HL Deb 24 May 1886 vol 305 cc1793-820

Order of the Day for the Second Reading read.


in moving that the Bill be read the second time, said, his task was at once easy and difficult—easy because the measure had on so many previous occasions been ably argued in that House, and difficult because he felt unable to tread worthily in the steps of those who had paved the way for him. He spoke with diffidence in the presence of so many learned Lords when he expressed his humble opinion that the Marriage Law of Europe was founded rather on Roman than on Levitical Law. They knew, on Divine authority, that Moses, for the hardness of their hearts, gave great latitude to the Jews in this respect, and they read that King Solomon had 300 wives and 3,000 concubines. He did not say this irreverently, but to show the absurdity of drawing any analogy between the state of society which existed among the ancient Hebrews and that of our day. Polygamy was a custom among the Jews, and existed among the Christian Societies in the East to the 4th century, the Bishops being restricted to one wife. He believed there was nothing in the Old Testament against a marriage with a sister of a deceased wife, except on very far-fetched suppositions; and he asked permission to read the verse in Leviticus on which for many years the Bill was opposed— Neither shalt thou take a wife to her sister, in the margin the words were "one wife to another"— to vex her, to uncover her nakedness, beside the other in her lifetime, which in the Revised Version was rendered— And thou shalt not take a woman to her sister to be a rival to her to uncover her nakedness beside the other in her lifetime. He could, if necessary, quote Hebrew scholars in support of the plain English reading that where polygamy was allowed this verse prohibited a man marrying two sisters at the same time. The papyrus of the Ancient could not, therefore, be invoked to leave its impress on the parchment of the Modern in the sense adverse to the Bill. In speaking of Roman law, he did not mean that the ecclesiastical adopted the heathen forms, but that the restrictions as to relationship by consanguinity and affinity and previous marriage were, in the main, those which had continued to prevail in modern Europe. With regard to Ecclesiastical or Canon Law, he should be glad to read the opinion given by Lord Stowell; and he believed it was admitted that there was no ecclesiastical lawyer of greater authority than Lord Eldon's brother— When the natural or civil contract is formed it had the full essence of matrimony without the intervention of a priest. It had even in that case the character of a sacrament, for it is a misapprehension to suppose that this intervention was required as a matter of necessity, even for that purpose, before the Council of Trent. In this respect this Bill, therefore, only reverted to the earlier form and practice of Christianity. The decisions of the Council of Trent were generally adopted at the Reformation, and had regulated the Marriage Law of Europe ever since. He admitted that the authority of the Canons of the Church was against him, though he denied that the Canons could fairly lay claim to the title apostolic. A Canon, dated about 305, forbids marriage with a deceased wife's sister; and though he must remind them that these Canons were only for the guidance of the clergy, he admitted that what was good for the life of a Christian clergyman was good for a Christian layman. But these same Canons of the Church forbad a man to marry a widow, or to marry a second time. He did not agree with Athenagoras, writing 160 A.D., that second marriage was deemed adultery. Now, there were Members of the right rev. Bench who themselves had broken this Canon; but it was difficult to maintain that these Prelates were leading blameless lives, with the authority of their Canons to regulate our Marriage Laws. On the Canons rested the authority of the Table of Degrees which was formulated by Archbishop Parker, and adopted by Convocation in 1603. It was printed in the Prayer Book, to which the clergy declared their assent and consent; but it was not in the sealed compact, and had no more authority than the hymns—namely, the humour of the printer, as it was termed. When Lord Lyndhurst introduced his Bill, in 1835, dealing with this subject, the law stated that marriage with a deceased wife's sister was voidable and void—that was, that either party, if they chose to pay the penalty of making the children illegitimate by bringing an action, could have their marriage declared void in a Court of Law. It was also open to an independent party to do this; but this last could be blocked by a friendly suit. After the death of any parent, however, the children were legitimate, and no proceedings could bar the validity of the marriage. Lord Lyndhurst wished to do away with this un- certainty, and proposed to limit this time to six months in respect of existing marriages, for two years in regard to future marriages. But the Bill was opposed by the right rev. Bench, and to enable it to pass an alteration was introduced declaring all past marriages valid and all future ones void. When it was argued, with apparent weight, that this Bill was retrospective and dealt with only one of the degrees of affinity, he must remind their Lordships that Lord Lyndhurst's Act of 1835 did the same, and yet it was eventually passed in that form at the instance of two of the most eminent Prelates of the day—Blomfield, Bishop of London, and Philpotts, Bishop of Exeter. There were many who desired relief now, and they could as justly demand that change in the law as those in whose interest Parliament granted it in 1835. The law forbidding this marriage, though ancient in principle, had been spasmodic in practice. In Roman Catholic times it could be evaded by a dispensation of the Pope. In the Reign of Mary these marriages were decreed lawful. Elizabeth, for reasons of succession, was opposed to their legality. During the Commonwealth they were valid and legal. In Charles II.'s time they were illegal—During Queen Anne's Reign they were common, and were not absolutely illegal until 1835. Instead of enumerating a long list of our own Colonies and other countries where this marriage was legal, he should best place the facts before their Lordships when he said that our insular opinion in this respect was at variance with the rest of the civilized world, and with two-thirds of the English-speaking countries. The inconvenience was apparent, and though Lord Cairns stated his opinion that a man and woman having solemnized this marriage, being domiciled in the Colonies, would on landing here continue man and wife, yet there could be no legal doubt that their children would be illegitimate as regarded the inheritance of a title or real property. This alone, he thought, should justify the