... Lastly, it must be such as to cause offence to the public conscience. . . . The assumption, therefore, which underlies the argument for the defence, that a marriage legalised by Act of Parliament as a civil contract necessarily remains a nullity for ecclesiastical purposes, is not justified by history and cannot be sustained. I do not go further or assume to define affirmatively what is the exact relation of ecclesiastical law towards these marriages. My duty is confined to ascertaining whether those who have contracted such a marriage are open and notorious evil livers and are offending the public conscience by their evil life. Taking the fullest account of the limiting effect of the words of the statute, and putting at its highest the divergence which the Act may have created between the action of the State and the rule of the Church of England, I find it impossible to say that these persons, lawfully married according to the law of the land, can by any reasonable use of language be so described merely because they are living together as man and wife.' The same view was expressed by all the Judges and Law Lords who tried the question of prohibition, except Mr Justice Bray, who abstained from giving an opinion. Their names are-Justices Darling and A. T. Lawrence, the Master of the Rolls (Sir H. Cozens-Hardy), Lords Justices Fletcher Moulton and Farwell, and Lords Loreburn, Halsbury, Ashbourne, Macnaghten and Atkinson. So far as skilled authority on the meaning of words in an English document is concerned, it would be impossible to obtain greater finality of interpretation of the phrase 'open and notorious evil liver'; and there the general question may be left. Bearing in mind what has been stated as to the different methods by which refusal of Holy Communion may happen in the English Church, we are now in a position to appreciate the course pursued in the Banister case. The Deceased Wife's Sister's Marriage Act, rather suddenly pressed forward by Sir Henry Campbell Bannerman's Government at the end of the session of 1907, made a change in the marriage law which for more than fifty years previously had been strenuously opposed by churchmen and especially the clergy. It was almost inevitable that the new law and the conscientious scruples of the clergy should come into collision; and they did so, before many months passed, through the demand of Mr Banister, who had married his deceased wife's sister, · to be admitted to Holy Communion in his parish church against the wish of the incumbent, Canon Thompson, who seems to have consulted with and to have acted on the advice of his Bishop, the late Dr Sheepshanks. The alternative open to Canon Thompson was either to adopt the attitude of the Exhortation' in the Prayer-book, and to throw responsibility on the Banisters, while warning them of the peril of unfit reception; or else, by one or other of the legal methods we have described, to seek to exclude them from Communion. The Archbishop of Canterbury had definitely advised the clergy to take the first course.* Canon Thompson, however, decided to adopt the latter alternative and to apply coercion. Whether he adequately appreciated the difficulty of the task is perhaps doubtful. Up to a certain point the case against marriage with a deceased wife's sister is free from uncertainty. Canon Law condemned these unions from the first. From the Reformation until 1907, Church and State, acting in concert, treated such marriages as void. The table of prohibited degrees which excluded them was governed by an easily understood principle. The Act of 1907 broke through this principle by making an anomalous exception as a matter of civil contract. The absolute nullity of other unions between persons not more closely, and even not so closely, connected was still maintained. How can a law be respected which allows marriage with a deceased wife's sister but treats marriage with that sister's daughter as a lawless intrigue? But, while it is difficult to condemn too strongly the levity of those who, with their eyes open, used the powers of the Executive to press on a tired Parliament and an indifferent country a revolutionary change, which either goes too far or not far enough, and while no man of common sense will suppose that the beliefs of the Church of England can be affected in foro conscientiæ by State action of that sort, it must not be supposed that the position is very clear, either as to the existence of any well-defined Church law of marriage separate from that of the State, or as to any practicable means of enforcing it in the ecclesiastical courts. * Letter to the diocese of Canterbury (Macmillan), p. 49. Vol. 217.-No. 432. There is a great preponderance of authority against the existence of any express prohibition of marriage with a deceased wife's sister in the Scriptures. With regard to the early Church, the first and the main definite ecclesiastical prohibition is found in the 61st Canon of the Spanish Council of Elvira, held about A.D. 306. But the learned differ greatly in opinion as to the extent of the condemnation. The late Bishop John Wordsworth of Salisbury wrote: 'It seems that this canon did not require separation of the parties who were legally united under the Civil Law, while it imposed upon them a minor penalty for marrying against the law of the Church'* (i.e. excommunication for five years). On the other hand, the Rev. F. W. Puller, one of the Cowley Fathers, considers that separation of the parties was presupposed and taken for granted in the Canon of Elvira. It is beyond the powers of ordinary folk to decide where such doctors disagree, but the fact of this disagreement makes it impossible for us to feel sure that we are on quite safe ground in accepting the rather exaggerated