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CHAPTER 7 - William Edward Hartpole Lecky, Democracy and Liberty, vol. 2 
Democracy and Liberty, edited and with an Introduction by William Murchison, 2 vols. (Indianapolis: Liberty Fund, 1981). Vol. 2.
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In the discussion of legal limitations of natural liberty some confusion is due to the fact that theological, moral and utilitarian considerations often enter in combination among the reasons for legislation, and the proportionate weight which is attached to these several elements varies greatly in different ages and with different classes. A conspicuous instance of this kind is furnished by the laws prohibiting Sunday labour and Sunday amusements. It is now, indeed, very generally recognised by competent authorities that a profound misconception underlies a great part of the popular English religious sentiment on the subject. Sunday is not the Sabbath, and its obligation does not rest upon the Fourth Commandment. It is a Church holiday, enacted in the earliest days of Christianity in commemoration of a great Christian event, and for the purpose of Christian worship, and the same authority which enjoined the festival prescribed the conditions of its observance. In the early Church many Jewish converts considered the Fourth Commandment still binding upon them, and they accordingly observed the Jewish Sabbath as well as the Christian Lord's Day. The Gentile converts, however, in accordance with the express language of St. Paul,1 considered the former day no longer obligatory, though they were bound on other than Old Testament grounds to observe the Christian festival. The early Fathers, with one voice and in the clearest language, recognised the distinction between the two days, and declared that the Jewish Sabbath had been abrogated with the Jewish dispensation, though the observance of the Lord's Day was obligatory on Christians.2
Legislation soon confirmed this obligation. A law of Constantine enacted that ‘on the venerable day of the Sun’ all workshops should be closed, and magistrates, and people residing in cities, should rest; but he at the same time expressly authorised agricultural labour, he placed no restriction on public amusements, and he afterwards permitted the law courts to be open on that day for the purpose of emancipating slaves and freeing sons from the paternal power. The legislation of the elder and younger Theodosius went further. It not only forbade business, but also suppressed the public games and theatrical exhibitions on the Lord's Day. It must, however, be added that these amusements had always been looked on with disfavour by the Church, and there is reason to believe that the Theodosian laws on the subject were very imperfectly executed.
During the Dark Ages several provincial Councils enjoined a more Judaical observance of Sunday: it became customary to draw parallels between the Jewish ordinances and the Christian holidays; the Sabbath was represented as at least prefiguring the Sunday rest, and the Fourth Commandment was sometimes quoted in its support. But though the Judaical element in Sabbath observances undoubtedly increased during the Middle Ages, the Catholic Church has, as a whole, never committed itself to the confusion of the two days. The term Sabbath was scarcely ever applied to the Christian festival, and many of the chief authorities in the Church continued, up to the time of the Reformation, clearly to testify to the distinction between the two days. Attendance on a religious service on the Lord's Day was enjoined under pain of mortal sin. Work, as a general rule, was prohibited, though there were various exceptions. On the other hand, innocent amusements, if they did not clash with religious services, were not only permitted, but encouraged. On Friday public amusements were suppressed, for that day had very early been accounted as a fast day; and it was observed with such stringency that there have been instances of men having been put to death for having eaten meat on Friday.3 An English law of Henry VI. forbade fairs and markets to be held on Sunday.4 Four Sundays in harvest-time, however, were excepted, and this exception was only taken away in the present reign.5
If we pass to the Reformation, we shall find that all the leading Reformers maintained, in clear and decisive terms, that the Lord's Day was an institution wholly distinct from the Jewish Sabbath. The ‘larger Catechism’ of Luther, and the Confession of Augsburg, which was drawn up by Melanchthon and Luther, and which was accepted by the main body of Protestants, laid down that, while it was highly desirable for edification that a day should be set apart for Christian worship and rest, it was a grave error to believe that this was the Jewish Sabbath, or a substitute for the Jewish Sabbath. ‘Scripture abrogated the Sabbath;’ ‘it is a false persuasion that the Church's worship ought to be like the Levitical.’ ‘Those who judge that in the place of the Sabbath the Lord's Day was instituted as a day to be necessarily observed are greatly mistaken.’ It is right that a day should be appointed on which men should rest from their labours, and have leisure and time to assemble together for Divine worship, but under the dispensation of Christian liberty the observance of days is ‘not a matter of necessity.’ ‘If any one,’ Luther once said, ‘sets up the observance of the day on a Jewish foundation, then I order you to work on it, to ride on it, to dance on it, to feast on it, to do anything that shall remove this encroachment on Christian liberty.’ ‘To think that working on the Lord's Day,’ said Bucer, ‘is in itself a sin, is a superstition and a denying of the Grace of Christ.’
Modern Puritanism is largely traced to Calvin, but in its views of the nature of Sunday it can derive no countenance from his writings and example. He stated that the Sabbath was totally abrogated; that it was a typical and shadowy ordinance, no longer required; and that it was a gross and carnal error to believe that, although the day of the Sabbath was changed, its obligation remains. Men should, indeed, devote a certain portion of their time to the public worship of God and to resting from their work. The seventh of our time is a convenient proportion, but the proportion and the special portion so assigned are alike matters of indifference. He complains that ‘Jewish ideas’ had been imported into this subject, and he certainly never intended that Sunday should be kept by the suppression of all amusements. John Knox once found him engaged in playing a game of bowls on Sunday. Knox himself had no scruples about supping in company on that day, and there is no reason to believe that his views about Sunday were in any way different from those of the Continental Reformers.
The Helvetic Confession, representing Zwingli and the other Swiss Reformers, is very clear on the subject. ‘In the Churches of old, from the very times of the Apostles, not merely are certain days in each week appointed for religious assemblies, but the Lord's Day itself was consecrated to that purpose and to holy rest. This practice our Churches retain for worship's sake and for charity's sake. But we do not thereby give countenance to Judaic observances and to superstition. We do not believe, either, that one day is more sacred than another, and that mere rest is in itself pleasing to God. We keep a Lord's Day, not a Sabbath Day, by an unconstrained observance.6
Such were the views of the chief Protestant leaders on the Continent. Those of the Anglican Church up to the time of the Commonwealth were very similar. Cranmer described Sunday as resting for its authority on the Church and on the magistrates, and he drew no distinction between it and other holidays. Attendance on the Anglican service on Sunday was enforced by law; but in the first year of her reign Elizabeth ordered all clergymen to teach their parishioners ‘that they may with a safe and quiet conscience, after their Common Prayer in time of harvest, labour upon the holy and festival days over that thing which God had sent; and if from any scrupulosity or qualms of conscience men should superstitiously abstain from working upon those days, that then they should grievously offend and displease God.’ The theatres during her whole reign were open on that day, and the afternoons, after Church service, were commonly spent in rustic sports.
Before the close of her reign, however, a different spirit had arisen, and the Puritan section of the English people had begun to adopt the Sabbatarian views which, in the following century, so rapidly spread. In the second volume of Homilies which was issued by order of Convocation in 1563, there is a ‘Homily on the Place and Time of Prayer,’ which bases Sunday observance on the Fourth Commandment. ‘Albeit this commandment of God doth not bind Christian people so straitly to observe and keep the utter ceremonies of the Sabbath Day as it was given unto the Jews, as touching the forbidding of work and labour in time of great necessity, and as touching the precise keeping of the seventh day after the manner of the Jews …yet, notwithstanding, whatsoever is found in the Commandments appertaining to the law of Nature …ought to be retained and kept of all good Christian people. And therefore by this Commandment we ought to have a time on one day in the week wherein we ought to rest, yea, from our lawful and needful work.’ ‘God's obedient children,’ the homily continues, ‘should use Sunday holily, and rest from their common and daily business, and also give themselves wholly to heavenly exercises.7 Sunday is described as the Christian Sabbath day, and the writer complains bitterly that ‘God is more dishonoured and the devil better served upon Sunday than upon all the days of the week beside.’ Of ‘those that will be counted God's people,’ he says, many have given up all thought of keeping Sunday. They ride, journey, buy, sell, keep markets and fairs on that day and on all days alike, while others make Sunday a day of drunken, turbulent, and gluttonous revelry. An admonition which was read from the churches after the earthquake of 1580 complains that ‘the Sabbath days and holy days …are spent full heathenishly in taverning, tippling, gaming, playing, and beholding of bear-baiting and stage-plays, to the utter dishonour of God, impeachment of all godliness, and unnecessary consuming of men's substance…. The want of orderly discipline and catechising hath either sent great numbers, both young and old, back again to Papistry, or let them run loose into godless atheism.’8
This disorder contributed largely to the reaction towards a Sabbatarian observance of Sunday that grew up among the English Puritans, who represented in general the most religious class in England. They felt strongly the necessity of giving a more religious character to the Lord's Day; but they were precluded by their theology from admitting the obligation of any observance resting on mere ecclesiastical authority, and their whole teaching had taken a very Old Testament cast. In 1580, the London magistracy obtained from the Queen an interdiction of Sunday plays and games within the liberties of the City. Two years later an accident which occurred near London, from the falling of a scaffold during some Sunday games at Paris Garden, at Southwark, was represented as a Divine judgment, and in 1585 a measure passed through Parliament ‘for the better and more reverend observance of the Sabbath,’ but was vetoed by the Queen.9 The doctrine that the Lord's Day was the Sabbath, that Christians were as much bound as the ancient Jews to abstain from all work and pleasure on that day, was now constantly preached. A work by Dr. Bownd, which first appeared in 1595, and which, having been repressed by authority, was republished in 1606, advocated this view in its extreme form, and met with a very wide acceptance. Strype tells us how, in many parts of England, preachers were maintaining in the first part of the seventeenth century that to work, to play bowls, to make a feast or wedding-dinner on the Sabbath day, or to ring on that day more bells than a single one which was to summon worshippers to prayers, was as great a sin as the most atrocious act of murder or adultery. Before the death of James I. the Jewish Sabbath appears to have been accepted by the whole body of the English Puritans.10
It met with great resistance. Whitgift, who was Archbishop of Canterbury when the book of Dr. Bownd appeared, formally condemned it as heretical, and some of the more extreme and aggressive Sabbatarians were molested by authority. James I. consented to the closing of theatres on Sunday, but when he found that Puritan magistrates in Lancashire were suppressing all Sunday games, he issued, in 1618, a Declaration, which he ordered all clergymen to read from the pulpit, directing that after Divine service his subjects should not be prevented or discouraged from lawful and harmless recreations, such as dancing, leaping, vaulting, morris-dances and maypoles, provided such sports were held ‘in due and convenient time, without impediment or neglect of Divine service;’ though bear and bull baiting, interludes and bowling, were still prohibited on Sunday. The opposition, however, which this Declaration produced among the Puritan party was so great that the King wisely withdrew the order for reading it.11
The Puritan party were now rising rapidly to the ascendant. The first Parliament of Charles I. passed a law forbidding any assembly of people out of their own parish on the Lord's Day, or any bull-baiting, bear-baiting, interludes, common plays, or other unlawful exercises on the same.12 In the third Parliament of Charles I. it was enacted that no carriers, waggoners or packmen should be allowed to travel on that day, and that no butcher should kill or sell meat upon it.13 Soon after some Puritan judges began to forbid the celebration of village feasts and wakes on Sunday, and especially certain ‘feasts of dedication’ which it was the custom to hold on the Sunday before or after the day of the saint to whom the village church was dedicated, and they also of their own authority ordered the clergy to publish this decree in the time of service, and inflicted punishments on those who refused to do so.14 Great discontent was aroused by these measures, and it induced Charles, at the advice of Laud, to publish in 1633 the ‘Book of Sports,’ which fills such a conspicuous and disastrous place in the history of the English rebellion. It was simply a reproduction of the Declaration of James I., with a short addition formally authorising the dedication feasts and other village festivals, as long as they were celebrated without disorder; the judges of assize were commanded ‘to see that no man do trouble or molest any of our loyal and dutiful people in or for their lawful recreations, having first done their duty to God and continuing in obedience to us and to our laws,’ and it was ordered that this Declaration should be read in every parish church. At the subsequent trial of Archbishop Laud, one of the charges brought against him was that he ‘held that Sunday is no Sabbath.’
There are few things in ecclesiastical history more remarkable than the speed and power with which the Puritan doctrine of the Sabbath pervaded British Protestantism. It supplied a large portion of the religious fanaticism of the Rebellion. It was supreme in England during the Commonwealth. It moulded by its influence the whole religious life and character, both of Scotland and New England, and it affected, though much less powerfully, the Calvinistic Churches of the Continent. In England, the advantage of a more religious mode of spending Sunday than had hitherto been common was felt by numbers who rejected the doctrinal system of the Puritans, and the Restoration, which brought back many things, did not bring back the Sunday of Elizabeth and the early Stuarts. The ‘Book of Sports’ never revived. The village dedication festivals were not restored. The theatres and all other places of public amusement remained closed. Among the Dissenting bodies, Sabbatarian views still continued to prevail. In the Church of England, the great majority of divines between the Restoration and the rise of the Evangelical movement were not Sabbatarians, but they cordially supported an observance of Sunday which, though much less strict than that of Scotland and New England, was very different from that which had once prevailed in England, and which still existed on the Continent.
By a law of Charles II. all Sunday labour was forbidden; no article except milk could on that day be exposed for sale, no hackney coaches and other public conveyances were allowed to ply their trade, and no legal process could be executed, except for treason, felony, or breach of the peace.15 The restrictions on public conveyances were gradually relaxed in the eighteenth century, as roads were improved and as towns and travelling increased; but in the first quarter of that century we find the Chancellor, Lord Harcourt, stopped by a constable for driving through Abingdon at a time of public service. In the higher ranks, the observance of Sunday was probably less strict than among the middle class. The Lutheran education of many members of the Royal Family, and the foreign travelling and general religious indifference of the upper classes, contributed to mitigate it. Cabinet Councils, Cabinet dinners, Court entertainments, and fashionable cardparties and receptions, were frequent on Sunday during the first half of the eighteenth century, and by the end of the century Sunday travelling and Sunday excursions had become very common. Sunday newspapers had arisen, and Hyde Park was thronged on that day with the carriages and horses of the rich. The Methodist and Evangelical movement, however, was intensely Sabbatarian, and it deeply influenced both the teaching of the Anglican Church and the customs of society.16
There can, I think, be little doubt that this reaction towards Sabbatarianism, which was very perceptible during the last years of the eighteenth century and during the first thirty or forty years of the nineteenth century, has now spent its force. Public opinion in England, and still more in Scotland, has on this subject greatly changed. In most classes and districts an amount of Sunday relaxation has become habitual which would once have been severely reprobated, and the changed views about Sunday will probably, sooner or later, affect legislation.
It is certain that the legal prohibition of all Sunday labour had a religious origin, and, according to modern principles, no restriction based solely on a contested theological doctrine should be generally enforced by law. The restriction is imposed on multitudes who feel no religious obligation to observe it, and it falls with special hardship upon the Jews, who, in addition to their own Sabbath, are compelled to observe another day of rest, imposed by a religion which they repudiate, in commemoration of an event which they deny, and in the place of an ordinance which they believe to be of eternal obligation. If these considerations remained alone, they would have an irresistible force. But another set of considerations, which had either no part, or only a very subsidiary part, among the motives of the original legislators, have come rapidly into the foreground. It is now very generally recognised that a periodical and complete suspension of severe work is in the highest degree necessary to the happiness, to the health, to the full moral and intellectual development of men, and that one day in seven is the smallest proportion of rest which meets this want. Of all the failures of the French Revolution, none was more complete than the substitution of a tenth for a seventh day of rest, which they established and attempted to enforce by law. The innovation passed away without a protest or a regret, and the proportion which the Jewish and Christian Churches had assigned was resumed. One of the first measures of the Government of the Restoration was a severe law enforcing the observance of Sunday, which is remarkable, among other things, for closing all drink-shops and refreshment-rooms during the hours of Mass in towns of less than 50,000 inhabitants. After the Revolution of 1830 it fell into almost complete desuetude.17 In 1880 it was formally repealed.18
If a man, by working on Sunday, affected himself alone, I do not think that the law would have any right to interfere with him, but in the keen competition of industry this is impossible. A shop or a manufactory which was open on Sunday would naturally distance its competitors, and a small minority would thus always have it in their power to enforce Sunday labour on a large majority. It is on this ground that the law is justified in imposing the restriction on all; and when this general prohibition is found to be on the whole a great advantage, legislators naturally hesitate to admit exceptions which, though plausible or justifiable in themselves, might tend to weaken its force. The foundation of the law, however, is being changed. It was originally enacted mainly or exclusively on religious grounds. It is now defended by its best supporters on secular and utilitarian grounds, though it still derives a great additional weight and popularity from the fact that a strong religious sentiment is behind it.
