§ Order of the Day for the Second Reading, read.
, in moving that the Bill be now read the second time, said, he believed he had taken a somewhat unusual course in privately requesting the attendance of those Members of I the House whom he believed to be I friendly to the measure. Whether the same course had been pursued on the other side he did not know; but he trusted it would not be implied that this was regarded as a party question, for, in common with the noble Duke opposite (the Duke of Richmond), he strongly deprecated such a view of it. He had now the honour of presenting to their Lordships the first measure of importance which had come up from the House of Commons during the present Session. It had passed that House by a large majority, composed of Members sitting on both sides of the House; and last year the majority in its favour was still larger, and nothing but the lateness of the Session prevented it then coming before their Lordships. The House would, he was sure, give due though not excessive weight to the fact that the Bill had been approved by a very large majority of the House of Commons, as also, to the circumstance that the signatures of the Petitions presented to the House of Commons in its favour exceeded 25,000, while in this House there had also been a considerable number of such Petitions. It was now many years ago that he had had the honour of bringing forward in the House of Commons and of carrying on the second reading a Bill with the same object, and he had long given much attention to the subject. Hence it was, he presumed, that he had been requested to take charge 896 of the present measure—though he thought the task would better have devolved on some noble Lord who could have approached the question as a new one, and could have regarded it with more distinct reference to present circumstances. Now there was, at starting a feature which distinguished this from questions which ordinarily came under the consideration of their Lordships—namely, the fact that part of the opposition to the measure was founded on a deep religious conviction in the minds of many persons that marriage with the sister of a deceased wife was wrong in the sight of God. Such a conviction he could not but respect, nor could he hope to shake it by any eloquence or arguments at his command; but he had a right to demand that such a doctrine should not rest on inference or deduction, but on an utterance as distinct as I that which pronounced the Decalogue on Mount Sinai. The religious objection ought to be proved clearly and distinctly, and if their Lordships believed that marriage with a deceased wife's sister was emphatically and unmistakably forbidden, they would, of course, be bound to vote against the Bill; but if they had no such profound conviction, he would remind them that constructive sins were no better than constructive treasons. No just man would impose disability and misery on other men if he merely thought a thing to be right; it was necessary that he should know it to be right on absolute and unshakable authority. He did not, in saying this, imply that the Levitical law was in no way binding, for that great code was in harmony with the convictions of universal morality, but it must be taken with the limitations of circumstances, time, and place; it did not pretend to speak to the whole of mankind, and if construed in a vulgar and literal sense, it lost all its real beauty and meaning. On this question nature was indifferent, and custom was variable and arbitrary. Nature was surely indifferent, for who professed to regard this union as one from which the general nature of mankind recoiled? There lingered, indeed, the notion that, man and wife being "one flesh" the position of the husband and wife was such that all the relationships of the one were the relationships of the other. To extend this notion, however, to the connections of the wife after her 897 death, and when the tie—whatever it might be—was broken, seemed to him to be the very extravagance of analogy. That theory, no doubt, once had considerable power; but their Lordships would be much more imaginative than he expected if they allowed themselves to be guided by it. As to custom, it would be impossible to find a case where it was more amusingly at variance than the custom of marriage. He was authorized by one of the highest authorities among the Hebrew community in this country, a scholar and a doctor, to assure their Lordships that up to the time of the coming of our Lord there was never the slightest dispute or doubt in Jewish tradition as to the interpretation of the verse in Leviticus so often cited; that the interpretation which had been put upon the words "during her lifetime" was inadmissible; and that the prohibition of marriage with a wife's sister had always been regarded by the Jews as limited to the wife's life, marriage with a deceased wife's sister having always been, and still being, allowed among the entire Jewish community wherever they were spread over the face of the globe. With regard to the Christian dispensation, he was not inclined to lay much stress upon the circumstance that little or nothing was heard of the matter for the first three or four centuries. He did not think the supporters of the Bill were entitled to infer that there was any definite opinion on the subject, nor had its opponents the right to infer that there was any absolute custom. One opinion on which much stress was laid was a letter of St. Basil, of great interest even from an antiquarian point of view, and the date of which, according to the best authority, was A.D. 370. St. Basil there went fully into the question, and condemned these marriages. But their Lordships must remember the spirit and temper which had grown up in the Church with regard to marriage at that period. At that time the view taken of marriage in the Christian Church had become very much disturbed and distorted from the original Christian idea of marriage. The letter of St. Basil, indeed, was subsequent to the decree of the Council of 305, which absolutely prohibited the marriage of the clergy, and sought by every means to control and discourage the sacred state of mar- 898 riage, marriage with a deceased wife's sister being placed under penance. St. Basil's letter, therefore, was merely a symptom of the temper of the Church, which led it from one absurdity to another, until the Emperor Theodosius decreed that cousins german who married should be burnt alive, while the Emperor Justinian issued a decree inhibiting the marriage of a godfather and godmother or godson and goddaughter, and even of two persons who had stood in these spiritual relationships to the same child. When this fanaticism against marriage possessed the Church, and it went from one extravagance to another, what was the consequence? Dispensations had to be resorted to as the only way of mitigating them; and when once that custom had been established it was felt to be one too comfortable and profitable to be readily given up. The restrictions therefore continued, dispensations becoming more and more frequent, and the fruits of them greater and greater, till the abuse reached such a height that it conduced in a great measure to the success of the Reformation. Then occurred that peculiar incident which made marriage with a brother's wife one of the turning points in the history of our country. During the first 20 years of the reign of that determined Sovereign Henry VIII., if any of their Lordships had held that opinion on marriages of affinity which some of them would by their votes against this Bill express to-night, he feared that even the wisest and best head among them would not have been secure on his shoulders. Subsequently, no doubt, that opinion became one which might be safely held—it became the law of the land, and marriages of affinity were declared as illegal as those of consanguinity afterwards, during the reign of Philip and Mary. The law against marriages of affinity was abrogated, and these marriages were declared to be legal. Did their Lordships suppose that had there been issue of the marriage of Henry and Catherine of Arragon or, at a later date, of the marriage of Philip and Mary, any doubt would at this moment have been entertained of the validity of marriages of affinity? But history took another course. Elizabeth came to the throne—that great Queen was the daughter of Anne Boleyn—and the whole current of legislation on this question was changed and ran 899 dead against the validity of marriages of affinity. Hence the source, and the only source, of the present state of our law. He would not rest much weight on the question whether these marriages were voidable or void, for he believed they were absolutely illegal, though the peculiar constitution of the Ecclesiastical Courts, to which they were submitted, was such that no suit could be instituted, after the death of any of the parties; so that, if no suit was instituted during their lifetime, it was supposed that these marriages were legal, and the issue legitimate. He did not attach any value to that view; but why was it that, while all other relationships of consanguinity or affinity were held so sacred by the English people that no advantage was generally taken of this loophole in the Ecclesiastical Courts, such advantage was largely taken in the case of marriage with a wife's sister? The obvious reason was that the latter was not repugnant to the minds of the people of England. The time ultimately came when precise legislation appeared necessary, and Lord Lyndhurst's Act was passed, which provided that if within two years no proceedings were taken existing unions of this kind should be deemed valid, but absolutely prohibiting such marriages for the future. He was aware that it was frequently said—and he was sorry to say believed by many, that the motive of that Act was to decide the succession of one of the most distinguished families in their Lordships' House. He did not think that this was the case; at any rate, too much was made of that circumstance, for the subject operated much more widely than for one family. But the very fact that one of the greatest families in the land, distinguished for the purity of the life of its members, shewed that these marriages were not repugnant to the religious or social feeling of the people; for it could not be supposed that this family, holding so high and conspicuous a position, would take a course entirely exceptional to the feelings of the people on the subject—in fact, they were actuated by the same feeling as the poorest and humblest citizens. But if that was their Lordships' decision on a Bill that was purely retroactive in its character—that legalized all marriages of this nature for two years before its passing and rendered them illegal for all time to come—a measure 900 so opposed to all principles of justice and religion—could they for one moment pretend to doubt that the Bill which he then had the honour to bring before their Lordships did more than to confirm, extend, and apply that Act to the desires and hopes of the British people? Lord Lyndhurst's Act, however, unreasonable as it was, did nothing whatever to check these marriages. They went on just as much as ever; and he could bring before their Lordships hundreds of cases which he had seen with his own eyes, some in connection with his own property, and in his own neighbourhood in the North of England, where the law was inoperative to prevent marriages, or where, if marriages did not take place, something worse occurred. That was the ordinary state of matters; it was going on to the present day, and it would continue to go on till they altered the legislation of the country. Nothing that their Lordships could do in the way of prohibition would prevent, it would only aggravate the evil. He asked their Lordships to picture to themselves the case of a person in their own rank, and with their own education, who desired to form an alliance of this kind. He has lost his wife—he found the society of his wife's sister most agreeable—perhaps all the more agreeable because they were bound together by the ties of a common sorrow and a common love for her they had lost. He knew, from his long knowledge and intimacy with her, that there was every prospect of their marriage forming a happy union. He goes to his clergyman for advice—to a learned divine of the Church of England, or, if he be a Dissenter, to a theologian so distinguished as the late Dr. Adam Clarke—and he is told by them that neither see the slightest difficulty to the marriage as a matter of religion, but that he must not do it according to law. Perhaps he goes to some still higher authority—to some member of the Episcopal Bench following the traditions of Hoadley and Whateley, and they tell him that there is no religious objection—that no reasonable man would think there is any objection—but that he must not do it on account of the law. He goes to his neighbour, perhaps to one so high in rank as the Lord Lieutenant of his (Lord Houghton's) county, who he trusted, would be found among the supporters of the Bill, or to any one of their Lordships, and there, too, he found no 901 objection other than the legal one—that there would be no social scandal in such a marriage, that he would not be worse received in society on account of it—but that he must not do it because the law forbade it. Now was that the position in which an English citizen ought to be placed—a position of animosity and hatred towards the law, in which he was backed not only by his own conscience, but by the conscientious opinion of the minister of his own Church—of the neighbour he most respected, and of the man he most reverenced? Was not that enough to make his blood boil, and make him wish that he were a Prussian, or, at least, an American, that he might not be subject to such oppressive legislation? Now, if such were the feeling of the man, he would show what the woman thought of this matter by reading a passage from a letter written by a lady, which was far more eloquent than anything he could utter—At the discussion on the 19th, the result of which is so anxiously anticipated as bringing life or death, happiness or misery to so many in our land, statistics will no doubt be read as to the hundreds who have married in spite of the present prohibition; but statistics cannot tell of the many who, like myself, have not found that prohibition a protection in any sense, but who have banished themselves from their only home, and the children dearer to them than all this world, rather than act contrary to the law which forbade that home to them.Whatever might be their opinions, their Lordships must certainly regard this letter as the utterance of a broken heart. This being the position of a man and woman in England, what was it in relation to our great colonial Empire? Our Colonies had passed Act after Act legalizing these marriages; but the Colonial Office had been obliged by the law of this country to disallow them. In South Australia last February the Standing Orders were suspended in order that such a measure might be carried before the Assembly was dissolved; but his noble Friend (Earl Granville) would have to exercise a veto on that Bill if the present Bill were rejected by their Lordships. Our dependencies—for a reason he could not exactly understand?—were better off than our Colonies, for such marriages had been legalized in Ceylon by an Act which the Colonial Office had not disallowed. When people were driven from all other objections to 902 this Bill they usually fell back on the "social" argument, and, among other pleasantries to which the Bill had given rise, a humorous Friend of his called it a Bill for the abolition of aunts. Now, he highly respected that social relationship, but he did not believe any injury would arise from transforming many an affectionate aunt into a still more affectionate stepmother. He would not refer to foreign countries, for it might be said that they had different manners from ours, but he would point to the New England States. Where was there a society better representing all that was purest and most religious in this country than the higher classes in New England? Now persons well entitled to speak on this point would assure them that, so far from any social inconvenience or disorder accruing in New England from a union of this kind, it was deemed one of the most healthful, one of the wisest, and one of the most pious unions that a man could contract; while, in cases where it was not contracted, there was not the slightest difficulty in the wife's sister remaining in the house, provided the gentleman were sufficiently respectable. That, of course, was at the bottom of the question; and, where a man and woman could be trusted, there was no more difficulty in social intercourse than at present existed with regard to cousins, or persons otherwise connected, as to whose relation there was never a thought of the slightest impropriety. This, however, was not so much a question for the higher class, among whom such unions were rare and might, perhaps, be numbered on the fingers; but for the middle, and above all the lower class, where they were frequent. It was difficult to obtain statistics; but they were undoubtedly frequent in certain portions of the country, while through some singular variety of custom there were portions where they were rare. In the North of England they were so frequent and habitual that the House would be inflicting a very serious injury upon the morality of the country if it allowed those hundreds of persons every year to go on in this relationship, breaking at once the laws of God and of man. The Bill itself was of the simplest character, for it did not touch on the religious question, and merely provided that such marriages celebrated or contracted in the office of any registrar should be 903 legal. He perfectly concurred in that limitation, for as long as the least religious difficulty was felt by any Bishop or priest it should be respected. While, however, religious convictions should be respected, their Lordships' peculiar notions of what was deemed proper and advisable should not be thrust on others in a matter which affected the domestic happiness of thousands below them in social rank. The question was not whether their Lordships regarded these marriages as wise or expedient, but whether they had any right to prevent this large number of persons, mostly of a social class lower than their own, from contracting them. If they rejected the Bill they would prolong this uncertain state of the law, and would to a great degree sanction the concubinage which resulted from it, while they would not in the slightest degree arrest what they deemed an evil. On the other hand, if their Lordships should see the slightest weight in his arguments, if they would allow themselves to be influenced, by the arguments of those of much greater authority than himself who would afterwards address them, and pass this Act, they would restore a harmony between the law and the conscience of many exemplary citizens; they would restore a fair fame to many honest women, and peace and happiness to many homes.
§ Moved, "That the Bill be now read 2a."—(The Lord Houghton.)
