§ Order of the Day for the second reading read.
§ THE EARL OF ST. GERMANS
My Lords, I rise to move that the Bill, which 1476 I have laid on the table for the amendment of the marriage law of this country, be read a second time. In 1851 this House refused to affirm the principles of a Bill similar to, though not the same, as this; but five years have since elapsed, and I may now fairly ask your Lordships to reconsider this question. In 1842 the other House of Parliament would not allow a noble Friend of mine (then Lord Francis Egerton) to bring in a Bill to legalise marriage with a deceased wife's sister. In 1849 it sent that Bill up to this House, and had since repeatedly affirmed the principle of the measure. This House is, I know, more averse than the House of Commons to anything which wears the semblance of innovation, but it is not immovable. It is open to conviction, and, when convinced, is not afraid to act on its conviction, even when that conviction is at variance with a former decision. I venture, then, to ask your Lordships to reconsider this question. I need not ask you to listen patiently to one who believes that, in urging you to sanction the measure which he proposes, he has truth and justice on his side, and who knows that he is pleading the cause of a large number of his fellow-countrymen. It has been said, and said truly, by the Archbishop of Dublin, that every restriction is in itself an evil, and that the burthen of proving that a particular restriction is just or necessary lies on those who seek to impose or to continue it. Subscribing as I do to that doctrine, I think that I should be justified in calling on the opponents of this Bill to show that the Legislature has a moral right to prohibit marriage with the sister of a deceased wife, or that the legalisation of that marriage would be inconsistent with the well-being of the country. But, my Lords, this question has been so fully discussed by the most learned jurists and divines, that I am persuaded that nothing new can be said on the subject, and that, by repeating some of the arguments with which their writings have furnished me, I shall answer, as it were, by anticipation, the objections of the opponents of this measure. Many learned and pious men hold that the Mosaic law of marriage is not binding on Christians. Bishop Taylor has recorded his opinion on this point in these words—For though Christendom was then—at the time of the divorce of Queen Catherine by Henry VIII.—much divided, yet before there was almost a general consent upon this proposition 1477 that the Levitical degrees do not, by any law of God, bind Christians to their observation. I know of but one schoolman (Paludanus) who dissents.By all which it appears what was the state of these marriages under the law of Moses; and yet all the scruple at which weak persons start or stumble, is derived from that sanction in Leviticus, which, in despite of all reason, and all precedents, and all observations whatsoever, they will needs suppose to be a natural and moral law, so making eleven Commandments, for certain it is that the Ten Commandments were to the Jews the sum of their moral law, in which, since some things that were ceremonial were inserted, it is not likely that anything that was moral should be omitted. In the ten words of Moses there was nothing less than their whole moral law, though something more there was.Chief Justice Vaughan concurs in this opinion. He says, in giving judgment in the case of Harrison v. Burwell—The Levitical prohibitions are no general law, but particular to the Israelites. As they were delivered to the Jews only by Moses, they bind other nations no more than other laws of the Jews do, as the laws of succession, and inheriting land or goods. They then must be made obligative, if at all, to the generality of Christians, by the New Testament; but by what medium can that be proved? Were it not for the statutes it would be hard to make out by persons of what learning so ever that we are obliged by the Levitical degrees, for we are not bound by the Judaical law, and how comes this part to be distinguished from the rest? I mean those of the Levitical degrees which are of the Judaical positive law only.The most rev. Prelate to whom I have before referred (the Archbishop of Dublin), in his Remains of Bishop Copleston, says—I am certain that he (Bishop Copleston), in common with the very persons who have appealed to what they call 'the divine law' in this matter, never considered the ceremonial or the civil regulations of the Levitical code as binding on us. No one considers himself bound by that to abstain from the forbidden meats, or from selling land in perpetuity, or to require any one to many his brother's widow. Nay, even what are called moral duties, no Christian Legislature has felt bound, in all cases, to enforce by its own laws. Disobedience to parents, for instance, and gluttony, and drunkenness, no one would deny to be moral offences, and yet no Legislature denounces against them the penalty of death. The whole, therefore, of the appeal to the Mosaic law is manifestly irrelevant, even on the showing of the very persons who have got up this topic of declamation for the purpose, apparently, of diverting attention from the real points at issue. The civil and the ceremonial ordinances of that law can thus far, and only thus far, be taken as a guide—namely, that any thing which is not merely permitted, but distinctly enjoined in the law, cannot be at variance with the immutable principles of morality. If, for instance, the marriage of a brother and sister in law had been in 1478 itself an incestuous union, it would never have been, as it is, enjoined in a certain case by the inspired lawgiver.I shall not quote, as I might, passages from the writings of other eminent men who take the same view of this question. Sir William Jones, Mr. Fry, and other Hebrew scholars, have maintained that the chapter in Leviticus, which is usually looked on as relating to marriage, did, in fact, relate only to criminal intercourse. They affirm that the expression "uncovering the nakedness," is applied, in Scripture, solely to fornication or adultery, and not to lawful intercourse. But, my Lords, I shall not seek to maintain either of those positions. The Legislature of this country has forbidden marriage with a deceased wife's sister, on the assumption that it is within the Levitical prohibitions. I will, therefore, content myself with showing, or, at least, endeavouring to show, that marriage with the sister of a deceased wife is not within the Levitical prohibitions. Let any unprejudiced man, who had never heard of the controversy on this subject, refer to his Bible and say what he finds there on this subject. Will he not tell you that the only passage bearing directly on it, is that which forbids a man to take a wife to her sister to vex her in her lifetime? And, is it not upon the fidelity of this authorised translation that the faith and hope of millions rest? But the most rev. Prelate who led the opposition to the Bill of 1851—a Prelate for whom I entertain great respect, as well on account of his character as of his high position—told us that this passage was of disputed and uncertain signification, and that the words "a wife to her sister" might be rendered "one wife to another," according to the marginal annotation. My Lords, the meaning of other passages has been disputed—passages of vital importance—those on which rest the foundations of our faith—those in which the divinity of our Lord is declared; but we do not say of them that they are passages of disputed and uncertain signification. We believe that the translation of them in our authorised version is correct, and that we are, therefore, bound to hold the doctrine that those passages, so translated, inculcate. But, my Lords, I assert, on the authority of the most learned biblical scholars, that the 18th verse of the 18th chapter of Leviticus is correctly translated in the authorised version, and that the Vulgate, the Septuagint, the Syriac, the Chaldee, 1479 the Samaritan—in a word all the most ancient and approved versions—give the same interpretation of it. Moreover, the passage, if altered by the substitution of the words in the margin, would amount to a prohibition of polygamy, which was practised by the most favoured servants of God under the Old Testament dispensation. In what difficulties, then, would this alteration involve us!
Assuming, therefore, as I have a right to do, that the passage in question prohibits marriage with the wife's sister only during the lifetime of the wife, I affirm that it was permitted after her death. In negative precepts that which is not forbidden is permitted. Here there is more than the absence of prohibition. Does any man think that because he is directed by a law, be it human or be it divine, to abstain from doing a certain act at a particular time or in a particular place, he is therefore bound to abstain from doing it at all times and in all places? Surely not. There is a particular restriction. The necessary inference is, that it is not general. But we are told that in the 16th verse of the same chapter a man is forbidden to marry his brother's widow, and that by analogy and parity of reasoning a man is forbidden in it to marry the sister of his deceased wife. It would not, I think, be allowable to reason thus even if marriage with a deceased wife's sister were permitted less distinctly than it is by the 18th verse. Many of the ordinances of the Jewish law apply to men and not to women. For instance, men were allowed to divorce their wives, women were not allowed to divorce their husbands; men were allowed to have more than one wife, women were not allowed to have more than one husband. A man who committed adultery with another man's wife was punished with death. A woman who committed adultery with another woman's husband was not so punished. It is, therefore, impossible to argue that marriage with a deceased wife's sister was unlawful merely because marriage with a brother's widow was prohibited. Again, marriage with a brother's widow, when he died without issue, was not only not prohibited, but was actually enjoined. Now, it is easy to conceive that a particular marriage may have been, under some circumstances, inexpedient, and therefore forbidden; and under other circumstances, expedient, and therefore enjoined; but it is not possible to conceive that God com- 1480 manded that to be done under any circumstances which was in itself criminal or immoral. We therefore conclude that marriage with a brother's widow cannot be criminal or immoral, and, consequently, cannot form the basis of an argument from analogy against the lawfulness of marriage with a deceased wife's sister. But, as I have said, the meaning of the 18th verse is clear and distinct, so that we need not look elsewhere for an elucidation of it. And it is to be remarked that the implied permission of marriage with a deceased wife's sister which it contains, receives a strong confirmation from the command to marry a brother's widow, in Deuteronomy xxv. There is, I know, some irregularity in adverting to a speech made in this House in a former debate; but when that speech is published in the form of a pamphlet, it may, I think, be referred to without any irregularity. In adverting then to the argument which I am about to notice, I will refer to a pamphlet which bears the name of Henry Lord Bishop of Exeter. But before I proceed to examine this argument, let me observe that the right rev. Prelate has—I am sure unintentionally—interpolated words in a quotation from Bishop Taylor which alters that author's meaning. The passage quoted by the right rev. Prelate is this—"What better determination can we have of those indefinite words, 'near of kin' or 'the nearness of my flesh,' than the express particulars made by God himself in that very place (Lev. xviii.)?" "These, my Lords," adds the right rev. Prelate, "are the words of Bishop Taylor." Now, these are not the words of Bishop Taylor. Bishop Taylor, speaking of the term "near of kin," says—Our English is not sufficiently expressive of the full sense of it. The Latin is somewhat nearer to the Hebrew, 'Vir non accedet ad propinquitatem carnis suœ.' God never forbade to marry our kindred, but he forbade to marry the nearness of our flesh. Hemingius gives a rule for this as near as can be drawn from the words and the thing, 'Propinquitas carnis,' saith he, 'quœ me sine intervallo attingit,' that is, 'she that is next to me, none intervening between the stock and me;' that is, the propinquity or nearness of my flesh: above me is my mother; below me is my daughter; on the side is my sister; that is all,He adds—Unless God had intended these to be a perfect enumeration of all the persons forbidden to contract marriage mutually, it cannot be imagined why He should be pleased to repeat some degrees twice which are equally forbidden in the several instances; for if the parity of cognation were to 1481 be the measure, then those degrees which are twice repeated might, without such repetition, have been better reduced to the rule under which they were sufficiently prohibited. The same degree does not always admit the same prohibition: to marry my father's sister was forbidden, but it was not forbidden to marry my brother's daughter.In a passage almost immediately preceding that quoted by the right rev. Prelate, Bishop Taylor refers to the 21st chapter of Leviticus, in which nearness of kin is defined: he does not subsequently refer to the 18th chapter, which contains no such definition, nor does he subjoin the words "Leviticus xviii." to the passage in question, as the right rev. Prelate erroneously supposes that he does. I should have called your Lordships' attention to an earlier passage, in which Bishop Taylor says—It is at this day a great question among all men, whether brothers' and sisters' children, or cousins-german, may lawfully marry: which question supposes not only that the Levitical degrees are still thought obligatory, but even all those other degrees which by a parity of reason can be reduced to those measures.Hence it appears that, in the opinion of Bishop Taylor, the arguments employed against the lawfulness of marriage with a deceased wife's sister, tell as strongly against the lawfulness of the marriage of cousins-german. On this subject there is another passage in Bishop Taylor which I will venture to read—But if any scrupulous person shall inquire further, and suspect that some degrees or persons are forbidden to marry that are not here expressed, but included by a parity of reason, as it happens in another instance, for it is not forbidden to marry our mother's brother's wife; but, because; here it is made unlawful to marry father's brother's wife, it is to be concluded, also, for the other, there being the same degree and the same reason. I answer to this by parts:—1. It is very likely that it is so intended that in equal cases there is an equal prohibition, but it cannot certainly be concluded and relied upon that it is so. 1. Because upon this account cases of fear and scruple might very much be multiplied to no purpose. For I remember that Fagius reckons out of the Books of the Rabbins twenty persons forbidden to marry, which yet are not reckoned in Leviticus. 2. Because of the rule of the law—L. Mutus 43, D. de procur., Quod lege prohibitoria non vetitum cst permissum intelligitur: in negative precepts that which is not forbidden is presumed to be allowed. And to add more out of fear is either to be wiser than the law-giver, or to suspect him to be apt to quarrel by unknown measures and secret rules of interpretation. 