§ Order of the Day for the Second Reading, read.
*THE DUKE OF ST. ALBANS
In moving the Second Reading of this Bill, if I seem too briefly to touch on this important question it is not from any want of interest in its success, or ample materials at my command in its favour, or of respect for the House. I have already stated my reasons for this alteration of the marriage law, and wish to leave time for those who can place arguments before your Lordships with more ability, weight, and knowledge than I possess. I can claim that I have been careful not to trouble your Lordships unnecessarily with a question which is painful in itself, and with arguments which were or must be of a distressing character. It was wished in 1887, when the presence of many of our Colonial fellow-subjects, to whom this question is of such vital interest, might be of advantage, to bring this question forward. Those with whom I act were successful in arranging that the matter should rest in the Jubilee year, seeing the improbability of its passing the House of Commons, and that your Lordships had rejected the Bill in 1886. But our opponents 1482 would not let sleeping dogs lie, and the representatives of the right reverend Bench attacked us in clerical debate, and in the magazines. The Bishop of Oxford, whose absence we regret, writing in the Nineteenth Century, said:—Half-a-dozen young men hastily summoned from the race-course to give a vote in harmony with the opinion and wish of some distinguished personage, have been able to influence divisions on which the welfare of every family in England depended. They may have had as little desire to take that part as they had opportunity of acquainting themselves with the merits of the question which we are considering; but the Parliamentary game required their presence, and seemed to place the stakes of victory at their disposal.This is not a reason against the marriage, but it is an insult to your Lordships' House. To quote the words of a dignitary of the Church—Is not this rather strong for a Bishop, and does not it appear to you as rather close an imitation of that language which is used in the peaceful occupation of trafficking in fish?But, when a Peer is summoned from Sunday racing in France to vote against this Bill, a very different view is taken of the matter, and it is boasted that the young Peers, having now happily left their amusements on the race-course, have come to the defence of the Church and her Laws. Before the Reformation these marriages were valid by the dispensation of the Pope. Henry VIII. of pious memory had conscientious scruples as regards the table of affinity, when he wished to put away Queen Catherine and marry Anne Bolyne. And, according to the interests of those in power, the Marriage Law constantly changed in this country, till in 1835 it stood that marriage with a deceased wife's sister was voidable, not void. The marriage was to all intents 1483 and purposes valid, and the children legitimate. Lord Lyndhurst's Bill, by making those marriages in future void, declared those in existence to be valid. The Bishops in 1835 sanctioned the validity of those then existing marriages which the Christianity of mitred politicians recognized it as their duty to denounce as incestuous unions; incestuous unions within the limits of our Laws, but Holy and Godly marriages sanctioned by the Crown in our colonies, and recognized in every other part of the civilized world. If these marriages are wrong now, why were they right in 1835? And, if it was right for the Bishops to acknowledge and bless those in existence in 1835, why are they wrong now? This is ecclesiastical economy which I shall be glad to have explained. I wish to quote from a clergyman in the diocese of Lincoln, who said—I trust that your Grace's efforts on behalf of the deceased wife's sister will shortly be successful. I have no parishioners of more blameless or better life and example, or more useful to the poor and needy, than a couple who for fifteen years suffered under the moral stigma cast upon them by the state of this disgraceful law.The Duke of Argyll, in moving the rejection of this Bill in 1886, concluded an eloquent panegyric on the Jews and their marriage laws with these words—But if they found in any part of human history anything like views loftier than our own it was in the Jewish marriage laws, which were so intimately connected with the preservation of the Jews at the present time. The only Member of your Lordships' House professing the Hebrew faith voted for this Bill in 1886, and every Rabbi has expressed himself in favour of marriage with a deceased wife's sister. I, therefore, claim that they are logically with me as supporters who vote with me on this occasion.The Duke of Argyll remembered when a boy hearing of such a marriage in Glasgow, and the parties could not be admitted into civilized society. But the greater number of these marriages were contracted in Scotland, in proportion to the population. Sixty out of the 70 Members support the principle. The Presbyterian Church in Canada and the United States have expunged the prohibition from the Confession of Faith, and though the Scotch churches have not taken this extreme step, such marriages are practically recognised in the established and United Presbyterian 1484 Churches of Scotland. The Second Reading of a Scotch Bill, which raised this objection to piece-meal legislation, has been carried in the House of Commons this year by a majority of 53. I may take it for granted that the particular phrase in Leviticus has been jetsoned by our opponents, and the sins of commission which probably the Bishops themselves have committed. As regards the social question, I think we may ask for proof that immorality has arisen in those colonies where this marriage has been allowed. Women dislike the idea of their husbands marrying again, but the fact that 45,000 women have signed in favour in Leeds is perfectly conclusive that they are not, as a whole, against the principle. I will dismiss the marriage with a brother-in-law for the reason that this marriage is not desired, is seldom contracted, and is illegal in the Colonies. This Bill was carried in the House of Commons by a majority of 57 in 1888 and comes before your Lordships now with the hall-mark of a reformed Parliament. It legalizes marriage with a deceased wife's sister and enacts that no marriage between a man and a woman shall be void or voidable by reason that the woman is sister to his deceased wife. This Bill expressly, as well as Lord Lyndhursts and other Marriage Acts, legitimizes the children. I think few would wish, if this marriage is legally acknowledged, that the innocent children should alone be the sufferers. It, however, respects the rights of those who have inherited, and guards against any confusion as to succession in family. I acknowledge that some clergymen have a conscientious but mistaken feeling against this marriage, and it is not proposed by the Bill that they should be obliged, under penalty, to perform the religious service. This was done in deference to their scruples. I, however, believe the good sense of the clergy would prevent them from withholding the benediction of the Church if these marriages were declared valid by the law of the land. Such is the Bill I present to your Lordships. It is supported by the whole of the Labour Representatives in the House of Commons and by almost every Member of the Trade Congress. A very numerous deputation from that class, representing over 600,000 members, interviewed the Prime Minister at 1485 the Foreign Office. Finally there are petitions in its favour from every Town Council in England, Scotland, and Ireland. I hold in my hand a petition from all the 81 burghs in Scotland, and a memorial to Her Majesty's Ministers signed by 100 out of 135 of the new County Council, approved by the Council, a declaration signed by the Presidents and ex-Presidents, and a very large number of the Nonconformist ladies, and supported by 8,000 of their ministers. I ask permission to read a Memorial to me signed by a distinguished Colonial Bishop, by all the Agents-General, and by every colonial delegate found in a residence in London and in other parts of the Country:—My Lord Duke: In view of the facts hereinafter stated in the form of a Memorial, which we understand, in slightly varied terms, has been addressed to Her Majesty by the Canadian and Australian Parliaments, the undersigned, who are connected with the Colonies in which liberty to contract marriage with a deceased wife's sister has been sanctioned by the Queen in Council, desire to offer to your Grace their most cordial support in your efforts to secure such an amendment of the Imperial Law in relation to these marriages as will make them uniformally legal and valid throughout Her Majesty's dominions.A Colonial subject of the Queen who has contracted this marriage legally in another part of the Queen's dominion is told he is living here in a state of concubinage. His children who are legitimate there are bastards as regards succession here. He is told by the law of the land a man is forbidden to marry his sister-in-law as a near relation. But, suppose he inherits property from his sister-in-law, he is told that by the law of the land she is absolutely no relation, and a stranger in blood, and he must pay 13½ per cent Probate and Succession Duty. This is the state of the law, and I cannot help thinking that the fabric of our marriage laws can be best maintained by lopping off this dead branch. This is a poor man's question, not that of a few rich men who have contracted this marriage. This change the prayers and petitions show is desired by the majority of the working classes and earnestly asked for by the agricultural class. Greater Britain will not make this marriage void. And I appeal to you who maintain the integrity of the Empire—I appeal to you who would call into exist- 1486 ence a federation of the Anglo-Saxon races—to remove this barrier which places a stigma on the wives of many of our Colonial fellow-subjects, and affects injuriously the interests, position, and status of their children, by giving a Second Reading to this Bill.
§ Moved, "That the Bill be now read 2a."—(The Duke of St. Albans.)
My Lords, I move that the Bill be read a second time this day six mouths. In matters of importance brought before the attention of your Lordships' House it has always been thought respectful to your House to state some reasons for introducing it. My Lords, I have listened with great attention to the speech of the noble duke, and all I have been able to gather from it is that this House is to reverse the decision which it has, over and over again, expressed with regard to this measure, upon no better grounds than the example of other nations, and because a certain portion of the people of this country is in favour of it. There has not been, so far as I know, one single argument presented by the noble Duke which should induce your Lordships to think that the Bill is a right or proper one except that of the example of others. I venture to think that before you change the basis of our marriage law you will require a wider argument than that to induce you to do so. My Lords, I feel quite as strongly as the noble Duke can feel the disadvantage which those who speak upon this matter must lie under. It is impossible to bring forward any argument which is either new or novel on a question which has been so often discussed. But the noble Duke certainly stood in a position which afforded him an opportunity of doing that, which, as far as I know, has never been done before by any of the supporters of this measure. He might have given us some slight indication of the foundation upon which he desires that the marriage law of England should rest. It has been my lot to hear many speeches upon this subject, but I have never heard one supporter of the measure discuss the principle which should govern the legislation of this country with regard to the marriage law. We have heard a great deal about what the marriage law is not to 1487 be based upon. We are not to base it upon Leviticus, or upon the declaration which runs through the whole of Scripture, that man and wife are one flesh; we are not to base it upon the practically unanimous voice of the Church for 1800 years; or upon the example of the Roman law; or upon the still more remarkable decision of a much more recent date, that of the Napoleonic Code, which expressly excluded these marriages on the ground that experience showed that grave evils resulted from them. We have there a body of precedents, examples, and opinions equal, I believe, to the body of precedents and opinions which the noble Duke has laid before the House. The case which I wish to lay before your Lordships is this. If the Bill passes there would be left 19 degrees of relationship of affinity within which a man might not marry, and there would be left 19 degrees of relationship in which a woman might not marry. I think we have a right to demand from its supporters that they should give some comprehensible reason why they did not include these relationships within the four corners of their measure. It is said that these relationships are inexpedient and undesirable, and that nobody, or scarcely anybody, wishes to contract them. Does any one think that the mere ipse dixit of Parliament that a certain marriage is inexpedient affords a justifiable cause, or would prove to the people of this country a satisfactory cause, for forbidding it by law? The language which is used on this subject reminds me of the old doggrel—I do not like you, Dr. Fell,The reason why I cannot tell.Does any one think that a woman, because of a mere expression of opinion, will think it wrong to marry the man she likes to marry? The noble Duke has stated that there are between 800 and 1,000 of these marriages contracted annually. I should like to know where the figures were obtained. I look upon the estimate with suspicion, but supposing it to be correct, I do not know that very much can be argued upon it. The question is not whether these marriages are numerous, but whether they are an offence, not only against law, but against morals; and I wish that the noble Duke had been able to lay before your Lordships some argument upon that point. But is there 1488 no demand that the law should be further relaxed? About two months ago, at a meeting of a board of guardians, a letter from the Local Government Board was read, declining to sanction the appointment of the master and matron of the workhouse on the ground that they were not man and wife, the master having married the widow of his deceased brother. After some discussion, it was resolved to petition Parliament in favour of legalizing such marriages. That is an example of what agitation on the subject might do towards breaking down the existing law; and, more than that, there is a body of persons possessing average intelligence, and the very class to whom