§ THE DUKE OF MARLBOROUGH
, in rising to move that the Bill be read a second time that day six months, said he could assure the noble Lord (Lord Houghton), who had deprecated that this should be made "a party question," that no sort of endeavour had been made on his side of the House to give this debate any such character. It was well known, indeed, that the noble Lord was privately using the best means he could to make known to his Friends the nature of his Motion, and that the Division would be taken that night, and on this (the Opposition) side steps were simply taken to notify the date when the Bill would be discussed, unaccompanied by any solicitation to come up and vote or any attempt to influence votes accompanying that intimation. He was glad to be able to feel that this was not made a party question, for the issues it involved were too numerous and too important to be merged 904 in the turmoil of party politics, or treated in other than the calmest spirit. The Bill, of which the noble Lord had just moved the second reading, was, he must admit, a great improvement in one respect from that introduced by the noble Lord in 1859, than which none would have been more fatal in its consequences, the operation of that Bill being confined to England, so that it would have allowed a man two wives in Scotland and Ireland and only one in England. He did not regard this as a question for deep religious research, nor would this be the fitting place to discuss the various interpretations of the Divine law. He (the Duke of Marlborough) was unwilling to follow him at any great length into that region of controversy. It was not the occasion to discuss the various interpretations that had been, or might be, put upon certain passages in Leviticus; and in the brief reference that he should make to these points his only object would be to prove that not one sect or denomination only, but all branches and sects of Christian denomination had held the same opinion on this subject since the foundation of Christianity. But he wished, in passing, to point out a fallacy in what had recently teen said by the First Lord of the Treasury, in giving in his adhesion to this Bill. The right hon. Gentleman's opinion had changed on this, as on so many other questions, and in announcing that change he had put this difficulty, as one among other causes that had induced him to reconsider the matter—namely, that the difficulty of enforcing the law of one denomination upon the members of other denominations who deny its authority is very great. Now, he (the Duke of Marlborough) wished particularly to point out that this was not, and never had been, the law of one particular denomination only. It was admitted by all that the laws of this country had, from the earliest times, been based upon Christianity, and so far the law of the Church and the law of the land went hand in hand; but the union that existed between them sprang from their common foundation in the Christian faith. Now, in all ages, the opinion of the Church on the question of marriage with a deceased wife's sister had been explicit and unmistakable. The Canons of Basil were clear in their opposition to it. The 78th canon, referring to penalties, said— 905Let the same form be observed in those also who marry two sisters, although at different times.The noble Lord (Lord Houghton) had urged that, in the days of Basil, the most absurd notions as to marriage and the celibacy of the clergy were being adopted, and that this unsettlement of opinion gave his judgment but little weight. Were not men's minds, however, unsettled now, and did we not see extraordinary licence in Prussia and America? The same argument, therefore, which shook the authority of that Father of the Church would make the opinions of worthies of our own day equally untrustworthy. The noble Lord had treated this as a doctrine peculiar to the Roman Catholic Church; but at that time such a Church could hardly be said to have existed, though the Church was, no doubt, lapsing into some of the doctrines now distinctive of Roman Catholicism. He would proceed, however, to quote the opinion of a Church which set itself up as one of the purest and most reformed Churches on the Continent—that of the Waldenses. The Rev. Dr. Revel, Moderator of that Church, said—As to the principles maintained by our Church respecting marriages between brothers and sisters-in-law they are those which we find in the Holy Scriptures on marriages between relations. Our Ecclesiastical Discipline, reviewed in 1839, says—'Marriages between brothers-in-law and sisters-in-law, uncles and nieces, aunts and nephews, and between relations at one degree more nearer are forbidden.' I find this same prohibition in the acts of the Synods of 1833, 1828, 1801, and 1879. Our civil law does not permit alliances between a brother-in-law and sister-in-law—that is to say, between a widower and the sister of the deceased wife, no more than between a widow and the brother of the dead husband.Turning to the Church of Geneva, he found that the 9th decree of the Synod of Vertueil, held in 1567, and drawn up by Calvin, put the question—"What are those cases of affinity which hinder marriage?" The answer was—Let no man marry his brother's widow, nor any woman him who was her sister's husband.The Lutheran divines of Germany, in reply to the inquiry of Henry VIII., said—It is manifest and cannot be denied that the law of Leviticus xviii. prohibits a marriage with a sister-in-law. This is to be considered as a Divine, a natural, and a moral law, against which no other law may be enacted or established. Agreeably to this, the whole Church has always retained this law and judged such marriages incestuous.906 As to Holland, the translators appointed by the Synod of Dort in 1618–19 inserted this marginal note to Leviticus xviii., 16—From this law it necessarily follows that a woman who has been married with one brother may not, after his death, marry with another brother; and, upon the same principle, a man who has been married to one sister may not, after her death, marry the other sister.That Church, according to Dr. Livingstone, had never deviated from this rule. The ninth canon of the Book of Discipline of the Reformed Church of France, adopted in 1559 and revised by 23 succeeding synods, stated—It is not lawful for any man to marry the sister of his deceased wife; for such marriages are prohibited, not only by the laws of the land, but by the Word of God.The law of the Church of Scotland was equally distinct. Its Confession of Faith, drawn up in 1645, said—Marriage ought not to be within the degrees of consanguinity or affinity forbidden in the Word: nor can such incestuous marriages ever be made lawful by any law of man, or consent of parties, so as those persons may live together as man and wife. The man may not marry any of his wife's kindred nearer in blood than he may of his own, nor the woman of her husband's kindred nearer in blood than of her own.These extracts were important as showing that it was not merely the Roman Catholic Church, or the Church of the early ages, or the Jewish Church, which placed this interpretation on the law of Leviticus; but the universal consensus of the whole Christian Church was that there was a Divine prohibition against these marriages. Having noticed these authorities he turned to the arguments used by his noble Friend. The noble Lord (Lord Houghton) made some rather severe comments on the Act of 1835, and gave rather a curious interpretation of it. If he understood the arguments of the noble Lord it amounted to this—that the Act of 1835 sanctioned what was now proposed. The noble Lord drew the picture of a family remarkable for high position, great integrity, and virtue, and he said that the Act of 1835 was passed to legalize a marriage contracted by the head of that family. Now, he did not think his noble Friend was altogether correct in the history he gave of the Act of 1835. In the first place, if the marriage to which he alluded had not been questioned in the lifetime of the parties, the Act of 1835 would not have been required. Then 907 the noble Lord used rather a stock-in-trade argument—for he had heard it before—when he turned to the right rev. Bench, and asked whether any of its Members who had supported that Act believed they had sanctioned the gross immorality of these marriages. But the Act merely said that those marriages which had been solemnized before the Act should not be questioned, for the sake of the issue of them; and the Act declared its own intention and effect—that for the future all marriages of that kind should thenceforward be illegal and void. What were the arguments the noble Lord used in favour of his measure? He confessed he had scarcely been able to follow them. He had listened with pleasure to the well-rounded periods of his noble Friend, but failed to discover in his eloquent address any cogent reasons for the measure proposed. The noble Lord said the poorer classes desired these marriages; and he committed a rather remarkable slip upon this point—for he adjured their Lordships to pass this Bill rather than compel the poorer classes to continue "to break the laws of God and man." He certainly thanked the noble Lord for that admission. But he must observe that if they were to legislate to prevent immorality among the poorer classes, he feared they must go a good deal further than the measure of the noble Lord. He did not desire to throw any stigma upon the whole body of the poorer classes, because he was convinced that there were among them as high intelligence and honour as were to be found in the higher classes; but from the education of the former, their associations, their circumstances, and, perhaps, the narrowness of their dwellings, their ideas of morality were more lax, and if legislation was to be conducted with a special regard to them it would have to be of a very different stamp from this Bill. But was it the case that the poorer classes did require this measure? The Commission which sat on this subject in 1847 reported that there were 1,608 cases of these marriages, that only 40 were among the poorer, while the remainder were among the richer classes. The origin of this measure was well known. It did not originate with the poorer classes, but with a small body of rich individuals who had knowingly violated the law, and were now asking not only 908 that the past should be condoned, but that these marriages should be declared legal prospectively. His noble Friend had paused very slightly on the social aspect of the question; and he had shown great discretion in doing so, because it was to the social consequences of the Bill that the most serious attention must be directed. Viewed in this respect, he could not but feel that this Bill was a bold and most dangerous stroke of legislation. Since the first attempt had been made to legalize marriage with a deceased wife's sister, it should be remembered that a great change had taken place in the law of divorce in this country, and, instead of being confined to the wealthy classes, the very humblest persons were now able to obtain release from the marriage tie; and if divorce, which was previously within the reach of only a few, had now become, as it were, a legalized institution, why might a man not marry the sister of his divorced wife? Would there be no shock to public morality if that occurred? If a man might marry his deceased wife's sister, why should he not marry seven sisters in succession? Men had all kinds of tastes; but it would not be a pleasant spectacle to see a man taking sister after sister, having got rid of the former ones either by death or divorce. Again, if a man might marry his deceased wife's sister, why might he not marry the mother of his deceased wife? Why might not a man marry the daughter of his wife by a former husband? It was not unusual for two brothers to marry two sisters; but then suppose that one of the brothers became a widower and one of the sisters a widow; then the existing brother might marry his dead brother's wife, and thus do that very thing against which there was a strong and special prohibition in Holy Scripture? His noble Friend might say that no one now asked for legislative sanction for such alliances, nor ever would ask for it; but he (the Duke of Marlborough) said in reply that the reason they were not asked for was, that the tone of public opinion had been kept pure by the legislative prohibition that had hitherto existed; but that, if any exception were now to be made, no one had the right to conclude that the first success obtained by the movement would not be made the standing point for further innovations. If 909 this Bill should be passed, a few Sessions only would elapse when other Bills would be introduced to extend still further marriages between persons of other degrees of affinity. What was the state of things in Prussia? Why, in Prussia, marriage between an aunt and a nephew was permissible, and the divorces in Prussia in three years numbered 7,800. Then there was that remarkable country on the other side of the Atlantic, which Members of the other House were so fond of quoting when they desired any radical change to be made in our home institutions. A strange state of things had grown up there in consequence of the prevalent lax notions of marriage. He found in a pamphlet, published by the noble and learned Lord on the Woolsack some years ago, a letter from a clergyman in America, stating that the law and usages of the different States were exceedingly diverse, and in many States divorces were common on account of the most trivial causes. The writer of the letter went on to relate a story of four couples in a dance, and of each man seeing before him a woman who had been his wife, but who had become the wife of another. But "our American cousins" had rather a ludicrous way of putting things, and he had fallen in with an extract showing the effect of the lax notions respecting marriage in America. He believed the extract was taken from an American newspaper, and it was as follows:—I married a widow, who had a grown-up daughter; my father visited our house very often, fell in love with my stepdaughter, and married her. So my father became my son-in-law, and my stepdaughter my mother, because she was my father's wife. Some time afterwards my wife had a son; he was my father's brother-in-law and my uncle, for he was the brother of my stepmother. My father's wife—i. e., my stepdaughter—had also a son; he was of course my brother, and in the meantime my grandson, for he was the son of my daughter. My wife was my grandmother, because she was my mother's mother. I was my wife's husband and grandchild at the same time. And, as the husband of a person's grandmother is his grandfather, I was my own grandfather.It was added that the man destroyed himself, and the verdict was justifiable suicide. There was one point in the Bill deserving their Lordships' most serious consideration, and on which his noble Friend laid particular stress, stating that he did not desire to violate the religious feelings or scruples of any body of clergymen who might object to per- 910 form the marriages which it was the purpose of the Bill to legalize. Their Lordships were aware that marriages were performed in two ways in this country; one way was by civil contract before a registrar, and the other was by a religious service in a church or chapel. The Bill before the House adopted the former method—that was to say, that marriage with a deceased wife's sister should be by civil contract. He thought their Lordships would agree with him that that was one of the most objectionable provisions in the Bill. If the particular marriage in question was deemed a proper one, it ought to be legalized; and if legalized, it ought to be legalized in such a way as to make it compulsory on the clergy to solemnize them. But if the present Bill were adopted, the effect would be that the character of those marriages which had hitherto been entered into by civil contract, would be lowered in a most objectionable manner, and a slur, from which they had hitherto been free, would be cast on them. He had a communication from the Registrar General, whose feelings on this subject, he believed, were strong, and who affirmed that about 8,000 marriages were contracted annually before the registrars, and that up to the present time no slur had been cast on them. He believed, but he was not quite certain, that in the formation of the Divorce Court an endeavour was made to provide that marriages of divorced persons should take place before the registrar; but it was abandoned, because it was thought it would have the effect of degrading marriages by civil contract. The operation of the present Bill, if passed into a law, would, there could be no doubt, tend seriously to depreciate the character of those marriages, and he repeated that he regarded the particular provision of the Bill to which he had referred as most objectionable. He earnestly hoped that their Lordships would not give their sanction to this measure; for whatever might be said in its favour—and the arguments for it were few—there were hundreds and thousands of persons in the country who would view the change in the law now proposed with the greatest possible regret and repugnance. If they once opened the door to such changes in the law they would bring down the morality of the country from that high and 911 exalted position which it had hitherto occupied in the scale of nations. He moved that the Bill be read a second time that day six months.
§ Amendment moved to leave out ("now") and insert ("this day six months.")—(The Duke of Marlborough.)
§ THE MARQUESS OF LANSDOWNE
said, he hoped their Lordships would allow him to state briefly his reasons for supporting the present Bill. The arguments applied to the principle of the Bill now before their Lordships were drawn from religion, from history, and from natural laws. He did not mean to enter at length upon the religious argument; but would content himself with saying that those who opposed the Bill on religious grounds rested, their objections mainly on a disputed text. The reading of that text was anything but clear; but were it ever so well ascertained, he should object to an appeal to its authority, upon such a question as that now before the House, from the belief that a large section of the community would, where such issues were at stake, be reluctant to admit that they were tied and bound by the merely literal interpretation of the Levitical law. With regard to the historic argument, he did not believe that any rule could be drawn from such ancient periods as the early ages of Christianity in legislating for the 19th century. With regard to what were called natural laws, he would certainly not propose that marriages between men and women were to be regulated solely by the laws and demands of physiology; but he felt that, while on physiological grounds there was a strong objection to marriages of consanguinity, such as those of first cousins, that objection could not be applied to the relation of brother-in-law and sister-in-law. It was not, however, upon these grounds so much as upon moral grounds that the measure was opposed, and it was the social argument with which they had to deal. It was said that if we were to alter the existing Marriage Law we should so disturb the relations which now existed within the family as to alter the position which the sister-in-law now occupied, and render her no longer useful, in the sense in which she hitherto had been useful in the family. He did not think this had been at all satisfactorily made out. 912 He would ask their Lordships to consider to what extent the position of the sister-in-law was really affected by this Bill. The passing of an Act of Parliament could not alter public opinion; and if a large section of society honestly believed that marriage with a deceased wife's sister was wrong, they would still continue to believe that it was wrong, and would therefore be unaffected by this Bill, which was merely permissive. They were told that it would be impossible for the sister-in-law to remain in the house of her sister without exposing herself to obloquy; but he thought the feeling referred to was largely based on ungenerous prejudice, and he conceived that it was not for Parliament to consider or to legislate in favour of such narrow feelings or petty animosities. As to the argument that the proposal contained in the Bill was inconsistent or dangerous, or both, and that this was the thin end of the wedge, which would be pushed further in future Sessions, to the legalizing of marriage between other relations, he had to observe that, while the number of Petitions presented to Parliament showed that there was a great desire that this Bill should become law, there had not been Petitions in favour of the marriage of other relations. The desire which existed for the legalization of the particular marriages sanctioned by this Bill had not been manifested in favour of other marriages between persons related by affinity; and it was by this fact that the apparent inconsistency of the Bill, in not legalizing all marriages, except those between blood-relations, was to be explained; there could, at all events, be no reason for refusing to pass this Bill upon the ground that it did not ask enough, unless upon the assumption that it was fair to refuse a man bread because he asked for a half a loaf instead of a whole one. The noble Duke (the Duke of Marlborough) had said that the passing of this Bill would lower the character of civil marriages; but he (the Marquess of Lansdowne) could see no reason whatever for supposing that such would be the result. The objections urged against the Bill were not such as to justify their Lordships in rejecting it; and, looking to the slight disturbance which it would occasion on the one hand, and to the fact that, on the other hand, it would place wives in a satisfactory position, legiti- 913 mize their children, and promote the happiness of families, he should vote for the second reading.
