No. 44.

QUERIES submitted to the CLERGY of the DIOCESE of MEATH, for the information of the Commissioners appointed by Her Majesty to inquire into the question of Marriages within the Prohibited Degrees.

The Archdeacon remarks-" Of those who consider such marriages contrary to Scripture, many would refuse to celebrate them. Those who consider them not forbidden by a Divine law, are generally no less persuaded that such marriages ought to be forbidden by human laws. N.B.-The above is a faithful abstract of the replies as returned to me. March 3, 1848.

EDW. A. STOPFord,

Archdeacon of Meath.

APPENDIX, No. 44.

SIR,

Ardbraccan House, Navan, April 15, 1848.

His Grace the Lord Primate of Ireland having sent me the Queries of the Commissioners, appointed by Her Majesty to inquire into the question of marriages within the prohibited degrees, the Archdeacon of Meath sent printed copies of the queries round to all the beneficed clergy of the diocesǝ of Meath, and I send herewith an abstract of their answers.

I have no doubt but that you have had ample disquisitions upon the question as to the Divine law, therefore my remarks upon that branch of the subject may be brief.

One principle seems evident from Scripture-that the law of marriage varied with the progress of society; the prohibitions uniformly becoming more extensive, and the limits within which marriages were prohibited becoming wider, as population increased and as, society becoming denser, the necessity increased of more persons of the same family living together or contiguously.

We all know that, at first, brothers were not only permitted, but ordered to marry their sisters. We know that, subsequently, a plurality of wives was allowed, and a man permitted to marry two sisters together; yet such marriages were afterwards prohibited by the eighteenth and twentieth chapters of Leviticus. The general principle laid down in those two chapters is "nearness of kin," xviii. 6, xx. 19; and many prohibitions in these chapters show that nearness of affinity is equally forbidden as nearness of consanguinity; and a brother being forbidden to marry his brother's wife, by parity of reason, if the principle be nearness of kin, he would also be forbidden to marry his wife's sister. And yet xviii. 18, which prohibits a man marrying his wife's sister (we may suppose in case of divorce, which was then lawful) in her lifetime, seems to give permission for marrying her after the death of the first.

I come now to the statute and canon law. I need not state to the Commissioners that, in England, such marriages (of two sisters) are prohibited by both laws; but, I believe, they will be surprised to learn the state of the law upon this subject in Ireland. There never was any statute law in Ireland to prevent a man marrying his deceased wife's sister. Our 47th Irish Canon adopted, in 1634, the English table of 1563, and declares that table to "express the degrees prohibited by the laws of God." This is the only legislation that ever has taken place in Ireland upon the subject. No clergyman of our church could celebrate such a marriage. Roman Catholic priests cannot celebrate such marriages, or even marriages of more distant relationship, without dispensation, but with such dispensation could marry the persons in question. Before our Marriage Act (7 and 8 Vict. c. 81) a Presbyterian minister could have lawfully celebrated such a marriage between two Presbyterians, and the marriage would have been lawful. It is true he could not be compelled to celebrate such a marriage, because he could not be compelled to celebrate any marriage. He has the same power since the passing of that Act; since which time, also, the Registrar of Marriages could celebrate a marriage between a man and the sister of his former wife, and an action would lie against him if he refused. I fear that no Irish lawyer can contradict this; I wish he could. I pray the Commissioners to consider it.

If the Divine law did, in Leviticus, condemn marriages which the same law, as recorded in Genesis, had ordered, on the first institution of human society, on the grounds of an alteration in the state of the world, we may consider the same law as giving permission still further to extend those limits, if the state of society should require it. The English Legislature adopted the same principle of prohibition in the Statutes of Hen. VIII. and Eliz., and in the Canons.

In Ireland, notwithstanding the silence of the statute law, such marriages have been held in much greater abhorrence than in England. I know of only three or four in my long life; and the couples so united were cut off from all society, and even from the acquaintance of their nearest relations. And yet still I am bound with shame and grief to confess that such marriages were legal.

