MARRIAGE WITH A DECEASED WIFE'S SISTER BILL.

HL Deb 23 August 1907 vol 181 cc1250-89

House in Committee (according to Order ).

[The Earl of ONSLOW in the Chair.]

Clause 1:—

THE EARL OF SHAFTESBURY

moved an Amendment to remove from the Bill its retrospective character. He assured their Lordships that there was no ulterior motive on his part underlying the Amendment. He had been led to take this course for two distinct reasons—firstly, on constitutional grounds; and secondly, to avoid any additional element of confusion if the Bill passed into law. He was afraid the course he advocated would be characterised as vindictively inclined towards those who had broken the law and married their deceased wife's sister, and that it would also be said that to remove from the Bill its retrospective character would be hard on the children of such marriages, as they would thereby be compelled to face life through with the ban of illegitimacy upon them. He yielded to none in honest sympathy for those who, from whatever circumstances, had felt compelled to break the law by contracting one of these marriages. But he would remind their Lordships that as recently as the previous afternoon it had been laid down as an axiom by a responsible Minister of the Crown—the noble Earl the President of the Board of Agriculture—that in most cases, if not in all, the minority must suffer for the good of the majority. The majority in this case were those who looked for, and had a right to look for, stability in legislation, and the minority were those on behalf of whom their sympathies were enlisted. As to the children, if they were out of sympathy to pass a law the legitimise the children of past marriages with a deceased wife's sister, were they to stop there? Had not all children who were born out of wedlock equal claims to their sympathy? For the sake of the preservation of confidence in continuity in legislation he hoped the Committee would accept his Amendment. No doubt they would be told that Parliament had often made valid marriages that were invalid, and that therefore the proposal in this case was no new departure; but the only real precedent for this was Lord Lyndhurst's Act of 1835, which he regarded as a not very defensible piece of legislation, and which was passed in order to assist a peer of the Realm who had contracted one of these marriages. That Act did not validate marriages which had been declared void, but merely prevented the voidance of marriages which were valid until proceedings were taken to set them aside. There was the danger of retrospective legislation producing still further confusion. Let them take the case of a man who had married his deceased wife's sister and separated from her, leaving the children in her custody. If he had married someone else the Act left things in their present position; but if he were merely living with another woman, it might be with a promise of eventual marriage, the Act gave him the custody of the children of his deceased wife's sister. Again, supposing a man to have married his deceased wife's sister and to have left her, and then to have married another sister: to whom would he be married by this Bill? Again, there was the case of a man with a legitimate family, and also an illegitimate family by his deceased wife's sister. Under the present law the children o f the deceased wife's sister had no right of succession, and in many cases provision had therefore been made for them by the father or other relatives, it being understood that on the death of the father intestate the whole of his property would go to his legitimate children. It was obvious that many other similar cases might arise, and the probability was that there would be a great many difficulties which had not been foreseen; and it seemed a thousand pities that in order to remedy what was, after all, a sentimental grievance, risks should be run of doing serious injury to others. He hoped the First Lord of the Admiralty would be able to accept the Amendment, behind which he submitted there was great weight of argument. However, should the noble Lord find himself unable to do so, he would leave himself entirely in the hands of the Committee as to whether or not he should press the Amendment.

Amendment moved— In page 1, line 5, to leave out the words 'heretofore or.'"—(The Earl of Shaftesbury.)

THE FIRST LORD OF THE ADMIRALTY (Lord TWEEDMOUTH)

My Lords, before I deal with the noble Lord's Amendment I should like to read to the House a very authoritative opinion expressed on this matter. It is a passage from Lecky's "Liberty and Democracy." In that work Mr. Lecky dealt at considerable length with the marriage law and paid a great deal of attention to this particular subject of marriage with a deceased wife's sister, and this is what he said in answering the arguments brought against the Bill— These marriages exist over a great portion of the globe without the smallest question or producing the smallest family disturbance. Experience, the one sure guide in politics, conclusively shows how quickly the best public opinion of a country accommodates itself to these marriages, how easy, natural, and beneficent they prove, how little disturbance of any kind they introduce into domestic relations. The next passage refers, I think, especially to your Lordships' House— In an age when most wise and patriotic men desire that the influence and character of the Upper House should be upheld and strengthened, few things could be more deplorable than that this House should have suffered itself to be made the representative of a swiftly vanishing superstition and the chief instrument in perpetuating a paltry and ignoble persecution. Those are passages which your Lordships should remember when you are attempting to deal with the details of this Bill. The Amendment, in the first place, is absolutely opposed to what was done by Lord Lyndhurst's Act of 1835. The intention of that Act, as originally drafted, was to legalise marriage with a deceased wife's sister whether in the past or in the future; but by an arrangement that I described the other night, the Act was altered so that it simply validated—made valid instead of merely voidable—all marriages that had taken place previous to the passing of the Act. The Amendment of the noble Earl refuses even the amount of legality that was given under Lord Lyndhurst's Act. What I want the Committee to realise is this—that the guilty persons:if indeed they may be called guilty, who have illegally married, are the ones who escape under the provisions of the Amendment, because if the Bill passed giving effect to the noble Earl's views, these persons would go through the form of marriage again, and so far as they are concerned they will be in a perfectly satisfactory position. In Scotland the marriage legitimises the children, so that the effect of the Amendment would be to make illegitimate only the English children of these marriages, which seems to me to be a ridiculous proposition. To hold as illegitimate the children of marriages which have been by law made legal would be to my mind a cruel thing, and therefore I ask the Committee not to accept the Amendment.

THE MARQUESS OF SALISBURY

said he was at a loss to understand how, even in their Lordships' House, which was very liberal in matters of order, the noble Lord who had just sat down could have thought it proper to introduce his interesting remarks with a quotation from Mr. Lecky's history, which had to do, if anything, with the whole subject, and nothing whatever specially to do with the Amendment before the Committee. He had a great respect, and so had all their Lordships, for anything which the late Mr. Lecky had written; but if it came to the quotation of eminent authorities in order to convince their Lordships of the soundness of a particular view, he was quite prepared to quote an authority quite as high as Mr. Lecky on the opposite side. He would not, however, follow the evil example in this one respect set by his noble friend. But in all the citations of the debates in their Lordships' House in the past upon this topic, there was one particular debate which noble Lords on the other side of the House had never referred to—the debate of 1886. The debate of that year was rendered illustrious by one of the most splendid examples of eloquence which had ever been delivered in their Lordships' House. On that occasion the late Duke of Argyll stated in perfectly moderate terms, but in language which he could not hope to emulate, the case against the Deceased Wife's Sister Bill, and noble Lords who had not read that speech had not only missed a brilliant example of British eloquence, but were without an adequate notion of the strength of the case which could be made against the Bill. But he would pass to the Amendment. The proposal in the Bill was that its provisions should have a retrospective effect, and that people who had broken the law should be relieved of the consequences of their action. That was going dangerously far. There was the provision in the Scottish law, to which the noble Lord the First Lord of the Admiralty had referred, that subsequent marriage legitimised the children. There was a great deal to be said for that law; he had always thought so. Their Lordships would see how unfair the provision in the Bill as it stood would be, because the legitimate children, who had every reason to suppose that they possessed all the privileges and rights of property which accrued to legitimacy, would have those privileges and rights infringed by the legitimisation of children born before them by an illegal marriage. They could not say to people who had already acquired rights that they must surrender those rights. Lord Shaftesbury had cited the case of the guardianship of illegitimate children. As everyone knew, the guardianship of an illegitimate child rested in the mother. Let them take the case—not, he would think, an uncommon case in matters of this kind —of a man who had contracted one of these marriages not leading a very reputable life, and afterwards going to the bad. The child was in the guardianship of its mother. But if the Bill passed in its present form the father would become the legitimate guardian of the child, and the mother would be ousted. That appeared to him to be a thing which ought not to be done. There might be cases in which young people, having made a marriage of this kind, had afterwards convinced themselves that it was wrong and had agreed to separate. This might have occurred twenty years ago. This Bill became an Act and, against their will, these two persons were made man and wife. That obviously was not a thing which Parliament ought to do. In the case where a man had married a deceased wife's sister, who afterwards died, and he married again, and had thus two families, one illegitimate and the other legitimate, his property, which at present would be divided amongst his legitimate family, would after the passing of this Bill, unamended as regards its retrospective effect, be divided amongst both families, unjustly to the legitimate family. Many more unjust results of thisex post facto legislation would be discovered no doubt hereafter. He protested against the encouragement which would thus be given to people to break laws. There was such a thing as illegal marriage with a deceased wife's niece or with a stepdaughter. A man who had gone through the form of marriage with his stepdaughter—he knew of such a case—could say in answer to remonstrance that he saw no harm in it, as there was no consanguinity, and would go on breaking the law in the sure and certain hope that some day or other Parliament would relieve him. People would go on making such marriages, and a man might sayAfterwards I shall go to the First Lord of the Admiralty, who with the assistance of the Lord Chancellor at the head of the English law, will introduce a Bill into Parliament to relieve me of the consequences of my act.

