Lords Sitting of 22 June 1896

SAT FIRST.
The Lord Tyrone (Marquess of Waterford) sat first in Parliament after the death of his father.
The Lord Denman sat first in Parliament after the death of his great uncle.

PRIVATE BUSINESS.
  CHELSEA WATER BILL.
  Reported with Amendments.
  WATERFORD CORPORATION BILL.
  Reported with Amendments.
  FALMOUTH RECTORY BILL.
  Brought from the Commons; read 1a; and referred to the Examiners.
  IRISH CHURCH ACT, 1869, AMENDMENT (REPAYMENT OF ADVANCES) BILL [H.L.]
  A Bill to amend the Irish Church Act, 1869—Was presented by the Earl of Belmore; read 1a; to be printed; and to be read 2a on Monday the 6th of July next.—[No. 151.]

  MARRIAGE WITH A DECEASED WIFE'S SISTER BILL [H.L.]
  THE EARL OF DUNRAVEN, who rose to move the Second Reading of the Marriage with a Deceased Wife's Sister Bill, said their Lordships were well acquainted with the arguments for and against the Measure, and he did not think it necessary to enter into a very elaborate argument in support of the very earnest appeal he wished to make to the House to assent to the Second Reading. In a case of this kind, when the Measure
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  which he advocated had been subject to large experiment, and could be judged by a large experience, he thought the House would agree that the onus of proof lay rather with those who objected to the reform, than with those who advocated it, to show cause why that which had proved to be beneficial over nearly the whole civilised globe, should be harmful in these islands. In asking for this reform of the marriage laws, they wore asking for nothing novel, but merely that the law of this country should be placed in harmony with the law and custom of nearly every state and community on the face of the earth. He should like to be perfectly accurate in regard to this matter; he was informed that there was a tribe highly cannibalistic but otherwise insignificant in Borneo, among whom marriage with a deceased wife's sister was absolutely forbidden, but otherwise, in civilised countries, such marriages were, as a rule, permissible, and were either allowed by the State as civil marriages, or the State followed the custom of the Church in regard to the matter. In civilised countries such marriages were, as a rule permissible, and he thought that those who advocated a reform could best make out their case by pointing to experiment and experience, and that in this matter ecclesiastical history and theological discussions were entirely irrelevant. These marriages were permitted in nearly every State on the Continent of Europe, in every State on the continent of South America, and throughout the United States, and they were legal and valid in Canada, Newfoundland, in all the Australian colonies, New Zealand, the Cape, and, he believed, Natal. Not only were they legal, but they had been legal for a considerable period of time in most of these States and communities, for periods amply long enough to prove that there existed no sound ground for the theory that such marriages produced a disintegrating effect upon family life, or led to demands for further changes in the marriage law; indeed wherever they had taken place the result was quite sufficient to dispel all the groundless fears which had been expressed in that House. The whole experience of mankind proved that such marriages were beneficial. Take the

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  case of France. In no country in the world were the domestic affections more developed. In none was the family as the unit held in higher regard, and yet these marriages had been recognised in France for over 60 years, and had practically always been permitted by the Church. He was not fond of quoting the example of foreign countries as one which was necessarily applicable to us, though human nature was in its essentials the same everywhere. But turn to our nearest kinsmen—the nearly 70 millions of inhabitants in the United States. Surely the fact that these marriages were permitted, had never been protested against, and had been found to work well, these afforded an object lesson applicable to ourselves. Look closer at ourselves beyond the sea. Communities of Englishmen in the broader sense, great communities enjoying perfect legislative freedom in these respects. In every one of the self-governing Colonies this much needed, long delayed reform had been effected long ago. Had there been the slightest disposition to extend or alter the law? In every one of them it had been found to work beneficially and well. What could there possibly be so essentially different between Englishmen in the United Kingdom and Englishmen in the rest of the United Empire as to justify the conclusion that marriages which had proved beneficial to us in the Colonies would not prove beneficial to us at home? In this respect the United Kingdom occupied a position of complete, but not splendid—isolation. He held that unless it could be absolutely proved that the English at home differed essentially from the English abroad, unless it could be conclusively shown that our human nature was radically different from the human nature of the rest of the civilised world, the strongest possible prima facie case existed in favour of the contention that permission to contract these marriages was right, was in accordance with sound instinct and common sense, and was productive of good results. With such an overwhelming mass of human testimony in its favour, argument was scarcely necessary; it rested upon those who objected to this reform to show and to prove why that which was permitted, and had been found beneficial, over the whole civilised world, should be forbidden
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  and would be harmful in the United Kingdom. It was very unfortunate that there should be such a far-reaching difference between the marriage law of the Mother Country and that of her self-governing colonies. It did not matter what view their Lordships might individually take with regard to Imperial questions, to the subject of federation, or as to the best manner of bringing about a closer union among the different portions of the Empire, because the essential principle they had to look at was that there should be between us uniformity of race, religion, laws and customs. It was unfortunate that there should be this fundamental difference between the marriage laws of Great Britain and her colonies, which affected the status of every man, woman, and child in the Empire. He submitted that he had shown that this subject was worthy of the very serious attention of their Lordships. With regard to the Bill itself, it was certainly unnecessary that he should say much, because it was practically identical with the Measure that had been introduced into that House two years ago. It consisted of two clauses only. By the first clause it was proposed to effect the legitimacy of marriages with a deceased wife's sister, and it was, of course, retrospective in its action as far as legitimatising the children already born of such marriages was concerned, but it would not be retrospective as far as the devolution of property, of titles or dignities of the Crown were concerned. The second clause was designed to avoid any possible interference with the scruples of conscience of the clergy, and it did so in a very effective way. If it failed in securing that object, he should be quite ready, in the event of the Bill being read a Second time, to consider any Amendment that might be proposed in that direction. It was certainly unnecessary for him to urge that the Bill must be retrospective as regarded it legitimatising children of those marriages who were now born otherwise. Thousands upon thousands of such children would remain under the brand of bastardy whilst those born of such marriages in the future would be legitimate. Such a distinction between equally innocent children would be unchristian, uncharitable, and unjust. It might be, and indeed it had been urged,

