HC Deb 03 April 1889 vol 334 cc1511-32

Order for Second Reading read.

*MR. A. ELLIOT (Roxburghshire)

In moving the Second Reading of this Bill I do not pretend that those who promote this legislation are not anxious to extend the provisions of the Bill to the whole of the United Kingdom, indeed I should have been better pleased had the measure of this kind which applies to the whole Kingdom stood first on the Paper to day. But the precedence of Bills is a matter which hon. Members cannot settle for themselves, and it is by the fate of the ballot that this Bill, limited to Scotland, now comes on first for discussion. I have noticed amongst the Notices of Objection appearing on the Paper, one in the name of the hon. Member for East Donegal (Mr. A. O'Connor). I certainly should be the last to complain of any Irish or English Members taking part in such a discussion as this. We must all recognize that Acts of Parliament dealing with limited geographical limits are nevertheless of extreme importance to many persons living outside those limits. There are hundreds and thousands of the countrymen of the hon. Member living in Scotland, and therefore it is perfectly right the hon. Member should make a statement here to-day. I do not wish to look at this Bill solely in respect of its limited character, but still it is due to us in Scotland to remember that the Marriage Law has not been the same in Scotland as in England and Ireland, and it may rather startle some hon. Members to find that the Bill states in its preamble that the law in Scotland on this subject is at present doubtful. It is not clear that a marriage between a man and his deceased wife's sister is at the present moment illegal in Scotland. In England at present there is no doubt whatever as to the illegality of such marriages. Since Lord Lyndhurst's Act was passed in 1835, marriage with a deceased wife's sister is absolutely illegal, but that Act, which extends to England and Ireland, expressly does not extend to Scotland, and we must find the Scotch Law on the subject elsewhere. It will be admitted that, according to the Confession of Faith, which is the standard of the various Presbyterian Churches in Scotland, affinity is for all practical purposes equivalent to consanguinity, and that, therefore, undoubtedly such marriages would be contrary to the provisions of the Confession of Faith. But in 1567, when the Scottish Legislature determined to get rid of many of the restrictions which in Roman Catholic times had been placed upon marriages between relations, the Act provided that henceforward marriage should be perfectly free between persons who were not expressly forbidden by the Divine law from entering into marriage. When we come to ask what is the Divine Law, and to what extent for Scotch purposes it is taken as part of the Scotch Law, we are referred to the well-known 18th chapter of Leviticus; but here again we find eminent authorities declaring their opinion that there is no sort of prohibition of these marriages in the 16th, 17th, and 18th verses of that chapter. I should be bold, indeed, to argue this question without the strong support of authorities. First, I quote the opinion of the Lord Advocate Rutherford; he, in 1848, in reference to the inquiry into the working of Lord Lyndhurst's Act of 1835, said— The legality of the marriage would depend, I think, if it were tried, on the question whether the 18th chapter of Leviticus does or does not prohibit marriage of a man with the sister of his deceased wife. Generally speaking, writers and text-books consider such marriages illegal. But then he goes on— It has been the opinion of very eminent lawyers that such marriages should be held good in law, and the issue of such marriages legitimate, and though I have some doubts, out of respect for those who take the opposite view, I am myself inclined to the same opinion. A great authority on the law of husband and wife was Lord Fraser, who died only a few days ago. He tells us, that as to the Confession of Faith, which was ratified by Act of Parliament, it has not the binding effect of law, and he adopts the view of Lord Rutherford, and he was inclined to think that such a marriage would be lawful. In his opinion, if a case were to arise in Scotland at the present time (1848), the Scotch Courts would have to consider what was the meaning of the verses in the 18th chapter of Leviticus, and he declared his opinion that the 18th verse of that chapter has, in fact, nothing to do with marriage with a deceased wife's sister. Now, I think, the opinions of these authorities, Lord Rutherford and Lord Fraser at all events, sustain my position, that the law of Scotland is, at least, doubtful on this subject. And now I wish to leave the special Scotch aspect of the question and treat it a little more generally. Now, the Statute of 1835, on which the law in England and Ireland rests, in its preamble explains how the previous law stood, and it is really very important, at any rate very interesting, that Members should understand how the law stood until 1835. The law was this—a man might marry his deceased wife's sister, and men did so again and again, and the marriage was perfectly good in law for all purposes, and the children born were legitimate, unless during the lifetime of both parents a suit was instituted to void the marriage by proceedings in the Ecclesiastical Court. Such a marriage might be voided or not voided. Lord Lyndhurst's Bill was, no doubt, brought in to legitimatize a particular marriage of