other ground.

The number of clergy in England is so great, that we have found it impracticable to collect the opinions of the individuals composing that body. We have, however, to the utmost of our power, caused it to be known that we were ready to receive information from every quarter, and more especially from the clergy; and we have taken the evidence of those who were known, by their published opinions, or otherwise, to have carefully considered the subject; and on both sides of the question.

We are satisfied that a great diversity of opinion prevails, among the clergy of the Established Church in England, upon both questions (e). We think that very many of them do not consider such marriages to be prohibited by the law of God; but that the majority object to them either upon this, or upon other grounds.

In Ireland, the great majority of the clergy of the Established Church are represented as disapproving of these connexions (ƒ); which are rare also among the Presbyterians in that country; and are generally disapproved of by their ministers (g).

In Scotland, the opinion of the clergy is decidedly against these marriages (h). Among the laity of the United Kingdom, divers opinions obtain; but we think that the prevalent feeling is against these marriages; and that a large majority, if asked their opinion, without time for consideration, would express a very strong dislike and disapprobation of them. But, judging from the evidence before us, we cannot entertain any reasonable doubt that families of a religious and moral character have, in several instances, when such connexions have taken place among themselves or their friends, been perfectly satisfied, upon a consideration of the whole subject, that such marriages were not objectionable, either in a religious or moral point of view. () We are persuaded, (a) See Evidence, p. 21, (note). (b) Q. 500, 1019-21; Appendix, No. 39.

(c) Appendix, No. 35, also see Evidence, Q. 84.

(d) Q. 81-4, 103 c, 148, 166-9, 633-5, 840-7, 954-7, 993-8; Appendix, No. 37-8.

(e) Q. 46, 81 a, 84 a, 101–2, 123, 165, 200-6, 267 a, 310, 382-5, 409, 420-1, 514, 556, 588, 590, 702-5, 762-3, 788, 874, 914, 925, 938, 1008-12, 1047-51, 1061-89-90, 1218-35, 1237-65, 1270 et seq.; Appendix, No. 1-5, 23-4.

(f) Appendix, No. 4, f, l, 5, 27, 30 to 34 inclusive; 40-5 inclusive.

(g) Q. 1094-5, 1111. Appendix, No. 28-9.

(h) Q. 1141 f, 1147-8.

(i) Q. 45, 62, 85, 100-2, 118, 227-9, 262, 267-9, 284, et seq., 301-5, 372-4, 409, 520, 548, 590-1, 626, 688, 824-39, 874-6, 892-904; App., No. 14, 15, 16-22, 36.

however, that comparatively few, either of the Clergy or Laity, have carefully considered the subject; unless where circumstances have forced it upon their attention. (a)

In regard to the subject of this our first Report to your Majesty, it became an object of great importance to ascertain, as far as was practicable, the effect of the Statute of the 5 & 6 Will. IV. Of the number of these marriages, prior to 1835, it was impossible to acquire distinct information: so that we could not institute a correct comparison between the effect of the law while such marriages were voidable, and the effect of the new law rendering them ipso facto void. It is clear, however, that, prior to the Act of 1835, these marriages were sufficiently numerous to attract the attention of the Legislature, and to call upon Parliament to apply a remedy. That Act substantially rendered all past marriages of this kind valid, and secured the issue against any chance of being bastardized by a decree of the Spiritual Court pronouncing the marriage null and void ab initio. So far the Statute may be termed retrospective.

How far the prospective enactment of this Statute, which declares such marriages for the future to be null and void, has attained the object which the Legislature had in view, we proceed to inquire. But we must first express our opinion that, whether successful in this respect or not, the Statute was a wise amendment of the former law, in so far as it abolished the distinction between void and voidable marriage; for nothing could be more opposed to all just principles of jurisprudence than the permitting of uncertainty to attend the marriage state. Before the passing of this Statute the husband or the wife might, at any period of their cohabitation, by instituting a proceeding in the Ecclesiastical Court, cause the tie that bound them to be broken, and their issue to be rendered illegitimate. Any person, from any motive, might, during the lives of the parties, cause the same to be done. It would be difficult to conceive a state of the law more opposed to all sound principle, tempting to the breach of it by hopes of impunity, destructive to the happiness of the parties, by rendering the bond uncertain; and sometimes subjecting them to the misery of having their own hopes, and those of their children, at the mercy of unprincipled extortion