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  that to legitimise these marriages in the past would be to condone a breach of the law, and that whether a law were wise or foolish, just or unjust, it ought to be obeyed as long as it was the law. That might be so. But, however salutary a rule might be, there might be exceptions to it. It must be recollected that the prohibition against these marriages was an innovation, and that it had been protested against over and over again by the people, that it had been repealed over and over again by the other House so far as one House of Parliament could do so, and that it had been repealed in that House as far as it lay in the power of its lay Members to do so. In these circumstances it was not strange that violations of these prohibitions carried with them no sense of law breaking in the ordinary way, and no sense of wrong-doing either on the part of those who broke the law, or of those who were their friends and neighbours. In such a state of things the condonation of the offence could have no injurious effect in weakening the law-abiding instincts of the people, but, on the other hand, it would tend to weaken those instincts if a law were maintained which, according to the consciences, the opinions, and the instincts of the great bulk of the people was neither expedient or right, nor founded on either divine sanction or natural law. At any rate, it was perfectly clear that they could not punish the parents in these cases without inflicting much more severe punishment upon their perfectly innocent children. In consideration of that fact, it would be well to show some mercy to the parents who might be guilty. The second clause dealt entirely with the clergy, in connection with these marriages. By that clause the clergy were prohibited from solemnising these marriages. That prohibition might, perhaps, appear to some people to be going too far, but the object of the clause was to avoid placing the clergy in the invidious position of being called upon to exercise an option in the matter. By refusing to solemnise such a marriage a clergyman might make himself unpopular, and so be disabled from exercising the duties of his holy office to the best advantage. This clause had, therefore, been introduced, and he thought that it would give them ample protection as far as these marriages were
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  concerned. It might be said that this Bill would create a difference between the law of the Church and the law of the State. That was perfectly true, and he regretted that the Church should remain isolated in this matter. He had sincerely hoped that the Church would have shown itself more in sympathy with the almost universal feeling of the people in this matter. If the law of England were exceptional in this matter, as he had shown, it to be, if we were isolated as a State, so also was the Church of England in an attitude of isolation which was not wise. These marriages were solemnised by the Roman Catholic Church, which practically never refused to grant the necessary dispensation. They were solemnised by the Episcopal Church of the United States and in the colonies, and they were not objected to by the Nonconformists of England and Wales, and, judging by what had lately occurred in the Presbyterian Church in Scotland, he felt justified in saying that the objections of that Church to such marriages had ceased or would shortly cease to exist. He regretted greatly the more or less isolated position of the Church in this matter, and, as a very earnest and sincere friend of the Church, he humbly urged her to put an end to that isolation. When the Church had been attacked he had always done the best he could to defend her and her connection with the State, and he had been somewhat emboldened by that recollection to make an appeal to the most rev. Primate in regard to this question. He did not ask that the Church should be compelled to solemnise these marriages, or that she should abstain from using all her influence and powers at her command to prevent them taking place, but he did ask that the Church should not make use of her Parliamentary powers to prevent the legalisation of marriages which were consonant with the feelings, the instincts, and the consciences of the great majority of the people of this country. He asked the Church not to accept these marriages as sanctioned by the Church, but to accept the Bill. That this measure of reform was earnestly desired by the nation generally there could be no doubt, especially by the working classes. Resolutions in favour of a Measure of this kind had been passed