3. Because I find that amongst wise nations the same degree does not always admit the same prohibition.It is said that a man contracts by marrying a sort of oneness with his wife, by means of 1482 which all her relations become his relations also. No doubt, my Lords, a man by marrying does contract a sort of oneness with his wife; but it is a mystical unity. No one understands literally the words "they shall be one flesh." Every one is sensible that there is a wide difference between consanguinity and affinity—between a man's sister and the sister of his wife. Was not the difference recognised by Parliament in 1835? Lord Lyndhurst's Act legalised retrospectively all prohibited marriages of affinity, but did not legalise any within the prohibitions of consanguinity. What would have been said if it had been proposed to extend the operation of that Act to a marriage between a father and a daughter, or between a brother and a sister? I will not stop to answer the question. This reminds me that it has been urged as a reason for admitting the analogical argument that if it be not admitted the marriage of a father and daughter cannot be shown to be unlawful, inasmuch as it is not expressly prohibited. Is it not expressly prohibited? Is not a man forbidden to marry his near of kin, his "blood relations," as the Germans render the Hebrew words, or the "nearness of his flesh," according to Bishop Taylor, or "flesh of his flesh," according to Dr. Pusey? Again, is it not said, that a man shall not marry a woman and her daughter? Surely, these are prohibitions of the marriage of a father and daughter, not to speak of the natural law implanted by God in the heart of man which forbids such a union. If your Lordships required further proof that marriage with the sister of a deceased wife is not forbidden by the Mosaic law, consider what the Jews say on the subject: the Jews, to whom this law was given, and who are still guided and governed by it. The Jews tells you that—It is not only not considered as prohibited, but it is distinctly understood to be permitted; and on this point neither the Divine Law, nor the Rabbis, nor historical Judaism leaves room for the least doubt.Those are the words of Dr. Adler, the Chief Rabbi of the Jews, in the British dominions. God has said, "Ye shall not add to the word which I command you;" and yet it is contended that a prohibition to take a wife to her sister in her lifetime, is to be taken as a prohibition to marry the sister after the wife's death. Surely this is adding to that word. To add, out of fear, says Bishop Taylor, is to be wiser than the lawgiver. It appears then to me 1483 to be clear beyond the possibility of a doubt, that the Mosaic law did not forbid the marriages which this Bill would legalise. That our Lord or the Apostles condemned them has not, I believe, been asserted; and yet, questions touching marriage were put to our Lord, one especially—I mean that which relates to the marriage of a woman with seven brothers in succession—which must have called forth his reprobation of such a marriage, if it were unlawful in the sight of God. St. Paul, too, is silent on this point, though he gives many precepts with respect to marriage. It is true that the right rev. Prelate, to whose pamphlet I have referred, cites the case of Herod and Herodias, as one in which disapprobation is expressed in the New Testament of the marriage of a man with his brother's widow. Let us examine this case. The right rev. Prelate says, on the authority of Josephus, that the husband of Herodias was dead when Herod took her to wife. I have much respect for the learning of the right rev. Prelate, as well as for his eloquence and talents; but I think that Whiston's translation of Josephus is to be preferred to his. Now I find that the passage in Josephus, cited by the right rev. Prelate, is thus translated by the learned Whiston—After whose birth (that of Salome) Herodias took upon her to confound the laws of our country, and divorced herself from her husband while he was alive, and was married to Herod (Antipas) her husband's brother by the father's side. He was tetrarch of Galilee.To this passage the translator appends the note which I am about to read.Nor was it, as I agree with Grotius and others, of the learned Herod the Tetrarch, but this Herod-Philip, whose wife Herod the Tetrarch had married, and that in her husband's lifetime, and when her first husband had issue by her, for which adulterous and incestuous marriage John the Baptist justly reproved Herod the Tetrarch.As this is a case on which much stress was laid by the right rev. Prelate, and is the only one on which he relied, I must ask your Lordships' permission to support the authority of Whiston by that of a number of the Fathers and other commentators on the Scriptures—Philip was, indeed, the tetrarch of Ituræa and of the region of Trachonitis. Some think, therefore, that, after Philip had died and had left a daughter, Herod married Herodias the wife of his brother, his law permitting marriage when children did not survive. Since, however it is not by any means clear to us that Philip had died, we think that Herod's transgression of the 1484 law was yet greater, that he seduced the wife of his brother while living."—Origen's Commentary on St. Matthew, xiv. 4.He was first a burglar in his brother's bed, that, from the pit of adultery he might strip himself for the murder of the Baptist. He appropriates to himself the wife of his living brother, using the kingly power in aid of his profligacy.Indeed it did not shame him to pollute his fraternal couch. She, acting madly against her husband, turned to an adulterous bed, and, leaping from her lawful couch, embraced a detestable bed ."—Basil of Seleucia, Homily xviii., on Herodias.Ancient history relates that Philip, the son of Herod the Greater (under whom our Lord fled into Egypt), the brother of that Herod under whom Christ suffered, married Herodias the daughter of King Aretas; that afterwards, indeed, his father-in-law, some quarrels having arisen against his son-in-law, took away his daughter, and, to the grief of her former husband, united her in marriage with his enemy Herod. But who that Philip was the Evangelist Luke teaches more fully. 'In the fifteenth year of Tiberius Cæsar, Pontius Pilate being procurator of Judæa, Herod, tetrarch of Galilee, and Philip his brother, tetrarch of Ituræa and the region of Trachonitis.' Therefore, John the Baptist, who came in the spirit and virtue of Elias, with the same authority with which he reproached Ahab and Jezebel, rebuked Herod and Herodias, because they had made an unlawful marriage, and it was not lawful, the brother living, for the brother to marry his wife (et non liceat, fratre vivente, germano uxorem illius ducere): preferring to incur danger at the hands of the King, rather than for the sake of adulation to be unmindful of the precepts of God,"—St. Jerome's Commentary on St. Matthew, xiv. 3 and 4.Let us consider, therefore, how the wicked seek their iniquity and hatred. Herodias, abounding in the wealth of Royal power, was united in lawful marriage to Philip the tetrarch. She entertained Herod on his going to Rome as the brother of her husband, by the right of hospitality and affinity; with whom having made an agreement for her union, not long afterwards she left her husband, and exchanged the rights of her alliance. Did she not seek iniquity and hatred, who deserted marriage and found adultery? And because the holy Baptist boldly censured the unlawful nuptials, saying to Herod: It is not lawful for thee to have that woman who has left her husband contrary to the law and has married the brother of her husband as if according to the law; the adultress is roused to anger, so that she wished to kill him."—St. Ambrose's Commentary on the 35th Psalm.He bound him and put him in prison. Herod do you commit adultery, and is John hurried to prison?"—St. Peter Chrysologus, Sermon 127.For John said to Herod: It is not lawful for thee to have thy brother's wife. Herodias, who, in the love of wickedness, desired to be the wife of two brothers, that, by her [criminal] affection, she might violate his [natural] love, and be united to Herod, lest they should be dissimilar in name, who were alike in wickedness, manners, and life, and that they might be joined in name, whom 1485 the turpitude of their crimes had joined. This Herodias therefore lay in wait for John. Herod did not overcome the desire of the adulteress; the crime, however, of the adulteress he deferred."—Ibid. Sermon 173.And Josephus relates that it was on account of Herodias, the wife of Philip, Herod's brother, that Saint John was beheaded. For Herod had put away his yet surviving wife, to whom he had been lawfully married, she being the daughter of Aretas, King of the Arabians, and had, moreover, separated Herodias from her husband while he was yet living, having also on her account put John to death."—Chronicon Paschale, Bonn. Ed. vol. i. p. 408, Corpus Scriptorum Hist. Byz.Herod feared John the Baptist, whom all men regarded as a prophet, and put him out of the way because, as Josephus says, and as the holy Evangelist says more accurately, he reproved him for committing adultery with Herodias, his brother Philip's wife."—Georgius Syncellus, Bonn. Ed. vol. i. p. 606, Corpus Script. Hist. Byz.For he [Herod] married her [Herodias] although she was the wife of his brother Philip (the law not permitting it, for she had had issue by her brother), and this while his brother was yet alive, as appears from Josephus."—Nicephorus Callisti, book i. c. 19.
|"This woman, Herodias, (the daughter, not of Aretas King of the Arabians, as Jerome pretends, in Matt. xiv., but of Aristobulus) Herod the tetrarch having seen at the house of his brother Herod, when he turned aside to visit him on his way to Rome, made his wife, contrary to the laws, having taken her away from her lawful husband who was yet alive, (though Augustine in vain denies this)."||64. Herodias. "Hanc (filiam non Aretæ regis Arabum, ut fabulatur Hieronymus, in Matt. 14, sed Aristobuli) Herodes tetrarcha, visam apud fratrem Herodem, cum ad eum in itinere versus Romam divertisset, contra leges thoro junxit, marito legitimo adhuc vivo, (frustra negante Augustino,) raptam."|
Herod the tetrarch having turned aside to visit his brother Herod, as he was journeying toward Rome, saw Herodias there, and, contrary to the laws of the country, took her away from her lawful husband, who was yet alive, and made her his wife."—Christ. Noldius on Herod and Herodias.
|"That the marriage of Herodias and Herod was unlawful we cannot doubt, because that eminently holy man John the Baptist had so pronounced it, but for what reason it was unlawful authors are not agreed. There are some among the most ancient of the fathers of the Christian Church who would argue that the case comes under the sacred law requiring the husband's brother to marry his widow, but only when||"Illicitum fuisse Herodiadis et Herodis conjugium dubitare non debemus, ideo quod sic Joannes Baptista, vir sanctissimus pronunciaverat, sed de ratione qua illicitum non consentiunt scriptores. Sunt quidem inter vetustissimos' Christianismi patres qui ad legem sacram de fratria ducendo leviro, sed tantum ubi frater sincliberis mortuus esset rem velint attinuisse. Sed quidem aut Philippum mortuum tum|
|he had died without issue. But even if this were so, it is by no means clear, either that Philip was then dead, or that he had any issue, whether the damsel that danced or another."||fuisse, aut prolem ei saltatricem illam aliamve, fuisse, non ita, satis liquet."|
—Selden, De Jure Naturali, &c., lib. v. c. 21.
Selden then goes on to argue that if we understand Josephus aright, we shall find the case does not come under Leviticus xviii. 16, but was simply a case of adultery:
|"And so the case cannot have anything to do with the law respecting marrying a brother's widow, but with that law which forbids one man to have another man's wife."||"Atqui ita sane ad legem illam de fratria leviro ducenda res attinere nequibat, sed ad illam qua aliena uxor euique interdicitur."|
John the Baptist did not put an end to the law, but Christ, if the change and abrogation of the law is in question. John, however, also put an end to the law, because he himself was the last prophet of the Old Testament, according to the Gospel of St. Luke, xvi. 'The law and the prophets were until John.' Wherefore, during the whole of John's time the law of Moses was in force, and Herod, who professed that law, was bound to observe it. But it was not lawful for him, according to the law, to have the wife of his brother, whether he were living or whether he were dead, because issue were already born of that marriage, namely, that daughter of Herodias, who, by the art of dancing, so pleased the king that she demanded from him the head of the holy John. Also that she was the daughter of Herodias, by her former husband, Chrysostom teaches (Hom. 49 on Matthew), and it is sufficiently clear from this that the death of John happened at the very beginning of Herod's conjugal union with Herodias, as is evident from Josephus, c. 18, Antiq. c. 10. If, therefore, at that time the girl already knew how to dance, she must have been born many years before; nor is it probable that John would have waited so many years before he rebuked Herod for his public crime.
Secondly, it may be replied that the crime of Herod was not incest only, but also adultery; if, as St. Hieronymus relates from ancient histories, in his Commentary on c. xiv. of St. Matthew, Herod took the wife of his brother who was living, which Josephus also writes c. 18, Antiq. c. 9, although there is a disagreement in the name. For Josephus says that that Herod married Herodias the wife of another Herod, his brother, while living. But Hieronymus calls the brother of Herod, Philip, whose Wife Herodias was before. And what is much more, Mark, c. vi. calls him plainly Philip. Wherefore it must be either that Josephus was mistaken, or that the man was called by both names. It, however, makes our case, that all agree that Herod had the wife of his living brother."—Bellarmine, De Matr. Sac. lib. 1, c. xxvii.
What Josephus invents concerning Herodias, Herod, and Philip, requires considerable notice. For while reviewing the pedigree of Herod, he says that Herodias the daughter of Aristobulus, the son of Herod the Great, married Herod, the son of the said Herod the Great by Mariamne the daughter of Simon the High Priest, by whom she 1487 had issue Salome, who was first married to Philip the tetrarch, and secondly, after his death to Herod, the son of Aristobulus, the son of Herod the Great, by whom she had three children, Herod, Agrippa, and Aristobulus. That this same Herodias, her first husband being contemned by her, namely, Herod, the son of Herod the Great by Mariamne, by whom she had issue Salome, married Herod Antipas, Tetrarch of Galilæa. You may see the man after his usual manner (as elsewhere we have often seen and said) speaking under some hallucination, and by no means consistently with himself; for, with regard to Herodias, he says she was married, not to Philip the tetrarch (as the Evangelist has it) but to Herod, the son of Herod the Great, by another Mariamne, daughter of Simon the High Priest. Wonderful indeed it seems whence that new Herod sprang; for, when the same Josephus treats of the will of Herod twice made, and adds remarks concerning the kingdom of Herod the Great divided among his sons by a decree of the senate from Augustus, no mention of this Herod is ever made by him, nor is any account given concerning him. Again, when he says that the daughter of Herodias, begotten by this unknown Herod, was given in marriage to Philip the tetrarch, he is signally mistaken. No other daughter of Herodias is read of except the dancing girl.