In Continental countries, and especially in France, the advantages of the Sunday rest are being more and more felt; and not the less so since the French Government has completely dissociated itself from Catholicism. In Germany, a new law came into force in 1893 which closed all shops except for a few hours on Sunday.19 The Catholic Socialists make a Sunday rest enforced by law one of their leading demands; but the same demand has been included in the programmes of most of the Socialist bodies, which are hostile to religion. It is part of the general movement for shortening by law the hours of labour. In the Berlin Labour Conference of 1890 the representatives of the different Powers were almost equally divided on this subject, though the majority were in favour of the prohibition on Sunday of the labour of women and children.20 Some pressure has been put upon Governments to set the example by discontinuing on that day manual labour on public works. In 1874, five great railway companies in France petitioned the Government to close the services of ‘petite vitesse,’ but the Minister of Public Works refused the permission.21
As might be expected, in countries where the Sunday rest is unsupported either by law or by strong religious sentiment the demand for it varies much with industrial conditions. It is strongest in large towns and manufactories, where the pressure and competition of labour throughout the year are greatest. It is much weaker in districts where life moves slowly, where labour is never either intense or incessant or keenly competitive, and where the distractions of amusement are very few. It is scarcely probable that a law preventing a farmer from working on his own land could be enforced in any country where it has not been long since established on religious grounds, and a new law enforcing cessation of labour would also be very unpopular in places of pleasure-resort, where both hard work and large profits are restricted to the few weeks or months of a fashionable season.
In its broad lines, however, the prohibition of Sunday labour among the Anglo-Saxon race has met with almost universal acceptance, and there are only a few very minor questions that might be raised. It is, in my opinion, an exaggerated thing to prohibit harvest-work in the critical weeks during which the prosperity of the farmer so largely depends on the prompt use of every hour of fine weather. Work that is in no sense competitive, such as the work of a man in his own garden, stands on a different footing from competitive labour; and a wise tolerance is accorded to various small industries, chiefly for the comfort and benefit of the very poor, or of those who are enjoying a holiday in the country. On the whole, however, the general legislative prohibition of Sunday labour secures a great blessing to the community, and a blessing which could not in any other way be attained. Looking at the question from a merely physical and industrial point of view, it cannot be doubted that the average health, strength, and working power of the race are immensely increased by the fresh air and exercise and rest which the Sunday holiday secures. The addition it makes to human happiness, the benefits it bestows on those large classes whose whole weekday lives are spent in labour too jading and incessant to leave any margin or disposition for mental culture, can hardly be over-estimated. These, however, are not its only advantages. Though an enlightened modern legislator will refrain from basing any restrictive law on a contested theological dogma, and will hesitate much before undertaking to make men moral by law, he cannot be indifferent to the moral results of his legislation. No one who knows England will doubt that the existence of an enforced holiday primarily devoted to religious worship has contributed enormously to strengthen the moral fibre of the nation, to give depth, seriousness, and sobriety to the national character, to save it from being wholly sunk in selfish pursuits and material aims.
On the whole, the prohibition of Sunday labour has been at once the earliest and most successful of the small and dangerous class of measures that are intended to regulate and restrict the labour of men. The question, however, of Sunday amusements is wholly different from that of Sunday labour, and there can, I think, be little doubt that great evils have followed from Sabbatarian notions on the subject. Only a very small minority of the human race have the character and the disposition that render it possible for them to spend a whole day in devotional exercises, and an attempt to force men of another type into such a life seldom fails to produce a dangerous rebound. All religion becomes distasteful and discredited, and the sense of moral perspective is fatally impaired. It is no exaggeration to say that there have been periods and districts in Scotland in which to dance, to play the piano, or even to walk in the fields for pleasure on Sundays, would have excited as much scandal as some grave act of commercial fraud or of sexual immorality. It has often been noticed how commonly children brought up with great strictness in severely religious families fall into evil ways, and the explanation of the fact is very obvious. They have come to associate the whole religious side of their teaching with a repelling gloom, with irksome and unnatural restraint. Being taught to aim perpetually at a temperament and an ideal wholly un-suited to their characters, they fail to attain the type of excellence which was well within their reach. The multiplication of unreal duties and the confusion of harmless pleasures with vice, destroy the moral proportion and balance of their natures, and as soon as the restraining hand is withdrawn a complete moral anarchy ensues. A severe Sabbatarian legislation has a similar effect upon a nation. Depriving the people of innocent means of enjoyment, and preventing the growth of some of the tastes that do most to civilise them, it has often a distinctly demoralising influence. Men who have not the disposition to spend the day in a constant round of religious exercises, not unnaturally learn to spend it in absolute torpor or in drunken vice. Those have, indeed, much to answer for who have for generations deprived the poor of all means of innocent recreation and mental improvement on their only holiday.
Of all the changes that have taken place in our time, few, I think, are more gratifying than the growth of a more rational conception of Sunday. In dealing with Sunday amusements, much consideration must be paid to public opinion, and also to the amount of labour they entail. There is a wise and general consensus of opinion that they should be, in the main, restricted to the afternoons, and that the mornings should be reserved for religious exercises. Many forms of amusement, such as those of the pedestrian, the fisherman, and the cricketer, involve no addition to Sunday labour; while others, such as country excursions and the opening of museums and libraries, involve an amount of labour that is infinitesimal in proportion to the great benefits they produce. The value of a country excursion to the denizens of our crowded towns can hardly be overrated, and with the growth of towns and the increasing stress and competition of labour it is continually increasing. To secure a weekly holiday for the comparatively small number of men whose Sunday labour is necessary for the attainment of this inestimable blessing is a mere question of organisation and money, and it is rendered peculiarly easy by the large profit which the Sunday holidays always produce. One effect of opening on Sunday museums and galleries which are now open only on weekdays, would probably be a reduction of the labour of the attendants from six days in the week to five and a half. Public requirements would be amply satisfied with admission to these museums of Sunday afternoon, and there would not be the smallest difficulty in closing them on one whole weekday, as is done in, I believe, every continental capital.
No way of spending a Sunday afternoon can be more harmless, and not many are more profitable, than in a museum or picture-gallery, and there is a peculiar wrong in closing institutions which are supported by public money against the classes who have most labour and fewest enjoyments on the one day on which they could avail themselves of them. In England, the educational advantages of such institutions are peculiarly needed. Protestantism has many merits, but it does nothing for the æsthetic education of the people; while the eminently pictorial worship and the highly ornamented churches of Catholicism bring men in constant contact with images and ceremonies that appeal to the imagination, and, in some degree, refine the taste. From the days of the Stuarts, and even of the Tudors, England has been full of masterpieces of ancient art, but very few poor men who did not happen to have been servants in some great man's house can have had an opportunity of seeing a good picture before the opening of Dulwich Gallery in 1817, and of the National Gallery in 1824. The taste for public gardens, as a really popular taste, is very modern. The liberality of great noblemen who commonly throw open their parks to public enjoyment, the opening of the first English Zoological Garden in London in 1828, the opening of Kew and Hampton Court on Sunday, the great movement which has been so conspicuous in our day for forming people's parks, throwing open squares and gardens that had formerly been the exclusive possession of a few, admitting all classes to botanical and other gardens on Sunday, and permitting bands to play in parks and gardens on that day, have all contributed to its formation. It has been an unmixed benefit. All good judges have noticed the improvement of manners and the increased power of harmless and decorous enjoyment among the English poor during the nineteenth century, and it is probably largely due to the more rational employment of Sunday. The great provincial towns have, with scarcely an exception, supported the movement, and, while endowing with great liberality museums and public libraries, they have generally opened them on Sundays. In a remarkable petition which was presented to Convocation in 1892, it was stated that thirty-four museums, art galleries, and libraries in the kingdom were open on that day.
It can hardly be doubted that the movement is destined to extend, though probably by gradual steps, and not without some opposition. The Saturday half-holiday, it has been truly said, has mitigated, though it has certainly not removed, the grievance of the Sunday closing of public institutions. In most constituencies there are probably electors holding strong Methodist and Evangelical views of Sunday with such an intensity of religious conviction that they are prepared to subordinate all party questions to their enforcement; and, under our present system of party government, such men have naturally a far greater political influence than a much larger body of men who are in favour of Sunday opening, but who do not attach such transcendent importance to the question as to make it the decisive question on which their votes at an election will depend. There is, also, among the great body of the working classes much indifference on the subject. A taste for art or antiquity is an acquired taste, and although it is extremely desirable that the poor should acquire it, they are not likely to do so until they have had some means of gratifying it. The question is too commonly regarded as if it were merely a question for those who are commonly called ‘the working classes.’ It concerns at least equally the many thousands of hardworking men and women who are employed in shops—often in small shops, where a Saturday half-holiday does not exist. In this class the taste for music and art is stronger than among the so-called working classes; but they are not an organising and agitating class, and their political weight, under the influence of modern democratic changes, has sensibly diminished.
In the trade unions, also, there is some division of opinion on the subject totally unconnected with religion. Paris is the continental city with which Englishmen are most familiar, and many persons are accustomed to speak of the Parisian Sunday as the one alternative to the English one; though, in truth, over a great part of the Continent the Sunday in which shops are shut and labour suspended, while amusement is encouraged, is very familiar. The limitation of hours of labour is one of the strongest present enthusiasms of the working classes, and it has led some of them to look with suspicion and dislike on the opening of institutions that would imply some labour. They fear that it would lead to general Sunday labour, and they very justly believe that, if they worked generally for seven instead of six days in the week, the market rate of their wages would not be higher than at present.
Apprehensions of this kind appear to me wholly chimerical, and they are, I believe, only entertained by a small minority of the working classes. The distinction between the opening of places of amusement and the continuance of ordinary labour on Sunday is so clear and intelligible that it could hardly be overlooked. The opening of museums and galleries on that day, as I have said, would probably rather tend to diminish than to increase labour; it would be an especial benefit to the labouring classes, and it might, perhaps, give some employment to the Jews, who have a peculiar grievance under our present Sunday laws,22 though that grievance has been much mitigated by Acts of 1871 and 1878, which gave them some considerable rights of Sunday labour.23 No one who has realised the immense strength and organisation which the operatives have acquired in dealing with their employers, and the commanding influence they now exercise on legislation, can believe that general Sunday labour could possibly be forced upon them contrary to their will. At the same time, these various forms of suspicion, apathy, and opposition have retarded the movement, and alone prevent its complete attainment. If those who would be most benefited by the Sunday opening of museums and galleries demanded it with real earnestness, no one can doubt that they could obtain it without the smallest difficulty. The opposition to it is certainly not in the upper classes, and the great majority of members of Parliament would be quite ready to vote for it if they believed that by doing so they would not lose more votes than they gained. Governments justly believe that on such matters they must follow, and not precede, public opinion.
The arguments that apply to the opening of museums and picture galleries on Sunday may be extended to some other forms of amusement, such as Sunday lectures and Sunday concerts; and the rule forbidding the taking of money has no real value or meaning. The opening of theatres on Sunday would, however, in my opinion, in the present state of English public feeling, be exceedingly inexpedient. It may, indeed, be argued with plausibility that the fact that some persons object to a particular amusement is an excellent reason why they should not participate in it, but is no reason why others should be deprived of it. This, however, is rather an argument of the school than of the senate. It may be urged with great force against the imposition of a new restriction, but it has much less weight when it is a question of removing a restriction which has existed with general acceptance for centuries, and which is deeply rooted in the habits, traditions and feelings of the nation. No wise legislator will needlessly offend or scandalise the great body of the people, and the opening of theatres on Sunday, which scarcely excited a remonstrance under Elizabeth, would undoubtedly be bitterly resented under Victoria.
With Sunday amusements in private life the legislator should have no concern. Hardly any law upon the Statute Book seems to me a more silly or unjustifiable infringement of liberty than that which still makes it criminal for a man to shoot a pheasant or partridge on his own grounds upon Sunday or Christmas Day,24 though he may shoot wildfowl, or woodcock, or snipe, as these birds are not included under the legal definition of game, and though no restriction is imposed on Sunday fishing.
The duty and the expediency of watching closely the currents of public opinion, and abstaining from all unnecessary changes in customs and traditions, introduce into all wise systems of legislation a large amount of inconsistency and incoherence, and are very unfavourable to any systematic and strictly logical treatment of the subject. One bad thing will be forbidden, and suppressed by law; another thing, which is equally bad, will be forbidden by law, but generally tolerated. A third, which the moralist will regard as equally blamable, will be perfectly legal. Concessions will be made in one direction, while restrictions that are in argument incompatible with them are maintained: and different principles and motives of action are admitted in legislation, no one of which is pushed consistently to its full logical consequences. Thus, for example, it is well understood that the sphere of criminal legislation and the sphere of morals are not coextensive, but at the same time they are closely and manifestly connected. In graduating penalties, in admitting circumstances of extenuation and aggravation, every legislator and administrator of law must necessarily consider moral guilt. No system of law which failed to do so could subsist, for public opinion would refuse to ratify its sentences. Except in some rare cases of political offenses, which fall rather under the category of acts of war than of acts of crime, it would be impossible to inflict the highest legal penalty upon acts, however disastrous to society, if they were felt to involve little or no moral guilt.
On the other hand, no consistent attempt can be successfully made to make the degrees of guilt and the degrees of punishment coincide. Many acts that are grossly immoral lie wholly beyond the domain of the law. Many acts which the law treats as misdemeanors involve as much moral turpitude as acts which the law pronounces to be felonies. Murder is, undoubtedly, morally as well as legally, a worse crime than fraud, yet it would not be difficult to point to particular instances of fraud which imply greater moral turpitude than particular instances of murder. The moral guilt of a man who fires at another with the intention of murdering him is precisely the same whether he misses his victim or simply wounds or kills him, though to each of these cases a different penalty would be assigned. Many a criminal has escaped the gallows because a good constitution has enabled his victim to survive an injury under which a weaker constitution would have succumbed. Aman may make himself so mad with drink that he has no more power of judging or controlling his acts than a somnambulist or a lunatic. If in this state he commits a crime, his drunkenness is the true essence and measure of his guilt. Yet the law will only punish extreme drunkenness by the lightest of penalties, while it will punish with perpetual servitude, and perhaps death, acts that may be blindly committed under its influence. The penalties attached to a crime are constantly increased, not because there is a deeper sense of its immorality, but because it has become more frequent, more easy, more dangerous. External provocations are largely considered in extenuating crime, but the law can take no cognisance of the equally real palliating circumstances of a nature which was originally perverted or debilitated by hereditary influences, and which has grown from childhood to maturity in hopeless ignorance and poverty, amid all the associations and contagion of vice.
All that can be safely done is to lay down certain general principles on which the legislator should proceed, admitting at the same time that there are cases in which, under the stress of some strong expediency, these principles may be overborne. The enforcement of theological doctrines, or of obligations resting solely on theological doctrine, is now generally recognised as beyond the sphere of the criminal law, and in dealing with the immorality of adult men it should mainly, if not exclusively, regard its effects on the general well-being of society. If a man's bad acts affect himself alone, or if they only affect adult men who voluntarily share in them, there is a strong presumption that they ought not to be brought within the coercive province of law. They may be matters for argument, remonstrance, reprobation, but they are not subjects for legislative penalties.
Those who are acquainted with the writings of the more advanced thinkers of the first half of the present century, and with the writings of at least one of the most illustrious thinkers of our own generation, will probably regard this as a timid, hesitating, and imperfect statement of a great principle. The lines of right and wrong in these matters may, according to these thinkers, be much more firmly and inflexibly drawn. ‘Every one,’ says Kant, ‘may seek his own happiness in the way that seems good to himself, provided that he infringe not such freedom of others to strive after a similar end as is consistent with the freedom of all according to a possible general law.’ ‘If my action or my condition generally can coexist with the freedom of every other according to a universal law, any one does me a wrong who hinders me in the performance of this action or in the maintenance of this condition.’ ‘Every man,’ writes Mr. Herbert Spencer, ‘is free to do that which he wills, provided he infringes not the equal freedom of any other man.’ ‘The liberty of each is limited only by the like liberties of all.’