VISCOUNT HALIFAX

endorsed the arguments used by the noble Marquess. It would be quite impossible after passing this Bill to maintain the prohibition against marriages within any of the degrees of affinity. By giving the Act a retrospective action, Parliament would condone the action of those who in the past deliberately broke the law. It was perfectly well known that an agitation in favour of the Bill was promoted by certain rich people who had broken the law, and the Bill would place in the hands of those who had contracted marriages within other degrees of affinity a strong inducement to set going a similar agitation.

THE LORD CHANCELLOR (Lord LOREBURN)

My Lords, the point in this Amendment is really extremely short and circumscribed. It is not whether it is right or wrong to legalise these marriages, for that has been decided by the Second Reading of the Bill. It is a question whether or not the Bill should have operation retrospectively. Questions of rights and interests are fully dealt with in the second clause, and therefore no injustice is done by reason of property taking a different course from what it would otherwise take, and persons being deprived of property which they now hold. The second clause makes ample provision against that, and, if it is inadequately expressed, show us that it is inadequate and we will endeavour to make it adequate. The only question, therefore, for the Committee now to consider is whether there is anything wrong in making this Bill retrospective. Upon this point I invite the consideration of your Lordships to a concrete case. A man has married his deceased wife's sister, and has a family by her. What would be the result of passing the Bill with this Amendment and having no retrospective effect? The father and mother could go to a registry office the clay after the Bill became law and contract a perfectly valid marriage. Thereafter they would be perfectly free from blame, they would be man and wife according to law, they would be purged from any offence they had committed. But if the noble Earl's Amendment is accepted, the children, innocent of any offence, would remain subject to the stigma imposed upon them by the action of their parents, and yet from which those parents would be free. I am sure the noble Earl, who has advocated this Amendment as a matter of principle, will not contend that it is a good principle to be unmerciful to those who are blameless.

THE EARL OF ROSEBERY

I only intervene for the purpose of putting one point which has not been referred to. An objection to the Amendment is that if it passes there will be a limited number of these marriages contracted between 1835 and 1907 which alone will be invalid. All the marriages contracted before 1835 and those entered into after the passing of this Bill will be valid, but the marriages during the intervening seventy years will alone be invalid. Surely that would place the whole matter in a position of some ridicule.

* THE LORD BISHOP OF SALISBURY

spoke in support of the Amendment, and held that if the principle of the Bill were adopted the proper course would be to allow persons who had already contracted these unions to legalise them by a subsequent marriage, and to allow children already born to them to be legitimised by that subsequent marriage. He thought that it would be a very serious thing wholly to condone by an Act of the Legislature the action of those who in the past had deliberately broken the law, and that not unfrequently with the added circumstance of perjury.

THE MARQUESS OF SALISBURY

said he had profound pity for the children, and he would be very sorry if any words he had used had led anyone to a contrary opinion.

LORD LOREBURN

I never thought otherwise.

THE EARL OF SHAFTESBURY

said that, although he still held that there were many arguments in favour of the Amendment, he admitted, after listening to what had been said by noble Lords opposite and by the Lord Chancellor, that there was a good deal to be said against it. In the circumstances, he would not press the Amendment.

Amendment, by leave, withdrawn.

* THE LORD ARCHBISHOP OF CANTERBURY

moved to insert the word "other than a marriage hereafter contracted in England by solemnisation thereof by a clergyman in Holy Orders of the Church of England." He took the opportunity to say that he dissociated himself altogether from the wild and, in his judgment, improper words that had found their way into the Press on this subject, especially in an important letter published in yesterday'sTimes. He deeply deplored the use of phraseology that in his view could do nothing but harm. The Amendment he proposed he could not call his, for the words he asked their Lordships to put into the clause were takenverbatim et literatim from Bills as introduced again and again into Parliament and retained in those Bills when they passed through one House or the other. They had the effect of making these marriages civil marriages so far as the clergy of the Church of England were concerned; the clergy would not be able effectively to solemniss the marriage service for people within the prohibited degrees. The words were in the Bills which passed Second Reading in the House of Commons in 1901 and the five following years, and had for the first time disappeared from the present Bill. They were in the Bill which passed through all its stages in the House of Lords in 1896; and a similar provision, though not identical in terms, was in the Bills of 1883, 1884, 1885, 1886, 1889, and 1894. It could not, therefore, be said that the Amendment was now proposed by him in order unfairly to interpose a fresh difficulty. It would simplify matters by placing clergymen outside the Bill altogether. In the debate on Tuesday the repeated votes of the House of Commons were alleged by the Lord Chancellor and others to be conclusive as to the popular view in favour of the Bill. Though he (the Archbishop) had given reasons for qualifying that conclusion he admitted the strength of the argument. But let it be remembered that the assent was given to the Bill containing this very clause. Those who promoted the Bill in the past did right to include this provision. If the Act was to work smoothly, then let Parliament keep out of its compulsory or quasi-compulsory provisions the clergy, who, be it remembered, were under other obligations besides those they owed to the State. He would be the last to minimise those obligations to the State, but there were other and not less sacred obligations which they could not modify. Then, again, the example of our Colonies was cited, but, so far as the action of the clergy was affected, it was exactly the Colonial precedent which he asked the Committee to follow. It had been asserted that the clergy throughout the Colonies readily performed these marriage ceremonies, but those who made the assertion were absolutely mistaken. He held in his hand a copy of the present canons in force in South Africa, and in these the clergy were expressly directed to join in marriage no persons within the degrees of affinity laid down in the Prayer-book. In Canada also the table of affinity was adopted in the same way. It was, therefore, directly contrary to fact to say that in those Colonies—and so far as he knew it was the same in other Colonies—the clergy were kept wholly outside of the solemnisation of such unions. All he asked was that in this country the clergy should have the same position, that they should be absolutely free from any complicity in these marriages. If the Bill became law, his earnest desire was that it should work without needless friction or strife, and, greatly as he disapproved of the change, he would do his best, so far as the legal rights of citizens were concerned, to make it work smoothly. But to enable him to do that he asked their Lordships to put the clergy, who were in a position of extreme difficulty, outside the provisions of the Bill altogether. It would be urged that, under the provisions of the Bill, the clergyman might perform the marriage or not, as he liked; and therefore that there was no compulsion in the Bill. But under the Bill as it stood the clergyman of the parish must lend his church for the marriage if he were asked to do so by the parties supposing that they could find another clergyman to marry them. That meant that the clergyman of the parish must perforce hand over the church, which had been solemnly committed to his care, for a ceremony to which he was opposed, must proclaim the banns beforehand, must make arrangements for the marriage, must see that it was registered as a duly solemnised Church marriage; and thereby he became a contributory party to a Proceeding which he conscientiously felt to be wrong. He assured their Lordships that there were many clergymen who would simply not do it. He was not criticising them or belauding them. It was riot necessary for the purpose of his argument to say whether they were right or wrong. He was but telling their Lordships that there were scores of clergymen—to put it mildly—who would certainly not do it, who would say that to do it would be contrary to what they had solemnly undertaken, and who, rather than violate their consciences, would be driven to resign their benefices, or, failing that, in the last resort to go to prison. Then it was urged, If that be so, the better arrangement would be to make it optional to the clergyman whether or not he will lend his church. There can at least, it was said, be no compulsion then. No, but there would be a very real harm and danger in throwing upon the individual parish clergy the responsibility of making such choice. Lord Dunraven in introducing, in 1896, the Bill which passed through that House, had eloquently shown how unfair it would be to the clergy to lay upon them the responsibility of refusal or assent. He therefore begged their Lordships to relieve the clergy from a difficulty which they neither desired nor were in many cases qualified to meet in any effective way. For, be it remembered that, in country parishes, the difficulty was one which would press hardly on young and inexperienced clergymen and possibly even on young curates in charge of parishes in the absence of the incumbents. He was impressed by the words which were spoken on Tuesday last by the First Lord of the Admiralty in moving the Second Reading of the Bill. The noble Lord then said— The Government, in making themselves responsible for this Bill, were actuated by no spirit of hostility towards any form of religious conviction, and had no desire to do violence to any conscientious scruples. All they asked was that those men and women who did not share such scruples, or accept the premises on which they were based, should be permitted to obtain the sanction of the civil law for a union which conflicted neither with their own moral and religious code nor with the general feeling of modern Europe, of the United States, or our Colonies. He welcomed those words, and he felt perfectly char that if they were going to give effect to them they must adopt the Amendment. His noble and learned friend Lord James of Hereford, in the eloquent speech he delivered the other day, called attention to the danger under which they would lie in England if on a large scale, or even a small scale, they placed men under what he described as clerical dominance. He fully shared that view and did not wish to see any clerical domination or autocracy Let them place the clergymen outside the Bill, leave these marriages to the civil law, and these difficulties would disappear. In anticipation of the Bill, he had written to South Africa inquiring whether any trouble arose there from the clergy being prohibited from performing these marriages, and the reply was that the situation of the clergy was recognised that they were well known to be prohibited from officiating in such cases, and that the parties were satisfied with a civil marriage. That was the position also in the island of Jersey, where these marriages were legal but where the clergy refused to perform them. He appealed to their Lordships to accept his Amendment, for it was only by passing it that the measure could be made to work harmoniously through the country at large for the benefit of those who, disregarding, as they were entitled in a free country to do, the rules of the Church of England, wished to take advantage of the civil law's permission to contract such unions.

