§ Order of the Day for the Second Reading, read.
THE EARL OF DUNRAVEN
said, in asking their Lordships to sanction the principle of the Bill by giving it a 1166 Second Reading, it would not be necessary to occupy the time of the House at any such length as the importance of the subject might demand or justify; and if he passed over some of the aspects of the case with brevity it would be understood that he did so being well aware that to most of the Members of the House the subject was familiar, and also relying upon the effect which, during the last few years, arguments adduced in the past had probably had—more, no doubt, than any which might be brought forward by himself. The principal point in which this Bill differed from other measures of a similar eharacter which had come before the House was the attitude adopted towards the Church. It left the Church absolute liberty of thought, opinion, and action. Some doubt had been cast upon that in the public journals, and in a letter from Mr. Murray, in The Times of that morning, it was stated that—It would be instructive to know why Lord Dunraven had omitted certain provisions which were in the Bill before the other House of Parliament.He doubted whether his reasons would be instructive to their Lordships as intelligent men, but he would say at once that the paragraphs referred to were omitted as superfluous—mere redundancy of unnecessary language—and brevity was of the essence of good drafting. If their omission in the least was thought to counteract the intention of the Bill, to leave the Church absolutely at liberty in the matter, he would accept them or any similar words which might be inserted in Committee. Among the clergy nothing like an unanimous opinion upon this question prevailed, that marriage with a deceased wife's sister was contrary to either the laws of God or the laws of marl. However, with very notable exceptions, he would accept at once that the opinion of the large majority of the clergy was represented by those which had been expressed from the right rev. Bench. That being the case, he thought it advisable to be content with a comparatively small measure of reform. The Bill did not provide that ministers of the Established Church or of any kind should be compelled to celebrate these marriages, or that our National Churches should be open for their celebration. Further than that, it would not curtail in the slightest the use of any means which the Church 1167 might now possess, whether punitive or otherwise; the Church would, after this Bill was passed, retain the same power as before to persuade, to exhort, to punish, and to make use of any ecclesiastical pains and penalties in her power. That was a considerable concession. Of course, it might be said that the Bill was in that respect illogical. It might be argued that if it was right the State should sanction such marriages before a Registrar—purely civil marriages—it must be equally right that the State Church should be compelled to allow such marriages to be celebrated in the parishes churches. In that respect the Bill was not absolutely logical or consistent; but could absolute logic be found in any Act of Parliament? Were not all legislative measures, all our Acts, all the rules and regulations of organised society touched with inconsistency—more or less tinged with the necessity for compromise? Personally, he would much prefer a larger measure of reform. He had gone as far as, conscientiously, he could in endeavouring to meet the objections of those who were opposed to it in the hope that they in their turn would go as far as they conscientiously could in arriving at a settlement of this great and vexed question. Their Lordships certainly, and probably most upon the right rev. Benches, would agree that he had gone a considerable way towards suggesting a compromise in the matter. It was not necessary to use casuistry to show that an enormous difference, at any rate in degree, existed between securing liberty of judgment and liberty of action to others in a matter of this kind, whilst retaining one's own liberty of action and opinion. There was a great difference between asking the House to agree to this Bill and to consent to a measure which would have the effect of compelling men to a course of action—to do something which might be contrary to their consciences. It might, of course, be said that if such of their Lordships as objected to these marriages on religious and theological grounds assented to this Bill they would be conniving at an act they deemed wrong; but the Bill provided that, though the State should allow civil marriages of this kind, the position of the clergy should he absolutely safeguarded, and their power left uncurtailed to do all they could to prevent these marriages taking place. 1168 Noble Lords who felt convinced that marriage with a deceased wife's sister was utterly abominable in the sight of God and man and subversive of society—those who thought that was proved must, of course, resist the Bill like any other men in the country. Not a single words would he say against their doings. But those who, while objecting to this measure of relief, thought it possible that its supporters, in differing from them, had some justification for what they equally conscientiously believed, if they were not absolutely convinced of their own infallibility in the matter, though animated by those feelings could, he submitted, perfectly well agree to the Second Reading of this Bill It was absolutely permissive, though not impartially so, because undoubtedly by the attitude adopted towards the Church the Bill would tend to discourage these marriages. All it asked was that the State should say that the case against them, from a theological or social point of view, was not sufficiently clear to justify the State in taking the very strong step of interfering with liberty of thought and action in so important a matter—that the State in its large impartiality, while not curtailing in the least the liberty of action of the clergy, should cease to set the stamp of infamy across the signatures of the parties to these marriages which were not contrary to the consciences of those who made them, and which to them and to their friends and neighbours carried no sense of moral guilt—an opinion shared, he was convinced, by the great majority of the nation. He had hopes that the compromise embodied in the Bill and the arguments he had briefly put forward might meet with some consideration from their Lordships. He hoped so on behalf of the people for whom he was pleading; he hoped so on account of the Church herself. He was not an advocate of mere expediency, and if it were against the conscience of the right rev. Prelates to accept such a measure he would he the last in the world to suggest their doing so. But entertaining, as he did, so high an opinion of the great work which the Church was doing, and feeling that more strongly perhaps than some of their Lordships because he saw it daily in one of the Church's most fruitful fields—that part of Britain with which he was most inti- 1169 mately acquainted, the Principality of Wales—than to see right rev. Prelates, if it were within their consciences to do it, strengthening the foundations on which the Church stands and securing the affections of the people by showing sympathy with them in this matter, and ceasing to uphold a law which touches to the quick thousands among the poorest and humblest of the people and interferes most disastrously with their happiness and welfare in life. That was all he would say on the religions or theological aspect of the question, guarding himself however by saying that, in his opinion, the theological objections could be effectively combatted and disproved, though this was not a place or an occasion suitable for raising such discussions. And, moreover, the religious argument had been practically abandoned as affording ground solid enough for moving the rejection of a Bill of this kind, and was not likely to be revived again that night. Whatever might be the opinions of their Lordships individually as to the meaning of particular texts or passages of Holy Scripture upon these subjects, as to how far they should be read in connection with the social conditions of the people to whom they were immediately addressed, whether polygamy was or was not permitted, it was generally conceded that the most critical and best opinions differed so much on those points that the purely theological argument no longer afforded a ground for objecting to this reform. And so he would leave that part of the subject, merely saying that, as far as he was personally concerned, it appeared when a human law claimed to be founded on a Divine precept, and at the same time failed to carry authority to the consciences, the perceptions, and the intellects of men and women—God-fearing, law-abiding people, fully alive in all respects to moral obligations—that in such a case it was more probable that the inspired utterance had been misapplied or misinterpreted rather than that a Divine ordinance should fail to carry weight to the instincts and consciences of the people. The Bill followed the usual line. Like all measures dealing with such a subject, it was retrospective, though not in the sense of affecting any inheritance or the rights of the State. It was unnecessary to argue before their 1170 Lordships that in this country it was essential such a measure should be retrospective. In this country it was impossible to legitimatise children by marriage subsequent to their birth, and unless a Bill of this kind was made to operate retrospectively, an act of absolutely cruel and vindictive spite against children would be committed. That was a matter he need not argue, and leaving it he would consider the subject from the purely practical point of view of the effect it was likely to have upon society. The principal objection urged was that a measure of this kind would have a most pernicious effect upon family and home life, and would completely change the position and status of a sister-in-law in families. Such a theory was founded not on facts, but on pure imagination—an ignorance of human nature and the springs that moved it. It was assumed that because the law made legal marriage in this country impossible between a man and woman under these circumstances, whereas it was possible in every other civilised country, and in our colonies, people who desired such