y
 
 MARRIAGE 
 WITH A DECEASED WIFE'S SISTER/. 
 
 SPEECH 
 
 OF THE 
 
 RIGHT HON. LOED SELBORNE, 
 
 LORD HIGH CHANCELLOR OF ENGLAND, 
 
 IN THE 
 
 HOUSE OF LORDS, ON THURSDAY, MARCH 13, 1873, 
 
 ON THE 
 
 SECOND READING OF THE ABOVE BILL 
 
 LONDON t 
 
 ^HE MARRIAGE LAW DEFENCE ASSOCIATION, 
 25, Parliament Street, S.W. 
 
 1873.
 
 SPEECH 
 
 OF THE 
 
 EIGHT HON. LORD SELBORNE. 
 
 The Lord Chancellor : This is no party question. It is, how- 
 ever, a question which affects society in general — not only those 
 who ask for a change of the law for their own particular benefit, 
 but equally those who do not want the law changed. Before I say 
 anything as to that which is the first proposition of the Bill — 
 namely, the expediency of amending the law respecting marriage 
 with a deceased wife's sister — I will follow the example of my 
 noble friend who has just sat down,^ and make some observations 
 on the Bill itself, which a great number of those who have 
 addressed the House have not paid much attention to. The Bill 
 does not attempt to follow up its owm principle to its proj^er 
 limits, or to reconstruct the law of marriage on any consistent or 
 symmetrical grounds, and consequently it will pave the way to 
 further agitations and further changes. The duty of the office which 
 I still hold obliges me to say that I think it is hard to conceive a more 
 dangerous, a more alarming invitation to systematic, deliberate vio- 
 lation of the law than that contained in the first clause of the Bill. 
 See how the matter stands. Down to the passing of Lord Lynd hurst's 
 Act these marriages were, and always had been, illegal — as illegal 
 as they are now, — and I was surprised to hear some of the old mis- 
 conceptions on this point revived by the noble Lord who introduced 
 the Bill. However this may be, after the passing of Lord Lynd- 
 hurst's Act all possibility of misconception about the law of marriage 
 was at an end. From that time forward, at least, it was known to 
 all men that every such attempt at marriage — for marriage it is not — 
 
 1 The Earl of Dudley.
 
 was proliiblted and absolutely void. What said the right reverend 
 ])re]ate who just now so ably addressed your Lordships ?^ He 
 could see no difficulty whatever in the question which appeared 
 so distressino^ to his rio;ht reverend brother^ — ''What answer am 
 I to give to any woman who, after this Bill is passed, wishes 
 to marry her deceased husband's brother, or to any man who 
 desires to marry his deceased wife's niece?" ''Oh," says the 
 right reverend prelate (the Bishop of Ripon), " there can be no 
 difficulty about the answer. Tell them to obey the law as it 
 stands while it is the law." And yet the same right rev. prelate is 
 going to vote in favour of a clause which says that no marriage here- 
 tofore contracted in violation of the law shall be, or be deemed to 
 have been, void. What will be the value of such admonitions from 
 right rev. prelates to persons troubled in their consciences, if such 
 persons are told in one breath " you must respect the law while it is 
 the law," and in the next breath the same right rev. prelate comes here 
 and says, " I am prepared to vote in favour of those who have not 
 respected the law, so that every one of these illegal marriages shall be 
 declared good from the beginning. " Will not persons be encouraged 
 by such legislation to disobey the law, and get up societies in order to 
 induce the Leirislature to sanction further disobedience ? Are we 
 to say that a certain amount of perseverance ni systematic dis- 
 obedience to the law will not merely induce Parliament to alter a 
 law, which might in some instanc3s be right, but to pass an Act, 
 not of indemnity, but of ex post facto justification, in favour 
 of the whole body of law-breakers for many years past? To 
 ]iass such an Act, re])ealing the law retrospectively in favour 
 of all law-breakers, is really to tell the people " you are 
 under no obligation to obey the laws." But the matter does not 
 stop there. Every clause of the Bill is more and more monstrous 
 as we go forward. What is the next clause ? It is felt that, if 
 you simply passed an ^^?? po5?^ /ac^o law legalising all these marriages, 
 you might be marrying over again people who had contracted such 
 unions, but who had since repented and married somebody else. 
 It is provided, therefore, that the Bill shall not invalidate any 
 legally subsisting marriage in order to restore the former illegal 
 one. But everybody else who, having repented of breaking the 
 law, and having treated the marriage as void, has separated from 
 the person who never was his wife, shall be married compulsorily 
 by the Bill to that person. Is that the sort of legislation of which 
 your Lordships will approve ? You not only give to the law- 
 breakers themselves everything they ask, but you say that persons 
 