Amendment moved— In page 1, line 6, after the word 'without' to insert the words 'other than a marriage hereafter contracted in England by solemnisation thereof by a clergyman in Holy Orders of the Church of England.' —(The Lord Archbishop of Canterbury.)

LORD TWEEDMOUTH

My Lords, I am afraid that I shall once more come under the ban of the noble Marquess, Lord Salisbury, for being a disorderly person, but I think that if the Committee will allow me to be so I shall really assist the business to-day. The Amendments on the Paper in the names of the most rev. Primate and the Marquess of Salisbury are all driving at the same aim—to secure the position of the Church of England and its clergy. I think I had better say what I am going to ask the Committee to agree to with regard to the Amendments on the Paper, and then deal with the special Amendment which the most rev. Primate has just moved. I cannot accept the Amendment of the most rev. Primate now before your Lordships; but as to the others, I am quite ready to accept them, though not absolutely, for I must preserve to myself the right to make verbal Amendments to them should it appear necessary on consideration before Report. With that reservation I am quite prepared to see the other Amendments put into the Bill. With regard to the Amendment standing in the name of the Marquess of Salisbury, who proposes to leave out the whole of the second paragraph of Clause 1, I should prefer that the paragraph was retained, but that in cases where the clergyman refuses to perform the service the granting of permission to any clergyman to use the church should be made optional instead of obligatory, by the substitution of the word "may" for "shall." The paragraph would then read— Provided also that when any minister of any church or chapel of the Church of England shall refuse to perform such marriage service between any persons who, but for such refusal, would be entitled to have the same service performed in such church or chapel, such minister may permit any other clergyman in holy orders in the Church of England, entitled to officiate within the diocese in which such church or chapel is situate, to perform such marriage service in such church or chapel. It is perfectly true that we are most anxious to respect the conscientious scruples of all ministers of religion of all denominations throughout the country, and to make this Bill, so far as they are concerned, as agreeable and easy to them as it is possible to make it. But when I come to the terms of the Amendment that has just been moved by the most rev. Primate I see very great difficulties indeed. It is true, as the most rev. Primate stated, that it has appeared in other Bills which have been brought before the Houses of Parliament in former years. But I think myself it ought not to have been in them. At any rate, I am not responsible for the Bills that have been introduced in previous sessions, whereas I am responsible for the Bill of which I now have charge. What does this proposal of the most rev. Primate involve? It would absolutely prohibit every single clergyman of the Church of England from solemnising those marriages; in fact, the Church is asking that it should receive a new power over and above the ecclesiastical law. The Church of England can make what laws it likes for its own clergy and its own servants, but I say it has not the right to call in the Statute law to back it up. The Church must enforce its own laws. What would be the result if this Amendment were adopted? The result would be that a marriage with a deceased wife's sister could be solemnised and valid by every minister of religion throughout the Kingdom except the clergy of the Church of England. Such a marriage would be civilly legal, but if a minister of the Church of England solemnised it it would be invalid. That is an extraordinary position for the Established Church to take up. And if a clergyman committed a breach of discipline, and solemnised such a marriage, the punishment for that breach would fall on the people who were going to be married. Therefore, I say that if the Committee accept the most rev. Primate's Amendment they will be introducing an absolute novelty into our law, and we shall be creating a new difference between ministers of religion of different denominations which surely is not desirable.

* THE LORD ARCHBISHOP OF CANTERBURY

Will the noble Lord explain to us what he meant when he said the Church was perfectly at liberty to act so as to protect herself absolutely? Other bodies are in a position to make any rules or provision they like, for their own protection. The power of the Church of England to do so is restricted: hence this Amendment.

LORD TWEEDMOUTH

What I impressed on the Committee was this, that with regard to this particular question the Church can make what rules it likes. What I say is that it is fair that each individual clergyman should be able to choose for himself whether he will solemnise such marriages. There ought to be perfect freedom to individual clergy- men in the matter. Such marriages are in future to be sanctioned by the law of the country, and it seems to me that to say that individuals should be estopped from carrying out the laws of the land is a mistake and undesirable.

* VISCOUNT ST. ALDWYN

said the description of the position of the clergy given by the noble Lord might be an admirable description of the position of the Congregational Church, but it was not a description of the position of the clergy of the Church of England. He understood that the clergy were bound by the canon law, which stated that these marriages were contrary to the law of God.

LORD TWEEDMOUTH

No.

* THE LORD ARCHBISHOP OF CANTERBURY

I referred specifically to the canon of 1603. The mere term "canon law" is a large and vague phrase which cannot suitably be used in this connection.

* VISCOUNT ST. ALDWYN

said the clergy had undertaken to obey the canon and the canon stated that these marriages were contrary to the law of God. It was asked that the clergy should be free to disobey the canons, and the Bill proposed that a clergyman must lend the Church of which he was the trustee for the solemnisation or these marriages, and the announcement of banns. To his mind, that was a most unfair position in which to put the clergy, and it was absolutely unnecessary. Throughout, the contention of the promoters of the Bill had been that these marriages should be made legal. If the Bill passed that object would be secured, and by a registrar such marriages would be legal, and the children would be legitimate. Was that not enough? He hoped the measure would not leave that House before the consciences and rights of the clergy were completely safeguarded. It was not right that Parliament, in striving to do justice to those who desired this change in the law, should do injustice to others.