Indeed all other historians contradict Josephus; but first, he is accused of a manifest error by the testimony of the three Evangelists who were writing concerning the affairs of their own times.
That writer also appears to err who assorts that the said Herodias was the daughter of Aretas, King of Arabia Petræa, not the Evangelists only (and) Josephus contradicting it, but others also are opposed, and assert that she (as we have said) was the daughter of Aristobulus, son of Herod the Great.
What truly pertains to Philip, the husband of Herodias, and which the Evangelists have mentioned is this; he is praised in the highest manner by Josephus in these words:—'A man,' he says, 'who showed a moderate and peaceable disposition to those over whom he ruled; he resided constantly in the country subject to him. His progresses were made with a few chosen friends, and his throne on which he sat to judge followed him on the road, and whenever any one met him who wanted his assistance, he made no delay, but had his throne set down wherever he might happen to be, and sitting upon it heard the complaint, and pronounced sentences of punishment on the guilty and absolved those who had been accused unjustly.' These words wrote Josephus, who also asserts that the same man departed this life without children in the 20th year of the Emperor Tiberius. We must not omit to say that that passage of the Evangelists concerning Herod, that he married his brother's wife was perverted by the Montanists; who in order to found the heresy concerning monogamy, that it was not lawful for a widow to marry again, and that they might be able to prove this from the Gospel, added, as they incorrectly read, that Herod married the wife of his deceased brother, as Tertullian (ad Marc. 1. 4, c. 34), who held the same opinion with them, read. But he wrote these things when he was writing against Marcion who treated the Gospel with contempt; when, 1488 however, he wrote against the Catholics, whom he calls Psychichi in his book De Monogamiâ, he abstains from any false citation of that kind.—The Annals of Baronius, vol. i. p. 80.
|"The crime of Herod here was twofold. For to take away from a living husband the wife whom he had not divorced, was rape and adultery, and more flagrantly wrong, because it was committed against a brother."—Poole's Synopsis.||"Duplex hic fuit Herodis transgressio. Nam viventi marito uxorem non ab ipso dimissam abducere, raptus atque adulterium est, hoe insigniore injuria quod in fratre committebatur."|
Herod Antipas had been married a considerable time to the daughter of Aretas, King of Arabia Petræa, but conceiving a violent passion for his brother Philip's wife, Herodias, he first seduced her affections from her husband, then dismissed his own wife, and married Herodias, during the lifetime of his brother Philip."—Bishop porteus on Herod and Herodias.
What John said to him was, 'It is not lawful for thee to have her, being forbidden by Levit. xviii. 16; for, though by another law it was right, to marry a brother's wife after his decease, when he left no issue, yet this was not the case here; Philip was now living, and, had he been dead, such a marriage would have been unlawful because there was issue. She had a daughter, who afterwards is said to dance before Herod; and besides, he himself had another wife whom he put away: so that his sin was a very aggravated and complicated one."—Dr. Gill on Herod and Herodias.
I hope what is already said may be sufficient to convince all reasonable men there is no just ground to suspect the Evangelists of any mistake in the name of Herodias' first husband. However, there is something further to be offered. There are other writings extant in which he is called Philip. I shall transcribe here the account of it in Dr. Whitby's words. Gorionides saith, 'Herodias was first married to Philip, and then taken away from him by Herod Antipas.' The old Hebrew Chronicle saith, 'Uxorem fratris sui Philippi, ipso viventi, junxit sibi matrimonio, quæ liberos ex fratre ejus susceperat, et tamen is eam duxit uxorem' (c. 36). And an old Chronicle of the second temple saith, 'Antipas Philippi fratris sui uxorem accepit, ex qua ille liberos ante genuerat' (F. 54, c. 4); that is, Antipas married the wife of his brother Philip, he being yet living, and having had children by her."—Lardner's Credibility of the Gospels, vol. i. p. 525.Opposed to all these names stands only that of Tertullian. He alone represents Josephus as having said that Philip was dead when Herod married Herodias; and that he was sometimes intentionally inaccurate is affirmed by Baronius. I have now, I think, shown that the single case brought forward to prove that marriage with a deceased wife's sister is by analogy unlawful, is not a case in point. If, then, such a marriage was not forbidden by the Mosaic law nor by the Christian dispensation, by what is it forbidden? Some will reply, by the law of the Church. 1489 The Church, they will say, has for 1,500 years prohibited these marriages. My Lords, there is no evidence whatever to show that the Church during the first three centuries did prohibit these marriages. The earliest collection of ecclesiastical laws now extant in which mention is made of these marriages, is that known by the name of the Apostolical Canons. The general opinion of learned men is that these canons were framed after A. D. 325, in which year the first Nicene Council was held. That they were the work of the Apostles, or even of any disciples of the Apostles, is believed by none. Ayliffe says—
In the canon law they are reckoned as apocryphal books, which surely they had never been if the Church had received them by public authority in the early ages of the Church.Only fifty of these canons were received at all by the Western Church, and even those fifty were held by the Roman divines rather as records of ancient usage than as rules to guide the Roman Church. The congregation of Protestant divines, assembled at Magdeburg in the early days of the Reformation, declared these canons spurious. Admitting, however, that they are genuine and of high antiquity, that is to say of the fourth century, I will ask you to consider whether they do condemn these marriages as being unlawful. The 19th Canon certainly says that a man who has married two sisters may not become a clergyman, but it is equally certain that the same disability is extended by the 17th and18th to those who have been married twice, or to one who has married a widow, or a servant-maid, or an actress, none of whom may become a bishop, a presbyter, or a deacon. A body of canons is like an Act of Parliament, which has a number of clauses. One is as binding as another. All are valid or none. From the Apostolical canons let us proceed to those of the Councils held at Iliberis and at Neo-Cesaræa early in the fourth century. Both were provincial Councils; and here let me remark that these marriages have been condemned by no general Council. When these Councils were held, a notion had become prevalent that the state of celibacy was holier and purer than that of marriage, and accordingly impediments were thrown by the Church in the way of marriage, especially in the way of the marriage of the clergy. These impediments were gradually multiplied, till at length the laity were for- 1490 bidden to contract marriage within seven degrees, and the clergy to marry at all. Marriage between persons who had contracted spiritual affinity, that is, who had been sponsors to the same child, was also prohibited. Marriage within seven degrees is still forbidden by the Greek Church. The Church of Rome now permits marriage beyond the fourth degree, and never refuses to grant a dispensation to enable a man to marry the sister or the niece of his deceased wife; and here let me observe that the Church of Rome has never claimed for itself or for its head a power to dispense with the laws of God, and that it is only with those of the Church that the Pope has ever claimed the right to dispense. The Council of Iliberis discountenanced marriage with a deceased wife's sister, and that of Neo-Cesarea with a brother's widow; but they also discountenanced second marriages, marriage with a widow, and many other things which our Church deems perfectly lawful. All, then, that the canons of these Councils can be considered as proving is, that the Church in the fourth century imposed a great number of restrictions, of which most are obsolete. I may add that even these canons do not prohibit marriage with a deceased wife's sister, nor annul it when contracted. They only inflict a penance on the parties who have contracted it. I will not refer particularly to the canons of other provincial Councils. It is sufficient to say that there are many which restrict still further the liberty to marry, especially that of the clergy. I will proceed to consider the state of the law in this country respecting marriage with a wife's sister. Till the Reformation, persons desirous of contracting such a marriage had no difficulty in obtaining a dispensation which enabled them to do so. Soon after the Reformation, Archbishop Parker framed and published a table of forbidden degrees, which included that of a wife's sister. In 1603, a convocation of the Bishops and clergy of the province of Canterbury adopted this table and incorporated it in their canons. These canons were confirmed by the King, but were not sanctioned by Parliament, and are therefore not binding on the laity. How far they are binding on the clergy I am not sufficiently conversant with ecclesiastical law to say. The clergy do not subscribe these canons, nor promise to obey them. Indeed it is notorious that many of them are impracticable, and 1491 that many are disregarded. The Bishop of St. Asaph has so described them in his History of the Church of England, and he has expressed a wish that the whole code should be remodelled, and sanctioned by a legal enactment. Let me here remind your Lordships, that by the canon law a divorce à vinculo can be granted only for a cause existing before the marriage, and which renders it void ab initio; so that every Divorce Bill which passes through Parliament is an infraction of this canon law; and yet I never heard that any right rev. Prelate had protested on that ground against the passing of a Divorce Bill. The Church, it is said, has authority in matters of faith. She has: but are the Church and a convocation of the clergy synonymous words? Is not the Church a congregation of faithful men, lay as well as clerical? Is not the lay element essential to the constitution of the Church? Whether a clergyman is liable to any, and if to any, to what, punishment for celebrating such a marriage as this Bill would legalise, I am unable to say. No clergyman has ever, I believe, been proceeded against for so doing. But I can say that the present Bill does not alter his position in this respect. It does not authorise him to celebrate any marriage which he may not celebrate now. Of the statute law I will say but little. The 32 Henry VIII. c. 38, declares that every marriage contracted between lawful persons shall be taken to be a good, lawful, and indissoluble marriage; and it declares all persons to be lawful "that be not prohibited by God's law to marry." The 1 Mary, Sess. 2, c. 1, declares the marriage of King Henry VIII. and Queen Katherine to be a most just and lawful matrimony, Queen Katherine being, when she married Henry VIII., the widow of his brother. These two statutes have never been repealed. It has, however, been decided, in spite of their existence, that marriage with a wife's sister is not a valid marriage. Your Lordships will, however, bear in mind that, till the passing of the Act commonly called Lord Lyndhurst's Act, marriages of this description could be set aside only in the lifetime of both parties. They were voidable, not void, and were seldom set aside; never, indeed, pro salute animarum, which is the reason assigned by the ecclesiastical law for separating the parties. Unless there was some person who had an interest in annulling the marriage, to insti 1492 -tute the necessary proceedings, the necessary proceedings were not instituted at all. They were, therefore, virtually permitted; at least they were tolerated. Would the marriage of a father and daughter, or of a brother and sister, have been so tolerated? Assuredly not. Public indignation would have been aroused, the marriage would have been instantly annulled, and the parties would have been punished. The Act of 1835 made a great change in the law. When brought in as a Bill by the noble and learned Lord whose name it bears, it did not provide that all future marriages within the prohibited degrees should be null and void: on the contrary, it provided, that unless a suit for annulling the marriages were instituted within a certain limited period after its celebration, the children should be legitimate. The noble and learned Lord subsequently altered his Bill, in order, I presume, to ensure its passing, and thus to validate certain marriages which had previously taken place; so that when it became an Act, it legalised all past marriages within the forbidden degrees of affinity, and rendered absolutely null and void all future marriages within the forbidden degrees, whether of affinity or of consanguinity. It has always appeared to me, that those who supported that Bill, and oppose this, are in this dilemma—these marriages are either incestuous or they are not; if they are incestuous, they ought not to have been retrospectively legalised; if they were not incestuous, they ought not to have been rendered prospectively null and void. Out of this dilemma there is no escape. A right rev. Prelate (the Bishop of Exeter) has, indeed, said, that after the passing of Lord Lydhurst's Act, it was still open to the proper, that is, I presume, the Ecclesiastical Court, to proceed against the parties to such a marriage, to sentence them to live apart, and if they persisted in their sinful intercourse, to punish them even with excommunication. Will the noble and learned Lord the Chief Justice of England confirm that assertion, and say that an Ecclesiastical Court has power to punish persons for continuing in a marriage which Parliament has declared shall not be annulled? Will he tell the House that the Superior Courts would not grant a prohibition staying such a proceeding? I have the authority of Sir William Follett for asserting that they would. The right rev. Prelate himself cannot point to a single case in which punishment has been inflict 1493 -ed, or in which the separation of the parties has been enforced, by the Ecclesiastical Courts. I venture, then, to affirm, that the marriages which the right rev. Prelate calls incestuous, and which Parliament declared in 1835 that the Ecclesiastical Courts should not annul, are in all respects good and valid marriages in the eye of the law. I have already adverted to the difference made in this Act between marriages of consanguinity and marriages of affinity. The latter were legalised, the former were not. Why this difference? It will not be said that the children are more innocent in one case than in the other. Was it not that Parliament felt and acknowledged that consanguinity and affinity are not the same thing, and that the wife's relations are not "near of kin" to the husband? Will any man say that he would as willingly marry his own sister, as the sister of his wife? Let us now look to the law and the practice of other countries. There is, I believe, no State in Europe, except England and Russia, in which these marriages are prohibited, and in Russia persons not belonging to the Greek Church are allowed to contract them. In Roman Catholic countries, the necessary dispensation is never refused, except when criminal intercourse has previously taken place between the parties, and in the Protestant States the requisite permission is granted by the proper authority. In France, which is a Roman Catholic country, not recognising, however, the ecclesiastical regulations of the Council of Trent, and where marriage is a civil contract, permission to celebrate them is granted, as a matter of course, by the Minister of Justice, without reference to any ecclesiastical authority. It has been asked whether it is desirable to assimilate the marriage law of this country to that of countries in which divorce is easy and frequent. We do not propose to render divorce more easy, but to permit persons to contract a marriage in this country which the experience of other countries shows is less frequently dissolved than any other. It is to be remembered, when we speak of the frequency of divorce in Prussia and other German States, that there is not in them, as there is practically in this country, one law for the rich and another for the poor. Divorces would be much more numerous here than they are if Divorce Bills were less expensive. But if the example of Europe is insufficient to convince your Lordships 1494 of the expediency of legalising these marriages, I will bring that of America to support it. Are the Americans an irreligious or an immoral people? It will, I am sure, be admitted by all that they are an eminently moral, and an eminently religious people. And yet we find that these marriages are permitted throughout the length and breadth of the land, in every State of the Union. A few years ago they were still prohibited in Virginia: they are prohibited no longer in that State. And what do the heads of the Church, the Episcopal Church, and of the law in America, tell us? Why, that not only has no disadvantage, social or domestic, resulted from these marriages, but that they are deemed in America the best sort of marriage. Surely, my Lords, this is strong testimony and deserving of serious consideration. And now, my Lords, as to the law of Scotland, of which so much has been said. First, however, let me observe, that this Bill does not extend to Scotland, any more than does the Act of 1835, or that of 1753, or any other English Act relating to marriage. In a judgment recently pronounced by Lord Ardmillan in the Court of Session, of Scotland the law is thus laid down:—
'Marriage,' says St. Paul, 'is honourable in all,' and against every restriction by mere human authority on the liberty of marriage, the Protestant testimony stands recorded. Accordingly the Scottish law of restraint on marriage is avowedly founded on the Divine prohibitions.