alteration of the law, unless any valid objection could be shown to the contrary. It was a fact worthy of remark that the noble Duke (the Duke of Argyll), who now moved the rejection of the Bill, was a Member of the Government which advised the Royal Assent being given to legalize marriage with a deceased wife's sister in South Australia, Victoria, and Tasmania; and perhaps the noble Duke would explain his absence of responsibility in the matter, and why he opposed for this country what he thought right for those Colonies. A better instance could not be shown of the confusion of the present law than a recent decision of the Indian Courts in "Lopez v. Lopez," in which it had been ruled that these marriages were legal between European Roman Catholics, but illegal between European Protestants. He thought, however, that their Lordships would be most influenced in giving their votes by the social view of the case. It was said that no sister-in-law could take charge of a brother-in-law's house if this Bill were to pass. He asked their Lordships, as men of the world, could a young sister-in-law do so now? Would their Lordships allow their daughters, in the present state of the law, to occupy such a position? He was afraid the evil tongue of gossip would prevent it. Proof had been asked for, and doubts raised, whether the working classes desired this Bill. Men who led simple lives adopted simple forms of thought, and working men did not appreciate the subtleties and refinements with which this Bill was opposed. Grief as well as joy was a luxury of wealth, and the poor man must again start on the breadwinner's errand, and experience showed that the natural person he looked to for the care of his children was the sister of his deceased wife. The accommodation of a poor man's house made marriage almost imperative; these marriages constantly occurred in this class, and the parties to them neither lost in public opinion nor in social status. He was afraid, if their opponents were not convinced by the Petitions presented in favour of that Bill from the Nonconformist Bodies, which were essentially the church of the working and middle classes, the Trades Congress, the Convention of Royal and Parliamentary Burghs in Scotland, and by the fact that the labour Representatives in the House of Commons were pledged to vote for it—they did not wish to be convinced. He wished to draw special attention to a Petition signed by 9,000 London cabmen, an intelligent class, in favour of this Bill. He was, however, not one of those who thought that they should legislate for any one class, however numerous; but there were abundant proofs that the middle class desired this change, and of this he was sure—there was no body of men who would constrain their sympathy more than the farming class. Their lives were isolated, and of the middle-class marriages of this kind one-fourth were of farmers. They were not a body easily moved; but in Norfolk 4,500 out of 5,500 petitioned through the Prince of Wales; in Buckinghamshire 1,300 out of possibly 1,700, and in Essex there were similar results in favour of the Bill. He had received numerous letters, expressing the feeling of rural districts, hoping the Bill would pass. Those of the wealthy classes who had made these marriages, perhaps, least claimed their sympathy; but there were these extenuating facts. This Bill had several times passed the House of Commons, and would pass it again. The House of Lords, after rejecting it by very small majorities on several occasions, in 1883, passed the second reading, and adopted the unusual course of throwing it out on the third reading. He did not defend these persons, he only excused them, on the ground that they acted on the general supposition that it was only a matter of time before this Bill would become law. He believed a large number of their Lordships were in his favour on the abstract question of legalizing these marriages; but many objected to marriages being declared valid which had already taken place in the teeth of the law. They might be right in theory, but he was not prepared to set aside the precedent adopted by the right rev. Prelates in 1835, as, in effect, the guilty parties would have their marriage made legal the day after this Bill passed, and the entire punishment of their acts would fall on the innocent offspring. When he mentioned that it was estimated that from 800 to 1,000 of these marriages annually took place here, their Lordships would realize what a matter of importance it was to a vast number of persons. This Bill was short, and its meaning clear. It sought to make these marriages in the future valid and the children legitimate by a civil contract. It was retrospective, as was Lord Lyndhurst's Bill, but it avoided disturbing the existing rights of succession and property. If their Lordships elected to amend the Bill by a clause to protect a clergyman officiating at such a marriage, or to prevent his being compelled to celebrate one against his conscientious objections, he should not consider the point vital to the Bill. There was nothing in the Bill, as it stood, to prevent the religious ceremony being performed, and, indeed, in the present state of the law, persons usually desired the blessing of the Church on their at present illegal union. These marriages, however, as the Bill at present stood, would legally hinge on the Register. They were twitted in 1883 that the Bishop of Peterborough remained unanswered the year previous. There were few who would willingly wrestle in debate with the right rev. Prelate; but that speech, shorn of the brilliant rhetoric of which he was so great a master, read in the cold, calm pages of Hansard, amounted to this—the Levitical ground of defence so long garrisoned was abandoned, and they were asked to reject this Bill because the sister of the deceased wife might become the step-mother, and might be injusta noverca, and that, to prevent any woman incorporating in her own person the double sin of the unjust step-mother and the unkind aunt, they were to reject the Bill. He trusted their Lordships, on the ground of ifs and ands, would not refuse a relief which was earnestly asked for by so large a number of persons. He had endeavoured as briefly as possible, from the Scriptural, the historical, and the social point of view to induce their Lordships to grant the second reading of this Bill. He felt, however, when they would be listening to the stirring tones of the noble Duke (the Duke of Argyll), what a disadvantage the subject incurred by being placed in his hands. He trusted, however, that they would decide on the merits of the case, remembering the Divine precept, "man was not made for the law, but the law for man," and he confidently asked their Lordships to pass the second reading of the Bill.

Moved, "That the Bill be now read 2a."—(The Duke of Saint Albans.)


