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Marriage to a Deceased Wife's Sister in Australia and England 1835-1907 Charlotte Frew BALLB Hons Macquarie University, Sydney

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Marriage to a Deceased Wife's Sister in Australia and England 1835-1907 Charlotte Frew BALLB Hons Macquarie University, Sydney Marriage to a Deceased Wife’s Sister in Australia and England 1835-1907 Charlotte Frew BALLB Hons Macquarie University, Sydney This thesis is presented for the Degree o f Doctor o f Philosophy Macquarie University, Sydney Law School Discipline of Legal History 2012 MACQUARIE UNIVERSITY HIGHER DEGREE THESIS¥ AUTHOR’S CONSENT DOCTORATE DEGREE This is to certify that I , ....................................being a candidate for the degree of Doctor of ph.0.QS9J>hy ........................................... am aware of the policy of the University relating to the retention and use of higher degree theses as contained in the University’s Higher Degree Research Thesis Preparation, Submission and Examination Policy. In the light of this policy, I agree to allow a copy of my thesis to be deposited in the University Library for consultation, loan and photocopying forthwith. -U .......... Signature of Candidate Full Name & Signature of Witness Date 2/i/lui Date; 8*1 MACQUARIE UNIVERSITY ¥ The Academic Senate on 13 July 2012 resolved that Ms Charlotte Frew had satisfied the requirements for admission to the degree of PhD. This thesis represents a major part of the prescribed program of study. TABLE OF CONTENTS Abstract i Statement of Candidate ii Acknowledgments iii Definitions and Abbreviations v INTRODUCTION AND METHODOLOGY 1 CHAPTER ONE Context 21 CHAPTER TWO The Origins of Deceased Wife’s Sister Legislation 49 CHAPTER THREE Established Church, Religious Politics and Legislative Reform in the Australian Colonies 1850-1900 68 CHAPTER FOUR Comparative Notions of Property, Marriage and Inheritance in England and Colonial New South Wales: Implications for the Marriage Controversy 89 CHAPTER FIVE English and Australian Literary Versions of Marriage to a Deceased Wife’s Sister 106 CHAPTER SIX Colonial Liberalism and the Deceased Wife’s Sister Marriage Debates 135 CHAPTER SEVEN Marriage to a Deceased Wife’s Sister and the Colonial Relationship with the Mother Country 1850-1900 151 CHAPTER EIGHT The Road to Legalisation in England: Scientific Discourse and Marriage to a Deceased Wife’s Sister in the Context of Empire 171 CHAPTER NINE The Annual Blister Bursts: Legalisation in England 192 CONCLUSION 209 EPILOGUE 210 BIBLIOGRAPHY 215 ABSTRACT Is marriage a natural institution? Is it a political institution? Does marriage have essential attributes? Is marriage adaptable? This thesis examines these questions, and the nature of marriage through the comparative case study of the law against marriage to a deceased wife’s sister in nineteenth century England and the Australian colonies. The study reveals marriage to be a political, legal and social institution with no essential attributes; an institution entirely created by the state, capable of enforcing a wide variety of norms and fulfilling a wide variety of chosen purposes. A man’s marriage to a sister-in-law after a wife’s death may seem like an obscure subject of research, a legislative relic with narrow ramifications. The sister-in-law marriage debate has nothing to do with marriage or incest in their contemporary form, or the economic or social context of the twenty-first century in England or Australia. However, the marriage debate and other marriage reform debates in history, remind us that the most fundamental marriage rules - even the rules of incest - are not natural but social, revised by each culture to match its sense of justice and purpose.1 This thesis is about the fluidity of the marriage institution and provides one example of how marriage evolved to reflect changing social mores. It illustrates how comparative religious culture shaped nineteenth century marriage law in England and the Australian colonies; how political prerogative reinforced or removed legal marriage prohibition; and how distinctive colonial social, economic and religious culture led to divergences from the marriage legislation inherited from England. This case study is ideal for answering the questions posed in this thesis because of the protracted nature of the debates, spanning seventy-five years of the nineteenth century; the wide ranging political, social, economic and religious issues that shaped marriage in the respective societies; and the colonial abolition of the prohibition almost thirty years prior to England. These characteristics enable an in-depth comparative analysis of the social and legal construction of marriage’s parameters in the nineteenth century. 