a particular individual who had contracted a marriage with his deceased wife's sister. The Bill was brought forward for private reasons, but, of course, it would have been a scandalous abuse of legislation to deal with one case and leave all other similar cases untouched, and, therefore, the consequence of that Bill was to legalize, as the Act did legalize, all marriages of the kind contracted before that date. All persons who, up to then, had married their deceased wife's sister, had their marriages made absolutely valid, and their children were made legitimate. This was the great object of the Bill, but when it got into the House of Lords, that House, influenced, I believe, by the Lords Spiritual, not contented with that operation of the Bill, put in an additional Clause, which made absolutely null and void for the future, marriages which, as regards the past, it was the main object of the Bill to legitimatize. In 1848, only a few years afterwards, it was considered necessary to inquire into the working of the Act of 1848, and a strong Commission was appointed for the purpose. Its members included the then Bishop of Lichfield, and the Commission was strong in point of legal ability. Having taken evidence of a comprehensive character, including Catholics and Protestants of all denominations, this Commission reported unanimously—including the Bishop—in a sense directly contrary to the satisfactory working of the Act of 1835, and their Report should be borne in mind in relation to this proposed legislation. The Commissioners reported that the Statute of 1835 had failed to attain its object, that it had not prevented marriages with a deceased wife's sister, and expressed great doubt whether a measure of this prohibitive character could be efficacious or was justified. This was the conclusion arrived at by the Commissioners—including the Bishop. I make a point of mentioning the Bishop, with special reference to the fact that the unchanged state of the law is due to the particular view of the Lords Spiritual in another place. In 1848 a Bill was introduced to legalize these marriages, and since then similar Bills have been passed by this House again and again. It has been represented again and again that the state of the law is doing gross injustice to a number of decent, respectable persons whose children are bastardized in spite of the strong evidence there is as to the desirability of making this change in the law. Well, 1848 is a long time ago, and it is worthy of consideration whether opinion has since then been growing in the direction wished for by the promoters of this Bill. I should like for a moment to glance round at opinions among persons of various ways of thinking. Roman Catholics are a large body in the country, and among them, both here and abroad, the marriages can be and are frequently contracted. The Commission went into this matter, and the effect of their Report is that the Roman Catholic Church, as a matter of discipline, forbids these marriages, not absolutely forbidding them, and holds that such are permitted by the Word of God. They are restrained by the rules of the Church; but it is possible to suspend the rule, and in certain cases they may be and are contracted by means of a Dispensation granted by the Pope, or by some other authority under him. As a matter of fact, in Roman Catholic countries such marriages do take place with the permission of the Church, and is an every-day experience in those countries. I am told, and I have no doubt it is the case, that 220 priests in the Metropolitan district have petitioned in favour of legislation of this kind. As representing an important body, it is important to know their views. In Scotland I know there used to be a very strong feeling in the Presbyterian Church against these marriages; but I maintain that opinion is giving way before further inquiry, careful examination of texts, the issue of the Revised Version of the Scriptures, and the growth of wisdom on the subject. The Established Church of Scotland used every year to pass a resolution against proposals of this kind; but they have for the last few years given up that form of opposition, and I am told that the Synod of Glasgow and Ayr is favourable to this proposal. There is not—if I may use the expression without offence—a more "straight-laced" body in Scotland than the United Presbyterian Church; but I find that a great majority of the Presbyteries of that Church are favourable to the legalization of marriage with a deceased wife's sister. I am told that the Free Church is against the proposal; but I know that Dr. Chalmers himself was strongly in favour of it. I may be told that Professor Rainy, a great leader of the Free Church, is in determined hostility to the Bill, and I know he is, but I can cite him as a witness in our favour, for he says that supporters of the proposal are on the whole increasing among Members of the Free Church, and include many for whom he has the most sincere respect. There is evidence then at all events that the state of feeling is divided on the point, and that there is a strong feeling in favour of the Bill among Roman Catholics, among members of the Established Church, among the United Presbyterians, and even Professor Rainy admits that many leading and most respected members of the Free Church are rapidly coming round in favour of the proposal I am now submitting to the House. In the Church of England the majority of the Bishops are, unfortunately, opposed to us, but I have referred to one distinguished