 1 The Bishop of Oxford. 
 
 2 The Bishop of Ripon.
 
 who have regretted their disobedience of tlie law shall be forced 
 back into their original illegal relations. Then another difficulty 
 presented itself to the framers of the Bill. What are we to do 
 with respect to rights of property, vested and expectant? You 
 cannot take away from a remainder-man that which by law belongs 
 to him. There may be remainders vested in expectancy in real or 
 personal estates under settlement. If there was a daughter of the 
 first marriao:e with the deceased sister, she would be entitled in 
 remainder to settled property, whether real or personal, in pre- 
 ference to any sons of the sister whose marriage you are asked 
 to legalise ; and all the children of the first marriage, or even 
 "uncles, nej^hews, or cousins, would take a succession exclusively 
 of the issue of the second marriage. It would be otherwise if 
 the issue of the second marriao;e were leo;itimate. So the Bill 
 says that all existing equitable and contingent rights shall remaim 
 the same after the passing of the Bill — in other words, that, while 
 for some purposes the children of these marriages will be recog- 
 nised by the law as such, they will not be so recognised for other 
 purpose. They are to be still illegitimate as regards estates under 
 settlement; but in other cases they are to be legitimate ; so that you 
 establish them in inconsistent relations under the same Bill. I 
 think I have said enough to show that if your Lordships should at 
 any time be persuaded, contrary to my own conviction, that the main 
 principle of the Bill is right, you must set to work to give effect to 
 your wish in a totally different 'manner. You must not by retro- 
 spective legislation try to render legal that which was not lawful 
 and cannot properly be made so. You must consider how far your 
 principle ought to go, and I am sure you can never stop short of the 
 abolition of all marriages of affinity. If so, let the existing prohibi- 
 tions be removed in an intelligible and consistent measure. Do 
 not let us have piecemeal legislation concerning so important a 
 matter, for the main purpose of giving to persons who have broken 
 the law the same relief as if they had obeyed the law. I will now, 
 with your Lordships' permission, say something as to the main 
 principle involved in this question. I have said that* all members 
 of society are interested in it — not only those who have married or 
 are wishing to marry their deceased wives' sistei's, but those who 
 have not done so, and are not desirous of doing so. Every married 
 man whose wife has sisters has an interest in that condition of 
 society which is produced by the state of law which makes his 
 wife's sister his " sister-in-law." Our popular expression exactly 
 hits the principle. The law makes the wife's sister his sister, 
 and if you alter the law the wife's sister for domestic pur- 
 poses will be his sister no longer. Do you want prohibitory 
 laws against marriage within any degrees of relationship, or 
 