To such marriages I have the most decided objection, and this I cannot better state than in the words of my son, the Archdeacon of Meath, in his report to me on the subject, as follows:-"Of all the marriages, prohibited by Divine or human laws in the present state of society, next to brother and

sister, the marriage of a man with his deceased wife's sister is that one which would involve the greatest evil in its general permission. Marriages between an uncle and niece, or between a man and his brother's widow (both of which are forbidden in express terms in the Levitical law), would be comparatively harmless in its effects upon family society and peace, and for this reason, because no other prohibited relationship involves an intercourse so nearly resembling that between brother and sister. Taylor gives an admirable view of the evils which would arise from permitting marriage between brothers and sisters. These evils would apply more nearly to the case in question than to any other; for instance, a man seldom lives in the same house with his niece, and if he did, his attention to her would be little likely to produce jealousy and suspicion of the most fearful kind. And, again, how rarely does a man's unmarried brother live in the house with a married couple, as compared with the wife's sister. How many thousands of this latter class find it their only home, how few of the former! And we may add in general to the argument, how much more reasons of jealousy a wife has than a husband; and what kind of jealousy could be more horrible than that of a woman towards her own sister; and it would exist if the law gave room for it, and, unlike all other jealousies, it would intrude most rudely into her last hours of trial. The mischief,' as Taylor says, 'would be horrible and infinite.' And what good would it do? It would throw thousands of helpless females upon the world. The feelings of married females, be they right or wrong, yet, as facts, must be considered as ingredients in directing legislation. I have asked the opinion of several so situated, who say, that if their sisters could not live with them as the sister of the husband also, their continuing to live with them would be impossible. I have asked widowers also, who say that a change in the law would break up their establishments. And after such a change it must seem obvious that, on the death of a man's wife, he could not, as now, bring in her sister to take care of her children (and where could he find a person so calculated to care for them), unless he had made up his mind to marry her. And under such circumstances how few women would undertake the care of their sister's children in the houses of their brothers-in-law."

On the whole, it is my decided opinion that, instead of altering the English law on this subject, it ought to be in express terms extended to Ireland, but without reciting the present state of the law, provided it be really such as I have represented it.

I have the honour to be, Sir,

Appendix.

No. 44, (continued.)

Your very faithful servant,

The Right Hon. Stephen Lushington.

EDWARD MEATH.

APPENDIX, No. 45.

The Rev. B. J. Clarke forwarded to Dr. Lushington, by the direction of the Bishop of Tuam, Killala. and Achonry, seven letters, " expressive of the sentiments of the clergy of that diocese."

MY DEAR LORD,

(a.)

Crossbryne, March 6, 1848.

In reply to your circular of the 3rd inst., we beg leave to state that such marriages have not been known or heard of i this Deanery, either before or since the Act of Will. IV. We consider such marriages to be contrary to the moral instinct and feelings of our nature, as well as to the rules of society and the laws of the land; therefore contrary to the Will of God, being detrimental to morality and opposed to the spirit of the Scriptures, if not actually forbidden by the latter.

I have the honour, &c.,

W. CROFTON, Rural Dean Diocese of Tuam.

No. 45.

(b.)

REVEREND SIR,

Easkey Vicarage, Dromore West,
March 6, 1848.

HAVING, in obedience to the desire of the Lord Bishop, as expressed by your letter of the 23rd ult., consulted the clergy of this rural deanery, on the subject of his Grace the Lord Primate's communication, touching the celebration of marriages within the prohibited degrees, it is our opinion that, in Ireland few such marriages have taken place, and that we have no facts in this diocese whereon to ground a judgment of the results of a practice, concerning which we possess happily no experience. I remain, &c., Rev. B. J. Clarke,

REVEREND AND DEAR SIR,

(c.)

JOHN DAWSON, Rural Dean.

The Rectory, Newport Mayo,
March 3, 1848.

I HAVE the honour to acknowledge the receipt of your favour, with a copy of Dr. Lushington's letter to the Primate, &c., and in reply to the queries therein, beg to say ;—

That no marriages within the prohibited degrees, have taken place in this parish, since the passing of the 5 and 6 of Will. IV. c. 54.

That in my opinion such marriages are plainly prohibited in the Holy Scriptures; contrary to the spirit of Christianity, and most injurious to the interests of morality; tending also very much to disturb the balance of our social system.