Towards the close of the year 1846, a limited inquiry was instituted, at the instigation and expense of some private individuals interested in this question, for the purpose of ascertaining to what extent the Act of 1835 had been infringed, and whether any hardships were inflicted by the operation of that Act, to such an extent as would warrant an application to Parliament for an alteration of the law. In stating the result of this inquiry, as it has been proved before us, we feel bound to observe, that, although made at the instance of interested parties, it appears to have been conducted by gentlemen of intelligence, station, and character, and with discretion, as well as with perfect integrity and good faith. The inquiry was limited to a period less than three months, and to a comparatively small portion of England alone: but five districts were selected with impartiality and discrimination, as likely to afford a test of the probable operation of the law throughout the kingdom. The districts consisted, 1st, of some of the manufacturing portions of Lancashire and Yorkshire; 2nd, Norfolk and Suffolk, and parts of Lincolnshire and Essex; 3rd, parts of Warwickshire and Staffordshire, including Birmingham and the Potteries; 4th, parts of Hampshire, Dorsetshire, and Devonshire, including Portsmouth, Southampton, Winchester, Dorchester, Plymouth, and Exeter; and 5th, the towns of Bristol, Bath, and Cheltenham, and their immediate vicinities. Besides these districts, an inquiry was also commenced within the limits of the Metropolis, but was not prosecuted to any extent, in consequence of the difficulty of obtaining information in so mixed and numerous a population, without any legal authority to require it. (b)

The summary of information thus obtained may be stated as follows, viz.: Of marriages ascertained to have taken place in the districts alluded to, between parties within the prohibited degrees, 1364 have been contracted since Lord Lyndhurst's Act; and of these, upwards of nine-tenths have been contracted with a deceased wife's sister. There were discovered, in the course of this

(a) Q. 555-6, 1090, 1267, 1351.

(b) Q. 8g, 184.

inquiry, 88 cases only in which the Act had prevented an intended marriage; and, of these 88 cases, 32 are stated to have resulted in open cohabitation, without the sanction of any form or ceremony (a).

Of the marriages thus ascertained to have been contracted, very few were between persons in the poorer classes. For though we have reason to conclude that such marriages are at least as frequent in those classes as in any other, and perhaps even much more so, the condition and circumstances of the parties render their affinity less observed, and consequently difficult to be traced without more elaborate investigation. On the other hand, among the parties contracting these marriages since, as well as before, the Act of 1835, there are found to be many persons of station and property, and of unimpeachable character, and religious habits.

For the mode in which these numbers were arrived at, the details of the inquiry, and the impressions produced on the minds of the persons engaged in it, we refer to the evidence of the gentlemen who conducted the investigation (b).

We forbear to make any calculation deduced from this inquiry, limited in time and extent as it necessarily was, as to the number of marriages within the same degrees which have probably been contracted since 1835, and down to the present time, throughout the whole of England and Ireland; but it is probable that they would bear a proportion to those ascertained in the districts. already referred to.

We cannot avoid the conclusion that the Statute 5 & 6 Will. IV., c. 54, has failed to attain the object sought to be effected by its prospective enactments. It has not prevented marriage with the sister, or niece, of a deceased wife from taking place in numerous instances; whether more or less numerous than before the passing of the statute, we have not, as was before observed, sufficient data to enable us to form an opinion. But, without reference to any comparison of this description, the number of those marriages is so great as to justify us in saying, that the provisions of that Statute, rendering them null and void, have not generally deterred parties from forming such connexions.

No doubt this is a great and continually increasing evil. On a low computation, such marriages must amount to thousands; but from the nature of the connexion, and the secrecy which often attaches to it, their number cannot be accurately ascertained.

The evil is great; for as, beyond all reasonable doubt, such marriages, when celebrated in England or Ireland, are void, the consequences are disastrous to the parties and their issue, at once affecting all the relations of mutual duty and obligation, as well as the rights dependent upon status; nor less pernicious, in a public view, as exhibiting avowed disobedience to law by the open assumption of a sacred character which the law expressly denies. The doubts which exist as to the validity of these marriages, when celebrated abroad, under a variety of circumstances, add another evil consequence to those which we have enumerated.