THE BISHOP OF ELY*
said, he must crave the indulgence of the House if he entered somewhat at length into the religious principle of this Bill. He admitted that the Bill came before the House in a form different from that in which it had come before it hitherto. It did not propose to compel a clergyman or any minister of religion to solemnize these marriages. He was glad that this was therefore no longer a Church of England question; but still it was a great moral and a great national question. And the very fact that he himself was in this House—the fact that, from the earliest times of the nation, Prelates had in great numbers sat in this House, and even in those earliest times had sat side by side with the Earl or Ealderman in the Courts of Justice of the land, was a symbol and a proof that English legislation in moral questions was intended to rest upon Christian and Scriptural principles. On these grounds he ventured to place before their Lordships the religious view of the question, and he thought it the more needful to do so, because, in the many pamphlets which had been circulated by the advocates of this Bill, it had been quietly assumed that the religious argument had been entirely abandoned by its opponents. Now, the Church of Christ in all ages had held that the moral law of the Old Testament was the moral law of the New Testament, and still the moral law of the Christian dispensation. It was a great mistake to suppose that Christianity had relaxed any portion of the moral law. On the contrary, the whole teaching of the New Testament, and especially of Him whose name he scarcely ventured to mention there, was not to relax but to raise and spiritualize and intensify the moral law. It had been said by the noble Marquess (the Marquess of Lansdowne) that the objections to the Bill rested on the interpretation of one or two doubtful texts. But he (the Bishop of Ely) contended that the existing law rested on the general tenor of the law of the Old Testament, confirmed and re-enacted in the New, and that the arguments for the repeal of that law were those which were really deduced from two doubtful texts. With regard to the famous 18th chapter of 914 Leviticus, its principle was to forbid certain marriages which were common among the Canaanites, and which are condemned as defiling the land. The interpretation of that chapter must, in some cases, inevitably be inferential, as all the degrees of consanguinity and affinity within which it is unlawful to marry are not enumerated, but interpreters have uniformly agreed that parity of reasoning must govern our understanding of it. For instance, there is no prohibition of marriage between a father and daughter, nor between an uncle and niece; but as there is prohibition of the marriage of a son with his mother and of a nephew with his aunt, it is inferred, as a matter of course, that the parallel cases of father and daughter, uncle and niece, are by parity of reasoning included in the prohibition. The same is the case with regard to a wife's sister. The prohibition is inferential, not direct. In verse 16 it is forbidden to marry a brother's widow, and in verse 14 it is forbidden to marry an uncle's widow, because "she is thine aunt." It is therefore incontrovertibly concluded that a wife's sister, being the same relation as a brother's wife, and a still nearer relation than an uncle's wife, is comprehended in the prohibitions of verses 14 and 16. It equally follows, that if thine uncle's wife "is thine aunt," thy wife's sister must be thy sister. The re-affirmation of this general principle in the New Testament is familiar to every one in the words of John the Baptist to Herod—"It is not lawful for thee to have thy brother's wife." These, then, are the general principles of the Mosaic law, and on these, not on one or two disputed passages, the Christian Church in all ages has founded its table of prohibited degrees. Now, the objections which are thought fatal to this principle by the advocates of this Bill are really founded on two passages, which are doubtful at the best, but which, rightly interpreted, have nothing to do with the question. The one is the passage in Deuteronomy xxv. 5, which is commonly known as the lex leviratus, the law of brothers-in-law, and is supposed by some to be a formal repeal, as regards at least a particular case, of the law in Leviticus xviii. 16. It is said that "if brethren dwell together and one of them die and have no child, the wife of the dead shall not marry a stranger, but 915 her husband's brother shall take her to wife." Now, first of all, let it be observed that this, which is often treated as a later law of Moses superseding and virtually repealing the law of Leviticus xviii. 16, is in propriety no law of Moses at all. So far from, being a later law, the custom prevailed centuries before Moses was born. In all probability it was a custom either among the Chaldees or the Canaanites, and was not so much enjoined as permitted to the Israelites—just as facility of divorce was permitted, not because it was good, but, as we have infallible authority for saying, on account of the hardness of their hearts. We are told by Diodorus Siculus that it prevailed among the Indian, Persian, African, and some Italian races; and we first meet with it many hundred years before Moses, in the family of Judah, who had married a Canaanitish woman (Genesis xxxviii.). Moreover, even this concession is by no means certainly a concession that a brother, in our sense of the word, might marry his own brother's widow. The word "brother" in Hebrew is of very wide meaning, and the translators of the Bible have put as the marginal rendering "next kinsman." "Brother" in Hebrew is continually used for kinsman, and "sister" for kinswoman. The words, "If brethren dwell together," would, indeed, more naturally be understood of a family of kinsmen as distinguished from the "strangers" with whom it was forbidden to the Israelites to intermarry. In a very able and learned pamphlet, on The Marriage of Brother and Sister in Law, by Mr. Galloway, it is shown that the ancient Jews did not consider this lex leviratus as over-riding the prohibitions of Leviticus xviii, and that, in fact, the next of kin, to whom the widow was given, was not the brother, but some relation not so near to the deceased husband. This, then, is one of the disputed texts. Rightly understood it makes nothing for the advocates of the Bill. And be it observed that its disputed character does not shake our position at all, for we do not claim it, but simply refuse to concede it to our adversaries. The other disputed text by which our opponents strive to shake the testimony of Leviticus against marriage with a wife's sister is the famous 18th verse of the 18th chapter, the words of which in the common translation are, 916 "Thou shalt not take a wife to her sister to vex her, beside the other, in her lifetime." From this it has been inferred that after her lifetime a man might take his wife's sister to wife. Besides other objections to this interpretation, it may be observed that the words rendered "wife to her sister," or more correctly "woman to her sister," occur over and over again in the Old Testament, as does the parallel phrase "man to his brother," according as the antecedent is masculine or feminine, and that wherever else they occur they are, and must be, rendered simply "one to another." It is used sometimes of animated, sometimes of inanimate beings. Thus, in Exodus xxvi. 3, it is said five curtains "shall be coupled one to another," literally "woman to her sister." In Ezekiel i. 9; iii. 13, the wings of the living creatures are joined one to another, literally "woman to her sister." In Exodus xxv. 20 the faces of the cherubim were one towards another, literally ("face" being masculine) "man to his brother." So in Genesis xiii. 11, where human beings are spoken of, they are said to separate one from the other, literally "man from his brother." This was, then, an idiomatic expression of constant occurrence; and our translators, who were ripe scholars and who often put their most important renderings in the margin, have placed in the margin here "one wife to another," and have referred, in vindication of this translation, to Exodus xxvi. 3, where the same words must be rendered "one to another." The passage, therefore, is either prohibitory of polygamy, or else is to be joined to the verse immediately before it in explanation and amplification of that. At all events, then, the two passages from Scripture by which it is proposed to pull down the great Levitical fortress are at the best of doubtful interpretation. This being so, their Lordships will surely be slow to make an alteration in the law, which for centuries has been the law of universal Christendom. It is true that some stress is laid now on the dissent of certain bodies of Christians. The noble Duke who spoke second in this debate has shown pretty clearly how great consent there was in former times. It may perhaps be startling that now the Roman Catholics have come forward in advocacy of the measure which shall give civil sanction, to 917 these marriages of affinity. Probably most of us have seen an extract from, a letter signed by distinguished Roman Catholic Prelates to this effect. But surely oven their words may be claimed as against the lawfulness of these marriages. These words arc—"With us the impediment is diriment of marriage." It is therefore conceded at once that there is an unlawfulness in these unions. But then the principle on which the Roman Church goes is this—It is only in the direct line of descent that marriages are contrary to the primary law of nature, and eternally wrong. Other marriages, even of close consanguinity, must have been permitted in the earliest times, or mankind could not have been perpetuated from a single pair; and though afterwards not only marriages of consanguinity, as between brothers and sisters, but of affinity too, are forbidden by positive laws, yet where there is not an eternal moral principle involved, the Church can give dispensation. Still the admission, that generally the affinity between brother and sister-in-law is "diriment of marriage," is an admission of the normal unlawfulness of such marriages. Without presuming to argue with Roman Catholic Prelates on their view of dispensing power, we may fairly say, a marriage cannot be unlawful unless it be contrary to the law of God. In such a case there is no power to bind what has not been bound in heaven. And, on the other hand, if it be contrary to a Divine law, whether natural and eternal or positive and commanded, then we cannot believe that there is any power on earth which can lawfully dispense with it. It had been stated by the noble Lord who opened the debate, that the marriages which the Bill proposed to legalize were very numerous among the poor. In his experience, however, as having formerly worked much among the poor in very I large parishes—though he regretted to say that many descriptions of wickedness and other unlawful marriages, such as between uncle and niece, had often come to his knowledge—he had never met with one marriage with a deceased wife's sister among the poor. He was aware that in the public papers a hope had been expressed that their Lordships would give the Bill their assent, inasmuch as in doing so they would be only yielding to the judgment of the nation. He must, 918 however, deny that the nation had pronounced itself in favour of this Bill. There was, no doubt, a very rich and powerful minority which took great interest in the question, and which made itself loudly heard; but he must confess he had never seen anything of that general feeling which was said to exist. There was, at all events, one portion of the community to whose voice in such a case great weight ought to be attached, and the great majority of whom were strongly opposed to this Bill. He meant the women of England. No doubt some women of high character and refined feelings might be in favour of it; but he himself had never yet heard a woman advocate it. As for the hardship on the poor, he doubted its existence. It was comparatively very seldom that a poor man was tempted to marry his sister-in-law. In the humbler ranks of life women married very young, and generally a widower would have great difficulty in finding a sister-in-law unmarried. He would only say, in conclusion, that in no nation had homes been more sacred than in this country. There was a sacredness in the relation of husband and wife, of brother and sister, and of brother-in-law and sister-in-law, which could not be disturbed now without serious danger. He entreated their Lordships not to sanction a measure which would strike a blow at the purity and sacredness of English homes, and which would in the end not tend to produce happiness and comfort, but discomfort and trouble and sorrow.
THE EARL OF KIMBERLEY
hoped the House would permit him to say a very few words on the present occasion, being himself one who had formerly had charge of a similar Bill which had failed to pass its second reading, although it was lost by a majority of only 10. He was very unwilling and, indeed, quite unable to follow the right rev. Prelate who had just sat down (the Bishop of Ely) into his elaborate argument as to the interpretation to be put on the Scriptural texts which bore upon the subject. That the true interpretation of these texts was doubtful might, he thought, be very fairly inferred from the variety of opinions on the point, and he was sure the right rev. Prelate, high though his authority unquestionably was, would have the candour to admit that he did not regard his own interpretation as abso- 919 lutely correct. But, be that as it might, he (the Earl of Kimberley) was prepared in supporting the Bill to take his stand on broader grounds. He for one could not conceive how the code of law laid down in Leviticus could be considered as containing a moral law binding on men for all time. Let him take a case involving the highest considerations of morality by way of illustration of the absurdity of maintaining the contrary view. In Leviticus it was laid down that the adulterer and the adultress were to be put to death; but did any Christian country, he would ask, regard itself at the present day as being bound by that precept? The truth was, that there were certain things in the Mosaic law which were only applicable to the times in which they were enunciated. But passing over, without further comment, the religious aspect of the question, he would briefly advert to the arguments which were urged against the Bill, on social grounds, which constituted fair matter for discussion, and which might be stated without the slighest passion either on one side or the other. For his own part, he could not regard a Marriage Law as being founded on any safe basis unless it had the sanction of the general opinion of the people of the country in which it existed. In that vital respect it seemed to him our Marriage Law was deficient, seeing that there were so many persons who did not look upon it in respect to the point dealt with in the Bill as binding upon their consciences. It seemed to him that it was rather a question of social expediency than of moral law. He never, he might add, could see any great force in the argument derived from what the right rev. Prelate had termed "the sanctity of the home," in the case of a husband and his sister-in-law. Different persons naturally took different views of the subject; and for himself, notwithstanding what had fallen from the right rev. Prelate, he must contend that no man, at all events occupying the social position of their Lordships, could have a sister-in-law of his own age to live in his house after his wife's death without giving rise to scandal; nor did he think he would be able to continue such a relation for any considerable time. That being the fact he thought those who were in favour of the change had the best of the argument. It was contended 920 by the noble Duke opposite that if the present measure were to pass into law other and more objectionable marriages would in course of time have to be sanctioned. But he (the Earl of Kimberley) entirely denied that any such consequences must necessarily follow. As to the Bill being supported by a mere clique, as had been suggested by the right rev. Prelate, to promote their own personal objects, he would simply observe that it was far more likely that a measure which had so frequently been brought before the House of Commons, and which had so often been passed by that House, was one on which a large number of people throughout the country took a deep interest. There might be a small minority active in urging it forward, because no movement could be successful unless it had energetic leaders; but the Bill, he believed, was generally acceptable to the community at large, and he should greatly regret seeing it again rejected in their Lordships' House.