exception, the Prelate who signed the Report to which I have referred, and I might refer to other dignitaries of the Church who have strongly advocated this proposal. The names of Dean Hook, and of the Dean of Westminster would be included in a long list of eminent men who have argued strongly in support of the legalization of such marriages. I do not wish to trouble the House with references to petitions for and against, but, considering the opposition of the hon. Member for the county of Inverness, I should like to point out that of the 2l Members of the Town Council of the Borough of Inverness 16 are in favour of this proposal. If that is the state of opinion in a district upon which most reliance is placed for opposition to the Bill, what is likely to be the division of opinion in other parts of the country? Seven times since 1848 have Bills of this kind passed all their stages in the House of Commons, and I have been informed that in more than 70 divisions the House has declared in favour of legalizing these marriages. Are we not at last to legislate in conformity with the wishes of the Representatives of the people? When is the time to come if not after 70 decisions given sometimes under a Conservative and sometimes under a Liberal Government? The House of Lords is against the proposal, but may we not hope that opinion is changing there as elsewhere? On one or two occasions, in spite of the influence of the Lords Spiritual, decisions have been given in that House in favour of the Bill, though never with such a decisive result as to carry the Bill into law. It is time now to deal with it. Decided opinions have been expressed in different places in this country, and I will only make one reference to opinion abroad, and that in the United States. In America Mr. Storey, the eminent jurist, expressed his opinion, on being asked by the Commission in 1848, whether there was any feeling among decent respectable people as to the impropriety of such marriages in America, said there was no feeling of the kind, it was rather regarded as a praise-worthy thing, and a simple and proper arrangement. Are we not, I would ask, taking too much upon ourselves when we legislate to prevent the contracting of marriages which are in consonance with the moral and religious sense of large numbers of the people, which have the support of eminent members of various churches, and to which in America and in our Colonies no sort of objection is raised? We have to look on the application of the legislation to the poor as well as to the rich, and I must say that to the poor the application of the law appears to me most harsh, unjust, and cruel when it treats as bastards the children of such marriages. An Australian may contract such a marriage, and his children, legitimate in Australia, may come here, and what will be their position? For what reason do you maintain the old state of the law here? I do not wish to trespass at any greater length on the time of the House, but I would impress upon hon. Members that this question is not to be decided by reference to any antiquated law. I do not lay great stress on the interpretation of the chapter in Leviticus, though I maintain that is in our favour; but, setting that aside, we have to consider the morality of the present day and legislate for ourselves. Is such a limitation necessary, when we see among decent, respectable people of all denominations no objection whatever to such marriages, either on religious or social grounds? I think I have shown strong ground to induce the House to change the law and bring it into conformity with what is becoming the general opinion among decent people. There are some arguments I have not gone into, but I think the main arguments against my position are what is called the Divine Law, and what is called interference with domestic comfort and social relations. But I have never been able any more than were the Commissioners in 1848 to see the strength of this argument for rich or poor. The words of the Report of the Commissioners should be borne in mind by every Member who proposes to vote on this question. The Commissioners dealt with the subject as it affected the poorer classes; they pointed out— How when a poor man had the misfortune to lose his wife some assistance for the management and care of his children becomes indispensable, and if he cannot afford to pay for such assistance, which must he rendered immediately, all circumstances point to the sister of the deceased wife as the natural assistant, and cohabitation becomes almost inevitable, with or without the form of marriage. Do you not then undertake a very great responsibility when you prevent by law marriage contracts under such circumstances? Are you content with a state of the law that renders such a marriage illegal? If you render it illegal you place the parties in a very doubtful position, and it is a point to consider whether we have a right to force such a position. It is a subject to be considered in a wise and liberal spirit, and in that spirit I commend this Bill to the House. Similar proposals have received the support of majorities, Liberal and Conservative. If it is once more to be rejected, let it be known that the rejection is not by the will of the Representatives of the people, not because the proposal is not deemed right and just by the country, but solely because of a special view taken for some year past, and which, I am afraid, is still taken by a section of Members, forming one Estate of the Realm, in another place.