a marriage here would not enter into any other relations. That might show a very touching belief in the efficacy of the law, but was not borne out by knowledge and experience of human nature. The state of the sister-in-law could not really be changed by that House, unless indeed it was improved. Their Lordships must look at the matter from a common-sense point of view, and as it affected the community roughly divided into two classes, rich and poor. Practically, of course, it was a poor man's question. It did not really affect the rich. A man of means could contract a legal marriage with his deceased wife's sister, at some sacrifice, of course, of money and convenience. By domiciling himself in any of our colonies or in any other civilised country he could contract such a legal marriage; but a poor man had neither the time or money. The Marriage Law of this country was one of the glaring instances of the practical inequality of the law in favour of riches and against poverty—a country which prided itself upon the fact that before the law all men are equal, whatever may be their position in life. He invited their Lordships to look at this matter a little from the poor man's point of view. Could their Lordships 1171 seriously believe that the position of the sister-in-law now occupied in the poor man's family would be altered in any degree by sanctioning a marriage between her and the husband of her deceased sister? In what way could it possibly be so? If they thought that those relationships would be looked upon in any different light by the great bulk of the people of this country, he maintained that they must be totally ignorant of the instincts and opinions of the people. In the case of the poor man the presence in the home of the sister-in-law was practically a necessity, because there was no other person, after the death of the wife, to take care of the children. The man would not have the means to obtain for them otherwise the care that would be required. If that was the case, was it not certain that a Bill of this kind making marriage possible, if it had any effect on the status of the sister-in-law, would diminish the possibility of scandal? Take the case of the rich, and see whether this argument would stand a personal test. Would any of their Lordships, looking at the matter as common-sense men of the world, say that—in the case of a young widower, rich, capable of giving to his children all the care and attention that money could possibly obtain for them—it was not probable that the tongue of scandal would wag one little bit if a young and attractive sister-in-law went to live with him in his house? He knew what their Lordships' answer to that would be, as men of the world. The fact was, that where the presence of the sister-in-law was not a necessity scandal might arise now, and no more scandal could arise if this Bill were passed. Where the presence of the sister-in-law was a necessity no scandal should arise now, and no more scandal could possibly arise merely owing to the fact that a marriage could be contracted between her and the widower. He would not for the world advocate anything that would tamper in the slightest degree with the home life of the people. He would not interfere with the sanctity of the home or with the purity and happiness of the family, or do anything to interfere with those domestic instincts which, after all, were the strength and backbone of the whole social fabric of the country; but he maintained that the fears of those among 1172 their Lordships who dreaded the consequences of this Bill were entirely the product of their own imaginations. They were not founded on facts, nor on the experience already gained from the existence of those marriages in any portion of the world. His contention was that these marriages were not only innocuous, but productive of an immense deal of good, and in support of it evidence could be adduced from, he believed, every civilised country in the world. Take the case of our nearest neighbour, France. These marriages were very common among the French peasantry, by dispensation, no doubt; and he had never seen any recorded opinion of anyone capable of judging that they had done any harm whatever. On the contrary, plenty of opinions could be adduced that marriage with a deceased wife's sister answered exceedingly well in France, and anyone acquainted with the social life of the French as a nation would agree that the domestic instincts and virtues were at least as fully developed in that country as here. If that were doubted, turning to peoples more nearly akin to us in blood, the Teutonic nations, these marriages had long been legalised in Prussia, and that legalisation had been followed in Saxony, Bavaria, and finally over the whole German Empire. Evidence could again be adduced to show that these marriages were productive of much good in Germany. Passing to the Scandinavian nations, these marriages had been legalised in Denmark, Norway, and Sweden, and also in Russia. Their legalisation in one Swiss Canton, 40 or 50 years ago, had been followed in every Canton in Switzerland. In another country, still nearer to us in blood, the United States, legalisation of these marriages in the original 13 States of the Union had been followed throughout the rest of the States. Taking our own kith and kin in the colonies, men of our own modes of thought and religion—ourselves beyond the sea—this legalisation in South Australia had followed in every one of them, in New Zealand, in Canada, and in the Cape. He would not trouble the House by reading lengthy opinions as to the effect of such marriages in those countries and colonies. He had received a quantity of letters on the subject from 1173 men of authority capable of judging the effect of this legalisation, and their opinion was that the legalisation of those marriages had produced no harm whatever, and in many cases opinion was stronger—that these marriages had succeeded far better than the generality. Marriages of this kind were no doubt frequently contracted by dispensation before the Reformation. After the Reformation, until the Act of 1835, he believed he was correct in stating that those marriages could be voided only by action in the Ecclesiastical Courts, and, as far as he could ascertain, it was impossible, during that great length of time, to discover more than half-a-dozen instances where marriages of this kind were voided in the Ecclesiastical Courts, and in 999 out of 1,000 cases, before Lord Lyndhurst's Act, they were acknowledged to be valid and legal, to every extent, and the children inherited upon the death of their parents. Would any of their Lordships venture to say that these marriages, and they had been very numerous, had been productive of harm? He could quote many strong authorities in proof of the very opposite, but would not occupy the time of the House in doing so. The fact was, that the fears of those who anticipated that allowing marriage with a deceased wife's sister would have a dangerous effect upon the family and the State were founded only upon suspicion, whereas the belief of those who advocated these marriages that they would not have those direful consequences was founded upon facts, upon experience of human nature, and upon universal testimony from all the countries and colonies he had mentioned. Their Lordships would consider the vast difference between arguments founded upon fact and those founded merely on suspicion. He might be told that this Bill was illogical; that either it went too far, or did not go far enough, and that it would be impossible to stop where it did; and that other marriages within the prohibited degrees of affinity would have to be legalised. He admitted that the Bill was not logical, but, at least, it was more logical than the law as it at present existed. It was generally claimed that affinity followed consanguinity, and was subject to the same laws, rules, and regulations. But the table of prohibited degrees was not founded upon that, but 1174 appeared to be arbitrarily selected. That argument, of course, he reduced to an absurdity, because if affinity was to be regarded as the same as consanguinity, it would be impossible for two brothers to marry two sisters; and even if the marriages were performed at the same moment, it would be difficult to discover which of them was valid. This Bill would, at any rate, simplify our Marriage Laws in that respect. An Australian marriage of the kind would be perfectly good here, but would it be valid as regarded inheritance? Even in the case of a British subject domiciled in the colonies, the extremely difficult question of domicile might be raised, and was it right that the honour of the woman and I the legitimacy of the children should depend upon the decision of that question? Of course, the Bill was illogical, but was any Act of Parliament perfectly logical? If we were to wait for legislation until it was proved that no principle contained in a Bill could, if pursued to its logical conclusions, produce any undesirable effect, then the Statute Book would be an absolute blank. He trusted that their Lordships would not allow themselves to be influenced by any argument to the effect that, if marriage with a deceased wife's sister was allowed, they would be asked to allow other forbidden marriages to be made legal. He asked their Lordships to judge this case on its merits and to decide whether, as regarded marriage with a deceased wife's sister, it was not expedient, right, and just that the law should be amended. He asked their Lordships to make the law respected among the people, to free many thousands of men and women from the stamp of obloquy which the State and not the consciences of the people had cast upon them, and to free innocent children from the taint which now in the eye of the law rested upon them. Was it wise and prudent to keep on the Statute Book a law which did not carry weight to the consciences, instincts, and perceptions of the people? Why was the law ineffective? What, in the first place, had been the expression of public opinion concerning it? It would be acknowledged that the Trade Unions must possess some considerable knowledge of the feelings of the working classes of the country. Trade Union Congresses had petitioned seven times in favour of this Bill, and at 1175 the Congress of 1883 172 delegates out of 175 signed in favour of its passing. The House of Commons had passed, or