THE BISHOP OF RIPON
said, he must ask for the indulgence of their Lordships while he stated the grounds on which he should support the Bill; and he asked for it the more earnestly because it was his misfortune to differ from a majority of his right rev. Brethren, and also from many others whose opinions he greatly respected, and to whose judgment, if it were possible for him to do so, he would gladly bow. The first question which presented itself to his mind in connection with the particular class of marriages which the Bill proposed to legalize was—"What is the voice of Scripture with regard to these marriages?" If that voice had clearly and definitely spoken, if the "Word of God had prohibited these marriages, no human enactment could possibly make them lawful. Indeed, the mere attempt to do so would be wholly unjustifiable. After a most patient investigation of the subject, he was entirely unable to arrive at the conclusion expressed by his right rev. Brother who had just addressed the House, that Scripture prohibited these marriages—on the contrary, he believed that tacitly and by implication the law of God permitted them. He would not attempt to follow his right rev. Brother into the intricacies of that verbal criticism which he had made of different texts of Scripture; but he wished to quote the testimony of some who were 921 admitted to be able and learned theologians, whose attention had been specially directed to this particular question, and whose opinions coincided with his own as to the lawfulness, according to Scripture, of these marriages. First of all, he would cite the opinion of a right rev. Brother, whose absence on this occasion, and the reason for that absence, their Lordships must all deplore. The Bishop of St. David's (Dr. Thirlwall), in the course of his speech against the Marriages Bill in 1851, said—The view which he had heard taken in that House respecting the operation of Scripture must, after all, be a mere matter of inference and construction, and, applying himself to that view of the subject, he would only say such marriages as the Bill was intended to legalize were not prohibited, but were tacitly by implication permitted by the words of the chapter which had been so often quoted. He protested against the opinions expressed by those who contended that there existed any Divine prohibition."—[See 3 Hansard, cxiv.]Again, the Rev. Dr. Alexander M'Caul, Professor of Divinity and Hebrew Literature in King's College, London, said—Having again carefully examined the question, and consulted some of the highest authorities in Hebrew literature as to the meaning of the Scripture passages, I am confirmed in the opinion formerly expressed, that marriage with a deceased wife's sister is not only not prohibited, either expressly or by implication, but that, according to Leviticus xviii. 18, (concerning the translation of which there is not the least uncertainty), such marriage is plainly allowed. I confess that when I entered upon this inquiry I had not an idea that the case of those who wish a change in the present Marriage Law was so strong. I had thought that the opinions of grave and learned students of the Bible were more equally divided, and that, as authorities were pretty evenly balanced, they who had contracted such marriages must bear the inconveniences arising from doubtful interpretation. But I do not think so now. Confirmed by the testimony of antiquity and the judgment of the most considerable interpreters at the Reformation, and since the Reformation, I now believe that there is no reasonable room for doubt—that there is no verse in the Bible of which the interpretation is more sure than that of Leviticus xviii., 18; and I think it a case of great hardship that they should, by the civil law, be punished as transgressors, whose marriage, according to Divine law, is permitted and valid; and harder still that the children of such marriage, legitimate in the sight of the infallible Judge, should be visited with civil disabilities.No one would dispute the Biblical learning of Dr. Tregelles, who said—I fully accord with Dr. M'Caul in his criticisms." …. "It is futile to set aside the definite permission given in the Word of God 922 (Leviticus xviii., 18) by considerations drawn from analogy, whether scriptural or unscriptural." …. "That such a restriction is wrong on Scriptural grounds, I feel no doubt at all.If he (the Bishop of Ripon) stood alone in his opinion that the Word of God was not opposed to such marriages, he should be ready to suspect the soundness of his judgment; but when he found that his opinion was confirmed by some of the ablest and most diligent students and interpreters of sacred Scripture, he felt strengthened in the conviction that the restriction on such marriages as this Bill proposed to legalize was not founded upon any authority of Scripture. If, then, Scripture did not support the existing law, was it wise or right to make by human enactment that to be a sin which the Word of God did not declare to be a sin? Of coure, if the Scriptural argument against such marriages were abandoned those who objected to them were, as everyone acknowledged, thrown at once upon the consideration of this question under its social aspect. Now, it seemed strange to assume that the various social evils which had been referred to would certainly arise in this country, if these marriages were legalized, although in countries where these marriages had always been permitted by law no such evils were found to exist. He believed this was almost the only country in the world in which a marriage with a deceased wife's sister was illegal, and he had not heard that any of the social evils which existed in countries where such unions were lawful could be directly traced to the state of the law. Bishop M'Ilwaine stated that in America, although these marriages were celebrated without disapprobation, he was not conscious of any evils having arisen from, them. But it was said that the sanctity and purity of domestic life would be imperilled if this Bill were allowed to pass. He confessed that he had a far higher opinion of the sanctity and purity of domestic life in this country, than to believe that it rested on so weak a foundation as a restriction which was not sanctioned by the Word of God. He believed the sanctity and purity of domestic life would remain unaffected if this Bill became law, as he sincerely trusted it would. All the arguments employed with respect to the social aspect of the question seemed directed against certain imaginary evils which it was assumed would arise if the law were altered; 923 but there had been no allusion during this debate to the great social evils which, existed at the present time, and which might be directly traced to the operation of the law. Was it no evil that we should have a law which it was found in practice utterly impossible to maintain, and which was broken and violated continually? Was it no evil that there should exist among a large class of the population a sense of wrong and oppression, because it was felt that the law of the land hindered them from doing that which by the law of God they were permitted to do? Or was it no evil that the existing state of the law was in many instances directly provocative of crime? He wished to adduce some testimony on this point. His right rev. Brother who last addressed the House (the Bishop of Ely) had stated that he had been stationed in many different parishes with large populations, but that he had seen no evils resulting from the operation of the law as it now stood. The right rev. Prelate's experience had been singularly fortunate. He had himself had the care of parishes with large populations, and he had seen great evils result from the operation of the law. He would not, however, quote his own authority, but would take the testimony of one who was revered by a large number of Christians in this country, and who to the regret of a large circle of friends had been recently removed from among them. The late very rev. Dr. Dale, Dean of Rochester, who for a long period of his life had charge of large parishes, said—So far as my parochial experience extends, the prohibition of marriage with a deceased wife's sister operates far more to the promotion than to the prevention of crime. Among the lower classes cohabitation without marriage is almost invariably the result, while the few conscientious persons who are deterred by the law from forming such a connection are precisely those to whom it would be a benefit. Were the prohibitions founded on Scripture we ought at whatever sacrifice to obey God rather than man; but I cannot see the expediency of a law which, having no such sanction, is observed only by the scrupulous, evaded by the wealthy, and defied or disregarded by the poor.He would also cite the testimony of another divine whose name was never mentioned without honour. He alluded to the very rev. Dr. Hook, Dean of Chichester, who had, perhaps, had a larger experience than any living man in the charge of large parishes. Dean Hook said— 924People in general do not consider such marriages improper, They cannot be proved to be improper by Scripture. The question is, therefore, one of expediency, and my experience as a parochial minister induces me to think the measure expedient.Again, the very rev. the Dean of Carlisle, Dr. Close said—I believe such marriages as you wish to make lawful are already lawful, according to the letter and spirit of Holy Scripture, and I hope the civil and ecclesiastical law will speedily be made conformable to the Divine.He might also cite the testimony of the Dean of Lichfield, better known as Canon Champneys, who said—It appears to me, therefore, that first, as Scripture shows that there is nothing immoral in such a connection, and, secondly, as it is obvious that much evil would be prevented, many poor children saved from misery and ruin by having that person over them who, in a majority of instances, would be the next best substitute for a mother, my own mind is led to believe that the law of man ought to tally in this respect with the law of God.Such were the opinions of eminently practical and Christian men who had had wide experience in dealing with large parishes. This Bill would affect a class of cases involving a great hardship which ought to be removed by the Legislature. After the passing of the Act of 1835, commonly called Lord Lyndhurst's Act, there was a general impression—whether a right one or not he would not say—that persons who wished to contract such marriages as were now under discussion might legally do so in a foreign country where such marriages were lawful. It was believed that marriages so celebrated were lawful even according to the law of this land. In numerous instances persons had acted in that belief; they had gone abroad and had complied with all the conditions which they supposed necessary to make their marriage valid; and it was not until a decision to the contrary was recently given in one of the Superior Courts that, for the first time, they learned that they had acted under a mistake, and that their marriage could not be recognized by the law of this country. Such persons had to endure a great hardship in no legal remedy being provided to render valid marriages which had been so contracted. This Bill would have that effect, and for that, among other reasons, he most earnestly hoped that it would pass into law. Believing, as he did, that the re- 925 strictions which were sought to be removed were not founded upon any authority of Scripture; that, on the contrary, the Word of God tacitly sanctioned such marriages; that the existing restrictions imposed a burden on men's consciences, and were in many cases provocative of crime; and believing that the alteration of the law would be a great relief to many who justly deserved to receive it, although it was with the deepest regret that he found himself at variance with the opinions of so many for whom he had a profound respect, he must vote in favour of the Bill.
§ LORD LYVEDEN
said, he was anxious to address the House, as, although the Mover of this Bill and Her Majesty's Government had disclaimed all party motives, the Liberal Press had tried to make the support of this measure a test of Liberality. He protested against the assumption that Liberals should be advocates of every bold innovation without considering its advantages. He rested his objection to this Bill entirely upon what would be the social effects of its passing, in considering which their Lordships must proceed entirely upon their own views, for they could not bring to bear any experience, while there were very few facts on which they could rely. Why alter a system which, had, according to the Lord Chancellor, existed since the 6th century "and the conversion of Ethelbert?" He denied that this Bill was so universally popular. His noble Friend (Lord Houghton) had truly said it had passed the House of Commons by a large majority; yet, without wishing to depreciate that expression of opinion, he could not refrain from pointing out that, in some cases, the votes of Members of the House of Commons were dependent on the ideas of a handful of their constituents. Let their Lordships look to the number of Petitions that were presented in favour of the admission of Mr. Newdegate into nunneries—[Laughter]—he meant his Motion for an inquiry into conventual establishments. For that scheme there were 249,637 signatures—for this only 26,230! Public opinion, in this form, had not shown itself in favour of this measure to anything like the extent to which it was provoked by the other proposal, now generally rejected. The issue raised by the Bill was an extremely narrow one. Why was it con- 926 fined to one degree of affinity? Why was the aunt to become the best stepmother? All women were naturally fond of children, and kind to them; but, if they had any of their own, jealous of their husband's children by another woman, even if that woman was their sister; and why did not the Bill include wives' nieces, or daughters by former husbands? It was well to suppose the tenderness of a wife's sister; but of what much greater value to a widow would be the assistance of a husband's brother. Yet this marriage was never proposed for the advancement in life of the children. How did this agitation arise? Not from those who wished to alter the law, but from those who had already violated it; who, in their amorous maturity, could not control their passions, and now sought to be put on a footing with those whose modesty or morality had induced them to obey the law. This proposal would be almost compulsory. If a man might marry his wife's sister, he must marry her; for society would never tolerate their residence together unmarried. It was all very well for the right rev. Prelate (the Bishop of Ripon) to say that it was a libel on English women to state that, if these sisters were marriageable, they could not live in their married sister's house; but opportunity assisted immorality, and the permitted familiarity would not be checked by the dreadful notion of an incestuous intercourse as now. This was so felt, that he had heard a comical reason given in favour of the Bill by a gentleman who had three wife's sisters, whom he was desired to retain in his house, and said, if he would deny they were his sisters, as he might marry them, he would get rid of them at once. He would now read to the House a beautiful passage from the memoirs of Mr. Gibbon, setting forth the charms of the relation of brother and sister—The relation of a brother and sister, especially if they do not marry, appears to me of a very singular nature. It is a familiar and tender friendship with a female much about your own age, an affection perhaps softened by the secret influence of sex, but pure from any mixture of sensual desire—the sole species of Platonic love which can be indulged with truth and without danger.He contended that the further you could spread such pure intimacies between the sexes the greater the advantage you con- 927 fer on society. The progress of civilization has always been tested by the respect a nation shows to women; and if you find that for centuries past, whether by usage or by Act of Parliament, the wife's sisters have been considered the own sisters, admitted to familiar intercourse and the unrestrained company as such—if you invade this acknowledged rule, you tend to trespass upon domestic comfort and happiness in a way of which you cannot calculate the lamentable results. You say this is only a sentiment. Well, what are half our virtues, and all the graces of them, but sentiments? The love of children is a duty; but what is it without its sentiments? The love of parents the same; but all the pleasure of it is in its sentiments! At least, he hoped the House would not adopt the retrospective part of this Bill which was, however, the most valued by the promoters. Such a mode of legislation would be a most vicious precedent. Surely if the Game Laws were altered all poachers would not be released; or, in the change of any other law, those who had already transgressed it acquitted. He agreed with Mr. Gladstone, who said—These were questions not to be opened, except in great necessity, for they should not tamper from year to year with the Marriage Laws.It was a large subject. Six years ago a Commission was issued to inquire into the Laws of Marriage, on which sat some of the greatest lawyers of the day in England, Scotland, and Ireland. It was presided over by the noble and learned Lord opposite (Lord Chelmsford). The Report was drawn up by Sir Roundell Palmer—it was laid on the Table three years ago—and he would say had been shelved ever since. There was no reason, with all this mass of opinion and information before them, why they should not legislate on the whole question next Session; but against this particular measure he should vote, from a decided conviction that it would lead to marriages which, if not incestuous, were most immoral connections.
THE BISHOP OF LINCOLN
said, he did not hesitate to avow his opinion that the marriages which they were now seeking to legalize were prohibited by the Divine law. In the Divine law, both of the Old and New Testament, it was declared that "man and wife are one flesh;" and, therefore, to endeavour to legalize a man's marriage with his wife's 928 sister is very like an endeavour to legalize his marriage with his own sister. The marriage with a deceased's wife's sister, was forbidden by the Divine law in the book of Leviticus. The Marriage Law in that Book was not the law peculiar to the Jews—it was a law of universal humanity. If their Lordships would look at the 18th chapter of Leviticus, they would see that the nations of the land of Canaan were to be cast out, because they had defiled themselves with the abominations denounced in that chapter. And who were the nations so devoted to destruction? Were they under the Levitical law? Certainly they were not. They were nations before the promulgation of the Levitical law, and where there was no law there was no transgression. Consequently, the law which they were denounced in Leviticus as having broken was no other than the moral code of universal humanity—as the Hebrews themselves said, dating from the Flood itself. Now, in that common law—that law of universal humanity—there were two prohibitions—that a man should not marry his wife's mother, and that he should not marry his wife's daughter. It followed by logical inference that a man should not marry his wife's sister. There might be some who would object to inferences of this kind; but if they were to be given up they would lose some of the highest methods of interpretation of Scripture itself. Our blessed Saviour proved the resurrection of the dead by inference when He deduced it from God's words—"I am the God of Abraham, of Isaac, and of Jacob; "and He added—"because ye know not the Scriptures"—because ye cannot deduce logical inferences from the Scriptures—"ye do greatly err." It was because of this law—which he could not call the Levitical code, but the code of universal humanity—and by action of his reason upon it, he had come to the conclusion that the marriages now proposed to be legalized were prohibited by the law of God. He would remind their Lordships that the true interpretation of the Bible was the Bible—a false interpretation of the Bible was not the Bible. One of his right rev. Brethren (the Bishop of Ripon) had referred to various authorities in support of these marriages. He respected these authorities; but, after all, they were only the authorities of men; they could not be brought 929 into competition with the consistent opinion of 15 centuries of the Catholic Church of Christ—which he held to be the divinely appointed and constituted interpreter of the Bible—and which declared that these marriages were prohibited by the Divine law. To the authorities which his right rev. Brother quoted he would add one more. The first who sanctioned these marriages—an authority not likely to be referred to by his right rev. Friend—was Pope Alexander the Sixth—the infamous Borgia. Their Lordships were, no doubt, familiar with the epitaph composed in reference to him and his daughter, Lucretia Borgia—Hoc jacet in tumulo Lucretia nomine, sed reThais, Alexandri, filia, spousa, nurus.Were their Lordships prepared to follow in the steps of such a man—a man whose name had been consigned to infamy as one of the worst of the Popes? They were asked to respect the feelings of those who had broken the law; but he called upon their Lordships to respect the feelings of 17,000 of the clergy of the Church of England, whose consciences would be affected by the passing of this Bill. It was very well to say that these marriages were to be solemnized by the registrar; but if that were so, he asked their Lordships to consider what a conflict would arise between the civil and the ecclesiastical power. The Bill was nominally to legalize marriage with a deceased wife's sister; but in reality it was a Bill to sever the connection between the Church and the State. Let their Lordships consider that this law which they were now asked to abrogate was the unbroken law of the Church for the first 15 centuries of the Christian era; that it was not of Papal origin but of purely Apostolic times; that it was contained in all the canons ecclesiastical; that it was renewed and invigorated at the time of the Protestant Reformation, and by the martyrs who shed their blood for the emancipation of truth; that it was the law of the Church of England, and embodied in that table of degrees of consanguinity which they were required to present to the people in their charge. Were they to have respect to the people who violated this law, and were they to have none for those who observed it and wished it to remain unbroken? He entreated their Lordships to consider what would be the position 930 of the clergy under the operation of this measure. Were they to allow parties living in what they regarded as sin to partake of the Holy Communion, and thus to profane the most solemn mysteries of the Church; or were they to set themselves against the law of the land, which it was their desire to teach others to obey? He trusted their Lordships would avert these conflicts by refusing to sanction the second reading of this Bill.
