[289] Jeaffreson, op. cit., II, 258-66. These marriages were called "Altona marriages" (from Altona in Denmark, where they were sometimes solemnized), and are the counterpart of the "Gretna marriages," except that the latter were valid and the former were not: ibid., II, 259, 260. The case of Brook v. Brook (House of Lords, March, 1861) grew out of a marriage celebrated near Altona, June, 1850: Tracts Issued by the Mar. Law Defence Union, II, 313 ff.
[290] Luckock, op. cit., 303, 304, who holds that sometimes by such collusion the "ends of justice were defeated, and persons defrauded of their rights." Cf. the remarks to this effect of Lord Selborne in the House of Lords, 1873, in Tracts Issued by the Mar. Law Defence Union, II, 168.
[291] Luckock, op. cit., 304.
[292] First Report of the Commission of 1847-8, v, vi, xii; Hammick, Marriage Law, 33 n. b; Geary, Marriage and Family Relations, 11, 30 n. 3. See Huth, Marriage of Near Kin, 129 n. 1.
According to the Report (viii), since the Lyndhurst act (1835) there had been 1,364 marriages within the prohibited degrees, of which nine-tenths were with a deceased wife's sister. Only in 88 cases had the act prevented an intended marriage; and of these 32 resulted in open cohabitation. Ten of the 88 cases were among the lower classes. See the epitome of evidence, xvii-xxxix; the minutes of evidence, 1-120; and the interesting letters and papers in the Appendix, 121-65.
[293] Lecky, Democracy and Liberty, II, 214. There is already an immense literature relating to the question of marriage with a deceased wife's sister. The most complete bibliography of the subject is comprised in Mr. Huth's "Bibliography of Works on the Impediments to Marriage" appended to his Marriage of Near Kin, 393-449; also in part previously published by the Index Society, IV, 1st App. to 1st Report. In the Church Quarterly Review, XV, 426, may be found a table showing the results of the various attempts to pass the deceased wife's sister's bill during the period 1842-82.
The absurdities and anomalies of the system are described in his trenchant manner by Lecky, op. cit., II, 214-23. With his account should be read the able discussion by Huth, op. cit., 124-26. The peculiar arguments of the opponents of a change in the law, mainly resting upon the alleged authority of the Old Testament, are best seen in the two volumes of Tracts Issued by the Mar. Law Defence Union (London, 1889); while the antidote may be found in T. Paynter Allen's Opinions of the Hebrew and Greek Professors of the European Universities (London, 1882), prepared for the Marriage Law Reform Association. The speeches in the two houses of Parliament in 1849, 1851, 1855, 1873, 1883, 1895, and whenever a bill on the subject has been under consideration, may of course be found in Hansard's Parliamentary Debates; and the Report of the Royal Commission of 1848 (London, 1848) is especially important. A strong partisan in favor of the existing law is Luckock, Hist. of Marriage, Part II, 213 ff., particularly 250 ff., 292 ff., 300 ff. For his and similar arguments from the standpoint of Hebrew law a partial remedy, on the homeopathic plan, is afforded by the curious essay of Rev. George Zabriskie Gray, Husband and Wife (2d ed., Boston, 1886). Starting with the scriptural premise that man and wife are "one flesh," not "by his becoming part of her flesh, nor by both forming a new flesh, but by her entering into his flesh," the author, arguing with an ingenuity which would have done credit to Peter Lombard in his palmiest days, reaches the triumphant conclusion that a widower may properly marry his sister-in-law. In the same way he shows that by divine intent a woman may not divorce her husband under any circumstances, for "a member can not put away the head" (90); though she may "leave" him—secure a separation a mensa et thoro—if he is "cruel or unclean" (100).
On the general controversy see especially Colloquii über die Frage: Ob Gott verboten oder zugelassen habe dass einer seines verstorbenen Weibes Schwester heyraten möge (Oettingen [1681]), 12 ff.; and Kettner (L.F.E.), Judicia und Responsa von der Ehe mit des Weibes Schwester (Quedlinburg [ca. 1710]), 1 ff., neither of which appears in Huth's list; also Zeidler, De mat. cum defunctae uxoris sorore, published with his De polygamia (Helmstadt, 1698); and Michaelis Abhandlung von den Ehegesetzen Mosis (Göttingen, 1768). Among the vast number of tracts and books on the subject for England a few of the more important are Keble, Against Profane Dealing with Holy Matrimony (Oxford, 1849); Foster, Review of the Law (London, 1847); Pusey, Letter on the proposed Change in the Laws prohib. Mar. between Near Kin (Oxford, 1842); idem, Evidence given before the Commission (Oxford, 1849); idem, God's Prohibition (Oxford and London, 1860); Binney, The Men of Glasgow and the Women of Scotland (London, [1850]); Gibson, Mar. Aff. Question (Edinburgh, 1854); Duke, The Question of Incest (2d ed., London, 1883). This question, with others, is also dealt with by Fry, The Case of Mar. between Near Kindred (London, 1756, 1773); Alleyne, The Legal Degrees of Mar. (London, 1774, 1775); Macrae, Script. Law of Mar. (2d ed., Edinburgh, 1862); Meyer, Uxor christiana (Amsterdam, 1688), 2d dissertation; and Kettner (J. J.), Zwei Abhandlungen (Leipzig, 1780), 67 ff. For discussion of related questions of kinship compare Butler, Marriage of Cousin Germans (Oxford, 1619); the same in Latin under the leading title Suggeneia in Florens, De nuptiis consobrinarum (Frankfort, 1643); Dugard, Marriage of Cousin Germans (Oxford, 1673); Johnstoun, Juridical Dissertation (London, 1734); Paton, Mar. with a Dec. Brother's Wife (London, 1869), and in general read Observations on the Mar. Laws, 126 ff.; Lawrence, in Revue de droit int., II, 65 ff.; Jeaffreson, Brides and Bridals, II, 258 ff.; Hammick, Marriage Law, 23, 30-40; Geary, Mar. and Fam. Rel., II, 30-32; Wharton, Exposition of the Laws, 200, note; Bishop, Mar., Div. and Sep., I, §§736 ff., 747, 750, 752, 753, 875 ff.; Law Mag., XXI, 371-82 (May, 1839); Quarterly Review, LXXXV, 156-82 (July, 1849); Ecc. Review, new series, II, 735-48.
[294] Lecky, Democracy and Liberty, II, 214, who cites "the very candid confession of the Bishop of Winchester": Hansard's Debates, 3d series, CCLXXX, 1671.
[295] Lecky, op. cit., II, 215, citing T. Paynter Allen's pamphlet already mentioned. There is a weak criticism of this work in the Tracts Issued by the Mar. Law Defence Union, I, 177-96. On its high authority see Huth, Mar. of Near Kin, 129.