The subject was discussed with much elaboration by Mill in his treatise on ‘Liberty,’ and a few lines from this work express very clearly the conslusion of the most liberal thinkers of that school. ‘The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant…. The only part of the conduct of any one for which he is amenable to society is that which concerns others. In the part which merely concerns himself, his independence is of right, absolute.’ This doctrine, Mill explains, applies only to human beings ‘in the maturity of their faculties,’ and to societies which have attained some measure of civilisation. ‘But as soon as mankind have attained the capacity of being guided to their own improvement by conviction or persuasion (a period long since reached in all nations with whom we need here concern ourselves), compulsion, either in the direct form, or in that of pains and penalties for non-compliance, is no longer admissible as a means to their own good, and justifiable only for the security of others.’ We should all have liberty ‘of doing as we like, subject to such consequences as may follow, without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong; and from this liberty of each individual follows the liberty, within the same limits, of combination among individuals—freedom to unite for any purpose not involving harm to others; the persons combining being supposed to be of full age, and not forced or deceived.’25
In carrying out this principle, Mill argues that the only injuries to society which the law should punish are clear, direct, definite injuries. It is not sufficient to show that a man, by depraving his own nature, makes himself less fitted to do good and more likely to do harm to the community, and that the example of his vice may create scandal, or prove contagious. There must be ‘a definite damage, or a definite risk of damage, either to an individual or the public.’ No one, for instance, should be punished simply for being drunk, but he may be rightly punished if, when he is drunk, he impedes or molests his neighbour, or if, being a soldier or a policeman, he is drunk on duty.
This doctrine about the relation of legislation to morals corresponds closely with the doctrine about the relation of industry and legislation which was taught by Adam Smith and his followers. It is defended by many powerful arguments. It is urged that the judgment of the community about right and wrong is by no means infallibly correct; that the tendency of Government to encroach upon the sphere of individual action and domestic life is an exceedingly dangerous one; that the limits which may be at first assigned to such interference will almost always eventually be overpassed, and that to place the private actions of men of ripe years under constant Government supervision and control is the surest way to emasculate the character and to withdraw from it the power of moral resistance. To extend into manhood the restrictive system which is appropriate to childhood seldom fails to stunt and to enfeeble, and, as the sphere of Government interference dilates, the robust, self-reliant elements and spontaneous energies of character naturally decline. Yet it is these qualities that are most essential to national freedom and to a masculine morality. Men seldom realise how much more important the indirect and distant consequences of their acts often are than those which are direct and immediate, and it is in its indirect and ultimate effects that excessive Government regulation is especially pernicious. It is added that Government interference constantly defeats its own ends. Compression produces reaction, which often goes much further than the original vice. Evil things driven from publicity and placed under the ban of the law take in secret more dangerous and insidious forms.
Even when it is in the power of the Government completely to suppress some habit or amusement which in itself produces more evil than good, it by no means follows that this suppression is a real or an unmixed gain. It will often be found that this habit, or amusement, springs from a craving for some strong excitement which is deeply planted in human nature, and which in some periods and with some classes has an altogether abnormal strength, and the extirpation of one more or less vicious excitement is often followed by the growth of another. The real cure for the vices of society must go to their roots, and is to be found in moral and intellectual changes affecting habits, interests and tastes, which the hand of power can never produce.
As far as the question is confined to the criminal law, it appears to me that Mill is right in maintaining that its coercive power should, in the case of adult men, be confined as a general rule to acts which are directly injurious to others. Where an exception is made, the onus probandi rests with those who make it, and the case for suppression ought to be very strong. In this, however, as in the economical field, the tendency in the present generation has been to increase the number of the exceptions, and to dwell rather on the exceptions than on the rule. We are far, no doubt, from the paternal supervision of some branches of morals which the Greek philosophers advocated, and which the Roman censors in a great degree attained. We are far from the sumptuary laws, and from the minute moral regulations that have prevailed in some Catholic countries, and among the Puritans of the Commonwealth, of Scotland, and of New England; but British legislation is also far from confining itself within the limits assigned to it in the system of Mill. It condemns prize-fights, and duels, and suicides, though these are purely voluntary acts of adult men. If a man, through some religious scruple, suffers members of his family to die for want of medical aid, he is punishable by law, though all parties concerned may fully share in the superstition. Theatrical amusements are placed under legal censorship; games that are played for money in licensed houses, and some forms of gambling in private houses or involuntary societies, as well as in public places, are criminal offences; and under the guise of the Licensing Acts an increasingly severe censorship is exercised on many other forms of public amusement. There are many persons among us who would forcibly suppress all amusements which are coarse or grossly vulgar, or which cause any kind of suffering to animals, or which can possibly awake evil passions, or which bring together, even for innocent purposes, persons of immoral lives. The sale of obscene literature or pictures, even in a back room and to adult purchasers, is criminal; and although unchastity, and even adultery, are untouched by the criminal law, some forms of gross private immorality are severely punished and some purely voluntary organisations for practising and propagating vice are penal.
Sometimes laws of this kind are in a great degree obsolete. They are left on the Statute Book, and form a kind of reserve power in the hands of legislators in case some private vice which experience shows to be very injurious to society should grow and extend. They are, however, rarely put in force, either because they deal with subjects on which evidence is apt to be peculiarly uncertain and deceptive, or because the scandal and the advertisement of publicity would increase the evil, or because they are unsupported by public opinion, or because their strict execution would bring into clear relief the anomalies and inequalities under which equally bad things can be done with impunity. It is contended that the sentence of law strengthens the weight and authority of moral censure; that a law may throw serious obstacles in the way of the introduction of some new and little-practised vice; that, when public opinion has undermined an evil habit, a coercive law will both hasten its downfall and prevent its recurrence. The suppression of duelling in England was much more due to a change in public opinion than to law, but the existence of a law contributed to make it universal and to prevent the probability of its revival.
There may be great differences of opinion about the expediency or inexpediency of some of these laws, and in some respects they diverge considerably from other legislations. Thus, suicide or attempted suicide is not recognised as a legal crime either in France or Germany. The English law about obscene pictures and books would, if consistently applied, drive not a few masterpieces from our picture galleries and many classical works from our libraries and, as I have already observed, English law regulates the manner in which grown-up men and women may amuse themselves in a manner that would be thought childish and intolerable in many continental countries. The arguments on which such laws will be chiefly defended or impugned are utilitarian arguments, turning upon their influence on the wellbeing of society. These, however, are not the grounds on which this kind of legislation was, in most cases, originally based. During long periods of the world's history it was considered the duty of the legislator to punish immoral acts because they were immoral and offensive to the Deity, altogether irrespective of their effects upon society. A utilitarian basis, however, was at the same time provided, in the belief that immoral acts drew down upon a nation Divine judgments. The story of Sodom and Gomorrah, and many other stories, both in Jewish and Pagan antiquity, clearly illustrate this belief. Nor was it an irrational one. It simply translated into theological terms the great truth that, when a nation becomes thoroughly corrupt, all the elements of its strength and wellbeing will decay and the period of its ruin is at hand. In Pagan antiquity, also, the distinction between the temporal and spiritual power was scarcely known: much of what, in Christian times, is considered the peculiar duty of the Church devolved upon the State, and one of the first aims of legislation was to maintain and realise a moral ideal.
The foregoing remarks will show the great difficulty and complexity of these questions about the connection between legislation and morals. Perhaps the most important and most difficult is the attitude the law should assume towards voluntary habits which are the cause of great and widespread misery in the community. One of the most conspicuous of these is gambling. It is not in itself a crime. Few moralists will pretend that a man is committing an immoral act if he stakes a few pence or shillings on a game of whist, or if, on the chance of obtaining an unusually large return, he invests a sum which he can well afford in some highly fluctuating security, or some undeveloped mine, or in some insurance or tontine investment. Yet no one will doubt that gambling may easily become a passion scarcely less irresistible and less injurious than drink, and it is a passion which is common to all latitudes and to all stages of civilisation. The tranquil Oriental and the Indian savage are as much under its influence as the modern European.
Probably its chief root is that craving for excitement to which I have just referred as one of the deepest and strongest springs of human action. Man is so constituted that tranquil pleasure rarely suffices him. There are chords in his being which must be touched in another way, and he imperiously needs the thrill of intense emotion, even when that emotion is far from being exclusively pleasurable. It was this craving which, in antiquity, found one of its chief vents in the fierce joys of the amphitheatre. In modern Europe it is seldom more impressively displayed than in the white heat of passionate and almost breathless excitement with which ten or twelve thousand spectators at Seville or Madrid will watch some critical moment in the bull-fight. Suspense, and uncertainty, and the mingling of strong hopes and fears, contribute largely to it; it finds a keen satisfaction in some kinds of field sports; it is probably the chief element in that strangely mingled pleasure with which men watch a painful tragedy on the stage; it is certainly, in all times and countries, one of the chief sources of the popularity of war; it gives a spur to many noble forms of heroism and adventure, and much vice is due to the want of harmless and sufficient occasion for its gratification. To this element in human nature gambling powerfully and directly appeals. It is curious to observe how men will connect it with amusements that are in themselves purely pleasurable, in order to stimulate languid or jaded interest, to add a touch or sting of passion, even at the price of a large admixture of fear and pain.
The subject becomes especially serious from the fact that there is great reason to believe that gambling is an increasing evil. In some continental countries, and especially, I think, in French watering-places, the increase is very manifest. In England it rages wildly in many different spheres. It flourishes on a gigantic scale on the Stock Exchange, and in all the many fields of speculation. The racecourse is almost wholly under its empire, and the vast place which racing occupies among English amusements, and the great multiplication of small races, have contributed largely to disseminate the taste for betting through all classes of the community. All competent judges seem agreed that during the second half, or at least during the last third of the nineteenth century, it has much increased in a large section of the upper classes in England. During the eighteenth century its prevalence was a matter of constant complaint; but the taste for gambling among this class, like some other things, seems to have greatly passed away during the long French war, and it is not until our own generation that there is much evidence of its serious revival. It is, I think, a still more melancholy feature of our time that among the poor in many parts of England gambling has of late come to be closely connected with innocent and healthy forms of amusement, such as football, and, it is said, cricket, with which it had formerly no relation.
The same fact has been observed in America, where betting at athletic sports has of late years become exceedingly popular, and where the great increase of gambling appears to be quite as conspicuous as in England. During the last few years Connecticut, New Jersey, and New York have enacted State laws suppressing different forms which it has assumed, and a measure has passed through Congress, which it must, I should think, be extremely difficult to enforce, prohibiting the transmission of gambling matter from State to State by mail express or other agencies.26 On both sides of the Atlantic a vast extension of gambling has been a melancholy and unlooked-for consequence of the enormous multiplication of newspapers and newspaper-readers. The most casual observation is sufficient to show that the results of races and the odds of betting form the most exciting part of the newspaper-reading of multitudes who can seldom or never be present on a racecourse. It is said that domestic servants, who lead very sedentary lives, have through such channels been deeply infected with this passion.
English law deals with the subject in an extremely capricious manner. Speculative gambling can be carried on in innumerable forms and to almost any possible extent, and no serious attempt is made to suppress the enormous gambling that is notoriously connected with the racecourse. No form of amusement in England is more popular than this, and there is also no form of amusement which receives so large a measure both of aristocratic and of parliamentary favour. Lotteries, on the other hand, have been prohibited by several laws, and Parliament has wholly ceased to make use of public lotteries as a financial resource. A curious illustration, both of the extreme popularity which a small, and, it might be supposed, not very attractive form of gambling can attain, and of the capricious stringency of English law, was furnished in 1892 and 1893 by the sudden growth and rapid suppression of what was called ‘the missing-word competition.’ The competitor paid a shilling and bought a copy of the newspaper which offered the puzzle, in the shape of a printed sentence with an omitted word, which the reader was invited to supply. The proprietor of the newspaper was said to be contented with the increased sale, and the shillings of the unsuccessful competitors went to the successful ones. It was shown that success in this and in some analogous puzzles was altogether a matter of chance, and not of skill, and, under a judicial interpretation of one of the old Acts against gambling, the practice was suppressed. It had acquired during its short existence an astonishing popularity. In the majority of cases it was probably a source of perfectly harmless amusement; and no description of gambling is, on the whole, less dangerous than that in which the gambler is restricted to a small and defined stake. Various illegal forms, however, or gambling connected with charities are tacitly permitted. Indirectly, gambling is discouraged by the law withdrawing legal protection from gambling debts; and there are some curious distinctions between particular games of chance that are forbidden while others are permitted. Gambling in the privacy of the family circle is in practice unmolested, but voluntary societies of grown-up men who meet with this object, and who, as they carefully screen themselves from observation, can hardly be said to exercise any pernicious influence by example or contagion, have of late years been made the subjects of much espionage and of many prosecutions, the gamblers in these cases being usually almost or altogether unpunished, while the owners of the house are severely punished. The wisdom of such measures, in the face of the enormous amount and variety of gambling which is notoriously practised with impunity, seems to me extremely doubtful.
There will be less difference of opinion about the expediency of forbidding by law public gambling such as exists at Monte Carlo and in the ‘cercles’ and casinos of many continental watering-places. These establishments, it is true, have not been without their defenders. On the principle of Mill it is not easy to condemn them, for no one is under the slightest compulsion to take part in the game, nor is there any concealment or deception connected with them. It has been argued, too, by some who are not disciples of Mill, that public gambling houses do not make gambling, but only concentrate it in particular places, and in some measure regulate and even restrict it. The inveterate gambler will always find occasion for play. Public play, it is said, is at least conducted with a fairness which is not always found in secret gambling; and the taxes levied upon it minister largely to the pleasure and the advantage of those who never take part in the game. It is impossible to put down gambling. If it exists, it should at least contribute something to the useful purposes of the State. This can only be effected if it is openly recognised; and a country which derives a large revenue from the sale of spirits in Great Britain, and of opium in India, has not much right to object to such a tax.
These considerations, however, go but a small way as a counterpoise to the vast and terrible sum of ruin, misery and suicide for which the public gaming establishments are responsible. The man to whom gambling is a master passion will, no doubt, always find opportunities for gratifying it, but the gaming establishment attracts thousands of casual gamblers, who would never have sought out a secret haunt. Experience shows that it is among this class that the catastrophes of the gaming-table are most frequent. The habitual gambler, who plays with coolness and with method, usually in some degree succeeds in balancing his losses and his gains. It is the inexperienced, impulsive, uncalculating gambler whose reckless and ignorant play ends most frequently in ruin and suicide. Most, too, of those who are inveterate gamblers were at first only casual gamblers, and imbibed the passion, which gradually became incurable, at the public gambling table. The suppression by law of public gambling establishments may not be as unmixed a benefit, or as great a benefit, as has sometimes been supposed; but when it has been carried out, it has extinguished great centres of highly contagious evil, and, in my opinion, the certain advantages of the measure enormously overbalance its possible evils.
The most difficult of this class of questions, and among the most difficult in the whole range of practical politics, are those connected with the sale of intoxicating drink. They affect in the highest degree the pleasures, the comforts, the liberty, the morals, and the fortunes of the poor, and they affect, in very different ways, vast material as well as moral interests. Immense sums are invested in public-houses. An immense revenue derived from the sale of intoxicating liquors pours into the coffers of the State; while, on the other hand, the mass of improvidence and ruin, of disorder and crime, of depreciation of property, and of police and prison expenditure, which is clearly traceable to excessive drinking, is so great that many persons would shrink from scarcely any measure, however drastic, to prevent it. The most serious questions of principle are involved. Ought the Legislature of a free country to prevent grown-up men from doing what they wish to do, and what they have a perfect natural right to do, because some of them do not use that right with moderation? The public-house is much more to the poor man than his club is to the rich man. Has the State a right to close it against him, either wholly or during the workman's holiday, because a large minority of those who frequent it indulge in excess? If it has such a right, by what authority ought it to be exercised? Ought a majority of ratepayers, consisting largely of men who have never entered a public-house, to impose their will upon the minority who habitually use it? How far has the State, which has an undoubted right to protect itself against actual crime and against wasteful expenditure of public money, a right to wage war against the sources of crime and of the expenditure that springs from crime? What are the legal, and what the moral, claims of the owner of the public-house? and how far and in what direction is the character of the nation likely to be affected by a great measure of forcible repression?
Libraries of no small dimensions might be formed out of the debates, reports, pamphlets, articles, and books relating to this subject. At each succeeding election it assumes a great, and probably an increasing, importance. It has passed very far beyond the region of calm and impartial inquiry. The immense weight both of the public-house vote and of the teetotal vote in every part of the British Isles has placed the question in the very centre of the maëlstrom of party conflict, and vast selfish interests, as well as furious gusts of genuine but often very ignorant fanaticism, contribute to obscure the issue.
It will hardly be expected in a work like the present that I should attempt any exhaustive examination of it, but a few hints and distinctions may perhaps be of use towards forming sound opinions upon it. It must, in the first place, be noticed that the greatly increasing sensitiveness of public opinion to questions of drink is very far from implying that the evil itself is an increasing one. There is strong reason to believe that the exact opposite is the case. A hundred years ago drunkenness was rather the rule than the exception among the upper classes; but with changed habits, and under the stress of public opinion, it has in this section of society almost disappeared. There are, no doubt, still some dissipated circles where it may be found, and most physicians can point to cases among the upper classes of secret drinking, which is perhaps usually of the nature of a disease; yet it is probable that many of my readers may have moved widely and constantly through good society, mingling with men of various tastes, habits, and professions, without having ever seen at a dinner-table a case of positive drunkenness. This vast change in the social life of the nation has not been effected by law, or by restriction, or even by religion, but by the simple change of habits, tastes, and ideals. The thing which was once supposed to be manly or venial has come to be looked on as ungentlemanly and contemptible.