Motion made, and Question proposed, "That the Bill be now read a second time."

MR. C. FRASER-MACKINTOSH (Inverness-shire)

My hon. Friend has made a long statement, but said very little in support of the Bill now before the House. The whole of his speech, in fact, would have been more appro priate to a Bill dealing with the United Kingdom, and not to Scotland only. I would have been content to give a silent vote, were it not that for the first time a Bill has been brought in on this subject applicable to Scotland alone, and as my hon. Friend has thrown down the gauntlet, I feel bound to take it up. He has said very little on the immediate subject; but when he wishes to make a change in the Marriage Laws, which have existed in Scotland for 300 years, he is bound to show there is a strong feeling in favour of the alteration. He has shown the existence of no such feeling, by petition or otherwise. I believe if it were known generally throughout Scotland that a Bill of this character had the least likelihood of passing, petitions against it would pour in from all parts of Scotland. In making this reference to petitions, let me add that any one who knows Scotland must be quite aware that the voice of the Free Church is entitled to the highest consideration in a question like the present, and its Committee has petitioned against the Bill. Nay, more, a petition I had the honour of presenting to-day is of a most representative character, and if I read the names of the 70 gentlemen who signed it, I am sure anyone who knows Scotland would acknowledge it was as fair a representation of the best feeling of Scotland as you could find. Seven Bishops of the Episcopal Church, many members of the Established Church, many members of the Free Church, and of the United Presbyterians, have signed this important petition. I will not go into the large question as to whether the prohibition is wise or not, I leave that to those who follow me. I will deal only with the Bill before us. The preamble states that there is serious doubt as to the law of Scotland; but I maintain there is no doubt at all. If there were any doubt there would be no reason for this Bill. The laws of Scotland in regard to marriage are quite different to those in England. In Roman Catholic times, as every student of Scottish history knows, the restrictions imposed by the Church in Scotland were so severe that parties removed even beyond four degrees of consanguinity were not allowed to marry without a dispensation from the head of the Roman Church, and in consequence of the little connection with England and the isolation of districts, it has been stated by well-known historians, that at the time of the Reformation, according to the restrictions of the Roman Church, half the population of Scotland were illegitimate, because their parents were not rich enough to get a dispensation from Rome. After the Reformation the law as to marriage proceeded in an opposite direction, allowing much freedom and liberty. The Act of 1567 being based almost entirely on the Scriptural view of the subject, it does not lay down who are to marry and who are not, but it gives permission, according to the law of Scripture, and this has been the state of the law for three centuries. The Confession of Faith embodied into the Law of Scotland definitely prohibited these marriages, and notwithstanding what was said by the hon. Member for Roxburgh, there is no doubt whatever that almost all theologians who have written on the subject support the view there plainly stated, that marriage with a deceased wife's sister is illegal. And now let me examine further this Bill which the hon. Member is so anxious to get passed. The Bill declares all marriages with a deceased wife's sister valid, any law, or custom, or canonical law, or objection, or impediment to the contrary notwithstanding. Now this is a very wide phrase—any law or impediment to the contrary notwithstanding—and I would put this question to the framers of the Bill. Suppose a man, after the death of his first wife, has married another lady, whom I may call an outsider, yet wishes to marry his first wife's sister, then there is nothing to prevent him putting aside his second wife and carrying out his wish under this clause—any law or impediment notwithstanding. More than this, supposing that after the death of his first wife he wishes to marry her sister, who happens to be married to another man, I am not sure whether, under this clause, he would not still be enabled to accomplish his wish. Those who have looked into the state of the existing law are perfectly satisfied that the Bill would be quite unworkable. Many difficulties would arise under it and many complications would result. Suppose father and son married two sisters, and suppose the father died and the son's wife died, would the son be entitled to marry his mother-in-law? Or, on the other hand, could the father, on the death of his wife and his son, marry his daughter-in-law. Further it would be quite possible for a man to marry his own niece. It is because of these inconsistencies, and because there is no favourable expression of opinion, that the Bill is required in Scotland, that I move the Bill be read a Second Time this day six months.

Motion made, and Amendment proposed, to leave out "now" and insert at end of Question "this day six months."