given a Second Reading to, similar Bills to this 11 times (once unopposed) by majorities varying between 10 and 70 and averaging 40; and the House of Lords had rejected the Bill 13 times. But in 1883 the Second Reading was carried by seven votes, although on the Third Reading the Bill was thrown out by five votes. The highest majority against the Bill had been 34, the lowest four (twice), and the average 18. With such expressions of opinion from the public and in both Houses of Parliament against this law was it likely that it would be effective? But it was ineffective for far deeper reasons: it did not appeal to the common sense or the conscience of the people. The law forbade a union from which the spirit did not shrink or the flesh naturally revolt. It was not founded upon any intuitive or acquired instinct, perception, or moral sense of the people, and consequently a breach of the law conveyed no moral turpitude to their minds. He reminded their Lordships of what was said in the Report of the Royal Commission which sat in 1847. The Report stated that—Nine-tenths of 1,364 marriages within prohibited degrees since the passing of the Act of 1835 have been contracted with the deceased wife's sister. Eighty-eight cases only were discovered in which Lord Lyndhurst's Act had prevented an intended marriage, and of these 88 cases 32 were stated to have resulted in open cohabitation without the sanction of any form or ceremony.Again, the Commissioners in their Report stated—We are constrained not only to express our belief that the Statute of 5 & 6 Will. IV. has failed to attain its object, but also to express our doubt whether any measure of a prohibitory character would be effectual. These marriages will take place when a concurrence of circumstances gives rise to mutual attachment. They are not dependent on legislation.He should like also to quote from the evidence of Cardinal Wiseman before the same Royal Commission of 1847–48 as to dispensations—I have had a great many cases of this sort, and I have never been refused a dispensation.It was rather curious to reflect that in looking to liberty in this matter they had to turn from the British Parliament to the Romish Church. The Cardinal continued— 1176It has generally been in the middle classes and among the poor. In the middle classes it generally results from the sister having lived, perhaps for some years, in the family with the wife, the health of the wife perhaps being delicate. The wife dies and leaves a young family; the husband has his business to attend to; and has no one to take care of his children, and the sister-in-law has no other shelter—probably has lost her parents, or has been living many years in her sister's house. …. There is an attachment naturally between them from having lived so long together. To bring a stranger into the house would probably be disturbing the peace and happiness of the little society. The children are attached to their aunt; and it appears altogether the most natural arrangement for their happiness, as well as to prevent the sin probably of cohabitation without marriage, that a dispensation should be granted. That, I should say, is the history of nine out of ten of the cases which T have had to deal with. In the lower ranks it is generally a case of absolute poverty. The sister, if sent away, is turned into the streets; the man himself could not pay for a servant; he perhaps is too poor to expect anyone else to marry him; he is getting old; and the parties are thrown together in such a way that it is advisable that they should be married, otherwise it might end in cohabitation without marriage. Those are the ordinary cases.He had made these quotations because they appeared to him to embrace the whole matter. They showed what the law did, and failed to do. The Report of the Commission proved what the case was then. The law never had prevented, and never would prevent, these marriages. It only drove people into deceit and purjury, or into living in open cohabitation without any form of marriage. That was the value and effectiveness of the law as it stood. By amending the law as the Bill proposed their Lordships would be making the law respected by the people, and would be bringing the law into conformity with the consciences and moral perceptions of the people. Was it a fortunate thing, to say the least of it, that in such an important matter as the Marriage Laws the Mother Country should essentially differ from every one of her self-governing colonies? On that account also he would ask the House to amend the law, but he appealed to their Lordships principally on account of the men and women and children who were suffering from the injustice of the law as it now existed. It would be easy enough to advance instance after instance in proof of the great sacrifices—amounting often to the whole savings of a lifetime—made by poor people in order to go through the form of marriage in some 1177 country more civilised in this respect than Great Britain. He did not wish to appeal to the sympathies of their Lordships, but rather to their justice and common-sense. He asked them to amend the law for the sake of these men and women, and for the sake of the innocent children who were the victims of the law. With great hope and confidence he would leave to their Lordships this opportunity of righting a great wrong and doing a great act of justice and mercy. He begged to move the Second Reading of the Bill.
§ Moved, "That the Bill be now read 2a."—(The Earl of Dunraven.)
§ *THE EARL OF SELBORNE
presented a Petition from the clergy of the City of London and the suburban clergy incorporated as Sion College praying the House to reject the Bill, and said: My Lords, on one point the House will, I am sure, be agreed, that the noble Earl has discharged the task imposed on him with the ability which might have been expected from him, and with temperance and moderation. I regret that I cannot agree with the noble Earl's conclusions. Forty-five years have passed since I first addressed Parliament on this subject, and nothing that I have heard since has caused me to alter the views which I then held. I was surprised to hear the noble Earl describe the Bill as one of compromise, and as respecting as far as possible the views on the subject entertained by the majority of the clergy. I myself see no element of compromise in the Bill, but very much the reverse. Of all the Bills which have been presented of late years to Parliament on this subject it seems to me that the present Bill has the least claim to that character. But on that point I shall have more to say before I conclude:—I will address myself first to the substance of the case, for and against the Bill. Stripped of all ornament and disguise the case for the Bill is that an indefinite number of persons—not so many as the noble Earl supposes—have thought it right, generally with their eyes open, to set aside the law of the country on this matter of marriage. Whatever may be the number of these persons, it is certainly 1178 very small in comparison with the number of persons who entertain and act upon a different feeling. Your Lordships would be greatly mistaken if you thought that this question only affected those members of the community who have set aside or who may desire to set aside this particular restraint upon lawful marriage. It is a question which affects the happiness of every home in the country, and all those who do not desire to do this thing, and who think it wrong, are as much concerned as those who have done it. What are the proportions of those classes to each other? I do not know what is computed to be the number at the present time of the persons directly affected by the Bill; but I do know that the number of those who would be affected by the change which it would make in the present constitution of the family, and by the loss of the comfort and benefit which they receive from it, is enormously greater. The last Census showed that there were more than 5,000,000 unmarried women in the United Kingdom over the age of 15. Every one of those women, except the very youngest and the oldest, are potentially concerned in this measure. As an example of the feeling with which women regard such a measure, your Lordships may permit me to refer to a letter which I have recently received from a lady in Belfast, very well known, and of great ability. She writes—Please allow me to say that I know this measure is viewed with the utmost horror by a very large number of those women who are commonly known as the advocates of women's rights.She goes on to say that she is one of those who look at this question from a religious point of view, and she suggests that sufficient notice has not been taken of the profound injury which the passing of such a Bill would inflict on the sister who, though no one seems to recognise it, has rights, and especially the right of freedom.There are many women," she continues, "to whom this form of marriage is loathsome; and, though they would be willing to give much attention to their sister's children if the brother-in-law were out of the question, yet if this Bill passes would not risk their character by going near his house, nor incur the risk of being urged to do what they think wrong.I am sure that the number of women who would suffer if this Bill were passed is prodigiously great. It is 1179 no figure of speech or exaggeration to say that the Bill would destroy the relation of sister-in-law altogether. The law regarding the woman as a sister, she takes a sister's place in the family. It is most essential to the happiness of married life, and to the happiness of the wife, that her sister should continue to be as a sister in the husband's house. The familiarity which is protected by this prohibition and which cannot exist in the same manner without that protection, enables the sister, both during the wife's life and afterwards also, to perform the duties of a sister and to enjoy the privileges and affections of a sister in the house of her sister's husband. All that state of things the Bill would practically sweep away. What is the use of these prohibitions of marriage in any case? It is to fence round the family and the domestic relations, by making that impossible in law, the possibility of which would alter, or at least might in the greater number of cases alter, the character of those relations. That is the reason for having any prohibitions at all. No one