We have endeavoured to ascertain why this Statute has failed to attain its object; why so many persons, in defiance of its provisions, and the consequences of violating them, have still every year formed such connexions; and why the severer enactments of the Statute have not, as far as we know or have reason to believe, proved more effectual than the uncertain consequences of the previous law. This is a problem not easily solved; but we think we may partly discern the causes of this state of things from a review of some of the more prominent arguments urged against these marriages, on the one hand; and, on the other, of some of the grounds alleged in support of such a change of the law as would allow them; and also from a consideration of the motives and circumstances generally attendant upon them.

Some persons contend, that these marriages are forbidden, expressly, or inferentially, by Scripture (c). If this opinion be admitted, cadit quæstio. But

(a) Q. 7-8, 13-16. Appendix, No. 14, p. 140, (a) and (b)
(c) Q. 206, 310-11, 420, p. 114; Appendix, No. 32, 35, 43.

(b) Pp. 1-18.

it does not appear from the evidence that this opinion is generally entertained.

Others think, that though marriages of this description are not prohibited by Holy Writ, yet that, since from an early age they have been discountenanced by the Church, they ought, in deference to this authority, to be forbidden by law; but we do not believe that the bulk of the community have ever viewed the subject in this light.

We consider that the feeling against these marriages is, in a great measure, founded rather on a vague and uninformed assumption that they are prohibited by God's word, than on a mature examination either of the Scriptures, or of the law of the Church (a).

But the argument which is most strongly insisted upon is this, that marriage produces the most unreserved intimacy with the family of the wife; that all her relations become, as it were, the relations of the husband; and especially, that the sisters of the wife so live with the husband, and assist the wife in discharging so many of her duties towards him, that they are constantly, at all times and seasons, alone with him; that if a possibility existed that hereafter the husband and sister-in-law might become husband and wife, cause would be given for the excitement of those feelings which might destroy the peace of the wife, or even lead to a criminal intercourse; that the great object ought to be to induce the husband to regard his wife's sister as his own; that to preclude the possibility of a future legal alliance is the best means towards this end; and that therefore such prohibition is a just and wise exercise of the power of the Legislature (b).

Those, on the other hand, who defend and uphold these connexions, contend that the marriage with a wife's sister, so far from being prohibited by the Law of God, is inferentially permitted thereby (c). They assert, that it is beyond the proper province of the Legislature to interdict any marriages not prohibited by the Law of God; they say, that consanguinean marriages in this degree are prohibited by the Law of Nature, as well as by Scripture; but that no such abhorrence exists, or can be made to exist, of intercourse between a man and his wife's sister, as nature has implanted in respect to intercourse with his own sister (d): and they refer to the many cases where the wife, on her death-bed, has declared her anxious desire that her husband should contract marriage with her sister (e).

They contend further, that such marriages ought to be permitted for the advantage of the children who have had the misfortune to lose their mother: that the experience of the world has proved that they will take place, when circumstances occur which are calculated to bring them about; and that the laws of nearly all Europe have permitted them; and necessarily so; because all prohibitory laws against them have failed (ƒ).

It remains for us concisely to state the circumstances which generally give rise to matrimonial connexions of this kind, and the various motives which, as we conceive, actuate persons in forming them.

We believe, that the fair and just inference, from the information before us is, that, in most instances, these marriages are neither prevented, nor produced, by any of the reasonings to which we have adverted, but spring out of a peculiar combination of circumstances, which, when they do occur, give rise to feelings naturally leading to marriage.

The common foundation of such marriages is the familiar intercourse which necessarily prevails between a man and his sister-in-law, when, upon the death of a wife, she assumes her sister's place in the care of the children, and in the superintendence of the domestic establishment. We believe, that among persons who have not passed the middle age, attachments will be very frequent,

(e) Q. 8 e, f, 81, 84 ƒ, 148, 517, 624, 685, 873, 970, 1071. Appendix, No. 20. Į (f) Q. 124.