said, he could assure the House that it was with extreme reluctance he had consented to move the rejection of this Bill. Not that he had any doubt that it was the duty of the House to reject it, but he was afraid this great cause would suffer in his hands. Their Lordships would not be astonished that he should have taken this view, when he explained what was his own personal connection with this question. He was afraid it was now close upon 40 years since he had the honour of entering that House, and he had found upon caclulation that during that long period of years this Bill, or another Bill with the same object, had been before the House once every three years. During the whole of that time he had voted steadily against it; but he had as steadily preserved a rigid silence upon the subject until comparatively the other day. In his early years in Scotland these marriages were never mentioned except in terms of reprobation and abhorrence. He remembered, when a boy, hearing of a marriage of the kind which had taken place in Glasgow; but the parties could not get admitted into any civilized society. So, after he became a Member of that House, he was brought into close personal connection with the man who introduced this measure into Parliament, Lord Francis Egerton, afterwards a Member of that House under the title of Lord Ellesmere, one whom he loved and respected. About the same time another man whom he greatly respected, Mr. Hook, afterwards the Dean of Chichester, was a supporter of the measure. The views of these two men shook his own opinion on the subject; but he might say that after that date he was conscious that he had voted on authority and tradition, and not upon that personal conviction which arose out of a close examination of the facts. Then came a remarkable event, the speech of his right rev. Friend, whom he was sorry not to see in his place, the Bishop of Peterborough (Dr. Magee). The Bishop of Peterborough had been understood to say that he gave up the Scripture argument, and that made a great impression on his mind. But he believed that the Bishop was wholly misunderstood. What he did say was that he gave up the particular text on which so much stress had been laid. He (the Duke of Argyll) himself had misunderstood him, because he thought the Scripture argument rested mainly on that particular text. He then felt the time had come when it was necessary for every man to look into the subject himself, and he determined to investigate it as far as he could, and he determined to vote in favour of that view of the case which he should find to be supported by the evidence of the case. He had carried on his investigations for several years with a deep personal conviction such as he never had before; and he ventured to ask the House to follow him for a short time along the path he had taken. It was necessary to go to the centre of the question at once, and to ask, What right had the Legislature to prohibit this particular kind of marriage? Since he last spoke on this subject he had been overwhelmed with letters — a correspondence voluminous and, he might also say, painful. He had generally found the question pressed home as the burden of their song—"What right have you to interfere with my individual freedom in this matter? You may not approve of the marriage, and I do not ask you to; but what right have you to prevent individual men from exercising their individual discretion upon the matter? He still adhered to the principle that society should not interfere with individual freedom except on clear and distinct grounds; but he need not point out that the question of right, as applied to this class of marriage, involved the general question of the right to impose all prohibitory degrees, and he would reply—"We have the same right to interfere in this case as we have to prohibit a man marrying his step-daughter. We have the same right as that by which we draw our prohibitory degrees at all." Every one of these Marriage Laws was a restriction upon individual freedom. That was no accident of one part of the law any more than another. It was of the essence and of the nature of all Marriage Laws. If he was asked upon what the right to interfere depended, he would say it depended upon the fact that on the Law of Marriage in its two great divisions—namely, the conditions under which a man might contract a marriage, and the conditions under which a man might dissolve his marriage—society itself depended. The noble Duke (the Duke of St. Albans) who moved the second reading had said there was no text in the Old Testament prohibiting this marriage. Neither was there any in the New Testament. It had simply been killed by the spirit of Christianity. One of the greatest and most curious difficulties the United States had now to contend against was that a great society had been formed there founded upon polygamy, and that society had been recruited out of our own country and not out of the ranks of native Americans. He would not waste time by arguing the question whether society rested upon the Marriage Laws or not; but there was one illustration which struck him forcibly, for it was one of the most wonderful phenomena of our day. Why was it that every Mahommedan country in the world was in a state of irretrievable decay? He believed that it was a consequence of the practice of polygamy, and because the principle of the family did not exist. Great men of extraordinary virtue and power had risen up and had disappeared because their virtue was not perpetuated. He thought, then, that there could be no question of the right of society to dictate to individual men upon this great question of the Law of Marriage. The next question that had been addressed to him was—"Admitting that you have the right to interfere, why should you exercise it? Why cannot you trust to the natural repugnance of men for marriages that are unseemly?" Here, again, he had to answer that upon the universal consent of all civilized nations they could not trust to the individual will in this matter. In virtue of his prerogative of reason, man had not that guidance of the instinct which made the comparatively perfect wisdom of the beasts. He went on from reason to corruption and debasement, of which the beasts were not capable. All civilized nations that had adopted the Marriage Law at all had adopted it on the assumption—on the willing assumption very often—that in those highest and dearest interests of Christianity the individual conscience and the individual will were incapable of keeping men within the restraints which were the safety of society. He felt that when he had got so far he had already an invincible armoury against many of the arguments put forward in favour of the Bill. As to the argument that marriage was a civil contract, he would like to ask what other civil contract there was which could not be dissolved by the consent of the two parties? If marriage was a civil contract it was a civil contract having most peculiar attributes, and the bargain between man and woman in respect of marriage could not be broken by the consent of the two parties. It was absurd to complain of the prohibition of this marriage on the ground that it interfered with individual liberty. As to the argument about the inconvenience of not allowing a man to marry his deceased wife's sister, what was that compared to the inconvenience involved in the indissolubility of the marriage tie? Had they not all seen young people marry in infatuation, and soon discovering that they were unsuited to each other, yet that unless proof could be given in particular cases the two persons were kept together all their lives by the law of Christian marriage? Therefore, when they spoke of prohibition in regard to the one particular class with which this Bill dealt it was absurd; and he thought that there were few cases in which a man who wanted a second mother for his child could not find a sensible and suitable person to take charge of them without being compelled to marry his late wife's sister. But there was a question more important. Every society was bound to draw up some Marriage Law interfering with individual liberty. When individuals—the units—could not be trusted in this matter, were we sure that the aggregate of society, guided by principles of mere reason and convenience, could be trusted to draw up a sound and sacred Marriage Law? He doubted greatly whether society could safely be trusted to draw up a Marriage Law which should stand the test of generations. Then, had we any knowledge of some enlightened, some golden age, when man was pure, to which we could go back for an example? Of primæval man we knew nothing, unless we accepted the narrative of revelation. According to the majority of our philosophers, primæval man was lower than any existing savage. It was clear, therefore, that we could not go to primæval man for an example. If we could hear the voice which on a memorable occasion uttered the words, "But in the beginning it was not so," we might be guided to the whole of the Marriage Law. Unfortunately, we had now no such voice to listen to, and therefore we must go back to what was best and greatest in the history of our race, and, in the first place, to the history and literature of the Jewish prophets and lawyers. We had lost entirely—thank God for it—that old antipathy to the Jews which was the disgrace of mediæval Christianity, and we had been shocked to see in recent times something like a revival of it in other European countries. We had admitted the Jews into both Houses of Parliament; they were honoured members of our society, and fulfilled, as many Christians did not, the highest duties of citizenship and the highest charities of life. But he regretted to say that the old feeling of contempt was not extinct; instead of religious antipathy we had arrived at the stage of philosophic contempt. People asked why we should go for guidance in these matters to the Jews, saying that they were only a little, insignificant people settled in the extreme Western part of Asia? He was surprised that people should so talk as if they had been the first to discover that the Jews, as a people, were very insignificant. Why, what did their own lawgivers say to them? "The Lord has not set his love upon you nor chosen you because you were more in number than other people." Their lawgivers reiterated over and over again that they were small and insignificant, and drew the