proposes to sweep them away as to con sanguinity, and no one now proposes to sweep them all away with respect to affinity. The use of them is to permit relations within the family circle on both sides, where, in the language of the Divine law, husband and wife have been made one, to be governed by that principle of unity; that they may enjoy the same rights of affectionate intercourse which belong to the natural relations. If the noble Earl thinks that is not a practical view of the matter among all classes of the people, I can only say I am quite sure it is so, in proportion as refinement, intelligence, civilisation, and a high moral sense prevails among them. The noble Earl says that this is a poor man's question. I have often heard that said before, but I do not believe it to be in the least degree true. In fact, I am convinced from some personal knowledge of the matter that the proportion of these marriages among the poor is very much less than the proportion of such marriages in the classes above them. It is not true that poor men's wives' sisters are often, or even ordinarily, in a position to take care of their sisters' children; for they go out to service or to business. When a poor man's wife dies it is generally a neighbour and not the wife's sister who assists him in the management 1180 of his family. My own means of knowledge in this matter are fortified by the inquiries which others have made. The Commission of 1847, to which reference has been made, was manifestly not set on foot by the poor or for the sake of the poor, but by persons in a very different condition of life. Of the connections of this kind which were brought to the knowledge of the Commission mentioned by the noble Earl, more than 1,300 were drawn from the richer and middle class, and among the poor the number of cases which they discovered was less than 50. The late Lord Hatherley, who lived in Westminster, caused inquiries to be made there in two parishes, and only found one case of marriage with a deceased wife's sister among 60,000 people. When this became the subject of remark in the newspapers, one other case, and one only, was brought forward by a City Missionary. That result, I think, does not tend to support the notion that this is a poor man's question. When this question was before the House on a former occasion I received letters from clergymen in London, and from Mr. McNeill, of Liverpool, and Mr. Hugh Stowell, of Manchester, in which they testified that, according to their experience, this sort of so-called marriage was not more common than those within other prohibited degrees. The notion, therefore, that this is a poor man's question cannot be substantiated. The noble Earl speaks of the law prohibiting these marriages as being ineffective, and thinks it ought to be repealed in consequence. As well might the noble Earl argue that, because people often commit bigamy, the law for the prohibition and punishment of that offence ought to be repealed. Some people say that, unless one can find in Scripture some text unequivocally and beyond controversy prohibiting marriage with a deceased wife's sister, such unions ought no longer to be forbidden. The very same position might be taken up, much more reasonably, with regard to polygamy, for I should like to know in what part of Scripture cam a text be found unequivocally and beyond controversy prohibiting polygamy? What laws are there, which many persons do not disobey? If that line of argument were accepted 1181 it would go a long way. The people who have contracted these unions have persuaded themselves, I will assume, that their action is not wrong; we are assured that they have no conscientious scruples and pass a comfortable existence, their neighbours treating them as they would treat anybody else. If it be so, these people do not, after all, suffer any great hardship. What they did was done with their eyes open, and the law inflicts no punishment upon them except by refusing to recognise their relationship as having the same effects as ordinary marriage. And they are able to settle any property which they may have, as they please, upon their children. The hardship argument, therefore, does not appear to me to have much force. But the change which the noble Earl advocates would cause much more extensive and much loss merited hardship by depriving deceased wives' sisters of their present status in widowers' homes throughout the country, where their brothers-in-law do not want to marry them, or they to marry their brothers-in-law. This proposal, if agreed to, would sadly interfere with the comfort of many families, and children of deceased wives would be deprived of the care which aunts now give them without reproach in many homes among all classes in the country. Many of us have known it. Then, I say, if you look to the interest of the children in the large view, you are going directly against their interests. I do not believe that children would be better off if the aunt became a stepmother, when a second family was the result; for in many cases the aunt would, not unnaturally, prefer her own children to her dead sister's, and the home might not for those children be a very happy one. If, therefore, we look to the question of loss and gain, the classes of persons concerned, and the circumstances under which that loss or gain occurs, I say, the immense preponderance is with the vast majority of the law-abiding community against such an invasion of family life; and those who conscientiously believe it to be wrong are far more proper objects for the protection of the law than those who are favoured by the noble Earl. Well, my Lords, I think all your Lordships will be agreed in the principle, that nothing is more 1182 important for the State than to maintain the sanctity of marriage and the purity of the domestic relations. It is necessary that the prohibitions which go to maintain the purity of the domestic relations should go as far as they go now—that is, as far as the family goes—and should apply, besides cases of direct ascent and descent, to brothers and sisters, and the children of brothers and sisters, and to sisters-in-law as being themselves sisters by the relationship contracted through marriage. The noble Lord has wisely refrained from entering into the religious view of the question any further than by saying what his own private opinion is, and I shall imitate his reserve. But I will say, that this is a subject, on which it is not possible to separate religious and moral from social considerations; and that the principle upon which a sound marriage code ought to be constructed is one which will go as far as the most direct and intimate relationships in respect of consanguinity and affinity, and should be equal in its application to men and men. That is our present law, and that is the general law laid down in that part of the Old Testament from which undoubtedly the table of the prohibited degrees was adopted. With regard to that particular verse in the Scripture which has been supposed to introduce an exception in this particular case, all I will say is that Christendom down to a very recent period was agreed in thinking that Christians ought to go by that general law; and that it was a mistake to interpret that particular verse as in any sense justifying an exception to the code adopted by the Christian Churches. That belief—though no one would think of forcing it upon his neighbours—prevailed not only before the Reformation, but also universally at the time of the Reformation; and, but for the unfortunate adoption of the Roman Catholic system of dispensations as to certain degrees—which do not stop at affinity—there would never probably have been any question about the matter. Marriages of this kind, subject to the practice of dispensation in the Roman Catholic and some Protestant Churches, were from the time of Henry VIII. downwards distinctly affirmed to be within the prohibited degrees. I might well content myself with that which was the view of 1183 this country, and of Scotland, and Christendom generally, when Churches were not divided as they are now. But it does not stop with them. It is still entertained, at all events by the very great majority of the Church of England, and—I do not know whether by a great majority—but by a great number of the most capable judges in the Churches of Scotland. In 1873, the English Nonconformist ministers were addressed by 24 leading Scotch Presbyterian ministers, Free Church, United Presbyterian, and others, among whom were Dr. Candlish, Dr. Begg, and Dr. Guthrie, showing that they continued to adhere deliberately and with unshaken conviction to that view. But I will pass from that branch of the subject to another. My noble Friend dealt with the example of foreign countries and our colonies, and particularly of France, Germany, and the United States, to induce us to follow their example, because he thinks that evidence is to be derived from them that this relaxation of the Marriage Law is not attended with bad effects. I said "this relaxation of the Marriage Law," and I said it purposely, because I am convinced that if you relax the Marriage Law in the way proposed, and make it inconsistent with itself—leaving for the time the prohibition of marriage with a deceased brother's wife, the prohibition of marriage with a deceased wife's niece, and all the other prohibitions of a similar nature—it is impossible that any single principle of this measure could be logically advocated, or practically satisfied, without sweeping away, one after another, all the other prohibitions in cases of affinity and some of consanguinity also. This has been done on the Continent of Europe. The movement has not stopped at the demand that marriage with a deceased wife's sister shall be allowed, because the marriage of the wife's relations within other degrees of affinity, and of uncles and nieces, aunts and nephews, has been admitted on practically the same grounds—namely, that there were a number of persons who had contracted or wanted to contract such marriages and insisted upon their liberty so to do, and that the objections of others ought not to bind them. If, therefore, the supporters of the Bill refer to other countries, it is necessary to see what those other countries have done; 1184 and it is quite certain that here also, as the principle requires, so in the end it will be done. I would like upon that subject to quote words which