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Cynthia Fansler Behrman Iolanthe, Or, the Peer and the Peri, Opened In CynthiaFansler Behrman THE ANNUAL BLISTER: A SIDELIGHT ON VICTORIAN SOCIAL AND PARLIAMENTARY HISTORY* "And he shall prick that annual blister, Marriage with deceased wife's sister." -The Queen of the Fairies' curse fromlolanthe IN NOVEMBER 1882, THE SEVENTH OF GILBERT AND SULLIVAN'S OPERETTAS, Iolanthe,or, the Peer and thePeri, opened in London.In thestory, the Queenof the Fairies, angry with the House of Lords, sends Strephon, an Arcadianshepherd, into Parliament to makea littlelegislative mischief. Amongother things, Strephon is tosettle a perenniallegislative problem: marriagewith deceased wife's sister. This is theonly time we hearof the "annualblister" from Gilbert, but it was a moreappropriate epithet than he knew,for not only had it beena perennialproblem before lolanthe, but after1882 the questionof legalizingsuch a marriagecame up in everyParliament except two until 1907. The issue stretchedback into parliamentaryhistory to Lord Lyndhurst's Act of 1835, and even, in some senses,to HenryVIII's quarrelwith the Church. The marriagequestion was onlyone of a numberof different sides to the continuingstory of the unresolvedrelationship between churchand statein England.The EnglishReformation was notsimply a phenomenonof Tudor and Stuarttimes, but extended into the political * I should like to acknowledge the generous theological and legal assistance of two friends: the Rev. Benedict Green, C.R., of Mirfield,Yorks., and the Rev. E. S. S. Sunderland of Cambridge,Mass. They are not to be held accountable, however, for errors,nor formy own perverseopinions. JUNE 1968 This content downloaded from 198.91.37.2 on Mon, 19 Jan 2015 13:11:15 PM All use subject to JSTOR Terms and Conditions 484 CynthiaFansler Behrman and religioushistory of laterreigns. In thenineteenth century, under the general influenceof liberal thought,Parliament began to assert more authorityover subjects which had been chieflyin thehands of the Church. In particular,marriage law came in formuch scrutiny,as attemptswere made to disentanglea hideous knotof civil regulations,church custom, biblical proscriptions,common law, and conflictingjurisdictions, as well as certaininequities imposed on Jews,Roman Catholics,Quakers, and Nonconformists.Marriage law had never been solely the province of ecclesiasticalauthority, although from medieval timesthe Church had triedto impose regulationson the civil law, in the interestsof greater specificityand clarity.Since so much of importance- for example,in- heritance,wardship, and property- hungon the questionof the validity of a marriage,the impositionof stricterstandards on the marriagecon- tractwas verydesirable.' Commonlaw requiredonly the declarationof consentto marriage;no religiousformality was required. The Fourth Lateran Council requiredthe publicationof banns and urged the clergy to solemnizethe marriage,although the Churchcontinued to recognize the validityof a consensualmarriage contract.2 With the more specificquestion of the definitionof legally per- missiblemarriages Parliament was also vitallyconcerned, and for the same reasons as above: the need to regulatevalidity. As Maitland re- marks,"marriage is not a matterthat can be leftto judicial discretionor naturalequity. It is preeminentlya matterabout which theremust be hard and fast rules."3There certainlyhad been no lack of rules. Gen- erally speaking,English law followed canon law and prohibitedmar- riage withincertain degrees of consanguinity,but the questionwas his- toricallyvery complex, and mightbe worthexamining briefly. I In its earlyyears the ChristianChurch conformed to Jewishlaw and to Roman civil proscriptions.In Jewishmarriage law, as found in Leviticus XVIII, marriagewas forbiddenwith a long list of collateral 1 Sir FrederickPollock and Frederic William Maitland, The Historyof English Law Beforethe Time of Edward I, 2 vols. (Cambridge, 1895), II, ch. vii, gives a veryclear accountof theseproblems, and ofthe relation between church and civillaw. 2 JamesT. Hammick,The MarriageLaw of England: A Practical Treatiseon the Legal IncidentsConnected with the Constitution of the MatrimonialContract, 2nd ed. (London, 1887), p. 4. 