§ LORD WESTBURY
said, he was at a loss to know on what grounds their Lordships were asked to reject this Bill. Were they to take the responsibility of restraining marriage, which was a part of man's natural independence, upon a critical interpretation of a passage of the Old Testament? Were they—were the right rev. Bench—so confident that their interpretation of that passage was correct? Were they the more confident of that because all Christendom disagreed with them? Were they so confident that the knowledge of the truth was confined to their own Church—nay, to one section of their own Church—that they were resolved to found upon it a prohibition by Act of Parliament—a law nothing corresponding to which could be found in any part of the Christian world? He was by no means one of those who was so proud of the condition of this country that he could go to the House of God and give thanks that we were not as other men were. He saw nothing in the social condition of this country to warrant this excessive amount of self-gratulation. When he looked on the condition of society in England, Scotland, and Ireland—when he looked to our great towns, and to the general condition of our pauper population, he felt that they were not in a condition to regard themselves as the special favourites of Providence or the chosen depositories of Divine truth. He entreated their Lordships to approach this subject in another and a humbler spirit—a spirit that might make them inquire whether there might not be a doubt in the correctness of the interpretations they now enunciated so positively. Let them remember that the interpretation sought to be placed on this passage, as forbidding those marriages which this Bill proposed to legalize, was an interpretation in which the whole Christian world did not agree. It was one in which the Roman Catholics did not join 931 —which, the great body of Protestants on the Continent did not give their assent to—in which the Wesleyans were not with them—in which the Independents did not concur—which the Baptists altogether repudiated—and which the Quaker lifted up his testimony against. Therefore, the opposition to these marriages was confined to themselves, and to those who had been indoctrinated into it by the penalties of an Act of Parliament. Was the Legislature, then, warranted, when it framed a law on marriage—the natural right of all persons—to found that law upon a particular interpretation of Scripture which rendered it inconsistent with the great principles of civil and religious liberty? What right had they to say to the Jews that they should not marry unless they conformed to the English Marriage Law, or to say to the Roman Catholics they should not marry according to their own Church's interpretation of Scripture, but should be bound by ours? Was this law consistent with the universal rights of human nature? He thought not—he thought it stood in direct opposition to great and important principles—principles as important as those which were laid down in Scripture. He was content to take the Articles of our Church upon the subject. Now, the 7th Article of the English Church declared that they were bound by the moral law, but not by the ceremonial law. Applying that to the law of Moses, let them try to discover what was the universal moral law, what the ceremonial; for from the moment they had reached this point of distinction they ceased to be bound by the law as an abstract law. There could be no doubt that the Levitical law, viewed in a judicial sense, was a most barbarous and savage code. In former times their Lordships' predecessors were accustomed to hear from the right rev. Bench appeals to the Levitical law, which they were now exhorted to treat with such reverence, to justify and enforce the drowning or burning of witches. The Bishops of that day spoke in the same solemn and earnest tones of the impiety of those who did not recognize the authority of the written Law of God, of doubts as to the Christian character of those who doubted the existence of witchery, or who did not recognize the duty of drowning or burning them. Their Lordships would also remember 932 that what they now heard, and had probably heard 50 times before was nothing but a rechauffée of the solemn indignation with which the first proposal for allowing marriages between first cousins was treated. There was, no doubt, some reason for the prohibition of the marriage of cousins; because, by an extension of the terms used in Leviticus, such marriages could be brought within the prohibition given. Having adverted to these matters for the purpose of inducing some diffidence and modesty in dealing with the matter, he would proceed to look at the history of the question. The fact could not be doubted that the contemporaneous exposition of the Jews was in conformity with the interpretation now sought to be put upon the Levitical law by the promoters of this Bill. He did not mean to expose himself to the reply that we were not bound to accept the Jews' version of the Scriptures; but he might appeal to the custom and practice of the Jewish people, and to their institutions and observances, as a comment upon, and an interpretation of their own laws. It was impossible to believe that they could have continued in deliberate non-observance and violation of that law, if it had borne with them an interpretation, which some with the superior knowledge of the present generation desired to put upon it. The Jewish law never contemplated prohibiting the marriage with the sister after the death of the wife, and the testimony upon that point was beyond dispute. The evidence of the Chief Rabbi before the Commission was on record. He was examined not upon matters of interpretation, but upon the customs of his people; and he stated that from all time it had been the practice of the Jews not only to approve these marriages, but to facilitate them; for whereas it was required, in any case, that a certain time should interpose between the termination of the first marriage and the contracting of a second marriage, the time was shortened in the case in which the widower left with children desired to marry the sister of his deceased wife. Ought we not to take this fact into account when we interpreted Leviticus, embodied our interpretation in an Act of Parliament, and pronounced that interpretation to be a holy, rightful, and moral law? Let him go a little further. The law and practice of the Jews being 933 what he had described, what were the habits of the people existing in the civilized world when Christianity was introduced? He had already shown what was the practice of the Jews, and it was the same at that time; the law of the Roman Republic was the same; and the Roman law down to the time of Constantius not only permitted these marriages, but approved them. Christianity, therefore, was planted among people who, whether they were Jews, Hebrews, or Romans, adopted these marriages, and regarded them, not merely as legal, but as worthy of commendation. Such, also, was the rule of Christianity itself during the first ages; and it was not until they reached the period when numerous sects had arisen, warring with each other, and perverting the truth among themselves, set themselves up for teachers rather than interpreters of the Divine word, that the Gnostics and others set aside the authority of the Mosaic laws, especially in regard to marriages, until some of the greatest Fathers of the Church denounced marriage altogether, and laid down rules regulating that and kindred subjects in language not always too decent. When the prohibition of these marriages was once introduced, it was gradually adopted by the Western Church, and by the Eastern Church also. But the Roman Catholic Church had acted in this respect much more wisely than our own, for the Roman Catholics never regarded this Levitical rule as a law of God, but regarded it as an ecclesiastical regulation, and assumed the right to dispense with it for a consideration. It was not until the time of Henry VIII. that a new light burst upon England concerning these marriages. In his reign an Act of Parliament was passed which, for the first time, defined the prohibited degrees, and the degree of wife's sister was included in the prohibition. An Act, which passed at the same time, declared the marriage of Henry with Katherine of Arragon most unholy; and the real object of the table of prohibited degrees was to declare that marriage invalid. Three months after the decree of separation Queen Elizabeth was born. The 25 Henry VIII. was repealed by the 28 Henry VIII., and in the meantime Anne Boleyn had had her head cut off, and Harry married Jane Seymour—a marriage which, was pronounced to be 934 holy and right. A little further we came to the statute of the 1 Mary, which declared that the marriage between Henry VIII. and Katherine of Arragon was most holy and pious, and in strict accordance with the rightful interpretation of God's Word. But that and the former statute of Henry are to this day unrepealed. Thus we have upon our statute book two Acts, one declaring a marriage to be consistent, and the other declaring it to be inconsistent with the rightful interpretation of God's Word. It seems to me a melancholy and humiliating retrospect, and by no means conducive to our national self-laudation and gratulation. Nothing was more certain in law, or more consistent with common sense, than this proposition—that, where a matter had not been made a subject of express declaration, it was not possible to derive from any part of the law a conclusion in the way of inference, if you found that inference repelled and excluded by some other part of the law. Turning now to what had been said by the right rev. Prelate (the Bishop of Ely), respecting the interpretation of the 16th verse of the 18th chapter of Leviticus, he (Lord Westbury) was astonished to hear the right rev. Prelate profess his preference for the marginal rendering of the verse in Leviticus which was found in some editions of the Septuagint, and which had the effect of reducing this verse, from being a regulation on the subject of marriage with a deceased wife's sister into a simple prohibition of polygamy. Everybody knew that the marginal reading had been ascertained to be the interpolation of a certain sect among the Jews who were themselves opposed to polygamy, and who, therefore, desired to convert this verse into a prohibition of polygamy. If it had the meaning contended for, why was it not followed? Was there not a direct contradiction of it in the practice of the Jews? Was it not the unquestionable fact that polygamy was familiarly practised among the Jews? Solomon certainly never restricted himself in its observance; and was it not one of the rewards of David, for his faithful adherence to the Divine cause, that he received the wives of Saul in a lump? Could it really have occurred seriously to anybody that the original meaning and intent of this verse was to prohibit polygamy? It was a long time since he 935 had construed a Greek author; but he ventured to say, without fear of contradiction—because his interpretation was borne out by the greatest authorities—that the meaning of the verse was plain—"You shall not marry as a wife a sister to your present wife, in rivalry with her." The only fault he found with the authorized version was that, instead of the expression "in rivalry with her," the interpretation given was, "to vex her." The real meaning probably was the taking of one in addition to the other—they were not to be rival wives. And then came the words "during the life of the first wife," the reason of which plainly was to prevent a man from giving the first wife a letter of divorce and sending her away. In order to prevent that evasion the words were added forbidding the man to marry the wife's sister in addition to the wife during her lifetime. Unless any man could prove beyond the possibility of doubt that the text in Leviticus did not refer to the marriage of the wife's sister, it formed a rule which prohibited any inference to the contrary, and plainly laid down the Scriptural law on which our statutes should rest. The right rev. Prelate (the Bishop of Ely) had argued that marriage with a wife's sister was prohibited on the ground that she was "near of kin" to the husband. But this inference he (Lord Westbury) entirely denied—it was utterly absurd and inadmissible. It was, no doubt, the universal rule that the wife was absorbed in the individuality of the husband—became "one flesh" with him; but it had never been held that the husband became "of kin"—proximus sanguinis—to the kindred of the wife, neither was it added in the verse which contained this prohibition—whatever it was—as was added to other prohibitions in the same chapter, "for she is thy near kinswoman." He hoped their Lordships would now, almost at the eleventh hour, do that which ought to have been done before, and recall the prohibition of these marriages contained in the statute book. If their Lordships would look at the records of what had occurred in the House of Commons when the existing law was being passed, they would find that it was proposed to prohibit the marriages in question for the future by making them utterly void. It required, however, all the influence of 936 those who supported the Bill on that occasion to pass it in that form, and they were only able to do so on the understanding that the subject should be reconsidered in the next Session. Thus it was that a proposal which had been sanctioned without due deliberation was placed on the statute book, where it continued to remain, because the promise to re-consider the matter had never been fulfilled. The existing law, therefore, had its origin in an erroneous interpretation of a single passage; it had grown up in variance with every principle of civil and religious liberty; it had been made binding on the whole people, although one-half of them protested against the interpretation of Scripture on which it had been based. Such a statute ought, he contended, to be offered up on the altar of civil and religious liberty. The subject was one, he might add, which it was impossible to examine without feeling strongly upon it, and, feeling strongly, one naturally expressed oneself in a corresponding manner. But if, in the course of the observations which he had made, a single word had fallen from him which was calculated to give pain, he begged leave to retract it. He must, at the same time, be permitted to state, in the strongest form of language which was consistent with respect for their Lordships, the conviction which he entertained—a conviction arrived at after much examination of the subject—that the existing Act was founded altogether on a misapprehension, upon an undue assumption of the right to bind the consciences of others, and that it ought as soon as possible to be expunged from the statute book in obedience to those high principles of civil and religious liberty to which he had already adverted.