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  eight times at Trades Union Congresses, Petitions in the same direction had been sent up by numberless Boards of Guardians, 254 municipal boroughs had from time to time sent up 1,000 petitions in favour of the change, the Convention of the Royal and Parliamentary Burghs of Scotland sent a deputation to the Prime Minister in 1880 praying the Government to take the matter up themselves, and as to what he might call private petitions, at one time there was considerable activity in that direction, and up to 1887, there were 182,600 signatures to petitions against the change and 1,765,000 signatures in its favour. He did not attach great importance to petitions of the latter kind, which were apt sometimes to reflect more truly the energy of secretaries and associations than public opinion; but the spontaneous action of great public bodies was quite another matter, and did indicate very strong popular feeling on the subject. As to the comments of the Press on the Debate on the Bill of 1894, with the exception of The Times, The Globe, and the Manchester Courier, every one of the Metropolitan and Provincial leading papers commented in favour of the Bill. But, after all, what other proof of the popular feeling in favour of the Bill was necessary than the fact that on 14 different occasions a Bill of this kind had been read a Second time in the Commons House of Parliament by very large majorities? He thought he had said enough to show that there was a very wide-spread feeling of support and sympathy for those who desired this change in the law. He had confined himself, he believed, entirely to the practical aspect of the case. He had avoided controversy and all research into the past, because he thought it was their Lordships' business to consider the needs and requirements and wishes of the people of the country at the close of the 19th century, rather than to consider what was the opinion of ecclesiastics in the 4th or 5th century. He had been so puzzled to understand the nature and cause of the opposition to this Bill, that he sometimes thought there must be a notion abroad that its promoters were anxious to compel every man to marry his deceased wife's sister at the earliest possible opportunity under frightful pains and penalties if he did not do so.
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  [Laughter.] Such was not the case. They only wanted to allow people to contract these civil marriages who desired to do so. The argument was sometimes used that the Bill was illogical—that if marriage with a deceased wife's sister were allowed, so ought to be marriage with a deceased husband's brother. It was not necessary for him to go into that. It was sufficient to point to the fact that marriages of this kind were permitted in all the colonies and nearly every civilised country on the Continent of Europe, and in none of these cases had there been the slightest desire to extend the law further. If the Bill was illogical, human nature was illogical also. The theory had been advanced of the absolute identity of affinity and consanguinity, that a sister-in-law was the same as a sister in blood, and that an alteration of the law would completely alter the status of the sister-in-law. That was an entire fallacy, resting on the false idea that human instincts were based on or created by human law, whereas human law was based on human instinct. The universal testimony of the experience of mankind showed that where these marriages were permitted, none of the disastrous effects which were predicted in the status of the sister-in-law had been observed. The law as it stood was not, never had been, and never would be respected, because it did not rest upon divine command or upon natural law. It pressed exceedingly hard upon the poor. The rich could go out of the country to contract these marriages in foreign lands. The rich could evade the law. The poor could not do so. The present law drove people into deceit and evasion. For the sake of truth, and in the interests of morality, he asked their Lordships to read the Bill a Second time. For the sake of bringing about uniformity in a matter of such importance throughout the Empire, for the sake of men and women here in the United Kingdom who laboured under disabilities which did not affect them in any other civilised country, and for the sake of thousands and thousands of innocent children, he appealed most earnestly to their Lordships to grant this much-needed Measure of reform. He begged to move the Second Reading of the Bill.
  EARL PERCY, in moving ''That the Bill be read 2a this day three months,''

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  said he had heard many speeches on this subject, but he did not think he had ever heard one which astonished him quite as much as that just delivered by the noble Earl. The noble Earl, in the opening part of his remarks, contended that argument in favour of this reform was not necessary, but he ventured to think that some argument was due to their Lordships. The noble Earl made the boldest and most unsupported assertions. He told the House that this change in the law had been beneficial in almost every civilised country in the globe, but he did not give one single proof of that most astounding assertion, beyond this, that in France, of all nations in the world, family life was purer and better than in other countries, and that marriage with a deceased wife's sister did not interfere with it. Family life in France was very carefully guarded in a way that family life in England was not guarded, because it was not necessary; but it was notorious that the standard of morality of France, generally speaking, was much lower than was that of England, and indeed, worse than in any civilised country. The noble Earl also said that this Measure had been adopted for many years in most other countries. As a matter of fact, that was exactly the reverse of the truth. It was given in evidence before the Royal Commission, that in Prussia the state of the marriage laws was such as to make Germans hide their faces in shame; and so bad were the consequences of the marriage laws in France, that once, at least, it was changed by the Code Napoleon. Then the noble Earl quoted the South American Republics, but he was bound to say that he had never heard them held up as an example of virtue in any connection. The Colonies had only had this law in operation for a comparatively small number of years, and the Colony of Victoria was already relaxing her marriage law to an extent deplored by many people. The noble Earl had astounded him by declaring that the Roman Catholic Church had always permitted these marriages, for here again was the exact opposite of the case. The Roman Church had never permitted these marriages; it had always refused to admit that they were permissible without a dispensation. The Pope had
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  also taken power to grant dispensation in the case of other marriages without the prohibitions, and if the noble Earl's argument was well founded—if it were true that because the Pope had specially permitted by dispensation marriage with a deceased wife's sister, the Church of Rome must be held to have always permitted these marriages—the noble Earl ought to have included in his Bill other marriages within the prohibited degrees, for the Pope had given dispensation in the case of those marriages also. Yet, these other cases the noble Earl excluded. The noble Earl said that the prohibition of marriage with a deceased wife's sister was an innovation. What did he mean? If he referred to Lord Lyndhurst's Act the noble Lord surely knew that what that Statute did was to make it perfectly clear that these marriages were illegal. The law of this country had been immemorially against these marriages, and the present law was only an innovation to this extent, that whereas formerly these marriages were voidable if steps were taken to upset in the lifetime of the parties they were now void ab initio. But it was not really an innovation; it was the improvement of the machinery for carrying out what was always the presumption of the law. In the Debates on this subject in past years, arguments had been abundantly used by the opponents of the Measure, and never once had he heard those arguments met. The law stood upon a logical basis, regarding the union of man and wife as making the relations of the one the relations of the other. He would ask the noble Earl this question: if a man was to be allowed to marry his deceased wife's sister why should he not be allowed to marry his wife's niece? There were people who wished to contract such marriages, and there was no greater reason why the prohibition should be removed in the one case than in the other. Why was the noble Earl not prepared to relieve the conscience or feelings of a person who wished to marry his wife's niece as well as to relieve the conscience and feelings of a man who wished to marry his deceased wife's sister? He challenged a reply to that question. A man had no ground for feeling agrieved as long as the marriage prohibitions were logical and equally