inference that a higher power must be supporting them, there being no other way to account for their extraordinary history. From their Lordships, who were supposed to revere the hereditary principle, the Jews could claim special regard. What were their titles of nobility compared with the descent of the Jews? They were proud when they could go back to the Norman Conquest or to the Anglo-Saxon race—dates of yesterday as compared with those of the ancestry of the Jews. He did not understand why the Jews were spoken of disparagingly. What a wonderful thing was their preservation as a separate people! It had been said that they had been preserved by natural causes. That might be so; but from the working of so many natural causes for the preservation of a special people supernatural interference in its favour might be inferred. If a philosopher without any knowledge of Christian doctrines, and without belief in the continuity of the Jewish and Christian Churches, could appear suddenly in this world, he would, he believed, after investigating history, come to the conclusion that if there were a God in Heaven and if the Divine voice had ever spoken to man on earth it had done so through the Jews. He held, then, that it was most reasonable to go back to the history of the Jews for guidance in this matter. Looking at the chapter in Leviticus it was apparent that it laid down a certain principle, and gave certain examples, but that it did not pretend to exhaust the examples. It laid down, first, a prohibition of marrying with nearest kin; and, secondly, laid down the principle that in calculating nearness of kin affinity was equal to consanguinity. There were 12 examples given of forbidden marriages, and of these no less than seven were instances of affinity—such as that of a man marrying with his deceased wife's aunt, the reasoning being that she is his aunt by marriage, and therefore equivalent to his aunt by blood. A marriage of this kind at the present time occasionally occurred on the Continent by special dispensation, and it there provoked no repugnance, though it would here, where it was unknown. He did not wish to dictate to any Member of the House as to what weight he should attach to the practice of the Jewish Church. But if they could find in any part of human history anything like a voice higher than our own it was in the Jewish Marriage Laws, which were so intimately connected with the preservation of the Jews to the present day. But turning away from the Jews to another people, perhaps the noblest specimens of humanity ever seen upon this earth— the Roman people— this prohibition was also found. One was apt to think of the Romans as mere soldiers. They certainly were great soldiers; but there were at the present moment millions of people whose ancestors never saw the gleam of a Roman sword who were now living under the influence of Roman law. The Romans were not mere soldiers; they were the greatest lawgivers and the greatest magistrates that the world had ever seen, and they forbade such marriages as these. So, again, the Code Civile, which was one of the noblest works of the First Napoleon, prohibited marriage with a deceased wife's sister. Napoleon engaged the greatest jurists in France, who had escaped from the Revolution. They sat from week to week, and from month to month, calling in all possible assistance that they could obtain, and a meeting was held with regard to the subject of marriage in 1805, with Napoleon himself in the chair. The point arose whether marriage with a deceased wife's sister should or should not be allowed? Some of the Commissioners were of one opinion and others of another. The Minister for Justice argued that such marriages should be prohibited, and stated that the permission given to such marriages by the law of 1792 had brought trouble into families, and was the chief cause of the applications for divorce then before the Courts. Another of the Commissioners demanded the prohibition on the ground of morality, though suggesting that they might be allowed where a dispensation was obtained. Another stated that all the Courts of Justice testified against such marriages. Now, the men composing that Commission were wholly free from Church authority of every kind, and considered this question upon the basis of their experience as men of the world. Napoleon himself spoke, and then it was resolved—first, "that marriages between brothers and sisters-in-law are prohibited;" and, secondly, "that no dispensation for these marriages be permitted." He had now quoted the opinion of the Jews—a nation whose laws were by many believed to be of Divine origin—the opinion of the Romans, the most magisterial people in the world, and the opinion of the jurists of the French Empire, and all these agreed in prohibiting that class of marriages which this House was now asked by this Bill to permit. He would now call to his aid the authority of reason and logic. In the nearest and dearest of all human concerns society was bound by the intelligible method of reason, and to carry it out to its logical results; and he maintained, therefore, that the degree of affinity would stand or fall as a whole. Two years ago he had said that he had never heard any argument brought in favour of this Bill on the ground of reason, or consistency, or logic which would not go equally to the abolition of all degrees of affinity, and he had referred to the case of a man marrying his wife's daughter by a former marriage. The noble Lord who had followed him had expressed his abhorrence of such a marriage, and he had no doubt that that abhorrence was genuine; but persons would rise and ask what right they had to interfere with a man's liberty in this respect? With regard to this case of a step-daughter, they were accustomed to think of cases in which the step-father and the step-daughter were separated by a great number of years, which added to the disgust felt as to the idea of such a marriage. But if they laid down the principle that affinity was nothing, he did not see where they could stop. He remembered a case, which many probably of their Lordships would also recollect, where a young and handsome man had married an elderly lady who had two handsome daughters, from whom he was not separated by any number of years, and whom he had constantly taken out in society. Thus, as far as repugnance went, they could not trust to it the moment that the law was altered. Logic required that if they prohibited any of these degrees they must prohibit them all. In every Church, including all the Reformed Churches and the Churches of the East and West, it was affirmed a logical principle that a man might not marry any woman nearer in affinity to his wife than would be lawful if the affinity were to himself. His noble Friend (the Duke of St. Albans) had talked about the inconsistency and confusion of the present law; but, for his own part, he must say that it required a great deal of boldness to talk about the inconsistency of the law. It was now quite consistent. It was those who wished to change it who would make it inconsistent. Many who had spoken of Lord Lyndhurst's Act seemed to have been grossly misinformed. He used to hear it said in that House that these marriages had been voidable, but not void, and had been made void for the first time by that Bill. He had studied the Bill, and from the beginning to the end of it there was not one word about wives' sisters; the change had been a general one in the whole of the law, and Lord Lyndhurst had not picked out this marriage and made it void. Nine speakers out of 10 seemed to think that this was so; but the case was nothing of the kind. All marriages of affinity, all prohibited degrees, had been on the same footing before Lord Lyndhurst's Act, and they were on the same footing now. There was another part of the Bill which, in his opinion, would add enormously to the muddle and confusion of the law. He did not know whether their Lordships would recollect that on a previous occasion it had been pointed out that if the prohibition against marriage with a deceased wife's sister were withdrawn it would have a most unfortunate effect upon the law of divorce. In this country a woman was not on the same footing as a man with regard to the power of getting a divorce for what was called simple adultery; but in the case of incestuous adultery she could get a divorce. If this Bill were passed a wife would lose the power of getting a divorce when the husband committed adultery with her sister. Lord Houghton had been so conscious of this injustice that in his Bill he had distinctly saved the woman's remedy in such a case. Now they were to be deprived of that remedy, so that a woman who saw an intrigue going on in her own house between her husband and her sister would have no remedy for such a monstrous wrong. He asked legal Members of that House, who had been brought up in one of the noblest of all Professions to interpret the law in a sense of equity between all parties, whether they could vote for a measure which introduced such absolute confusion and such hideous injustice into the relations between man and woman? Before he sat down he wished to refer for a moment to an appeal which had been made by the late Lord Houghton with regard to this matter. Lord Houghton had appealed to the younger Members of that House against the antiquated prejudices of their elders. They would perhaps allow him to say, as one who had spent much time over these matters, that these great problems of humanity could not be solved by reason and common sense without an appeal to any higher authority. If our reason were supplied with false data from the passions it must carry us wrong. However indifferent a man might be to the authority of the Christian Church, he could not conceive of anyone disregarding the fact that the Eastern and the Western Churches and the Churches of the Reformation were united on this matter. He admitted that Churches and General Councils had erred, and might err, in matters Divine; but he believed that in this great question of law, this ethical foundation of society, we ought to hear a voice saying—"This is the way, walk ye in it." The voice spoke to us through the ages, from the days of Patriarchs and Prophets, through Roman Emperors and French Republics, and it called upon us to reject this Bill and to stand fast in the ancient ways. He moved that the Bill be read a second time that day six months.

