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From: "Bill Churchill" <>
Subject: RE: [PLY/MA] Question on 17th century marriage in the Colony
Date: Mon, 2 Jun 2003 19:47:14 -0500
In-Reply-To: <3EDB3C7E.6090501@firstva.com>


Harlow,

You are precisely correct as to the reasoning for banning the marriage
to a spouse's siblings. However, it is not correct that the marriage of
a widow to her husband's brother was legal. Both cases were incestuous.

This situation did not change in England and her Colonies until the
"Deceased Wife’s Sister’s Marriage Act of 1907" was enacted. But, that
act only legalized the husband marrying a deceased wife's sister. It
remained illegal for a widow to marry her deceased husband's brother
until 1921 when the "Deceased Brother’s Widow’s Marriage Act of 1921"
was enacted.

Such a marriage was quite risky. It may not have made too much
difference to shop holders, people of the trades and laborers since many
of these classes held property through Copyhold but it could make a big
difference to any Freeholder (husbandmen, yeoman and up). Such a
marriage was non existent. The children were bastardized and, thus,
made ineligible to inherit tenure. This means that a father's holdings
in land could not be passed to his children. Likewise, his widow (since
he legally had no widow) could not, after his death, receive and hold
his land under her widow's dowry right. The children's and the wife's
rights to hold would have terminated upon his death regardless of his
will. The husband and father's tenure would either cease or the land
would pass to eligible allied relatives.

By way of understanding this, prior to the land reforms of the 20th
century, all land in England and her colonies was owned by the Crown.
It was given out to landholders under tenure agreement. Today we “own”
land under a perpetual “hold” as it were. But in the 17th century land
tenure had a term that could vary but was generally for life and
renewable. (This was only true for freehold. Copyhold had no right of
continuance.)

Normally under tenure, freehold land passed from father to son or sons,
and failing a surviving or suitable son, to daughters. While a bastard
had certain rights he/she could not inherit a freehold. That is to say
they were ranked below all other legitimate relatives. Thus, it was
quite dangerous to marry outside Church law.

Obviously in areas outside Church control such a marriage could exist.
It was legal in other countries and religions. Also, English Civil
authorities (judges and courts) of the time did not have the power to
terminate a marriage. That could only be done by a special act of
Parliament. But in areas under church control such a marriage did not
exist.

What I have learned from my query is that there were apparently
communities, outside Anglican Church control in which such marriages
occurred.


Bill



-----Original Message-----
From: Harlow Chandler [mailto:]
Sent: Monday, June 02, 2003 7:01 AM
To:
Subject: Re: [PLY/MA] Question on 17th century marriage in the Colony

Bill Churchill wrote:

>Does anyone on the list have a case where a mid 17th century man's
>brother married his wife's sister or his sister married his wife's
>brother?
>
>
>
I have been searching fruitlessly in my limited time this morning for a
source to back me up on what I think I remember.

I believe that traditionally in England and the English colonies it was
reasoned from Genesis ("Therefore shall a man leave his father and his
mother, and shall cleave unto his wife; and they shall be one flesh.")
that a man's wife became his blood relative, and hence all his wife's
family became his blood relatives as well. Therefore a marriage between
a widower and his wife's sister was incestuous, whereas the marriage of
a widow to her husband's brother was not.

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