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  applied as between the sexes. If, however they should begin to pick and choose; if they should say that because there were so many thousand people who wished to marry deceased wives' sisters permission to do so must be granted, whilst permission to marry a deceased wife's niece must be refused because the number who wished to contract that marriage was not so large, a grievance would at once be created. The noble Earl declared that there was a strong feeling in the country in favour of the Bill, and that many public bodies had petitioned in support of it independently of suggestions from interested parties. For his part he was sceptical about that. The Measure had passed through the House of Commons on several occasions, and had been before the country for 40 years at least. That being the case, would their Lordships, or could they resist the Bill any longer if there were really any large desire for it outside? What Party in search of a programme had ever put this question in the forefront of their proposals? How many Members of Parliament had ever mentioned the Bill in their election addresses? The fact was that there was no strong feeling among the people in favour of the Bill. But there was a small and active organisation which was keeping up a constant agitation for this change, and there was a prevailing indifference on the question among the mass of the people, the bulk of whom had never considered the principles upon which the prohibitions of the marriage law ought to be based. Organisers went among the people and asked—"Do you see any reason why a man should not marry his deceased wife's sister?" and if the reply was "no," the petition in favour of the Bill was presented for signature. He hardly thought it was quite respectful to their Lordships that year after year this Measure should be reintroduced when they had so often rejected it. No new argument had been adduced in support of the Bill, but there was one new provision in it. For the first time, they were asked to sanction marriage from the performance of which the ministers of the Church were to be excluded. It was to be a kind of half marriage, and was not even to affect rights of property retrospectively. It was to be a union which dared not show itself in the House of God, and which, he
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  felt sure, would not be approved socially. It had only this one merit, that it enabled a man to deprive the heir of property which from time immemorial he would have had a right to expect. Were their Lordships going to make a kind of half marriage of this sort for the first time in the history of England? The noble Lord said that this was done to save the consciences of the English clergy. He was glad that the consciences of the English clergy should be so, and from that point of view, at least, he welcomed that provision in the Bill. But they had something else to think of besides the consciences of the clergy. Was this country going to sanction a half marriage of this kind? Hitherto in this country there had been two forms of marriage—one was the marriage as they knew it, and the other was the morganatic marriage, which was blameless in the sight of the Church, blameless in the sight of society, and the only incapacity from which it suffered was in connection with civil rights. Now they were going to create the reverse—a marriage which should have no status from a religious point of view, which should be looked down upon from a social point of view, but which should carry with it civil rights. He could not imagine that their Lordships, having so often recorded their opinion that without such a hideous provision as this they would not assent to a change of the law, would on the present occasion stultify their former action with a proposition so monstrous as that now put before them. He moved that the Bill be read a Second time that day three months.
  LORD HERSCHELLsaid that on the last occasion he addressed some observations to their Lordships with regard to this Bill, and he certainly would not have spoken now if it had not been that in the interval a dignitary of the Church had honoured him, by commenting in a preface to a work recently issued on some statements which he then made, maintaining that they were wholly incorrect. If he were to remain silent on this occasion it would be assumed that he admitted the criticism to be just, and therefore he felt bound, as he was right and the reverend Dean wrong, to point out the reasons for his opinion. Before coming to that point, however, he should