I Do not know of any marriages having taken place within the prohibited degrees, since the passing of the Statute of 5 and 6 Will. IV. I think the prohibition of marriages ought to be maintained within the degrees of kindred and affinity, as laid down in the table inserted in the Book of Common Prayer.

The Rev. W. Leahy.

I am, &c.,
WILLIAM B. STONEY.

Appendix.

No. 45, (continued.)

No. 46.

Leviticus, ch. xviii.,

v. 6-18.

Leviticus, ch. xx., v. 21.

Deut., ch. XX., V. 5, 6.

(e.)

** The Rev. W. Leahy (rural dean), said, "I fully participate in these opinions; and I cannot find that any such marriages have taken place in this Union."

N.B. The archdeacon of Achonry, in transmitting the above letter, said, "I enclose the Rev. John Garrett's reply as to his union of Emlyfadd, which coincides very much with my own; these illegal marriages chiefly originate in emigration and desertion."

The Rev. J. Garrett, thus wrote:

(f.)

My experience from the year 1798 to the present, is, that no marriages among Protestants have been contracted which the late or any other statute prohibits. I believe among Roman Catholics, dispensations have been granted, but the expense would prohibit any of the peasantry from seeking such an indulgence.

REVEREND SIR,

(g.)

Athenry, May 5, 1848.

On receipt of your letter of the 23rd of February, I lost no time in requesting the clergymen of my rural deanery, to take the queries of Dr. Lushington into their consideration, and acquaint me with the result. I have received answers from three of them, communicating their opinions on the several points submitted to them. They concur in stating, that marriage with a wife's sister, though within the prohibited degrees, is not forbidden expressly by Scripture; but their judgments differ as to the morality of it. The Rev. F. Le Poer Trench, rector of Moor and Drum, is "very decidedly of opinion that the interests of morality are far more likely to be injured by the statute referred to (5 & 6 Will. IV. c. 54,) as far as it relates to such a marriage, than by one that would legalise the same." The Rev. Matthew Eaton and the Rev. John Treanor condemn such marriages, as having an immoral tendency. The Rev. John D'Arcy also, with whom I had a personal conversation on the subject, takes the same view of it. I have not received any reply to my letters, from Mr. Warden, of Galway, nor from the Rev. Edward Maunsell.

The celebration of such marriages in this country is of rare occurrence, and the several clergymen, above referred to state, that no instances have occurred since the passing of the Act, within their respective

cures.

For myself, I agree with my Reverend brethren of Galway, in deprecating any relaxation of the law as it stands. There may be reasons in the prevalence of a vicious custom among a certain class in England, which might render an alteration expedient, on the ground of preventing a greater scandal; but the moral feeling of this country, as well amongst Roman Catholics as amongst Protestants, is almost universally opposed to such marriages; and in my opinion, that feeling, even in a more doubtful case, is deserving of respect. I shall merely add, that although some men will speak lightly of a marriage with a wife's sister, the parallel case of a marriage with a brother's wife would not be tolerated in virtuous society.

To the Rev. B. J. Clarke, Tuam.

MARK PERRIN, Rector of Athenry.

I remain, &c.,

APPENDIX, No. 46.

Leviticus, chap. xviii., ver. 6—18.

6 ¶ None of you shall approach to any that is near of kin to him, to uncover their nakedness: I am the Lord.

7 The nakedness of thy father, or the nakedness of thy mother, shalt thou not uncover she is thy mother; thou shalt not uncover her nakedness.

8 The nakedness of thy father's wife shalt thou not uncover: it is thy father's nakedness.

9 The nakedness of thy sister, the daughter of thy father, or daughter of thy mother, whether she be born at home, or born abroad, even their nakedness thou shalt not uncover.

10 The nakedness of thy son's daughter, or of thy daughter's daughter, even their nakedness thou shalt not uncover: for their's is thine own nakedness.

11. The nakedness of thy father's wife's daughter, begotten of thy father, she is thy sister, thou shalt not uncover her nakedness.

12 Thou shalt not uncover the nakedness of thy father's sister; she is thy father's near kinswoman. 13 Thou shalt not uncover the nakedness of thy mother's sister: for she is thy mother's near kins

woman.

