State Library of Victoria > La Trobe Journal

No 71 Autumn 2003

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Right: Johan Friedrich Dietler (1787-1854). Sophie de Montimollin with her mother, 1834. Watercolour. Courtesy of Archives de l'Etat, Neuchâtel.
Bottom Left: Rosa La Trobe and her daughter, Margaret Rose, aged one year. Oval watercolour on paper with highlights. Courtesy La Trobe University. Donated by Mrs Audrey E. Macallister, Suffolk, United Kingdom.
Bottom Right: Charles Joseph La Trobe. ‘La Borcarderie., 1854'. Pencil on paper. National Trust of Australia (Victoria) Collection on loan to the La Trobe Picture Collection.

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Dianne Reilly
La Trobe's Marriage with His ‘Deceased Wife's Sister'

Every bill and every measure
That may gratify his pleasure,
Though your fury it arouses,
Shall be passed by both your Houses!
You shall sit, if he sees reason,
Through the grouse and salmon season:
He shall end the cherished rights
You enjoy on Friday nights:
He shall prick that annual blister
Marriage with deceased wife's sister.
Iolanthe, Act 1
The Operas of Gilbert and Sullivan allow acute observation of many contemporary issues peculiar to Victorian England. In his libretto for Iolanthe, which had its first performances on the same date in London at the Savoy Theatre and in New York at the Standard Theater on 25 November 1882, W.S. Gilbert had the Fairy Queen refer in enigmatic fashion to ‘that annual blister’, a law which had blighted the lives of countless Englishmen and women, and a topic well-known to every nineteenth-century audience.
That annual blister’ referred to the prohibition in Britain at that time on marriage with a deceased wife's sister, a problem which rose to a climax during the late nineteenth century, so much so that there were annual editorials in The Times, pointing out the illogicality of such a law, and numerous private members’ bills were introduced in Parliament to remove the impediment. However, the House of Lords (lampooned throughout) resisted any reform of the marriage laws for decades. It is a matter of some surprise that Charles Joseph La Trobe was caused considerable concern and suffering by this draconian law.
Among La Trobe's large and unanalysed archive in Switzerland,1 there is an envelope, much like many others in the file, but this one had been sealed and tied with legal tape. It is labelled in La Trobe's own hand ‘Private Papers'. The contents all relate to the question of marriage with a deceased wife's sister, such a union having been prohibited by the law of the realm since it was included in the Church of England's list of prohibited degrees of relationship in the Book of Common Prayer in 1835. The List of Prohibited Degrees was first annexed to the Book of Common Prayer in 1563.2
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La Trobe's life was turned upside down during the period in which he considered what, in the eyes of British law, was an incestuous second marriage. He had become a widower in January 1854, after more than 18 years of marriage to Sophie de Montmollin. It was her widowed sister, Rose de Meuron, whom he now wished to marry.
In 1835, following the publication in London of The Rambler in North America, La Trobe had set off for Neuchâtel with marriage in view. For two weeks his journal entries recorded the dozens of visits he made to such beautiful and historic places as Thun and Montmirail and to see former acquaintances made while he had been employed in Neuchâtel, especially the various friends and relations of the Pourtalès family. Considering how small and inter-married was the society of Neuchâtel, this welcoming circle necessarily included Sophie and her wealthy, aristocratic family. La Trobe was later to describe Neuchâtel as a place where cousins ‘swarm like herrings in every corner of the country'.3 It is probable that La Trobe had met Sophie during the period that he had tutored Albert de Pourtalès. However, nothing is known of their courtship, other than the anxious notations in La Trobe's journal. It may be the case that La Trobe had never seriously contemplated marriage before this time, or he may have felt that he would not have been considered a serious suitor for Sophie. However, on meeting her again at her aunt's home, his agitation was apparent: ‘Don't know what to think; am like a ship lying at anchor but with a spring on its cable ready to make off at a moment's notice'.4 Two weeks later, his purpose firm, he sought out M. de Montmollin, presumably to ask for his daughter's hand in marriage. By a series of almost farcical just-missed meetings, — ‘To the Borcarderie

Charles Joseph La Trobe. ‘Château Oberhofen. 1857'. Pen and wash on paper. National Trust of Australia (Victoria) Collection on loan to the La Trobe Picture Collection.

