The Express.
London, England, 1861-03-20 00:00:00

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LONDON, WEDNESDAY, MARCH 20.

Tux important case of " BROOK o. Baoox," just
decided in thu House of Lords, illustrates the
cruelty and injustice of the existing prohibition
against marriage with a deceased wife's sister.
This came—an appeal from the Court of Chancery
—turned on the validity of a marriage solemnized
abroad by WILLIAM LEIGH Tiniiox with EMILY
A keir.icr, the sister of his first wife. The mar-
riage was celebrated in the Lutheran Church of
Wadabeck, in the Duchy of Holstein, and was
valid according to the law of Denmark. There
were children by both marriages —a boy and girl
by the first, and a boy and two girbi by the second ;
and the father at his death, which happened nearly
six years ago, bequeathed the family mansion
and estate to the eldest son, and the rest
of his property, which is considerable, to be divided
equally tine igst the other children. Before the
estate was administered the son by the second
_ _ _

marriage died, and the suit in Chancery just de-
cided by appeal in the House of Lords arose out
of the rival claims for his share of the estate. The
surviving brother and sisters asserted their right to
the property as next of kin, but the Arrosmer-
Gazimaz. denied this right, and claimed the estate
for the Crown on the ground of the illegality of
the parents' marriage. The whole case thus turned
on the validity of such marriages solemnized
abroad by British subjects who propose residing
in England. That such a marriage contracted in
this country would at present be legally void there
is no doubt. The point to be settled was whether
the marriage of a widower with his deceased wife's
sister in a foreign country where such marriages
are legal would be recognised as valid by the
English law. The Loan CHANCELLOIL, in an elabo-
rate judgment on the whole case, has decided
against the validity of these marriages. His
judgment rests on the obvious ground of their
illegality in this country. It is true,
indeed, that foreign marriages are in the main
regulated by the lex foci r•mtractia, the general
rule being that " a marriage valid according to
"the law of the country where it is celebrated is
" good everywhere." But Lord Camrant, points
out th►t this general rule with regard to the forms
of marriage is limited in the essentials of the con-
tract by the kx deiniciiii,—" The law of the
"country in which the parties are domiciled at
" the time of the marriage, and in which the ma-
" trimonial residence is contemplated." In other
words, if the parties are legally entitled to contract
such a union in this country, the marriage is per-
fectly valid wherever it is celebrated. But if they
are legally disabled here, they cannot get rid of
the disability simply by going through the forms
of marriage in • foreign country where no such
disability exists. A marriage within the degrees
prohibited by English law is not legalized by being
solemnised in Denmark or Germany, for example,
where the special prohibition may be unknown. In
a word, the forms of a foreign marriage cannot
establish the validity of • contract prohibited by
the English law. If the contract is illegal here,
the marriage is void, wherever it may be solem-
nized.

This judgment of the Loan CHANCILLOR is pro-
bably correct, and it would be idle to attempt
any lengthened discussion or criticism of the legal
grounds on which it rests. But the clearing up
of this doubtful point in the existing law of mar-
riage with a deceased wife's sister only brings out
more prominently the radical injustice of the
law itself. The legal right is in this case a griev-
ous moral and social wrong. What is the actual
fact with regard to these marriages, looked at
broadly in the light of reason, of common justice,
and common sense—the only grounds on which
the jurisprudence of any country can ultimately
rest f They are not wrong in themselves. They
violate no law or precept of religion or morality.
'I he utmost ingenuity of party critics has
failed to prove that marriage with a deceased wife's
sister was absolutely prohibited even under the
Jewish law. And if this could be shown ever so
clearly it would in reality prove nothing; since no sane
man would contend for the moral character and
personal obligation of positive ordinances and
local customs. Most men will think with Sat.oms
that many things were done amongst the Jews
that nothing concern England ; "'tis just as if
" a man would have a kettle, and he would not
" go to our brazier to have it made as they make
" kettles, but he would have it made as HIRAI(
" made his brass-work, who wrought in &mews's
" temple." And, moreover, names can be quoted
in favour of a liberal interpretation of the passages
from Leviticus, relied on in defence of the existing
prohibition, as great as any that can be adduced on
the side of restriction. But in factthe argument on
scriptural and religious grounds has been prac-
tically abandoned by the opponents of these mar-
riages. Nor have the other objections urged against
them an moral and social grounds fared any better.
They have, if possible, indeed, broken down more
utterly and hopelessly even than the argument
from Scripture. It is found that these marriages,
so far from being at all opposed to social morality,
are in harmony with its plainest dictates and re-
quirements. It rests on the ample testimony of
those whose large experience enables them to
speak with authority, that the arbitrary prohibi-
tion of the existing law produces the most in-
jurious results, contributing perhaps more than
any other single cause to demoralize the domestic
life and social relations of the working classes in
crowded said poor districts of our large towns.
But these marriages are not only lawful in
themselves, and beneficial in their results, they are
allowed in practice. Public opinion has pronounced
itself with singular unanimity in favour of
legalizing marriage with • deoeseed wife's sister.
The Howie of Commons has repeatedly ratified
that decision by large majorities. Even the House
of Lords and the lietsch of Blaine have both