struck me very much, when uttered in this House by the late lamented Bishop Magee of Peterborough:—Principles embodied in our legislation are forces which are not under our control. It does not rest with us to say, when we introduce a principle into any measure, 'Thus far shall it go, and no further.' We can no more do that with the principles of law than we can with the forces of nature, and when we once set free a new and distinct principle in any Act of legislation, it is certain to work itself out to its necessary conclusion by the logic of events, or by the logic, still more powerful, of human passion and human feelings.And to this I will add the following words, spoken by President Woolsey in 1881:—If there is any principle in our legislation"—meaning the legislation which had taken place in the United States with regard to marriage—it is not a moral one of reverence for the most sacred institution of the family and of married life, but it is a desire to afford relief for cases that are nearly as pressing as those that have relief afforded already.It is clear, that every argument that can be advanced in favour of the removal of this prohibited degree is applicable to other prohibited degrees. In Prussia and Germany uncles and nieces, aunts and nephews, may marry; and in Prussia, and other parts of Germany, even a dispensation is no longer necessary. The noble Earl in many parts of his speech urged that facts were against the idea that, socially, this particular marriage could do any harm. I do not know whether my noble Friend has taken notice of the discussion which took place in the year 1803 in France at a meeting to consider the Code Civil, at which the Emperor Napoleon, then First Consul, presided. The Commission appointed to draw up the Code in the first instance presented their draft without a prohibition of marriage between brothers and sisters-in-law. A minority of the Commissioners was in favour of that prohibition; it was discussed at the meeting, and the result of the discussion was to introduce the prohibition without any power of dispensation, while, at the same time, the prohibition of marriage between uncle and niece and aunt and nephew was made subject to 1185 dispensation. The House will not forget that this discussion took place from a purely social point of view. Religious motives did not influence it at all. I refer to it not only for the result, but for the opinions which were expressed by some of the eminent jurists who formed the majority in favour of the prohibition. In 1792 the French Marriage Law had been relaxed upon the largest scale, and a flood of marriages which were not afterwards allowed took place. In the discussion of 1803 the Minister of Justice at that time, M. Regnier, expressed the opinion, as to the particular case of marriage between brothers and sisters-in-law, that thepermission given by the law of 1792, as its consequences, brought trouble into families, and was the chief reason of the demands for divorce then before the Courts.M. Cambacérès, alluding to what had been said on behalf of those children who might be supposed to find a second mother in their aunt, said this would result in extremely rare cases, such marriages beingusually determined by motives of a very much less respectable character;while M. Maleville stated that all the Courts of Justice testified against these manages between brothers and sisters-in-law. The Code Civil was altered in 1832 in a remarkable way, by putting those marriages, and marriages between uncle and niece, nephew and aunt, upon exactly the same footing, of being subject to Royal dispensation for grave cause. The Marriage Law is a whole, and if we begin relaxing it in one direction we shall have to relax it in the direction of divorce as well as of marriage. The Duke of Marlborough stated in this House in 1873, that after the Marriage Law had been relaxed in Prussia there were 7,800 divorces in three years. In this country there were only 7,321 in 30 years, from 1857, when divorce was first introduced, to 1887; so that in three years in Prussia there were more divorces than in 30 years in this country. In the United States in 20 years, from 1867 to 1886, there were no fewer than 328,613 divorces, and that is the country upon whose example the advocates of the Bill rely; while at the same time many persons in the United States who are anxious for the family life are doing what they can to produce 1186 an improvement in the Marriage Laws of that country. I will not read the testimony which high authorities have borne of the sad effects which this state of things have had upon the social life generally of some of the United States. I will only urge the House to pause much and long before it passes such a measure as this; because if we once broke down the sanctity which surrounds the Marriage Law in one direction, we might find it exceedingly difficult to maintain it in other directions. I do not want to delay the House by dwelling long on the history of the question. But it is a remarkable history, because, in truth, the movement—though spontaneous with some people—has been an organised movement, set on foot by a very limited class of persons for personal reasons. The Commission of 1847 has been referred to; I can only say, with great respect for the eminent persons who constituted the Commission, that it appears to have laid itself open to the charge of merely registering the results which that organisation for altering the law had collected. Forty witnesses were examined, thirty-five of whom were witnesses on behalf of the organisation: and there were only five on the other side, clergy of the Church of England, who who were balanced by five clergy of the minority in the Church of England, who took a view in favour of relaxation. I must say, without casting any imputations on the members of the Commission, that the inquiry was conducted in a manner which deprives the result of all title to any considerable degree of respect. Then as to Parliament. There were seven Houses of Commons from 1847 to 1880; in three of them the Bill passed its Second Reading more than once; in one it was rejected once, and passed once; in two it was rejected once, and in one it was rejected twice. In this House, the Second Reading of the Bill was carried in 1883 by a majority of seven; but on the Third Reading it was rejected by a majority of five; and on all other occasions it was rejected on the Second Reading. I cannot help thinking that if this were a measure which really interested the general public it would not be this House which would now be asked to pass its Second Reading. I know there is a Bill before the other House, and that reminds me of the difference between the two Bills. 1187 Except in the single point that the future marriages are to be solemnised in a Registrar's office, or in a building where the presence of a Registrar is necessary, there is not in this Bill a single word which would operate directly or indirectly in favour of the Church. There is nothing to save a minister of the Church of England from being proceeded against at law if he should enforce the discipline of the Church in those cases. The noble Earl said it would be possible to introduce those things in Committee. But there are provisions for the protection of ministers of the Church of England in the Bill before the other House which must have been deliberately left out of this Bill, while the noble Earl's friends have been appealing outside for support of this Bill on the ground that those clauses which have been deliberately left out of the Bill are in it. That is very extraordinary; but it is not the only matter of importance in connection with those Bills. In the Bill of 1890 there was an exception made in the case of brothers and sisters-in-law who had gone through the form of marriage, if they had been separated by an agreement in writing. But even if there were an agreement in writing to separate, under this Bill they would be re-married by Act of Parliament, when they had not been married before. That is not all. The Divorce Act of 1857 gives the wife the right to obtain a divorce from her husband for incestuous adultery, and the definition of incestuous adultery for the purposes of that Act is adultery committed by the husband with a woman with whom if the wife were dead he could not lawfully contract marriage, by reason of her being within the prohibited degree of consanguinity and affinity. In the Bill which the Duke of Albans introduced into this House in 1889, and in the Bill introduced into the House of Commons in 1890, there was an express saving of the wife's right to sue for divorce against her husband in such cases; but it is omitted from this Bill as well as from the Bill now before the House of Commons; so that in the case of adultery between a husband and his sister-in-law the right of the wife to sue for divorce, granted by the Act of 1857, is to be taken away. I am also strongly opposed to the retrospective effect of the Bill, though I daresay the 1188 promoters of the Bill think it would not be valuable without it. It would enact, that marriages contracted during a period when the law prohibited them, when the law declared that they should be absolutely null and void, "shall not be deemed to have been void or voidable." The Legislature is, as it were, to put on a white sheet and do penance for its own acts, and for the state of the law down to the Reformation and after the Reformation, deliberately re-enacted and re-enforced in 1835; and to say that an arrangement which the law said was not a marriage shall be deemed to have been a marriage, notwithstanding any Statute to the contrary, with some exceptions as to pending suits and decrees actually made for separation—suits and decrees which everyone knows there would not be, because they were rendered unnecessary by the Act of 1835, which in these matters made the law self-executing. This law is to be made because a certain number of people have thought fit to break the law; I say that to make it so retrospective is a thing contrary to first principles, and there is not a subject on which the violation and disregard of the law would not be invited and encouraged if your Lordships were to agree to such a Bill. I move that the Bill be read a second time on this day six months.
§ Amendment moved, to leave out ("now") and add at the end of the Motion ("this day six months ").—(The Lord Selborne.)