There can be little doubt that a similar change has also taken place, though not to so great an extent, among the poor. The picture which Hogarth drew of Gin Lane, and the pictures which may be constantly found in descriptions of working-class life at the end of the last century and in the early years of the present century, would certainly not be true of our own day. There have, no doubt, been many fluctuations, due to many causes. In France, the hardships of the great war of 1870 are said to have had in this respect a very bad effect, and there have been alarming signs that since that period absinthe, which is one of the most deleterious of intoxicating drinks, has been, with great numbers, superseding wine. In Ireland, the extraordinary improvement that was effected by the noble work and truly saintly character of Father Mathew has not altogether endured, and constant political agitation and an enormous multiplication of grocers’ licenses to sell spirits have not been favourable to the cause of temperance. Sudden changes in the rate of wages, in the hours of work, in the system of licensing, have often had a considerable, though usually only a temporary, influence; but, on the whole, there can be little doubt that there has been, during the present century, a marked and progressive improvement in temperance among the working classes. Francis Place, when describing, in 1829, the changes which had taken place among them in the course of his long life, mentioned as one of the most remarkable, that the most skilled and best paid workmen were, in general, the most dissolute when he was young, and had become the most thrifty and sober when he was old.
There is every reason to believe that the change has continued; that the area as well as the amount of habitual drunkenness in proportion to the population has diminished. The better class of workmen are usually a sober class. The improvement in the army has been enormous. Temperance and total abstinence movements have spread far and wide, and the English working classes have learnt the art of sober and tranquil amusement to a degree which, a few decades ago, would have seemed almost incredible. The great increase in the number of committals for drunkenness that sometimes takes place will be usually found to be chiefly due to a stronger sense of the evil, which makes the police and magistrates more stringent in suppressing it. The fact that, after a rise in wages, the consumption of beer and spirits usually increases is no certain proof of the increase of drunkenness. Hardly any one would make this inference from an increased sale of wine; and in the case of the poor, as well as of the rich, increased consumption often mainly means a greater number of moderate drinkers or a greater use of spirits in more diluted forms. No one can question that the working classes of England, in proportion to their numbers, have much more money at their disposal than in the last century, or in the early years of the present century, but very few persons will question that, as a class, they have become much less intemperate. The evil of drunkenness is still a great and a terrible one, but no good purpose is attained by describing it with exaggeration.
Pushing our inquiry further, we shall find that among its causes there are several which may be at least greatly mitigated without any heroic legislation. Miserable homes, and, perhaps to an equal degree, wretched cooking, are responsible for very much; and the great improvement in working-men's dwellings which has taken place in the present generation is one of the best forces on the side of temperance. Much may also be done to diffuse through the British working-classes something of that skill and economy in cookery, and especially in the use of vegetables, in which they are in general so lamentably deficient. If the wives of the poor in Great Britain and Ireland could cook as they can cook in France and in Holland, a much smaller proportion of the husbands would seek a refuge in the public-house. Of all the forms of popular education, this very homely one is perhaps that which is most needed in England, though of late years considerable efforts have been made to promote it.
A large amount of the drunkenness in the community is due to the want of a sufficient amount of nourishing and wellcooked food; and something is also due, in our great towns, to an insufficient supply of pure water. Conditions of labour have also an immense influence. Incessant toil, prolonged for an excessive period, in a close and unhealthy atmosphere, inevitably produces a craving for drink; and it is surely not surprising that men and women growing up from childhood under such influences should seek some short cut to happiness, some moments of emancipating excitement, during which they can throw off the thraldom and the burden of a dreary life.
In England, the great work of placing labour under healthy conditions has been for the most part effected, and factory laws and sanitary reforms have done much to cut off some of the chief sources of intemperance. Another danger, however, has arisen. A people who have few tastes and amusements, and who live in a gloomy, depressing, inclement climate, are not likely to be sober if they have many long hours of leisure at their disposal. The Puritan conception of Sunday, as I have already said, has much to answer for. It has made the one day of rest from toil a very dreary one, and has deprived the poor of the means of acquiring a healthy variety of tastes. A multiplication of such tastes, and of corresponding amusements, is one of the best ways of combating intemperance. If men find other pleasures that satisfy them, they will be much less likely to turn to drink. This is one of the ways in which popular education, even apart from all direct moral teaching, has a moralising effect.
Every institution which cultivates habits of forethought and saving, and stimulates ambition among the working-classes, acts in the same direction. One of the evils to be feared from the modern tendency of trades unions to discourage unusual industry and ability, and to preserve a dead-level of production, is increasing intemperance among the best workmen when they find that superior industry and superior skill lead to no exceptional rewards. Apart from the purely idle and vicious, the classes in England most addicted to drink are those who pursue callings in which work and wages fluctuate violently. Having little habit of providence, they spend in drink the rewards of the days of prosperity.
Turning to another branch of the subject, it is certain that a large amount of drunkenness is due to noxious adulterations. To protect the subject from the sale of adulterated articles is, it appears to me, a most proper, and most important, function of government. It can command the best expert ability, and it can make use of it with complete disinterestedness. To repress fraud is surely one of its most legitimate tasks. It is especially necessary when the fraud is of a kind which the ordinary customer is unable to detect; and no fraud can be more mischievous than that which adulterates beer or spirits for the purpose of making them more intoxicating and deleterious, or of producing a morbid thirst.
The State can also do much to encourage and regulate the trade by the direction it gives to taxation. It is a well-understood and recognised policy that taxes on noxious spirits find their natural limitation in the danger of encouraging illicit distillation or smuggling. In the plain interest of public order there is a necessity for making public-houses licensed bodies, and in licensing legislation there are some obvious distinctions to be borne in mind. The public-house is not merely valued as a place for drinking. It is the poor man's club and hotel, a place for social meeting and enjoyment, a place for business, a place for general refreshment. Coffee-houses deserve the highest encouragement the State can give, for they fulfil many of these purposes without any attendant evil, and if the taste for them spreads widely, the advantages can hardly be over-estimated. There is a distinction also to be drawn between places which are simply drink-shops, and places which are also eating-houses and places of general refreshment. One of the mischievous results of the outcry against the recognition of any right of compensation in cases where well-conducted public-houses are suppressed is, that it directly tends to encourage the former class at the expense of the latter. The small drink-shop, which does nothing except sell gin, or whisky, or absinthe, which is usually drunk standing at the counter, represents little outlay of captital, while great sums are expended on the superior house, which has something of the character of an hotel or a club. No one will expend money in this way if he knows that, owing to the condition of the law or of public opinion, he is likely, without any fault or imprudence of his own, to be deprived not only of his profits, but of his capital. Measures which make money invested in public-houses precarious are likely in this way to give these establishments a more pernicious character.
There ought also, it appears to me, to be a broad distinction drawn between beer and spirits. Beer in England, like wine in France, produces much drunkenness; but in each case the use is vastly more common than the abuse, and the existence of these beverages is, on the whole, a blessing, and not an evil, to humanity. This cannot be said of those intoxicating spirits which are most largely drunk. If their abuse is not more common than their use, it is at least so common, and its consequences are so fatal, that the balance is clearly on the side of evil. If a spirit-drinking population could acquire a taste for light and unadulterated beers, this might not be all that a temperance reformer would desire, but it would be at least a great and incontestable improvement. One of the evil results that are found to flow from the indiscriminate prohibition of intoxicating liquors is, that men learn to drink whisky rather than beer, as it is more and more easily smuggled.27 It was the policy of the Irish Parliament of the eighteenth century to endeavour to discourage the use of spirits by encouraging breweries. It cannot be said that it met with great success; and the well-meant efforts of the imperial Parliament, in 1830, to diminish the consumption of spirits by multiplying beershops appear to have wholly failed.28 But, in considering the very drastic legislation which is now advocated for restricting or preventing the sale of intoxicating liquors, this distinction between beer and spirits ought not to be forgotten. It would perhaps be carrying refinement too far to distinguish in legislation between spirits which have a direct and powerful influence in stimulating to violence, and intoxicating drugs which, though they may be equally noxious to those who take them, simply stupefy and calm.
It has not been in general usual in England to treat simple drunkenness, which leads to no disorder or violence, as a crime. By two old laws of James I., it is true, it might be punished with a fine of five shillings,29 and the Licensing Act of 1872 made all persons found drunk ‘on any highway or public place, or on any licensed premises,’ liable to a penalty of ten shillings, to be increased on two subsequent convictions.30 But in England mere drunkards are commonly simply shut up for the night, until they become sober, and then released, though in Scotland the law has been much more stringently enforced.31 Opinions on this subject are much divided, but it may be noticed that the eminent jurists from many countries who assembled at the Prison Congress at St. Petersburg in 1889, agreed with Mill and Bentham, that mere drunkenness should not be treated as an offence, and that the law should only take cognisance of it when it assumes the form of disorder and violence.32
Drunkenness is, indeed, a thing which springs from many different sources, and the first condition of treating it is to form a just estimate of its origin and nature. In many cases, as we have seen, it arises from causes that are partly or wholly preventible. In other, and perhaps more numerous, cases it grows out of a weak, idle, vicious, and degraded nature, and it strengthens every evil tendency that produces it. In not a few cases, too, it is deserving of more pity than of blame, for it is associated with the saddest tragedies of human life. Every clergyman, every parish visitor who has had much contact with the poor, has known such cases. This man, he will tell us, was once a hardworking and sober labourer: he never took to drink till his wife died; till his child went to the bad; till his health broke down; till the long strike or the great commercial depression deprived him of his employment and plunged him into debt; till the savings bank or the building society failed, and swept away the savings of his life. When passing through the zone of deep depression, when life had lost all its colour and its hope, he sought, as men in all ages have done, to escape from his desolation and forget his misery through the fatal power of strong drink. ‘It maketh the mind of the king and of the fatherless child to be all one: of the bondman and of the freeman; of the poor man and of the rich. It turneth also every thought into jollity and mirth, so that a man remembereth neither sorrow nor debt; and it maketh every heart rich.33
For this, saddest of all the sources of temptation to drink, there is no effectual remedy; but there is one element in the question which has recently come into great prominence, and is probably destined to colour a good deal of future legislation. I mean the medical aspect of drunkenness. It is now clearly recognised that drunkenness, though it begins as a vice, may soon become a disease—a morbid physical craving which is susceptible of medical treatment. It is a still more startling fact that this disease is hereditary, the children of drunken parents being often born with it. It is probable that in the future history of the world the medical treatment of vice considered as disease will occupy a much larger place than in the past; and restrictions on the sale of spirits will assume a new aspect in the minds of many if the spirit-shop is regarded as the centre and the seed-plot of a serious malady. In one conspicuous instance, indeed, Parliament has been induced by agitation to abandon all attempts to regulate and diminish a terrible disease which is the consequence of vice, but which is at the same time eminently contagious, and spreads its ravages over multitudes who are absolutely innocent. There is, however, less scruple about treating the disease of drunkenness. It was chiefly in the United States that this mode of looking at the subject grew up, and shortly after the middle of the century a large number of inebriate asylums were established, many of them supported by public funds. New York even made a State law empowering certain authorities to commit drunkards to the State inebriate asylum; but the Supreme Court pronounced the measure to be unconstitutional, on the ground that no citizen could be deprived of his liberty except for the commission of crime, and that simple drunkenness could not be treated as such.34
It is not surprising that the new movement should have produced some exaggeration and much difference of opinion. There have been complaints that a certain school of doctors treat drunkenness as so purely a disease that they wholly fail to recognise its immoral nature, and the hopes of many cures, that were at first held out, appear often to have been too sanguine. But, on the whole, the idea is a true and a fruitful one, and it has rapidly spread.
In 1879 and in 1888 Parliament, adopting, but only to a very partial extent, the recommendations of a Commission which sat in 1872, provided for the detention in retreats for inebriates, for a period not exceeding twelve months, of habitual drunkards who ‘make an application for admission.’ As might be expected, this measure, though successful within its limits, had no wide application; but a Commission appointed in 1893 has urged upon the Legislature a policy of a much more drastic kind. Supported by a great mass of medical and other expert evidence, it recommends that habitual drunkards, even if they have not committed any actual offence, should be treated as temporary lunatics, and should, on the application of relations and on the sentence of a judge or magistrate, be subjected to compulsory confinement and treatment in State-regulated and State-inspected retreats for a period not exceeding two years. It is proposed that all right of managing their properties should be taken from them during this period; that their property should be made liable for their maintenance; and that, in cases where neither this source of income nor voluntary contributions proved sufficient, the retreats should be supported by the public rates.35
Such recommendations have not yet become law, but they represent a new and startling departure in the history of the question. In dealing also with the numerous cases of drunkenness which actually come before the magistrates, a great change is gradually being effected. The system of short sentences frequently repeated has been emphatically condemned by the best medical, legal, and prison authorities as perfectly useless, and the method of treatment which has been so successfully adopted in dealing with juvenile crime is coming rapidly into favour. Instead of sending a youthful offender for a short period to a prison, he is now generally sent for a much longer period to a reformatory or industrial school; and while the former treatment proved usually useless or pernicious, the latter treatment has effected, in very numerous cases, a real reformation. The Commission of 1893, to which I have referred, proposed that the police should have power to bring before the magistrates all persons found drunk and incapable in public places; that the magistrates should have additional power of binding them for long periods in sureties and recognisances; that reformatory institutions similar in character to those for juvenile offenders should be established, at public expense, in which habitual drunkards may ‘be subjected to less rigorous discipline than in existing prisons, and to the performance of such labour as may be prescribed.’ It proposed that the magistrates should have the power of sending to such reformatories for lengthened periods, and with or without previous imprisonment, habitual drunkards ‘who (a) come within the action of the criminal law, (b) who fail to find required sureties and recognisances, (c) who have been brought up for breach of such recognisances, (d) who are proved guilty of ill-treatment or neglect of their wives and families, (e) who have been convicted of drunkenness three or more times within the previous twelve months.’
A legislation of this kind exists in Massachusetts, where isolated cases of drunkenness are generally unpunished, except by a night's imprisonment in the lock-up; but where persistent offenders, who have been repeatedly brought before the magistrate, may be sent to prison for a year, or to a reformatory for a still longer time, or, by the order of the court, to a State hospital for dipsomaniacs.36 To English ideas, so long a period of imprisonment, in cases where no actual injury was done by the drunkard, would probably at first appear excessive. The reformatory treatment is also open to the objection that it throws a new and considerable expenditure on the public, and is in the last resort a compulsory payment extracted from the sober, primarily at least, for the benefit of the drunk. On the other hand, it is argued that national resources are never better and more fruitfully expended than in restricting or eradicating some great social disease, especially when that disease is productive of an immense amount of crime and of disorder. The proposals of the Commission of 1893 at least rest upon a true view of the evil to be dealt with. They recognise that habitual drunkenness is a disease, a dangerous form of temporary insanity, and that a prolonged treatment is the only rational chance of its cure.
In estimating the connection between crime and drunkenness there are, no doubt, some prevalent exaggerations. It might easily be imagined that England would have almost attained a moral millennium if the whole amount of crime which is, directly or indirectly, traceable to drink were simply subtracted from her criminal records. But those who will compare the crime of England with that of countries where spirit-drinking is almost unknown, and where drunkenness in any form is very rare, will probably suspect that there is some fallacy in this view. They will suspect that, though the extinction of drunkenness would be a vast benefit to England, that benefit would not be quite so great or unalloyed as is sometimes supposed, for it would, probably, often merely lead to a change of vices. In our age, more than in most others, drunkenness prevails chiefly among the incorrigibly idle, worthless, and morally weak. It is from these classes that criminals in all countries naturally spring, and, although the relation between their drunkenness and their crime is often that of cause and effect, it is also very often that of mere coincidence. Still, when all due allowance has been made for such considerations, it is impossible to resist the evidence that the large majority of the crimes of violence and brutality in England are committed by those who are under the influence of drink, and that a great proportion of other crimes, as well as of improvidence, ruin, disease, and insanity, may be clearly traced to the same source. It is this fact that mainly justifies the legislator in dealing with this subject in a very exceptional manner.