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  like to say a word as to what the noble Earl said—that it was unbecoming this Bill should be again introduced because their Lordships had rejected a similar Bill two years ago. He wholly dissented from that argument. Because the advocates of a Bill of this kind were defeated in no way precludes them from raising the question again. Some of those who voted on the previous occasion might have seen reason to change their views, and he was disposed to say that the Division Lists would show this to be the case. Moreover, during that period a number of new Members had been introduced, and there was no reason why they should not have an opportunity of expressing their opinion on the question. On that occasion, and in reference to the arguments used, he asked whether any time could be shown in the Early Church when those marriages were forbidden, when other marriages were not forbidden. His argument was that he was unable to see by what right the opponents of this Bill selected one marriage which they said that the Early Church forbade and insisted that the marriage should not be permissible, while they themselves celebrated marriages which the Early Church equally forbade and said they were lawful. But to appeal to the Early Church and then take part of its opinion and reject the rest, deprived the authority to which they appealed of all weight whatsoever. The Dean of Lichfield, in making that suggestion, said that he (the speaker) was mistaken, for he referred to marriages with cousins, and that while marriage with a deceased wife's sister was forbidden as early as the Council of Elvira in 305, marriage with a cousin was not put into the same category until a later Council in 506. If that had been the case he should have not regarded it as depriving his argument of weight because he should still ask why they maintained that what was said in the canons in the fourth century was binding, while what was equally said in the sixth century might be safely disregarded. After having referred to the canons of the Council of Elvira, the learned writer next said that in his opinion a marriage with a deceased wife's sister was in the apostolic canons. It was true, but the apostolic canons said that a man who had married his
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  deceased wife's sister should not become a cleric, but he said this was because it was an illegal marriage, and there was a taint of impurity attaching to it. The date of the apostolic canons was put by high authorities at a period anterior to the Council of Elvira; Bishop Beveridge looks upon them as dating from the latter part of the third century. It was quite true that the German critics put the date somewhat later than the Council of Antioch; they put it a few years only after the Council of Elvira. The Dean of Lichfield referred to this apostolic canon as showing what the Church then thought of marriage with a deceased wife's sister; but that very canon put the deceased wife's sister and the cousin exactly on the same footing. It said:—
  "he who marries his deceased wife's sister or his cousin cannot become a cleric;"
  And therefore if the apostolic canons are dated as early as they were alleged to be, and if they were relied upon as evidence of the view of the Early Church, he said that he was absolutely correct in saying that the Early Church forbade marriage with a deceased wife's sister; it forbade, at the same time, marriage with a cousin. But the Dean said that he was mistaken in saying that they were put on the same footing, because he said that when the Church forbade marriage with a cousin it only treated it as an ecclesiastical prohibition, and did not found it on Scripture, whereas the condemnation of the marriage with a deceased wife's sister was founded on Scripture, and there was always this broad distinction between the two—the first was treated from the first as incestuous, and the other not. He read that statement with amazement, because a few pages before the first mention of it was at the Council of Elvira. What did that Council say about it?—
  "If anyone after the death of his wife shall marry her sister and shall be a, believer it is resolved that there shall be abstinence from communion for five years."
  It did not say a word about being incestuous or invalid; it subjected only to a mild penance of five years abstinence from communion. It recognised the validity of the marriage; it did not declare it to be incestuous. If it stood

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  by itself it would be scarcely possible to do otherwise than recognise it as a marriage considered expedient by the Church; but all doubt was removed if they would look at the other canons of the same Council. This canon was always quoted by itself; the other canons were not quoted, but they were useful in interpreting the terms of the others. This was the 61st canon. The 64th canon was in these terms:—
  "If any Woman to the end of her life shall live in adultery with a man it is resolved that the communion shall not be given to her even at the last; but if she shall leave him, then after 10 years she shall receive the communion."
  But it was said that it declared the marriage to be incestuous. The Council of Elvira knew what it was about when a marriage was declared to be incestuous. Canon 66 said:—
  "If anyone shall marry his stepdaughter inasmuch as it is incest, it is resolved that communion shall not be given to him even at the last."
  When the Council meant that a union was an incestuous one, it declared it to be so, and the penalty was different from the case of a deceased wife's sister. He submitted that no unprejudiced man could read these canons of the Council of Elvira without coming to the conclusion that at that time marriage with a deceased wife's sister was not regarded as incestuous; it was regarded as valid. It seemed to him, therefore, that when those records of the Early Church were fairly considered, they gave no sanction whatever to the case which was sought to be made out against the validity of those marriages on the ground that the Early Church regarded them as incestuous and void according to the Divine law. The noble Earl opposite said that this Bill was an illogical one. He was not concerned to contest that argument, but he referred to certain marriages of affinity. If the noble Earl desired, after the Bill was read a Second time, to extend the Bill in that direction in Committee, no doubt consideration would be given to his views. But it had always been the practice of Parliament to endeavour to deal with difficulties and with evils as they arose. It had never attempted to be logical. He had heard the noble Marquess on more than one
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  occasion say that was a counsel of perfection with which they had nothing practically to do as legislators. It had been said that the effect of the proposed change in the law would be to diminish the sanctity of marriage and the purity of family life. The author whom he had quoted said it would remove the naturalis horror which, he said, chiefly stood now between men and intrigues with their wife's sisters. That might be a serious matter if it were the case, but this naturalis horror did not exist in the majority of their Lordships—he put the episcopal Bench respectfully aside for the moment—as was shown by their vote on the last occasion; and he was therefore a little astonished to hear that suggestion, and with reference to the objection that we had no experience of how this change was likely to work, he maintained that we had ample experience of it. It was true that in the colonies it was not a very old law, but it had existed for long in Germany and Scandinavia, and he believed that domestic life was as pure and wholesome in Germany and Scandinavia as it was in this country. In some of the American States, too, where the law relating to marriage and divorce remained substantially the same as our own, this law had been in operation for a long time, and the same remark applied to them as to Germany and Scandinavia. He singled out those States, because, as to others, it might be said that there was greater laxity in the divorce laws, and to avoid the argument he confined his statement to those whose marriage and divorce laws were substantially the same as our own, with the exception of marriage with a deceased wife's sister. He maintained that not an atom of evidence ever had been or could be produced to show that such a change would render the marriage hearth less safe or in the slightest degree tend to immorality or improper relations which were now avoided by the existence of the present law. Jersey had passed, by a great majority of its Legislature, representing an enormous number of the people of the country, a law permitting this change. The noble Marquess said it was necessary to take time seriously to consider this decision, because the island being near here, people might go and take up their domicile there with a view