your Lordships have recently granted enlarged powers of Local Government, going outside their duties and petitioning Parliament—for I venture to think that petitioning Parliament is no part of local government. That body has in their wisdom shown the greatest desire for a change of the law in the direction which the noble Duke and his friends look upon with the greatest abhorence. Over and over again when this Measure has been introduced in another place it has been proposed to introduce a clause legalizing marriage with a deceased brother's widow; but those having charge of the Bill have always declined to accept that addition, although it is perfectly logical and analogous, and is desired by a certain portion of the population. The noble Duke has referred to the petitions which have been presented to your Lordships' House, but we all know how these petitions are got up and their real value. There is no question upon which even educated persons have thought so little as upon that of the marriage law of this country. It is within your Lordships' experience that many highly educated persons if asked whether they know of any reason why a man should not marry his deceased wife's sister will reply that they do not, simply because they have taken the law for granted, and can give no reason for the existence of that law. Well, my Lords, the noble Duke has referred to the petitions which have been presented on the subject. Those petitions, which represent the ignorance of the people, are put before the House, not only as the result of the mature thought of the country, but as if it represented the number of people who actually 1489 wished to legalize this kind of marriage. I think we have a right to demand from those who support this measure how far they intend to go. Do they intend to stop at the point indicated in the Bill, or do they intend to go further? If they intend to go further why do not they do so now? And if they intend to stop, why do not they state the grounds upon which they so limit their measure? The law at present is perfectly clear, logical, and consistent; the law declares that no man shall marry a woman who stands within the prohibited degrees of relationship of affinity or consanguinity, and the same idea is expressed by the opinion of the Scottish Church. I was very much surprised to hear from the noble Duke that the Established Church of Scotland practically recognized those marriages. The only test so far as I know of the opinions and beliefs of the Church of Scotland is her Confession of Faith, which lays down distinctly that a man may not marry anyone nearer in blood of his wife's kindred than of his own, and the same as to the woman. That is a perfectly consistent, logical, and complete declaration. It is based upon the declaration that man and wife are in marriage one flesh. I am prepared to stand by that declaration. It has been called a metaphor, but a metaphor is merely a mode of expressing certain abstract ideas in words, and the question is whether the ideas expressed by it are true or false. Are the thirty-nine prohibitions which would be left on the Statute book, connections which it is immoral to make? If immoral, by what arguments can the supporters of the Bill prove them so to be which would not equally apply to marriage with a deceased wife's sister; and if they are moral why have not they the courage to make them legal? We have no right to deny a man freedom of choice in his wife unless we think a particular marriage wrong on the highest grounds. Our marriage law is at the best one of the strongest invasions of the liberty of the subject it is possible to conceive. It is extremely galling to many people, and if we wish to secure loyal and willing obedience to the marriage law that law must be placed upon some intelligible and just basis. The whole of the Bill bristles with in. consistencies. The fifth clause is very 1490 remarkable. The divorce law of the country provides relief for those who suffer by the unfaithfulness of their husbands with one of their near relations, and it provides that for the purposes of the Act, incestuous adultery should be adultery with any one whom, if his wife were dead, a man could not lawfully marry by reason of her being within the prohibited degrees of consanguinity or affinity. If there is no objection to those marriages it is intolerable that a pure and holy alliance should be stigmatized as incestuous. One would have thought that the words of the Divorce Act would be most acceptable to the supporters of the Bill; because they had no necessity to refer to it at all. The wife's sister would have been in exactly the same position as any other woman, and adultery with her would be what it could only be if their arguments are true—simple adultery. But they have gone out of their way to exempt from the provisions of the Divorce Act the miserable wife's sister who should marry her brother, and have introduced the monstrous absurdity that as long as her sister lives she is her brother-in-law's near relation, but that the moment her sister dies she ceases to be any relation to him whatever. This measure has been introduced over and over again, and I venture to say, my Lords, though I know it is a bold thing to say—that no measure was ever more incomplete, or illogical, or ill-considered, and that none was ever less worthy of the attention of your Lordships. If it were a gas or a water Bill it would be rejected without delay, but because it deals with the very foundation of the social system and affects the very highest interests of humanity, it is brought in, year after year, without any preparation or modification in all its natal nudity. As to the social aspect of the question, your Lordships have doubtless received a number of epistles from gentlemen who have married their deceased wives' sisters, and others who desired to do so. But the real truth is that from the social aspect as much can be said on one side as on the other. Those who support the Bill seem to proceed on the assumption that every man, the moment his wife dies, wishes to marry again. There are many men who do not wish to marry a second time, and it is a cruel thing to 1491 prevent a man from having the assistance of his wife's sister unless he marries her. The only organ which expresses the opinion of women, so far as I know, is the Women's Suffrage Journal, and that journal has taken up a position of very decided opposition to this Bill. I hope your Lordships will allow me to read a letter which I have received from a lady, because it shows the feeling which exists in the minds of the women of this country, or some of them. The letter says—I think it is very hard that a sister should be prevented going to her sister's children in the hour of their sorest need and be a help to the brother-in-law, which would be the case if this Bill passes, as no woman can run her head against public opinion, and hundreds of families will be deprived of the loving care of their aunt.I only want to point out that there is as much to be said on one side as on the other. It is felt that the Bill would interfere with the happiness of a great number of people. I ask your Lordships to pause before sanctioning a measure which strikes at the root of the present marriage system without supplying any other system which would take its place, before you shake the confidence of the people of this country in Church and State, and before you grievously wound the consciences of many of the most religious and law-abiding people in this country. I believe that I can with confidence leave the measure in your hands, certain that you will do, as you have done before, justice in this matter.
§ Amendment moved, "To leave out 'now,' and add at the end of the Motion 'this day six months.' "—(The Lord Lovaine [Earl Percy]).
§ *LORD GRIMTHORPE
My Lords, as the noble Earl complains that the noble Duke has given us no reasons why your Lordships should reverse your former decisions on this Bill, I will endeavour to do so. That cannot be done briefly, nor without historical and other details, which I fear will be tedious; but, if I omit any that are material, I am sure to be charged with doing so from either ignorance or intention. The noble Duke naturally did not go much into these questions, and you see the consequence already. But surely he has given one sufficient reason why you should reverse your former decisions in the fact that the public demand for such reversal has been steadily and 1492 constantly growing. I have long observed that when distinguished Members of this House have to return thanks and to justify its existence in these temples of veritas in vino where they sometimes address the whole of England, they do it in something like these words, which I happened to read from one of the most eminent and learned of them who is before me just now. Lord Selborne said at the Mansion House last June "The House of Lords will at all times be prepared to give way to the well-ascertained wishes of the people," and so on. Will anybody contend that there has not been every possible proof of the wishes of the people in this matter? I will only give the shortest possible account of them after those adduced by the noble Duke. I know that the noble Earl has a summary way of disposing of the petitions and memorials of a great many of the public bodies who have so spoken, by saying that the law of marriage was no business of theirs, and that some of the petitions only represent the ignorance of the people. I should have thought he and his party would admit that the law of marriage was the business of everybody, and not the less so when they happen to be sitting as members of some such large and comprehensive bodies as have spoken from time to time with sufficing unanimity about this. Of course I cannot vouch for the figures myself. I only quote them as they have been published formerly in your debates and elsewhere. But I see in such publications that there have been petitions or resolutions from 1878 down to now, of Poor Law Boards representing a third of the population; from 6000 landowners and farmers in two not very populous counties; 400 Mayors and ex-Mayors, and 1000 Town Councils; and the Convention of 81 Royal and Parliamentary burghs in Scotland has petitioned twelve times, and above half the constituency of Midlothian, and the Trades Union Congress, representing nearly half a million members, by a vote of more than 50 to 1, the minority consisting of three; a large deputation of working men went to the noble Marquess a few years ago, 8,000 out of 9,500 dissenting ministers petitioned, and again 150 of their chiefs last year. 45,000 women from Leeds the noble Duke mentioned, and equally 1493 large numbers of them in proportion to the population of some smaller towns. Before adding any more of the same kind, or giving other indications of public opinion, I will answer the noble Earl's depreciation of petitions, in the usual style of those who have got none worth speaking of, by remarking that his Marriage Law Defence Association is probably much richer than the mostly poorer people who are interested in getting rid of this piece of aristocratic tyranny, as an eminent London clergyman called it some years ago, and has unbounded theological zeal to stimulate it besides. So if getting up petitions like those is so easy, that Society could still more easily have done it. I have said nothing yet, and I did not hear the noble Duke mention it, of the steady and all but unbroken opinion of another body, which is generally taken to represent public feeling in the long run more than any other. I mean the House of Commons, almost continuously since the Report of the Royal Commission in 1848, that the Act of 1835 had failed in preventing these marriages, and would continue to fail—a prediction most amply verified. A very Conservative House of Commons has a few times rejected these Bills; but excepting four times in 40 years, and once in the last ten, under a Conservative Government, that House has passed such Bills, or resolutions in favour of them, by majorities of nearly 60 on the average; and taking in the whole 40 years, I have counted no less than 22 divisions in favour of them, besides may consents without division. The recent passing of the Scotch Bill, by a very large majority of Scotch Members, and of two for amending the gross iniquity foisted upon the Colonies in an Act of 1865 pretending to relieve them, are quite as significant as all the others, especially as it had been frequently said before that the Scotch were almost unanimously on the other side. It is clear too, that even the law of Scotland about it is uncertain yet, from the statement, published a few years ago, from Lord Fraser, an eminent Scotch Judge, who said that it has never been legally decided after argument. It is absolutely ridiculous, especially after the latest change in the Constitution, whatever else we may think of it, to contend that the House of Commons, or rather so 1494 many Houses of Commons of all degrees of colour, have not represented the complete opinion of the people. Therefore I now ask any defender of this prohibition to tell us, if he can, of any class whatever of Her Majesty's subjects all over the world, and of English speaking people everywhere, that he even believes to be on his side, with the single exception of the majority of the English Clergy. I said "all over the world" because another feature in the case is that every Government here, willing or unwilling, has felt itself obliged to concede the continual demands of the Colonies, except as to the treatment of colonists when they come here; and there is now, I believe, not one of any consequence where the prohibition remains, except, by a peculiar monstrosity, for Protestants alone in India, according to a late decision of the Courts there. So you have somehow or other yielded for India to the known opinion and practice of the Roman Church, as testified by Cardinals Wiseman, Cullen, and Newman, and 200 Roman priests in London who petitioned a few years ago, but refuse to do it here to either them or the equally unanimous, and far more numerous Protestant dissenters, and the Jews, whose law the prohibitionists pretend to be adopting in spite of every possible proof that they are reversing it. As I am speaking now of public opinion being the only safe guide on a question of this kind, because no such law can be enforced against it, it is worth adding that your Lordships have had twice over ecclesiastical authority the very highest for adopting the maxim that "social legislation ought to proceed on the principle of the greatest happiness of the greatest number," and again, that "you ought to trust the people." Does the most reverend Prelate think the people don't know better then he does what is for their greatest happiness in a matter of this kind? And if not, where is his principle gone to? I suppose to where most principles and maxims go when they have served their