MR. M. J. STEWART (Kirkcudbright)

In seconding the Amendment I will say but a few words on this measure. I am quite satisfied that its effect would be to sap the foundations of the happiness of pure and happy peaceful homes. It would be disastrous to the social well-being of the country, and this is the great objection many of us take to this Bill. From time immemorial, I might say for many hundreds of years, the present laws of affinity have been recognized, and upon these conditions marriages have been contracted, and the intervention of such an Act would have a disastrous social effect. This is not merely a rich man's question. I am well aware that in certain places there are people most anxious to have this Bill passed into law, for the reason that in the past they have chosen to break the law, and now wish to get rid of the consequences by another Act of Parliament. But we have to consider not the effect upon a few individuals, whether they be rich or poor, but the effect upon the nation, and I repeat, any infringement of the present law of marriage will work most disastrously to the State. That the sister is the proper guardian of her deceased sister's children I agree; but pass this Bill and her position in the husband's house becomes an invidious one, and a husband must hesitate before he allows her to enter his house and undertake those natural duties of guardian to his children. Such a very serious change in the Marriage law cannot be considered in a short afternoon's discussion. The example of America has been cited; but I think anybody who has travelled in the United States, must have noticed that the status of marriage is more lightly treated there than among ourselves. If we judge by the transactions in the American Law Courts we find that in one State the proportions of divorces and marriages is 11 and 12 per cent, in another 12 and 14 per cent, and in another 8 per cent, and a change in the law as now proposed will lead to this further imitation of the American precedent, and the proceedings in the Divorce Court will come to be regarded in a very different light to that they are now. I am not here to argue in favour of the 18th Chapter of Leviticus, but there are two opinions in regard to it; but this I will say, that throughout the length and breadth of the Scriptures you find this principle laid down and recognized, that man and wife are one flesh, and it follows that the ties of kinship must be recognized. Once break through this principle, and you injure the sanctity of the marriage laws in the sight of the large majority of the people of this country. I do not find there is any anxiety among the people to have this alteration made. I know more about the feeling in the country than in the towns; and certainly, in the agricultural districts, I have never heard any wish expressed for the change, and no feeling expressed but that of scorn, or perhaps pity, for those who have broken this law. It cannot, I believe, be shown that there is any real desire for this Bill in Scotland. The hon. Member for Roxburgh points to opinions held by certain members of the Free Church; and I daresay many of them may be found desirous of the change, if for nothing else, because they think this is one of the many ways in which the influence of the Established Church may be undermined. I know it to be the fact that many gentlemen holding views inimical to the Established Church are very anxious that this Bill should pass into law; but this cannot be advanced to show that there is any general feeling among the community. As Lord Cairns once said, this restriction comes down to us from the earliest date, and, if you extend or abolish it, you lead us into difficulties and perplexities of which it is impossible to see the end. The hon. Member for Inverness has pointed out the absurdity of the position under which a man might marry his step-mother, and it is not so uncommon a thing for a father and son to marry sisters. I do not think that it is wise to alter the law to allow of such a position. That the marriage laws of Scotland require reform I allow, but not such a reform as this. It is said this is a working man's question; but I deny that there is any feeling among that class in favour of this Bill. The help for his children a widower of the working class receives now from his sister-in-law would be less freely given under this Bill, and he will hesitate to avail himself of her help in his household. The example of Canada and other Colonies is cited, but I do not accept the doctrine that because those Colonies do what we consider wrong, that, therefore, we should do wrong with them. The people of Scotland have always been opposed to this proposal, and I believe that feeling continues as strong as ever. The General Assembly of the Church of Scotland must carry great weight, for it is a body whereon every parish in Scotland is represented; and more or less it must embody the opinion of every parish, and the General Assembly is strongly opposed to this change. The Bishops and Clergy of the Episcopal Church have repeatedly passed resolutions condemning the proposal. If we go to legal opinion, I ask hon. Gentlemen to note the opinions of Lord Chancellors, who may be taken as the brightest luminaries of English law on the subject. Take the speeches of Lord Hatherley, Lord St. Leonards, Lord Cairns, Lord Selborne, and I believe I can include the present Lord Chancellor, and you will find they express opinions distinctly opposed to this Bill. I know that one Lord Chancellor, Lord Westbury, was of a contrary opinion; but, with all respect, I do not think he was a great Ecclesiastical lawyer, and I know Lord Bramwell supports the principle of this Bill. But the strength of legal opinion is in favour of keeping the law as it is. Certainly no strong reasons have to-day been urged in favour of an alteration. Until such reasons are laid down forcibly and clearly with the concurrence of Scottish opinion, I shall oppose this Bill. The movement in favour of the Bill, such as it is, emanates from paid officials in the office for the promotion of this measure; it is not an agitation arising spontaneously in the country. These gentlemen take upon themselves to instruct and mislead Members of Parliament, who in turn endeavour to mislead the country; but the consensus of public opinion is utterly opposed to the proposal.