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  to contracting such a marriage. But he would remind the noble Marquess that in 1875 the Government of which he was a Member gave their approval to the law passed by the New South Wales Legislature. At that time the law had not been changed in the adjoining colony of Victoria, which was much nearer to New South Wales than Jersey is to England, and where the same inconveniences of doubtful domicile were much more likely to arise from the greater facility of intercourse between the two; and yet the noble Marquess or his Government did not regard that as a sufficient reason for not approving the action of the New South Wales Legislature. The people of Jersey desired the change with comparative unanimity, and yet it was doubtful whether they were to be permitted to marry one another because of possible inconvenience to the people of this country from a temptation to obtain a domicile in Jersey, and so to carry out their desire to marry one another. This Bill, of course, would not interfere a whit with the opinion of any one, as to the propriety or impropriety of this marriage, but when they were asked to submit the opinion of this House to the opinions of the Episcopate, the Church, or the clergy, it must be remembered that there were a great number of people in this country who desired those marriages, and who believed them to be perfectly right, who were not within the pale of influence of the Bishops and clergy of the Church of England. There were Nonconformists, Jews, and Roman Catholics, and by what right was this House to maintain a civil law with regard to marriage which was to affect those classes of the community who were outside the Episcopacy? ["Hear, hear!"] Yet that was what was happening, because on the last occasion the lay Members of this House, by a majority of votes, expressed themselves in favour of this Bill. The Bill was rejected only by reason of the views of the Church, and the views of the Church were thus being imposed on the laity of this country outside the communion of the Church altogether. It was said that the Roman Catholic Church did not regard this marriage as valid. Of course, it was admitted that it was regarded as valid when a dispensation for it was given, but it was said
  1534
  the Roman Catholic Church maintained its right to dispense with the Divine law, and consequently its opinion on the subject was not to be regarded very seriously. That was the other observation which he made which was criticised by the Dean. He said that he did not understand that the Church of Rome maintained its right to dispense with the Divine law, although undoubtedly it dispensed with the ecclesiastical law. The Dean said he was wrong, and he regretted very much that a Member of the Episcopal Bench, did not rise and correct him at the time; because, he said, at the Council of Trent, an anathema was pronounced upon those who maintained that the Pope could not dispense from some of the prohibitions contained in Leviticus. He did not understand that as maintaining a right to dispense with the Divine law. He understood it as expressing the view that there were prohibitions contained in Leviticus which were not of perpetual obligation, and from which it would be quite proper for the Pope to dispense. That view was very strongly borne out by the very limited terms in which it was couched. And was there any Member of the Episcopal Bench who would maintain that the old Jewish law, the whole law of Moses, was of perpetual obligation? He doubted very much whether the maintenance of this prohibition was calculated to increase respect for those parts of the marriage law in regard to which they were all in absolute agreement. He thought the danger lay in this, that they would be apt to weaken the sanction, authority, and force of those prohibitions which the great majority of men agreed in regarding as binding. [Cheers.]
  EARL NELSONthought it was utterly unfair that a Bill brought in as a private Bill should be allowed to damage the harmoniousness of their marriage Code. He thought that the time had well nigh come when the question of holy matrimony should be dealt with by the Government of the day. There were many things crying for a remedy. At the present time there was a law in Scotland with regard to marriage different from the law in England, so that a marriage in Scotland under which property could be inherited was totally different from the law in