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early — too late, miss him — but find her',5 — La Trobe was in a feverish state of mind. ‘I can think of n. but S'6 — so much so that ‘my mind made up to the justice of setting S. at liberty by telling her father'.7 While awaiting a response from M. de Montmollin, he wrote: ‘If I get S. I know what I have in her, neither beauty nor wealth but -',8 and his relief was indicated in the single word ‘Approved'9 for his diary entry five days later. Although rather enigmatic in these statements, La Trobe must surely have appreciated her good qualities and disposition. The clearest insight into his feelings for Sophie was given in the letter he wrote a few weeks later to his friend John Murray, son of the publisher, that ‘In short, I am on the point of being married to one I have long loved and esteemed'.10 Given that he considered that she had ‘neither beauty nor wealth’, it is clear that his feelings for her were much deeper, and that he had a judicious appreciation of her fine character. By this alliance, La Trobe would have considered that he had made a very suitable catch. He was bringing education, a gentlemanly family, reliability and the Protestant faith to their union, while she was a member of a distinguished, well-connected, educated Protestant family which was also highly prosperous, judging by their impressive property holdings. This may have been part of her attraction for La Trobe. He needed to marry well. In an era when arranged marriages were the norm among social élites, the proper introductions would have been arranged, and the appropriate moves to steer the young people together no doubt occurred. No doubt Sophie's parents were keen to have her marry eligibly since there were a number of other unmarried daughters in the family still to be suitably settled. There was, quite probably, a dowry to accompany his bride, and this would provide the sound financial basis on which the couple would begin their life together. As it fortunately turned out, it was a very good match and a happy marriage for them both.
La Trobe married Sophie de Montmollin at the British Embassy in Berne in September 1835, and they settled in an apartment in the Montmollin family home overlooking the Lake of Neuchâtel and the Alps in the distance. Through the agency of his own family, who had strong connections with intellectuals of influence in the anti-slavery movement and in the Colonial Office as well as in the Moravian Church, La Trobe was posted in 1837 to the British West Indies to examine and report on the allocation of funds for the education of the 700,000 newly-liberated slaves. His reports were considered so highly by the Colonial Office that he was immediately offered the new position of Superintendent of the Port Phillip colony in far-off Australia.
This was what would be described today as a hardship posting, La Trobe even having to bring his own pre-fabricated cottage with him to accommodate his family in the primitive and sparsely-settled colony. He wrote to John Murray, in 1840:
You, my dear Sir, have I believe never been transported 16 000 miles from civilization, & cannot imagine what it is to be cast so far beyond the reach of the thousand daily means of improvement & enjoyment which they possess who breathe the air of Europe … I have called our present position Exile, & so it is to all intents and purposes … Society is, of course, as you may suppose, in its infancy. The arts and sciences are unborn…11
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Despite a deep appreciation of the beauty and the future possibilities of Victoria which developed over time, and a great personal commitment to the development of the colony under his charge, La Trobe continued to think of his time in Australia as exile, even at the end of his 15 years’ administration. He and his family were displaced, removed from the society of their families and friends, with no possibility of respite until La Trobe actually submitted his resignation as Lieutenant-Governor on the last day of December 1852.
It took two years for the Colonial Office to replace him with a more highly-paid and better-accommodated Governor, Sir Charles Hotham. In the meantime, La Trobe had sent his three younger children — the eldest had been sent to Switzerland eight years earlier to be educated — and his ailing wife to Switzerland in February 1853. Always constitutionally strong himself, La Trobe believed that the long sea voyage and consultation with experienced physicians at home would ensure Sophie's recovery. Despite the best medical attention, Sophie died at her mother's house in Neuchâtel on 30 January 1854, just before her 44th birthday.
La Trobe left Melbourne in May 1854, returning home via Tahiti and Panama. His primary concern was his young family, for whom he had to seek suitable accommodation, and to manage their upbringing and education. His sister-in-law, Rose de Meuron, was the person he turned to for assistance, since she had been instrumental in raising his eldest child, Agnes, from the age of seven, and had cared for all four children since the death of their mother. They wished to marry but there were obstacles in their way. His private correspondence contained numerous drafts of letters he wrote seeking legal advice which would help him overcome the dilemma in which he found himself. He could not marry Rose in Britain since the law forbade marriage with a deceased wife's sister.