MR. S. WILLIAMSON (Kilmarnock)

I hope the House will permit the Second Reading of this Bill. The hon. Member who has just sat down has urged objections which will not, I think, carry much weight. He says the movement in favour of the Bill arises very much out of feelings of opposition to the Established Church, but I have only to point to the paper which has been circulated among hon. Members to-day, and the signatures to the petitions presented, to indicate that the Bill has the support of members of the Established Church alike with those of of the Free and the United Presbyterian Churches. The Established Church has no place at all in this controversy, and I am extremely sorry the hon. Member introduced the allusion. The hon. Member for Kirkcudbright says the effect of the Bill will be to prevent the deceased wife's sister from undertaking the duties of guardian of her sister's children, for which she is specially fitted. We may put aside the question as regards persons among the wealthier classes and the social arrangements there, but consider the position of a poor man, left without a wife, and with three or four or more young children. He may live in one or two rooms, and the result of the sister coming to live with him has been touched upon by my hon. Friend the Member for Roxburgh in his references to the Report of the Commission of 1848. The inevitable result under the present system is to increase illegitimacy. We would do away with this scandal. Marriage with a deceased wife's sister, we are told, is opposed to the teaching of Scripture. For myself, I believe in the teaching of Scripture, and have tried to inform my- self on this point, but I can find no teaching in Scripture opposed to the principle of this Bill. That man and wife are one flesh is quite true in a certain figurative sense, but man and wife can only be one flesh so long as they are alive together on earth. Scripture raises no obstacle and sets up no hindrance when the wife has left this world; man and wife are then no longer one flesh. But this is so well understood, I think, that it would be wasting time to detain the House any longer. With reference to the illustration brought forward by the hon. Member for Inverness, it should be remembered that, whatever there is offensive in the idea is permitted at the present time when father and son can marry sisters. In the interests of sanctity, I support the Second Reading of the Bill.


To the principle upon which the Bill is founded I must offer every possible opposition. I am sorry the hon. Member who has just sat down missed altogether the point of the remarks of the hon. Member for Inverness, for although I do not think this is a subject for joking, the hon. Member did succeed in reducing the principle of the Bill to something like an absurdity. The words of the Bill which led to the remarks of the hon. Member are "any law, custom, canonical, or other obstacle or impediment to the contrary notwithstanding," so that it would seem the promoters of the Bill would annul a marriage of the deceased wife's sister with another man should her brother-in-law desire the union. It strikes me as especially offensive that this Bill should be applied to Scotland only. My hon. and learned Friend the Member for Roxburghshire says it is the fortune of the ballot that brought his Bill to the top, but there is another Bill lower down on the orders of the day applicable to the United Kingdom; and I assume the Bills are alike in their object. I cannot but surmise the object is to pass this Bill for Scotland in order that the fact may supply an argument in favour of the second Bill. The hon. Member told us of the great interest this Bill excites in Scotland, but I could not but think that the statement was somewhat qualified by the fact that while he was speaking there were only nine Scotch representatives behind him, and generally when a Scotch question is under discussion, Scotch Members are not remiss in their attendance. The hon. Member alluded to the growth of public opinion in favour of the principle of the Bill. I am not sure that I agree with him in regard to the opinion among religious denominations, but I noticed that he passed very lightly over the opinion of the United Presbyterian and Free Churches. The hon. Gentleman who just sat down derided the signatures attached to the paper which I hold in my hand.


I did not deride the signatures.