The doctrine of the Reformed Churches is that marriage shall be as free as the law of God has left it; and the divine law, as contained in the 18th chap of Leviticus, is imported into the Scottish Statute of 1567, chap. 14, and is referred to in the next Statute of 1567, chap. 15. All connections expressly prohibited by the divine law in this 18th chap. of Leviticus, are declared by the statute law of Scotland (1567, chap. 14) to be incestuous and punishable with death. To find the express prohibition against marriage with the sister of a deceased wife, it is necessary not only to examine the Scriptures, but more particularly to construe the 18th chap. of Leviticus; and if there is no express prohibition there, the connection is not incestuous.
There has been no such series of decisions, no such solemn deliverance, and no such settled judicial practice as to amount to an authoritative construction of the statute, and relieve the Court from the necessity of construing it by the canon of the 18th chap. of Leviticus. Then, the declaration in the Confession of Faith, and the Parliamentary ratification of that confession, though binding on the Presbyterian Church, and though, perhaps, binding on the State of a Presbyterian country to civil effects, is not binding as a Legislative construction of the prohibition of the divine law to the effect of creating a capital crime.
The question, 'What says the statute?' 1495 throws us back on the other question, what is 'expressly prohibited in the 18th chapter of Leviticus?' Nothing less than an express prohibition can be sufficient. Such a marriage may not be expedient; nor is a marriage expedient where there is great disparity of age, extreme penury, or taint of hereditary disease. It may not be consistent with a sound religious profession; nor is a marriage with an infidel, or a person of bad character. But if there is no express prohibition, it is not within the statute. On this point the Lord Ordinary would willingly defer to the authority of the Confession of Faith; but in this Protestant country, which refuses to ecclesiastical authority the right to create or declare a crime, it is impossible to escape from the responsibility of forming an independent opinion. With great diffidence, therefore, and with unfeigned respect for the many learned and excellent persons who have arrived at an opposite conclusion, the Lord Ordinary ventures to express his opinion, that there is in the divine law, and more especially in the 18th chapter of Leviticus, no such 'express prohibition' of this marriage as to make it incestuous under the statute.
It is not necessary, and not appropriate, to enter here into any explanation of the reasons which have led him to form this opinion. He has reached it, against first impressions and after anxious and deliberate consideration.
But if it be not an incestuous connection in Scotland, then there is no ground for refusing to recognise here the legitimacy which the law of England has conferred on the defender. Story, concurring with all the leading authorities on international law, after stating that 'No Christian country can recognise incestuous marriages,' proceeds to say, 'But when we speak of incestuous marriages, care must be taken to confine the doctrine to such cases as by the general consent of Christendom are deemed incestuous.'"—(Story, sect. 114, 115.)
And the marriage with the sister of a deceased wife is referred to, as an illustration of a connection not incestuous by such general consent."—(Sect. 116.)
'In the diversity of religious opinions in Christian countries,' he adds, 'A large space must be allowed for interpretations as to religious duties, rights and solemnities.'"—(See also Kent, p. 85; Grotius, b. ii., cap. 5, sect. 12, 13, 14.)
And when one considers the long continued dispute on the subject, and the distinguished names arrayed on both sides of the controversy, it does seem difficult to conclude that such a marriage is deemed incestuous 'by the general consent of Christendom.'Lord Ardmillan's decision has, it is true, been appealed against, but his opinion, which coincides with that of Lord Rutherford and other eminent Scottish lawyers, must be taken to be good until the Court of Appeal has ruled that it is not. That most of the Scottish clergy believe these marriages to be forbidden by the law of God I do not doubt, but I know that several learned divines of the Church of Scotland, among whom are Dr. Chalmers and Dr. Eadie, have denied that the law of 1496 God prohibits them, either directly or by implication. To proceed: I had intended to read to your Lordships extracts from the writings of Luther, of Milton, of Montesquieu, and of Southey, in some of which the expediency, and in all of which the lawfulness, of marriage with the sister of a deceased wife is maintained. I had also intended to read an extract from a pamphlet of the late Lord Denman's; but I will content myself with referring to their recorded opinions. That the existing law is ineffectual for its purpose I have the authority of the Commissioners who were appointed by the Crown in 1847 to inquire into its operation, for asserting. That it produces much unhappiness and much immorality is attested by 400 of the parochial clergy, whose petition in favour of this Bill has been presented this evening by my noble Friend near me (Lord Overstone). These men, ministering as they do, in large and populous parishes, see what the effects of the existing law really are. But it is said that all men are bound to obey the law, and that those who suffer for disobeying it suffer justly. Let me refer to what Blackstone says on this point—
It is held, it is true, and very justly, by the principal of our ethical writers, that human laws are binding on men's consciences. But if that were the only, or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, I apprehend, as to rights: and that, when the law has determined the field to belong to Tertius, it is matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offences as are mala in se: here we are bound in conscience, because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoin only positive duties and forbid only such things as are not mala in se but mala prohibita, merely, annexing a penalty to non-compliance, here, I apprehend, conscience is no further concerned, than by directing a submission to the penalty, in case of our breach of those laws; for otherwise the multitude of penal laws in a State, would not only be looked on as unimpolitic, but would also be a very wicked thing, if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man: 'either abstain from this, or submit to such a penalty,' and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. Thus by the statutes for preserving game, a penalty is denounced against every unqualified person that kills a hare. Now, this prohibitory law does not make the transgression a moral offence: the only obligation in conscience is to submit to the penalty if levied.1497 And what is the penalty in this case? The bastardising of the children and the degradation of the wife to the state of a concubine. Surely, my Lords, the Legislature has no right to inflict such a penalty unless it can be shown that the Act to which it is annexed is contrary to the law of God, or productive of great social evil. That marriage with a deceased wife's sister is not contrary to the law of God, several right rev. Prelates, one of whom (the Bishop of St. David's) is now present, have, while refusing on other grounds to permit it, frankly admitted. That it is not productive of any social evil the expeperience of other countries conclusively demonstrates. When it is found that a large number of moral and religious persons disregard a particular law, it may fairly be inferred that that law is a bad one. A few years ago the sale of game was illegal, and yet no one scrupled to buy game. The chief magistrate of this metropolis himself did not hesitate to set before the Bishops and Judges and Ministers of the Crown who were his guests, hares and partridges which had been procured in spite of the law. What did Parliament do? It legalised the sale of game. So with respect to the qualification to kill game. Not long ago no man had a right to kill game unless he possessed landed property of a certain value. Did this enactment restrain a single unqualified man from shooting? Not one. What was the consequence? That the law was altered, and that a "qualification" is no longer required as a condition of the right to kill game. In this age and country it is impossible long to maintain a penal law which is either unjust or unnecessary. I now come to an argument which is much relied on by the opponents of this measure. They contend that its effect would be to place the wife's sister in a different relation to the husband from that in which she now stands. Knowing that he might one day marry her, she could not during the wife's life treat him as a brother, nor reside in his house after the wife's death. To suppose that any woman would, during her sister's life, contemplate the possibility of marrying that sister's husband, is to suppose what is impossible. Women are incapable of conduct so heartless. They who entertain this apprehension must object to the admission into the intimate society of a married couple of a cousin, or a female friend, or, indeed, of any woman whom the husband might marry after his 1498 wife's death. No, my Lords, this Bill will not alter the position in which the sister now stands with relation to the husband during the life of the wife. The second objection stated in this argument is based on the assumption that a young unmarried woman would now be warranted by public opinion in residing in the house of her deceased sister's husband. I believe that few men would like to place a daughter or a sister in that position, however certain they might feel of its freedom from any real danger. If, after the passing of this Bill, a widower and his late wife's sister were to live in the same house and not to marry, there would be a strong presumption that they entertained for each other no feeling save that of friendship. My Lords, I am told that the women of England are opposed to this measure. I think it possible that a majority of them are so, though I know that among the 700,000 signatures which the petitions in favour of this Bill have received, there are those of many thousands of women. I do not deny that a large proportion of the women of the higher classes disapprove of this measure, but I cannot help thinking that this is owing to their imperfect acquaintance with the operation of the existing law. They do not, they cannot know how much unhappiness, how much immorality, it occasions. They apprehend that this measure would be productive of evil, but of the nature or extent of the evil to be produced by it they have, I think, no very distinct or definite notion. The promoters of the proposed change in the law have been reproached with having resorted to agitation for the purpose of bringing it about. So far as I know they have done nothing which is not perfectly legal and perfectly proper. They have called the attention of the public, as well as that of Parliament, to the grievance. They have circulated throughout the country statements of their case, and have brought it under discussion at public meetings held for the purpose in the principal towns, and have excited a considerable feeling in their favour throughout the moderate and thinking classes. The result of these proceedings has been to satisfy very large numbers of persons that marriage with the sister of a deceased wife ought to be legalised, and to induce 700,000 of those persons to petition Parliament in favour of this Bill. What is there in this deserving of censure? Every man who thinks that a par- 1499 ticular measure is calculated to improve the moral, the social, or the political condition of the country, must desire to secure for it the support of the people. If the late Mr. Wilberforce and his coadjutors had not done this, they would not have succeeded in abolishing the slave trade. It was said by some that it was not worth while to legislate for so small a number of persons; I can assure your Lordships that the number is not small; but in the existing state of the law many persons are reluctant to make known that they had contracted these marriages; and several of the marriages, likewise, have been contracted by persons in humble circumstances, and are not, therefore, easily ascertainable. Nevertheless, it is known that a vast number of these marriages have taken place, and the number is increasing, and, consequently, by refusing to sanction them the Legislature is laying up a large stock of future misery and litigation. Though there might be some doubt as to the legality of these marriages contracted by persons going abroad for the purpose, I am told that in the case of a bonâ fide domicile abroad, Sir F. Kelly and other lawyers have held that there can be no doubt as to the legality of the marriages. Your Lordships have been urged to reject this measure on the ground that it may be made a stepping-stone to others. This argument will, I am sure, have no weight with your Lordships. If you think that what you are asked to do ought to be done, you will not refuse to do it because you may be asked hereafter to do something which you think ought not to be done. If this principle were acted on there would be an end to improvement. The noble and learned Lord (Lord Brougham), who has laboured so zealously and so effectually in the cause of law reform, would have been stopped at the very outset of that career if such an objection had been allowed then to prevail. I have no reason to believe that any one desires to lessen still further the number of forbidden degrees. I have certainly no such wish; but I cannot undertake to say that no Member of either House will at any future time propose to legalise any marriage which is not legalised by this Bill. To give an assurance to that effect is manifestly impossible. I can only say that if, contrary to my expectation, such a measure is brought forward, your Lordships will not be precluded from dealing with it as you may think fit, by dealing with this according to its own merits. 1500 Before I sit down I must say a few words regarding myself. It has been asked why I bring this measure forward, and it has been insinuated that I have some personal interest in the matter. My Lords, I have none; neither, to the best of my knowledge and belief, has any friend or relation of mine. When, in 1850, my right hon. Friend the Recorder of the City of London asked me to take charge in this House of a similar Bill which he had just carried through the House of Commons, I at first declined to do so. It was not till after I had fully considered the question, and had weighed the arguments on both sides, that I made up my mind to support my right hon. Friend's Bill. Having come to that conclusion, I felt that I ought no longer to refuse to take charge of it. I accordingly called on your Lordships, though without success, to give your assent to that Bill. It is the same feeling which has impelled me again to stand up in my place in this House as the advocate of those who, believing that marriage with the sister of a deceased wife is not contrary to the law of God, nor productive of any social or domestic evil, ask you to legalise it. My Lords, it only remains for me to thank you for the patient hearing which you have granted me, and to move that this Bill be now read a second time.