Amendment moved, to leave out ("now") and add at the end of the Motion ("this day six months.")—(The Duke of Argyll.)


said, he as emphatically asked their Lordships to read the Bill a second time, and he would give his reasons for saying that the law which it was intended to repeal was a most cruel and mischievous one, and one which was utterly without justification—at least, according to the best opinion he could form. He hoped that the speech which had just been delivered with so much zeal and earnestness, and with so much eloquence by the noble Duke (the Duke of Argyll), would not have the effect intended. No one denied that the State had a right to interfere between men and women in regard to marriage; but what was denied was the right to interfere with this particular marriage. No one denied the right of society to prevent marriages which would be injurious to society. What was denied was the right to prevent the marriage of two persons of fit age and station in life who were in every way fitted to enter into matrimonial relations. In many cases there was the additional fact that the woman was tenderly attached to her bereaved nieces and nephews, and desired to take care of them decently and properly; yet the law, while it did not prohibit the marriage ceremony, said that the marriage was void. He would read to their Lordships a letter he had received, and which he hoped would not be published, as it might interfere with the writer's peace of mind. The letter seemed perfectly genuine, and the writer seemed to have acted with the greatest propriety. He states that he is a tradesman, that his wife died four years ago; her sister had then lived with them for 13 years; and it was the express wish of the dying wife that her sister should take her place. The parties desired to do what was right in the matter, and they waited for some time in the hope that this Bill would become law. Finding that there was nothing in the Word of God against the marriage of a deceased wife's sister, he and the lady proceeded to Switzerland, where the ceremony was celebrated. He, the writer, added that the union was a very happy one, and he was sin- cerely glad he had taken that step; but, he added, it involved an expense which in his position he could not well afford, and he knew others in a similar position on whose account he should be glad to see an alteration in the law. The man desired to obey the law, and to act according to his notion of religious obligation. His case was that of a large number of other persons, who either went abroad to be married, believing the marriage valid, or who went through the ceremony here, knowing well that, although the ceremony itself was not illegal, the marriage was void. A pamphlet had been issued, in which 100 cases were mentioned in which misery had resulted from inability to marry. The law was cruel—it was also mischievous. In Glasgow there were 27,000 families living in single rooms. In those families many mothers must die in the course of the year. Some woman must be found to take care of the children left. The most natural person to do so was the deceased wife's sister. The noble Duke had written a letter, in which he said that reason and instinct could not be trusted in this matter, showing that they were not opposed to marriage with a deceased wife's sister, yet the law denied it. Had the noble Duke contemplated what must and what did happen? Was not this a mischief and a grievance that ought to be looked to? This was a practical measure; and it was no objection to it to say that it was theoretically imperfect or logically incomplete. As to the suggestion that a man might claim to marry his step-child, he was inclined to think that such a marriage was forbidden. If a man were forbidden to marry his father's widow, who was not his mother, it seemed to follow as a logical consequence that the marriage of a stepparent with a step-child was forbidden, and that the step-father could not marry the step-child any more than the stepson could marry the step-mother. With regard to theological arguments, he admitted that he did not love theologians. If they were to burn all theological books from the earliest down to the last issued, and read the Sermon on the Mount, the world would be more Christian and happy than it was at present. The noble Duke who moved the rejection of the Bill (the Duke of Argyll) gave his assent, when Secretary of State for India, as one of the Cabinet which assented to the Acts authorizing those marriages in South Australia, Victoria, and Tasmania; but when he was asked by the noble Duke who moved the second reading (the Duke of St. Albans) how he accounted for his apparent change of opinion, no answer was given.


No answer was due. The noble and learned Lord must know perfectly well that these things are done without the slightest reference to individual or personal opinion.