§ THE LORD CHANCELLOR (Lord HERSCHELL)
My noble and learned Friend has directed his attack upon this Bill largely upon the ground that it is a Bill only for a certain number of people who have broken the law, and that it is merely in order to save them from the effects of their breach of the law that your Lordships are asked to pass this measure. It is because I differ so entirely from the view of the noble and learned Lord in that respect that I have felt compelled to take part in this Debate. This Bill is desired for those who, in the past, have contracted marriages contrary to the law, and which the Bill would validate. Surely, the fact that some have entered into such marriages, notwithstanding the existence of the present law, and the fact that these marriages have been declared in- 1189 valid, and that the children of such marriages are, in the eye of the law, illegitimate, is the strongest evidence you can have that there exists in this community many who desire to enter into such marriages, but are prevented by the state of the law from doing so. These are surely entitled to some consideration, if this law be one which cannot on every ground be justified. The whole argument of the noble Lord was directed, to a great extent, to showing what a very limited number of persons have contracted such marriages; and he therefore asked your Lordships to compare that limited class of persons with the number of those who, he said, would be injured if a change in the law were made. But the ground upon which many of us support the measure is this: that if it be a marriage not contrary to Divine law, and which, on the whole, is not likely to be mischievous in its consequences, the State ought not to prohibit the marriage, but ought to leave those who desire to contract it free to carry out their wishes. Such a law does much to endanger the protection and security of the sanctity of marriage and the purity of the domestic hearth, which, I believe, we all desire to promote. When the noble and learned Lord moves the rejection of this Bill as necessary for the purpose of securing the sanctity of marriage and the purity of the domestic hearth, he rather casts an aspersion, which is far from being deserved, upon vast masses of the community, and upon our fellow-subjects in other parts of the British Empire. On recent occasions a majority of noble Lords in this House—if you exclude the most rev. and right rev. Prelates—voted in favour of a measure such as this. Is it to be an imputation which can be maintained or justified that the majority of your Lordships are indifferent to the sanctity of marriage, and the purity of the domestic hearth? If it could be established that this was a proposal contrary to the Divine law, to which we are all bound to bow, there would be an end of the question; but that is a matter on which there have been differences of opinion among high ecclesiastical authorities. When you have such a difference of opinion amongst those competent to form a judgment upon a matter of this kind, we are entitled to exercise our judgment 1190 upon it. I believe there would be nothing worse for the Church, nothing likely to be more disastrous or to do more injustice, than if there should be an endeavour to compel the laity to act against their own judgment, and to condemn that which they cannot see their way to condemn when they search their own minds and consciences. I am not going to argue the theological question. All I say is, that we are not bound to bow to ecclesiastical opinion in this respect, especially as it has not been shared universally by theological writers. But it is said that the principle has been maintained in the Christian Church throughout all ages, and that such a marriage as this has always been regarded as contrary to Divine law. I have great difficulty in accepting that. I never knew that the Church of Rome granted dispensations to persons to break the Divine law. The late Cardinal Manning did not maintain that such a marriage was contrary to Divine law. On a former occasion I put a question to which I got no answer. I now repeat it. Can you show me any time in the Early Church when this marriage was forbidden when other marriages were not forbidden in precisely the same way and on precisely the same footing which are solemnised in the Church to-day? With regard to the social effect of a change in the law, my noble Friend dwelt principally upon the effect that such a change would bring about in the family relationship of sisters-in-law. Indeed, as I understood him, if this Bill were passed into law, sisters-in-law, as we now understand the term, would cease to exist in this country. The result is apparently this: that sisters-in-law at present only exist in England, because the change in the law now proposed has taken place elsewhere, and, as far as I know, the prohibition of this marriage only exists here. Therefore, the logical conclusion is that only here is such a thing as a sister-in-law to be found. But my noble and learned Friend really rested that argument upon absolutely nothing but his own statement. Is it not the fact that in our colonies and in many of the United States of America, as well as in other countries where these marriages are allowed, the family relationship is precisely what it is here? If the purity of the home has been diminished, if the 1191 domestic life is not there what it is here, there are clergy enough to collect evidence, and the Episcopal Bench would be furnished with the results. In a matter where one side assert that the desired change would be injurious to the domestic life, and where the other side assert the contrary, is it not an important—is it not the best—course to apply the evidence to be obtained from places where the proposed change has been tried? Upon that point my noble and learned Friend gave us no evidence. We must remember that in no country but our own does this law exist, and from none of them did my noble and learned Friend produce one jot of evidence to show that under their law did family life differ in the slightest degree from that which prevails in this country. I have frequently spoken on this subject with those who live under a different state of the law, and they do not appear to comprehend the alarm with which this proposed change in our law is regarded by some among us, because they say that the social relations of brother-in-law and sister-in-law with them is precisely the same as they are with us. Such facts as these are far more important than mere theories as to the effects likely to be produced. The noble and learned Earl read an extract from the letter of a lady, in which she said that the women of this country would regard such a change in the law as is now proposed to be made as loathsome, and that if it were made many women would refuse to take care of the children of their deceased sisters because of the possibility of their brothers-in-law marrying them. With all respect for that lady, I say that she does not represent the views of her sex in this country. I know many women who are as pare in their lives and thoughts as my noble and learned Friend's correspondent is, and who, I venture to say, care as much for domestic life as she does, who take a totally different view of the subject, and believe that the change in the law would be the best possible thing for the children of the deceased wife. The noble and learned Earl said that this was a question which affected not the poor but the rich, but he produced but very slender evidence in support of that allegation. That allegation is certainly contrary to all the information that I have received upon the subject, and it 1192 does not appear to be supported by the probabilities of the case. My noble and learned Friend made no allusion to the fact that Cardinal Wiseman, in the course of the evidence which he gave before the Commission in 1847, had stated that the persons for whom dispensations had been obtained for the purpose of enabling them to marry their deceased wives' sisters belonged not to the middle, but to the poorer classes. In my opinion, therefore, it is of the deepest importance to the poorer classes that this change in the law should be made. My noble and learned Friend went on to contend that as in fact these marriages, although forbidden by the law, were frequently contracted, and as the persons contracting them were received by those who belonged to the respectable and law-abiding class, it was unnecessary that the proposed change in the law should be made, especially as the family property, if there were any, was always settled upon the children of the marriages. But surely, my Lords, it does matter whether the children of such marriages are legitimate or not. In my judgment consideration ought to be shown in this matter to those who have not violated the law. My noble and learned Friend appears to overlook the fact that among the poorer classes the great evil is not that they contract these marriages, but that the parties live together without marriage at all. Thus, by creating a purely artificial objection to these marriages, the law is absolutely conducing to immorality. The whole basis of my noble and learned Friend's argument appears to rest upon this: that if the change in the law were effected it would be impossible for the old relationship between brother-in-law and sister-in-law to exist. But why should that be the case merely because it is possible for them to marry? I do not think that the instances of such marriages would be very numerous. In the first place, a wife is usually somewhat younger than her husband; and, in the second place, women generally live longer than men, and therefore a man might not even, if he wished to do so, have an opportunity of marrying his deceased wife's sister. Why you should suppose that a man looks forward to the possibility of marrying his deceased wife's sister, and that his whole married life is to be blasted in consequence of his doing so, I confess, has to me always been puzzling. 1193 I do not think that such a change in the law would make the slightest difference in the relations between husband and wife and sister-in-law. In fact, there are many other relationships, such as those between cousins, in which equal difficulty might be said to exist. It is said that if we were to allow such marriages as these a sister-in-law could not keep the house of the husband of her deceased sister without scandal arising. That is an argument which I confess I cannot understand. In my opinion, if the parties could marry each other if they chose to do so, there would be much less risk of scandal than there is at present. If the change in the law were made, in my view people would soon come to regard the matter with indifference, and all idea of scandal would cease. My noble and learned Friend asked where we were going to stop if we once made this change in the law; but I think that there is far more danger of sweeping away still further the law relating to prohibited degrees by retaining this obstacle to marriages which a large number of respectable and law-abiding people regard as desirable than if this reasonable change were effected. I confess I think the danger will be much greater if you keep up this prohibition than if you were to break down the prohibition. A Marriage Law finds its strength and security in so far as it commends itself to men. Once a Marriage Law ceases to commend itself to respectable and law-abiding people, then does that law become endangered; and the best means, I believe, of ensuring the safety of the Marriage Law is to remove this restriction. It is said that once you removed this restriction other prohibited marriages would be promoted. I should like evidence that in many countries marriage with a deceased wife's sister leads to other prohibited marriages, and without such evidence the argument has no weight in my mind. The noble Earl pointed out that divorce prevails to a large extent in some of the countries where these marriages were permitted. He took the United States in the lump, which I do not think was quite fair, because the Marriage and Divorce Law differed in the various States. There are States in which this marriage is permitted where, I do not believe, that divorce is in the slightest degree more prevalent than it is here. The noble and 1194 learned Lord dwelt upon the fact that in the Bill there is no protection for the clergy, but I would point out that this Bill only renders valid a marriage before a Registrar, and, therefore, a marriage before a clergyman would not be any more legal under this Bill than it would be at present. The main question for your Lorships' consideration is whether this change in the law would be, as I think it would be, beneficial and wise, and whether it would remove a burden which has been grievous to many and has not been attended with any advantage to the community.