The most popular remedy is the partial or total prohibition of the sale of intoxicating liquors, either by a local veto or by a general enactment. I have already indicated some of the arguments against such a policy. It is an attempt to prevent all men from using drink because some men use it in excess. It means, as has been well said, that whenever two men out of three agree to drink no alcohol, they have a right to prevent the third man from doing so. Such coercion must not be confounded with that which is sometimes found necessary in industrial life for the purpose of carrying out the wishes of a majority. If the great majority of shopkeepers desire to shut their shops on a particular day, or if the great majority of workmen wish to leave the factory at a particular hour, they may plausibly argue that the rule should be made universal, as a dissentient minority pursuing a different course would frustrate their desires. But the man who wishes to go to a public-house does not in any degree interfere with the liberty of those who desire to abstain. In practice, too, the restriction is a measure of extreme partiality. The rich man has his private cellar and his club. The poor man only is restrained.
To attempt to guard adult men by law against temptation, and to place them under a moral tutelage, may, no doubt, in particular instances prevent grave evils, but it is a dangerous precedent and a bad education for the battle of life. There is a specious aspect of liberalism in a proposal to submit such questions to a popular vote; but in truth this is a pure delusion. The essence of real liberty is that every adult and sane man should have the right to pursue his own life and gratify his own tastes without molestation, provided he does not injure his neighbours, and provided he fulfils the duties which the State exacts from its citizens. If, under these conditions, he mismanages his life, the responsibility and the penalty will fall upon himself; but in a perfectly free State the law has no right to coerce him. Violations of liberty do not lose their character because they are the acts, not of kings or aristocracies, but of majorities of electors. It is possible, as many are coming to think, that unqualified freedom is a less good thing than our fathers imagined; that other things may be more really important, and that it is needful and expedient in many ways to restrain and curtail it. But at least men should do so with their eyes open, without sophistry, and without disguise. The strong tendency to coercive laws on all matters relating to intoxicating liquors, to the restriction of freedom of contract, to the authoritative regulation of industry in all its branches, which is so apparent in modern democracy, may be a good or a bad thing, but it is certainly not a tendency in the direction of liberty.
As I have already said, it is manifest that local option may mean the restriction of the liberty of the classes who use public-houses by the classes who never use them, and never need to use them. It is sometimes said, that it only means a transfer of the power of control from a small oligarchy of magistrates to a democratic vote. But this argument is more plausible than just. Magistrates act in this matter in a judicial capacity, with a judicial sense of responsibility, under the restrictions of well-defined precedent, under the supervision and control of the central government. No such restraints are likely to be observed in a popular vote. In questions, also, in which religious passions are strongly enlisted on one side, popular votes are peculiarly apt to be deceptive. Those who are urged by a genuine religious fanaticism will all vote, while great numbers of electors, who themselves never enter a public-house, but who have no wish to suppress it, will be indifferent, and will abstain. On the other hand, the districts where drunkenness is most prevalent, and the spirit interest most inordinately strong, are precisely those in which the local veto can never be obtained.
But for good or for evil, the tendency of opinion throughout the English-speaking world is evidently in favour of increased restriction in this field. It is remarkable, however, that this tendency is much less strong in England than in the other portions of the British Isles, or in the English-speaking communities beyond the water. The long discipline of Puritan Sabbatarianism in Scotland, and the complete empire of the Catholic priesthood over their congregations in Ireland, have made those portions of the Empire more tolerant of coercive laws in the interests of sobriety than England. In the general election of 1895 the temperance question was only one of several questions that were at issue, but there can be little doubt that the support which the Government of Lord Rosebery had given to local veto contributed materially to the result. The restriction of the hours of public-houses, however, both in England and elsewhere, has been generally acquiesced in, and appears to have had a real and beneficial influence; and Irish and Scotch opinion unquestionably supports the more extensive measure of closing public-houses absolutely on Sunday. This policy was introduced into Scotland in 1854, into Ireland in 1877, and into Wales in 1882, and it prevails in nearly all the Colonies. Few men will now agree with Robert Lowe and the more rigid school of Free-traders, that the drink trade should be left to the simple operation of supply and demand. The disorder, the adulteration, the enormous drunkenness growing out of such freedom, have persuaded nearly every one that stringent regulation and inspection are imperatively needed. Very numerous public-houses do not simply satisfy an existing want. They also stimulate and increase it; and men who are certainly not fanatics believe that the number of drink-shops in Great Britain, and still more in Ireland, is now enormously excessive, and that few more demoralising measures have been carried than that which brought the grocers’ shops into the number. But in England, as in most other countries, the difficulties in remedying the evil are very great, and they are complicated, on the one hand by the presence of colossal vested interests wielding an immense political power, and on the other by a fierce fanaticism which will admit no compromise, and which is supported by all the power of great religious organisations.
In the United States, the most various experiments in restricting or prohibiting the sale of intoxicating liquors have been tried, but the extreme fluctuations of legislation and the great conflict of testimony seem to show that no very clear success has been attained. The separate States have an almost absolute power of dealing with the question, and they have adopted widely different policies. The problem in America is, in some respects, different from what it is in England. In the American climate, according to the best medical authorities, the moderate use of alcoholic and fermenting liquors is less beneficial than in England, and the abuse is more rapidly attained and is more gravely deleterious. Drunkenness, too, arises specially from spirits. Except among German immigrants, beer is much less drunk than in England, and wine is much less drunk than on the Continent of Europe. There is also a widespread custom of excluding all strong drinks from repasts, and the greater part of drinking takes place separately at the drinking-bar of the saloon.
The Prohibitionist party is large and powerful, it is ardently supported by the ministers of the chief religious denominations, and most of these ministers are themselves total abstainers. The policy of absolutely prohibiting the sale of intoxicating liquors used to be generally known in England as the Maine Law, it having been enacted in that State in 1851, extended in its operations in 1877, and made a portion of the State Constitution in 1884. It has, however, been much more widely adopted, but has also, after trial, been frequently abandoned. At the close of 1894 there were seven States in which the manufacture and sale of spirituous and malt beverages were forbidden, though the citizens of those States may obtain them for their own private use from other States. Nine or ten other States had tried prohibition and abandoned it, and they include some of the most important and populous States of the Union—among others, Massachusetts and Rhode Island.
In general, it appears evident that the prohibitory system can only work, with any approximation to success, in thinly populated territories. Wherever it is tried it is followed by an enormous amount of evasion and smuggling, and the spirits that are smuggled are usually of the worst and most intoxicating description; but many good authorities think that, under favourable circumstances, it has, on the whole, diminished the amount of intoxication. In the great centres of population, however, the system produces so much opposition, unpopularity, and riot, that it has been nearly everywhere abandoned. The system which has there been generally adopted has been what is called high licensing, usually coupled with some measure of local option. Very much higher fees than in England are charged for licensing public-houses, and the number is usually limited in a defined proportion to the population. It is contended that this system produces a better class of houses, and gives their owners stronger reasons for abstaining from any act that might forfeit the license. In Massachusetts there is an annual vote in every township and city on the question whether licenses should be granted. There are also in America many laws closing public-houses on Sundays and on election days, prohibiting the sale of intoxicating liquors to particular classes of persons and the employment of women at drinking-bars, and even, in some States, making the seller of intoxicating liquors liable for damages on account of injurious acts committed by drunkards. In some States the magistrates, or even private friends, may prohibit the saloon-keepers under penalty from serving a confirmed drunkard with drink. Political motives and interests play a gigantic part in all American legislation on this subject. The ‘saloon-keeper’ is a great personage, both in local and general politics, and the great variety and complexity of the laws in the different States, the frequent changes they undergo, the enormous extent to which they are evaded, and the extreme conflict of testimony about their results, make it very difficult to arrive at any definite conclusion. On the whole, the consumption of intoxicating liquors per head seems to have increased since the era of repressive legislation began; but this is probably much more due to the number and the habits of the foreign immigrants than to any influence of the law.37
The British colonies in America have followed very much in the same lines as the United States. They are said to be, on the whole, more sober than any other portion of the English-speaking world, and the Prohibitionist party is unusually strong. An Act known as the Scott Act, which was carried in 1878, provided that, on the petition of a quarter of the electors of any town or city, a direct vote should be taken on the question whether it should be placed under the provisions of the Act. If a bare majority of the voters desired it, the question was decided for three years. In that case all public-house licenses lapsed at the end of the year without compensation to the owners, and the ordinary manufacture and sale of intoxicating liquors as a beverage were absolutely prohibited. At first this law was adopted very widely and by large majorities; but in a few years the amount of smuggling and the amount of unpopularity produced a reaction, and over the greater part of the country the old licensing system was resumed. Grave questions arose about the relative rights of the Dominion Parliament and the provincial Parliaments to deal with this question. In the North-Western Territory of Canada the dissension was especially formidable. A prohibitory law had been imposed on this vast territory by the Dominion Parliament, in the first instance, it is said, chiefly for the benefit of the Indians, but when the white population increased it became exceedingly unpopular. Smuggling and evasion of every kind took enormous proportions; and here, as elsewhere, it was observed that the smuggled drink was usually of the most noxious and intoxicating description. This state of things continued for nearly ten years. At last the Dominion Parliament, after repeated memorials from the territorial Legislature, gave that body the power of dealing with the question, and the immediate result was that the prohibitory system was swept away, and replaced by the system of licenses.38 During the last few years, however, the Prohibitionist party is said to have increased in Canada, and extensive petitions have been set on foot in many districts petitioning for severer enactments.39
In New Zealand, much drastic legislation on the drink question had been carried. It falls in with the strong tendency to State Socialism which is there so conspicuous, and it is especially easy of enforcement in a well-to-do colony where there are no great cities, and where the whole population but slightly exceeds 700,000 souls. The principle of local option, making the issue and increase of licenses dependent on a popular vote, is here stringently carried out. It was introduced by a law of 1873, and has taken new forms, which it is not necessary to describe in detail, by Acts which were carried in 1881, in 1889, and 1893. Three questions are submitted to the electors in each district at the local option poll: whether the present number of licenses is to continue, whether the number is to be reduced, whether any licenses are to be granted. Nearly the whole adult population, male and female, have votes; but there is a provision, which is proved to have considerable importance as a safeguard against sudden change, that unless half the voters on the roll record are present the poll is void, and matters continue as they were. If the requisite number of voters is attained, a bare majority can carry the first two questions, and if a reduction of the number of licenses is voted, and elected committee have the right to carry it out to the extent of one-fourth. The third question, which involves the absolute prohibition of licenses in a given district, can only be carried in the affirmative by a three-fifths vote. No increase in the number of licenses is to be allowed until after the next census, or then unless the population has increased twenty-five per cent., and unless the voters of the district desire it by a three-fifths vote. In that case one license may be granted for every increase of 700 inhabitants. In New Zealand, as in several other colonies, Sunday closing and the prohibition of the sale of drink to young persons, and to persons who have been found guilty of intoxication, are stringently enforced.40
One fact which is very apparent in New Zealand is, that the enfranchisement of women which has lately taken place is likely to have a great importance on this question. It is observed that the overwhelming majority of female votes is given in favour of repressive measures, some desiring a reduction of the number of licenses, but the very large majority demanding their absolute suppression. The increase which they have given to the Prohibitionist vote, and the vehemence with which women have thrown themselves into this cause, appear to have considerably altered its prospects. In Canada the same thing has been observed. Plebiscites which have no legal force, but which are intended to influence the Legislature, have been lately taken in numerous districts upon the question whether a law should be passed prohibiting throughout Canada the importation, manufacture, and sale of all intoxicating liquors as a beverage. It is stated that the female votes were six to one for prohibition.41 Those who have observed the attitude taken on this subject by most female political organisations and conferences in England, will scarcely doubt that the same spirit exists at home. On the drink question, as well as on several others affecting amusements, industries, and the habits of social life, the increasing political influence of women is likely to be followed by a greatly increased tendency towards legislative interference and coercion.
I do not propose to examine in detail the legislation of the other colonies, but the importance of the Australian ones is so great that their treatment of the drink question may be briefly referred to. No serious attempt has been made to carry out the policy of prohibition, though in some of these colonies it may be accomplished by a local veto; but the principle of local option, limiting the number of licenses in a given district, generally prevails, though with considerable variations of detail and with different degrees of stringency. Nearly all these local option laws are of very recent origin, having grown up since 1880. Victoria differs from the other colonies in giving compensation in cases where a license is withdrawn. This compensation is derived exclusively from the trade, and is raised by increasing licensing fees and penalties for breaches of the liquor law, and, where this is not sufficient, by a special tax on spirits. As the reader will remember, this policy is substantially the same as that which Mr. Goschen attempted in 1890, without success, to carry in England. Several minor measures against intoxication, imitated from American and New Zealand legislation, exist in Australia; but the main defence against excessive drinking is found in the limitation of the number of licenses and in the enforcement of Sunday closing.42
In the Scandinavian countries, where drinking habits had attained an appalling height, the evil has of late years been dealt with by some very instructive and, on the whole, successful legislation. Before 1855 almost complete practical free trade in spirits existed in Sweden; but in that year it was abolished, private distilleries were forbidden, and the sale of spirits was put under strict municipal and parochial control. Ten years later a new policy was adopted in the town of Gothenburg, which was speedily imitated in other towns. Its object was to put an end both to the competition and the adulteration in the spirit trade, by depriving the retailer of all interest in the spread in intemperance. As the licenses of public-houses fell in, many of them were suppressed, and those which the municipality considered it desirable to maintain were placed in the hands of a limited liability company, consisting of the most respectable members of the community, who bound themselves by their charter not to derive any profit to themselves from the sale of spirits, and to pay the whole profits beyond the ordinary rate of interest on the paid-up capital to the town treasury. All persons entrusted by the company with the management of public-houses are strictly bound to sell no spirits and wines that do not come from the company's stores, and therefore none that are not unadulterated, and to sell them solely for account of the company and without any profit to themselves. They are, at the same time, permitted to sell in these establishments malt liquors, coffee, tea, soda and seltzer waters, cigars and food, for their private profit. The object of the system is to make it the interest of the manager to induce his customers to abstain from spirits, and to consume nonintoxicating or only slightly intoxicating drinks. Malt liquors and wine were left untaxed, and until 1874 they were exempt from the local control under which spirits were placed.
Such are the outlines of this remarkable system, which has very justly attracted the attention of all serious moderate reformers. In the words of an American writer who has studied it with peculiar care: ‘If liquor must be sold—and few, even of the most ardent Prohibitionists, will deny that it will continue to be for some time yet—is it not vastly better to take the traffic from the control of the present lower element of society, who conduct it for private gain, and place it in the hands of reputable men with no economic interests to serve, and whose dominating purpose will be its restriction to the lowest possible minimum?’43
I cannot now undertake to enter at length into the controversies that have gathered around the Gothenburg plan. It is certain that its adoption was followed by an immense decrease of drunkenness, which continued for some years. The system, however, does not pretend to prevent those from drinking who desire to do so, and, when condition of wages and work tended strongly in the direction of intemperance, the old habit in some degree resumed its sway. It seems to be admitted that the great and sudden improvement effected in Sweden has not wholly been maintained, and the number of convictions for drunkenness has of late increased. How far this is due to a real increase of drunkenness, or to the increased activity of the police, it is difficult to say. It is certain, however, that intemperance is vastly less than before the Gothenburg system was introduced; that the consumption of spirits has shrunk to a mere fraction of its former amount; and that the drunkenness which exists comes mainly from the increased consumption of beer, which lies in a great degree outside the system, though a measure has very recently been enacted limiting its free sale. The general substitution of beer for spirits has been one of the most marked results of the Gothenburg system. The local testimonies recognising it as a great mitigating and regulating agency are overwhelmingly strong, and it was adopted, with some slight modifications, by Norway in 1871.44
In Switzerland, intemperance had risen to an enormous height, and a very drastic measure was enacted for the purpose of checking it in 1887. It gave the Federal Government complete control over the production and importation of spirits. Private distilling, which had before been largely carried on, was forbidden, and the State became the one wholesale spirit-merchant. The drinking-shops were untouched by the Federal law, except that they were obliged to receive their spirits from the State and to sell a pure quality at an enhanced price. It was provided that a fourth part of the spirits should be distilled in Switzerland; that the profits of the monopoly should be distributed among the different cantons; and that at least one-tenth of the surplus revenue should be employed in some way calculated to counteract the evil effects of alcohol. It is usually employed in educational and charitable institutions, and some part of it in support of institutions for the cure of intoxication. Another part of the same policy was the abolition of the cantonal and communal duties on wine and beer.