said, he did not know that that was so. He thought that when a Cabinet gave its assent to a measure it approved of it; but that might not be the case. It was argued from the words of the Scriptural text, "man and wife are one flesh," that there could not properly be a marriage between a man and his deceased wife's sister. The quotation was simply a metaphor, and it was utterly unreasonable to turn a metaphor of that kind into a positive law. The noble Duke said that he (Lord Bramwell) would object to the expression "marriage tie." Not so. But he should object if anybody said there was a tie, and so a man could not be sent to prison without his wife going too. If the expression was treated not as a metaphor, but a statement of a physical fact, then it would follow that if a man and a woman married, the brother of the man and the sister of the woman could not marry. He saw no answer to that. If by the marriage of A and B they became one flesh, then C, who was A's brother, could not marry D, who was B's sister. Then as to the argument from the Old Testament. An Archdeacon had said— As for the Septuagint translation, we know perfectly well that it was not made by one author or by one set of authors, but by different men at different times, and of very unequal knowledge of Hebrew. And it is more than possible that, this being a difficult expression, the translator merely, as in many other instances, rendered the original word for word. Its difficulty and the example of the Septuagint were a double snare to the framers of the authorized version; but though, out of deference to the Septuagint, to which they were in other places much indebted, they gave this rendering in the text, they placed an alternative reading in the margin, which, no doubt, is the true one. Therefore, according to the Archdeacon, out of deference to the Septuagint, the framers of the Authorized Version put the wrong translation in the text and the right one in the margin. That seemed strange, especially when it was remembered that 99 Bibles out of 100 were printed without anything in the margin. It was suggested that verse 18 prohibited polygamy, which was strange, considering the wives of David and Solomon. But the Revised Version set that right. It showed that the body, and not the margin, of the Authorized Version was correct. But that text was, by implication, a permission of these marriages. To forbid them in the lifetime of the sister was to permit them afterwards. Their Lordships would remember that the third of the Patriarchs married two sisters, Leah and Rachael, both being still living. It was afterwards prohibited that a man should marry the second sister while the first was alive; but was it conceivable, as contrary to nature and instinct, that that marriage of the Patriarch would have taken place if there had been anything intrinsically wrong in it? He could not but think that if it were intended to prohibit polygamy it would have been prohibited in direct terms. The text was interpreted by the Jews themselves in the way he contended for, and who would say that he could interpret the books of the Jews better than the Jews themselves? The text was so interpreted by all the best authorities out of England—in the Colonies, and in general in all foreign countries. In all the countries to which he referred, every authority was in favour of the interpretation for which the supporters of the Bill contended. The law, as it stood, contained some of that spirit which in former days made theologians persecute. The belief of the Jews was that they might marry a deceased wife's sister. The law at present said they could not do so validly. By what possible right could we compel them not to do that which they thought it perfectly reasonable for them to do? But if the law was wrong as to them, it was equally wrong as to the Christian who did not agree with it. Direct persecution for opinion was given up. A man was not punished for not believing in the Trinity or Episcopalianism. He was allowed his opinions on those, why not on this matter? According to the law, as it at present stood, a man could not act upon his opinion. That was persecution. There were many hundreds who would gladly suffer imprisonment and pay a heavy fine if they could make these marriages valid. But these marriages were objected to on social grounds. It was said that perfect intimacy might exist between a man and his wife's sister, the wife living without danger, as they would know that if the wife died they could not marry. The argument was shocking; for it involved that, if they could marry, the intimacy would be dangerous. Was this true of English men and women? Did men indulge a detestable passion for their wives' cousins and friends because after the wife's death they could marry? If every other consideration of decency and morality had been got rid of, was it to be supposed that an inability to marry would deter? Another argument against the Bill was that after the wife's death the sister might live with the husband without reproach, because he could not marry her. But Archbishop Whately had said that it would be much more reasonable to suppose that they could live together without reproach if they could marry. He had called the attention of their Lordships to what he considered to be the evils of the present law, and he would now again remind them that though this law existed here it did not exist in our Colonies. That this provision of the law was a cruel one could not be doubted, and it could not be doubted that it was mischievous. He maintained that neither in the Old Testament nor in the New was there any foundation for this law; and as for the social considerations which had been advanced in support of it they were utterly untenable, and, as far as they were of any value, they went to show that the law should be altered.


said, he was sure he was speaking the feelings of the Bench to which he had the honour to belong when he said that they had been proud to listen to the speech of the noble Duke (the Duke of Argyll), and to feel that there were laymen, with clear and powerful intellects, who had followed up conclusions at which they had arrived, and had verified them. The noble Duke had said that he did not know whether he could pass muster with them. He (the Archbishop of Canterbury) could only say that if the noble Duke always looked into the arguments used by the Bench for many generations in such style as he had looked into them that evening, they would be thankful to pass muster with him. He thought it was well that they should realize that the old social fabric was based upon the family group; that the family bond was in harmony with all the conditions and wants of life; and that any prosperous community must be an aggregate of happy families. There was, in fact, little happiness that was not connected with domestic life; and if there was a country in the world where that was true, all were glad to believe that it was true in England. As to what was the family, the present law was clear and distinct. The composition of the family was made up of the married pair and their children, as its centre, and each partner contributed a set of relations, their own intimate blood relations. Those component parts formed the family circle. Each partner contributed a semi-circle. The mark which was set on the members of the family, as regarded one another, was that they who formed its centre might not marry or be given in marriage. That was the safeguard. The children and the parents might not marry each other, nor might they marry the nearest blood relatives of either parent. The actual steps had never been named more simply and clearly than by Cranmer, in a State Paper addressed to Thomas Cromwell in 1536. He said, regarding the family, that the women whom a man should not marry were his mother and mother-in-law, his daughter or daughter-in-law, his sister or sister-in-law, his aunt or aunt-in-law, his niece or niece-in-law. That was clear, and intelligible, and consistent. But the proposal now before them would except from the family circle one single woman in an arbitrary way. The first woman, in fact, chosen for him to be allowed to marry was the person whom, since his marriage, and possibly prior to it, he had always spoken of as his sister. That was without precedent in the Christian Church, it was unknown to the Roman Law, and it was unknown to Judaism. What he wished now to insist upon was that, if this marriage was not immoral, it was still imperfect in principle. Such a step was a retrograde step, going back beyond anything that was known of law. It would, in fact, constitute in public opinion an inferior class of marriages. Before he went further on this subject, he ventured to declare that the consciences of the poor on this