To John Alleyne2
ALS (draft): American Philosophical Society; printed in John Alleyne, The Legal Degrees of Marriage Stated and Considered, in a Series of Letters to a Friend (2nd ed., London, 1775), appendix, pp. 1–2.3
Craven Street, 15th Oct. 1773
I have never heard upon what Principles of Policy the Law was made prohibiting the Marriage of a Man with his former Wife’s Sister, nor have I ever been able to conjecture any political Inconvenience that might have been found in such Marriages, or to conceive of any moral Turpitude in them.4 I have been personally acquainted with the Parties in two instances, both of which were happy Matches, the second Wives proving most affectionate Mothers-in-law to their Sister’s Children, which indeed is so naturally to be expected that it seems to me wherever there are Children by the preceding Match, if any Law were to be made relating to such Marriages, it should rather be to enjoin than to forbid them; the Reason being stronger than that given for the Jewish Law, which enjoined the Widow to marry the Brother of a former Husband while there were no Children, viz. that Children might be produced who should bear the Name of the deceased Brother;5 it being more apparently necessary to take Care of the Education of a Sister’s Children already existing than to procure the Existence of Children merely that they might keep up the Name of a Brother. I am Dear Sir, Your most obedient humble Servant
2. For BF’s young legal friend see above, XV, 182 and subsequent volumes.
3. The draft, dated Oct. 13, is in pencil and has numerous deletions and interlineations, and is so badly faded that the APS has assisted us in collating it with the printed text; the differences between the two are insignificant except for the date. That in the pamphlet was presumably in the letter as sent, and we have accordingly used it.
4. Canon law, incorporated into English law by several 16th-century statutes, prohibited on grounds of affinity a man’s marriage to his deceased wife’s sister. Civil process might void such a marriage when contracted, and Alleyne’s pamphlet argued that Parliament should ban this process. The first edition (London, 1774) contained passages on pp. 51 and 55 about which he must have sought BF’s advice before bringing out the second edition; this letter is the reply.
5. A reference to Levirate marriage, widespread in primitive societies and prescribed in Deut. 25: 5–10; by this custom only the first-born was the dead brother’s heir.