 ^ 
 
 9 
 
 i""^^
 
 do you not? I think so. It is necessary and important so to 
 fence round the sanctity of the domestic hearth njion tlie subject 
 of marriage as to make safe and secure, as fcir as Law can 
 do so, the unrestrained and ])ecuh'arly affectionate intercourse 
 Avhich ought to exist for the liappiness of famihes between the 
 closest and nearest relations. If the ])rinciple be a right one, of 
 course it extends to all the immediate members of one's own family. 
 We know that the brutal passions of some of the lowest ordisr 
 of mankind are ca])able of overleaping even the natural barriers 
 which exist between parent and child, between brother and sister. 
 But as a general rule the repugnance to such unnatural relations is 
 80 great that they woidd be rare even if no prohibitory laws existed. 
 When, however, you pass from these closest relationships, ever\- 
 body feels that legal prohibitions are necessary and salutary. The 
 moment you go a little further in the circle of relationship the 
 power of the pi'ohibitory law becomes stronger, because, the more 
 remote the connection, the more important it is to fence it. Take 
 the case of uncle and niece. We know that in some countries dis- 
 pensations are granted for such marriages ; and there the principle 
 of such unions being admitted men are not I'estrained by natural 
 repugnance from forming them. You w^ant a fence in such a case. 
 You want it peculiarly in cases of affinity, for the very reason 
 that in those cases the natural repugnance is less strong. But 
 the question is asked, " Do you want any prohibition in cases of 
 affinity at all ? " Surely 3-ou do. Is not the wife to associatt,^ 
 in your home with her sisters, and her mother, and her daughters, 
 on the same footing as before ? Or do you wish that marriage 
 shall make a difference in the position of the wife and her sisters, 
 when she feels that one of them may become the possible wife of 
 her husband ? So with regard to the husband's brother. Is he to 
 be only a brother to the wife, or to be looked on as a possible husband 
 to the wife ? The truth is, that the husband and the wife are so 
 imited that you cannot make their intercourse with their own 
 brothers and sisters really sisterly and brotherly — you cannot make 
 it unrestrained — unless you apply the same rule to both of them. 
 That is the prlnci})le on which the law has proceeded, and I say 
 it is a most wise and salutary law that you should carry the fence 
 as far in favour of the relatives of the wife as of the relatives of the 
 husband, so that the two may be thoroughly identified, and the 
 intercourse which is perfectly unrestrained as to the one should be 
 equally unrestrained as to the other. Is it ]:>ossible, and would it 
 be safe, that a husband should treat a wife's sisters as his own if he 
 were allowed to marry them ? And would not children suffer as 
 well as husbands and wives ? What is the real meaning of the 
 argument that wives' sisters would prove the best stepmothers the
 
 6 
 
 cliildren could have ? It means that the wife's sister is the 
 cliildren's aunt, and is likely to bear them a closer affection than a 
 stranger. Nothing can be more true under a law which does 
 not invite her to become their stepmother. But, if you alter that 
 law, you will deprive the children of the unrestrained and familiar 
 affection of every unmarried aunt who thinks it wrong, or Avho is 
 not willing, to marry their father. They are not now so deprived 
 even during the widowhood of the father. IMost of us know 
 cases in which the wife's sister now lives in the same house, and 
 takes care of her sister's children, without suspicion or reproach. 
 But this could not continue under the present Bill. It is impossible 
 that a woman can occupy the position of a sister and at the same 
 time be by law a marriageable person. Our divorce law says that 
 in a case of adultery with a wife's sister the husband shall not be 
 capable of marrying again. I should be sorry, whatever the 
 marriage law prescribed, to see it otherwise. These are good, solid 
 reasons, of a social and natural character. Some arguments have 
 been submitted to your Lordships based on religious considerations. 
 One noble Lord has sought to establish it as a fundamental principle 
 that no marriage can be prohibited except the prohibition can be 
 directly supported by some text in Scripture. But how would that 
 noble Lord, in accordance with that principle, prohibit polygamy ? 
 Certainly not from tliat particular text in Leviticus upon wdiich he 
 relied for his argument, because that text, as he interprets it, seems 
 to contemplate marriage during his wife's lifetime with some 
 person other than his wife's sister. Opinions have been forcibly 
 expressed by some in favour of polygamy, and one author, not a 
 bishop indeed, but a popular clergyman and the brother of a bishop 
 in the last century, has traced many of the present evils which 
 trouble us to its prohibition in this country. We are told how 
 well marriao-e with a deceased wife's sister answers where it has 
 been tried. But the same thing has been said of polygamy ; and 
 I think the statement is of about as much value in the one case as 
 in the other. When a measure similar to this was before the 
 House ,of Commons some years ago, I read an extract from the 
 "Times" citing the following passage from the "Chicago Tri- 
 bune." Your Lordships will notice the glowing colours in which 
 the writer paints the happy results of the introduction of polygamy 
 into Salt Lake City : — 
 
 But about the practical operation of polygamy, as you call it. That is what you 
 most probably want to know, and I shall enlighten you, from my observations and 
 experience. When I came to Deseret there were not many who were in the enjoy- 
 ment of more than one wife ; and many, or most, of the new comers were opposed to 
 it. But, as they saw how beautifully and harmoniously those families lived where 
 there were two or more wives, their prejudices gradually gave way, and among no class
 
 was this change more apparent than the -svomen. At the present time, if a vote -were 
 taken on the snhject, I venture to say that nine out of every ten women who have 
 lived here two years wouki sustain our present social system in this particular. 
 