* LORD STANLEY OF ALDERLEY

said the effect of the series of Amendments which the most rev. Primate had put down would be to prohibit the use or the fabrics of Churches for services in any way connected with the solemnisation of these marriages. The most rev. Primate had gone a long way beyond merely safeguarding the feelings and consciences of those clergy who considered these marriages sinful; he proposed also to prohibit those clergy who had no objection whatever to these marriages from taking any part in their solemnisation. The most rev. Primate was evidently prepared to take away from the clergy the liberty and rights of British citizens, and to prohibit them from solemnising marriages which it was lawful for all other ministers in the county to solemnise. The canon of 1603 only applied, he believed, to the province of Canterbury, and not to the province of York.

* THE LORD ARCHBISHOP OF CANTERBURY

The noble Lord is quite mistaken.

* LORD STANLEY OF ALDERLEY

I await correction.

* THE LORD ARCHBISHOP OF CANTERBURY

said the noble Lord had evidently been studying Church history, but had stopped at the bottom of one page of the book and had not turned over to the next. There were one or two years when the canon was binding on the Province of Canterbury alone, but this was due to a sort of accident, and, when the facts were made clear, King James immediately issued new "Letters of Business" to the Northern Convocation. That body met, agreed to the canons, and forthwith they became operative in the Province of York. The noble Lord would find their actual signatures recorded in Wilkins'Concilia.

* LORD STANLEY OF ALDERLEY

said he had not referred to any book at all, but before he made his statement had consulted a Prelate in the Province of York.

THE LORD BISHOP OF WAKEFIELD

said he was very sorry he had misled the noble Lord. He only went as far as to say that he believed it was the case, but would deprecate using any authoritative expression.

* LORD STANLEY OF ALDERLEY

said that even if the canon was binding throughout the whole of the kingdom, it could not be binding if repugnant to the statutes of the realm. As the law of the land was changed from time to time, these ecclesiastical canons had to give way. By the 25th of Henry VIII., Chapter 19, if was enacted that the canons were only valid in so far as they did not clash with the law of the land. and as the law was changed from time to time the canons had to give way. Indeed, many canons had been set aside, though he was not aware that they had been repealed. The first, he thought, of the canons of 1603 required every clergyman four times a year to preach a sermon on the supremacy of the King. He would like to know how many clergymen did that. He was sure that many clergymen would distinctly dislike preaching such sermons. He noticed that several right rev. Prelates cheered the statement that as these marriages were against the law of God clergymen could hardly be expected to acquiesce in them. He agreed that if particular clergymen had this conscientious objection Parliament ought to be very indulgent and give them relief; but the right rev. Primate's Amendment went too far. So long as the Church of England remained established, it must be subject to the law in a way no other Church was subject. Every step which the Church took to relieve itself of its obligations under the law was a step towards disestablishment.

THE LORD CHANCELLOR

I desire to say a few words to the Committee upon the most rev. Primate's Amendment. but I find myself in this peculiar position. I agree with nearly every premiss stated by the most rev. Primate and with every premiss stated by the noble Viscount, Lord St. Aldwyn, but I cannot see how they lead up to the Amendment. It is, I agree, necessary and just to give every protection to the consciences of the clergy, and I do not wish to compel them to do anything that would lead to ecclesiastical censure under the canons of the Church to which they have subscribed. The Government have intimated, through my noble friend the First Lord of the Admiralty, that they are ready to accept a subsequent Amendment, standing in the name of the most rev. Primate, providing that no clergyman of the Church of England shall be liable to any suit, penalty, or censure— For anything done or omitted to be done in the performance of the duties of his office to which suit, penalty, or censure he would not have been liable if this Act had not been passed. If such a provision were adopted no clergyman's conscience need be violated. Should further words be necessary however, for the purpose of protecting the conscience of the clergyman, let them be inserted. The right rev. Primate has a new clause on the Paper to the effect that nothing in this Act shall relieve a clergyman in Holy Orders of the Church of England from ecclesiastical censure by reason of his contracting such a marriage. I accept all that. But the Amendment now before the House is to this effect, that whereas the Bill provides that no marriage between a man and his deceased wife's sister shall be deemed void or voidable, as a civil contract, by reason only of such affinity, this enactment shall not apply to such marriages contracted hereafter in England if solemnised by a clergyman of the Church of England. That is the Amendment. It means that members of the Church of England who find a clergyman of the Church of England willing to marry them are not to be considered as married persons. The marriage is to be vitiated. No harm is done to the clergyman; the persons harmed are those who supposed they were entitled to have the familial marriage ceremony of the Church of England. That, my Lords, is the only effect of the Amendment. How car any principle of toleration or liberty be invoked in favour of such a proposal?

VISCOUNT HALIFAX

said there were other persons than the clergy who had conscientious scruples in this matter. The Bill would compel the laity in the various churches to listen to the putting, up of banns for marriages which the canons of the Church of England declared to be contrary to the law of God. Th noble Lord in charge of the Bill had told the Committee that the Church of England must be allowed, like any other religious community, to make her own rules, but in the very next breath he said that the clergy were to be free to disregard those rules as they liked. That was professing to give liberty with one hand and withdrawing it with the other.

THE EARL OF ROSEBERY

I wish to ask two questions on this Amendment. I am no great enthusiast on this question either way, but I am anxious to clear up this particular matter. I wish to ask the most rev. Primate whether the clergy of the Church of England will be enabled, if his Amendment be passed, to solemnise the religious service in their church after the civil ceremony has been performed?

* THE LORD ARCHBISHOP OF CANTERBURY

There is a, provision in the "Civil Marriages" Act of 1836 which provides that any persons who have been so married by the registrar, and desire subsequently to have a religious ceremony, may, if the clergyman consents, go through the form of the religious service. That, however, is not to be the marriage. The marriage is to be reckoned from the time of its celebration in the registry office. I am not advocating that the clergy should adopt that course, lest I should seem to be saying that I thought that the proper procedure was for the clergy to do the thing in that informal way when prohibited from solemnising the marriage formally.

THE EARL OF ROSEBERY

That seems to me to be a practical point. I myself am under the belief that that is the best form of marriage throughout the State. I believe that marriages should be civil marriages first for the convenience of the register, and that the Church to which the married people belong should afterwards give them its blessing. Therefore on that point alone I should be rather disposed to vote for the Amendment of the most rev. Primate as a step in that direction, and as also removing a possible cause of offence to the tenderest conscience of any clergyman of the Church of England. I now come to my second question. It appears that the Amendment of the most rev. Primate—I do not state this on my own authority, it is stated on both sides—did appear in nearly every Bill that has been introduced on this subject.

* THE LORD ARCHBISHOP OF CANTERBURY

I did not say quite that. It has appearedverbatim et literatim seven or eight times, and has on several other occasions been suggested in different words.

THE EARL OF ROSEBERY

At any rate, it has appeared in many previous Bills, and there must have been some reason for its introduction. My noble friend the First Lord of the Admiralty says now—quite properly—that he is responsible for this Bill, and, not agreeing with that provision, has dropped it. But why was it put in in seven previous Bills? I would like to know the history of the abandonment of those words before I can consent to vote for the Bill as it stands at present.

LORD TWEEDMOUTH

We have considered this question very closely indeed, and it seemed to us that it was not desirable to accept this Amendment because it would contravene the statute law of England and give a new power to ecclesiastical law.

LORD JAMES OF HEREFORD

said, with regard to Lord Rosebery's second question, it would be difficult to trace the framing of any of these Bills. They had been in the hands of a great many private Members, but a Bill legalising marriage with a deceased wife's sister had never before been taken up by the Government. His Majesty's Government could hardly be held responsible for the views of private Members who had introduced these Bills on previous occasions. Those who took the greatest interest in this question were desirous to do nothing which would offend the consciences of the clergy, and they had said that no clergyman should be compelled to celebrate any one of these marriages. But there were a vast number of clergymen who wished to see the present law altered and who were willing and anxious to celebrate these marriages. The Amendment would forbid them. The persons desirous of contracting a marriage of this kind might wish it solemnised in the parish church in which their ancestors had been married, and it astonished him that it should be argued that these people should be driven to the registry office against their will. These marriages were either right or wrong; if right, surely they ought to be solemnised in a sacred building, and if wrong, they ought not to be allowed at all. The most. rev. Primate had stated that these marriages were not celebrated in the Colonies by clergymen of the Church of England.