8 Roman Canon Law in the Churchof England, Six Essays (London, 1898), p. 38. VICTORIAN STUDIES This content downloaded from 198.91.37.2 on Mon, 19 Jan 2015 13:11:15 PM All use subject to JSTOR Terms and Conditions THE ANNUAL BLISTER 485 relatives,including one's father'swidow, one's daughter-in-law,aunt, and brother'swidow, among others.As one authorityhas remarked,it is uncertainon what principlethe listwas framed,but it seems likelythat the purpose was to preclude discord withinthe home, and that those excludedfrom marriage were the ones mostlikely to be membersof the same household.4Deuteronomy XXV, 5, 6, appears to be in contradiction to the earlierlaw forbiddingmarriage with brother's widow (Leviticus XVIII, 16), but the Deuteronomypassage referredto the special circum- stance of the so-called "levirate"marriage: the case of a childlessmar- riagewhere the widow was requiredto marryher brother-in-law in order to providethe deceased withan heir. The earlyChristian Church also obeyed the Roman civilmarriage law. In early Republican times,Romans seem to have forbiddenmar- riage between all related persons. During the years of the Republic restrictionswere graduallyrelaxed. In the Roman Empire,marriage was forbiddenin the directline indefinitely,and in the collateralline to the thirddegree, that is, betweenbrothers and sisters,or nephewsand aunts, but notbetween first cousins.5 By thefourth or fifthcenturies the Church began to assertits own independentauthority, and canonicallegislation became stricter,although the emphasiswas always upon tradition,cor- rectlyinterpreted, rather than on innovation.When St. Basil the Great (c. 330-379) forbadein his diocese the marriageof a man withhis de- ceased wife'ssister, he answered objectionswith the defensethat such had always been the local law.6 SuccessiveCouncils confirmed this prin- ciple and extendedthe forbiddendegrees to the extremeof sixthcousins because Roman law recognizedblood relationshipto this degree. The prohibitionwas, understandably,very difficult to enforce. The Church also forbademarriage between two personsrelated by "affinity"on St. Paul's principlethat sexual union makes two people 4 George Hayward Joyce,S.J., ChristianMarriage: An Historical and Doctrinal Study (London, 1933), p. 532. 5 H. A. Ayrinhac,S.S., D.D., D.C.L., Marriage Legislationin the New Code of Canon Law (New York, 1918), p. 170. There were two ways of reckoningthe degree of relationshipin the collateral line: the Roman, in which one counted the generations on both sides to a commonancestor, and the Teutonic,in which one counted the gen- erationson one side (the longerif theywere unequal) only. Thus, forexample, second cousinswould be relatedin the sixthdegree under Roman law, and in the thirddegree under Teutonic law. In the eighthor ninthcentury the Church,which had followed the Roman method of counting,began to adopt the Germanic (pp. 168, 171). The Churchhas always forbiddenmarriage in the directline. 6 Ayrinhac,p. 174. Father Green commentsthat some scholarshave conjecturedthat the greaterstrictness exercised by the ChristianChurch was probablydue to sensitiveness about the charge of incest, which was a commonplaceof anti-Christianpropaganda, possiblyowing to garbledreports of the kiss of peace in the eucharist,and of Christians calling each otherbrother and sister. JUNE 1968 This content downloaded from 198.91.37.2 on Mon, 19 Jan 2015 13:11:15 PM All use subject to JSTOR Terms and Conditions 486 CynthiaFansler Behrman "oneflesh," a principlewhich was derivedfrom Jesus' teaching (Mark X, 8) and theOld Testament(Genesis II, 24). Thusthe blood relatives ofone's spouse were considered to be one'sown relatives and thesame impedimentstomarriage would exist as in consanguineousrelationships. These two principles-consanguinity and affinity- carried, as they were,to the seventhdegree, so limitedand complicatedthe marriage questionthat by 1215the Churchrecognized that some simplification was necessary.The FourthLatheran Council reduced the limitation to thefourth degree (that is, thirdcousins) in thecollateral line, and in the late medievalperiod both fourth and thirddegrees were widely dispensable. The Christianlaw, based on thesetwo traditions of Romanand Jewishcodes, but withconsiderable subsequent accretion, lasted until theReformation, when the Protestant churches swept away the medieval rulesand based theirrules on thoseto be foundin scripture.In the AnglicanChurch the subject of permissible marriages was a thornyone, sincefor both of HenryVIII's daughtersthe legitimacyof birthand thronedepended on interpretationofthe marriage law. Henryhad also tinkeredwith the question of affinityin trying to extricatehimself from his firstand secondalliances (Hammick, pp. 7-8).In 1563,Archbishop MatthewParker, apparently on his own authority,issued a Table of ProhibitedDegrees, a tablewhich became the official list for the Anglican Church.He also restatedthe medieval Church's principle that affinity was contractedby illegal as wellas legalcompany of a manand woman (Joyce,p. 556). This idea had been widelyaccepted since the eighth century;indeed, Henry VIII claimedthat his marriageto AnneBoleyn was void on theground that her sisterMary had previouslybeen his mistress. In 1603,the convocationfor the province of Canterburyissued severalCanons concerning the governmentof theChurch, the ninety- ninthof whichstated
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