1 E.J Graff, What is marriage for: the strange social history of our most intimate institution (Beacon Press, 2004) 166. STATEMENT OF CANDIDATE I certify that the work in this thesis entitled "Marriage to a Deceased Wife's Sister in Australia and England 1835-1907" has not previously been submitted for a degree nor has it been submitted as part of requirements for a degree to any other university or institution other than Macquarie University. I also certify that this thesis is an original piece of research and it has been written by me. Any help and assistance that I have received in my research work and the preparation of this thesis itself have been appropriately acknowledged. In addition, I certify that all information sources and literature used are indicated in the thesis. Charlotte Frew (30675995) 8 January 2012 ACKNOWLEDGMENTS I am grateful to Macquarie University for the award of a Research Excellence Scholarship which has made it possible for me to study full time for the past three and a half years. I am grateful for funds provided by the Macquarie University Higher Degree Research Office and extra financial assistance provided by the American Society for Legal History, which enabled me to conduct primary research at the British Library and National Archives in London in 2009, and attend the American Society for Legal History Conference in Atlanta in 2011. I would like to acknowledge the staff at the British Library, London; the National Archives, Kew; New South Wales State Archives; South Australian State Records; Mitchell Library, Sydney; and the Monash, Melbourne and Macquarie University Libraries. I wish to especially thank, Macquarie University Library document supply staff for promptly providing me with so many books by post; staff in the Mitchell Library and Legal Access Information Centre at the State Library of New South Wales; and the staff in the LaTrobe Reading Room at the State Library of Victoria, who went out of their way to assist me in locating primary materials. Thank you to Diane Reilly who provided me with primary materials sourced in Switzerland. I am indebted to my supervisor Professor Andrew Buck for inspiring me as an undergraduate; encouraging me to pursue postgraduate study, and an academic career; for his advice on both my thesis and my career development; and for the gift of confidence which he has been able to give me. His friendship, and my complete trust in his academic expertise, as well as his advice in its many forms, has made my candidature much easier than it would have been otherwise. I am extremely grateful to Dr Michael Roberts who I first contacted about a quick query in 2009 and who has shown a genuine interest in my research topic ever since, providing extensive comments and sharing his knowledge of British nineteenth century research materials. Thanks to Rosalind Croucher for her early advice on establishing a research topic. Along the way many academics have provided comments on draft chapters and articles. I wish to thank Marian Quartly, Bruce Kercher and Danaya Wright. I am grateful to Tim Stretton and to the attendees of both the Married Women and the Law Workshop in Halifax and the American Society for Legal History Conference in Atlanta, who provided useful comments on papers associated with this thesis. Thank you to anonymous reviewers at Legal History, Law and Literature, Law and Context, and the Journal of Imperial and Commonwealth History, for comments on thesis associated papers. Thank you to Helen Rhoades and Shurlee Swain in Melbourne for assisting me in developing a publications record and providing me with fulfilling part time research work. I would like to thank my mum and dad for supporting me in my education throughout my life, encouraging my interest in learning and writing, and supporting my pursuit of more and more education and my treatment of it as an end in itself. Special thanks to my dad for proof reading and commenting on a full draft of this thesis. Finally, I am grateful to my partner Angela, for reminding me regularly of my capacity to get the job done; for forcing me to turn off the computer after too many hours; putting up with my high stress levels in the final months; and for giving me a very good reason to write this thesis. DEFINITIONS AND ABBREVIATIONS Definitions Incest: refers to the pre-twentieth century understanding of incest, that is, incest recognised in the Church courts as marriage within the prohibited degrees. The great majority of incestuous unions subjected to ecclesiastical authority were between affines not blood relatives. The contemporary definition of incest denoting sexual relations between closely related family members is only referred to in the post 1907 context because it was in 1908 that the contemporary meaning of incest was incorporated into the English criminal law. Affinity: refers to a relationship which "arises from a valid marriage, even if not consummated, and exists between a man and the blood relatives of the woman and between the woman and the blood relatives of the man. Affinity is relationship by marriage, usually signified by the prefix in-law to the degree of kinship. Prohibited relationships of affinity included those with a step-mother, aunt by marriage, step-sister, sister-in-law, daughter-in-law or step-daughter. Consanguinity: refers to a relationship arising from the sharing of descendants, or more colloquially, kinship by blood. Prohibited relationships of consanguinity included, among others, a man with his mother, sister, daughter, granddaughter and blood aunt.
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