  1535
  England where the property could not be inherited. What was more terrible than the present condition of the law? He instanced the case of a man and his wife and her paramour who had gone to the United States and obtained a divorce there. He did not agree with the noble Lord who moved the rejection of the Bill in the commendation of Lord Lyndhurst's Act. That was a proof of how dangerous it was to bring in Bills for private reasons. He could not help thinking that they should press on the Government that a Commission should be appointed to deal with this question in all its forms, and his great objection to this Bill was that it dealt piecemeal with the question instead of having a Commission to inquire into and consider their whole marriage laws.
  THE ARCHBISHOP OF CANTERBURY: I shall not attempt to follow the noble Lord in a criticism of a book to which I think he attaches far too much weight. ["Hear, hear!"] With regard to this Bill now before your Lordships, I must acknowledge that the Church is not compromised by it to the same extent as it was compromised by other Bills. The clergy are set free. What the movers do they do freely, so that what is done for the clergy is done completely and, I ought to say, generously. But, my Lords, the clergy do not sit in this House only as ecclesiastics. ["Hear, hear!''] They do not sit here with narrow preconceived ideas; they sit here also as Englishmen and citizens, and they cannot be a party to a ruinous breach in our marriage law. I cannot, therefore, look lightly upon this idea of setting Church law and State law at variance. I must remind your Lordships that time after time the repeal of the law has been refused by the lay Vote. Many entertain the idea that it is maintained by the Episcopal Vote; but that is not so. ["Hear, hear!"] At present there is a Registry of Marriages; and this registry exists for the use of those who are indifferent to the prayers and blessings of the Church. But it is a different matter to introduce marriages which are considered to be wrong. We know the feelings of the poor. We know that the majority of the people are on our side and do not desire these marriages.
  1536
  ["Hear, hear!"] I shall not go further now into that question, but I will say this— that the Bill, if carried, will compromise the peace of many families. At the present moment the religious law and the civil law are at one, but it is proposed by this Bill to sever them by a very deep gash. We have had very large assertions as to how beneficial this legislation has "proved," but it takes a great many years and a great accumulation of evidence to "prove" that any such piece of legislation is beneficial, and I do not hold that it is "proved" in the least. We have been told, and absurdly, that there are thousands of thousands of children who are suffering under the present disabilities of bastardy, but when the case is brought before you with that kind of exaggeration are we to suppose that stripped of exaggeration the argument is perfectly fair and good? I cannot consent to sever the religious and the civil laws, not as a Bishop, but as an Englishman with English history behind me. It is the duty of those who are placed here to represent the national Church to boldly express what the teaching of that Church is, and, taking the whole tradition of our English Church into consideration, I declare that these marriages will break up the principle upon which our marriages are founded, and if the principle goes I do not believe the detail will rest there. We are told that it is a very unfortunate thing that we should differ in our marriage law from our colonies, but it would be more unfortunate if at home the law of the Church and the civil law should be set at variance with one another. Your Lordships have refused again and again to repeal this law, and I hope you will refuse again. We have been told with much force that human law rests on human instinct, and I believe that the law as it stands is the expression of human instinct. [Cheers.]
  The House divided on the Question whether the word "now" shall stand part of the Motion:—

  CONTENTS

  …

  …

  142

  NOT-CONTENTS

  …

  …

  113

  Resolved in the Affirmative.

  DIVISION LIST.—CONTENTS.

  Wales, H. R. H.

  De La Warr, E.

  Carew, L.

  Monckton, L. (V. Galway.)

  Prince of.

  Denbigh, E.

  Cheylesmore, L.

  York, H. R. H. D.

  Effingham, E.

  Coleridge, L.

  Monk Bretton, L.

  Ellesmere, E.

  Colville of Culross, L.

  Monkswell, L.

  Devonshire, D. (Lord President)

  Granville, E.

  Connemara, L.

  Morris, L.

  Harewood, E.

  Davey, L.

  Northbourne, L.

  Beaufort, D.

  Kimberley, E.

  De Saumarez, L.

  Northington, L. (L. Henley)

  Bedford, D.

  Malmesbury, E.

  Denman, L.

  Fife, D.

  Minto, E.

  Deramore, L.

  Ormonde, L. (M. Ormonde.)

  Portland, D.

  Morley, E.

  Dorchester, L.

  Saint Albans, D. [TELLER.]

  Onslow, E.

  Dunmore, L. (E. Dunmore)

  Playfair, L.

  Orford, E.

  Poltimore, L.

  Sutherland, D.

  Sandwich, E.

  Glenesk, L.

  Ranfurly, L. (E. Ranfurly)

  Westminster, D.

  Spencer, E.

  Granard, L. (E. Granard.)

  Strange, E. (D. Atholl.)

  Rendel, L.

  Breadalbane, M.

  Vane, E. (M. Londonderry)

  Greville, L.

  Revelstoke, L.

  Cholmondeley, M.

  Grey de Ruthyn, L.

  Ribblesdale, L.

  Lansdowne, M.

  Verulam, E.

  Grimthorpe, L.

  Rodney, L.

  Northampton, M.

  Yarborough, E.

  Hare, L. (E. Listowel.)

  Rosebery, L. (E. Rosebery)

  Ripon, M.

  Hawkesbury, L.

  Falmouth, V.

  Herschell, L.

  Rothschild, L.

  Abingdon, E.

  Hutchinson, V. (E. Donoughmore.)

  Hobhouse, L.

  Russell of Killowen, L.

  Ancaster, E.

  James, L.

  Sackville, L.

  Annesley, E.

  Oxenbridge, V.

  Kelvin, L.

  St. Levan, L.

  Aylesford, E.

  Portman, V.

  Kenmare, L. (E. Kenmare)

  Sefton, L. (E. Sefton.)

  Bathurst, E.

  Templeton, V.

  Shand, L.

  Brooke and Warwick, E.

  Wolseley, V.

  Kenry, L. (E. Dunraven and Mount-Earl.) [TELLER.]

  Sherborne, L.

  Stanley of Alderley, L.

  Buckinghamshire, E.

  Aberdare, L.