purpose of supporting a foregone conclusion which cannot be proved either by experience or by logical reasoning. Their case is full of such principles in every branch of it. Therefore I shall not trouble your Lordships with arguing what is called 1495 the social question. The noble Earl admitted there was as much to be said on one side as the other; which means from an advocate that he knows that there is much more to be said on the other. I will be content with that, and will equally admit to him that in that class which it is the fashion to call Society—the class for which Paley's famous description of the Law of Honour was written — the balance of wishes at any rate, and perhaps of convenience, is to prohibit marrying sisters-in-law, so as to let them come or go, stay and play with their brothers-in-law as they like. And so I daresay there is no exaggeration in what I read lately from a very eminent man, that "the prohibition is only kept up by the bishops and fine ladies." I do not profess to know myself much of the opinions or ways of the latter class, but I do know that they are a smaller proportion of the people of England than even the clergy, and have no right for their own convenience to deprive other people of the liberty which God has given them. I take leave to quote what was published years ago by a very different kind of person, namely, one of the many clergymen of very large places, who, both to the Commissioners and afterwards, said that apart from all theological questions, on which men must differ, they were satisfied from their parochial experience, that the law of 1835 did far more harm than good. In no other instance does the law of England prohibit one class of people marrying for the convenience of any other class, even if it were a very large one. Canon Gurney, one of the Marylebone Rectors, ended a letter too long to read, thus:—If I were a demagogue wanting to rouse the passions of the working classes against the injustice of rich men's legislation, I would not wish for a better topic. If the matter were broached in an assembly of working men of steady habits, and wishing as anxiously as Lords and Commons to do right before God and man, not one hand in 50 would be held up for the law.The other clergymen who allowed their opinions of that kind to be published were Dr. Hook, of Leeds and Coventry; Dr. Miller, of Birmingham and Greenwich; Champneys, of White-chapel; Owen, of Bilston; Hatchard, of Plymouth; Dale, of St. Pancras and another great London Parish; and 1496 Archdeacon Hill, of Derby. Such experiences as those are worth more than tons of "principles." And experiences of those who live under the opposite law are worth even more, because the prohibitionists cannot venture to apply ignominious epithets to them as they do to breakers of their law here. Such experiences were given in a former debate by the late Lord Dalhousie, who had written to and got answers from 120 governors and officials of all kinds in the United States, which abolished this law long ago; and all but one of those answers said in various terms, that no harm whatever had resulted from it. That one, I remember—for they were printed in a pamphlet—was from a clergyman, not professing to give any counter experiences of his own, but only the usual clerical dicta which we are so well used to. It should not be forgotten too, that when somebody here threw some slur on American morality, as suffering from this freedom, Lord Lyndhurst repelled the imputation indignantly, though he never voted against that compromise which he had unluckily accepted from the bishops in 1835, completely transforming his Bill in the way that I will describe presently. And I now give this answer to what I can only call the nonsense that is often talked about this permission leading to disregard of the sanctity of marriage generally, and specially to an increase of divorce. The former is disposed of already; as to the latter, what possible connection is there between them? Besides that, the time for prophesying is gone. It was easy enough for Bishop Philpotts to talk about the frequency of divorces in other countries before we had a Divorce Act here. But now we have; and we need not go abroad to find how much divorce increases, without the assistance of being able to live in holy matrimony with your late wife's sister, instead of in concubinage. Certainly we did our best to increase divorce by allowing every woman to change her husband whenever she pleases by simply committing adultery with the man whom she prefers, and taking care to let her husband know it. And here I had better notice what the noble Earl said about the 5th clause of the Bill, "That this Act shall not remove wives' sisters from the number 1497 of those persons adultery with whom constitutes a right to sue for divorce." Though I had nothing to do with drawing the Bill, and disapprove of some of its details, I think that is right; first, because I think as strongly as the other side can that adultery with a woman who has been taken into your house on such a footing as a sister-in-law is, and always will be, is such an aggravation of injury to the wife that it is at least as bad as cruelty, which is legally requisite besides adultery to entitle the wife to a divorce. The noble Earl was badly off for a topic to find fault with that. He would have had good reason if the clause had not been there. The main reasons besides experience and public feeling for repealing this prohibition are the badness of the reasons on which it was founded and has been ever since defended. I cannot do better than take those from the highest authorities who have given them from the time when it first began to be discussed, soon after the passing of the Act of 1835; for it is very singular that there was no discussion in this House when Lord Lyndhurst's Bill was transformed from what it was when he introduced and explained it as a Bill to reduce the time within which prohibited marriages could be impeached, to two years after celebration; which meant absolutely ratifying them if they were not impeached, as they hardly ever were. In the House of Commons this marriage was first excepted by amendment; and all the subsequent mischief has arisen from their being told that this House, meaning really the bishops, would reject the Bill if it was sent back with that exception, and that it could be reconsidered the next year. And that was in almost the last hours of an unusually late Session when a Government can do anything. But from the beginning to the end, now more than half a century, that House has been steadily against it, with the few exceptions I alluded to. In order that I may face the best arguments on the other side, I cannot do better than begin with the eloquent summary of their case in 1886 by the Duke of Argyll (as it is now lawful to use the names of Peers who are present as well as absent), enforced in still more summary language by the Primate of all 1498 England. The noble Duke said (with a few mere grammatical variations to bring it all together)—I hold it is most reasonable to go back to Jews for guidance in this matter……. We ought to hear a voice saying, 'This is the way, walk ye in it.' It speaks to us through the ages, from the days of patriarchs and prophets, through Roman Emperors and French Republics……. The Eastern and Western Churches concur with the post-Reformation ones…. in calling upon us to reject this Bill and stand fast in the ancient ways.And the most reverend Prelate very naturally, in the name of his brethren, thanked him for such a speech, and still more emphatically summed up the history thus—"This marriage was unknown to the Christian Church. It was unknown to Roman law. It was unknown to Judaism." Undoubtedly if all those statements are correct, their case is a very strong one; but if all those great authorities should turn out the other way, it is equally clear that the case for the prohibition is gone. First for the Roman Emperors. The noble duke expatiated on the ancient glories of Rome, and called "the Romans perhaps the noblest specimens of humanity that the world has ever seen," with more that I should like to quote if there were time. And then comes the Archbishop's dictum that they knew no such marriage. There happens to be a precise record of the time when the prohibition was first enacted at Rome, and I think few people would consider it exactly the epoch when the Romans were the climax of humanity. For it was in the year 355, under the emperor Constantius, who was indeed a Christian, but an Arian, and the persecutor of Athanasius, as was pointed out long ago by the most learned of all the writers on this subject, Dr. McCaul. But I have not arrived at Christian authorities just yet. Everyone who heard or read the speeches I have quoted would understand them to mean the really great Romans, and not the Romans of the "Decline and Fall." Otherwise there was no point in those speeches. They were plainly intended to show that the opinion of even the most civilized pagans acting by the light of nature was against marriage with a wife's sister. And it happens that the very decree itself which prohibited them began with the recital, as we should call it in a Statute, etsi veteres licitum erediderunt. I do not for- 1499 get that episcopal and other eminent prohibitionists have quoted over and over again one of Gibbon's magniloquent general descriptions of Roman legislation, of undefined date, ending with, "and they treated affinity and adoption as a just imitation of the ties of blood." It was in vain pointed out to them by an able legal writer immediately after Bishop Blomfield quoted it, that it was simply not true as to brothers and sisters-in-law, though it was to lineal affinity, even in Justinian's famous code ("De affinibus,&c."), and it clearly was not before 355. But it seems to me that the prohibitionists carefully abstain from reading any publications on the other side, and so go on repeating the same mistakes continually. I suppose they take it for granted that we are all either heretics, or fools, or inventors of history. It is plain that somebody is the last of those things, at least. The noble Duke's next great civil authority was the French Republic. But in 1805, when that decree was made, the French Republic meant the First Consul, who threw his sword into the scale of the minority (not the majority) of the Committee, which had reported against introducing the restriction. And if the authority of that eminent theologian and moralist is invoked for prohibiting wives' sisters it is equally valid for the permission of uncles to marry their nieces by dispensations, and the converse; and further still, after only 27 years the prohibition was re-abolished, though the pamphlet of the Defence Association, which prints all the rest, omits that, which I learn from another. Then we come to the highest authority of all, the Jews, on whom the noble Duke dilated even more than on the Romans, implying that they were equally positive and undivided of his side; and the most Rev. Prelate more distinctly said so.
THE DUKE OF
ARGYLL: Was the phrase quoted verbally from anything said or written by me? I have no recollection of having used it.
§ *LORD GRIMTHORPE
The noble Duke did not say so in words; but when an orator expatiates through half a column of the Times on the magnitude of an ancient authority whom he has specially invoked as the highest, what does it matter if he omits to finish with the actual 1500 words like those of the Archbishop, "these marriages were unknown to them?" Everybody who hears him understands that to be implied. I am not concerned with persons but with arguments, and though the noble Duke is a profuse and able writer on theology, and I wish him better success in his defence of Moses against a powerful opponent, I must accept the Primate of all England speaking for his brethren as the highest exponent of the reasons why they believe that Moses meant to prohibit this marriage, though according to all legal rules of interpretation, and all common sense, he said that he did not, in verse 18 of the chapter containing all the prohibitions. I admit that if the Jews did always understand it so, it would go a very long way towards deciding against us, on the other great legal doctrine of contemporanea expositio of rules fairly doubtful. But this case is just like the Roman, except that the Jews have never varied about it, and the Romans did. I defy those two great theologians to cite a single authority, except possibly some modern bold assertor of whatever is wanted for so good a cause to the effect that there was ever the smallest difference of opinion among the ancient Jews: much less that such marriages were unknown to them. That being so, I need only cite Dr. Adler, the Chief Rabbi in 1848, who told the Commission "that not a single Rabbinical opinion can be met with throwing any doubt on the legality or propriety of such a marriage,' and he added, "they almost invariably end happily." Even Pusey admitted it, as he did the Ancient Roman Law, adding 'that the only Jews who ever dissented, and who, Dr. McCaul says, came into existence only in our eighth century, were an insignificant sect called Karaites, whose interpretation Dr. Adler said was "destitute of all authority and discordant with the spirit of the sacred language." I must do the prohibitionists generally the justice to say that they had previously been content to magnify the Karaites and to sink their being a merely modern sect. Probably they think themselves quite irrefragable on the noble Duke and the Primate's other statement about the opinion of all the Christian churches from the beginning. But there also history is no less fatally against them. 1501 They surely know, if they have ever read only the principal speeches or writings on our side, that there has never been even alleged to be the smallest scrap of contemporaneous evidence of any church or man before the middle of the fourth century, and only one before the fifth, forbidding these marriages, or saying they were forbidden. And now comes a still more important point. The earliest Council that dealt with the marriage prohibitions at all, which Pusey considered worth mentioning, that of Neo-Cæsarea in 315. drew the line exactly where this Bill draws it, between brother's wife and wife's sister, and exactly where Moses did, for all who do not choose, for their own principles, as they call them to kick the eighteenth verse out of the Bible under any pretext they can invent. What can be more decisive than that? I know there was a little Council of a few bishops at an unknown place in Spain, called by several different names, just ten years before, which did prohibit this marriage, but also all marriages of the clergy, and ordered them to put away their wives: a heresy which, McCaul says, had entered the Church at least a century before this prohibition, and soon spread widely. But as Pusey treated that little Council as of