Amongst the signatories a notable number belong to the Free Church, and men having very great weight amongst Free Churchmen are represented in the list. And then, if we go into the question of denominations, we find that all the Bishops belonging to the Episcopal Church of Scotland have signed it. The hon. and learned Gentleman referred to the Roman Catholics, and no doubt they are a very important body, but it is to be remembered that in that Church a Papal dispensation has to be obtained, and such dispensations are sometimes given in rather-curious cases, as, for instance, in the recent disgusting marriage of the Duke of Aosta with his niece. The hon. Member for Roxburghshire said that on 70 different occasions there have been majorities in favour of this Bill, but surely he is under a misapprehension—surely he means not that there have been majorities on 70 occasions, but that there have been 70 divisions on this Bill. The cases of those who have broken the law are brought up, and it is sought to give them relief by this measure, but I do not sympathize with the endeavour, holding that those who have broken the law must take the consequences of their act. And then, as to the poor man argument, it must be remembered that it cuts two ways. It is said that a poor man whose wife has died will be glad to marry his sister-in-law to take care of his children; but suppose he does not want to marry his sister-in-law? If she is a possible wife, it will be improper, according to the ordinary rules of morality and custom for her to remain resident in his house. The sister-in-law no doubt is a natural guardian of a deceased sister's children, but if this Bill passed she could not be that unless there was a marriage, for if she were a marriageable woman and went to live in her brother-in-law's house without marriage the state of things would be highly improper. But as a matter of fact there is nothing new to be said on this subject, on which I have never spoken before. But as I am a Scotchman, and was formerly a Scotch Member for 17 years, I could not remain silent on this occasion.

*DR. CAMERON (Glasgow College)

The hon. Member for Inverness-shire found some fault with the drafting of the Bill. Well, I am willing to concede that my hon. and learned Friend would have succeeded better if he had brought forward a simple measure repealing the 18th chapter of Leviticus and inserting whatever re-enactments were to be hereafter enforced. But that would have been even less agreeable to the opponents of this Bill. The hon. Member for Inverness drew for us a picture of absurdities. The case he gave of a father and son marrying sisters, and one spouse in each case dying, is not applicable because such a marriage would be between uncle and niece, or nephew and aunt by marriage, which is forbidden. The fact is there is not a single argument to be brought against marriage with a deceased wife's sister from a social point of view which is not equally valid against any second marriage whatever. The hon. Baronet opposite talked about the position in which a deceased wife's sister would be placed if she came into a brother-in-law's house and took charge of his children; but did the hon. Gentleman never hear of a gentleman being obliged to introduce a housekeeper into his house to look after his children, or a governess to educate them; and I trust the world is not yet so calumnious and censorious that it will refuse to respect the position of a marriageable woman who undertakes the care of children under such circumstances. The hon. Member for Kirkcudbright drew a terrible picture of what might occur if men were to be allowed to marry their deceased wife's sister. He said that divorces would become more frequent; and if that is the sort of argument which is brought against the Bill I would ask the House to consider to what desperate straits its opponents must be reduced. We are asked "Who seeks this Bill; who demands it?" My reply is, "My constituents have demanded it—a poor working class constituency. When a wife dies in one of their households amongst working men, the widower is compelled to choose from three or four people who is to take charge of his children. He would either choose his mother, his deceased wife's mother, his sister, or his sister-in-law, being unable to obtain a housekeeper from outside the family circle. Very often it is the deceased wife's sister he chooses it results that it would have been much better if a marriage had been allowed between them. It is greatly to the credit of human nature that, under present circumstances, many good sisters-in-law do come into the houses of their deceased sister's husband to look after his children. The fact that they are not eligible for marriage does not, in many cases, protect them against calumny, but they are willing to allow sneers to be levelled at them, and if they are able to resist sneers now they would be able to resist them if this Bill became law. One point which has not yet been referred to is the bearing of this subject upon Scottish Criminal Law. The last exposition we had on this point occurred in the year 1705. In that year a marriage of this kind was contracted in Scotland, and the parties were prosecuted for incest. The woman, unfortunately, pleaded guilty and was hanged. The man pleaded not guilty, and, as the jury refused to convict, he was simply expelled 'furth' the country. That was hardly a satisfactory solution of the law, and I can quite understand that men who happen to have married their deceased wife's sister forbear giving to the Court of Session to test the matter by way of an action of Declarator lest being made of one flesh by the Court of Session they should find themselves divorced by the noose of the hangman. I do not know what the law as to capital punishment for this offence now is, but I presume it remains at all events in an obsolete form, as it was in 1705. I advocate this Bill, not from a theoretical point of view, but because I consider it a reform urgently demanded by a large number of working-men in the constituency I have the honour to represent in the city of Glasgow—in which city there are 60,000 constituents, a large proportion of them being working-men. I pronounced emphatically for this proposal when I entered Parliament 15 years ago, and never on one occasion have my constituents found fault with me for the position I have assumed. But as time is short I will not go further into the matter, and will merely express a hope that speeches will not be made by English Members opposite merely for the sake of talking the Bill out.