§ THE EARL OF DUDLEY
said, the proposal now before the House has been debated so often in the House, and had been so frequently examined with ability and exhaustiveness from both points of view, that it was not possible for him, at any rate, to hope to throw any new light upon it, or even to deal with the old and familiar arguments as well as they had been dealt with on many previous occasions. But he did not apologise for trespassing upon the time of the House, for since the House was last called upon to consider a similar proposal, several Peers, himself amongst the number, had taken their seats in the House, and, so far as he was concerned, he could not allow that opportunity to pass without entering his strong protest against this proposal to alter the Marriage Law of this country. He felt convinced that those who opposed the Bill were expressing the true opinion of the country. He believed that by far the largest portion of the inhabitants of the Kingdom regarded the Bill with aversion, and even with horror; and were strongly opposed to any such change in the Marriage Laws. He knew, of course, that the promoters of the Bill advanced a perfectly opposite contention. They declared that the people of the country were most anxious that the Bill should become law, and that they had repeatedly asked for its enactment. But he maintained that those who held that opinion had hitherto failed altogether to prove their case. The burden of proof lay entirely upon the promoters of the Bill, and what was the proof they advanced? They declared triumphantly that Bills more or less similar to this Bill had on several occasions been passed by the other 1195 House, and had been rejected by the House of Lords. Was that a proof that the Bill expressed a National demand? On the contrary, it appeared to him that the very fact that the repeated rejection of such a measure had been watched by the country without agitation of any kind clearly showed that it was either an unpopular proposal, or one with regard to which no feeling existed. If this Bill were so much desired, as some noble Lords would have them believe, why were the marriages only to be contracted before a Registrar? Why have not the promoters of the Bill cared to propose that in future all such marriages should be legal, no matter where contracted? Simply because they knew that the sentiment of the clergy was almost unanimously against them. The principle of the Bill was antagonistic to some of the fundamental laws of Christianity; and if the promoters of the Bill allowed that the Church was opposed to the proposal, was not that equivalent to an admission that the great mass of the people who followed the teachings of the Church joined the clergy in their dislike of the Bill? But, apart from questions of popularity, the whole weight of argument was against the Bill. It was thoroughly illogical. Could any measure be called just or logical which proposed to make an arbitrary distinction between two identical parallel cases in the prohibited degrees and which gave to man powers of marriage while the claims of the wife in identical circumstances were absolutely ignored? Indeed, the noble Lord who introduced the Bill admitted that it was not a logical Bill, and seemed to imply that few measures were logical. Of course, it might be said that the powers of marriage to which he had referred were demanded in the case of the husband and not in the case of the wife. But even admitting that, for the sake of argument, were the supporters of this Bill prepared to say that no further demand for relaxation in the Marriage Laws would be made in the future? The noble Lord who introduced the Bill did not give them much information upon that point. He told them to keep to the matter in hand, but he (the Earl of Dudley) thought they had every right, in settling this question, to a full explanation on the joint from the promoters of the Bill. 1196 Let them say clearly and distinctly how far they intended to proceed in this matter. Would they stop at this point and thereby maintain two distinct modes of marriage for the man and the woman, or would they follow the proposal up to its logical consequence and do away with any prohibited degree which happened to be inconvenient to a section of the community? The fact was, that those who supported this proposal appeared to have ignored the principle on which the present marriage system was based. They assumed that it was the outcome of mere expediency or convenient arrangement, and that, therefore, they were violating no fundamental principle in changing the system to meet the pressure of some passing desire. Surely the system really rested on far deeper foundations. Surely it was part of the idea on which the whole of our social organisation had been built up, and which had assumed its present form under the direction of the primary principles of Christian belief; in other words, that our Marriage Laws were not independent arrangements which could be altered at haphazard by experimental politicians, forming as they did one of the corner-stones of the great fabric of Christian civilization. If they began to tamper with these laws in defiance of the sentiment from which they had sprung, they swept away all possibility of stopping before they got to the end of all the prohibited degrees. If they disregarded the feeling which at present made these marriages repugnant to many people—he thought to the majority of people—there was no reason why they should not disregard it in other cases as well. And as that feeling constituted the real strength of our marriage system it was difficult to see how far changes once begun might not extend. On that account he opposed the Bill, but there was another reason why he hoped it would be rejected. It seemed to him that the legalisation of these marriages would lead to social inconveniences of the most serious kind, chief among them being the division between the law of the State and the law of the Church which must be created. The law of the Church would still continue to prohibit these marriages, while the law of the State would permit them. What, then, would be the position of a conscientious clergyman if these marriages were per- 1197 mitted? In a case in which two people who had married in this way wished to partake of the Sacraments of the Church, would he not be justified in refusing to administer them? He believed that in a Bill of a similar kind now before the other House a clause was inserted exempting the clergy from the legal penalty for such refusal. It was with great regret that he (the Earl of Dudley) had heard from the noble Lord who introduced the Bill that clause had been omitted from the measure intentionally, and not from an oversight. The Bill would inflict on the clergy a cruel hardship; but their resistance would in all probability be successful, for in the face of public opinion it would be impossible to enforce penalties for disobedience without, at any rate, the risk of straining to its utmost limit the present relations between Church and State. But even if this clause were inserted in the Bill at a later stage, which the noble Lord led them to believe, it would be that social inconvenience would remain almost as great as before. Everyone acquainted with the conditions of life in our country districts knew very well what would happen if two people were refused the ordinary rites of the Church on the ground that they were not properly married. They would, to say the least of it, be treated with great coldness by their neighbours; and if not actually compelled to leave the village, their lives, at any rate, would be made exceedingly uncomfortable. And this was not mere fancy. Even in his small experience instances of that kind had occurred, and many of their Lordships must have known of such cases. He would point out that the whole burden of the inconvenience of the change in the law would fall upon the very class which it was the professed object of the Bill to benefit—the poor and uneducated. The rich and educated, if they contracted these marriages, would do so with their eyes open. They would know the consequences their action entailed, and would be prepared to accept them; but the poor would not know, until too late, that the union they contracted was regarded as a sin by a large section of the community. Hitherto the law of the Church and the law of the State had been practically identical, and they had been saved from those disastrous conflicts 1198 between the civil and ecclesiastical authorities which had given rise to so much trouble in other countries. If this Bill passed, a new departure would be taken, and an alliance which had been productive of so much benefit to the national life of this country would be weakened, if not endangered. On these grounds he should vote against the Second Reading of the Bill.