THE BISHOP OF PETERBOROUGH
My Lords, I had not intended to trouble your Lordships with any reasons of mine for the silent vote which I meant to give against the Bill now before you; but, after listening to the speech of the noble and learned Lord who has just sat down, I cannot refrain from offering a few observations, if only as a matter of mere politeness and gratitude, for I cannot but feel that some acknowledgment is due to him from the occupants of these Benches for the homily which he has had the kindness and consideration to address us in the early part of his very able and interesting speech. The noble and learned 937 Lord was good enough to lecture, with a tone of severe solemnity, these who sit on the Episcopal Bench as to the necessity of observing caution in the interpretation of Scripture. I was happy, however, to find that the noble and learned Lord, before he reached the close of his remarks, felt himself entirely free from any of those restraints which he seemed to be so desirous of imposing upon others; because it certainly struck me as savouring somewhat of confidence in his own interpretation of the text, and his acquaintance with the original, not only in the Greek, but the Hebrew, that he should have addressed himself in such a tone to answer the speech of the right rev. Prelate who presides over the diocese of Ely. I confess that, knowing, as I do, the high reputation of that right rev. Prelate for thorough acquintance with the original, I should have felt some diffidence in venturing to make any remarks in reply to him; but the noble and learned Lord has not hesitated to favour us with an outpouring of Biblical and Greek learning, erring—if I may return, in some measure, his lecture to the Episcopal Bench—perhaps a little on the side of levity. I am, I may add, qualified to approach the interpretation of the words in Leviticus, at least in this respect—that I do so with that diffidence to which the noble and learned Lord has exhorted us. After a very great deal of consideration I do not feel certain beyond doubt as to the meaning of the passage of Leviticus; but I would remind the noble and learned Lord that whoever gives a vote on this question to-night must give it in favour of one side or the other of the Scriptural enactments on the whole subject. The noble and learned Lord—great lawyer as he is—knows that the law of England, professes in the matter of marriage to be founded on the Word of God. Whether, therefore, we affirm or repeal existing restrictions, we must act in conformity with the principles of the law of England by affirming on one side or the other a distinct interpretation of the Word of God, and imposing it in the form of law on the consciences of those who take a different view. The noble and learned Lord has, therefore, fallen into the same error as that of which he accuses us—the error of first affirming his own view of the Word of God and then imposing it in the form of law on other men. For myself, I confess I am 938 not able to see my way to that distinct I interpretion on the passage in Leviticus which has been put upon it by some of my right rev. Brethren. I would venture to add that, even assuming the prohibition there against the marriages of which we are speaking to be as distinct as it seems to me to be doubtful, that would not, in my opinion, be conclusive of the question—because I am unable to say that we, as a Christian Church and a Christian State, are bound in all our legislation by the Book of Leviticus. I hold those words to be divinely inspired, I and therefore specially adapted to the needs of the people to whom they were delivered; but for that very reason, and because of their special and divine adaptation to the needs of the Jews, I think we have the highest ground for believing that they do not necessarily meet the needs of a Christian population or a Christian State in the present day. I do not, therefore, lay so much stress as some do upon this particular passage. But there is another Scriptural argument on which I do lay some stress. I allude to the words of Him whom we all acknowledge to be the Supreme Lawgiver, who, while He in some degree set aside the Levitical enactments, affirmed the broad principle on which they were based. He did lay down distinctly the principle that when a man marries a woman the twain are "one flesh." From that I deduce the principle of the law for bidding marriages of affinity—namely, the principle that the relations of the wife are the relations of the husband, and that the relations of the husband are the relations of the wife: a man cannot, therefore, marry a relation of his wife in the same degree as that in which he is forbidden to marry his relation in blood. This, indeed, appears to be a definite and distinct principle on which we can found our legislation. It has a finality. If you do not maintain this principle, you put another and an opposite one in its place—namely, the principle that the relations of the wife are no relations of the husband. Well, supposing you do this, you must, if you wish to be consistent, go on and abolish the whole of the prohibited degrees in the table of affinity. The noble Earl the Lord Privy Seal, said with reference to the Book of Leviticus—"You are not free to take out this or that passage and use it in your own 939 way." In the same way I maintain that you are not free to adopt this or that principle and then conveniently forget that the principle is applicable equally to all the degrees of affinity. My Lords, I am aware that I am doing what is somewhat rash and presumptuous in venturing to allude to a principle in reference to any measure under the consideration of Parliament—for it has been laid down lately, on rather high authority, that if those who oppose any measure do so on the ground that it embodies a principle which may be dangerous and capable of wider application than in the particular measure under consideration they, and they alone, are responsible for the evil consequences of that principle. That is a very convenient doctrine for those who are charged with the responsibility and risk of introducing measures to the consideration of Parliament, because it simply does away altogether with the discussion of the principle of any measure whatsoever. If the principle is a good one, discussion upon it would be superfluous; but if it is false and dangerous, discussion upon it would be purely mischievous. Therefore, we must not presume to discuss the principle of any measure, but must be content to offer humble criticisms on its details. With all due diffidence, then, I maintain that the present Law of Marriage affirms a certain principle, and that the proposed law would be based on another and an opposite one. Nay, I go further, and say that principles embodied in legislation are forces which are not under our control. It does not rest with us to say, when we introduce a principle into any measure—"Thus far shall it go and no farther." We can no more do that with the principles of law than we can with the forces of nature; and when we once set free a new and distinct principle in any act of legislation, it is certain to work itself out to its necessary conclusion by the logic of events, or by the logic, still more powerful, of human passion and human feeling. What I want to know is this—if the principle embodied in the proposed change of the law is to be affirmed, are your Lordships prepared to go on and abolish the whole table of affinity? If not, at what point are we to stop, and what law are we to fall back upon? The noble and learned Lord who just spoke (Lord Westbury) 940 appealed to the law of nature, and seemed disposed to substitute it for the law of the land and the law of the Church. With all due deference to the noble and learned Lord, I should like to ask him what nature, or, rather, whose nature it is that he means? Does he refer to the law of the nature of the man who wishes to marry his brother's widow? Is that the law of nature which is to be followed? It seems to be natural that some men should desire to marry their brothers' widows; but is that a valid reason why the table of affinity should be altered in their favour? Other men desire to marry their deceased wives' nieces; is that circumstance to be adduced in favour of an alteration of the law in their favour. What law, I again ask, are we to fall back upon? I lately saw an account of a man who, in another country which is less troubled than ours by canonical law, married on one and the same day a mother and her daughter, her niece, and three other persons. Now, such a man would tell your Lordships that he only acted in accordance with the law of his nature, and would exclaim against the cruel tyranny of imposing on him the law of the nature of the noble and learned Lord. How, I ask, are we to legislate on anything so vague as this reference to the law of nature? We require something more sure and certain, less shifty, and less liable to be swept away by the tides of human passion and of human error than this vague shadow of "a law of nature." While speaking on this subject, let me add a word as to a reason which does not actuate me in voting against this Bill. In voting against it I have no desire to maintain the rule of the Church of England over the members of other communions. Indeed, it was with deep regret that I heard this argumentum ad invidiam used by a very high authority. I protest against inflicting on other religious communities the law of the Church of England. The principle, however, appears to be laid down, that whenever the law of the land happens to coincide with the law of the Church, whenever you find the same law in the statute book and in the prayer book, you are bound in deference to the consciences of Nonconformists to repeal the law of the land, because it has the deadly taint of agreement with the law of the prayer book. No one, as far as I am aware, 941 wishes to inflict the law of England on other communions; but this Bill would inflict the law of other communions on the Church of England. It is true that the Bill does not touch the consciences of the clergy by compelling them to celebrate the marriages sanctioned by it; nevertheless, a clergyman would be under the necessity of administering the Holy Communion and the rite of burial to persons whom he believed to have been living in direct transgression of the laws of his Church. I do not put this forward as a reason for rejecting this measure; but because it seems to me a very strange argument in favour of a measure which directly affects the consciences of the whole body of the clergy, to demand that it shall be passed on the score of promoting freedom of conscience. I shall vote against this measure, because it seems to be fraught not only with the political danger of putting the Church in direct antagonism with the State—which in itself is an evil of no small magnitude—but also because it is fraught with most serious and dangerous social evils. This appears to be a Bill for the needless banishment from many a quiet home of a sister-in-law who now calmly fulfils, in all purity and faithfulness, the duties of a mother to the children of her deceased sister. I am told, however, by the advocates of the measure that it is a very unworthy argument thus to libel the social purity of English homes; but, in almost the same breath, they insist on the grievous hardship inflicted by the present Marriage Law on the poor man, who is often obliged to have his sister-in-law to reside with him, and thus exposes her to fearful temptations. These two arguments, I maintain, cannot be both used with consistency by the advocates of the Bill. I believe that this measure embodies a very dangerous principle; that it unsettles, with no prospect of settling, the existing law, in which the great, and, as I believe, the immense majority of Englishwomen thankfully acquiesce; that it unsettles that law for no real gain, but with the risk of very real mischief; and that it does real social hurt and evil for a problematic good. The only argument of any weight that I have heard urged is that public opinion is in favour of it: I question it. That public opinion has never yet been fairly tested. Has one 942 seat been won or lost on this matter? Has this question in any one instance been made a test at the hustings? [Lord HOUGHTON interposed a remark.] The noble Lord corrects me, but the instances must be very rare. If we appeal to public opinion, let us do so distinctly, formally, and definitely; for it seems to me that the duty of Parliament is not to indulge in mere vague guessings or even calculations as to what public opinion is—that its duty and the duty of its Members is not to count opinions, but to weigh them; and that if we are simply to discuss not whether a measure be right or wrong, but whether public opinion is in its favour, the sooner you do away with Parliamentary debates the better, and the sooner you fall into the way of governing this country as another country is now from time to time being governed—by plébiscites and appeals to the people—the sooner you have questions not discussed by Parliament but settled by popular vote the better; because in that case we should at least have a distinct and definite utterance of public opinion; and I venture to say that in that case this Bill would never be passed, or, at all events, not passed for years to come.
said, that neither our Lord nor His Apostles had anywhere condemned marriages of this kind; and some of the best and most learned men in ancient and modern times—including in the latter Episcopalians, Presbyterians, and Roman Catholics—had been in their favour; and he had received a letter from the Roman Catholic clergy of Dublin bogging him to support this Bill. He had heard it argued that this was not a poor man's question: he (Viscount Lifford) contended that it was every man's question. Since he last addressed their Lordships on this subject he had received a communication from a gentleman, living not far from London, who lost his wife and was left with several young children. Her youngest sister had been living with them for a length of time, and on her death-bed the wife said she should die happy in the certainty that her sister would, be the future mother of her children, and begged of her husband to cultivate the friendship of a neighbouring clergyman who had married the sister of his deceased wife. Another correspondent said he was desirous of marry- 943 ing his deceased wife's sister from sincere and prudent motives, he having been left a widower with eight children, and he added that he had felt no interest in this subject until he lost his wife, whose request it was that he should marry her sister, and that she alone should have the care of the children. Persons connected with some of their Lordships had married under similar circumstances. The question therefore was, were their Lordships to refuse to give the sanction of law to marriages of this character, which were desired, and practised by all classes of the community, except a small number of dissentients connected with the Church of England? He supported this Bill because he believed that the Levitical law permitted such marriages, while Jewish tradition and other historical evidence was in their favour, and he asked their Lordships not to reject this Bill, but to have mercy on those who had suffered from unfortunate and inconsistent legislation.
THE DUKE OF ARGYLL
My Lords, last week I presented a Petition purporting to be signed by the Roman Catholic Archbishop and, I believe, all his clergy, and by upwards of 12,000 inhabitants of Glasgow in favour of this Bill. The purport of it was correctly stated in the principal London journal; but in the Scotch journals the Petition is stated to have been against the Bill, and I have this morning received an urgent request that I should explain that the Petition was in favour of the Bill now before your Lordships. I do not know why I had the honour of being charged with that Petition. I apprehend that those who sent it to me thought I also was in favour of the Bill. I have never hitherto taken any part in the discussions on this subject; but this circumstance, and some other circumstances, make me feel it a duty to state, as shortly as I can, the grounds on which I shall vote against the Bill. I have endeavoured to look at the question uninfluenced by mere popular prejudice—as some noble Lords may think it—and not more than duly influenced by the public feeling of the country with which I am particularly connected. It is the great privilege of Members of this House that we are free at least from that bond which unites Members of the House of Commons with their constituents, and makes them in many cases feel bound to vote with 944 them, even if they do not agree with the opinions which their constituents hold. On the other hand, I believe that the Members of this House feel they are bound to consider the public feeling of the country and to act not merely as independent individuals, but to consider the general feeling of the great community with which they are connected as intimately, as really, and as truly as representative men as the Members of the House of Commons. And therefore I am not ashamed to say that I should attach some weight to the feeling of my country—I mean of the great mass of the people of Scotland—in giving the vote I shall give to-night. But, I repeat, I have endeavoured to look at this question in the coldest light of reason—and I am the more bound to do so because I am convinced that mere feeling is no safe guide in these matters. I have been astonished at the language held by some noble Lords who have supported this Bill, and which has been so well commented upon by the right rev. Prelate (the Bishop of Peterborough) who recently addressed your Lordships with his usual eloquence and power. They have talked of the light of reason and the light of nature; but I say, with the right rev. Prelate, that in such matters as these, reason and nature require guidance from a higher source, and we cannot trust our reason or feelings alone in these matters. Well, then, the first proposition I venture to lay down is this—that the State has a voice in this matter; that the Parliaments of the country have not only a right, but it is a necessary part of their duty, to make up their minds as to the legitimate limits of the prohibitions of marriage. Noble Lords may call that a mere truism—they may say that nobody denies that proposition; but it does away with a great many arguments which have been used in favour of this Bill. It has been argued as if it were a matter of tyranny to prohibit men from marrying those whom their own conscience, and the religious body to which they belong, justify them in marrying. But if that doctrine be admitted by Parliament, Parliament will be obliged to adopt from year to year the fluctuating opinions and conscience of the various religious sects. And what are those sects? At the present moment the United States are about to send an army to deal with 945 the community which has sprung up among them and which has professed not only to legalize, but to dignify and sanctify the practice of polygamy; and remember, the United States have a right to reproach Europe with the Mormon population, because it has been recruited not from the old inhabitants of the United States, but from the Christian communities of the Old World. You find men of high education, of great ability, who, having laid aside the restraints of Christian feeling and law, have declared that polygamy ought to be allowed and practised. I say, then, it is the duty and function of the State to adopt some principle in regard to the limit to be placed on the prohibition of marriage, and that it cannot allow each sect, as it arises, to judge of this matter. The State must, lay down the Law of Marriage—and not only lay it down, but enforce it with the heaviest of all penalties—that of pronouncing bastardy against the children who are the issue of those marriages; which it prohibits. Your Lordships must, therefore, set aside this accusation of tyranny, and the reproaches that have been raised against the existing law, because of the severe consequences visited upon those who break it. The first proposition, therefore, which I have to submit to your Lordships is, that the State must determine the principle of the Marriage Law, and that the State must enforce its enactment by the severest of penalties. Well, then, it being the duty and necessary function of the State to lay down the Law of Marriage, my second proposition is that it is desirable, above all things, that that law should rest upon a clear, definite, and distinct principle. And here I must say I agree in every word that fell from the right rev. Prelate on the Bench behind me. I will not attempt a reply to the lay Lords who, in this debate, have dabbled in theology, and who, I must say, have thrown fresh light upon the necessity of scientific treatment in theological matters. I will not go into the minutiæ of texts; but I say that the law of England professes to be a Christian law; it professes to be founded upon the laws of Christianity: and if you can find a principle which has been acknowledged in ancient times by the Jewish Church, and by the general voice and consent of the Christian Church in later times, and if you are in search of some principle 946 on which you are to found your legislation, surely I put it on the lowest ground when I say that it is not unreasonable that you should take that general principle, which has been sanctified by the Divine law, and which is, at least, consonant and consistent with the higher and purer principles of Christianity. Whatever cavil you may have about individual passages of that famous chapter of Leviticus—and into this subject I will not enter—I defy any man to deny that the general principle of the Jewish law was this—first, that no man should marry his near of kin, and, secondly, that the near of kin of his wife should count as near of kin to himself. That unquestionably was the general principle of the Jewish law, and I maintain that it is sanctified and raised to the higher pitch of authority by the general precepts of Christianity. Now, when I contrast such a clear and definite law and principle on which we may safely stand with the language of our opponents, I am utterly at a loss to find any clear or definite principle on their side on which our law is to be based. I was rather amused to hear my noble Friend who has just sat down apparently adopt the doctrine that the State is not entitled to prohibit anything not specifically and in words prohibited under the Christian dispensation. If we are to go on that principle—if we are to demand chapter and verse for every prohibition—we have no right to prohibit polygamy—we have no right to prohibit or denounce slavery—or many other of the worst forms of error into which men have fallen and may hereafter fall. We must go to the general principles of Christianity; and surely it is not too much to say we may be guided in this matter by the general assent and consent of the Christian Church ever since it was founded. I do not use that as a mere argument in debate. I am fully convinced of this truth—that if we pass this Bill we must go much further and break down the general principle of prohibitions under the table of affinity. It may be perfectly true that there are not so many cases in which men may desire to marry other relations of their wife than her sister; but there are other cases by no means impossible, and the possibility of which it is almost disgusting to contemplate—such as marriage with the daughter of a wife by a former 947 husband; and precisely the same arguments of social convenience might be used in regard to such marriages as with regard to the case now before us. Who so natural a guardian to your children as their own half-sister? Oh, but it is said there is a natural repugnance to such marriages. So there is, and God be thanked for it! but change the law, and that feeling will be altered. When people talk of natural feelings and natural repugnancies, they speak entirely unconscious that they were built on the long habits of Christian legislation; and I say that you have no security whatever, when the prohibition is broken down in respect to this particular marriage, that you will not be obliged to legalize those other marriages against which, at present, you revolt. These are formidable consequences—consequences which we should face; and I object to the suggestion that we are not to mind what might come afterwards, but should leave others to deal with cases as they arise. Your Lordships are bound to consider the principles you adopt in legislation and the consequences to which they may lead. Many noble Lords will admit that I am no pedant in matters of general principle. I am of opinion that abstract principles are to be treated like fire and water—as excellent servants but bad masters. I admit also that in matters of legislation you must consider the feelings of the people you legislate for; but I am not convinced that at the present moment the general feeling of this country, or of Scotland, or of Ireland, is in favour of legalizing these marriages. I wish to say a word with regard to an argument used by a powerful section of the community—our Roman Catholic fellow-subjects—and I will refer more particularly to a document professing to contain the opinion and advice of the Roman Catholic clergy of Ireland. Having now the honour to address some noble Lords belonging to the Roman Catholic Church, I can assure them that no one can be more desirous than myself to speak respectfully of the religious opinions of other men, however widely I may differ from them; and I fully feel the inexpediency and want of taste which would be shown in discussing in their presence purely theological questions on which disagreements might arise. But in re- 948 gard to the relations of the Roman Church with the civil law, and in regard to the pretensions now put forward by the Roman Catholic priesthood to deal as they please with the law of nations and with their relations to the civil law, I not only desire but am determined to maintain absolute freedom of language in debate; and I cannot help stating that I look with extreme jealousy and dislike—I will use a stronger word, and say with some indignation at the language used on this subject by Roman Catholics. The document to which I wish to refer states—I beg, also, to state that 88 of our clergy here, which include our vicars general and parish priests, have signed a Petition for presentation to the House of Peers, and we are extremely anxious that such marriages"—(and I particularly wish your Lordships to observe what follows)—"when they have received the sanction of the Church, by dispensation granted, should be valid for all civil purposes.Now, the Roman Catholic Church holds with the Church of England, that such marriages are illegal. I will not quibble as to the sense in which illegality is asserted; but I will assume that the Roman Catholic Church forbids such marriages for some good reason; either because they are inconsistent with the principles of Divine law, or else because they are inexpedient on social considerations. If, then, the Roman Catholics will come forward and say that they have been wrong in these prohibitions—that they have a new light on the nature of the Christian law, and on this ground desire a change—it will be quite a different thing; but I am not willing to be told by them that the laws of England must be altered not because they thought them wrong, but in order that their special exceptions and their priestly dispensations may no longer be checkmated by the civil laws of the land. That is language which the Roman Catholics have no right to make use of, and I, for one, will never support any change demanded on such grounds. I only know of one argument of any force in favour of the Bill, and that is not an argument of principle. The Bill rests upon no principle whatever. The present law does rest upon a principle; but when we depart from it, we can have no principle whatever except that of sweeping away all the prohibitions of affinity. There is, however, some force in the argument founded upon the general 949 failure in those feelings of the people, which are the foundation of all legislation. I believe that the extent to which that argument applies has been greatly exaggerated; but I cannot conceal from myself that when we have eminent right rev. Prelates, great theologians, some of the most distinguished Members of this House, and large majorities in the other House affirming the legitimacy of these marriages, I do not deny the probability that public feeling may be changing, and that ultimately we may be unable to maintain this law. But I am not yet convinced of the change. Certainly the vast majority of the people of Scotland still hold this measure in abhorrence, and I join in the request and suggestion thrown out by my noble Friend behind me that this matter should be considered not in parts, but as a whole; that we shall not be invited first to give our assent to one step and then to another; but that we shall deal with these prohibitions as a whole, and in the full light of the investigation which ought to precede such a change. If such a general change as the abandonment of the whole table of affinity were to be proposed, however, I believe that the moral feeling of the country would be revolted at many of the consequences which would ensue; and until that inquiry has been made, and until the public feeling has been tested in such a manner, I shall, without the shadow of a doubt, say "Not-Content" to the passing of this Bill.