SIR G. CAMPBELL (Kirkcaldy)

I see no reason why only one kind of affinity as a bar to marriage should be chosen for attack and other kinds not interfered with. I cannot understand why affinity should be altogether disregarded. If a man may marry his sister-in-law, why should not a woman marry her deceased husband's brother? I am familiar with a country in which a woman is not only allowed but compelled to marry her deceased husband's brother. That is the law both of the Aryan and the Semitic races. I am in favour of the principle underlying this measure, but I view the Bill with no favour, for I regard it as the result of a mere agitation got up by a certain society. As the Bill does not deal with the whole question, I would rather walk out of the House than record my vote one way or the other.


I have constantly opposed all Bills of this kind, and I always shall. I rise to speak on this measure, though its scope is confined to Scotland, because I believe that this Scotch Bill is a mere stalking-horse for the more general Bill which stands a little lower down on the Order Paper. The argument used by almost everyone who has hitherto spoken in favour of the Bill is that public opinion is in favour of it, and that public opinion is growing in favour of it. Well, I am not at all sure that the time will not come when there may be a majority of people in favour of it; but that time has not yet come. If it be a question so very near the hearts of the constituencies in general, why is it not made a test question at an election? Has any Government even taken the question up, or even given facilities for pushing it forward? If the question were one in which any great part of the people felt an earnest interest, no Government would be able to resist the pressure, but would have to take the matter up and legislate on it. But even if the time comes when there is a majority in favour of this change in the law, I contend that, if anything is done at all, the whole question of the Marriage Laws ought to be dealt with generally. It might be desirable to allow such marriages to be entered into civilly; but I object to any interference with the attitude adopted with regard to them by religious bodies. To legalize such interference would offend the religious feelings of a large number of the people of this country. No doubt it would be desirable to simplify, as far as possible, the Marriage Law, especially in Scotland, where it is in the greatest muddle; but I contend that this measure would not simplify the matter, but would only render it more complicated. It would introduce absurdities even greater than those which now exist. Besides, it contains the old vice which has characterized every Bill of this kind—the vice of being retrospective—[Cries of "Divide!"]—those who have taken the law into their own hands are to be whitewashed, and their illegality is to be rendered legal by means of this Bill. Of course, in the matter of religious legality the Bill could not operate, as it would not alter the view of anyone, and I am sure that to deal with the subject in this piece meal fashion, offending the vast majority of the religious people of this country, would be a fatal mistake. [cries of "Divide!"] I can quite understand the impatience of hon. Gentlemen opposite, but I can assure them it is not my intention to endeavour to talk the Bill out. I have always felt very strangly on the matter, and have often raised my voice against the object of the Bill, and whenever a measure of this kind is under discussion I shall feel bound in my conscience to offer every possible resistance to it. I hope the Bill will not be read a second time.


I rise in response to the challenge of the hon. and learned Member for Roxburghshire to say a few words as to the present state of the Scotch law as to these marriages. The hon. and learned Member said the object of the Bill is to harmonize the Statute Law with what is already the Common Law of Scotland, and the Preamble of the Bill asserts that the law of Scotland is in serious doubt on this point. But who has any doubt? Will any Scotch lawyer get up and assert that the law of Scotland is not perfectly clear and distinctly opposed to these marriages? The hon. and learned Member has relied on some fugitive opinion of Lord Fraser, but in a treatise published by that learned Judge within the last few years such marriages are distinctly stated to be contrary to the Scotch Law. It is not true that the Scotch Law is based on a chapter in Leviticus. By two Statutes of the Scottish Parliament passed, one before and another at the time of the Revolution Settlement, the Confession of Faith was made part of the Statute Law of Scotland, the Confession of Faith contains as one of its Articles that "A man shall not marry any of his wife's kindred nearer than any of his own," and that Article is in accordance with the conscience and practice of the Scotch people for generations.


rose in his place, and claimed to move, "That the Question be now put."

Question put, "That the Question be now put."

The House divided:—Ayes 203; Noes 131.—(Div. List, No. 61.)

Question put accordingly, "That the word 'now' stand part of the Question."

The House divided:—Ayes 184; Noes 131.—(Div. List, No. 62.)

Main Question put, and agreed to.

Bill read a second time, and committed for Wednesday, 26th June.