In accordance with the provisions of the Swiss Constitution, this policy was submitted at two different stages of its progress to popular approbation by the Referendum, and in each case it was sanctioned by an overwhelming majority. The chief opposition naturally came from the native distillers; but they were compensated for the diminished value of their buildings and plant, though not for the loss of profits. It was alleged, however, that not more than one fourth part of the spirits consumed in Switzerland before the new law was enacted was of home manufacture, and the provision in the law guaranteeing that this proportion should be still maintained protected the native distillers from very serious loss. It is claimed for this measure that it has been a great success. The monopoly has produced to the State a large revenue, the quality of spirits sold is more pure, and it is stated that, on account of the enhanced price, the consumption has been reduced by from twenty to twenty-five per cent.45
In South Carolina, a law was carried in December 1892 which belongs to the same class of legislation as the Scandinavian and Swiss laws. It gave the State a monopoly of the sale of spirits, which were analysed by a State analyst, and sold under rigid conditions, in State dispensaries, by State officials who derived no personal profit from an increased sale. The sale was restricted to the daytime. The spirits were not to be drunk on the premises, and ample precautions were taken to prevent the dispensaries from being unduly numerous and becoming, like the old drinking-saloons, centres of gambling and immorality. The measure appears to have been, in the first instance, designed as a means to raising an additional State revenue, but its bearing on the temperance question is very obvious. It did not, however, exist long enough for us to form any clear judgment of its effects, for it was declared unconstitutional by the Supreme Court.46
Legislation of this type, providing that intoxicating liquors should be pure in quality, reducing their sale to moderate limits, and eliminating at once the motive of personal interest on the part of the seller and many concomitant evils that usually accompany the sale, may do very much to diminish the evil of intemperance. Such legislation conflicts far less than measures of prohibition and severe repression with vested rights and with individual liberty, and experience seems to show that it would, from an economical point of view, be very profitable to the State. In addition, however, to the considerable but not insuperable difficulties of applying it to our exisiting system, and in addition to the opposition it would meet from great property interests, it would have to encounter a kind of religious fanaticism which is peculiarly strong in England, and especially strong among the more extreme advocates of temperance. It is no exaggeration to say that a large number of these would rather see all the evils springing from alcohol unchecked and unmitigated than see the Government directly concerned in the trade; and, by a curious anomaly, this feeling will be found among multitudes who are always prepared to support the imposition for public purposes of heavy taxation on spirituous liquors. Few persons who watch the signs of the times will doubt that further legislation on this subject will soon be made. It is probable that licensing will pass from the hands of the magistrates to those of county and town councils, or of boards elected for this purpose, and that districts will obtain a greater power of limiting the number of public-houses.
Whether the policy of absolutely suppressing the liquor trade, which is advocated by the United Kingdom Alliance, will receive any measure of legislative sanction is more doubtful. It is a policy, as it seems to me, fraught with danger. If it is in any degree adopted, it should be applied solely to those spirituous drinks which are so plainly pernicious that they may be looked upon as having some affinity to poison, and even in these cases it should be applied with much caution. Unless supported by an overwhelming preponderance of public opinion, it is certain to fail. The majority required should be much more than a simple majority, and gradual, experimental, temporary legislation should precede measures of a wide and permanent character. The indirect influences diminishing intemperance are likely to be more efficacious than direct measures, and a law is only really successful when it acts in harmony with a prevailing tendency of habits and opinions.
Public opinion, and especially working-class public opinion, in Great Britain seems on the whole, and to an increasing degree, to approve of the policy of gradually diminishing by legislative measures the temptation to drink. To this kind of legislation belong the various laws restricting its sale on Sundays, on holidays or half-holidays, and in the late hours of the night, and also the Act of 1883 prohibiting the payment of wages in public-houses. A recent and characteristic example will be found in the Act of 1894 establishing parish councils in England. Every one knows how large a proportion of the public business of the upper and middle classes in England is transacted in hotels. But in the Parish Councils Act, which conferred on electors who are chiefly very poor men enormous powers of taxation, administration, and control, a special clause was inserted to prevent these councils from meeting, except in case of absolute necessity, in premises licensed to sell intoxicating liquors. The provision was probably a wise one, but it illustrates curiously the position which modern democracy assigns to the working classes—so largely trusted to govern others, so little trusted to govern themselves.
The connection between morals and religion on the one side, and legislation and administration on the other, is a wide subject, leading to many different fields. Difficult questions constantly arise about the attitude Government should assume towards spectacles, amusements, and customs which, though they may not be absolutely vicious in themselves, have a debasing tendency, and easily or generally become occasions of vice. It is impossible, I think, to lay down any inflexible rule on the subject. Each case must be judged according to its particular circumstances, and one of the most important of these circumstances is the state of public opinion. The presumption in favour of repression is strongest where these things are obtruded on those who never sought them. I have stated in the last chapter my belief that placards assailing any form of religious belief ought not to be permitted in the public streets. On the same principle, solicitations to vice, indecent pictures and advertisements or spectacles in such places, call for a more stringent repression than they always receive. The State cannot undertake to guarantee the morals of its citizens, but it ought at least to enable them to pass through the streets without being scandalised, tempted, or molested. The same rule applies to improper advertisements in public journals which are the common reading of all classes and the general channels of information, and also to vicious writings when they are hawked through the streets, thrust prominently into public notice, or sent unasked to private houses. It applies also to some things which have no connection with morals: to unnecessary street noises which are the occasion of acute annoyance to numbers; to buildings which destroy the symmetry and deface the beauty of a quarter, or darken the atmosphere by floods of unconsumed smoke; to the gigantic advertisements by which private firms and vendors of quack remedies are now suffered to disfigure our public buildings, to destroy the beauty both of town and country, and to pursue the traveller with a hideous eyesore for hundreds of miles from the metropolis. This great evil has vastly increased in our day, and it urgently requires the interposition of the Legislature.
But while in all these fields the presumption in favour of legislative interference and repression is very strong, it becomes weaker in the case of things which are done in buildings which no one need enter unless he pleases; and it becomes still weaker in the case of things that are withdrawn from publicity and confined to private houses or associations. In such cases the individual citizen has a prima facie right to judge for himself, as long as he abstains from injuring or molesting his neighbours. This right may be overridden by the law, but there must be strong reasons to justify it.
Another important group of questions connected with our present subject relate to the marriage law, which has been passing during the last century, to a remarkable degree, from a theological to a secular basis. It would lead me too far to enter here into the very curious and instructive history of the growth of the Christian conception of marriage, in which Roman law and German customs have borne perhaps quite as large a part as purely theological influence, and of the great fluctuations, both of principles and practice, which it presents.47 It will here be sufficient to say that it was only very slowly that the Church acquired a complete control over this field. The civil law of the early Christian emperors and of the early period of the Middle Ages diverges widely from the ecclesiastical conception of marriage, and for a long period of Christian history no religious ceremony of any kind was deemed by the Church necessary for its validity. At an early period of the Church's history it was customary for the priest to give his blessing to a marriage, but it was not pretended that this was essential, and it was far from being universal. According to the doctrine of the Church, the simple consent of the two parties, without any ceremony, constituted a valid marriage.
In the Middle Ages a religious ceremony appears to have been made obligatory by law, and marriages without the intervention of a priest were considered clandestine and irregular; but they frequently occurred, and their validity was perfectly undisputed. In order to put an end to the very numerous abuses growing out of clandestine marriages, the Council of Trent, for the first time, made the celebration of marriage by a priest essential to its validity, and introduced various other regulations connected with it. Its decree did not apply to marriages that had already been contracted, and, in countries where the discipline of the Council had not been formally promulgated, the old doctrine still prevailed, according to which the simple consent of the two parties established a marriage. It still survives in the marriage law of Scotland, where a simple, well-attested declaration of the two parties in each other's presence, or a promise to marry proved by writing and followed by cohabitation, constituted a valid marriage. By an Act of 1856 the further condition was added that one of the parties must have resided, immediately before the marriage, at least twenty-one days in Scotland. In the United States, also, where the marriage law is determined independently by the different States, the same principle is widely adopted. Marriage rests on the English common law, which, in its turn, rests on the canon law, and no ceremony, religious or civil, is necessary to its validity, though certain civil formalities are enjoined by law, and though religious ceremonies are almost always performed.48
From a very early period there was a distinction, and in some degree a conflict, between the ecclesiastical and the civil views of marriage. The Church proclaimed marriage to be a sacrament, and therefore wholly within its domain. It declared it to be absolutely indissoluble. It claimed the right of determining the conditions of its validity, and of varying those conditions by Papal dispensations; and from the period of the Council of Trent it made, as a general rule, its direct participation essential to the existence of a valid marriage among Catholics. Nor, indeed, is it at all certain that this doctrine applied only to Catholics. It is the opinion of a powerful school of Catholic theologians, that in countries like France, in which the discipline of the Council of Trent has been duly promulgated, all marriages of Protestants are simple concubinage; that they are completely destitute of validity; and that, if one of the parties becomes a Catholic, the pretended marriage may be broken, and the convert may be allowed to contract a new marriage.49 An exception must be made in the case of Holland, for Benedict XIV., in 1741, in order to avoid ‘greater evils,’ decreed that in that country marriages not celebrated according to the provisions of the Council of Trent should be deemed valid.50 This, however, appears to be the only clear exception. In other countries where the discipline of the Council has been promulgated it is a widely received doctrine that Protestant marriages are simple concubinage.51
The Church, however, is acknowledged by one of its most accredited expositors to have used ‘dissimulation and tolerance’ in this matter, and the doctrine is rarely put forward, except when the prospect of breaking a marriage may be made an inducement to or a reward of conversion, or a favour to the Catholic partner in a mixed marriage. Two remarkable cases of this kind occurred in Brazil in 1847 and about 1856. In the first case a Catholic woman had been married to a Protestant in Paris. They had been married civilly, and also before a Protestant minister, and they afterwards emigrated to Brazil. Six or seven years later the woman conceived a desire to marry a Catholic, and, having consulted the ecclesiastical authorities, they pronounced that she had full liberty to do so, as her marriage with her present reputed husband was null and void.52 In the other case, which led to a change in the marriage law of Brazil, a Swiss Protestant and a German Protestant had been, as they imagined, duly married by the Evangelical pastor at Rio Janeiro. The woman was converted to Catholicism. Twelve years after her marriage she desired to take another husband, and the Bishop of Rio Janeiro pronounced that, her former marriage being null, she had a right to do so.53 Other examples of the same kind have been cited; but the theologian who is supposed to represent with the highest authority the true Ultramontane doctrine in its sanctity and purity, acknowledges that opinions are not agreed on the subject, and he dilates upon the moderation of the Church and the discriminating manner in which she has used her power to break unpleasant marriages as a special instance of her benevolence.54
While however, the Church claims a complete control over the conditions of a valid marriage, as distinguished from the civil consequences that may flow from it, the State, even in Catholic countries, has rarely admitted this claim to its full extent. Marriage, according to the legislators, in its legal aspect, is essentially a civil contract, and as such it falls within their dominion. The State claims for itself the power of determining the conditions on which it alone can be recognised and these conditions are not always those of the Church.
In most countries a compromise was made between these views. Thus, in France before the Revolution, Pothier proclaimed marriage to be in the eyes of the law a civil contract just as emphatically as Blackstone did in England. He declared that the form of marriage prescribed by the Council of Trent was very wise, and was accordingly adopted and confirmed by the ordinances of the kings, but that, ‘nevertheless, the Council exceeded its power in declaring null by its sole authority contracts of marriage in which that form was not observed; for marriages, in as far as they are contracts, belong, like all other contracts, to the political order, and they are therefore within the competence of the secular power, and not in that of the Council, and it does not belong to the latter to decree about their validity or invalidity.’55 Marriage, however, by the law of France could only be celebrated by a priest, though this provision was not introduced into French law till sixteen years after the decree of the Council of Trent. Divorce was absolutely prohibited. Canonical impediments to marriage were fully recognised. The religious ceremony became a civil act. The care of the official registers of marriages was confided by the civil powers to the clergy; and between the repeal of the Edict of Nantes and the reign of Louis XVI. the only Protestants whose marriages were fully recognised by law were those of Alsace, who had special privileges granted to them by the Treaty of Munster. On the other hand, the priests, in all the civil parts of marriage, were regarded by the law as delegates of the civil power. Papal dispensations in matrimonial cases were not recognised unless they were confirmed by the King. There was in some cases a right of appeal to the Parliament. The State insisted upon conditions of its own. It especially required the consent of parents, following in this respect the Roman law, though the Council of Trent had anathematised those who maintained that marriages without such consent are invalid.56
In most Protestant countries, also, the strong feeling that marriage should be an indissoluble and a religious contract maintained the old Catholic conception. Marriage, it is true, ceased to be a sacrament; while, on the other hand, the slur which was thrown on it by the celibacy of the priests and by the superior sanctity ascribed to virginity was abolished. Usually marriages were celebrated by the ministers of the different denominations. In England, a law of Henry VIII. declared that all persons may lawfully marry who are not prohibited by God's law; it settled the degrees in which marriage is permitted in accordance with the Levitical law, and it pronounced full and perfect marriage to be indissoluble. Before the Marriage Act of 1753, and in accordance with the common law, marriages contracted by simple consent and followed by cohabitation were deemed valid without any religious ceremony, though they did not bring with them all the civil consequences of marriages celebrated in the church, and exposed those who contracted them to some ecclesiastical censure and penalties. During the Commonwealth marriages were purely civil, being celebrated by the justices of the peace; and a law of Charles II. pronounced these marriages to be valid without any fresh solemnisation.57 Divorce, even in cases of adultery, was not permitted by law. Much discussion on the subject had arisen in the reign of Edward VI. The wife of the Marquis of Northampton having been convicted of adultery, her husband obtained a separation a mensa et thoro, and he claimed the right of remarriage. The question was submitted to a commission of ten bishops, presided over by the Archbishop of Canterbury, who proceeded to examine at great length the ecclesiastical precedents on the subject. While the examination was still unfinished Lord Northampton married. After much discussion the commission confirmed this marriage, and he was permitted to live with his wife, but four years later he was advised to have a special Act of Parliament confirming the marriage. When the Catholic power was restored under Mary this Act was repealed.58
This was not the only occasion on which the question of divorce was considered by the early English reformers. Most of the continental Protestants admitted divorce, at least in the case of adultery; and Bucer, whose influence in the English Church was very great, had written with much power on the subject. In the reign of Edward VI. a commission of thirty-two learned men, including Cranmer and Peter Martyr, was appointed by the King, under an Act of Parliament, to make a reformation of the ecclesiastical law, and it agreed, among other things, that divorce should be permitted in cases of adultery, desertion, long absence, capital enmities where either party was in hazard of life, and ‘the constant perverseness or fierceness of a husband to his wife.’59 If the life of Edward had been prolonged, this would probably have become the law of England; but his untimely death prevented it, and the proposal was not revived under Elizabeth.
A curious compromise was gradually adopted. Divorce, even in case of adultery, was not admitted by law, but special Acts of Parliament granted it in particular cases. These Acts were at first very rare; but they became a more settled practice in the chancellorship of Lord Somers,60 and they multiplied greatly in the second half of the eighteenth century. Up to the present day the same system exists in Ireland, to which country the English law of divorce does not extend, and where divorces can only be obtained by special Acts of Parliament.
The famous Marriage Act of 1753 completely reorganised the English law of marriage. It was intended to put an end to the great and growing evil of clandestine marriages, and it provided that all marriages, except those of Jews and Quakers, ‘should be null and void to all intents and purposes’ unless they had been celebrated by a priest in orders according to the Anglican liturgy, and after the due publication of banns in the parish church or in a public chapel, or else under a special license from the Archbishop of Canterbury. This law fully recognised the religious character of marriage. It made a religious ceremony necessary for its validity, and it placed it very directly under the authority of the Church. It did for Anglican marriages much what the Council of Trent had done for Catholic marriages, but it did it by lay, and not by ecclesiastical authority, and English legislators claimed and exercised the power of treating as null and void marriages which, from an ecclesiastical point of view, were undoubtedly valid. The Royal Marriage Act pronounced all marriages of the descendants of George II., other than the issue of princesses married into foreign families, absolutely void if they were contracted without the assent of the King.61 One of the Irish penal laws dealt in the same way with mixed or Protestant marriages celebrated only by a Catholic priest, and the Marriage Act of 1753 greatly extended the same policy. It also produced a new grievance, as the members of other religious denominations naturally objected to being married in an Anglican church and by an Anglican clergyman.
After many abortive attempts, this grievance was remedied by the great Act of 1836, which is remarkable, among other things, for introducing the principle of purely civil marriage once more into English legislation. The marriages of members of the Church of England were unaffected, except by the necessary addition of a civil registry. Dissenters from the Church were allowed to celebrate their marriages in their own chapels, which were registered for the purpose, after giving due notice to the registrar of the district, and those who disliked a religious ceremony were enabled to contract a perfectly valid marriage before the registrar.