§ Moved, That the Bill be now read 2a.
THE BISHOP OF OXFORD
said, his noble Friend (the Earl of St. Germans) had expressed the reluctance with which he undertook to bring forward this subject, and he (the Bishop of Oxford) could assure the House that it was with a similar feeling that he rose to oppose his noble Friend, and to endeavour to prevail on their Lordships, by a large majority, to read the Bill a second time on that day six months. It was painful to him to oppose the noble Earl upon any matter, and he was not equally happy with the noble Earl in not having a single friend interested in this question; it was painful to take a course which he knew would give pain to many whom he would fain abstain from paining. But all considerations of that kind must be set aside when there was a plain line of duty to be followed in order to maintain God's great safeguard round domestic purity—a safeguard which their Lordships had received from those who had gone before them, and which they were bound to hand down to their descendants in the same purity as they had received it from their 1501 ancestors. Without entering into the consideration of the authorities and the deductions from biblical criticism which the noble Earl had brought under their Lordships' notice, there was, in his opinion, a preliminary reason for refusing to entertain this Bill. It either wont too far, or it did not go far enough. A greater injury could hardly be done to any country than to enact contradictory statutes upon matters affecting moral principles. No doubt the Statute-book contained many old and obsolete statutes which were inconsistent with new enactments. But this inconsistency was very different from that which would be involved in setting aside a number of statutable enactments, and, upon a matter in which the deepest moral principles were concerned, putting the law in a state of direct and absolute opposition to itself. That, however, was what their Lordships would do if they passed this Bill. The Act of Uniformity took into itself the Rubric of the English Common Prayer-Book, and courts of law always looked upon those parts of the ecclesiastical law which had not been repealed by any statute as binding upon them in all matters which in any way involved the question of incest. It was instructive to remember the course which attempted legislation had taken upon this question. Originally it was proposed to make those marriages lawful, and to bind the clergy to perform them in the same way as they were bound to perform other marriages. But it was found impossible to maintain in the face of Parliament that there ought to be one set of laws subjecting clergymen to penalties if they did perform these marriages, and another set exposing them to penalties if they did not. Then came the singular and unstatesmanlike proposition, that each particular clergyman should be left to decide whether he would or would not perform these marriages; but the absurdity of any such legislation had been exposed in that House, and was not again proposed. Now the noble Earl came with a new proposition. He now proposed to leave the clergy of the Established Church of England and Scotland under the existing ecclesiastical law. The ecclesiastical law declared that these unions were contrary to the Word of God, and that parties contracting these marriages were living in a state of incestuous concubinage. This was the view of the Church of England and the Established Kirk of Scotland. That it was the view of the Church of 1502 England there could be no doubt. The table of affinity declared that this particular union was against the Word of God; the services of the Church of England declared, that any marriage against God's law was no marriage at all; and in the Ecclesiastical Courts of England the present Bill would be no defence under the canon law to a suit instituted to declare such a marriage to be incestuous concubinage, and the children to be illegitimate. The noble Earl's statute would declare marriage of this kind to be statutable and lawful, while he would leave unrepealed the whole ecclesiastical law, the canons, the rubric, the services, and everything that declared these marriages to be against God's law and incestuous concubinage. Let it not be thought that this was a mere matter of opinion, and could not come into practical effect—if the law were left in the state proposed by the noble Earl it would introduce confusion, bitterness, and trouble in every parish in the kingdom. How, for example, were the clergy to treat such of their parishioners as had contracted these marriages? Were they to treat them as living in the unity of the Church, and as entitled to participate in the rites of the Church, while the laws of the Church declared that they were not so entitled? Suppose the burial of a person who had contracted such a marriage. The clergyman, if he were faithful to his obligations, would be bound to refuse the rite of burial to this person, and yet by the law of the land this marriage would have been declared good and valid. Take the case of a suit for the restitution of conjugal rights. That suit was instituted upon the supposition that the parties were legally married, and that no sufficient ground could be asserted for their living apart. But, suppose two persons who had contracted one of these marriages had parted in consequence of some disagreement, and that one of them desired the restitution of conjugal rights—would it be pretended that such a suit could be instituted in the Ecclesiastical Courts, when the Ecclesiastical Courts could not admit the marriage to be lawful, although the law of the land might? By the law of the Church of England, the clergyman who knowingly performed such a marriage was liable to the severest censures of the Church. This Bill did not enable a clergyman to marry these parties, and he was still liable to penalties if he did so. But suppose this self-same clergyman him- 1503 self contracted one of these marriages before the civil magistrate, he was then liable to no penalty whatever. Would their Lordships put their clergy in such a false position? If the noble Earl had made good his religious argument—which he (the Bishop of Oxford) could not admit—he ought to bring in a Bill that would entirely sever from the whole religious tenets of all religious bodies the whole subject of marriage; but he ought not to interfere on one point alone, and leave one law to say that these marriages were contrary to the Word of God and another that they were not, and that parties might contract them. Their Lordships had heard something of the clergy and laity forming together the Church. He had always maintained that the clergy were only the ministers of the Church, and whoever used that argument ought to be the last man to bring forward a proposition to leave the Church under one set of laws and regulations and the laity under another. He hoped their Lordships would reject, by a great majority, a Bill that would place the clergy and laity of the Church of England and Ireland in an altogether false, and, he would say, an impossible position. But while he put forward these arguments as ground sufficient to destroy the Bill, he by no means intended to give up the argument that these marriages were against the law of God—a point which the noble Earl thought he had so triumphantly assailed. He admitted it was not very easy to decide, if they threw authority aside, whether the Word of God condemned these marriages. Believing, as he did, that that which the Church of England declared to be God's law was God's law, he felt bound to say something on the religious argument. The noble Earl took two inconsistent views—he said, first, that the chapter of Leviticus was not binding on Christians; and, secondly, that the chapter in question did not prohibit these marriages. That it was not binding upon Christians because it was enjoined upon the Jews be would admit—so far as that was a municipal and ceremonial law it was not binding upon any but the Jews—but he (the Bishop of Oxford) contended, that wherever it was capable of proof that the Jewish law was the exposition of God's will to man, it was just as binding on Christians as on the Jewish people. The 18th chapter of Leviticus began with an awful caution to the Jews against doing as the inhabitants of the land had done before them. 1504 The verse ran, "For all these abominations have the men of the land done which were before you, and the land is defiled." If this were a ceremonial law imposed upon the Jews, it would have no validity before it was enjoined, for a statute had no obligation until it was enacted. If this were one of the municipal or statute laws of the Jewish people, it could have no sort of obligation upon the people who possessed the land before them. The breach of that statute was, therefore, no abomination, and the adoption of the practices denounced had inflicted upon the land no defilement. We had, therefore, God's own warning to us that the restriction against these marriages rested upon rules which God had laid down for man, as his creature, as an eternal obligation, and not on the particular enactments of a particular law for the regulation of the Jewish polity. The noble Earl quoted Sir William Jones to show that a certain passage in Leviticus did not refer to marriage, but to concubinage. The whole of that chapter related, indeed, to what God did not treat as a sacred thing like marriage; although those who contracted such intimacies might have regarded them in that favourable light. The language used in speaking of them was not such as God generally applied to marriage; and, in fact, that was the strong argument of those who opposed the noble Earl's views. These unions could never be marriages; they were incestuous concubinage, and even under the elder Law they were nowhere dignified by the terms of respect used towards the holy relationship of matrimony. Yet, if the opinion of one man, however eminent as an Oriental scholar, was to be adduced as an authority that ought to settle their Lordships' judgment, why should not an appeal be made to the consenting voice of the Christian Church through all its purest ages? The question was, whether the particular prohibition now in dispute fairly came within the category of restrictions on marriage imposed by God on all who would submit to his will. The chapter in Leviticus contained no direct prohibition to an uncle against marrying his own niece in blood. This proved that we must have regard to the principle on which these prohibitions rested. It must be borne in mind that all these prohibitions in restraint of marriage were viewed from the side of the man, and not from the side of the woman, those relating to the woman being given merely incidentally, and sometimes entirely 1505 omitted. Hence, where there was no direct rule as to the woman, it was necessary, in determining the principles which Holy Writ laid down upon the question, to argue by analogy, and by putting the converse case in the instance of women, to arrive at the just and necessary law. This was no strained mode of construction—it was the necessary result of the enactments of the Bible—and it followed, he might say, of necessity, that where the marriage of a man with a woman related to him in a certain degree was prohibited, the marriage of a woman with a man related in the like degree was prohibited also. Thus, whereas a son was forbidden, in express terms, to marry his mother, from that universal Christendom had taken the liberty to argue conversely that a mother might not marry her son; and then, again, that a father might not marry his daughter.