* THE LORD ARCHBISHOP OF CANTERBURY

I did not say that I had precise knowledge as to every Colony. I have no reason to doubt the general adoption of the rule, but I have not made exhaustive inquiries.

LORD JAMES OF HEREFORD

said that in the great majority of the Colonies, now seventeen in number, where these marriages were allowed by law, he was informed on very good authority that they were willingly celebrated by clergymen of the Church of England. In Canada it was so.

* THE LORD ARCHBISHOP of CANTERBURY

said he had referred to the canon or rule laid down by the Church in Canada, which prohibited clergymen from celebrating these marriages.

LORD JAMES OF HEREFORD

said the canon referred to, no doubt, what existed in Canada, but the clergy there took the right and legal view that where the canon law did not conform to the law of the State, then the law of the State prevailed, and they were bound to obey it. That was laid down in the judgment of Lord Hardwicke. It was not a question what the canon was, but what the clergy did; and the clergy in Canada and other Colonies willingly celebrated these marriages. We had had many statutes similar to this Bill sent over from the various Colonies, but in none of these Acts did the clergy in the Colonies ask for the protection which by this Amendment the most rev. Primate was asking for the Church of England in this country. He had only one other point to put, and it was this—a man was anxious to have a marriage of this kind celebrated with a religious ceremony. He would know, if this Amendment was carried, that it could not be done according to the rites of the Church of England, but that it could be performed in the Roman Catholic Church, and in the places of worship of Nonconformist bodies. Did they not think such a man was more likely to go where he could get his marriage celebrated than to follow his creed? It seemed to him that the Amendment was more likely to produce deserters from the Church of England than recruits to it.

THE LORD BISHOP OF BATH AND WELLS

said he had been a bishop in Australia for twelve years, and it might interest the noble and learned Lord who had just sat down to know what his experience in this matter had been. The law of the land recognised, perhaps he might almost say encouraged, such marriages, but he only knew of two applications made to clergymen to solemnise marriages of this kind, and in neither case did the clergymen comply.

THE LORD BISHOP OF SOUTHWARK

said that if the view of Lord Stanley of Alderley was adopted it would follow that whenever Parliament made any change in the statute law, in matters of this kind, the law of the Church would be changed. They were not living in the times of Henry VIII., and he would be greatly surprised if any but a very small number of Members of the House, accepting the modern principle of liberty of conviction, were to think that any spiritual body, be it the Church of England or any other, could prolong its existence on such terms as these. Another point was this. It seemed to him perfectly clear that the plan on which the First Lord of the Admiralty was proceeding was that of pure individualism. The notion that the individual parson was an officer of the Church to which he owed loyalty and allegiance was altogether absent. Would any Nonconformist body tolerate the view that what was to be done in their name was to depend entirely on an individual officer? There must be a corporate conviction and a corporate conscience in all religious bodies. In all other bodies an officer who did not act in common with the corporate conviction could be brought to book. Was it reasonable that the Church of England should be the only body put in an inferior position in that matter? Then the wishes and convictions of the congregation had also to be considered. There was nothing in the Church of England at this time which was causing more anxiety than the bearing of the divorce laws on its internal economy. If a parson was found, and he was glad to say he was seldom found, who would marry divorced persons in his church, it was an offence to the congregation which could not be exaggerated. Did their Lordships wish to extend the area of friction and to increase the number of cases in which that kind of harm was done in the Church of England? He had confidence in their Lordships' judgment, and he felt that they would decide that the Church ought to be so treated in the Bill as to free her from these dangers.

* THE LORD PRESIDENT OF THE COUNCIL (The Earl of CREWE)

I wish to call your Lordships' attention to the first of the two questions which were put to the most rev. Primate by my noble friend Lord Rosebery. My noble friend asked whether it was not possible that the actual marriage ceremony might take place civilly and be followed by a religious service in the Church. The most rev. Primate, in a passage which I confess impressed me considerably, has drawn attention to the hardship which might be placed upon a young and inexperienced clergyman by leaving him an option whether the ceremony should or should not be performed in his church; but it seems to me that the value of that argument disappears in view of the answer which was given to Lord Rosebery by the most rev. Primate, because the young and inexperienced clergyman will still be left with this painful option whether or not he is to lend his church for a religious ceremony after the civil ceremony. That seems to me also to dispose of the argument used by the right rev. Prelate who has just sat down, in which he combatted the notion that any individual choice was to be left to the clergyman. That particular individual choice—and this service, I suppose, must be not less painful to those who object to these marriages than the actual binding ceremony—is apparently left to the clergyman to exercise, and under these circumstances I confess I do not see that the Amendment of the most rev. Primate would, if carried, meet the case which he considers to be one of hardship.

* THE MARQUESS OF LANSDOWNE

My Lords, if I venture to add only half a dozen words to this debate I do so with very considerable diffidence, but I feel that it would be almost cowardly to give a silent vote on an occasion like this. I have always been a supporter of this Bill; my support of it in this House extends back to a remoter period than that at which most of the noble Lords I am addressing entered this House. I have supported it on its merits, and also because, in my view, it had this great recommendation, that it was likely to bring to a close a very bitter and invidious controversy. I understand the argument of the most rev. Primate to be this, that if by the Bill as it now stands we get rid of one source of friction and controversy we are likely unless we amend it to produce another and a more serious one within the ranks of the Church. I am bound to say that, if I regard the Bill as it now stands, I am constrained to admit the force of that argument. The Bill, as it now stands, compels a clergyman, whether he likes it or not—

LORD TWEEDMOUTH

No.

* THE MARQUESS OF LANSDOWNE

The Bill, as I understand it, compels the clergyman to lend his church.

LORD TWEEDMOUTH

All that is proposed is that he may permit the use of his church. I have explained that I propose to substitute the word "may" for the word "shall" as it stands in the Bill.

* THE MARQUESS OF LANSDOWNE

Quite so. I am taking the Bill as it now stands. The Bill on the Table says that the minister who refuses to perform the marriage himself— Shall permit any other clergyman in Holy Orders in the Church of England entitled to officiate within the diocese in which such church or chapel is situate to perform such marriage, service in such church or chapel. That is the text of the Bill as it now stands. I think that goes too far, and therefore I should not be content to support that provision as I find it. Then I come to the remedy proposed by the most rev. Primate. If he will allow me to say so, I think his remedy goes rather too far in the other direction. As I interpret his proposal, it would have this result—that these marriages, if contracted in England and solemnised by a clergyman in Holy Orders of the Church of England, would be void or voidable as a civil contract. That seems to me to be a somewhat violent proposition. The effect of the most rev. Primate's proposal would also, I understand, be that it would not be possible for any clergyman to permit the use of his church for the publication of the banns of marriage or for other similar purposes on such occasions. In short, it comes to this, that the Amendment would relegate the parties to the Registrar's office. I think that is the real effect of it. That seems to me to go beyond the necessities of the case. We have now proposed to render these marriages legal; but I am sure it is within the knowledge of many of your Lordships that to many people, particularly to people in a humble position of life, it makes the whole difference whether the marriage is accompanied by a religious ceremony in the church, or whether it is performed outside the walls of a consecrated building. I cannot but think that this House would take a very serious responsibility on itself in banishing those who wish to contract these marriages to the registrar's office. I am therefore disposed to look with favour on the proposal of the First Lord of the Admiralty to deal with this question by an Amendment of the proviso in Clause 1, an Amendment which would leave it optional to the minister to permit the use of his church for a marriage of this kind. And when I say that, I trust the most rev. Primate will not think that I underrate the force of the argument which he used when he told the House that he saw great objections to making this question a matter for the discretion of individual clergymen; but to me it seems that this would be the lesser evil of the two. If a clegyman is honestly willing that one of these marriages should take place in his church, I cannot see why the Statute Law should step in and forbid him from permitting it. The most rev. Primate suggested that in his view it would be better that the clergy should stand outside this Bill altogether. Is it too much to suggest that an individual clergyman should stand aside and allow his churchpro hac vice to be used by another clergyman for the purpose of solemnising a marriage of this kind? I took note, as the Lord President did, of the very remarkable statement made by the most rev. Primate to the effect that there is now nothing to prevent a clergyman, after the performance of the civil ceremony in the registrar's office, from reading a divine service of some kind in church, and thereby giving, as it were, a sort of —shall I say—sanction, or benediction to a marriage with a deceased wife's sister. Surely, if there is nothing abhorrent in the idea of a service of this kind being performed within the church by the incumbent himself, it cannot be so utterly abhorrent that in the absence of the incumbent the ceremony should be performed by some other clergyman who is willing to perform it. The right rev. Prelate who spoke last from that Bench asked us to bear in mind the feelings of the congregation. But surely if a congregation are thin-skinned upon matters of this kind the members of it would be as much affronted if there was to be a service, no matter what you call it, by their clergyman, performed over a couple who had contracted one of these marriages and been married at the registrar's office, as if the marriage service were to be performed, with the full approval of their own clergyman, by some other clergyman willing to come forward and perform the service within the walls of the church. For these reasons I shall vote for the proposal of His Majesty's Government when we come to the proviso and against the Amendment of the most rev. Primate.