This was one of the many ‘Prohibited Degrees of Marriage and Incest’ under British law which prevented marriages between those connected through affinity, that is, by marriage but not by blood, including both relations-in-law and step-relations. Prior to the Marriage Act 1949, legal precedent had established that the Table of Kindred and Affinity, dating from the Act of Uniformity 1662, based on interpretations of relationships referred to in Leviticus 18, and which formed part of the Book of Common Prayer, was the prescriptive list for illegal unions between the sexes.
Even though such a marriage was sanctioned in Switzerland and in some other countries, La Trobe was obviously in some consternation over reactions to such a marriage in the event of his return to England.
La Trobe's private dossier in the Neuchâtel archive includes the death certificate of his first wife, Sophie, and the marriage certificate of his second marriage. It indicates just how troublesome a predicament it was in which La Trobe found himself and how radically it was to influence his later life. It provides the evidence that he was in a great deal of anguish and personal torment on account of his wish to marry Rose, because of the obstacles placed in their way by British law, both State and ecclesiastical. In the file, there is correspondence from Joseph Stansbury, MA, Honorary Secretary of the Committee of the Marriage Law Reform
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Association, and this indicates some contact by La Trobe with the Association during the investigations of his options regarding the marriage. The letterhead of the Marriage Law Reform Association, which had been instituted on 15 January 1851, stated its one and only reason for existence as being ‘For the Exclusive Object of Promoting the Repeal of the Act which renders void Marriage with a Deceased Wife's Sister'.12 The letter itself seeks some ‘pecuniary contribution’ to the cause, and advises La Trobe that Sir William a ‘Beckett, first Chief Justice of Victoria while La Trobe was Lieutenant-Governor, had supported the association,13 having found himself in a similar dilemma as La Trobe. While all the discussion on the subject of such marriages was going on in public and in private, including a Royal Commission in 1848 which had reported in favour of legalising marriages with deceased wives’ sisters,14 The Times had run leading articles on the topic which brought the matter fairly and squarely to the public attention.15 As is evident in the 21 supportive letters from friends and relations in La Trobe's private file of correspondence, all had an opinion on the legal process prohibiting such a marriage in Britain.16
The file also contains numerous copies of a letter, dated 25 April 1856, to the Editor of The Times from Joseph Stansbury. This letter sought to keep the topic on the public agenda by relating the facts regarding the Deceased Wife's Sister's legislation: The opinions on the subject of 66 individuals, eminent in their various fields, on the inefficacy of the law, were given, as well as a listing of the numerous empires, Grand Duchies, American States and European republics and towns where such marriages were sanctioned. The letter concluded with the admonition that ‘Great Britain is the only country in the world in which such marriages are totally prohibited to persons of all religious denominations'.17 Such a concise counter-argument to the legal opposition La Trobe had experienced leading up to his second marriage was, no doubt, comforting to one who had acted in the face of the British establishment.
Despite having decided to go ahead with the marriage to Rose in Neuchâtel where such marriages were legal, La Trobe was besieged by a number of local obstacles which had to be overcome before the marriage vows could be exchanged. Through the intermediary of James de Meuron, Rose's brother-in-law, La Trobe who was at this stage staying with the Pourtalès family at their château at Oberhofen, sought legal opinions of Charles-Louis Lardy, the Meuron family legal advisor.18 In order to legalise the marriage of a Neuchâteloise with a foreigner, it was necessary to make a new will, as part of the contract, to safeguard the interests of the new wife. In addition, La Trobe was required to pay, as evidence of his honourable intentions, a bond of 2500 Swiss francs, into the Bank of Neuchâtel.19 Charles Joseph and Rose were married in a civil ceremony at Neuchâtel on 3 October 1855, aged 54 and 34 years of age respectively.20
Marriages contracted within the ‘Prohibited Degrees’ in countries where such marriages were considered legal were still of uncertain status in Britain in 1857, and in a benchmark case in 1861 it was ruled that ‘such marriages were void even when celebrated abroad, unless the parties were domiciled abroad'.21
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La Trobe was in a real predicament. He had decided that marriage to Rose was the sensible and, quite probably, the desirable course of action, but it would create major problems for him. He must have been aware that such a marriage would be considered incestuous in Britain and that it would make him a virtual outcast of British society. Why had he decided to marry Rose? There are likely to have been a number of reasons. Foremost on his mind would have been the need to have someone to care for his children and, to some extent, the marriage would have been one of convenience. No doubt, he himself wanted a companion to share his life, and it is quite conceivable, especially when their marriage was a happy one for nearly 20 years, that Rose was a second great love in his life. If that was the case, was his affection for her so overpowering that he forgot, misunderstood, or ignored the consequences? For one who had acted cautiously throughout 15 years service in Australia, this would seem out of character.