THE BISHOP OF OXFORD
Precisely so; as a nephew might not marry his aunt, or, vice versâ, so by a parity of reasoning neither might an uncle marry his niece. A woman was forbidden to marry two brothers, and, by analogy of argument, a man was not at liberty to marry two sisters, It was evident, then, that the prohibition now under discussion extended not to the Jews only, but to every Christian community. The consideration of this fact disposed of a vast number of the arguments which the noble Earl had drawn from the texts of the old Testament. Turning to the New Testament, two cases were to be found there relating to this subject, though only one had been referred to by the noble Earl. One was that of Herod marrying Herodias, his brother's wife, and the plain and commonly accepted interpretation of the passage in Josephus was, that this woman had left her husband during his lifetime, and no more. It did not show that he was alive at the time when Herod took her. The other case, which was not referred to by the noble Earl, was this: We found by the 1st Epistle of St. Paul to the Corinthians, a lay member of the Church was expelled for marrying his father's wife; and there was a strong presumption, from the incidental evidence contained in the narrative, that the man's father was not alive when the circumstance occurred. This, therefore, was a case of affinity and not of consanguinity. The 1506 two instances cited from the New Testament warranted the same conclusion—namely, that God had allowed it to stand written by his own finger that not only were those marriages to be condemned which were forbidden by the laws of consanguinity, but those also which violated in the manner now contemplated the laws of affinity. He protested, however, against the idea that it was the duty of a Christian man to draw his rules of faith from such minute and critical examinations of particular texts, instead of drawing the light to guide him from the just and beneficent spirit of Holy Writ. The educated eye, looking at God's dealings with his ancient people, would not fail to perceive that He had raised them from a horde of slaves to a nation of freemen, not by allowing them unbridled licence, but rather by subjecting them to certain laws and restrictions which chastened their passions, elevated their thoughts, and refined their sentiments. He knew it had been said that restrictions were bad, and that where any restraint was necessary, good and sufficient ground ought to be made out for it. He viewed the matter in a different spirit. Such laws and restrictions were not irksome—were not a grievance. They contained no principle of evil, but, on the contrary, the germ of some choice and heavenly blessing. This was a salutary doctrine, and one which they would do well to apply to the matter in hand. God's legislation for his favourite people began by restraining that freedom of marriage which was enjoyed by the heathen around them. The obvious inference from such a fact was, that such restraints, so far from being invasions of rational liberty, were intended as blessings and instruments of grace for those whom God intended to raise to the highest state of favour and civilisation. It was not for man to resist this Divine policy, nor out of spurious kindness for a few to inflict a deep injury on the many. In regulating the mysterious attraction between the sexes, the law of God had, from the very beginning of our race, imposed restrictions on the licence of marriage unions, from which had flowed some of the choicest blessings which man was permitted to know. There were from the earliest times certain circles of relationships to restrain marriage within which was not an unkind denial to a man of that which was for his greater happiness; it was rather a blessed ordinance, calculated to create holier ties for him, 1507 and to surround him with an atmosphere of greater purity. This was the high and true principle on which to interpret the Holy Scriptures; and the New Testament, thus interpreted, condemned as unlawful, according to the will of God, the marriages which this Bill sought to make lawful according to that of man. Certain it was that there was some limit within which the ties of marriage ought to be restricted. How, then, was that limit to be decided upon? He thought he should carry with him the assent of their Lordships, when he said that if a line was to be found laid down in God's Word, it was not for human legislators to say that some other limit ought to be adopted. He could not but take this opportunity of expressing the deep admiration he felt for the labour and research which the noble Earl had expended upon this subject. He had not contented himself with presenting to the House arguments at secondhand, but had himself in the dusty records of the British Museum sought out the authorities bearing on this subject. But he (the Bishop of Oxford) viewed the result of these researches as but of little weight when contrasted with the long and uniform current of authority arising from the constant practice of the Christian Church in its early and purest ages. In those ages there had not occurred an instance of a dispensation granted in the case of a marriage of the kind under consideration. The united judgment of the Church of Christ, in its best and purest ages, was against these alliances. The attempt to establish a parallel between them and the marriage of first-cousins could not be sustained. During the first four or five centuries of the Christian Church there was no prohibition on the marriage of first-cousins. It came in after the time of St. Augustin, whereas the prohibition of marriage with a deceased wife's sister was of much earlier date, and therefore stood on a different footing. The Western Church never permitted a dispensation in favour of the kind of marriage now advocated until the time when Alexander VI.—Borgia, that basest and worst of men, who was himself guilty of incest and every abomination—granted such a dispensation to Emanuel, King of Portugal, on the ground that for reasons of state policy it was desirable that the privilege should be accorded to that crowned head. The noble Earl appeared sometimes to quote the decisions of the later periods of the Roman Church with appa- 1508 rent approval. He (the Bishop of Oxford), however, cared very little about what the Church of Rome had done in matters of dispensation, because, when driven into a corner, there was not any decision which that wily and astute Court thought expedient which it would not justify upon some construction which it would place upon the Word of God. There was a certain great casuist in the Church of Rome, Liguori by name, whose teaching in the matter of dispensation had been declared by the Pope to be the true doctrine of the Church; and he laid down this rule with regard to the dispensing power, "Papa non potest dispensare in lege Dei," but he added this qualification, "sine justâ causâ," and, to make this rule more complete, he went on to say, "nec episcopus in lege ecclesiœ." So that the dispensing power of the Pope was the same with regard to the law of God as that of the bishop with regard to the law of the Church—that was, it could not be exercised except on sufficient cause being shown, the sufficient cause generally being the necessities of sovereign princes. It was, then, to the earlier traditions of the Church that the House could alone look with confidence; and those traditions were conclusive against the validity of these marriages. There was the unbroken tradition of the whole of the Western Church down to the sixteenth century exhibiting these marriages as illegal; the unbroken tradition of the Eastern Church and of the Russian Church was the same, and the tradition of the Anglican Church from the time of the Reformation, when she returned to the primitive teaching, also declared these marriages contrary to the law of God. Passing from the religious, and coming to the social arguments which the noble Earl had brought forward, he must in candour state that, to his mind, the latter were singularly infelicitous. The noble Earl said that the only answer which he could get from those educated married women who objected to this measure was, that it was a "horrid Bill," but that why it was "horrid," they seemed to be at a loss to say. There were many reasons why an educated woman should shrink from declaring to a man the grounds upon which she based her views upon this subject. But he went further, and should not hesitate to say that this question was one which their Lordships might better trust to the Christian instincts of educated women, than to the most subtle arguments of learned casuists. The noble Earl had 1509 not correctly described the character and object of the Bill introduced by Lord Lyndhurst. Before it was passed the mode of declaring these marriages void was uncertain and tedious, and afforded many opportunities for evasion; and its object, while relieving those persons who had theretofore contracted such marriages from the legal evils attached to them, was to declare them absolutely void ab initio, instead of merely voidable as they had been before. He (the Bishop of Oxford) contended that the cases which it was proposed to accommodate by this Bill were not so frequent among the poor as they were among the more easy and self-indulgent classes of society; and, therefore, the assertion that this was a poor man's question, was only a clever piece of rhetoric, and entirely devoid of truth. There were far more numerous instances of persons living in improper connection together who were not in the relation of a man and his late wife's sister, than of persons who stood in that relation to each other living together without marriage; so that the argument that the proposed change in the law would prevent immorality was without foundation. To continue, therefore, to agitate this question, was to do the greatest unkindness to the unhappy persons whom it sought to benefit and to society at large. In the first place, by holding out that this licence might be conceded, a direct encouragement was given to such attachments, by inducing parties to break the law, in the hope of afterwards escaping the consequences by getting the law altered. It would materially lower the moral sense of the great mass of the population with regard to the sanctity of the institution of marriage. It would interfere with the happiness of a multitude of families, which depended on the shelter which the present law threw round many innocent and happy homes. He entreated their Lordships not to widen the circle of those vicious ideas, which were always too ready to occur to the imagination of fallen mankind, by allowing the possibility of such a connection to be entertained. It was said, that under the present law no young woman could go and reside with her young brother-in-law without suspicion. He denied this. It was a base slander to say that any such persons were suspected. When this question was brought forward before, he sent a set of queries to every parish in his diocess, and he ascertained that there was no desire, speaking on the whole, among the 1510 poor, to have the law altered; and, therefore, the whole argument, which went to show that this was a poor man's question, was just one of those pieces of rhetoric which were adopted and used without being based on truth. He trusted that their Lordships would reject the second reading of the Bill by such a majority as should not encourage its promoters to proceed further in this agitation. Why was there no temptation in any well-regulated mind to seek for incestuous union with those in respect to whom they stood closest in consanguinity? It was because the influence of a hallowed feeling rendered the first rise of such a thought in any well-regulated mind a matter of absolute impossibility. The danger was that, when once this question began to be agitated, the circle of those to whom these ideas would be suggested would be widened, and the fences which had hitherto protected the sanctities of family life would be broken down. Every time there occurred a doubtful division in Parliament on this question, the evil was carried to new houses and new hearths. This was not a matter in which it was lawful for any persons to be unsettling the deep, sacred foundations on which society rested; and he could not hold any one blameless who tried in this way to break down the sacred bond of domestic purity. He, therefore, ventured to beg his noble Friend to pause before he further identified himself with this unhappy attempt at legislation, and he prayed their Lordships to reject the Motion in so decided a manner as would effectually damp any expectation that Parliament would sanction such a measure. If there should be the preponderance but of one grain's weight in the mind of any one of their Lordships that these marriages were forbidden by the divine law, that doubt ought to be sufficient to induce him to lean to the side of safety. In the name of God's truth, in the name of the unity of the Church, and for the sake of the ten thousand homes of England, which stood as yet on this earth models of purity and the seat of every domestic blessing, in the name of the deep foundation of society which ought not to be lightly disturbed, he asked their Lordships, by their decision, to fence them round still more strongly against the invader, and to reject this Bill by such a majority as should leave its promoters no inducement to persist in their ill-advised agitation. The right rev. Prelate then moved as an 1511 Amendment, to leave out "now," and insert "this day six months."
§ Amendment moved, to leave out "now," and insert "this day six months."
§ THE EARL OF ALBEMARLE
thought, with the right reverend Prelate, that it was incumbent upon this House to uphold the domestic purity of the country, and it was in defence of domestic purity that he advocated the amendment of the present law; for he could not without much pain reflect on the great immorality which it caused, and the hardship it inflicted, especially on those who lived by professions and trades or by the work of their hands, whilst the idle and wealthy could easily procure an immunity from its operation. There were two cases to which he could refer to show the effect of this class legislation. A Member of their Lordships' House having contracted a marriage with a virtuous and high-born lady, the sister of his deceased wife, of a family of a high religious standard, the difficulties which would result from such, a marriage were afterwards perceived, and a law, the 5 & 6 Will. IV., c. 54, Lord Lyndhurst's Act, was passed to remedy that case. The heir had now succeeded to the family estate and honours. That law was made for the rich man. At the same time, a poor man named Ramsdale married his wife's sister, a woman of the name of Chick. At the instigation of a proctor, proceedings were taken against him in the Ecclesiastical Court, and he had to pay £1,500 or £2,000, and was sentenced to perform penance. That part of the sentence was remitted, but the marriage was annulled. He had had children by that marriage; but he went mad, left his wife, and married again. The wife married again also; and he was now, or had until very recently been, in a lunatic asylum at Hackney. Here was confusion and misery! Such was the case of the poor man, compared with that of the rich, under the present law. Well might the exemplary rector of St. Mary's, Marylebone, exclaim, "If I were a demagogue, and wished to rouse the passions of the working classes against the rich men's legislation, I would wish for no better subject than marriage with a wife's sister." The right reverend Prelate had deprecated the manner in which his noble Friend (Lord St. Germans) had spoken of the kind of objections which ladies raised to these marriages. He thought his noble Friend justified in his remarks. Ladies seemed to have 1512 some vague notion that these marriages were contrary to Scripture. The error was a natural one, and in some degree attributable to the ignorance of their spiritual advisers. At an early age, a young lady had the Book of Common Prayer put into her hands. Having been taught to see the connection of its beautiful liturgy with Holy Writ, she not unnaturally attached an authority to all she found in it, almost as great as to the contents of the Bible itself. In this spirit she stumbles on that Table of kindred and affinity for the prohibitions in which, without the shadow of an authority, the right reverend Prelate claims such an unqualified submission. The young lady is not aware that the Table which professes to point out those "who are forbidden in Scripture and our laws to marry together," contains two untruths—first, out of thirty prohibitions there are fourteen that it has no warrantry in Scripture to forbid; and secondly, one of these prohibited degrees is declared by a law which till lately, and, unless invalidated by the Lyndhurst Act, is still in force (1 Mary, Sess. 2, c. 1), to be conformable "to God's Holy Word." The truth is, that this Table of kindred and affinity to which such importance is attached, has no more right to be in either Prayer Book or Bible (and it is in both) than a chapter of the Koran, for Koran and Table alike "teach for doctrine the commandments of men." Now, what was the history of that Table. In the middle of the sixteenth century, Elizabeth ascended the throne with a very questionable title, and wished to obtain a greater validity for it than the Parliamentary vote which declared her the lawful Sovereign. The prohibition akin to that of a wife's sister lay in her way. Archbishop Parker drew out that Table, which is now in the Prayer Book, for that purpose. Parker had been chaplain to Elizabeth's mother, Anne Boleyn, who stood in the predicament of one who had contracted a marriage with a man whose first wife was still alive, and in face of an Act then in force, this same 1 Mary, Sess. 2, c. 1, which declared that first marriage "lawful, and according to God's Holy Word." It is quite clear that Parker acted under constraint; that the Table emanated from his own authority, which his imperious mistress compelled him to exert, and that he did so, without any consultation with his right reverend brethren; that it was published in the form 1513 of an Admonition, and was avowedly only of a temporary nature, until the subject should be considered in Convocation. That Convocation, Parker never summoned. As a Protestant archbishop it was his duty, if he believed marriages with a wife's sister to be incestuous, to denounce them. So far from doing so, he declared that such marriages should on no account be set aside, "nec dissoluto quocunque modo conjugio." Further, so anxious was the author of the Table to neutralize his own authority in this matter, that authority which the right reverend Prelate (the Bishop of Oxford) so wishes to extend, that on the margin of the Table, in his own handwriting, he has given the names of five eminent divines, three Protestant and two Roman Catholic, who hold these marriages to be lawful, who "concedunt uni duas sorores duccre."