LORD TWEEDMOUTH

I wish to apologise to the noble Marquess for having too previously interrupted him in his speech. I was pleased to hear that speech, for it represents very largely the views I have been endeavouring to explain to the House. As to what was said by the right rev. Prelate the Bishop of Southwark, I wish to say that I do not for one moment desire to put clergymen of the Church of England in a different position from those of any other church. On the contrary,my object is to keep them on the same level. What I complain of in the most rev. Primate's Amendment is that he is calling in the Statute Law to put the Church of England in a different position from that of any other religious denomination in the kingdom.

* THE LORD ARCHBISHOP OF CANTERBURY

said that the distinction between the informal and devotional reading of a service and the formal celebration of a marriage in church was that the latter involved a great deal more than the mere reading of the service. It involved registration, the publication of the banns, and the other preliminaries which involved in most cases the cooperation of the ministers of two churches. He did not in any way advocate the use of the particular service to which Lord Rosebery had referred. He did not think it would be used in connexion with marriages of this sort, but he could not deny that such a possibility did exist. The noble Lord denied that the Bill was making a distinction between one church and another; but the Church of England was being placed at a real disadvantage, and he contended that they should be able to defend themselves corporately as well as individually, by making it practically impossible for their ministers to solemnise a marriage which was condemned by the rulers of their Church.

THE MARQUESS OF SALISBURY

could not give a silent vote which was to be in the teeth of the one above all others whom it had been his privilege and delight to follow. On this occasion he was unable to follow his noble friend Lord Lansdowne. He could not believe that their Lordships realised how impossible a situation they would put the Church into if they said that there should be a want of correspondence between that which was suggested by the Bill and the law by which they themselves were governed. The Bill as the noble Lord proposed to amend it would provide that a clergyman might do that which was forbidden by the regulations of the Church. He was in an entirely different position from that of a Nonconformist minister. It was contrary to the law of the Church that a clergyman should do what seemed right in his own eyes. The Church of England should not be reduced to the position of the Congregationalist community, each congregation making rules for itself. That was not the view

of the Church of England; its members desired to be governed by one rule, and for a clergyman to except himself from the rule would not be acceptable to members. The responsibility should not be thrown upon the individual clergyman; he was entitled to the protection of the law in obeying the guidance of his Church. He earnestly entreated their Lordships to support the Amendment.

On Question, "That those words be there inserted,"

their Lordships divided: —Contents, 65; Not-Contents, 108.

CONTENTS.
Canterbury, L. Abp.	Bangor, L. Bp.	Gage, L. (V. Gage.)
	Bath and Wells, L. Bp.	Hatherton, L.
Newcastle, D.	Birmingham, L. Bp.	Hylton, L.
Northumberland, D.	Chester, L. Bp.	Kensington, L.
	Exeter, L. Bp.	Kenyon, L.
Ailesbury, M.	Lichfield, L. Bp.	Kesteven, L.
Salisbury, M. [Teller.]	Liverpool, Bp.	Langford, L.
Zetland, M.	London, L. Bp.	Meldrum, L. (M. Huntley.)
	Norwich, L. Bp.	Middleton, L.
Carnwath, E.	Oxford, L. Bp.	Mowbray, L.
Doncaster, E. (D. Buccleuch and Queensberry.)]	St, Asaph, L. Bp.	North, L.
Feversham, E.	Salisbury, L. Bp.	Robertson, L.
Harrowby, E.	Southwark, L. Bp.	Sanderson, L.
Lauderdale, E.	Wakefield, L. Bp.	Scaton, L.
Mount Edgcumbe, E.	Winchester, L. Bp.	Sinclair, L.
Munster, E.		Somerhill, H. (M. Clan[...]icarde.)
Nelson, E.	Addington, L.	Stalbridge, L.
Shaftesbury, E. [Teller.]	Alington, L.	Stanmore, L.
Waldegrave, E.	Armstrong, L.	Stewart of Garlies, L. (E. Galloway.)
	Balfour, L.	Teynham, L.
Goschen, V.	Clifford of Chudleigh, L.	Waleran, L.
Halifax, V.	Colchester, L.
Hill, V.	Estcourt. L.
St Aldwyn, V.	Fermanagh. L. (E. Erne.)
	Forester, L.
NOT-CONTENTS.
Loreburn, L. (L. Chancellor.	Dartrey, E.	Hood, V.
	Devon, E.	Hutchinson, V. (E. Donoughmore.)
Crewe, E. (L. President.)	Hardwicke, E.	Milner, V.
	Ilchester, E.	Templetown, V.
Ripon, M. (L. Privy.Seal.)	Jersey, E.
	Kimberley, E.	Abinger, L.
Argyll, D.	Londesborogh, E.	Airedale, L.
Bedford, D.	Morley, E.	Allendale, L.
Richmond and Gordon, D.	Morton, E.	Ardilaun, L.
Wellington, D.	Northesk, E.	Ashbourne, L.
	Onslow, E.	Barnard, L.
Camden, M.	Radnor, E.	Barrymore, L.
Hertford, M.	Scarbrough, E.	Belhaven and Stenton, L.
Lansdowne, M.	Stanhope, E	Blyth, L.
	Vane, E. (M. Londonderry.)	Boyle, L. (E. Cork and Orrery.)
Camperdown, E.	Verulam, E.	Calthorpe, L.
Carlisle, E.	Wharncliffe, E.	Cheylesmore, L.
Carring on, E.		Clonbrock, L.
Cawdor, E.	Althorp, V. (L. Chamberlain.)	Cloncurry, L.
Clarendon, E.	Churchill, V.	Colebrooke, L.
Cowley, E.	Hampden, V.
Craven, E.
Courtney of Penwith, L	Haversham, L.	O'Hagan, L.
Dawnay, L. (V. Downe.)	Headley, L.	Oriel, L. (V. Massereene.)
Denman, L. [Teller.]	Hemphill, L.	Ramsay, L. (E. Dalhousie.)
Digby, L.	Herschell, L.	Ranfurly, L. (E. Ranfurly.)
Dormer, L.	James, L.	Rathmore, L.
Dunalley, L.	Kilmaine, L.	Ritchie of Dundee, L.
Dunboyne, L.	Kilmarnock, L. (E. Erroll.)	Stanley of Alderley, L.
Dunleath, L.	Kinnaird, L.	Sudley, L. (E. Arran.)
Eilgin, L. (E. Elgin and Kincardine.)	Kintore, L. (E. Kintore.)	Talbot de Malahide, L.
Ellenborough, L.	Lamington, L.	Templemore, L.
Elphinstone, L.	Lawrence, L.	Tweedmouth, L.
Eversley, L.	Leith of Fyvie, L.	Tyrone,.L. (M. Waterford.)
Farrer, L.	Lurgan, L.	Ventry, L.
Fingall, L. (E. Fingall.)	Manners, L.	Weardale, L.
Fitzmauriee, L.	Massey, L.	Welby, L.
Glantawe, L.	Konk Bretton, L.	Wemyss, L. (E. Wemyss.)
Granard,L.(E.Granard.)[Teller]	Monteagle of Brandon, L.	Wynford, L.
	Muskerry, L.