The consequence of their marriage was that La Trobe was never again offered a position with the Colonial Office. He had requested a change of position when he sent in his resignation in 1853. At the time, this was acknowledged in a letter from the Duke of Newcastle, Secretary of State, who recognised
fully the justice of that hope of further reemployment which your dispatch expresses, whenever it is found possible to satisfy it consistently with other engagements and claims of Her Majesty's Government.22
However, there was no way that Queen Victoria, in whose name British law was made, and who was head of the Church of England, could give her approval for La Trobe, who had defied the law, to act on her behalf anywhere in the British Empire. La Trobe must have realised the hopelessness of pursuing any such application, and no doubt resigned himself to enforced early retirement. That was all he could do. It was, therefore, all the more surprising, given the official view of his marital status, that he was awarded the Order of the Bath in 1858.
La Trobe and Rose did reside again in England and one of their two daughters, Margaret Rose, was born there. Without paid employment, Charles Joseph pursued what he considered to be his just recompense for long years in the fledgling colony of Port Phillip and was eventually, in 1865, granted a small pension of £333.6.8d per annum.
La Trobe's widowerhood and second marriage coincided with a crossroads in British legal history. Arguments against the adoption of earlier moves to permit such marriages were divided by contemporaries into two main categories: social and Biblical. The social arguments about legalising marriage with a deceased wife's sister centred on three issues: the effect on the possibility of their maternal aunt caring for a widower's children, and living in the house not being married to their father; the effect on the relations between sisters, as an ailing wife might fear her sister would alienate her husband's affection and become her prospective rival; and the effect on the relation between a man and his sister-in-law, as the taboo would not allow her to continue to live in his home after her sister's death, since they would not be married.
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The biblical argument against such marriages was based on a liberal interpretation of one example given in Leviticus of the ‘Prohibited Degrees'. Marriage with a deceased wife's sister, while not mentioned, was considered to be forbidden by implication since Leviticus 18, 16 expressly forbids a man to marry his brother's widow, which is analogous.
Meanwhile, in many other parts of the world, including parts of the British Empire, the law had moved on, and such a contentious situation as in Britain was allowed official legal sanction. In the Australian states, marriage with a deceased wife's sister was made legal gradually over a number of years: South Australia, 1870; Tasmania, 1874; New South Wales, 1876; Queensland, 1877; Western Australia, 1878; Victoria, 1893.
Due to the fact that Australian law followed English law as it stood in 1828, it thus avoided what became known as Lord Lyndhurst's Act of 1835, when prohibition of marriages within the ‘Prohibited Degrees’ was introduced, although the Australian jurisdictions did not decide to formally enact the particular legislation until much later.
Three other examples of high-profile people affected by the taboo against marriage with a deceased wife's sister are worth noting. Sir William a'Beckett, First Chief Justice of Victoria, married Matilda Hayley, the youngest sister of his deceased wife, at his Melbourne home in October 1849; their marriage would have been absolutely void if performed in England. Both of Sir William's wives were also his first cousins with the result that his aunt was also his mother-in-law!23
The Pre-Raphaelite painter William Holman Hunt was married first in 1865 to Fanny, née Waugh, who died at Florence in 1866, leaving a son Cyril Benoni. He then married in 1875, Marion Edith, the sister of his first wife, who in due course bore him a son, Hilary Lushington, and a daughter, Gladys. The interesting part is that Hunt was, and remained, a seasoned ‘outsider’, forever rejecting all the institutional connections that might have made his life as an artist easier and more comfortable, particularly associateship and, as a consequence, membership of the Royal Academy.
According to the Countess of Longford, Queen Victoria was in favour of the Deceased Wife's Sister Bill of 1883 because, she suggests, the Queen had entertained the idea of a marriage between Princess Alice's widower, Louis IV of Hesse, and her youngest daughter (Princess Alice's sister) Princess Beatrice. It was in support of the bill that the then Prince of Wales made one of his very rare speeches in the House of Lords, though it did not prevent the bill from being thrown out of the House of Lords by the bishops.
Significant changes to the law relating to affinity did not take place in Britain until the first half of the twentieth century. One of these was the Deceased Wife's Sister's Marriage Act 1907, and there were other aspects of the law as it applied to marriage, which underwent major revision both before and after this.24 The waters were muddied by such issues as the married woman's right to own property and arguments to allow marriages between other degrees of affinity, e.g. deceased husband's brother, which did not become legal until 1921.
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The Statute allowing a man to marry his deceased wife's sister, was passed only after what has been described as ‘one of the most protracted struggles in British Parliamentary history',25 involving 46 sessions of debate and 18 successful second readings, a process lasting 65 years.26