In 1571 appeared a canon, prohibiting marriages with a wife's sister, for which it is difficult to account. In 1558, Philip of Spain, who had sent the Duke of Feria to condole with his wife, Mary, in her last illness, commissioned that ambassador, on his wife's death, to make proposals to her sister, Elizabeth, and offered to obtain a dispensation from the Pope. The new Queen declined. Philip married Isabella of Valois four months afterwards, and in 1569 was again a widower. In 1571, the Duke of Anjou came to England, the acknowledged lover of Elizabeth. It is possible that Elizabeth may have tried to appease Philip, to whom this proposed alliance was known to be very distasteful, by showing how strongly opposed the feeling of England was to a marriage with a wife's sister. Be that as it may, in 1571 appeared the following canon:—Omnia matrimonia, quæ uspiam contracta sunt inter gradus cognationis aut affinitatis, prohibitos in xviii. Levitici, auctoritate episcopi dissolventur, MAXIME VERO, si quis, priore uxore demortua, ejus sororem uxorem duxerit: hic enim gradus communi doctorum virorum consensu et judicio putatur in Levitico prohiberi.So that, according to the maxime vero of this canon, marriage with a grandmother or a mother would be a more venial offence than one with a wife's sister—sufficient to show the animus in which such canons were enacted in that age. Archbishop Parker's Tables remained unconfirmed during the whole of Elizabeth's reign, and it was not till 1603, the reign of James I., that the "Table of kin- 1514 dred and affinity" was embodied in what is called the ninety-ninth canon. He (Lord Albemarle) had listened with much anxiety to hear from the right reverend Prelate on what grounds he claimed such a blind submission to the ninety-ninth canon, and to the "Table of kindred and affinity" on which it was founded; but he listened in vain; and he asked the right reverend Bench, what validity had this canon for the laity of England? Blackstone, on the high authority of Chief Justice Hale, said,—They (the canons) bind not the subjects of England because their materials were collected by Popes and Emperors. The legislation of England doth not, nor ever did, recognise any foreign Power as equal or superior to it in the kingdom, as having the right to give the law to any the meanest of its subjects.Hallam also declared these canons unconstitutional, and such as ought not to be imposed upon the subjects of this realm. Would his noble Friend the Chief Justice (who at this moment entered the House) tell him that the canons of England had any binding authority upon laymen without the authority of Parliament? If he did, he would quote Lord Hardwicke's opinion to the contrary. The right rev. Prelate had spoken of domestic purity, but that was much more affected by the law as it stood. He would read to their Lordships a letter upon this subject, addressed by a gentleman to a friend of his. It was as follows:—April 22.I have got Manning's pamphlet, and hope it may do good. They may legislate as they like on the subject, but I have long been satisfied that they cannot prevent these marriages. In my own parish there have been, within the last year and a half, no less than six at the registrar's office, and, in an adjacent parish, one at the church, the clergyman suspecting nothing of course, so that, in point of fact, the law is only binding upon those that are unwilling to break it. By the by, within a short distance of my own house, there are three cases of the wife's sister having been called in to look after the children, and the parties have cohabited ever since. In my own case, and in innumerable others, no doubt, the law cuts both ways; which can't be right. My sister-in-law's friends say, it is all wrong her living in the same house with me, and so won't allow it; and I don't blame them, as nothing would induce me to permit a daughter of mine to live with her brother-in-law—it is asking human nature too much. How absurd, therefore, that the only female that cares about my children or myself cannot live with me either as my sister or as my wife, and, if she takes charge of my children, I must be deprived of the pleasure of their society. Talk of social expediency! If this is not an intolerable social grievance, I don't know what is.1515 The advocates of the amendment of the law contend that these marriages, not being prohibited by Scripture, ought to be allowed. Their opponents, on the other hand, assert that the 18th verse of the 18th chapter of Leviticus, admits of a double interpretation, and that, in such a case, we must consult authority, that authority being the Church; and the Church having, in the apostolical canons, which date before 325, pronounced these marriages to be forbidden. That is, we have the authority of the "Church" for 1,500 years against these marriages.
Such has been the argument used by two right rev. Prelates (the Bishops of London and Exeter), and although the right rev. Prelate who has just sat down did not name these apostolical canons, yet, as he specified the 1,500 years as the time that the Christian Church had prohibited these marriages, I must assume that he also meant to appeal to these canons.
Now, although he (the Earl of Albemarle) believed that within a century or so of the time they profess to have been written, it would be impossible for any one to prove their existence; yet, he was ready to admit that they had an authority in the Eastern Church, that they never attained in the Western. In the latter they always met a sorry reception, though not worse than they deserved.
These canons were first made known to the Western Church by Dionysius Exiguus, in the year 530, or about the sixth year of the reign of Justinian, and are addressed by him to the Pope of that period. Dionysius speaks of them very doubtingly. He would not affirm them to be apostolical, as the Protestant Prelates of our own times do, but speaks of them as being called so—"Canones qui dicuntur apostolorum."In the first place," says Dionysius, in his introductory letter addressed to the Pope of that day, "we have translated the canon called apostolical, which many(plurimi) have not yielded a ready assent to, of which I was not willing your Holiness (Vestra Sanctitas) should be ignorant, although certain pontifical constitutions seem afterwards to have been taken from these very canons.Here, then, we Protestants of the nineteenth century, are called upon by the dignitaries of our Church to yield a ready assent to canons, which was refused to them by the Church of Rome, 1,300 years nearer to the time of the Apostles, by whom they profess to be written. Isidore, of St. Seville, declared these canons to be 1516 forged by heretics, under the name of the Apostles. Pope Gelasius (Pope from 492 to 496), in a synod of seventy bishops held at Rome, placed them in a list of apocryphal works. Fulgentius Ferrandus, an African, in 547, and Martinus Bracarensis, in 570, abstained from giving them a place in their collections. Ivo Carnotensis, Bishop of Chartres, repeated the condemnation of Gelasius, and, in 1092, prefaced the sentence with the title, "De notitiâ librorum apocryphorum qui a sanctis patribus damnati sunt æternâ damnatione." These Canons fell into oblivion till the time of the Reformation. The Centuriators of Magdeburg, a body of Protestant divines, denounced them on internal evidence as a palpable forgery, and not without reason, as their Lordships would see, if they looked to the canons themselves.
It is not necessary to refer particularly to the canons prohibitory of marriage—namely, the seventeenth, eighteenth, and nineteenth, because, it turns out, after all this parade of authority, that the restrictions referred to the clergy and not to the laity—those who marry widows, actresses, servant maids, two sisters, or a cousin being disqualified for becoming clergymen, being all placed in one and the same category. The twenty-fifth canon affords evidence of heterogeneous origin, for it says that if any Bishop, presbyter, &c., shall be guilty of certain crimes, such as theft or perjury, he is to beDeposed, but not excommunicated, for the Scripture saith, 'Thou shalt not punish a man twice for the same offence.'And the twenty-ninth canon does punish twice for the same offence, the offence being not of the deep dye of any of those mentioned in the twenty-fifth canon, but the obtaining dignity of the priesthood by money, for, says the canon—Let both him (the Bishop) and the person who ordained him, be deposed, and altogether cut off from all communion, as was Simon Magus, by me, Peter.The thirtieth canon decrees deposition and excommunication to any bishop who obtains possession of a church by aid of the temporal powers, and all who communicate with him. If the canons prohibiting marriage be binding, it is to be presumed that this canon is so too; but what then becomes of the congé d'élire?
If these canons are not prior to the Council of Nice, which they profess to be, they must be forgeries. Now, St. Basil, 1517 the grand champion of the ancient canons, who was born four years later than the Council of Nice, says, writing in the middle of the fourth century, de spiritu sancto, c. 27, "whence have we derived the custom of baptising with three immersions?" If St. Basil had known of the existence of these pretended apostolic canons, he would have found in the fiftieth canon, that deposition would have been the fate of any bishop or presbyter who did not perform the one initiation with three immersions. In the sixty-fifth canon it is decreed that if any clergyman shall strike any one in a contest and kill him with one blow, he is to be deposed for his violence. If a layman do so, he is to be excommunicated. Here we see the "apostolical" ideas of punishment due for manslaughter by a clergyman and a layman. The next canon attaches the same punishments and the same degrees of punishments for fasting on the Lord's Day or any Saturday. From which of the apostles he (the Earl of Albemarle) would ask is this taken, or in what part of their acknowledged writings do we discover the principles which sanction it—fasting and murder in the same category. The eighty-ninth canon deposes a bishop or presbyter who gives himself to the management of public affairs, as no man can serve two masters. This canon has an apostolical sound; but how is it reconcilable with a seat in this House or on the magistrate's bench?
The last canon declares on apostolical authority what books of the Bible are orthodox. In this number the Book of Revelation and one epistle of Jude are not to be found, but in the list areTwo epistles of Clemens, and the constitutions of me, Clemens, addressed to you Bishops in eight books, which are not to be published to all on account of the mystical things in them. And the Acts of us the Apostles.Now he (Lord Albemarle) thought he had quoted enough of these canons to justify him in considering them as in no way binding upon the laity of England, whatever authority the clergy might he pleased to assign to them. It would ill become him—a plain soldier—to enter the lists of polemical controversy with the erudite theologians of the church militant, and he would much rather depute a champion to act in his behalf in such a tilt; such a champion was the book he now held, and he ventured to tell the right rev. Bench that there was not a single argument used by them against this Bill which was not 1518 satisfactorily confuted by it. It was published by Mr. Fry, not in 1856 to meet the arguments of right rev. Prelates, but in 1756, and he could not remember any argument from the right rev. Bench that had not been answered by anticipation, and long before these discussions on measures like the present originated. The right rev. Prelates would there find—
"That the phrase in which the law is expressed (in Leviticus xviii.) is never once used in Scripture for marriage, but rather for a breach of it.
"That the Israelites were severely reproved for debauching their near kindred, but never for marrying any of them.
"That St. Paul reproved the Corinthians on account of one of them having taken his father's wife; and John the Baptist likewise Herod, for having his brother's wife. But, that neither of these instances are to the purpose; for the Corinthian's crime was not the marrying his father's widow, nor Herod's the marrying his brother's wife, but adulterously living with them; the father of the one, and the brother of the other, being living and receiving wrong by it.
"That the Israelites were severely reproved for marrying strangers; but that there is not one instance in the whole Bible of any blamed for marrying their kindred.
"That this practice continued to the time of our Saviour; but that neither He nor the Apostles ever blamed any for marrying such."
The arguments by which Fry supported these positions, appeared to him (Lord Albemarle), unanswerable, and with this conviction of their soundness, and for the reasons he had already stated, he should cordially support the Bill in the amended shape in which his noble Friend had introduced it.
looked upon this question as entirely a social and domestic one. He should be deeply concerned were anything done which would tend to weaken or disturb the social interests of the community, and he believed that nothing could be more calculated to produce pernicious consequences than the Bill now before the House. He most sincerely joined in the expression of opinion of the right rev. Prelate, and trusted that their Lordships would reject this measure by such a majority as would prevent the probability of its ever being again brought under their consideration.
§ LORD RAVENSWORTH
said, that on 1519 all former occasions when this proposal was under discussion he had given it his support, and he had heard no reason alleged why he should do otherwise now. He did not at all share the apprehensions of the noble Lord (Viscount Dungannon) when he said that this measure would seriously affect the social interests of society, and when the noble Lord alleged the social interests of the community as the ground of his opposition, he (Lord Ravensworth) thought that a case of social hardship should have been alleged in support of that argument. Now, he (Lord Ravensworth) was himself cognisant of a case in which the prohibition which it was the purpose of this Bill to remove was productive of great hardship—that of a gentleman in a highly respectable position of life, who, though most anxious to marry the sister of his deceased wife, would not even permit himself to enjoy the pleasure of her society, lest it should be thought that he contemplated a violation of the laws of his country. The attachment between the parties was mutual; it was founded on esteem, had grown up in the chamber of affliction, and rested on the purest and most honourable principles; yet the law forbade that it should receive the sacred sanction of the marriage rite, and thus an honourable and high-minded man was deprived of a good and loving wife, and his children of the tender solicitude of a kind and devoted woman, their nearest relative since their mother's death. He contended that this was really a social grievance, and he thought, therefore, it was right to make their Lordships acquainted with it. These parties did live apart in obedience to the law, and they suffered in consequence. In how many hundreds and in how many thousands of instances were the humbler classes induced to resort to immorality in order to evade the existing law? He knew this was the case, as he had been much brought into contact with the humbler classes. It had been asserted in that House, and in other places, that to permit a relaxation of the law was contrary to the law of God. If this assertion be true, cadit quœstio, he would say, woe betide that Legislature and that legislation which attempted to establish any law that was contrary to the law of God. He had carefully consulted the Sacred Book, with the view of informing his mind on the subject, and without relying on any doubtful interpretation or passage, he would 1520 say if he could bring his mind to believe that this prohibition was warranted by the Divine Word, he was the very last man to support a measure which should have the effect of relaxing it; but believing that it was in no degree warranted by the Word, of God, and knowing also how frequently injurious to the interests of society was the prohibition of the canonical law on this subject, he should vote for the second reading of the Bill.
said, he deeply regretted the noble Lord had not been present to hear the very argumentative and eloquent speech of the right rev. Prelate who spoke second in the debate (the Bishop of Oxford); he might have been a convert, and perhaps not the only convert, to that able speech. The opinion which he (Lord Campbell) expressed on this subject in the debate of 1851 remained unchanged; and he must say now of the alteration proposed by the present Bill that it was contrary to the law of God, and that, socially, it would be most mischievous. He had listened to the speech of the noble Mover of this Bill with admiration of the industry which he displayed; but, while he did justice to the motives with which he had introduced the measure, he thought that noble Lord would have done better not to have renewed the agitation of this question. Their Lordships, on the last occasion, rejected the Bill by a large majority; but the noble Lord said there had been a change in public opinion since that time. He (Lord Campbell) believed there had; that public opinion was altogether unfavourable to the Bill, and that it was growing daily in strength. As a proof of this, in the year 1849 the House of Commons passed this Bill by a large majority, while in 1855 it only received its second reading by a narrow majority of seven, while at every subsequent state its supporters became fewer and fewer, until the promoters of the Bill were compelled to withdraw it. There was, no doubt, that by the Act the 32 Hen. VIII. these proposed unions were declared unlawful, and had remained so up to this time; and to disturb that which had been the law for three centuries was rather gratuitous. In the case of the Queen v. Chadwick, the question was most solemnly argued before the Court of Queen's Bench, and it was adjudged that such a marriage was unlawful and void. That case had settled the point ever since, and he was rather astonished at the noble 1521 Lord setting up his opinion against that of all the Judges of the Queen's Bench. He did not mean to enter upon the merits of the general question, but only to make some observations upon this particular Bill, which seemed to him to be more objectionable than any that had preceded it. In the first place, it was not confined to the marriage of a widower with his deceased wife's sister, but extended to marriage with her niece. Why should it go so far? And, if it went so far, why did it not go further? Would this Bill end the agitation? No, another Member of this or the other House might bring in another Bill, and we should have another change in the law. The principle of this Bill ought to extend it to the case of the uncle and niece also, and to other similar cases. Indeed, if this Bill passed, our notions of what was lawful and unlawful would be confused. Another objection to this Bill was, that it did not extend to the whole of the United Kingdom. The noble Mover well knew that the people of Scotland regarded such marriages with universal abhorrence. Yet it was proposed to make a marriage lawful in England which was unlawful in Scotland, notwithstanding that they had been deprecating only the other night the discrepancy of the law of the two countries on the subject of marriage. Next, the Bill declared all marriages of this kind previously contracted to be legal; now he (Lord Campbell) thought that nothing could be worse than to give such a sanction to the acts of persons who had violated the law. Besides, supposing two persons in the stated degree of relationship had married, and, from dislike or from a returning sense of religion and morality, had separated and married again, then which marriage was to be legal under the Bill? An impression prevailed that those marriages, if contracted abroad, were legal; but this was not so, as the parties, as English subjects, carried about with them, wherever they went, a personal disability to contract marriage of this kind. The noble and learned Lord concluded by expressing a hope that their Lordships would not be induced to make the change in the law to which the noble Earl had invited their attention.