The English law on the subject of civil marriage is much less rigorous than that of most other countries, and it is marked to a high degree by the characteristic that distinguishes most English from much foreign legislation. Its object is to satisfy many scruples, to attain many ends, to gratify many parties, rather than to establish the clear ascendency of one logical doctrine. The French law of the Revolution, which was enacted in 1792, which passed with some modification into the Civil Code, and which has been the parent of much of the legislation of Europe, provided that the civil contract should be clearly disengaged in matrimony from all theological accessories, and that it should alone be recognised and confirmed by law. Purely civil marriage, in the French code, is at once obligatory and sufficient, though as soon as it has been celebrated the married persons are left at perfect liberty to go through any religious ceremony they please. Two things only are clearly laid down. One is, that an ecclesiastical marriage in the eyes of the law is merely a religious ceremony, and has absolutely no legal validity. The other is, that it is a criminal offence for any priest to perform such a ceremony until after the accomplishment of the civil marriage.
It is claimed, with much justice, for the French law of marriage that it is clear, simple, and uniform, and that, by laying down the principle that marriage is a natural right of all men, irrespective of all considerations of creed and rank; it has swept away a vast mass of unjust disabilities, inequalities, and irregular connections.62
One of the most curious chapters connected with this subject is the great number of imperfect, partial, or approximate marriages which have existed in the world, growing for the most part out of aristocratic or theological exclusiveness. In the earlier periods of the Roman Republic no valid marriage could be contracted between a patrician and a plebeian, and the acquisition of this right of marriage was one of the great objects of plebeian politics. This object was at last attained, but a number of other disabilities to marriage had been established by Augustus. In later times, side by side with the ‘justæ nuptiæ’ was the connection called ‘concubinatus.’ It was not an illicit connection, for it was clearly recognised and protected by law, and a man who, having one concubine, formed any other relation was guilty of adultery. Its object was to regulate connections between men and women of very different ranks and fortunes. Like the simpler kinds of Roman marriage, it was formed by mere consent, and dissoluble at will. Its principal characteristics were that it might be contracted between persons who could not legally marry; that the woman brought with her no dowry; that she retained her own civil position, and did not share that of the man; and that the children bore her name, held her rank, and succeeded to her property, and not to the property of the father.63
There are some curious examples of irregular or semiregular connections during the Middle Ages which were either authorised or notoriously tolerated. The most important were those connected with the doctrine of clerical celibacy. There was a time when clerical marriage was fully permitted. There was another time when a married priest was recognised, but when the marriage relationship was looked on in his case as in some degree shameful, and husband and wife were expected to separate; and there was a time when clerical marriage was forbidden, but when connections that were not formally legitimate were generally tolerated and recognised, were sometimes even enforced by parishioners in the interests of public morals, and probably brought with them no sense of moral guilt. This subject is a very curious one, and a careful examination of it is much to be commended to those who would seriously study the influence of the Roman Church on the morals of the world.64
In more modern times, in Prussia and some other German States, we find what are called ‘morganatic marriages,’ or marriages ‘of the left hand,’ which were contracted between princes and nobles of high rank and persons of inferior position. They bore a strong resemblance to the Roman concubinatus, being legitimate but inferior connections, which did not give the wife the rank of her husband, or the children the title or succession of the father. They were frequently celebrated between nobles and women of the peasant rank or of the lower-middle classes, but in order to be fully recognised they required the authorisation of the sovereign, and also most of the formalities that were demanded in a regular marriage. They might, under certain circumstances and conditions, be turned into regular marriages.65
Up to very recent times German law contained a multitude of disabilities on marriage, most of which have never been known in England. Marriages between nobles and women of inferior classes were illegal without a special dispensation. The consent of superiors to the marriage of functionaries of different orders was very generally required; and in the marriage of the poor there were many curious provisions requiring the assent of the commune, of the feudal lord, of magistrates, or of administrators of poor laws.66 The marriages of persons in actual receipt of poor-law relief were constantly forbidden, and in many cases the legislators went further, and prohibited all marriages until the contracting parties could prove that they possessed the means of supporting a family. The stringent Bavarian law on this subject is well known; far into the nineteenth century very similar enactments existed in Norway, Mecklenburg, Saxony, Württemberg, and the canton of Berne,67 and I believe the same system may still be found in the communal legislation of some parts of the Austrian Empire.
It may be defended by powerful arguments. It is an attempt to enforce by law a real though a much neglected moral duty. It was urged that it lay within the legitimate province of the commune, for the pauper children of improvident marriages will naturally become a charge upon them, and that in districts where this provision is enforced there will usually be found a well-to-do peasantry and a high level of comfort, order, and civilisation. But these advantages, it is truly said, have usually been purchased at the price of an increase of extra-matrimonial connections and of illegitimate births. In this case we have one of those conflicts between advantages and disadvantages differing in kind which form perhaps the greatest difficulty of moral philosophy. It is a curious fact that this system of retarding marriages and prohibiting them when improvident has existed in some of the most Catholic parts of Europe, while in Ireland and in Canada priests, in the professed interests of morality, have usually been ardent advocates of early marriage.
Religious intolerance in its different forms had produced great numbers of imperfect marriages. In France, as I have said, Protestant marriages for a considerable period of time carried with them no civil rights; and great evils have arisen from the laws that long made English marriages that were not celebrated by an Anglican clergyman, and Irish marriages between Protestants and Catholics, or between two Protestants, that were celebrated only by a Catholic priest, null and void. There have always been large numbers of women who would never enter into a connection which they believed to be morally wrong, but whose consciences were fully satisfied by a religious ceremony which their Church pronounced to be sufficient, although it left them wholly unprotected by law, and liable at any time to be discarded or displaced. Connections of this kind, sanctioned by religion, but unsanctioned by law, have been very common, and they have had effects upon titles and property that are felt to the present generation.
In our own day, the same evil assumed formidable proportions in Italy after the introduction of civil marriage in 1865. The law made civil marriage alone valid, but it did not follow the wise example of the French law in making it a criminal offence to celebrate the religious ceremony till the civil marriage was accomplished, and the result was that great numbers of couples, especially of the poorer class, contented themselves with a religious ceremony, and were never married in the eyes of the law. A similar evil was very common in Spain between 1870 and 1875, when a law like that of Italy was in force. In countries, too, where the clergy presided over and regulated marriages, differences of religion were usually obstacles to legitimate marriages. The marriage of a Christian with a Jew was for a long period deemed one of the gravest of criminal offences, and is even now in some countries forbidden by law. The marriage of a Christian and an unbeliever stood in the same category. Marriages between the orthodox and the heretic were either absolutely forbidden or only permitted on the condition that all the children were brought up in the dominant creed. One infamous ecclesiastical law, for which, however, there was a precedent in Roman legislation, deprived actors and actresses of the right of marriage; and the Catholic Church introduced a new kind of disability by pronouncing that persons who were wholly unconnected with one another, if they became sponsors at baptism to the same child, acquired a relationship which made it criminal for them to marry. In most Catholic countries vows of celibacy have constituted a disability, even when those who took them have abandoned their profession and their religion; and, through other motives, there have been in the United States strict laws against the marriage of whites with negroes or Indians.
There is hardly any change in modern legislation which is more important or more significant than the gradual transformation of the legal character of marriage. The first country on the Continent which adopted the principle of civil marriage was the Netherlands; but in 1787 Louis XVI. introduced it for the benefit of Protestants, but of Protestants alone. The French Revolution in 1792 made it universal in France. The conquests of Napoleon greatly extended its area; and it has since spread with extraordinary rapidity through the principal legislations of the world. While civil marriages have been usually made obligatory and legally sufficient, the parties are left at full liberty to celebrate, in addition, any religious ceremony they desire; but the French system, which has been adopted in Holland, Belgium, Germany, and Switzerland, guards against the existence of religious marriages that are not legal marriages by strictly forbidding the religious ceremony till after the civil one has been performed.
The introduction of civil marriage into the legislations of Catholic countries is especially significant, for it has been accomplished in the face of the most strenuous ecclesiastical opposition. It is true, indeéd, that it is little more than a reversion to the state of things that was at least acquiesced in before the Council of Trent, but there is no system which the modern Church has more bitterly denounced. Civil marriage was declared by Pius IX. to be a filthy concubinage.’68 Perrone, the chief Ultramontane expounder of the Catholic doctrines on matrimony, declares that ‘civil marriage, wherever the Council of Trent has been published, is in its nature a base concubinage, and all who pass their lives united only by a civil marriage are obnoxious to the penalties decreed by the Church against those who are living in public concubinage,’ and he pronounces the legislation of those countries which have admitted civil marriage to be utterly opposed to the doctrines of the Church.69 Pius VII., in 1809, ordered the Italian bishops to insist that in all cases the religious marriage should precede the civil one.70 In a letter of Pius IX. to Victor Emanuel the true Catholic doctrine of the respective functions of the Church and of the State in marriage were very tersely expressed: ‘Let the civil power determine the civil consequences that flow from marriage, but let it leave it to the Church to regulate the validity of marriage among Christians. Let the civil law take as its starting-point the validity or invalidity of a marriage as the Church has determined it, and, starting from this fact, which lies beyond its power and its sphere, let it regulate its civil effects.71
The introduction into the legislation of so many countries of a principle so fundamentally opposed to the teaching of the Church is a proof, only less striking than the general establishment of religious liberty by law, of the declining influence of Catholicism in the government of the world. That decline has not been uniform. There have been many temporary reactions, many unexpected recrudescences, but on the whole, those who will study the broad lines of recent legislation can, I think, have little doubt of the direction in which the stream is moving. In England and some other countries the establishment of civil marriage has been mainly a measure of relief granted as an alternative system to small sections of the community, but leaving the great mass of marriages unaffected. In some countries it is restricted to dissenters from the established creed. In other countries it has had a wider influence, and, among other results, has put an end to a great number of disabilities growing out of theological ascendencies and feudal restrictions. Thus, in Germany, until a very recent period, religious marriages in most States were alone recognised, though divorce was allowed with great facility. Civil marriage, however, existed in the free town of Frankfort. It existed in the provinces of the Rhine, which, like Belgium, still retained, under another rule, the marriage law they had received when they were a portion of the French Empire. It existed also, in some States, for the benefit of dissenters from the National Church. In 1868 and 1869 nearly all the feudal disabilities I have enumerated were abolished in Prussia and in the whole North German Confederation, and in 1875 civil marriage on the French model was made obligatory and universal through the German Empire.72 A clause was inserted in the law directing the registrar to inform the newly married couples that nothing stood in the way of their afterwards asking the blessing of their Church.
In Italy, civil marriage was introduced in 1865; but, as I have already mentioned, no step was taken to prevent religious marriages which had no legal validity from being substituted for them. In Switzerland the marriage laws were for a long time varied in the different cantons, but in 1875 a Federal law established a uniform system of obligatory civil marriage through the whole of Switzerland, and at the same time abolished all the surviving disabilities founded on theological doctrines or on poverty.73
In Spain the history has been a somewhat different one. For three centuries the decrees of the Council of Trent governed all Spanish marriages, but on the downfall of Isabella, in 1868, a new spirit passed over Spanish government. In 1870 and 1871 laws were passed establishing civil marriage as alone valid, but leaving the priests at liberty to celebrate religious marriages before or after. The result in a very Catholic country where the peasantry were scarcely touched by new ideas, and where the empire of custom was very strong, could hardly be doubtful, and great numbers of persons refused to recognise the new law, contented themselves with the benediction of the Church, and lived in a state of legal concubinage. The law was so unpopular and produced such bad effects that in 1875, when the monarchy was re-established, the legislators retraced their steps. A retrospective law legitimised marriages and the offspring of marriages which had been celebrated only by a religious ceremony since 1870, and restored the system of purely religious marriages for Catholics. Civil marriages, however, as provided by the law of 1870, continued for non-Catholics and for ‘bad Catholics’ who, owing either to the failure of their faith or to ecclesiastical censures, could not sanctify their union by a sacrament. This double system was ratified, but also modified, by a marriage law of 1889. The two kinds of marriage were both recognised—canonical marriage, which all who profess the Catholic faith ought to contract, with all the conditions prescribed by the Council of Trent; and civil marriage, for those who could not or would not conform to the religious ceremony. It was provided that a civil magistrate must always be present at a religious marriage, and must register it, and the priest was forbidden to celebrate it without his presence. Secret canonical marriages, however, are recognised, but they must be civilly registered in a secret register kept specially for this purpose. A Portuguese law of 1868 in the same spirit recognised two kinds of marriage—religious marriage for Catholics, civil marriage for non-Catholics.74
In the Austrian Empire the marriage legislations have been very various, and have undergone many vicissitudes. In 1856, when, under the influence of the Concordat with Rome, the Empire passed through a dark cloud of superstition and intolerance, the State abdicated nearly all the control it had previously exercised on marriages, and placed them entirely in ecclesiastical hands and under the decrees of the Council of Trent. Marriages between Christians and non-Christians were absolutely forbidden. Marriages between Catholics and non-Catholics were only tolerated on the condition that all children should be brought up in the Catholic faith. Austria at this period seemed one of the most backward nations in Europe; but its reactionary legislation was no true reflex of the spirit of its people, and when the hour of resurrection arrived it rose speedily to the light.
I have already described in some of its parts that long course of singularly enlightened, moderate, and successful legislation which began in 1868, and which has made Austria one of the best-governed countries in Europe. I have here to deal only with a single department. The legislator did not introduce any violent revolution into the marriage law. He contented himself, in 1868, with a law about mixed marriages, providing that the parents might make any arrangement they pleased about the religion of the children; that in the absence of any such arrangement the boys should be brought up in the religion of the father, and the daughters in the religion of the mother; and that every person above the age of fourteen should have the right to choose his or her religion. By another law of the same year the ecclesiastical courts, which had been established for matrimonial cases under the Concordat, were replaced by civil courts; the civil power regained the right it had previously possessed of concurring independently with the religious power in the regulation of marriage, and it was provided that, in cases in which the priest refused to marry on account of some disabilities which were not recognised by the civil law, civil marriage could be celebrated. A strong party, which had for a time an ascendency in the Lower House, demanded the establishment of universal and obligatory civil marriage as in France; but the Upper Chamber has hitherto steadily resisted, and this system is only in force for members of religions not recognised by the State.75 In Hungary, after a long and desperate struggle with Papal influence, a great reform has very recently been accomplished. Before it was carried there were no less than seven different legislations regulating the marriage conditions of different kinds of dissenters; but in 1894 all these complexities were swept away, compulsory civil marriage was established for all creeds, leaving its members afterwards free to ask the blessing of their respective Churches; and at the same time marriages between Jews and Christians became legal, and the principle was recognised that, in mixed marriages, the boys should follow the religion of the father, and the girls that of the mother.76
The tendency to emancipate marriage from the control of the Church, which is so apparent in Europe, has spread to the Catholic States in the New World. A law of 1873 makes marriage in Mexico a purely civil contract, within ‘the exclusive competence of functionaries and authorities of the civil order,’ and the Brazilian Constitution of 1891 recognises only civil marriages.77 In the republics, however, of Peru, Bolivia, and Ecuador, intolerance still reigns supreme. Marriage is altogether in the hands of the Church, and all legal recognition of Protestant marriages is refused.
In the Protestant Scandinavian countries, and in the countries under the dominion of the Greek Church, the religious character of marriage is, on the whole, more strongly maintained. In Denmark, Sweden, and Norway, marriage is in its form a religious ceremony, though the civil power undertakes to regulate its effects, and on occasions to dissolve it. Civil marriage also exists in Sweden and Norway, but only for those who dissent from the Established Church.
In Russia it was introduced in 1874, but only for the benefit of dissenters. In the small Slavonic States of Southern Europe the purely religious marriage type still prevails. Roumania has in most respects copied the French Civil Code, but with this remarkable difference, that civil marriage, except in some special cases, only becomes valid when it is followed by a religious benediction.78
This brief sketch will, I hope, be sufficient to give the reader a clear conception of the character and the tendencies of the chief contemporary legislations on the subject of marriage. The permission of divorce is closely connected with the introduction of civil marriage, but it does not follow it strictly. Civil marriage has sometimes existed without the permission of divorce, and divorce has been sometimes permitted in countries where marriage has been strictly religious.