no more importance than the later Karaite heresy among the Jews, I only mention it lest I should be accused of suppressing it. What is the next alleged Christian prohibition? In 1851 Bishop Blomfield for the first time defended his action and Act of 1835 in a debate here; and what he relied on was not the Mosaic law, but the fact that—This marriage was at least condemned by implication in that very early body of constitutions call the Apostolic Canons, which proved that the prohibition had been in force almost from the time of the Apostles.Therefore it is of real importance to know a little more about them, as they are undoubtedly the earliest authority to that effect. But though the earliest they are rather too late. Blomfield was more celebrated for Greek than theological learning. Some clever man had evidently crammed him with the Apostolic Canons and had not told him the whole story. Pusey shall again be my authority, as I always like to take the best I can on the other side. And he said in effect what a good many of Bishop Blomfield's assessors 1502 on that bench must have known very well, that the Apostolic Canons were no more apostolic than Henry VIII.'s various Marriage Acts, adapted to his various conjugal circumstances, but were a forgery by an unknown hand of the middle of the fourth century, pretending to have been compiled by Clement of the first. Secondly, they do not say a word about marriages of laymen. Thirdly, the things they prohibit, are priests married after baptism, or married after being ordained, and still more their marrying twice, or marrying widows, or their wives' sisters, or actresses, or maid-servants. And Blomfield had done all of them except the two last. The next time he spoke he dropped the Apostolic Canons, of which I suppose he had learnt a little more, and found other reasons for his action in 1835. So we are still in want of evidence even in the fourth century. At last it comes, and in a form which Lord Cairns said in 1883 was quite conclusive as to the existence of the prohibition from the earliest times. A bishop called St. Basil about 375 had a controversy with another named Diodorus, just as good as himself, who had pronounced this marriage lawful, and wrote him a letter very much in the style of Bishop Philpotts's scolding epistle to Bishop Lonsdale for saying both in his Report and in a letter afterwards that he could see no scriptural authority for it. But Basil, like Blomfield, did not rely on the Mosaic law, and in fact he said that it was no more binding than circumcision, though he argued against Diodorus's interpretation of it, as you may see in Pusey's evidence. What he did rely on he expressly said was "our custom, which has been transmitted down to us by holy men." People have discussed whether even that meant to assert more than the custom of his own diocese. Not that it the least signifies; for Lord Cairns was as wrong as possible in representing it as contemporaneous evidence, or any evidence at all on a disdisputed question of history. Unluckily none of Diodorus's writings have survived, though he was a very considerable person, as you may see in Dr. Wace's Ecclesiastical Biography; so we know no more of what passed between them. But of Basil we do know something more. His own opinions were of the most ascetic type, condemning all second 1503 marriages and calling third ones "beastly." He was one of the founders of monkery, and had been the head of a monastery close by Neo-Cæsarea in Pontus, the very place where that Canon had been made, omitting wives' sisters, by a Council about 60 years before he disputed with Diodorus. Therefore he must have known that if his statement meant the universality of this prohibition it was false. And that, with the Roman decree of 355, is all that has been ever pretended to exist of this prohibition in the Church before the 5th century; and I repeat that before the 4th there is absolutely none. I need hardly tell your Lordships that any doctrine which is reasonably proved to have made its first appearance in the Church after the first century, at the latest, is ipso facto, proved to be heretical, to all real Protestants at any rate. After the fourth century the repetitions of this doctrine become plentiful, and restrictions went on increasing rapidly both in the eastern and western church, till they reached what is called the 7th degree—a degree of cousinship and a heap of other relations which I cannot attempt to summarise. The Lateran Council of 1225 benevolently reduced them to the 4th degree, which goes no farther than third cousins, or the great grandchildren of any of your eight great grandfathers and mothers, and many other collaterals up and down. And as they were made easy by dispensations, at first granted by the State, and afterwards by the Church, they were probably not more oppressive, except in a pecuniary way, than the law here was from the Reformation till the Act of Blomfleld and Philpotts. But now comes the really crucial question in all this history: when did either Church or State anywhere first draw the line where Henry VIII drew it, and not where the first Council of Neo-Cæsarea did? Never, anywhere, that I can find. People employed themselves in discussing for and against that pious monarch how far the Pope could dispense. But what was the use of discussing that, when there was no authority to overrule him when he did dispense. From the earliest known legal history pertaining to those Acts, all that the Common Law Courts could do was to send to the ecclesiastical the question, was any particular marriage 1504 good? If there had been a dispensation for it they could only certify that it was. A later Pope could overrule an earlier, as we know from the attempts in Henry's business, though both were infallible; but that has nothing to do with it; and the law simply was what I said just now. All that time it would be ridiculous to contend that any line was drawn by any kind of decree, ecclesiastical or civil, just when Henry VIII. drew it first in 1533, just before he married Anne. Bishop Philpotts, who had facts and arguments ready for any emergency, boldly asserted that the first Pope who dispensed for a wife's sister was "that monster of iniquity Alexander VI," whose iniquities he of course enlarged on; but was soon exposed and refuted, as in all his other assertions of new discoveries. Then also he asked, what possible motive, except conscience and the opinion of the church, Henry VIII. could have had for including wives' sisters which he did not want besides a brother's wife which he did. He would easily have answered his own question if he had been arguing on the other side, with the obvious remark that Henry preferred not to exhibit himself to the world as drawing a new line exactly where he wanted it, and availed himself of the plausible analogy between brother's wife and wife's sister. But unfortunately there is another bit of history, which his distinguished white-washer, Mr. Froude, has overlooked, perhaps from not being a lawyer. After Anne's death, Henry was as anxious to prove that her marriage was invalid as he had been before to make it valid. So then his Parliament was made to pass another Act, 28 Hen. VIII., c. 7:—Furthermore to dilate and declare the meaning of these prohibitions (of 21 Hen. VIII. c. 22), it is to be understood that if it chance any man to know carnally any woman, then all persons in any degree of consanguinity as is above written so carnally offending, shall be deemed to be within the said prohibitions.Your lordships probably know the suspicion that he lay under of a previous connection with Anne's sister, and you may have read in Froude's appendix the dispensation which was prepared for him, which the Pope was asked to sign before his marriage, and perhaps did; and it is significant in several ways. It was to permit him to marry "cum quacum- 1505 que alia muliere, etsi tibi alias secundo gradu consanguinitas aut primo affiinitatis [observe the distinction], ex quocumque licito aut illicito coitu conjuncts, dummodo relicto fratris tui non fuerit," &c. Mr. Froude argues that this might be intended for a mere sweeping clause to provide for all possible accusations. It was bad enough if it was. But the light thrown mutually between the dispensation before the marriage and the Statute after Anne's death, besides the prevalent scandal, started by Cardinal Pole, Henry's own cousin, is stronger than even Mr. Froude's ingenuity can again obscure. So far as I know, I was the first person to bring those mutual reflectors together, in a pamphlet two two years ago. There was a third Act of Henry VIII which became what lawyers call spent; and yet another, 32 Henry VIII. c. 38, which does not re.enumerate the prohibitions, but only refers to "the law of God." That was doubtless meant (though some great modern lawyers doubted it having that legal effect) to adopt the definition of the previous ones, which were repealed by Mary, and not revived by Elizabeth, who had her own reasons for wanting to keep wives' sisters prohibited, as an answer to Philip's desire to obtain her. That construction was adopted finally by this House in the great case of Brook v. Brook, as to these marriages solemnised abroad, when Lord Cranworth said the seven Tudor Acts on which it all turned were very confusing. After all this it is impossible for anybody to contend that the line was ever drawn where it is now by any Church or State in any kingdom in the world, until Henry VIII threw his axe into the scale, as Napoleon did his sword, only with more durable effect, now that he has been helped by the English bishops in 1835. For until then the prohibition was little more than nominal, seeing the Ecclesiastical Courts under the Tudor Acts and all the decisions in the superior courts, could only "separate the parties" during their joint lives if anybody chose to institute a suit for that purpose, which of course nobody ever did in 999 out of 1000 cases. And yet Lord Hatherley, one of the most violent prohibitionists, actually said in a speech (not judicially) that these marriages were always "absolutely in- 1506 valid," though the Act of 1835 recites that they were not "void but only voidable" in the way I described, and they nearly always remained valid for ever. A man who committed bigamy after marrying his wife's sister would have been convicted immediately. Lord Cairns said in 1883 that some unnamed and unknown case in this House had decided that they were void before. Lord Bramwell answered him then, and I do now, after careful searching, there was never any such case. I need hardly say here, that Archbishop Parker's table, illegally printed in the Prayer Book, is nothing but a tabular exhibition in nice-looking columns with 10 groups in each, of Henry VIII's Acts, though prohibitionists always talk of it as if it were a solid stone like the Table of Commandments, and must all crumble to pieces if you knock off a bit which has no divine authority whatever, but is contrary to the clearest possible Divine words; of which I recognize the perpetual obligation quite as much as any bishop—and in fact a great deal more, as I will show presently. Having disposed of all State legislation and "the anti-Reformation Churches, east and west," I beg to ask where is the English Church legislation drawing this line, or any line at all? Bishop Philpotts answered a similar question with well acted indignation—"Don't you know the 99th Canon of 1603?" Yes, we do. But where was what you call Church legislation from 1533 till then? It would have cost you your head to try any if you had lived then. Even Elizabeth would never allow it, and threw the attempted Canons of 1570 into the fire, as we may say. The so-called Church legislation of 1603 was just like what the two Convocations have asked leave and been allowed to do twice lately. In 1865 they humbly begged and were allowed to alter their 36th canon to follow an Act of Parliament on the very important subject of clerical subscription. Last year they did the same to follow our Act of 1886 to allow marriages in the afternoon. Did any human being except themselves care a farthing whether they did either? Canons are mere by-laws of and for the clergy within proper limits, and for nobody else. Not half of those of 1603 are valid now, if they ever were, for any purpose what- 1507 ever. Moreover, by a famous decision of one of our greatest Chancellors and Chief Justices, Lord Hardwicke, in Middleton v. Croft, it is as settled law as Magna Charta that "there are many things of an eclesiastical nature which no canon can touch, such as the prohibited degrees of consanguinity and affinity;" so that not even for themselves could the clergy make any law of that kind. Suppose they had dared to extend Henry VIII's prohibitions to cousins? Does the most exalted convocationist believe that such a canon, if "the British Solomon" had ratified it, would have been anything but laughed at even in the ecclesiastical courts if any advocate was silly enough to cite it? The fact is that all the clerical bluster about Church law on this point is that, and nothing else. There is no Church law and can be none on anything affecting the laity, or on this subject at all, unless we go on yielding to clerical aggression till we restore as bad a supremacy as the Pope's. Bishop Philpotts dared to tell this House in 1851 that it "ought to defer to that authority to which the law both of England and the law of the Church requires it to submit"; and the Canterbury Convocation in 1883 declared that "it cannot recognize the power of Parliament to dispense with (what this House of Convocation declares to be) the law of God"; and the Primate of all England in 1886 asked your Lordships "what will be the next step? The views of the Church (that is the clergy) being disregarded, what set of opinions can be sure of respect"? That question I will not attempt to answer, beyond saying that the more such language is circulated among the people of England the better they will appreciate the opposition to this Bill and other things of still more consequence. It is almost incredible that in these days. when all sorts of sentimental and imaginary grievances of dissenters get redressed, and even bishops sometimes bring in Bills to do it, we find that we are still living under the claim of a mere majority of the bishops and clergy of this alone of all the Protestant Churches in the world to prevent everybody else, whether Churchmen who differ from them, or dissenters who repudiate them altogether, from marrying according to what they all believe the law of God, and in the face 1508 of indisputable law that the clergy have not, and never had, a right to meddle with it at all; and if the further fact that their interpretation is repudiated by as great and greater ecclesiastical authorities than any of those who have committed themselves to this as a theological dogma; for not many of our episcopal opponents have, and some, I know, do not hold it. I will quote once more Bishop Jeremy Taylor's well-known sentence about it:—God is not a judge to quarrel with men by unknown measures and secret rules of interpretation. Quod in lege prohibitorid non vetitum est permissum intelligitur.