THE BISHOP OF CASHEL
said, he rose to express his decided opposition to this Bill, and in so doing took his stand on the Word of God, which the Articles of the Church declared to contain all things necessary to salvation, so as to be the rule 1522 both of faith and practice. If the Word of God did not impose the restriction which the noble Earl desired to remove, let it not be continued; but if the Word of God made the restriction, it was their duty, without reference to arguments of social good or evil, to adhere to it. Now to his mind the law as laid down in Scripture was clear and conclusive against such connections as it was contemplated by this Bill to sanction; and on this principle, and on this principle alone, he should vote against it. In respect to the laws in the 18th chapter of Leviticus, he would observe that they were not merely for the Jews, but for man generally, for they were moral in their nature, and not simply ceremonial. They were to keep them from doing after the doings of the land of Canaan. He believed that it would be admitted, that throughout Scripture what was said of man had also the same force with regard to woman. When it was said that a man might not marry his father's wife it was equally intended to lay down that a woman might not marry her mother's husband—all would assent to this. In like manner when it was said that a man might not marry his brother's wife, they were to understand that a woman might not marry her sister's husband. If that were so, then, of course, the man could not marry his wife's sister. He should vote against the Bill, believing that it was in opposition to the Word of God, which so plainly prohibited marriage within the degree of affinity which the Bill desired to sanction.
THE BISHOP OF ST. DAVIDS
said, he had reason to believe that the authority of the office he had the honour to fill had been pressed into the service of the cause supported by the noble Earl, much against his (the Bishop of St. David's) own intention and judgment. There was an impression that he agreed with the noble Earl upon a very essential point; but he wished to state that the extent of that agreement had been most prodigiously overrated, and he was sorry to be obliged to add, that the divergency between the views of the noble Earl and his own had been very greatly increased by what had to-night fallen from the noble Earl. He had great pleasure in feeling that there was no material part of the question with respect to which he did not substantially agree with the great majority of his right rev. Brethren. In one sense he was not sorry that this question had been revived, because he trusted that 1523 the rejection of the measure would be carried by so large a majority of that House as would go far to put an end to the agitation; in another sense, however, he was sorry that the question had been renewed, on account of the preparations which he knew had been made to support the Bill—preparations indicated by the petitions which had been laid upon the table—and the agitation of such a subject could not but have a most injurious effect. The number of the signatures to those petitions bore a very small proportion to the mass of the people who were opposed to the Bill, but even if it were ten times greater, he should say that upon a question of this kind their Lordships ought not to count the numbers who had signed, but to weigh the reasons which were stated in the petitions. It was an undeniable fact that the prohibitions with regard to marriage contained in the Old Testament formed the basis of the law of the land on that subject. Those prohibitions, until the beginning of the Christian dispensation, were the undoubted law of the Jewish people, and they were regarded with the greatest veneration by the disciples of Him who declared that He had come not to destroy the Law, but to fulfil it. It was also notorious that the tendency of the Primitive Church was not to relax, but to increase, the stringency of such prohibitions. There could be no doubt that those prohibitions formed the basis of our present social system—the only basis which could be devised by human wisdom, unless they went back to the light of nature for the regulation of all the relations concerning this subject; and then there would be nothing to prevent men from falling into those excesses and that licence into which some of the most civilised nations of the ancient world did actually fall by sanctioning all kinds of incestuous abominations. The noble Earl had no such intention; but such was the consequence logically involved in his measure. The noble Earl proposed to touch only one restriction; but his proposition rested upon grounds which would virtually sweep away all the rest. He agreed with his right rev. Brethren in thinking that the principle and spirit of the Divine law was clearly opposed to that kind of marriage which the noble Earl proposed to sanction. The prohibitions in the 18th chapter of Leviticus were prefaced by a general statement which laid down a governing principle applicable to every case of kindred; and in the 8th 1524 verse this principle is extended to the corresponding degree of affinity. The prohibition in the 16th verse was full and express; and this, on principle, includes the case of the wife's sister; so that, if this had not been mentioned, there would have been no doubt as to the intention. But then the noble Earl maintained that this principle is countervailed by the language of the 18th verse. But, the text on which the noble Earl relied was ambiguous and obscure. He said advisedly it was ambiguous, because it admitted of more than one interpretation; and although upon the whole he preferred the text of the authorised version, still the marginal note was not undeserving of attention or destitute of some degree of probability. It might be understood in that sense as meant to qualify the general licence of poligamy. The text was obscure, because it contained several words which were superfluous for the purpose that the noble Earl considered it was intended to convey, and which tended to confuse certainty as to the real meaning. For the reason assigned, "to vex her," did not apply to this more than to any other case of polygamy. If their Lordships had now to decide what part of these prohibitions were to be incorporated into the law of the land, it would be safest to take that which was clear and indisputable—to take the spirit and principle of the whole code of prohibition, and not that which was ambiguous and obscure. A petition had been presented and circulated on the part of the Protestant Dissenters in favour of this Bill, but the ground upon which they rested their objection to the existing law was just as applicable to every other prohibition in the table as it was to that which the noble Earl had selected. He could only consider this proposal as the first step in a movement the limits of which he was utterly unable to foresee. The noble Earl disclaimed any intention to carry the alteration of the law any further, but he had not disguised from himself or from their Lordships the probability, nay he might almost say the moral certainty, that some other noble Lord, bolder and more consistent, might carry out still further the principle upon which he had founded this particular measure. He could see no line of separation between the removal of this prohibition, and the infringement of the remainder of the existing law. This table inclosed that which he had always been accustomed to consider holy ground. It guarded the purest affections and holiest 1525 charities of domestic life, and neither the noble Earl nor any one else could show what portion of that ground would remain unviolated and unpolluted if that fence were once broken down. He hoped that their Lordships would earn a fresh claim to the gratitude of the country by rejecting this proposition by a still greater majority than on the former occasion, as the present measure was open to greater, to more numerous, and graver objections than the last. At all events he must express his decided protest against a Bill fraught with infinite danger to the country and to society.
§ EARL GREY
said, he could not help reminding their Lordships that, during this long debate, no one had attempted to controvert the two important points established by his noble Friend (the Earl of St. Germans). He had listened with the utmost care to the speeches of the noble Lords and right rev. Prelates who opposed this Bill, but not one of them had ventured to say that a clear and express prohibition of those marriages in so many words was to be found in the Word of God. It had been admitted, indeed, by the right rev. Prelate who spoke first (the Bishop of Oxford) that such a passage could not be found, and that it required care and study to elicit that prohibition from the Word of God. The other Prelates had since taken the same line, and had agreed that this prohibition was matter of inference—no one had said that the prohibition was laid down in so many words. No one had ventured to deny that the view held by those who supported this measure had been taken by other persons in the Christian Church who were entitled to the greatest weight. No one ventured to deny that the permission these marriages had been advocated in our own Church by Prelates of the highest character, by a large body of the local clergy, and by Commissioners appointed by the Crown to inquire into the subject, all of whom had come to the conclusion that these marriages had not been prohibited, and that the prohibition was mischievous, instead of being advantageous. It was not denied that in every other Protestant country in Europe these marriages were not prohibited. Neither had it been denied that even in Roman Catholic countries, as well as in Russia, they were lawful in certain cases, and in the United States were not only permitted, but approved and commended as socially beneficial. Moreover, no one had shown that the people of 1526 this country were in favour of the law as it now stood—on the contrary, it was notorious that in the lower ranks of English society our prohibitory law was almost daily violated, or, worse still, made an excuse for the indulgence of concubinage. It was notorious, too, that the wealthier classes evaded the law by going to a foreign country, where such unions could be legally contracted. These facts not being denied, he would ask their Lordships, was it not an infringement of Christian liberty and a violation of the rights of conscience to impose on members of our own Church and upon the Dissenters, a restriction which they did not admit to be warranted by Scripture? The reasoning of the Lord Chief Justice, in relation to the marriage of the Duke of Sussex, did not justify the conclusion sought to be drawn from it, and it was, to say the least, extremely unfortunate that the noble and learned Lord should have extra-judicially, and without hearing the arguments of counsel, have committed himself to an expression of opinion which must detract from the weight of any legal judgment he might hereafter have to pronounce on this question in a court of law. The principle of this Bill being that the restriction on a man's marrying his deceased wife's sister ought to be relaxed, in accordance with Parliamentary usage and without pledging himself to the details of the measure, he should on these grounds vote for its second reading.
THE BISHOP OF EXETER
said, he should not have thought it necessary to address the House, even after the singular honour done him by the noble Mover in answering a second time a speech of his delivered several years ago, but for some observations which had fallen from the noble Earl who had last addressed their Lordships. The noble Earl had said that there was no ground whatever for holding that these marriages were prohibited by the law of God. Now he (the Bishop of Exeter) would inform the noble Earl that it had from the earliest ages been the doctrine of the Church that they were prohibited by the law of God. The law of the State had taken up and had adopted the affirmation of the Church on the subject; and by its statutes had affirmed that such marriages were contrary to the law of God; that they were incestuous as well as invalid; and as this had been the universal case from the earliest ages, surely it was some evidence that these unions 1527 were contrary to the Divine injunction; and the opposition to their legalisation was founded on the universal voice of Christendom from primitive times. It was not correct to say that no other Protestant country in Europe forbad them, for they were as obnoxious in the Protestant Cantons of Switzerland, with the exception of Neufchatel, which was under the influence of Prussia, as they were in this country. All the Greek Church was opposed to those marriages; and the Greek Church bore witness of what was the common doctrine of Christianity before the separation of the Western and Eastern Churches. The Roman Catholic Church also held that those marriages should not be celebrated. It was said that that Church had granted dispensations permitting marriage with a deceased wife's sister; but what was the question raised at the time of Henry VIII.'s proposal for a divorce from his first wife? The point was, whether the Pope could dispense where a matter was thought to be clearly contrary to the law of God? The greatest Universities of Europe, the canons of the Church, the University of Paris, and the English Universities, almost unanimously declared that the Pope could not dispense where the matter was contrary to the law of God; that he could dispense where the case was simply one of prohibition by man, but that the prohibition then under consideration not being one by man, but by God, it could not be dispensed with. Then, as to legal authorities, in a celebrated suit in which a wife applied for a divorce against her husband, on the plea of adultery with her sister, Lord Thurlow made use of the remarkable words, that as the reasons for allowing a man to separate from his wife on the ground of adultery was that he could not live longer with her without degradation, so the wife in that case could not continue, without the like degradation, with a husband who was proved to have committed incest, and ought, therefore, to obtain the remedy for which she prayed.
After a few words from Lord CONGLETON in opposition to the Bill, and from the Earl of ELLESMERE in favour of it,
§ THE EARL OF ST. GERMANS
replied, and observed on the inconsistency of the opponents of the Bill in founding their resistance to it on the Mosaic law, though it was notorious that the Jews who lived under that dispensation had never interpreted in the sense of prohibiting mar- 1528 riage with a deceased wife's sister. Among the Jews such a marriage had always been respected.
§ On Question, that "now" stand part of the Motion, their Lordships divided:—Content 24; Not-Content 43: Majority 19.
|List of theCONTENTS|
|Grey||Saye and Sele|
|List of the NOT CONTENT.|
|Bantry||Colville of Culross|
§ Resolved in the Negative; and Bill to be read 2a on this day Six Months.
§ House adjourned to Monday next.