1

Fonds Petitpierre, Archives de l'Etat, Neuchâtel.

2

Halsbury's Laws of England, vol. 29, no. 3, 4th ed., London, Butterworth, 2001, p. 51, para. 53.

3

Charles Joseph La Trobe to Agnes La Trobe, 30 August 1851. Fonds Petitpierre, Archives de l'Etat, Neuchâtel.

4

Charles Joseph La Trobe, Private Memoranda, 25 June 1835.

5

Ibid, 17 July 1835.

6

Ibid.

7

Ibid, 25 July 1835.

8

Ibid, 26 July 1835.

9

Ibid, 31 July 1835.

10

Charles Joseph La Trobe to John Murray, 1 September 1835. John Murray Archives, London.

11

Ibid, 15 December 1840.

12

Letter to C.J. La Trobe from Joseph Stansbury, 18 September 1855, Fonds Petitpierre, Archives de l'Etat, Neuchâtel.

13

Ibid, passim.

14

Sybil Wolfram, In-laws and Outlaws: Kinship and Marriage in England, London, Croom Helm, c. 1987, pp. 30-31.

15

Times (London), 10 April 1855, p. 11a; 25 April 1856, p. 12c, 29 May 1856, p. 12c.

16

La Trobe ‘Private’ dossier, Fonds Petitpierre, Archives de l'Etat, Neuchâtel.

17

Times (London), 25 April 1856.

18

Fonds Petitpierre, Archives de l'Etat, Neuchâtel.

19

Jacques Petitpierre, ‘Two Neuchâteloise Marriages of the First Governor of the State of Victoria’, unpublished manuscript, translated by Anne Murch.

20

Fonds Petitpierre, Archives de l'Etat, Neuchâtel.

21

Brook vs Brook, House of Lords, 1861. Quoted Wolfram, p. 46.

22

CO449.1 Duke of Newcastle to Charles Joseph La Trobe, 6 April 1853. Public Record Office, Kew.

23

Clifford Pannam, Sir William's Muse: The Literary Works of the First Chief Justice of Victoria, Melbourne; C.J. Pannam, 1992, p. 48.

24

No Just Cause: The Law of Affinity in England and Wales: Some suggestions for change. A report by a group appointed by the Archbishop of Canterbury, chaired by Baroness Seear, London, CIO Publishing, 1984, passim.

25

Ibid.

26

Ibid.