On Question, Motion agreed to.

VISCOUNT HALIFAX,

who had the following proviso on the Paper— Provided always that nothing in this Act shall be held in any way to affect the existing marriage law of the Church of England. the Established Church of Scotland, the Roman Catholic Church, or that of any other religious body, said that this Amendment was put down for the purpose of bringing the Bill into harmony with the declarations of the First Lord of the Admiralty in his speech in moving the Second Reading of the Bill. Its object was to prevent the law of the Church of England being affected by a side-wind; but an Amendment of which the most rev. Primate had given notice covered the whole ground, and therefore he would not move his Amendment.

THE LORD ARCHBISHOP OF CANTERBURY

moved the omission of the words "compelled to solemnise the marriage of any man with his deceased wife's sister or shall be." He understood that the noble Lord in charge of the Bill would accept this Amendment.

Amendment moved— In page 1, lines 10 and 11, to leave out the words compelled to solemnise the marriage of any man with his deceased wife's sister or shall be.'—(The Lord Archbishop of Canterbury.)

LORD TWEEDMOUTH

said he was prepared to accept this Amendment and also the remaining Amendment standing in the name of the most rev. Primate.

On Question, Amendment agreed to.

THE LORD ARCHBISHOP OF CANTERBURY

moved the insertion of words providing that no clergyman should be liable for "anything done or omitted to be done by him in the performance of the duties of his office to which suit, penalty, or censure he would not have been liable if this Act had not been passed."

Amendment moved— In page 1, line 12, to leave out from the word 'for' to the word 'provided' in line 22, and to insert the words 'anything done or omitted to be done by him in the performance of the duties of his office to which suit, penalty or censure he would not have been liable if this Act had not been passed.'—(The Lord Archbishop of Canterbury.)

On Question, Amendment agreed to.

THE MARQUESS of SALISBURY,

who had given notice of an Amendment to leave out the whole of the second paragraph of Clause 1 which had been read to the House earlier in the evening by the First Lord of the Admiralty,said that after the decision at which the Committee had just arrived he would not move his Amendment, but would be satisfied with the substitution of the word "may" for "shall."

LORD TWEEDMOUTH

then moved his promised Amendment to leave it optional with the minister of any church or chapel of the Church of England, who refused to perform the marriage service himself, to allow it to be celebrated in the church or chapel by another clergyman of the Church of England entitled to officiate within the diocese.

Amendment moved— In page 1, line 18, to leave out the word 'shall' and to insert the word 'may.'—(Lord Tweedmouth.)

LORD BALFOUR OF BURLEIGH

moved to amend the last paragraph of Clause 1— Provided that in case, before the passing of this Act, any such marriage shall have been annulled, or either party thereto (after the marriage and during the life of the other) shall have lawfully married another, it shall be deemed to have become and to be void upon and after the day upon which it was so annulled, or upon which either party thereto lawfully married another as aforesaid, by inserting, after the first "annulled,' the words "or proceedings for the dissolution of such marriage shall have been commenced." This Amendment seemed to him to tell its own tale and to be obviously right. If proceedings had been commenced for the dissolution of such marriage it was clear that the parties did not want to have their marriage made irrevocable, and they should not be made into married persons against their will.

Amendment moved— In page 1, line 23, after the word 'annulled' to insert the words or proceedings for the dissolution of such marriage shall have been com: menced.'—(Lord Balfour of Burleigh.)

LORD TWEEDMOUTH

I do not quite understand the object of the insertion of these words.

LORD STANMORE

said he took the object to be this, that if certain persons had married illegally knowing that it was illegal and wishing not to avoid the consequences of the illegality, it was hard upon them to force them into a legal marriage which they did not wish.

THE MARQUESS OF SALISBURY

said that the words in the Amendment might not be absolutely accurate, but it was clear that there was a case which ought to be met. There were cases where the parties were intent on annulling the marriage and had actually taken the preliminary steps to that end, and it was very hard that an Act of Parliament should interfere and declare them to be married whether they liked it or not.

LORD TWEEDMOUTH

I will consent to the words being put in now, subject to reconsideration on Report.

On Question, Amendment agreed to.

THE DUKE OF NORTHUMBERLAND

moved further to amend the same paragraph by inserting, after the last "annulled," the words "or upon which proceedings for the dissolution of such marriage shall have been commenced." This was, he explained, consequential upon Lord Balfour's Amendment.

Amendment moved— In page 1, line 26, after the word 'annulled' to insert the words 'or upon which proceedings for the dissolution of such marriage shall have been commenced.'—(The Duke of Northumberland.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2:—

LORD BALFOUR OF BURLEIGH

called attention to the provision that— No right, title, estate or interest, whether in possession or expectancy, and whether vested or contingent at the time of the passing of this Act, existing in, to, or in respect of any dignity, title of honour, or property, and no act or thing lawfully done or omitted before the passing of this Act shall be prejudically affected. The object of this, of course, was to safeguard all rights of property notwithstanding the retrospective action of the Bill, but he thought that if the contingent right to property was saved they should also save the presumptive right to a title. He therefore moved to insert after the word "contingent," the words "or presumptive."

Amendment moved— In page 2, line 2, after the word 'contingent' to insert the words 'or presumptive.'—(Lord Balfour of Burleigh.)

LORD TWEEDMOUTH

This Amendment was moved in the House of Commons by Mr. Cave and seconded by Lord Robert Cecil, but was opposed by my right hon. friend Mr. Haldane, who I think the noble Lord will consider to be a good legal authority. My right hon. friend pointed out that the word "presumptive" was too much of an expectancy to be considered, and the Amendment was withdrawn on the ground that this was altogether too remote and uncertain a contingency to provide for in the Bill. It seems to me that the decision in the House of Commons was a sound one, and I hope your Lordships will accept it.

LORD BALFOUR OF BURLEIGH

said he always endeavoured to inform himself of what passed in another place, but the House of Commons had taken to such irregular hours that it was difficult to follow their proceedings, and he had never heard the objection taken to this proposal by Mr. Haldane until that moment. He would be indisposed to set his opinion against that of Mr. Haldane, but he thought the presumptive heir to a title had a grievance if an Amendment of this kind were not inserted to save him. Let them take the case of a peerage or a baronetcy. It might happen that but for the passing of this Bill a certain individual would succeed to the title because those who would otherwise stand in his way were not legitimate. As this Bill had a retrospective action, it might come in the way of the succession of that individual. He did not know whether the words he proposed to insert were the right ones or not, but it seemed to him that without some such provision there would be injustice.

LORD TWEEDMOUTH

If the noble Lord will withdraw the Amendment now I will undertake to inquire further into the point and make a statement upon it on Report.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 agreed to.

* THE LORD ARCHBISHOP OF CANTERBURY

moved the insertion of a new clause, the object of which would, he said, be obvious. He understood that the Government accepted the Amendment.

Amendment moved— To insert the following new clause:—'(4) Nothing in this Act shall relieve a clergyman. in Holy Orders of the Church of England from any ecclesiastical censure to which he would have been liable if this Act had not been passed by reason of his having contracted or hereafter contracting a marriage with his deceased wife's sister.'—(The Lord Archbishop of Canterbury.)

LORD JAMES OF HEREFORD

What is the meaning of the word "censure"?

* THE LORD ARCHBISHOP OF CANTERBURY

That is a difficult question, and one which it is hardly reasonable to expect me to answer in a single sentence.

LORD JAMES OF HEREFORD

Would it cause the deprivation of the clergyman?

* THE LORD ARCHBISHOP OF CANTERBURY

I suppose that what is technically called a "censure" might in, the last resort reach that penalty.

LORD TWEEDMOUTH

I accept the Amendment.

On Question, Amendment agreed to.

Clause 4 agreed to.