subject in no way differed from the consciences of the rich. No doubt, opinion would be divided among the poor; but he was satisfied that the number of the poor who wished for the Bill to pass was not larger in proportion than that of the rich. The working man was always brought forward as a sort of spectre on occasions of this sort, or he was thrown in as an unknown quantity to make up some weight that was felt to be too light to pass without him. But he ventured to think it was insulting to the working man to be put forward in this case as in favour of a Bill which really had its origin with a few rich people. He recollected that the noble and learned Lord (Lord Bramwell) who had just sat down said two years ago that if the prohibition was to be found in the Scripture there was an end of the matter. That statement made a great impression on him at the time, because he supposed it to imply that the noble and learned Lord knew and had accurately examined what was in the Scripture. He found himself considerably relieved, however, by one of the noble and learned Lord's arguments that evening, which proved that in this supposition he had been mistaken. He himself had come to the opposite conclusion, based not upon a single text, but upon the distinct construction of the entire context. Moreover, the noble and learned Lord had not observed that there were two classes amongst the Jews themselves, and therefore his whole argument, as to the interpretation of the Jews, came to nothing. Now, as to the Levitical Law, he wished to inquire whether it sanctioned the idea of the family we had in England; and whether the Marriage Law in Leviticus rested on the same foundations as the law of England? It was an error to suppose that the controversy turned upon one verse in Leviticus. That was a very difficult and obscure text; the expression in it on which all turned was continually used metaphorically, and there were two schools among the Jews, as among other scholars, taking different views as to its force here. The interpretation of the text by the Jews, therefore, had no determining weight. In support of his case he preferred to take a broad and complete view of the principle of the whole chapter. It said that among the nations dispossessed the law of nature, as affecting the family, had been violated. Now, the family treated of was exactly the same as existed in England at this moment, and therefore the law of nature referred to in the chapter was applicable to the English family. In the list of prohibitions, each case stated included, as the noble and learned Lord himself maintained, the corresponding case. The series stated was not the double series. Thus a son was forbidden to marry his mother; but it was not stated that a daughter was not to marry her father. No one doubted that it was included. The single case was given for the sake of brevity. If one pair were expressly forbidden to marry, the corresponding pair were under the same prohibition. Throughout, the same method of stating appeared. A brother was forbidden to marry his brother's wife; accordingly, it was clear that a sister must not marry her sister's husband. If it was not meant that a sister should not marry her sister's husband, then either the sister-in-law was out of the family, while the brother-in-law was in it; or else she was in the family, and the one sole person in it to whom the rules regulating the marriage relations of its members did not apply. The dilemma was absolute, and there was no ground for either of those suppositions. The principle upon which the prohibited marriages were forbidden was stated nearness of kin, and that nearness of kin included affinity just as it did consanguinity. More cases of affinity were expressly named as forbidden than cases of consanguinity. Not only so; the 14th verse laid down that a man must not marry his father's brother's wife; and, read in conjunction with the 6th verse, it brought in express terms the marriage of affinity into the category of marriages of consanguinity. "Thou shalt not marry her, she is thine aunt." Yet she is no blood relative. Some people said—"If this marriage is wrong, what do you make of the marriage which is commanded between a man and the widow of his brother who has left no children?" His reply was that the case of this childless widow was not only an exception, but that it was treated as an exception. The union was never regarded as marriage; and the child born of it was treated as the son of the deceased brother, whose heir he was. The brother of the deceased man was held bound to give his brother an heir to inherit his property, and the child was not the heir of his natural father. Again, there was only one instance of the application of this law in the Scriptures. It was in the Book of Ruth; and the person who married the deceased man's widow was not his brother, but a near relation. Then, as to the argument based on the statement that husband and wife were one flesh. Whatever the noble and learned Lord might rule, it was by no means clear that physiologists felt certain that the expression was wholly a metaphor; but supposing it were, metaphors were used to illustrate principles, and the principle which this one illustrated was that the two heads of the family must not marry blood relations. It affected no one else. It was absurd to deduce from this, as some people did, in order to throw ridicule on the one-flesh argument, that the relations of the wife must not marry the relations of the husband. But now, setting aside the inferences to be drawn from Scripture, was it expedient that the Bill should pass? Was it expedient that the Legislature should create an isolated class of marriages which would be held by a large portion of the community to be a violation of the family tie and of Scripture? The greatest happiness of the greatest number, the principle upon which all social legislation ought to be undertaken, would not be promoted by this measure. That would be a grievous day when, according to the consciences of the large population, represented by the moral and religious teachers of the nation, Nonconformists as well as Churchmen, the Divine law and the law of England should be at variance. He did not believe that any earnest Nonconformist would strive to wound the Church for sake of gaining a momentary triumph. But supposing that the Church's influence could be lessened by the acceptance of legislation such as was proposed, what would be the next step? The views of the Church having been disregarded, what set of opinions could afterwards be sure of respect? Any increase of happiness that the passing of the Bill would create would be bought at the price of very heavy sorrow, for it would cause the breaking up of many homes. He had received many letters on this subject—one of them from a lady, who wrote that she had recently recovered from an illness, during three weeks of which she was hanging between life and death; she had two sisters devoted as sisters to her husband and children, but they would never consent to fill her place; she had known that if she died those sisters would have remained and mothered her children; but if the Bill were to pass they must leave the house, and there would be no one to take care of her orphans. There were many similar cases to this. On the other hand, if the Bill passed, there would, no doubt, be rejoicing on the part of the few who had broken the law, rejoicing at the triumph over the experience of so many civilized ages; the rejoicing of persons who had sacrificed their reputation and risked all on the prospect that the old law of England might be changed. But, even if the law were changed, these marriages, however legal, would never be as other marriages in the view of almost all earnest religious people; they would still be, as they were new, ashes in the mouth.

On Question, That ("now") stand part of the Motion? Their Lordships divided:—Contents 127; Not-Contents 149: Majority 22.

Wales, H.R.H. the Prince of Derby, E.
Ducie, E. [Teller.]
Ellesmere, E.
Herschell, L. (L. Chancellor.) Fife, E.
Fitzwilliam, E.
Spencer, E. (L. President.) Fortescue, E.
Granville, E.
Innes, E. (D. Roxburghe.)
Beaufort, D.
Bedford, D. Kilmorey, E. [Teller.]
Marlborough, D. Kimberley, E.
Portland, D. Leven and Melville, E.
St. Albans, D. [Teller.] Lonsdale, E.
Westminster, D. Malmesbury, E.
Morley, E.
Northbrook, E.
Abergavenny, M.
Ailesbury, M. Onslow, E.
Cholmondeley, M. Rosslyn, E.
Normanby, M. Saint Germans, E.
Ripon, M. Sandwich, E.
Suffolk and Berkshire, E.
Sydney, E. (L. Steward.) Vane, E. (M. Londonderry.)
Abingdon, E. Westmorland, E.
Airlie, E. Zetland, E.
Ashburnham, E.
Camperdown, E. Canterbury, V.
Chesterfield, E. Hampden, V.
Clarendon, E. Powerscourt, V.
Clonmell, E. Sherbrooke, V.
Cowley, E. Torrington, V.