§ THE EARL OF HARROWBY
said, it was of the highest importance, as far as it was possible, especially in such a question as marriage, in which it was desirable to attach a religious sanction to the bond of union, to have religion and the State go together, and it would be a great evil if on such a matter Parliament permitted what almost all Churches had forbidden. What would be the effect of the change on the poorer classes? A case might arise where a poor man wanted to marry his deceased wife's sister, and he went to the clergyman, who told him not to do so, and, perhaps, might, if he solemnized the marriage, refuse to administer the Sacrament to him. Was, then, the man to set the law of the State against the advice of his religious teacher? He saw the extreme evil of bringing these two consciences into conflict, and on this ground, 950 apart from other considerations, he wished to keep the Law of Marriage such as it had hitherto been maintained by all Christian Churches.
THE LORD CHANCELLOR
My Lords, I am thankful for an opportunity of expressing my gratitude to the noble Lord who moved the second reading of this Bill (Lord Houghton) for the tone in which he discussed the subject, which was very different from that assumed on other occasions, when a Bill with this object has been brought forward. I have been accustomed to hear that those who opposed the Bill were bigots and Puseyists; and when the use of these terms was found to be inconvenient, because there happened to be a number of right rev. Prelates, including the late Archbishop Sumner, among the opponents of the measure, we were accused of being irreclaimable Tories. It was, therefore, a great satisfaction to my mind to be told by the noble Lord who I opened this debate that he considered the question entirely free from all party I bias. In that light I have always regarded it; I have always considered it a subject elevated far above the atmosphere of party: but if this were a matter of party alone, I would never have shrunk, from any supposed religious prejudice, which I confess to—if prejudice it be—from assisting my fellow-men of every faith and persuasion, Roman Catholic or Jewish, in obtaining those rights which I think to be their due. But this is not a question of party. It is a question which concerns mankind and our own great country; and, to my mind, upon its determination depends either the beginning of the decadence of England or the maintenance, in some degree, of the high moral position which we have hitherto held among the nations of the world. It is from that point of view I cannot bring my mind to say "Content" to any Bill to alter that law under which the intercourse between man and woman has been maintained ever since this became a Christian country. Without fear of the retort which I may expect from the noble Lord who opened, the debate, I say I am one of those whom it is hopeless to attempt to convince—one of those having a religious view whom the noble Lord said he could I not expect to shake. I do not disavow the impression on my own mind—but I do not therefore feel incapacitated from 951 arguing this as a question affecting the welfare of the country and the happiness of all parties concerned, including, I say, most especially those unhappy women who, in a manner which I can hardly characterize with indignation adequate to my feelings, have been betrayed into placing themselves in a position in which men ought never to have placed them. Taking the line I have always done in political matters, I proceed to explain why I advocate the rejection of this measure, when it has been adopted in the other House by so large a majority. If I believed, however repugnant the Bill might be to my own feelings, that it had been calmly and deliberately discussed there, and carefully examined; if the whole subject had been deliberately discussed at public meetings, in the ordinary way in which great political questions are discussed in order to obtain the opinions of the country; if you had had a General Election which had given the constituencies an opportunity of expressing their opinions freely and decidedly; if the organs of public opinion, even on one side of polities, had supported this measure—instead of which the newspaper that is most read and that generally takes the Liberal side in politics advocates the rejection of it, while others take a similar course—if all these had concurred, and if the promoters of the Bill had knocked at the door of this House supported in that way—though I could not have supported the Bill, it would have been a different thing whether I should have exhorted your Lordships—as I now most earnestly do—to reject it. But nothing of the kind has occurred, and I will endeavour to show your Lordships, very briefly and very plainly, what amount of proper consideration the Bill has received, by whom it is promoted, and on what grounds they have proceeded. I have watched this measure for a long while. I had occasion to discuss and oppose it in "another place" in 1848. On that occasion I had the support of Mr. Roebuck and of Mr. Shiel, a Roman Catholic. The state of the case was really this—A certain number of persons, well knowing the state of the law, had induced those whom they ought to have protected with a brother's love to place themselves in the position which has evoked the cry of distress read to us by the noble Lord. That cry of distress is 952 not the only one which has reached my ears. I am very far from wishing to utter a single word which should seem to indicate a want of sympathy with the writer of that letter; but I have also heard expressions of the deepest agony from those who, if this Bill be passed, must be banished from their homes and from their nephews and nieces to whom they are attached. It has been said that this argument is ungenerous and indelicate; but is it, or is it not, the custom in England for a woman to live in the same house with a man who may marry her, and without any other woman? I say, fearlessly, that English society has not tolerated a gentleman living in the same house with a lady whom he might marry—excepting, of course, cases in which there was great disparity of age; and I say that is the natural sense and feeling of English society at this time. In such matters as these it may specially be said—"Let him that thinketh he standeth take heed lest he fall," and it is with the view of keeping the home pure that society has laid down those rules and regulations which constitute its security. I believe you propose to make a change in no way favourable to the objects you propose to benefit, which is deeply distressing to a much larger section of the community, and which is wholly uncalled for by any real need. One of the arguments used in support of a change of the law is, that the sister-in-law is the best guardian and protector of her nephews and nieces. But if, as I believe you will, you drive out 99 sisters-in-law from bereaved families and give a stepmother to the hundreth, I do not think you do much for the protection of the children you commiserate. We have been told that the relief proposed by this Bill is a real and serious want of the poor. Of all the hypocrisy I have ever heard on this subject there is nothing so monstrous as that this is a poor man's question. I know something about the poor, and I am confident they will be the class least affected by the Bill. The poor marry early, and it is very seldom among the poor that the widower finds a sister of his wife unmarried. I am told that in the northern manufacturing districts, owing to accidents and the unhealthiness of employment, husbands die more rapidly than in the agricultural or ordinary town districts; and it may happen in these manufacturing districts in one 953 case in a hundred that the wife may die while a sister is unmarried. But it is interesting to get at facts. Everybody has a right to make philanthropic statements, and no one likes to be cross-examined upon such statements. The first time I opposed this Bill "elsewhere" a clergyman wrote to me saying that—"You have ventured to say that the poor do not desire this Bill. I know 20 or 30 cases in which widowers were ready to marry their deceased wives' sisters." I replied that I would recant all I had said if he would state, on his own authority, that he was prepared to furnish names and addresses so that I might inquire into the facts. I never heard anything more from him. I now come to the reports got up—I can use no other expression—by the persons who favour those marriages. A Royal Commission was appointed, which took the information presented to them; but, of course, had not the means of seeking out for information on the other side, while two able solicitors were regularly retained, and furnished information which supported their view in an elaborate form. In this way we got the numbers—1,608 of these marriages among the rich, and 40 among the poor—a proportion of Kid to 4, or 1 in 40. I believe that is something near the proportion among these classes; for I myself, several years ago, took some little pains to inquire in my own neighbourhood, in two parishes containing 60,000 people and 40,000 poor, and, after employing a very active person to search, I could only hear of one such marriage. However, one of the newspapers, which objected very strongly to my view, said that a City missionary, who had made inquiry in the same district, had found two more. So after scouring the whole field we found three such marriages among 40,000 poor. But then the anonymous gentleman, who is chiefly concerned in this agitation, published a statement in which he thinks he has got me completely, for he says that in these parishes of St. Margaret and St. John he has found 102 such marriages. He does not say among the poor, and as there are 60,000 residents, of whom 40,000 are poor persons, I think it is likely he is right; for your Lordships will see that the proportion of 100 to 3, or 1 in 33, is not very different from the proportion ascertained by the Royal Commission. In the face 954 of facts like this it is idle to talk of this being a poor man's question. But I will tell your Lordships what is a poor man's question, and that is, the sort of house in which poor men usually live. Considering how miserable are their abodes, and how serious are the temptations to which they are exposed there, I am astonished that there has not I been more intercourse of this description. I am sorry to say I have found as many cases of actual intercourse with their own sisters as with their wives' sisters. Such evils arise entirely from our not taking care that poor people should be better housed. But it supplies no argument in favour of this Bill. I come now to the origin of the Bill, and the reasons which induce me—acting, as I believe, in perfect consistency with the views I have always expressed respecting the position of this to the other House of Parliament—which induce me to ask your Lordships to stay this Bill in order that it may be further considered. The noble Marquess who spoke early in the debate (the Marquess of Lansdowne) said he did not care whether the Bill were carried in the House of Commons by agitation or not. Well, the fact that a Bill is carried by agitation is nothing against it, for the Corn Laws were repealed, and the Reform Bill was carried, by agitation; and if we had heard Mr. Bright, who made such splendid speeches on both those topics, addressing large sympathizing public meetings on the grievous wrongs caused by prohibiting marriage with a deceased wife's sister, we should, perhaps, be guided to the conclusion that the people wished for a change in the law. But I have known no public meetings of the sort, though I have attended some on the other side. Lecturers, indeed, there have been, I believe, sent by the society which has set all this in motion. And now a word or two about this society. There were two or three very wealthy men who got themselves into this scrape, and they formed what was called "a Committee" for improving the Marriage Law. That Committee had existed for 24 or 25 years. Rather late in the day—I think after the last time this Bill was thrown out by a narrow majority—we thought it time to see whether we could not diffuse some information on the other side. We got hold of the publications of this body. They were always anonymous, and still 955 are; but we put out our names—some 80 of them, and among them was the right rev. Prelate the Bishop of St. David's, who has been quoted this evening as being opposed to the Scriptural prohibition of these marriages. No doubt, the quotation by the right rev. Prelate (the Bishop of Ripon) was a perfectly accurate one; but the fact remains that the Bishop of St. David's, taking the ground of social expediency, actively opposed this measure. My Lords, we found a systematic misrepresentation of the law by this society, which declared that these marriages were lawful in 1835, when Lord Lyndhurst's Bill was introduced, at the instance of some noble Lord—that was the form in which it was generally put—and then they were for the first time made illegal. Now, this was a gross misrepresentation. From the year 600 to the present time there has never been a period in the law of England in which it was more lawful to marry a wife's sister than a man's own sister or mother. These are not my words; they are the words of Lord Wensleydale in giving the decision of this House in a well-known case. The facts are these—The ecclesiastical Courts in this country administered the law with reference to the matrimonial contract. The lay Courts were naturally jealous of the power of the ecclesiastical Courts in so serious a matter. They felt that their privileges were in jeopardy, because the ecclesiastical Courts, by these means, had the power of bastardizing children and putting inheritances in jeopardy, and therefore they said that they would never allow ecclesiastical Courts to question the validity of marriages made in facie ecclesiœ, after the death of the parents. There thus existed no means of bastardizing the children and of declaring such a marriage void. But the marriage was void, and Lord Wensleydale's opinion was correct. I now come to the exceptions made by Lord Lyndhurst's Act. It is no part of my duty to justify Lord Lyndhurst's Act, nor have I on my conscience any concern with the passing of it; but I may inform your Lordships that that Bill did not render valid any past marriages of this nature. No such thing is said by the Bill. The title of it, being a Bill to render valid certain marriages, may mislead; but there is nothing in the Bill on the subject. This is done—For the future all mar- 956 riages are made ipso facto void within the prohibited degrees; and then there is a clause—and in every way it is a curious clause—which says, as regards the past, that no marriages within the degrees of affinity shall be questioned, though the parties may both be living—it does not say that such marriages are lawful, but that they shall not be questioned, except where a suit is pending. The result is, that if a man had married his wife's niece, or his stepmother, or, as in a case which a clergyman communicated to me, his own son's widow—and he had a child by her—all these marriages would have been protected by Lord Lyndhurst's Bill. The next thing which the anonymous society did justifies the indignation that I cannot help feeling at their conduct. They asserted that it was lawful to contract this marriage abroad, and that such a marriage would be valid here. The only right rev. Prelate who has spoken in favour of this Bill (the Bishop of Ripon) said that somehow or other, after Lord Lyndhurst's Bill, these marriages abroad became much more frequent. I can tell him that this "somehow" was the result of the scandalous conduct of this society. They quoted a dictum of Lord Stowell, that a marriage which was good in one country was good everywhere; and, as a general proposition of law, that is incontrovertible. In the interval, however, which elapsed between Lord Stowell's having said that and these pamphlets being circulated, a decision was pronounced in the Duke of Sussex's case, and there it was clearly laid down that, although the law, as stated by Lord Stowell, was, as a general proposition, correct, yet that it was subject to the exception that a marriage was void if it was opposed to the law of the country from which the contracting parties proceeded with the intention to evade it. Notwithstanding, however, that the law had been clearly laid down in that case, the society still continued to issue these advertisements, although our society had sent to them a statement as to the falsehood and impropriety of that which they circulated. I look upon all this, therefore, as being little less than a conspiracy so far as the poor unhappy woman is concerned who is imposed upon by such proceedings. The man who takes a woman to a country for such a purpose has much to answer for; but this society 957 has much more. The society, however, has large funds, and has been very active. The members of the society have, we have been informed, been meeting everywhere, attending elections, and turning the scale at some of those elections, which they have been able to do by exerting themselves to procure some eight or 10 votes, when the numbers on each side have been pretty nearly balanced. I may say that Lord Campbell and Lord Cranworth, took the same view as myself, and belonged to our society; we were not idle, for we, too, did a little electioneering when we could. But, then, our proceedings were perfectly legitimate and above-board; while these other gentlemen, with their anonymous pamphlets, continued their agitation in the dark: the result being that they at last succeeded in getting a majority of the House of Commons to send up a Bill to this House in 1859. It was thrown out in this House—and this affords a reason for asking your Lordships to follow the same course now: for after this rejection the Bill was not brought forward at all in 1860. In 1861, however, the information afforded by our society produced its effect, and the Bill was rejected by a majority of 5 votes in the House of Commons. In 1862 we had a majority of 148 against 116. And is it merely because there is a majority in favour of the Bill in the present House of Commons that you are to assume that the people of England generally are in its favour? Last year that majority was 99; but this year it was only 70. These are matters which it is well to inquire into; but I shall not now pursue them any further. As to the religious difficulty, I do not think it necessary to enter into it on the present occasion. If we turn to heathen nations, which have no Bibles, we find that their traditions have stood them in good stead as to what was proper and right in these cases. My noble and learned Friend (Lord Westbury) has said that we are laying a heavy yoke on the people of England; but I contend that it is imposing no yoke on a man to tell him where he is in danger, where it is right he should be protected and the home fenced and guarded. It is only when he has the peculiar tendency for which this Bill is intended to provide that he need have any occasion to suffer. But, on the other hand, as matters now stand, the vast majority of the homes of England 958 are fenced and protected by the law. Every country in the world has fenced its homes. The fences may be of different kinds; but, whether by revealed religion or traditional religion, they have been so guarded. Which are the great tragedies of the Greek stage? Œdipus and Phœdra—and do they not turn on the incestuous violation of the home? St. Paul tells us that the case of a man having his father's wife, which is a marriage of affinity, was unheard of among the heathens. The Romans did not allow a man to marry his niece; and when a Roman Emperor (Claudius) unhappily desired to contract a marriage of that kind, he set about it by getting one of his flatterers to use arguments almost identical with those which are urged in support of this Bill. The flatterer said—At enim, nova nobis iu fratrum filias conjugia: sed aliis gentibus sollennia nec lege ullâ prohibita. Morem accommodari prout conducat, et tore hoc quoque in his quæ mox usurpentur.This is exactly what is said in favour of this Bill—it is new to us; but other nations have adopted it, and it is necessary to accommodate our manners to theirs. Now, I do not wish to assert that we are a perfect and pure nation; but I do think that we value the sanctity of home—and that is a great thing. We are somewhat in the habit of washing our dirty linen in the face of all the world; but we need not be afraid of comparing the sanctity of our domestic relations with any other country. In Spain the Roman Catholic Church allows an uncle to marry his niece; but here, in England, such a thing is not sanctioned. It was under Alexander Borgia that the dispensation for a man to marry his deceased wife's sister was first introduced in Portugal; but the Parliament of Paris, as to France, subsequently decided that it was beyond the Pope's power to grant such a dispensation. In the Code Napoléon this particular kind of marriage was prohibited; but, afterwards, a clause was introduced under the Orleans dynasty allowing it to be contracted if a dispensation were previously obtained. As the noble Duke (the Duke of Maiiborough) had said—with regard to degrees of consanguinity and affinity it is obvious that you must draw the line somewhere; and why should we disturb the line which has been laid down for 1,200 years? It is obvious that there is great danger in disturbing the ex- 959 isting restrictions, unless we are prepared to substitute something better in their place; but this Bill would unsettle everything and settle nothing, and it would not give satisfaction to the poor, but only to a comparatively small number of rich persons, who have entered into these engagements with their eyes open, by the advice of an anonymous society which has thought proper to mislead them. At any rate, if the question is to be opened, let it be done thoroughly, so that we may arrive at a settlement upon it that will be likely to last for a century at least. The passage of the present Bill will not effect such a settlement. I think it most necessary that a Select Committee—which has hitherto been refused in the House of Commons—should take the whole subject into consideration. By rejecting the Bill on this occasion your Lordships will enable the subject to be thoroughly reviewed, in all its branches, next year, and I therefore hope that the Amendment of the noble Duke will be carried.