VISCOUNT GOSCHEN

said the Bill removed but one of several disabilities under the marriage law. Why should it be legal for a man to marry his deceased wife's sister and illegal for him to marry her niece? The marriage law should be as logical and consistent as possible, and before a Bill amending it in any respect was passed by Parliament there ought to be an inquiry to ascertain the views of the public on the subject. Surely when so momentous a change as this was proposed, no objection should be taken to any reasonable delay. He therefore moved the new clause standing in his name.

Amendment moved— After Clause 4 to insert the following new clause:—`It shall be lawful for His Majesty to appoint a Commission to inquire and report whether it is expedient to make other Amendments in the 'law relating to marriage within the prohibited degrees in order to bring the principle of these degrees into conformity with the provisions of this Act. Such report shall be laid before Parliament, and thereupon His Majesty may issue an Order in Council bringing this Act into force. The order shall be laid before Parliament, and unless within the next subsequent forty days an address is presented to His Majesty by either House of Parliament, praying that such order be annulled, this Act shall come into force accordingly, but not otherwise.'—( Viscount Goschen.)

LORD TWEEDMOUTH

The Amendment which the noble Viscount has moved is, in the first place, dilatory, and, in the second place, altogether unnecessary. It would also be a very unusual one. Surely it is an extraordinary idea to introduce a clause into a Bill to say that it shall be lawful for His Majesty to appoint a Commission. The appointment of a Commission is part of the ordinary function of the Sovereign. It may be very suitable, I agree, that a Commission should consider the whole subject of the marriage laws, but not this particular point; and if you did appoint a Commission, as proposed, the result might be that the Bill would be postponed for another seventy years. I cannot accept the Amendment, and, indeed, I do not think it is one which would be at all proper for your Lordships to place in the Bill.

THE MARQUESS OF SALISBURY

did not think that on the point of form the noble Viscount could be quite accurate. There was no doubt that his noble friend's intention was that a Commission should be appointed, but it would not be regular in an Act of Parliament to direct the King to appoint a Commission. But that was only a matter of form. The point of the Amendment was really a very substantial one. The striking circumstance which emerged from the Second Reading debate was that the Government were unable to give any kind of consistent view on what principle they thought the table of affinity should henceforth be drawn. The point was again and again in the course of the debate put to noble Lords who supported the Bill, but they could not tell the House what they thought ought in the future to be the principles of the table of affinity. The Lord President made an ingenious speech, but did not attempt to tackle that particular point. Not one of the speakers on the other side could give even a colourable reason why the deceased wife's sister should be selected from among the host of other relationships, some of which stood even further off from the husband. He had asked noble Lords opposite whether they were willing to part with the degrees of affinity altogether, but instead of answering the question they only looked shocked. Even the dexterity of the Lord Chancellor could not extricate them from the difficulty of explaining why, if marriage with a deceased wife's sister was allowed, marriage with a deceased wife's niece should not also be legal. Then there was the very awkward question of the stepdaughter. Why were noble Lords who supported this Bill shocked at such a marriage as that? He was shocked, of course, but then he was consistent. At present our system was consistent, but if the law was to be tinkered with all the degrees of affinity ought to be considered. They were really entering upon a sea absolutely without a chart. What was it that the noble Viscount proposed? The noble Viscount said, in effect, that this matter had not been properly considered. Surely before this alteration was made in the marriage law the degrees of affinity and the extent to which they were affected by this change should be considered. Let them take the case—he knew of one—where the sister-in-law was of an age about equal to that of one of the daughters of the marriage—that was to say, quite young. She was treated by her brother-in-law in almost a paternal manner and brought up in the same house under his care and guardianship. Then on the death of his wife this man would be able to marry this child whom he had treated in a paternal manner and who had been brought up under his guardianship. Their Lordships were not shocked; then why should they be shocked at a man marrying his deceased wife's niece. All that his noble friend. who had moved the Amendment asked was that before enacting this absolutely illogical and indefensible exception there should be some inquiry. The noble Lord in charge of the Bill had stated that the acceptance of the Amendment might put off this reform for seventy years. He had heard of Commissions which took a long time to deliberate, but he had never heard of one which took seventy years. The First Lord of the Admiralty, of course, was romancing. What would happen was that the Commissioners appointed in pursuance of this Amendment would sit and consider these real difficulties. It would, above all things, have to hear the opinion of the women of England. He wished the voice of the women of England could be heard on this question. No one seemed to pay the least attention to the opinion of women on this question. He had always been an opponent of woman suffrage; but he confessed the passage of such a Bill as this very much shook him, because he believed if the women had the vote there would be a very different appearance in the House of Commons in respect to this measure. The noble Lord in charge of the Bill had described the Amendment as dilatory. No doubt it was dilatory in the sense that it would involve a certain amount of time, but it would not throw away the work of Parliament in respect of this Bill. It would not necessitate the debate beginning all over again in the House of Commons and in the House of Lords. All the work which had been clone on this Bill would stand absolutely. No doubt there would be one more stage. but after the Report of the Commission Parliament would be asked whether, in view of that Report, they still held to the opinion which was expressed on the Second Reading. That was the extent to which the Amendment would be dilatory; it would not be dilatory to the extent of destroying what Parliament had achieved. And in approaching a matter of such importance he did not think that it was asking too much that there should be a little further consideration.

LORD TWEEDMOUTH

I will answer my noble friend out of his own mouth. He asserted that we have not shown any good reason for bringing forward this Bill, and he added that this was an exceptional case. Well, that is the very reason why we are pressing this Bill. Of all the marriages coming under the law of affinity nine-tenths belong to this category. It is a very old story. In 1835 the justice of this legislation was admitted, and it was only by a chance, which I have already explained, that things were not settled in that year. Ever since then there has been a great demand for this relief, and the Commission of 1847 went very closely into the whole matter, and recommended it very strongly. Since that time the question has been brought again and again before the Houses of Parliament, who again and again have assented to the principle of the Bill. I think there is a complete case for dealing with it in a quick and complete manner, and I do not think there is any necessity whatever for further inquiry by a Commission.

THE DUKE OF NORTHUMBERLAND

said it appeared that relief was being given in this case because of the number of marriages coming under the law of affinity which belonged to this category. Therefore it was only a question of counting of noses, and not one of principle. Last year, as the Lord Chancellor had reminded them, a Bill was passed dealing with one point in the marriage law. This year marriage with a deceased wife's sister was attacked. Where would they stop? Stone by stone they were taking down the whole fabric of our marriage laws. The noble Lord in charge of the Bill had declared that if the Amendment were carried, there would be no further action in the matter for seventy years. The only possible interpretation of that remark was that the noble Lord knew how bad was the case of those who supported the Bill, and that, if a Royal Commission were to inquire into the whole subject, they would hear nothing more of this kind of legislation.

VISCOUNT HALIFAX

urged the Government to consider seriously the proposal embodied in this new clause. It was said that the marriage laws were in confusion and ought to be considered as a whole. If this Bill passed he could assure their Lordships it would certainly not bring peace, for the clergy as a body would refuse to celebrate these marriages. On the other hand, only two days ago Mr. Paynter Allen, the Secretary of the Marriage Law Reform Association, while referring to this Bill as the success of his life, said there were many other extensive questions still remaining to be dealt with. If their Lordships passed this Bill as it stood they would take a step which would make it quite impossible that things should remain where they were, and he earnestly pressed His Majesty's Government seriously to consider the proposal embodied in the Amendment. The Lord Chancellor, in his speech on the Second Reading, had told the House that the whole of the marriage laws were in complete confusion; there was one law in England, another in Ireland, another in Scotland, and, again, different laws in the Colonies. The Divorce Court was a source of collusion and perjury and was poisoning the foundation of morals in this country; and he was convinced that there was nothing more important for the welfare of the country than that the whole of the marriage laws should be considered and an attempt made to put them on some reasonable and logical basis. If this were not done they would go from bad to worse.

Amendment, by leave, withdrawn.

Standing Committee negatived.

The Report of amendments to be received on Monday next; and Bill to be printed as amended. [No. 205.]