 I do not want to compare the morality of other countries with 
 the moraKty of our own. We comforted ourselves with the belief 
 that respect for the "sanctity of marriage stood high in this country 
 until the Divorce Court was established. We cannot speak quite 
 as complacently now ; but marriage is still held among us to be 
 honourable. How is it that marriage in some other countries is 
 less respected ? Do we not know that the facilities for divorce in 
 some of those countries depreciate the estimation in which the 
 marriage vow is held ? It would not be right to press the argu- 
 ment based on the Scriptures too far in an assembly such as this, 
 because there are some outside who would decline to argue the 
 question on that ground, discarding religion and refusing to admit 
 the authority of the Scriptures. But, if we are to prohibit only such 
 marriages as are prohibited by the letter of the Old Testament, we 
 must repeal the prohibition in the case of thirteen degrees pro- 
 hibited by our law and not prohibited by the letter of Leviticus; 
 and, on the other hand, if you endeavour to arrive at the principle 
 contained in that chapter in Leviticus, and to lay down a marriage 
 law in accordance with that principle within the range and limits 
 of the degrees which are prohibited there, you will arrive at our 
 present marriage law. There is one other very im})()rtant point. 
 We have been told that this is a poor man's question, and that the 
 poor ask for this alteration of the law. My information does not 
 support this. Li 1859 I received, through an eminent prelate, a 
 number of letters, which I have in my hand, from clergymen who 
 had laboured many years in some of the largest centres of popu- 
 lation. These clergymen assert that in their experience the poor 
 did not generally practise or approve these marriages. One of 
 those to whom I allude is Dr. McNeile, the present Dean of 
 Ripon, for many years a well-known clergyman of Liverpool ; 
 another is Canon Stowell, for several years a leading clergyman 
 of Manchester ; another is Canon Auriol, of St. Dunstan's ; 
 another is the Rev. Mr. Rowsell ; and there was also a layman, _ a 
 Scripture Reader, who laboured among the poor in London for a 
 great number of years, some of whose words I will read to your 
 lordships. To the same effect was the testimony of a right reverend 
 friend of mine, the Bishop of Rochester, at that time Rector of 
 Kidderminster. The Scripture Reader of whom I have sjoken, 
 writing in April, 1861, says — 
 
 Being in daily and constant association with the labouring and poorer classes ; as 
 one living among them, and being in their homes in the most poverty-stricken neigh- 
 bourhoods ; intimately knowing hundreds of the families of the superior working
 
 8 
 
 men, and also of those in the deepest poverty ; being in the habit for yeafs past of 
 daily teaching many of the childx-en of the very poor, and also being gratuitously 
 occupied, and counting it a gTcat privilege, in reading .... every Sunday to upwards 
 of 200 men of the labouring class, 1 know from my own ohservation and conversations 
 I have had with many on tlic subject of the proposed Bill that the marriage with the 
 deceased wife's sister is not approved and is very rarely to be met ^\ ith among them* 
 
 My noble and learned friend (Lord Hatlierley), having taken great 
 pains to ascertain the fects among tlie poor of Westminster, has 
 borne the same testimony. If we were to bring together all the 
 aberrations of our law in matters relating to the connection of the 
 sexes we should no doubt have a very alarming and very lament- 
 able catalogue of evils. But does any one suppose that by adapting 
 our law to such a state of things we should not produce a greater 
 amount of mischief? For these reasons, my Lords, I earnestly 
 entreat vou not to asree to the second readin^f of tliis Bill. 
 
 Westminster : Printed by J. B. Nichols and Sons, 25, Parliament Street;-
 
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