[Lord SELBORNE: "That is wrong."] No; it is not. I know Philpotts's attempt to contradict it by another quotation of a more general kind, like the attempts to contradict the definite Roman Law by Gibbon's generality, though I have not the means of referring to it just now. Next I mention Bishop Heber, who agreed with him. So did Bishops Kaye and Thirlwall, though they both voted against this Bill on what are called the social grounds. My father-in-law, Bishop Lonsdale, I have mentioned already, whose learning or orthodoxy not even Philpotts dared to question in his scolding pamphlet, and whose prejudices Taylor's biographer and editor, Bishop were all on the side of the really ancient ways and genuine Church authority; as indeed those of nearly all his colleagues on that Commission naturally would be, except possibly one of them of whom I knew nothing. Archbishop Whately's powerful mind and works are likely to be remembered as long as any of his present opponent's; and with him one naturally mentions his friend, Bishop Hinds, another eminent writer of his time; and Bishop Copleston, the head of his own College, then the leonum nutrix of Oxford. Bishop Lee, of Manchester, a great scholar, and Professor Lee, a greater theologian and Hebrew Professor of great fame in my Cambridge days, both denied the prohibition; and higher than all these, McCaul, Professor of Hebrew and Theology at King's College, who was selected by a great Archbishop to write two articles in the book called "Aids to Faith," in answer to the Essays and Reviews, which Convocation (within its rights) con- 1509 demned. The living Bishop whom Philpotts called "my singular brother of Worcester," if not equally famous as a controversialist, is very much more so for wisdom and discretion, besides having been the best man of his day at Cambridge; and he wrote not long ago, "I have never ceased to advocate this measure." Archbishop Musgrave was Professor of Arabic at Cambridge, and well known as a man of common sense, though I do not set him up as a theologian. Bishop Fitzgerald had a great reputation as a theological writer. I merely run over the names of Bishops Bickersteth, Villiers, Lord Auckland, Dickinson, Knox, and Griffin, Archdeacon Hare, Dean Close, and all the parochial clergymen I named before, as denouncing the prohibition on one or both grounds, besides thousands of others who have expressed their opinion in various ways. There are two other prelates whose names I must not merely run over without explanation. Archbishop Tait, who has been called the Archiepiscopal Statesman, signed a petition for this kind of Bill in 1849, as has been often published, with the rest, But in 1883, his successor is reported to have told your Lordships that Tait was only then "a young man and a master at Rugby," and that he had the best authority for saying that he changed his mind, and would have voted against this Bill if he had had an opportunity. To us old people he certainly does appear a young man then, for he was only thirty-nine, but was within a few years of the age when the proverb says a man is wise if he ever will be, and nobody denies his wisdom. It is also true that he was a master at Rugby; for he was Head-Master of Rugby, and had been so seven years, and was never anything else there; and the very next year he was Dean of Carlisle, and not long after, Bishop of London, and for no less than twenty-seven years had the same opportunities as other Bishops of voting no less than eight or nine times against these Bills. I admit that he never voted for them, any more than Bishop Lonsdale did, who preferred not to offend the majority of the Clergy thereby, as I know that some lay peers also do, with that blindness to the relative importance of things which is too common even among clever men. Another prelate's 1510 name needs special notice because the Duke of Argyll in 1886 said that he had been misunderstood. I mean the Bishop of Peterborough, whom I am sorry not to see here, who is reported to have said in 1882,That he had never been able to take what is commonly called the high scriptural or theological ground, at least as regards the Old Testament having said this, he would pass away from the theological argument;and did so. I find not a word about the New Testament in the report, and should have been surprised if I had. So until we have some better information, I think we must continue to reckon that eminent prelate among the disbelievers in any scriptural prohibition of this marriage. But I have another, at whose name most of your Lordships will be startled; a no less distinguished advocate of it on ecclesiastical grounds than Pusey, whom I suppose I agree with the prohibitionists in regarding as the most able of them all. The very title of his book shows his hand, "Marriage with a wife's sister prohibited by Holy Scripture"—but it does not stop there—"as understood by the Church for 1500 years." I am not sure whether he meant the first 1500 years, or the last, and for the present purpose I do not care which. The point is the confession that Holy Scripture does not decide the question without the help of the Church, which means the supremacy of the Church over it. And his evidence proves that still more. For, passing over v. 18, as they all do, except when they try to get rid of it, he founded himself upon the general prohibition of "near of kin." He was asked, then why not cousins? To which he answered, "I suppose it was left to the Church at the time to decide," and he said so again in answer to another question put to get his view quite clearly. The Commissioners did not go on to ask, what Church at what time, so I must take all the possible meanings. I should think he would have disclaimed meaning every Church at every time, and would have said "The Holy Catholic Church." No other alterative occurs to me; nor does it matter, because the moment you invoke an interpreter of Scripture that means invoking a superior authority, or if you like, an authority necessary to complete the other; and as that other is the Word 1511 of God, and the superior or substitute is the word of man, we who are Protestants need go no farther. But suppose we accept his interpreter, the Holy Catholic Church. What is that? Happily the very voice of the Church of England, "the Sacred Synod of this nation," as the High Church Clergy (quite wrongly) call the two Convocations, answers the question for us distinctly, and we ought to hear that definition read before every sermon, in the Bidding Prayer, from which they always take care to omit it, as they treat every Canon that they dislike. "Ye shall pray for the Holy Catholic Church, that is for the whole congregation of Christian people dispersed throughout the whole world," says the 55th Canon. What says that congregation to Pusey's definition of the prohibited "near of kin." Your Lord-ships have anticipated the answer. No church in the whole world accepts that definition, except this, under the orders of Henry VIII, unless some one or two of the various Scotch churches do; and unless the doubtful law of the State there agrees with it, that goes for nothing. Only one thing more on that point. There was, you know, a conference of the Bishops of all nations in communion with this Church of England last year, which certainly could not be accused of timidity, for it invited the Primate to alter two of the creeds, if after consultation with those whom he chose to consult, he should think fit to do so—a power which no Pope has ever claimed. It was well known—at least I was several times told so before the result—that the prohibitionists were making a great effort to obtain a declaration in their favour from that sacred Synod of the universe. But it was silent. And how could it have been otherwise, with all the nations of the world on one side and only a majority of English Bishops on the other? As the prohibition speakers have always treated your Lordships to as much theology as suited them, it is time that you heard something on the other side, though of course it is presumptuous of me to discuss theology with Bishops, and Lord Chancellors in that line. But presumptuous laymen made the Reformation, and perhaps will have to defend it before long. As I have all those distinguished ecclesiastics I have mentioned on my side, 1512 the question is an open one, notwithstanding the claim of ecclesiastics to perpetual spiritual illumination for judicial purposes, which some of us have been discussing lately. The first question which we have to ask about any asserted doctrine, according to our 6th Article, is, can it be proved by Holy Scripture? If not, it is not required to be believed; much less can disbelievers be forced to act upon it. And the primary question for determining that is, does the Bible speak plainly on it anywhere? If it does, nothing but a qualification of equal plainness somewhere else can justify us in overruling it. It has always appeared to me absolutely fatal to the prohibitionists that they have to begin, and always do, with inventing excuses to get rid of the one verse in all the Bible that speaks expressly on this subject, except the history of Jacob and his two wives. I do not know if he was the patriarch alluded to by the noble Duke in his summary of authorities; but he is the only one besides Moses that occurs to me, and his unrebuked and uncensured example is very significant. For as bigamy was lawful then and fully recognised in Deuteronomy xxi. 15, besides plenty of subsequent history, this concurrence of his sister-wives was no more than the succession of ours. If that succession had been plainly forbidden afterwards his example would be worth no more than Abraham's marrying his half-sister; but it was not; and therefore Jacob's example is a good argument for us and against the noble Duke. I agree with what the most reverend prelate said in 1886, that the levirate law (so called from levir, that kind of brother-in-law) was exceptional and not perpetual, though I should not like to be responsible for his reasoning about it. But nothing can be more striking than the difference of treatment of brother's wife and wife's sister in the 16th and 18th verses of Leviticus, xviii. My reason for considering the levirate law temporary or peculiar is the broad and simple one that the verse which contains it, Deuteronomy xxv. 5, is surrounded by purely ceremonial ordinances which no Christian believes to be perpetual, besides being more limited than is generally remembered. The next distinction made by Moses between brothers' wives and wives' sisters is this. Most 1513 of the prohibitions are repeated in Leviticus xx; which includes the à fortiori and exactly parallel ones, to all reasonable people who believe the Bible at all; and they are mostly made capital offences. How are these two treated? Not in that way; but God reserved the judgment on marrying a brother's wife to himself: "They shall be childless"—i.e., where there were children by the first wife, by reason of the levirate exception; and as to the wives' sisters it is altogether silent, all having been said about them in the 18th chapter that was required. For nothing could make it plainer. Nor could anybody now unite the prohibition and the permission together more plainly if he tried than it is in that verse which the people who call themselves the Church invariably try to get rid of. Only to-day in the Times we have a long letter from another bishop, enlarging upon everything else that we have heard innumerable times before, hut stopping just short of the only verse that says anything about wives' sisters, and evidently not daring to touch it. A third distinction is that Moses gives a reason for the brother's wife which you may see would be simply nonsense if written of the wife's sister. And as to the general assertion of parity of sexes, as competent to override all these express distinctions, everything in the Bible tends the other way, and everything in the experience and legislation of the world. Nobody ever treated them alike in the matter of divorce, on account of the immense difference of the consequences of adultery. Certainly not Moses; for a wife's adultery was capital, but a husband's was not, unless it involved a wife's also. For the present purpose that is quite enough, as we are discussing Mosaic legislation, but St. Paul was quite as little an advocate of the equality of sexes as Moses. I am glad to be able to agree with the most rev. Prelate in another thing, on which I therefore differ from my noble and learned friend Lord Bramwell, as I do from some other of the views he expressed in 1886. I agree that the much misused phrase "they shall be one flesh" was not metaphorical but simply physical, in the most obvious sense. St. Paul's application of it to a harlot in 1 Corinthians vi. is decisive, besides other reasons. And a very curious fact bearing 1514 thereon was published about three years ago by a surgeon of long standing, who was confirmed by Sir James Paget and other eminent men—namely, that it is well known both to them, and to some breeders of animals, that a female who has had children by one father generally imparts some of his characteristics (which means his flesh according to all modern science) to all future children by another father; but nothing of the kind takes place between successive mothers and the same father. This "one flesh" argument has always been the favourite one with the prohibitionists, and we have had it again to-day. Once more I ask how they account for Moses never using it in connection with the prohibited degrees, nor St. Paul, when he spoke of one in 1 Cor. vii. That is another of their improvements on the Bible, and putting unworkable reasons of their own into it. I say unworkable because not one of them has ever been able to invent a rational answer to the question with which Bishop Lonsdale posed Archdeacon Hale, a very able man, viz., if that reason was the real one, and your sister-in-law is as unlawful as your sister, why is not your wife's sister-in-law unlawful too? Or, without going to collaterals, why may the sons of a widower marry the daughters of a widow who has married him? If he and she are one flesh for this purpose, surely all their children are. And the question must be extended ad infinitum for collaterals. I say no rational or logical answer has ever been given to that. The most rev. Prelate cut the knot both in 1883 and 1886 by calling the argument absurd; only he forgot the difference between an absurdity and a reductio ad absurdum, which Bishop Lonsdale did not, who of course used it so, and reduced the Archdeacon to confess he could not answer. Other people have tried to get over it by foisting in the word "affinity," and then telling us that it only means your wife's blood relations. I made some of them very angry in the Guardian by saying I had no objection to its meaning anything they pleased until they could show where Moses used it on this subject. If he had, we should have had to interpret it as we could. Another of them asked me what I should say if v. 18 were out of the way. I answered that I should say it would save them from the disgrace of 1515 trying to put it out of the way by a heap of disingenuous pretexts. And I say so now. For after all that has been written about it, and the concurrence of every Hebraist worth naming, and every version (McCaul says) in all languages, and all the old ones, from Cover-dale through Tyndale, and Luther, back to the Septuragint about 280 B.C., our A.V. and now the R.V. stand absolutely irrefragable—Thou shalt not take a wife to her sister, to vex her (R.V. to be a rival to her) beside the other, in her lifetime.Your Lordships may be curious to hear what are the pretexts for getting rid of that unmistakable permission and prohibition combined for death and lifetime. I am sorry to say that two of the highest ecclesiastics here have several times pronounced it, without the least explanation why they do, obscure, ambiguous, capable of four translations; and the present Prolocutor of York, in Hook's dictionary, improves them into 14, suggesting that the best of them is that in the margin of the A.V. which turns it into an absurd prohibition of polygamy besides other defects. I asked him if he would say that he himself believed it, and he was too discreet too answer. Perhaps by that time he remembered that he himself, as the writer on Deuteronomy in the Speaker's Commentary, had corrected an astounding and ludicrous mistake of such a learned man as the late Bishop Wordworth in defending that translation. Besides its other absurdities, it was only invented in 1575, and ought never to have got even into the margin of any authorized translation. But as it is now as dead as any door nail to every competent scholar in the world, I pass it by, and remind all the propounders or insinuators of either four or fourteen undescribed versions, that the more are the attempts to explain away what every honest man of common sense sees to be as plain as possible, the worse for the inventors; though if a verse is doubtful on the face of it, the attempts to make it clear may be innumerable before one receives general acceptance. I do not believe there is a bishop living, or a scholar with a name to lose, who will risk it on any one of the few or many versions which these people talk of without stating what they are. Even 1516 Philpotts, in his speech here in 1851, said he concurred with all the best Hebrew scholars in accepting the A. V. text, and not the margin. When they have thus kicked it out of their way, they go to work with their "principles." If I were inventing a table of degrees, I daresay I should think it necessary to start with something that would be called a principle. But I have not to invent a table but to accept it from one whose principles I have no business to invent also, and I decline altogether to listen to people who claim to do so because the words of Moses contradict them. And then, you see, we know as a matter of fact and history, who did invent their table as it is, and why; not Moses, nor any kind of scriptural authority, but Henry VIII. The modern principles to bolster it up ex post facto are like most principles now, invented to involve foregone conclusions. The noble Earl told us in effect that it would lose its present elegant symmetry by being reduced from 30 to 29—or rather, to quote him accurately, he said 20 to 19 prohibitions for the man, while it remains 20 for the woman, and he also put them together at 39; which looks as if he had got a little confused between the number of the Articles at the end of the Prayer-book, and of the Prohibited Degrees which follow. But unless he can satisfy me that symmetry and the number 30 were the reasons why Moses, or rather the Holy Ghost, ought to have made it so, I do not care a farthing for symmetry or principles. In 1883 the most Rev. Prelate invented a new one of his own; which I suppose somebody afterwards made him understand was fatal to nearly half the table; and as he never produced it again, I will let it die in peace, having said my say about it elsewhere. And I will not weary your Lordships with any more discussion of such principles. The Bishop of London, in 1886, and the noble Earl now, asked what principle we have if we reject their symmetrical arrangement. I cannot answer for all the opponents of the prohibition, either as to their reasons or the various lengths to which they go. But my principle is so simple that it hardly deserves that name. It is only attending to the written law, and all necessary inferences from it. No inference is necessary or admissible which con- 1517 tradicts plain language interpreted by common sense. All experience of the 30,000 or 40,000 of these marriages, or whatever may be the number, that have taken place proves that all besides the wives' sisters are an utterly insignificant number; and that also proves that there is no demand worth notice for any other alteration; and therefore, that the "thin end of the wedge," or "where will you stop" argument is none at all here. I understand that the Association for promoting this Bill have only heard of 28 brothers' wives marriages in the last 15 years, against what they are sure are about 15,000 of wives sisters. Of course I know that there are persons who object to any restriction beyond the nearest consanguinity, and deny all divine authority for any. But they are not the least formidable because they have neither numbers nor reason on their side. It is odd that the prohibitionists cannot avoid exaggeration, even when their reasoning is sound. Though every person of sense and honesty must see that the express prohibitions in Leviticus are incomplete, and if accepted as authority at all, must be extended to really parallel cases, do the prohibitionists think they mend that case by the ever-reiterated assertion that there is no prohibition of a daughter without inferences? How could you marry your daughter without breaking the prohibition to marry "a woman and her daughter"? It prohibits daughter and step-daughter together. The attempt to extend the Mosaic law by talking of Christian purity and the absence of any prohibition of polygamy in the New Testament, are other fatal specimens of their reasoning. That very pretext of ultra-Scriptural purity ended, as everybody knows, in the grossest impurity among the people who professed it. And the universal understanding of mankind very soon after Christanity came in, that it was against polygamy without any direct prohibition, for well-known reasons, is at once a striking proof of a power which no human legislators could have used, and a striking contrast to this fictitious prohibition which the vast majority of Christians reject. There never was a stronger case of "making the law of no effect by your traditions," than that of ejecting v. 18 from the Bible by such arguments as 1518 these of our bishops and their followers. I was sorry to hear the noble Earl follow the bad example of the retired Bishop of Oxford. In his case it may be attributed to his superficial study of this subject and his want of something more definite to say. Bishop Mackainess had no such excuse fur twice deliberately imputing to the supporters of this Bill generally, a desire to abolish all the affinity prohibitions, and calling upon them to avow it and discuss the question fairly. I do not mean that it was his fault that the Times, which always gave the utmost prominence to his letters, refused to publish answers to them from various persons, one of whom (not me) he had personally reflected on. The Guardian, I am glad to testify, though strongly on his side editorially, permitted two years ago the only full discussion there has ever been in any newspaper or periodical. The Duke of Argyll too, in 1883, imputed the same general intention or desire to the defenders of the 18th verse. If he did not remember, Bishop Mackainess could not possibly forget, that the only unlawful marriage expressly condemned by St. Paul was an affinity one; and it might have occured to him that he was accusing all those great divines, far more eminent than himself, of reading St. Paul's condemnation of marrying a stepmother out of the Bible, as he and his party "read out" the permission to marry a wife's sister, which some of them actually say has nothing to do with the question. If so, what was that verse for? Others of them more mildly say that if we exclude a wife's sister from the table, there is no principle on which we can retain the others of affinity. It may be quite unprincipled to accept the words of the Bible, and all necessary and uncontradicted inferences from them, as I have said, and I can give them no other principle; but I wish to add a few words on the only other case which seems to me fairly arguable, viz., a wife's niece, as being one degree farther off and not expressly prohibited. But, on the other hand, there is nothing like verse 18 to exclude her from the general analogies, and experience proves that there is no demand for it. And further still, wives' nieces are generally regarded as much more like your own than sisters-in-law 1519 are like sisters. Therefore I see no reason for fearing that demand in consequence of granting this. And after all, the experience that a mere positive law fails in making anything except offenders in great numbers is the strongest argument to people of common sense for not continuing the unequal fight and committing tyranny for nothing but the abstract pleasure of it. But as they are so fond of denouncing us as secret conspirators for making an unscriptural distinction between affinity and consanguinity they had better remember who made it first—the Bishops who made the Act of 1835, absolutely validating all the existing affinity marriages, and not those of consanguinity, the very thing which the noble Earl is so angry with this Bill for doing to these marriages alone. Apparently he has never read the Act which be is so anxious to uphold. And now for a few words only on those existing marriages in which the parties have done all they could towards pledging themselves to each other for life, though this bishops' law says they may separate again when they please. I am not concerned to prove the exact number; but I saw quite enough years ago of ludicrous failure of the attempts to impeach the statistics which satisfied that most impartial and competent Commission, to pay any attention to the noble Earl's professed suspicion of the number of 1000 a year, which the Association vouches for. I could tell your Lordships some amusing stories of the refutations of former orators who pretended to have disproved -those statistics either generally or in particular places, but it would take too much time, and they have been published often enough, and nothing turns on the exact number. So, as I must use some, I shall use that which I believe in. The prohibitionists always revile those 80,000 people, and often call them names, and the clergy do especially, and sometimes their children also, as has been published in newspapers and not denied. Of all the absurd charges, the absurdest is, that they are persons who will not restrain unlawful passions, and that there are plenty of other women they could marry if they would. Whether they are wrong or right in other ways, it is evident that such marriages are on the average less 1520 due to passion than most. For they are nearly all due to the desire of widowers to get the best stepmother for the children, and on the part of the aunt, to stay in that character with them. Innumerable cases have been given of dying wives begging their husbands to do so, rather than expose their children to a strange stepmother. It is very easy to say that men can keep their sisters-in-law with them now without marrying them. First, that is very doubtful indeed, where they are young. And by laws of nature and of God it is better for "every man to have his own wife and every woman to have her own husband;" and if they are not allowed to have the one who is wanted for the children, they must either turn her out or do worse. Nor can they be certain of retaining her unless by something they consider marriage, though it legally is not. Our experience of large houses and facilities of all kinds are apt to mislead us about small ones. I do not know what right any of us have to say we do not believe the abundant evidence that has been continually poured in and published. I suspect very few prohibitionists even condescend to look at it—or any other evidence on that side. But I am not arguing that question, but simply what effect these 40,000 illegal or invalid unions ought to have on us as legislators. They may be wrong if you like, but we have the strongest evidence that the most religious and best people in the classes in which they take place, though they are not ours, do not think so, and that the parties suffer no social inconveniences from it. I was told by several dissenters two years ago that that is the reason why they have not agitated more, when I asked them why they did not, as they understand that art so well. They say it is almost entirely a social question, and they settle it by their own social judgment. Do you think you can stop that? If on the other hand you choose to condemn their so living together as a great sin, be it so. For the worse their sin is, and the more mischievous their example, leading more ignorant people to disregard the sanctity of marriage altogether, the more those have to answer for who cause all this, and turn these 80,000 people, who would otherwise be living irreproachably, into concubines 1521 and paramours, either for the pleasure of maintaining what they call the law of the Church, or for the convenience of their own select society. I have disposed of all the noble Duke's array of authorities and ancient ways, except his "prophets." With all my efforts I can only think of one prophecy bearing on his case—"In the latter times some shall depart from the faith, giving heed to doctrines of devils, forbidding to marry, and commanding to abstain from meats which God hath created to be received with thanksgiving"; exactly the two forms of asceticism most in favour with those who have called themselves the Church above all men, from the time when its corruptions began to this day. And all history shows that with them no moral sin is ever deemed so deadly as defying the law of the Church, whatever it may be in their opinion. I decline the responsibility of helping to fulfil that prophecy, and therefore I have always done my best to help this measure, though neither I nor anybody belonging to me has the smallest personal interest in it.