Cowper, E. Wolseley, V.
Kenmare, L. (E. Kenmare.) (L. Chamberlain.) Lyttelton, L.
Mendip, L. (V. Clifden.)
Monk Bretton, L.
Alcester, L. Monson, L.
Auckland, L. Monteagle of Brandon, L.
Belper, L.
Blackburn, L. Napier, L.
Boyle, L. (E. Cork and Orrery.) Northington, L. (L. Henley.)
Brabourne, L. Ormonde, L. (M. Ormonde.)
Bramwell, L.
Calthorpe, L. Poltimore, L.
Camoys, L. Ramsay, L. (E. Dalhousie.)
Carew, L.
Cloncurry, L. Revelstoke, L.
Congleton, L. Rodney, L.
Conyers, L. Romilly, L.
Cottesloe, L. Rosebery, L. (E. Rosebery.)
Dorchester, L.
Elgin, L. (E. Elgin and Kincardine.) Rossmore, L.
Rothschild, L.
Elphinstone, L. Sandhurst, L.
FitzGerald, L. Sefton, L. (E. Sefton.)
Granard, L. (E. Granard.) Shute, L. (V. Barrington.)
Greville, L. Somerton, L. (E. Normanton.)
Gwydir, L.
Hare, L. (E. Listowel.) Stanley of Alderley, L.
Harris, L. Strafford, L. (V. Enfield.)
Hastings, L.
Hay, L. (E. Kinnoul.) Sudley, L. (E. Arran.)
Hobhouse, L. Suffield, L.
Houghton, L. Teynham, L.
Howard de Walden, L. Tredegar, L.
Howth, L. (E. Howth.) Truro, L.
Kenry, L. (E. Dunraven and Mount-Earl.) Tweedmouth, L.
Vaux of Harrowden, L.
Kensington, L. Vernon, L.
Kintore, L. (E. Kintore.) Walsingham, L.
Wenlock, L.
Lawrence, L. Wentworth, L.
Leigh, L. Westbury, L.
Lingen, L. Wolverton, L.
Londesborough, L. Worlingham, L. (E. Gosford.)
Lurgan, L.
Canterbury, L. Archp. Carnarvon, E.
York, L. Archp. Coventry, E.
Dartmouth, E.
Buckingham and Chandos, D. Devon, E.
Doncaster, E. (D. Buccleuch and Queensberry.)
Grafton, D.
Leeds, D.
Newcastle, D. Essex, E.
Northumberland, D. Gainsborough, E.
Richmond, D. Haddington, E.
Hardwicke, E.
Abercorn, M. (D. Abercorn.) Harewood, E.
Harrowby, E.
Bath, M. Iddesleigh, E.
Bristol, M. Lanesborough, E.
Bute, M. Lindsay, E.
Exeter, M. Lindsey, E.
Hertford, M. Lucan, E.
Salisbury, M. Manvers, E.
Mar and Kellie, E.
Annesley, E. Morton, E.
Aylesford, E. Mount Edgcumbe, E.
Beauchamp, E. Nelson, E.
Belmore, E. Northesk, E.
Buckinghamshire, E. Orkney, E.
Cairns, E. Poulett, E.
Powis, E. Crewe, L.
Ravensworth, E. Denman, L.
Rosse, E. Deramore, L.
Scarbrough, E. Digby, L.
Selborne, E. Dinevor, L.
Sondes, E. Douglas, L. (E. Home.)
Stanhope, E. Egerton, L.
Strathmore and Kinghorn, E. Ellenborough, L.
Esher, L.
Tankerville, E. Fermanagh, L. (E. Erne.) [Teller.]
Waldegrave, E.
Wilton, E. Forbes, L.
Forester, L.
Bangor, V. Foxford, L. (E. Limerick.)
Bridport, V.
Clancarty, V. (E. Clancarty.) Gage, L. (V. Gage.)
Halsbury, L.
Cranbrook, V. Hammond, L.
Halifax, V. Harlech, L.
Hardinge, V. Hartismere, L. (L. Henniker.) [Teller.]
Hawarden, V.
Sidmouth, V. Hawke, L.
Herries, L.
Bangor, L. Bp. Heytesbury, L.
Bath and Wells, L. Bp. Hillingdon, L.
Chester, L. Bp. Howard of Glossop, L.
Chichester, L. Bp. Kenlis, L. (M. Headfort.)
Durham, L. Bp.
Gloucester and Bristol, L. Bp. Kenyon, L.
Ker, L. (M. Lothian.)
Hereford, L. Bp. Lamington, L.
Lichfield, L. Bp. Massy, L.
Llandaff, L. Bp. Montagu of Beaulieu, L.
London, L. Bp.
Newcastle, L. Bp. Moore, L. (M. Drogheda.)
Oxford, L. Bp.
Rochester, L. Bp. Mostyn, L.
St. Albans, L. Bp. North, L.
St. Asaph, L. Bp. O'Neill, L.
St. David's, L. Bp. Oranmore and Browne, L.
Truro, L. Bp.
Winchester, L. Bp. Polwarth, L.
Ponsonby, L. (E. Bessborough.)
Arundell of Wardour, L.
Raglan, L.
Ashford, L. (V. Bury.) Rayleigh, L.
Bagot, L. Ross, L. (E. Glasgow.)
Balfour of Burley, L. Saint Oswald, L.
Blachford, L. Scarsdale, L.
Botreaux, L. (E. Loudoun.) Silchester, L. (E. Longford.)
Brancepeth, L. (V. Boyne.) Sinclair, L.
Somers, L.
Braybrooke, L. Stratheden and Campbell, L.
Brodrick, L. (V. Midleton.)
Sundridge, L. (D. Argyll.)
Brougham and Vaux, L.
Templemore, L.
Carysfort, L. (E. Carysfort.) Trevor, L.
Wigan, L. (E. Crawford and Balcarres.)
Chelmsford, L.
Clanbrassill, L. (E. Roden.) Windsor, L.
Winmarleigh, L.
Clifton, L. (E. Darnley.) Zouche of Haryngworth, L.
Coleridge, L.

Resolved in the negative.

Bill to be read 2a on this day six months.

House adjourned at a quarter before Eight o'clock, till To-morrow, a quarter past Ten o'clock.