  Sudley, L. (E. Arran.)

  Caledon, E.

  Annaly, L.

  Kensington, L.

  Thring, L.

  Camperdown, E.

  Ardilaun, L.

  Kilmarnock, L. (E. Erroll.)

  Tollemache, L.

  Carlisle, E.

  Ashburton, L.

  Tredegar, L.

  Carnarvon, E.

  Bagot, L.

  Kintore, L. (E. Kintore.)

  Trevor, L.

  Carrington, E.

  Barnard, L.

  Lawrence, L.

  Tweedmouth, L.

  Cawdor, E.

  Battersea, L.

  Leigh, L.

  Tyrone, L. (M. Waterford)

  Chesterfield, E.

  Belper, L.

  Lingen, L.

  Chichester, E.

  Boston, L.

  Loch, L.

  Wandsworth, L.

  Clarendon, E.

  Boyle, L. (E. Cork and Orrery

  Macnaghten, L.

  Welby, L.

  Cowley, E.

  Magheramorne, L.

  Wolverton, L.

  Cowper, E.

  Burghclere, L.

  Manners, L.

  Worlingham, L. (E. Gosford)

  Craven, E.

  Burton, L.

  Mendip, L. (V. Clifden).

  Crewe, E.

  Camoys, L.

  Methuen, L.

  NOT-CONTENTS.

  Canterbury, L. Abp.

  Amherst, E.

  Stamford, E.

  St. Albans, L. Bp.

  Halsbury, L. (L. Chancellor

  Beauchamp, E.

  Stanhope, E.

  Salisbury, L. Bp.

  Belmore, E.

  Waldegrave, E.

  Southwell, L. Bp.

  York, L. Abp.

  Carnwath, E.

  Truro, L. Bp.

  Cross, V. (L. Privy Seal)

  Cranbrook, E.

  Bangor, V.

  Wakefield, L. Bp.

  de Montalt, E.

  Halifax, V.

  Winchester, L. Bp.

  Doncaster, E. (D. Buccleuch and Queens- berry)

  Knutsford, V.

  Addington, L.

  Norfolk, D. (E. Marshal)

  Llandaff, V.

  Aldenham, L.

  Melville, V.

  Ashcombe, L.

  Argyll, D.

  Dudley, E.

  Balfour, L.

  Grafton, D.

  Haddington, E.

  Chester, L. Bp.

  Bateman, L.

  Marlborough, D.

  Hardwicke, E.

  Chichester, L. Bp.

  Blythswood, L.

  Newcastle, D.

  Lauderdale, E.

  Durham, L. Bp.

  Brancepeth, L. (V. Boyne)

  Richmond, D.

  Macclesfield, E.

  Ely, L. Bp.

  Somerset, D.

  Manvers, E.

  Exeter, L. Bp.

  Braybrooke, L.

  Mar, E.

  Gloucester and Bristol, L. Bp.

  Brodrick, L. (V. Midleton)

  Abercorn, M. (D. Abercorn)

  Mar and Kellie, E.

  Mayo, E.

  Lincoln, L. Bp.

  Carysfort, L. (E. Carys-fort)

  Bute, M.

  Nelson, E.

  London, L. Bp.

  Exeter, M.

  Powis, E.

  Manchester, L. Bp.

  Clanwilliam, L. (E. Clanwilliam)

  Hertford, M.

  Ravensworth, E.

  Oxford, L. Bp.

  Salisbury, M.

  Selborne, E.

  Peterborough, L. Bp.

  Clinton, L. (TELLER.)

  1538

  1539

  Colchester, L.

  Hampton, L.

  Oranmore and Browne, L.

  Stanmore, L.

  Cottesloe, L.

  Hillingdon, L.

  Stratheden and Campbell L.

  Crofton, L.

  Hylton, L.

  Ponsonby, L. (E. Bessborough,)

  Dinevor, L.

  Keane, L.

  Templemore, L.

  Douglas, L. (E. Home)

  Ker, L. (M. Lothian.)

  Raglan, L.

  Teynham, L.

  Egerton, L.

  Kinnaird, L.

  Rookwood, L.

  Ventry, L.

  Esher, L.

  Llangattock, L.

  Saltersford, L. (E. Courtown.)

  Wantage, L.

  Fermanagh, L. (E. Erne)

  Lovaine, L. (E. Percy.) (TELLER)

  Wigan, L. (E. Craw-ford)

  Saltoun, L.

  Foley, L.

  Montagu of Beaulieu, L.

  Scarsdale, L.

  Wimborne, L.

  Foxford, L. (E. Lime-rick)

  Silchester, L. (E. Long-ford)

  Wynford, L.

  Mowbray, L.

  Gage, L. (V. Gage.)

  North, L.

  Sinclair, L.

  Bill read 2a accordingly, and committed to a Committee of the Whole House on Monday next.

  BISHOPRIC OF BRISTOL ACT (AMENDMENT BILL [H.L.]
  Amendment reported (according to Order); and Bill to be read 3a Tomorrow.
  House adjourned at Twenty minutes before Seven o'clock, till To-morrow, half-past Five o'clock.