§ *THE EARL OF SELBORNE
My Lords, I do not think it is well that your Lordships should go to a division immediately after so long a speech from the noble and learned Lord without something at all events being said on the other side. To attempt to answer in detail all that has been said by him would take a week, but I think this is one of the cases where when debate is challenged the challenge should be accepted. The noble and learned Lord has gone over a very large field. That could not be done without much preparation; and a proper answer to all his points would require preparation too. I think it will be enough now to refer to certain points in the speech. I would caution your Lordships against being misled by the authority of the noble and learned Lord. He and I are very old antagonists on this matter, though not, on his side, in Parliament. I will merely say that in this matter the noble and learned Lord, able as he is in everything he does, wrote a pamphlet nearly forty years ago, in which he told the world that these marriages could be legally contracted by people going to Denmark or any other country where these marriages were permitted by the local law.
§ *LORD GRIMTHORPE
I gave the opinion as some much greater lawyers did before the decision of the Courts upon the question.
§ *THE EARL OF SELBORNE
Quite so, but when the question was raised in the case of Brook v. Brook and in other cases, the Judges all decided the other way, showing that the noble and learned Lord is not infallible. Then with regard to the authorities which he quoted. He quoted a passage, to which no exception was to be taken, except that it was irrelevant, from Bishop Jeremy Taylor; but in the very earliest debate which I remember in the House of Commons on this subject, in reply to a speech from another not less learned person, the late Lord Chief Justice Cockburn, I showed that the opinion of Jeremy Taylor was opposed to these marriages, and that he expounded and asserted the soundness of the principle of interpretation, according to which marriages with a deceased wife's sister are held to be prohibited by the Levitical Code. Take the particular instances of prohibition, you apply it pari rations to cases where the relationships are equal, and à fortiori you apply it to cases which are actually within them, and to affinity within the same degrees as consanguinity. Marriage with a deceased wife's sister is prohibited for that reason. That was the opinion of Jeremy Taylor, and that is the foundation of our law upon the subject. I am not going through the Roman law, but, if I did refer to it, I should think that the law of the Christianized Romans on this subject would be entitled to receive even more deference from us than the law of the Pagan Romans which has been referred to. I am not going through that or the other laws to which the noble and learned Lord referred; but I can tell your Lordship this, that though he said the Council of Neo-Cesarea was the first which dealt with this subject, neither that Council nor the Council of Eliberis, nor any other Council, ever dealt with it as a new thing, but they were going upon the lines which all along the Church had adopted. It had never been shown that at any time in the Christian Church, from the beginning, there was any difference of opinion as to these marriages being within the 1523 prohibited degree. We now live under the law laid down in the time of Henry VIII., not as to this particular degree of affinity only, but as to all the degrees. We have been living under that law for above 350 years, and that law is in every point the same as that which had been enforced before, except that the ecclesiastical prohibitions going beyond the Levitical degrees were then cut off, and dispensations were no longer allowed. If we are to have a marriage law, it should be on consistent principles. Surely, if we are to have marriage laws at all, it is not unreasonable to ask that they should be consistent in principle. If we are to sanction these marriages, I do not see how we can prohibit marriage with a deceased husband's brother, and still less with a wife's niece, which is a degree more remote. Your Lordships cannot assent to a Bill in which you can find no consistent principle or any principle at all except that of giving way to a certain amount of agitation and clamour. If that be so, and if your Lordships give way to that agitation, it will be totally impossible in reason and justice to resist the demand of any who may agitate for marriage with a deceased husband's brother or a wife's niece. The noble Duke said that the Levitical Law is no more binding upon us in regard to this matter than it is with regard to eating certain meats. The noble Duke draws a very arbitrary line; but I should like to know how we are to meet the demand of the numbers of persons who may come forward and ask that all the degrees of affinity, and some of consanguinity, may be swept away; saying, "We do not think the Levitical Law is binding upon us." If you appeal to Germany, and other countries where these marriages are allowed you will find that they also allow marriage within certain degrees of consanguinity without dispensation. I think we are entitled to say we will take our stand upon the principles of the law as it is. We think it is a good thing for the purity of families and for the peace and happiness of families that the sister of the wife should be in law the sister of the husband and should be received both in her sister's lifetime and after her death as if she were really his sister. We are not convinced that this is in any true sense a poor 1524 man's question. Of course those who wish for this measure endeavour to collect opinions everywhere; but I think those who investigate facts in their own neighbourhoods will not find that there are really any greater number of this particular kind of marriages in one class than in another. No doubt they exist, but in an infinitesimal ratio to the whole population. The men who does not want to marry their deceased wife's sisters, but who do want to retain the benefit of their sisterhood, would all suffer loss by this Bill. My Lords, one word more is all I will say with regard to this Bill. It has a retrospective effect. It says that all marriages of this kind solemnized during the last 50 years shall no longer be void or voidable. It is contemplated by this Act of Parliament that all persons who have been breaking the law with their eyes open and not by mere mistake shall be treated as if they had always been validly married; and that, whether they like it or not. Those even who may have changed their minds, and have lived for any number of years apart from each other, are to be compulsorily married by this Bill, unless they have in the meantime made some other marriage. I cannot but say, my Lords, that while I regret very much being obliged to stand opposed to the comparatively inconsiderable number of persons who may desire to do what the law does not permit, I think I should be setting a very bad example and giving encouragement to wholesale breaches of the law upon all sorts of subjects if I voted for the second reading of the Bill; and I most strongly suspect that if the retrospective effect of the Bill were omitted from it, its promoters would not care very much about what would remain.
§ LORD HERSCHELL
My Lords, I only desire to say, in commenting upon the remarks which the noble Lord has just made, it strikes me that if the only obstacle to any marriage between relatives, however nearly related, is a belief in the perpetual obligation of the Levitical Law, it appears to me that our marriage law is in a very perilous condition. It has always seemed to me that there is an insuperable obstacle to saying that this is opposed to the Levitical Law. If we are entitled to say that certain provisions of the Levitical 1525 Law with reference to marriage are Divine commands of perpetual obligation, by what right can we reject other provisions of that law which are equally distinct and clear, and to say that they are not Divine commands of perpetual obligation? The Levitical Law enjoins marriage with a deceased husband's brother. If you say that in this particular respect it is binding, what right have you to say that that command shall not be followed? It appears to me it is impossible to draw that distinction unless you can point to something in the Book of Leviticus itself which justifies it. My Lords, it seems to me that if you once break away from what is established to be the Levitical Law with regard to this subject you must break away from it in regard to others, although those who might be presumed to know something of the Book of Leviticus deny that it is the Levitical Law. Where are you to stop? On one occasion a Jewish Member of the other House, now unhappily dead, when speaking on this subject, and referring to the eloquence and noble diction devoted to it, said he had been gratified at the eloquent tribute paid to his race, but he thought they might have credited the Jews with being able to interpret their own Scriptures. My Lords, when we are dealing with this question of the Book of Leviticus I think we are bound in no way by authority if it is said that such marriages are prohibited; and even if it were clear that that is the case, by what right are we to be told that these are obligations upon us to-day if these other obligations in respect to marriage are not to be equally binding upon us? With regard to this particular kind of marriage, I believe that the feeling of the vast majority of our countrymen is that there is nothing wrong about it at all. They cannot see it to be wrong or feel it to be wrong. With all the eloquence of the whole bench of Bishops they cannot hold it to be wrong. If that is so my Lords, what then? Why is it not the case that you are to follow the other obligation? If you permit one kind of marriage, you must permit it in all cases, whatever the affinity or consanguinity. I would appeal to what was said by the noble Marquess opposite, only two or three days ago, when another measure was put forward, that that is not the way we deal with Legislation in this country, but we deal with 1526 a particular subject matter when it is pressed forward, and leave the consequences to take care of themselves. I cannot help feeling that if this particular marriage is one about which a vast number of people are concerned, as undoubtedly they are, they will see, from the very fact that a distinction is drawn between this marriage and others, there is sufficient assurance that you need not fear the change. In the case of the Bill before your Lordships' House the change does not necessarily involve the consequence which it is feared will follow. If it comes to be, as I believe it does come to be, if you cannot show any particular sanction for it, then, in a case of public advantage and benefit, I fail to see why your Lordships should not accede to the demand for this change. I believe the existing law to be mischievous and immoral in all respects, and I believe this measure would in no way change the relations of life, which now happily exist. But, my Lords, we are happily not without proof that the fears of the noble Lord are without foundation. We are not speaking of an experiment which has never been tried.' We have had experience of this law in two cases of people and churches nearly akin to ours, of the same religion, and possessing the same traditions, and what do we see? Look at America, look at our Australian and other Colonies. The truth is, that these difficulties, these dangers that were suggested, have proved to be imaginary. We have not here merely that confidence in the future which is felt by either the advocates or the opponents of the measure. Here, happily, we have an appeal to the test of fact, and we can see that the evils which some anticipate have proved to be wholly unfounded. There have been many men, having suffered the most painful loss that can happen to man, with a family of children left motherless, who have thought that the best security for their own future happiness and the best guarantee of a mother's care for their motherless children, would be in such an union as this. The law steps in and prohibits it; compels the father, if he is to marry again, to marry some one other than the deceased wife's sister, whom he believes to be the best mother for the motherless children. My Lords, can it be doubted that there 1527 are many cases where the wife's sister would be the best mother to the children? We are told this is not a poor man's case. But when you consider the condition of a man left with a family, often with most limited accommodation, it is almost impossible for him to have his wife's sister taking care of the children with any notions or sense of decency unless that woman becomes his wife. And what is the consequence? The sister does come to take care of the children; they do not marry, but they live unmarried as husband and wife, and there can be no doubt that that is done to a great extent in this country amongst the working classes. It is useless to tell us that in that case, the sister may come and take care of the children without marrying the husband. In such a case as that decency would render it almost, if not quite impossible. There are these distinct advantages in making this change in the law. Now what are the disadvantages that it is supposed would outweigh them? I desire to treat them with the utmost respect, although I confess I have a little difficulty in appreciating them. It is said that if you render it possible for a man to marry his wife's sister, the relation of brother and sister-in-law must cease to be what is—that there must grow up between them a barrier such as does not now exist. My Lords, there again I appeal to experience. I am informed by those who have lived in countries where this marriage is legalized that there is no foundation in fact for that apprehension, and that the relation of brother and sister-in-law is there just what it is here, and that there they can associate together as here without reproach, without fear, and without danger. A fear has been expressed lest the fact that a man could marry a wife's sister might induce improper affection between them during the wife's lifetime and be a cause of jealousy and of subsequent complications. Why are we to suppose such a thing? Is it really true that the mere fact that a man cannot, in the event of his wife's death marry her sister, is to be the obstacle, the barrier which prevents improper affection or desire growing up in the mind of either man or woman? I venture to say that it is inconceivable that it should be so. I have read in an 1528 American paper which was dealing with subject of the supposed pained feelings of the wife, owing to the state of mind of the husband towards her sister, the writer said—I cannot understand our English cousins. From the sort of language they use, it would almost seem as if they had married the wrong sister first.I do not believe in this theory; I believe it is purely imaginary. Now I come to the objections to the Bill. The suggestion is that the wife's sister can make a home for and take care of the children, leaving the husband to marry somebody else if he wanted to. Now, I received a letter a day or two ago from a medical man whose sister-in-law had been a patient at his establishment, and he said that after a time their condition became intolerable. She came to reside with him. There was no intention or idea of his marrying her, but notwithstanding that, and notwithstanding the existence of the present law, he said he found that it was utterly impossible that they could continue to live together, on account of the views of the society by which they were surrounded. Therefore it is not true that under present circumstances the wife's sister can always be in the brother-in-law's house and taking care of her sister's children. But if the law were to change, why should the sister-in-law not still take care of the children and live in the brother-in-law's house? Why should there be any scandal? It is said society would not permit it. More shame, say I, for society that it should think any wrong. If the two can marry and do not, why should anybody suppose that there is a desire to marry or any desire existing between them which should make it wrong that they should live under the same roof? It seems to me that by permitting the marriage you take away the cause of offence and not add to it; you prevent the danger which must exist where marriage is impossible and where nevertheless the desire to marry remains. Therefore, so far from rendering it more difficult, I believe it would render it easier for the deceased wife's sister to take charge of the brother-in-law's house and his children than it is under the existing law. My Lords, I have dealt with the arguments which are urged against the Bill on the 1529 assumption that there is no Divine Law which prohibits these marriages, or that, at all events, those who do not believe that it exists are as much entitled to their views, and to act upon their views, as are the minority who do think that it exists; and I observe that when the noble Earl alluded to this prohibition in early times, so early that you could not find the commencement of it, I did not hear him make any answer to the challenge of the noble Lord opposite—namely, point to the time when that prohibition existed in the Church without, at the same time, the existence, side by side with it, of other prohibitions which have been disregarded. It is not enough to say that this marriage was prohibited if other marriages which to-day are lawful were prohibited too. I do not want to detain your Lordships longer. I believe that this matter really is of very much greater importance than many of your Lordships think. The noble Earl treats it as a light matter—a matter concerning only a few people who have chosen to break the law. I might mention a somewhat significant fact with reference to the view taken by the laity of this matter. This is a marriage which the right reverend Prelates tell us is incestuous, and yet I hear that not so long very ago a Bench of Magistrates elected as their Chairman of Quarter Sessions one who had made a sister-in.law his wife, and I believe that affords a very good indication of the view generally taken by the Laity of this marriage as against the view taken by the clergy and many belonging to the Church. I feel that it would tend to morality, and not to immoralty, to make this alteration in the law; it would tend to make the marriage bond more sacred, not less sacred, because nothing can more endanger the marriage bond than that any people should go through the ceremony of marriage and believe themselves and have multititudes of people believe that they are lawfully married and have the right to live together as man and wife—nothing, I say, can be more likely to seriously affect the sanctity of the marriage bond than that. I believe that by passing this law you will bring happiness to many, you will do injury to none; and I believe, still more than that, you will show that you are in harmony with the 1530 opinions of the vast majority of your country.
