American Treatise Writers and the Nineteenth-Century Debate on Marriage with a Deceased Wife’s Sister in Transatlantic Context

The question whether a man could marry the sister of his deceased wife (or whether a woman could marry the brother of her deceased husband) sounds quaint to modern ears. Was this really ever thought to be incest? Yes, it was considered incest by affinity, that is, as a result of a relationship between the parties having been created by marriage, as opposed to incest by consanguinity caused by a blood relationship. Incest by affinity had been prohibited under canon law already long before the time of King Henry VIII, with whose marriages (and their annulments) it was closely associated.1 The status of affinity incest marriages created much vexation in the nineteenth-century British Empire and in America. However, whereas the issue was resolved in the United States by about 1850, in England the debate raged on for another half-century. In the English discussion, American permissiveness served as ammunition...

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