§ EARL GRANVILLE
Your Lordships will readily believe that it is not an agreeable thing for me to address you on this occasion, since I must speak in support of a measure with respect to which two of my Colleagues have expressed themselves in language of such emphatic disapprobation. I do not wish to intrude myself upon your Lordships; but having frequently voted in favour of this measure, I do not like to give—as I have done on previous occasions—a perfectly silent vote. Without travelling over the arguments which have already been so ably discussed during this debate, I desire to say a few words of protest against some of the reasons which have been brought forward this evening to induce your Lordships to reject the Bill. It is necessary, I think, that we should have those reasons placed very clearly before us, when it is proposed to reject a measure which is ardently desired by a not inconsiderable section of our fellow-subjects, and which has been twice approved by the House of Commons as the representatives of the people. The noble and learned Lord on the Woolsack has, indeed, made some remarks on the fluctuating character of the Divisions in the House of Commons. I am afraid I cannot agree on this point with my noble and learned Colleague, and still less with the right rev. 960 Prelate who asked your Lordships not to think that the House of Commons was the representative of the people on a question like this. Now, I must point out to my noble and learned Friend that, although it is true that the majority on the Division List this year was absolutely smaller than it was last year, yet it was relatively larger compared with the numbers in the House, and that the majority will be found to represent an enormously larger number of constituents than the minority. In the absence of other tests, I am old-fashioned enough to think that the opinion of the country is, on the whole, very faithfully reflected by the House of Commons. My right rev. Friend (the Bishop of Peterborough) thought that taking its opinion too blindly would lead us to have recourse to a plébiscite; but I believe, on the contrary, that our confidence in Parliament will enable us to avoid such a violent measure as that. All sorts of arguments have been employed against this Bill. It has been objected to, first, on a religious ground, that it is contrary to the Word of God; secondly, because it is alleged to be contrary to the law of the Church; and, thirdly, because it is inexpedient in itself. In regard to the first objection, I am bound to say it appears to me that this debate has entirely destroyed every vestige of the argument. It is impossible, indeed, to adduce that argument, considering that 35 years ago the whole Bench of Bishops voted in favour of legalizing marriages which we are now told are contrary to the law of God. My right rev. Friend—a Prelate of great learning and moderation—tells us that the Levitical law denounces these marriages; but another right rev. Prelate declares that that law is in favour of such marriages; while a third stated that, after a careful study of the subject, he could not come to any conclusion with regard to it. He said that, putting aside the Old Testament altogether, he thought the words of our Saviour, as recorded in the New Testament, respecting a man and his wife being one flesh, gave a sanction to his own view of the question: he consequently argued that a man who married his deceased wife's sister would actually marry his own sister. I wish, however, to put this case to him. If the wife's sister be the husband's sister she must also be the sister to the hus- 961 band's brother, and therefore it is not competent for the husband's brother to marry her—that is, two brothers may not marry two sisters; although this is permitted by the existing law. The right rev. Prelate did not admit that we were to be so much afraid of imposing the principles of the Church of England upon the other communities in this country, but said it would be very hard if we inflicted injustice and hardship upon that Church. He said that if we pass this Bill we shall oblige a clergyman to hurt his conscience, by his not being able to refuse the rites of the Church to those who wish to contract a marriage that in his opinion is not lawful. I imagine that the consciences of clergymen have been tried in other ways, and once, when the law was passed to enable civil marriages to be solemnized; while some clergymen, I believe, hold that first cousins ought not to marry, and do not like to be called upon to marry persons in that relation. But, my Lords, you must not legislate in a large way merely to avoid scruples which may be exaggerated, and I must consider that the conscience of a clergyman is not really hurt if he carries out that which is the law of the land. What I think is the most important part of the matter is the question—"Is this Bill just and expedient?" The noble Duke (the Duke of Marlborough) has argued that if, in this instance, we make a concession, it will be impossible to limit the demands that may be made upon us; but I do not admit that we shall break down any principle by passing this Bill. The Levitical law is not clearly understood, and there is certainly no concurrence of opinion among the whole body of Christians; and, therefore, we should not be kept in an iron mould with regard to legislation by that book. A large portion of the speech of my noble and learned Friend on the Woolsack was directed against the society which promotes this measure, and I cannot help thinking that he forgot himself, and spoke rather as an active member of the rival society than as one who discharges a duty in your Lordships' House. Everything that he has said against that society was, in my opinion, quite irrelevant to the question that we have to decide. I do not care whether this measure is promoted by rich men or not; because I remember that some of the 962 greatest benefits that have been effected by the legislation of this country have been brought forward by small bodies of rich men. What I ask myself is, whether it is just and expedient that we should adopt the measure that is proposed to us to-day. So far from any blame attaching to those gentlemen, I think that when they found themselves and their poorer fellow-subjects under a grievous restriction, and one the justice of which is not believed by some of the most learned men in both Houses of Parliament, they ought to have strained every nerve to carry a measure of relief in this way. I know that your Lordships do not approve of any reference to the "intelligent foreigner;" but when you have a question of this sort, and you know that in Catholic Prance, in Protestant Germany, and in perfectly unsectarian America, there exists such a law as you are now asked to pass, and that no evil such as is predicted has resulted from the change that has been experienced in those countries, you ought, I think, to regard what has been said in favour of this Bill. My noble and learned Friend talked of wishing to retain the purity of home; but that is almost begging the question, for will anybody pretend that the existing law prevents a profligate or vicious man from going further than he ought in his intimacy with some of his near relations? Can anyone bring any instance against the evidence that has been brought from those other countries, where the state of the law does not, in the slightest degree, affect the relations between husbands and their wives' sisters? It is begging the question to talk about the purity of home, and I entirely deny that all the weight of argument is on the side of those who wish to retain the present law. My noble and learned Friend said that there were fewer of such marriages among the poor than among the rich; but what does that mean? Why it means that the richer, the more intellectual, and the more respectable people marry, while the poorer are told by the clergy that there is a difficulty to their marrying; and to what does that lead? The poor man does that which I believe is not strictly illegal, but is most certainly contrary to the law of God. My noble and learned Friend spoke of his experience among the poor; and no one has, in the midst of a labo- 963 rious life, done so much for the poor both in the metropolis and elsewhere. But I cannot compare his experience with that of the pastoral heads of some of the large parishes in the metropolis, who have signed Petitions, declaring that they are obliged to ask for this measure to relieve them from the enormous amount of immorality that is created by the present law. My noble and learned Friend told us what were the habits of ancient Rome; but I think that the reference to a law which is now in successful operation in the greater part of Christendom is more to the purpose than an allusion to the custom which prevailed in a heathen State. I sincerely vote for this Bill, because I believe it to be wise, expedient, and, above all, just.
, in reply, said, that so much had been said in the interesting debate that it would be impossible for him to summarize it in the time at his disposal. The sole object of the Bill was to bring into harmony the law and the conscience of the people of this country; and he asked their Lordships, as wise legislators, to grant what the people desire. He left this matter in the hands of their Lordships in the full conviction that, by passing the Bill, they would be doing nothing which would tend to destroy the existing security of domestic life, while they would be complying with the opinion of an enormous majority of the House of Commons. If the measure were now rejected, it would come again before their Lordships, when the voice of the people would be heard still more strongly in its favour.
§ On Question, That ("now") stand part of the Motion? their Lordships divided:—Contents 73; Not-Contents 77: Majority 4.965
|Beaufort, D.||Ellesmere, E.|
|Cleveland, D.||Fitzwilliam, E.|
|Saint Albans, D.||Fortescue, E.|
|Normanby, M.||Grey, E.|
|Townshend, M.||Kimberley, E.|
|Abingdon, E.||Minto, E.|
|Albemarle, E.||Morley, E.|
|Camperdown, E.||Portsmouth, E.|
|Clarendon, E.||Bolingbroke and St. John, V.|
|De Grey and Ripon, E.|
|De La Warr, E.||Exmouth, V.|
|Derby, E.||Falmouth, V.|
|Ellenborough, E.||Lifford, V. [Teller.]|
|Powerscourt, V.||Meredyth, L. (L. Athlumney.)|
|Ripon, Bp.||Monson, L.|
|Abercromby, L.||Mont Eagle, L. (M. Sligo.)|
|Balinhard, L. (E. Southesk.)||Mostyn, L.|
|Belper, L.||Overstone, L.|
|Boyle, L. (E. Cork and Orrery.)||Penzance, L.|
|Ponsonby, L. (E. Bessborough.)|
|Camoys, L.||Robartes, L.|
|Carew, L.||Romilly, L.|
|Carrington, L.||Rosebery, L. (E. Rosebery.)|
|Ebury, L.||Seaton, L.|
|Erskine, L.||Sheffield, L. (E. Sheffield.)|
|Gage, L. (V. Gage.)|
|Houghton, L. [Teller.]||Somerhill, L. (M. Clanricarde.)|
|Keane, L.||Stanley of Alderley, L.|
|Lawrence, L.||Suffield, L.|
|Leigh, L.||Templemore, L.|
|Lismore, L. (V. Lismore.)||Truro, L.|
|Lurgan, L.||Wentworth, I,.|
|Meldrum, L. (M. Huntly.)||Westbury, L.|
|Hatherley, L. (L. Chancellor.)||Chichester, Bp.|
|Gloucester and Bristol, Bp.|
|Marlborough, D. [Teller.]|
|Northumberland, D.||Lincoln, Bp.|
|Richmond, D.||Llandaff, Bp.|
|Somerset, D.||London, Bp.|
|Wellington, D.||Oxford, Bp.|
|Exeter, M.||Rochester, Bp.|
|Salisbury, M.||Salisbury, Bp.|
|Bathurst, E.||Boston, L.|
|Beauchamp, E.||Buckhurst, L.|
|Carnarvon, E.||Cairns, L.|
|Devon, E.||Chelmsford, L.|
|Effingham, E.||Churston, L.|
|Erne, E.||Colchester, L.|
|Graham, E. (D. Montrose.)||Colonsay, L.|
|Colville of Culross, L.|
|Hardwicke, E.||Congleton, L.|
|Harewood, E.||Crewe, L.|
|Harrowby, E.||Dinevor, L.|
|Kellie, E.||Dunmore, L. (E. Dunmore.)|
|Manvers, E.||Fitzwalter, L.|
|Nelson, E.||Foxford, L. (E. Limerick.)|
|Rosse, E.||Grantley, L.|
|Selkirk, E.||Headley, L.|
|Shaftesbury, E.||Heytesbury, L.|
|Sommers, E.||Kesteven, L.|
|Eversley, V.||Lyveden, L. [Teller.]|
|Hawarden, V.||Northwick, L.|
|Oranmore and Browne, L.|
|Chester, Bp.||Penrhyn, L.|
|Redesdale, L.||Stewart of Garlies, L. (E. Galloway.)|
|Ross, L. (E. Glasgow.)|
|Sherborne, L.||Strathspey, L. (E. Seafield.)|
|Silchester, L. (E. Longford.)||Sundridge, L. (D. Argyll.)|
|Sondes, L.||Wynford, L.|
§ Resolved in the Negative; and Bill to be read 2a on this day six months.