14 Thou shalt not uncover the nakedness of thy father's brother, thou shalt not approach to his wife: she is thine aunt.

15 Thou shalt not uncover the nakedness of thy daughter in law: she is thy son's wife; thou shalt not uncover her nakedness.

16 Thou shalt not uncover the nakedness of thy brother's wife: it is thy brother's nakedness.

17 Thou shalt not uncover the nakedness of a woman and her daughter, neither shalt thou take her son's daughter, or her daughter's daughter, to uncover her nakedness; for they are her near kinswomen it is wickedness.

18 Neither shalt thou take a wife to her sister, to vex her, to uncover her nakedness, beside the other in her life time.

Leviticus, chap. xx., ver. 21.

21 And if a man shall take his brother's wife, it is an unclean thing: he hath uncovered his brother's nakedness; they shall be childless.

Deuteronomy, chap. xx., ver. 5, 6.

5 If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not marry without unto a stranger: her husband's brother shall go in unto her, and take her to him to wife, and perform the duty of a husband's brother unto her.

6 And it shall be, that the firstborn which she beareth shall succeed in the name of his brother which is dead, and his name be not put out of Israel.

APPENDIX, No. 47.

An Act to render certain marriages valid, and to alter the law with respect to certain voidable marriages. [31st August, 1835.]

WHEREAS marriages between persons within the prohibited degrees are voidable only by sentence of the Ecclesiastical Court, pronounced during the lifetime of both the parties thereto, and it is unreasonable that the state and condition of the children of marriages between persons within the prohibited degrees of affinity should remain unsettled during so long a period, and it is fitting that all marriages which may hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity should be ipso facto void, and not merely voidable; be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that all marriages which shall have been celebrated before the passing of this Act between persons being within the prohibited degrees of affinity shall not hereafter be annulled for that cause by any sentence of the Ecclesiastical Court, unless pronounced in a suit which shall be depending at the time of the passing of this Act: provided that nothing herein before enacted shall affect marriages between persons being within the prohibited degrees of consanguinity.

II. And be it further enacted, that all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void to all intents and purposes whatsoever.

III. Provided always, and be it further enacted, that nothing in this Act shall be construed to extend to that part of the United Kingdom called Scotland.

IV. And be it enacted, that this Act may be altered or repealed by any Act or Acts to be passed in this present Session of Parliament.

Appendix.

No. 47.

5 and 6 Will. IV.,

c. 54.

APPENDIX, No. 48.

"No person shall marry within the degrees prohibited by the laws of God, and expressed in a table set forth by authority, in the year of Our Lord God, 1563. And all marriages so made and contracted, shall be adjudged incestuous and unlawful, and, consequently, shall be dissolved as void from the beginning; and the parties so married, shall, by course of law, be separated, and the aforesaid table shall be in every church publicly set up and fixed at the charge of the parish."

APPENDIX, No. 49.

A TABLE OF KINDRED and AFFINITY, wherein whosoever are related are forbidden in Scripture and our

1 GRANDMOTHER,

A Man may not Marry his

2 Grandfather's Wife,

3 Wife's Grandmother.

4 Father's Sister,

5 Mother's Sister,

6 Father's Brother's Wife.

7 Mother's Brother's Wife,

8 Wife's Father's Sister,

9 Wife's Mother's Sister.

10 Mother,

11 Step-Mother,

12 Wife's Mother.

13 Daughter,

14 Wife's Daughter,

15 Son's Wife.

16 Sister,

17 Wife's Sister,

18 Brother's Wife.

19 Son's Daughter,

20 Daughter's Daughter, 21 Son's Son's Wife.

22 Daughter's Son's Wife,

23 Wife's Son's Daughter,

24 Wife's Daughter's Daughter.

25 Brother's Daughter,
26 Sister's Daughter,
27 Brother's Son's Wife.

28 Sister's Son's Wife,

29 Wife's Brother's Daughter, 30. Wife's Sister's Daughter.

Laws to Marry together.

No. 48.

A.D. 1603.
Canon 99.

No. 49.

INDEX.

[The Numerals, that follow the Subject, (where not otherwise designated,) refer to the Questions and Answers in the Evidence.]