THE DUKE OF ARGYLL
My Lords, I came down not only wholly unprepared to take any part in this debate, but with a fixed determination that I would avoid it if I could; but I am sure your Lordships will permit me for a few moments to refer to the persistent attacks which have been made upon certain arguments which I ventured to address to your Lordships now two years ago. I have not brought a copy of that speech with me. The report in Hansard is exceedingly imperfect. The speech was afterwards published by the Marriage Law Association, and if I had known that I should have been referred to in that manner. I should have taken care to have armed myself with a copy of that speech, but I know what I said sufficiently well to know this, that the noble and learned Lord opposite has unintentionally, I have no doubt, entirely misrepresented all the views that I advanced. I heard with amazement and with alarm, the argument of my noble and learned Lord who has just sat down, that unless we are to accept the whole of the Levitical Law we are to accept none of the morality of the Book of Leviticus.
§ LORD HERSCHELL
That was not what I said. If you are to accept certain traditions of the Levitical Law relating to marriage and degrees of marriage, I said that you were not entitled to reject others relating to the same subject matter.
THE DUKE OF ARGYLL
That is quite a different argument. That I quite admit to a certain extent. But, my Lords, the noble Lord and his friends have gone much further. They have argued generally that the Jewish Law with respect to marriage has no bearing on ours. My noble and learned Friend Lord Herschell knows that in the language of theology and in the language of history the Levitical Law has a definite meaning. It means the law of sacrifices, the ceremonial law of the Jewish people. No one has ever pretended that we are bound by that, or even by the principles which it involves. To extend the phrase "the Levitical Law" to all the rules of moral conduct which happen to be contained in the Book of Leviticus is a great violation of all historical and theological argument. The chapter in which the law of marriage is 1531 laid down has nothing to do with the ceremonial law of the Jews. The whole contents of the chapter are differerent. Now, I will quote to my noble and learned Friend the words which, in my opinion, lay down a principle. There are, if I remember right, 12 specific prohibitions in that chapter with regard to marriage. Of these 12, no less than seven are marriages of affinity and not of consanguinity, and in one of them, where a man is prohibited from marrying his wife's aunt, the reason is, "For she is thine aunt." There is the principle laid down. It is quite true that that does not exhaust the whole chapter; but the Christian Church has always stood upon the general principle that affinity is equal to consanguinity. It is a rational and a reasonable principle, and if you break it down in one respect, you will have, sooner or later, to break it down in another. The noble and learned Lord referred to the Roman Law, and went back to very early times; but it is absurd to talk of the Roman Law on this subject of marriage. Marriage in the Roman sense was not marriage in our sense at all. We cannot draw any conclusion from such an illustration. My authority, with all deference to my noble and learned Friend, was a greater authority than his—my authority was Gibbon. I quoted to your Lordships a passage, a splendid passage, one of the most splendid passages in that august book, in which he described the principle that was laid down by the Code of Justinian, in which he says distinctly that, having before them all that had been said by the Christian Church, and all the feelings and traditions of antiquity, they laid down the principle that marriages of consanguinity should be prohibited. Then it will be remembered that I quoted from the Code Napoleon, and the noble and learned Lord has asked what is the use of quoting the Code Napoleon, because the Commission that decided that, was presided over by a certain person whose name was Napoleon, whose voice put into the scale weighed down all the other votes. I do not know whether the noble and learned Lord has done me the honour of reading my speech as published by the Marriage Law Association, but, if so, he will be aware that we have the minutes of the meeting of the 1532 Council over which Napoleon presided. The fact is that it was a considerable and a serious debate, and although the noble and learned Lord sneered at Napoleon, nobody who has read history and who has read the memoirs of that time, will fail to know that even in civil and political matters Napoleon's was one of the keenest and most splendid of intellects. There was a long debate; the matter was argued upon both sides perfectly fairly before Napoleon, and as I quoted to your Lordships, although the noble and learned Lord took care not to refer to it, the debate was not decided merely by Napoleon's vote, but the Council was mainly influenced by the representative of the Minister of Justice or one of his colleagues, who informed the Council, that during the years in which that marriage had been legal all the Courts of Justice recorded the most significant results. These are the three historic eases to which I referred in the speech which I had the honour of addressing your Lordships three years ago, and I submit to your Lordships that the noble and learned Lord has not touched the authority one wit.
*THE ARCHBISHOP OF CANTERBURY
I crave your Lordships' attention for a very few moments. I shall not attempt to enter into the details of such a speech as with great preparation was presented to your Lordships on this side, but I may venture to say for myself that wherever I was able to follow the authorities from Basil down to Archbishop Tait, they were not accurately represented. If an opportunity were given they could be traversed. I will not, therefore, go into details, but just re-state the two principles upon which I hitherto, the Bench of Bishops and the majority of this House in almost all instances, have taken our stand. I cannot say I follow the principles which the noble and learned Lord has attempted to lay down, but that may be because he objected to principles, as he told us. I would point out that, when in the early Councils decrees were passed, not affecting the marriage of clergy (which was a matter for themselves alone to deal with), but affecting the marriages of the laity, it was not done without the mind of the laity. It was centuries before the clergy had interests to serve growing out of restriction and dispen- 1533 sation, centuries before they were dominating society, and none wish the days of domination back again; but studying the early period you will know well that the clergy did not stand alone. The Councils were not influenced by the clergy only. They represented the great wide sense of the Christian laity as well as that of the particular people who were called upon to enunciate their principles, and they so pronounced the two great principles which are before us to-day—the principles of Scripture and of Society. My Lords, we lean nothing at all upon single texts. More time would he necessary to deal with those texts than we can now give, but if we do not rest at all upon particular texts, we do rest upon the construction of the code of the chapter of Leviticus. If we place it before us, it is no mere mass of prohibitions; we see a distinct and fine line round that chapter, we see simply that it is a definition of the family. All Society is based upon the family, and there is no country that recognizes it more than our own, and that chapter of Leviticus defines who are the members of the family. It proceeds upon the principle that, in the matter of consanguinity, both the parties must be considered equal; and it builds the family upon this general precept—that no man is to marry anyone who is near of kin to him. And then, next after the immediate parents, sisters and niece, the first instance of a person who is near of kin is the brother's wife. That begins the line of kindred. That gives us the key; that gives the clue which is followed through the whole chapter which the noble and learned Lord (Lord Selborne) on the opposite side of the House so clearly described. It has been already said, and it is so important, that I think I may crave a moment to repeat it. Not each possible case of forbidden union is enumerated. It suffices if either the male step or the female step is mentioned. The other follows. The noble and learned Lord said that in that Code Quod non vetitum est licitum est. In that ease a woman may marry her uncle, for it is only said that a man may not marry his aunt or his aunt-in-law. But that is just an example of the method of this Code. What our reformers set to work to do in the whole of their 1534 reform was to bring back the Church and the law to the standard of Scripture, and what they had to do here was twofold. In bringing back the Marriage Law to the standard of the Scripture they removed merely ecclesiastical restrictions and they swept away ecclesiastical dispensations. Then the whole Code stood out scriptural and perfect, and it is that upon which we have lived ever since, just as the early centuries lived upon it before. When, however, the Code was spoken of as "Parker's Table," the noble and learned Lord who spoke so fully seems not to have been aware that it is shortly given in a State-paper of Cranmer's in A.D. 1536. Another noble learned and Lord opposite will, I have no doubt, let me make one remark upon that kind of marriage which he spoke of as an exception. The noble learned Lord inquired why if we were to obey Leviticus in one direction, we should not obey what he stated as the injunction that a man should marry his brother's widow. My Lords, that is a popular cavil, but the answer to it is simply this, that it does not command a man to marry his brother's widow. There was no marriage of the kind. The childless man's brother under the laws of property was told to take his brother's widow and raise up seed unto his brother. A child born of that union was not counted as a child of the man. He was not born in that wedlock. He was the child of the deceased man, he was the inheritor of the deceased man, and he inherited nothing from the man who performed that duty in obedience to the law and for that special purpose. Then there is one other question which the earlier decrees raised—namely, the difficulties which would be created in society. Those difficulties were experienced in early times, and I am convinced they would be in these. It is impossible to jest these difficulties away. A case came under my notice the other day of the benefit the English Law had been to a foreigner, who here had been able to get his wife's sister to bring up a large family of children with the utmost freedom and happiness in public and in private. The man said to me "if it had not been for that law I do not know how my children could have been brought up. There was no one else to whom I could have gone." This is not an isolated case. I say not 1535 in hundreds but in thousands of families, the sisters-in-law, the wife's sister, is the only person who can bring up the children, and it would be impossible for her to enter the brother's house if it were felt that she was not only placing herself in the way of marriage, but of a lowering kind of marriage because it would be lowering in the minds of many of the best people amongst us. It is so now, and will never cease to be so. Most people have felt it to be opposed to the Divine law as I do for one, and most will think it an error against society. It is felt amongst large classes of society that it is a serious error to depart from the uniform practice of Christianity and of this England ever since we have had a Church and a State. There would be planted in the midst of us a class of people of whom it would be felt by most religious and most feeling persons that in the most important and greatest step of their lives Quod factum fieri non debuit.
§ On Question "That the word 'now' stand part of the Motion." The House Divided, Contents, 120; not-contents, 147.