denunciations of men like Mr Puller, who cannot discuss the subject at all with calmness. Thus he writes: + 'It always seems astounding to me that it should be possible to find Christian men who do not shrink with horror from the thought of a widower contracting marriage with the near blood relations of his deceased wife. . . . All I can say is that, at any rate as regards this matter, their moral standard must be inconceivably lower than that of the heathen Romans who lived in the degenerate days of the later Republic.' Loathsome sin,' incestuous fornication,'' open and notorious incest,' are a few of Mr Puller's phrases § for describing marriages with a deceased wife's sister, and give a fair notion of his tone throughout his book. When we come to a later age, it is still more difficult to maintain the unbending attitude of Mr Puller. The * 'The Law of the Church and Marriage with Deceased Wife's Sister' (S.P.C.K.), pp. 12, 13. See also a learned article in the 'Church Quarterly Review' for October 1908 (lxvii, 151-167), by Mr C. H. Turner, on 'Irregular Marriages and the Earliest Discipline of the Church.' † 'Marriage with a Deceased Wife's Sister' (Longmans), p. 65 and Appendix I. § Ib. pp. 5, 134, 139, Ib. p. 134. Roman Church, while keeping the marriage law formally intact, allowed the Pope to grant dispensations which infringed more or less seriously upon the strict standard. The tendency to dispense with marriage impediments grew as time went on, and at length it reached the deceased wife's sister. Mr Puller puts it all down to 'that monster in human form Roderick Borgia . . . known in history as Alexander VI . . . who was the first to introduce into Christendom a thing hitherto unknown, the granting of a dispensation allowing a man to live in an incestuous union with his deceased wife's sister.' * But, desperate as was the wickedness of Alexander, it is probably as inaccurate to suppose that he was the first to dispense with this impediment as it is certainly unfair to describe the later and present practice of the Roman Church as merely a continuation of the 'trampling underfoot' of the holy law of God' by that appalling monster.' † The series of entries in the Papal registers relating to Great Britain and Ireland, issued under the authority of the Master of the Rolls, of which eight volumes have been published (1198–1447), furnish materials for estimating in some degree the number and nature of these dispensations long before Alexander VI's time. Within the period named between 400 and 500 cases are recorded. Most of them dispense marriages between remote connexions, but there are cases of near relationship by affinity, including several cases of marriage with deceased brother's wife and with deceased wife's sister. In these some special circumstance is alleged, e.g. the first union was a contract of betrothal only, a marriage was without cohabitation, or there was cohabitation without consummation. There are several cases of dispensation of marriage with the sister of a former mistress. Quite plainly the tendency to widen the area of dispensations was independent of the personality of any one Pope. It is surely not less plain that a practice which survived the great reform movement in the Latin Church, of which the Decrees of Trent were the outcome, must have been preserved because, rightly or wrongly, experience seemed to justify it, and not because of any * 'Marriage with a Deceased Wife's Sister,' pp. 111, 112. sympathetic allegiance to the memory of a 'loathsome Pope '* and his 'Borgian abomination.' † But difficulty of another kind emerges when we consider the position of the Church of England since the Reformation. Vast changes were then made in the marriage law. The law of prohibited degrees, as it had been gradually developed in the Latin Church, forbade marriages within the fourth degree of affinity or consanguinity (e.g. between third cousins), marriages where either party had been, perhaps in childhood, precontracted in marriage, marriages where spiritual affinity existed through godparents, and marriages where either party had taken monastic vows; but accompanying this law was the practice of dispensations which we have described. Instead of this system an entirely new standard was set up by Henry VIII's Marriage Acts.§ All impediments except those made by God's law' were abolished; and what those were, in the view of Parliament, was set out. Prohibitions on the ground of precontract disappeared for a time, and those created by spiritual affinity and Vows permanently. The power of dispensation outside God's law was also swept away. All this was done by Parliament; there was no parallel action by Convocation. Archbishop Parker was consulted as to how the statutory enumeration of the forbidden degrees could be expressed more clearly and completely. He accordingly drew up his Table for the guidance of 'such as shall intend hereafter to enter the state of matrimony, godly and agreeable to laws.' But that was a personal matter. Although still printed in our Prayer-books, it has no binding ecclesiastical authority. The conditions of marriage, so far as the Church of England is concerned, from the sixteenth century until to-day, have been regulated in accordance with Henry VIII's Acts and not in accordance with the pre-existing Canon Law. For example, the marriage of first cousins, forbidden by the most plain directions of Canon Law, became lawful in the Church of England by virtue of an Act of Parliament. * Marriage with a Deceased Wife's Sister,' p. 113. Measured according to the Canon Law method. † Ib. p. 112. § 25 Henry VIII, ch. 22; 28 Henry VIII, ch. 7; 28 Henry VIII, ch. 16; 32 Henry VIII, ch. 38; and see 2 and 3 Ed. VI, ch. 23. Cardwell's 'Documentary Annals,' i, 282. |