*THE ARCHIBISHOP OF CANTERBURY
I must acknowledge the very conciliatory tone assumed towards the Episcopal Bench by the noble Lord who opened this Debate. I should like to say that I am quite certain his intention was to be as just as possible towards the Church. But your Lordships have received, beyond the speech of the noble Earl, another appeal which emphasizes still more strongly the desire "to uphold the legitimate authority of the Church." An appeal has been circulated amongst your Lordships which asks "the spiritual Peers not to use their exceptional position" on this occasion to oppose the measure. I do not know how it has happened, but that appeal has not been sent to the spiritual Peers, so far as I know. It has not reached me, nor those with whom I have spoken on the subject, and I saw it simply by accident. As your Lordships have been thus addressed in print, I do not think it proper that I should pass over the appeal, though it has not been made directly to me. I do not know what is meant by "the exceptional position" which the spiritual Peers are not to make use of on this occasion. They have, indeed, special opportunities of knowing the wants both of rich and poor, and if they are asked not to use those exceptional opportunities, when called on to state what they think right and to support it, I must say it is rather an extraordinary request. If it means more than that, I cannot admit that the spiritual Peers in this House are in an "exceptional position" in regard to legislative matters. You might as well say that a Bill is carried by the vote of the Viscounts as by the vote of the Bishops. A majority, according to the system of this House, is a majority of the whole House. The appeal that has been issued I should not further dwell upon but that it bears the names of some of the most respected Members of this House. It 1199 suggests that we should not "enforce the canons of the Church of England." I venture to say that that is not what we are about. The canons of the Church of England have been altered before, and could be altered again if due cause were shown; but we maintain that the canons of the Church of England in this particular are in harmony with the canons of the Universal Church. A noble and learned Lord on the last occasion disputed that, going back to very early times indeed; but in the clever and able and learned speech he made he could only contravene that fact by impugning absolutely the veracity of one of the noblest characters who ever lived, who was a statesman as well as a Churchman. If his plain evidence as to what was the custom in his own time—the fourth century—is to be set aside on the assertion that what he says is not true there is no evidence in history at all. There are three grounds on which I must oppose this Bill. One of them, on which the noble Lord opposite has just spoken, and on which I shall only have to add one word, is the severance it would introduce between the laws of the Church and those of the State. It has been denied by the noble and learned Lord on the Woolsack that the Bill would cause this severance. He characterised the objection we felt as "mere fringe." I think I shall be able to show the House that it lies at the very root of the measure. My second objection is that this Bill is contrary to the principles which constitute the foundations of the law, sacred and profane. Thirdly, I oppose this Bill because it would legalise technically a class of marriages which are looked upon with abhorrence by what I believe to be a majority of our fellow-subjects, and which would tend to destroy those affectionate and safe relations on which the security of the family rests. As to the first point, it is said in the printed Paper circulated amongst your Lordships that it is the intention of the promoters to "uphold the legitimate authority of the Church." Well, they can only profess "to uphold the legitimate authority of the Church" by their having marriages of this kind performed before the Registrar and not forcing them on the clergy. If any clergyman, in obedience to the universal law of the Church of England and 1200 the law of the State of England up to the present time, declined to administer Holy Communion to those who the Church assures him are not married, but are living together without marriage, he would be immediately open to an action at law. Now and again application is made to me with a view to actions at law, and if once the law of the State permitted this class of marriages. It happened that if clergymen, in obedience to the law of the Church, refused Holy Communion to persons by the State married, actions would be immediately brought. The noble Earl said the Bill would not interfere with the clergy in regard to the power they now have for punishing these marriages. The clergy do not want to punish; but if this Bill were passed, the clergy would be liable to punishment for refusing Holy Communion, conscientiously and in obedience to Ecclesiastical Law, to persons who had contracted these marriages. The punishment is on the other side. But to support the Bill would not be right, even if it had regard to the legitimate authority of the Church. It would still not be right for the spiritual Peers in your Lordships' House to vote for it on any such ground or to withhold an expression of their opinion. These marriages are opposed to law, scriptural and Roman. It has been said to-night, as it has been said before, that if a prohibition is laid down in the Bible there is an end of the question, but that it is not in the Bible. I can only say that opinions differ on that point. Having examined the matter most carefully, I can only record my solemn conviction that if these marriages are not expressly forbidden in the Bible they are certainly forbidden there by the clearest and most complete analogy—though it is impossible that I should detain the House at this hour by giving proof of that. It is my solemn conviction that the analogies of the Mosaic law completely carry the point. There is one Biblical argument which has been urged over and over again in this House against us, but which, I notice, has not been urged to-night. We have not heard tonight that the injunction to a brother to marry his brother's widow bears upon this question. It certainly has no bearing upon it. These marriages were a close restriction upon a custom that uni- 1201 versally prevailed before, and which prevails to the present time in Central Asia. The Jewish law confined that practice to the narrowest point; and if it is still singular, there is no law in our own Codes which pretends to be absolutely co-extensive with morality. Our Lord has told us that there were things which were left in the Mosaic law, because of the hardness of men's hearts. But this cannot be gainsaid: that as soon as the Roman Empire became Christian; as soon as the great Codes of Law were formed, at the same moment with the earliest Christian Creed, these marriages were expressly included among those which were prohibited. It ought to be sufficient for this House that Christianity introduced such a law. That ought to be sufficient, even supposing there had been nothing to forbid these marriages before that. But that cannot be maintained. It is very well known that the same law which finally enacted it states that the ancients ("veteres") believed that this marriage was allowable. But there is no definition of what the "ancients" are or how far back that may reach. But we do know that early in the third century we have from the greatest writer of the time—under Alexander Severus—we have a definition of affinity, and the statement that marriages of affinity and consanguinity are equally not to be contracted. It is true that marriage with a deceased wife's sister is not mentioned an so many words; but it is clear from the argument, which is the basis of the whole statement, if naturally applied, that this relationship is included in the prohibition. The noble and learned Lord on the Woolsack, challenging the Episcopal Bench, asked us whether certain marriages which are now allowed by our law were not forbidden at that same time, just as marriage with a deceased wife's sister is now. The noble and learned Lord's learning possibly extends to regions of knowledge which are closed to me, but I presume that the noble and learned Lord refers to the marriages of first cousins, which are forbidden in the Theodosian Codex, but not in the same way nor with the same sanction nor on the same ground. Augustine tells us that the marriage of first cousins was forbidden by human law, but not by Divine law; that the prohibition was carried on the grounds of 1202 expediency and experience, and with the consent of the whole human race. The question has been asked whether marriage with a deceased wife's sister would have been allowed by dispensation by the Church of Rome if the Papal See had held it to be contrary to the Divine law. The question shows a strange misapprehension of the claims of the Papal See. The theory is, that the Pope is the Vicar of Christ, and that, therefore, he can dispense in regard to things which may in a certain sense be forbidden even in the Divine law. He interprets. That is the whole theory of dispensations, and it is in accordance with this theory that very recently dispensations have been granted for the marriage of uncles and nieces, and if the question is at all to the point we should have to say on the same ground that the marriage of uncles and aunts is not contrary to the Divine law. Lastly, I oppose this Bill because it would technically legalise more marriages of a sort which are at present heartily disapproved of by—I may not call them the best, but a most respected and a very vast section of the community. The marriages which are made after divorce do not carry with them that moral approval which it is most desirable that marriages should carry. The view of such people does not rest upon the law; it does not rest upon any enactment. It is an instinctive deep-rooted aversion. The law did not create that aversion, and the law, operate as it may, will never overcome it. If in making this assertion I only show my "ignorance of human nature," it is an ignorance shared by a large portion of my kind. I think that I have shown that my opposition to the Bill does not turn upon a single canon. It has been stated that if things remain as they are two brothers ought not to marry two sisters. That is an entire misapprehension of what is meant by affinity. The persons married may not marry their several connections by affinity, but those connections, of course, are not precluded from marrying together. The noble Lord produced an effect by saying that the table of our prohibited degrees was an arbitrary one; that it looked as if they were selected without any regard to principle. On the contrary, the principle is as clear and simple as it can possibly be. It is simply this: a man cannot marry his 1203 mother or his mother-in-law or anyone upwards, and he may not marry his daughter or his daughter-in-law or anyone downwards. He may not marry his aunt or aunt-in-law, or his sister or sister-in-law. Throughout, this table is the most complete and simple thing which could be produced; and if anyone will take the trouble to check the tables at the end of the Prayer Book, you will find that that simple principle covers them all. If this Bill passes, how could it be maintained a year hence that a man may not marry his wife's niece, when he has been permitted to marry his wife's sister? The niece is further off—is less of the same blood. If the one prohibition goes, the other must go also. It has been urged that nine-tenths of marriages within prohibited degrees are with sisters-in-law. Of course they are, because the parties would be about the same age and in the same circumstances. It is much less likely that a man would marry his aunt or his niece than his sister-in-law. I must point out that the premises of the argument on the other side are that people have broken the law or that they wish to break it, and will that argument stand any comparison with the arguments which are opposed to it on the other side? We maintain four things, which are entirely independent one of the other. If any were disproved each of the others remains and is sufficient. The first argument is that it is forbidden in Scripture; the second that it is forbidden in the history of jurisprudence ever since Christendom began, and I believe it can be shown that the prohibition had its roots much earlier in the history of the civilisations of the world. The third argument is that it has not been the usage of civilised nations up to the present moment, and their history shows that more and more they have relied upon the family for their centre and base. Lastly, I do rely largely on the social feeling of what I am persuaded is for the majority of the people of this country. I trust that it will be felt that what is endangered by this Bill is nothing less than the integrity of the family, which is the citadel of society, and of progress, and of religion. If we ask why the law has stood in England when other nations give it up, the answer is that in England, above all, the family is recognised as the centre it is. It is England which under- 1204 stands best the word home and its associations. Esto perpetua.
§ On Question, whether ("now") shall stand part of the Motion? their Lordships divided:—Contents 120; Not-Contents 129.
§ Resolved in the negative; and Bill to be read 2a this day six months.