Looking at the question prima facie, it might appear evident that a doctrine which regards marriage merely as a civil contract entered into by adult persons for the furtherance of their happiness, would necessarily imply the liberty of divorce if the two parties to the contract mutually desired it; if the conditions on which they entered into it are not fulfilled; if it is found to result, not in the happiness, but in the misery of the contracting parties. Promises and engagements exchanged between two persons may be dissolved if both parties agree to do so; and although the law is bound to prevent one party from violating a contract to the detriment of the other, it is naturally silent when both parties are consenting. The burden of proof rests upon those who make the marriage contract an exception. Of all contracts, it is that which is most frequently entered into under the influence of blinding passion, and at an age when experience and knowledge of life are immature, and it is a contract in which happiness and misery mainly depend upon conditions of character and temper that are often most imperfectly disclosed. It is the most intimate of all relations. It is that which affects most closely and most constantly the daily happiness of life; and as its natural end is a complete identification of feelings and interests, as it brings with it a far ampler knowledge of the circumstances of a life than any other relation, it may, if it fails in its purpose, become in the highest degree calamitous, and it gives either party an extraordinary power of injuring the other.
If considerations of this kind stood alone they would appear invincible. But another order of considerations has at all times, though in different degrees, weighed powerfully with legislators and moralists. The stability of the family is more essential than any other single element to the moral, social, and even political well-being of a nation. It is of vital importance to the education of the young. It is the special seed-plot and condition of the best virtues of the community, the foundation-stone on which the whole social system must rest. Few greater misfortunes can happen to a nation than that the domestic virtues should have ceased to be prized; that family life, with all its momentous interests, should have become the sport of passion and of caprice.
It is contended, with much reason, that this would inevitably be the case if unlimited license of divorce were granted, and especially if the idea of permanent separation and new marriage were constantly present to the minds of either party. Marriage, beyond all other relations, depends upon a slow and steady formation of habits. When men and women look upon certain conditions as permanent and inevitable, their feelings and habits will gradually accommodate themselves to them. But if the tie is a very lax one, separate interests will soon grow up; passing differences will deepen into aversion; vagrant caprices will be indulged; prolonged sacrifice will be impatiently borne when an alternative is easy; and the repose, the confidence, and the security that are essential to happy marriages will be fatally impaired.
Another important consideration is the inequality that subsists between the two parties. The woman is the weaker; she is commonly the poorer; her happiness is usually much more bound up with domestic life than that of the man; and the strength of passion may subsist in one sex when the power of gratifying and inspiring it has departed from the other. Every one who is acquainted with moral history knows how many divorces in the past have been due to this cause, and what grave injuries they have inflicted on the weaker partner. At the same time, this argument is one which may be easily pressed too far. The injuries for which, in most countries, divorce is granted affect women more than men, and in the countries where divorces are most frequent women form the larger number of the petitioners.
On the whole, however, the considerations I have alleged have convinced the great majority of legislators and moralists that marriage cannot be treated as an ordinary contract, and that its dissolution should only be permitted on very serious grounds. But contemporary legislations differ widely about the number and the nature of those grounds.
The Council of Trent, settling finally, for the Catholic Church, a question which from a very early period of Church history divided its chief authorities, pronounced adultery not to be a justification of divorce, and duly consummated marriage to be absolutely indissoluble. Separation ‘from bed and board’ may, under certain circumstances, be judicially pronounced; but divorce, involving the liberty of remarriage, is absolutely condemned. At the same time, the Catholic doctrine is not, in fact, quite as inflexible as it appears, for the Church recognises many grounds on which marriage may be pronounced null from the beginning; and some of these grounds are so obscure, technical, and remote, that they have given ecclesiastics a large practical power of dissolving marriages which had appeared perfectly valid. I have already cited the opinion of Perrone about the marriage of Protestants in countries where the discipline of the Council of Trent has been promulgated, and about the reserved, though concealed, power which, in the opinion of that eminent divine, the Church possesses of breaking these marriages if one party becomes a Catholic. Pre-contracts, or earlier engagements of marriage, and very remote affinities extending to the fourth degree and far beyond the Levitical limits, have been made, in the absence of the proper dispensations, causes for dissolving marriages. Affinities might be constituted, not merely by lawful marriages, but even by adulterous connections; and they might also be constituted by spiritual relationship. Coke mentions a case in which a marriage was pronounced null because the husband had stood godfather to the cousin of his wife. Catholic theologians enumerate no less than fourteen classes of impediments to marriage.79 The statute of Henry VIII. regulating English marriage complains bitterly of the uncertainty and instability which the Church had introduced into this relation. ‘Many persons,’ it said, ‘after long continuance together in matrimony, without any allegation of either of the parties, or any other, at their marriage why the same matrimony should not be good,’ had been divorced, contrary to God's law, on the pretext of pre-contract, or by reason of ‘other prohibitions than God's law permitteth.’ ‘Marriages have been brought into such an uncertainty thereby that no marriage could be so surely knit or bounden but it should lie in either of the parties’ power…to prove a pre-contract, a kindred and alliance, or a carnal knowledge to defeat the same.’80
A curious modern instance of the manner in which, when some great personal or political interest is in question, the doctrine of the Church may be found to harmonise with the wishes of worldly politicians is furnished by the divorce of the Empress Josephine. When the Pope agreed to crown Napoleon and Josephine in 1804, the Empress went to him and acknowledged that her marriage had been only a civil one. It was her ardent desire to obtain a religious marriage, and the Pope, by refusing on any other condition to crown her, obtained the consent of Napoleon. The religious ceremony was celebrated secretly the day before the coronation.81 Cardinal Fesch performed it, with the express authorisation of the Pope. Several eminent persons were present, and it is stated—though on that point there is some dispute—that Talleyrand and Marshal Berthier were the witnesses. The conscience of Josephine was fully satisfied, and she naturally believed that, in the sight of the Church at least, her marriage was holy and indissoluble. Five years later, however, Napoleon determined to divorce her and to marry Marie Louise. The reason of the divorce was that Josephine had no children, and, in the eyes of the secular politicians who surrounded Napoleon, the importance of providing a direct heir for the throne justified the step. The dissolution of the civil marriage encountered no difficulty; but it might have been supposed that the Church, which is governed by higher considerations, would have been more difficult.
It must be stated that the Pope was at this time a prisoner at Savona. He was not consulted; and his conduct when Napoleon annulled the marriage of his brother Jerome shows clearly that he would not have consented. The praise or blame of this transaction falls chiefly on a council of seven bishops presided over by Cardinal Maury. The question was brought before the diocesan and the metropolitan authorities, and it was decided that on three distinct grounds the Catholic marriage was void. There had not been a perfect consent, for Napoleon is alleged to have more than once stated that he went through the ceremony only to pacify the conscience of Josephine, and had never intended to bind himself for ever. The marriage was celebrated by a Cardinal, and not, as the Council of Trent prescribed, by the priest of the parish; and although Cardinal Fesch had acted, as he himself stated, under the express direction of the Pope, who had authorised him to dispense with formalities, no document of dispensation had been drawn out. There had also been an informality about the witnesses. On these grounds the religious marriage was pronounced void, and the Emperor was solemnly assured that he would be sinning against the Divine law if he continued to live with Josephine. He was not deaf to this pious exhortation. The same Cardinal who had married him to Josephine performed the ceremony for her successor. Napoleon, in announcing his divorce to the Senate, declared that he was only following the example of thirteen French sovereigns.82
The general maxim, however, that divorce is in all cases criminal, has, since the Council of Trent, been steadily maintained by the Catholic Church, and laws permitting it in Catholic countries have always been bitterly opposed. The French legislators in 1792 established it on almost the widest terms. They granted it on the mutual desire of the two parties, and even at the wish of one party on the ground of mere incompatibility of temper, subject only to a short period of delay, and to the necessity of appearing before a family council, who were to endeavour to arrange the dispute. They granted it also for a large number of definite causes, such as judicial condemnations, grave mutual injuries, desertion, notorious immorality, prolonged absence, emigration contrary to the law, and insanity. The law, at the same time, while authorising divorce, of which good Catholics could not avail themselves, put an end to judicial separation, which had hitherto been their only refuge. The result of this law, or, probably much more truly, the result of the utter moral anarchy that then prevailed in France, was an extraordinary multiplication of divorces. In twenty-seven months after the promulgation of the law of 1792, 5,994 divorces were pronounced in Paris; and in the year VI. the number of divorces in the capital actually exceeded the number of marriages.83
In that year the ‘Civil Code’ was drawn up, and one of its most valuable points was the regulation and restriction of divorce. The grounds on which it might be granted were considerably diminished, and mere incompatibility of temper was no longer reckoned among them. Divorce, however, by mutual consent remained, though it was surrounded by serious restrictions, by elaborate, costly, and dilatory forms. A year must elapse in this case between the demand for divorce and the sentence granting it, and three more years must elapse before either party could remarry. Judicial separation, at the same time, was revived, so that the position of good Catholics was unimpaired.84
Divorce was abolished in France, in 1816, by the Government of the Restoration, though civil marriage still remained; but it was preserved in Belgium the Rhenish provinces of Prussia, and the Grand Duchy of Baden, which were now severed from French rule. Various attempts were made to re-establish it in France, but, in spite of the many revolutions of power that took place, they were not successful until 1884. The law which was enacted in that year revives, with some modifications, the divorce law of the ‘Civil Code,’ but divorce by mutual consent is no longer included in it. It provides, among other things, that all couples who have for the space of three years been judicially separated are entitled, without further proceedings, to a divorce, and it renders the simple adultery of a man, as well as of a woman, a sufficient cause. Among the causes of divorce according to the new law are ‘bad treatment and grave injuries,’85 and under the shelter of these vague words the French law courts seem to have included nearly every kind of at all serious provocation.
The movement for establishing divorce, however, has certainly not spread among Catholic nations as rapidly as the movement for the establishment of civil marriage. Italy, Spain, Portugal, and the Catholic States of America, though they have profoundly modified their old marriage laws, still refuse to admit divorce.86 In the Austrian Empire the marriage of Catholics is indissoluble, but divorce is admitted where the married couples belong to other creeds. The injured party may obtain it for adultery, condemnation to a long period of penal servitude, prolonged desertion, and some grave acts of injury or violence; it is also granted in case of ‘invincible aversion,’ but only after long delay and several successive separations and reunions; and there are some special provisions, into which it is needless for us to enter, about the divorce of Jews.87 The measures of 1874 and 1875 giving Switzerland and Germany uniform marriage laws dealt in different ways with the question of divorce. The Swiss law extended it to all the cantons, but the German law left it substantially to the separate legislations of the different States, though it introduced some general regulations about subsequent marriages.88 In Europe, as in the United States, sincere Catholics refrain from availing themselves of the privilege accorded by law. In France, however, the divorce law of 1884 has been largely used. Divorces are found to be far more numerous than judicial separations, and their rapid increase, especially among the working classes and the very poor, has seriously alarmed many politicians who are far from being bigoted Catholics.89 Some interesting statistics on the subject have been given in a recent report to the British Foreign Office. It appears that between July, 1884, and the end of December, 1891, 45,822 divorce cases had been brought before the civil tribunals, and that in 40,300 cases the divorce had been granted. The proportion of divorces to marriages, which in 1885 was fourteen to 1,000, had risen in 1890 and 1891 to twenty-four to 1,000. These divorces are mainly among the town populations. The peasant class, who form nearly half the population of France, are said not to furnish more than 7 per cent.90
French legislation and example have always exercised an enormous influence on the whole Latin race, and it is probable that divorce, having been firmly established in France, ‘will, sooner or later, spread widely through Catholic nations. The Protestant Churches and the Greek Church have never condemned it in the same unqualified manner as the Roman Church. Nearly all the Reformers admitted it for adultery and malicious desertion, and many of them on several other grounds, and it gradually passed into German and Scandinavian legislation.91 England, however, on this subject hung dubiously between the opposing creeds, and Cranmer and his followers failed, as we have seen, to bring her into line with the Reformed Churches. Divorce remained absolutely forbidden by law, though it was soon granted in particular cases by special Acts of Parliament. It was the custom to pass these Acts only when a separation ‘from bed and board’ had been first decreed by the ecclesiastical court, and when an action for damages had been brought in the civil court against the offending party. Parliament always granted a man divorce on account of the adultery of his wife, but it was very rarely granted to a woman on account of the adultery of her husband, and then only in cases where there were special causes of aggravation.
This system was manifestly absurd. It gave up the principle of the indissolubility of marriage, and at the same time, by a glaring injustice, it restricted relief to the very rich, as neither poor men nor men of moderate fortunes could avail themselves of it. The injustice was often felt, but it was never brought out more efficaciously than by Justice Maule in a case which was tried before him in 1845. The culprit was a poor man who had committed bigamy. The defence was that when the prisoner married his second wife he had in reality no wife, for his former wife had first robbed and then deserted him, and was now living with another man. The judge imposed the lightest penalty in his power, but he prefixed it by some ironical remarks which made a deep and lasting impression. Having described the gross provocation under which the prisoner had acted, he continued: ‘But, prisoner, you have committed a grave offence in taking the law into your own hands and marrying again. I will now tell you what you should have done. You should have brought an action into the civil court, and obtained damages, which the other side would probably have been unable to pay, and you would have had to pay your own costs—perhaps 100l. or 150l. You should then have gone to the ecclesiastical court and obtained a divorce a mensa et thoro, and then to the House of Lords, where, having proved that these preliminaries had been complied with, you would have been enabled to marry again. The expenses might amount to 500l. or 600l., or perhaps 1,000l. You say you are a poor man, and you probably do not possess as many pence. But, prisoner, you must know that in England there is not one law for the rich and another for the poor.’
The scandal of this system was remedied by the Divorce Act of 1857, an Act which was furiously opposed, and which is in some respects very defective, but which has undoubtedly brightened many lives and relieved a vast amount of poignant and undeserved suffering. The discussions on the subject were curious as showing how powerfully, even to that late period, theological methods of thought and reasoning prevailed in the British Legislature. There were speeches that would seem more in place in a Church council than in a lay Parliament. An Act, however, was at last passed granting divorce to men on account of the adultery of their wives. A wife, however, could not obtain divorce on account of the simple adultery of her husband. She must be able to prove, in addition to the adultery, cruelty, or some specific and very atrocious aggravation of the crime. The consciences of the clergy who objected to divorce were wisely attended to by a clause providing that no clergyman could be compelled to marry a divorced person, though he was not permitted to refuse the use of his church for the celebration of such marriages. In a country which possesses an established Church less than this could scarcely be demanded, though the mere permission of such marriages in the church has lately been made an ecclesiastical grievance.
Apart from the difference between the rights of the two sexes which was established in the Divorce Act, the Act is a manifestly imperfect one. If divorce is admitted at all, on utilitarian grounds, there are reasons quite as strong as adultery for granting it. It is a scandal to English legislation that it should not be granted when one of the partners has been condemned for some grave criminal offence involving a long period of imprisonment or penal servitude, or for wilful and prolonged desertion,92 or for cruelty, however atrocious, if it is not coupled with adultery. In all continental legislations which admit divorce a catalogue of grave causes is admitted which justify it. In my own opinion, gross, habitual, and long-continued drunkenness should be among them. Much is said of the injury which the permission of divorce would inflict upon women and upon children; but in most of the cases I have just specified women suffer far more frequently than men from its denial, and few greater curses can be inflicted upon children than that they should be brought up by drunken or criminal parents. Divorce laws drawn substantially on the lines I have indicated were enacted in Victoria in 1889, and in New South Wales in 1891. The general tendency of continental legislations seems to be to make all cases in which judicial separation can be granted causes for divorce. It is obvious that, when such separations have taken place, the puposes of marriage are defeated. It is a more difficult and intricate question whether divorce should be suffered to supersede separation, as is the case in many continental countries, or whether the latter should not still continue for those whose principles prevent them from availing themselves of the former.
I do not believe that there is any real reason to think that the standard of domestic morals in England has been impaired by the strictly limited right of divorce which was granted by the Act of 1857. The scenes of shame and vice and domestic wretchedness that are often disclosed in the Divorce Court are certainly not produced by it, though much misery and wickedness which would otherwise have festered in lifelong secrecy are brought by its action into the light of day. It is, however, true that the exposure of the inmost secrets and of the worst sides of domestic life through the reports of the Divorce Court is a source of real demoralisation. The respectable portion of the press fully recognises it, and does its best by very abridged reports to minimise it; but there is a certain section which finds in these reports a kind of literature which is, unhappily, as popular as it is degrading. It is absurd, however, to contend that this abuse is unavoidable, for the publicity of divorce proceedings is almost peculiar to England. It is, I believe, a nearly unmixed evil. Ample guarantees for the observance of justice could be obtained without it; and, in addition to its effect in fomenting and gratifying an appetite for impure scandal, it seriously obstructs the course of justice, by scaring witnesses from the witness-box. Much complaint has also been made of the large amount of perjury that has taken place in the Divorce Court. This is partly because the law on the subject is very imperfectly enforced, partly because the received code of honour does not enforce or even enjoin truthfulness in cases where a woman's frailty is concerned, and partly also because false evidence in these cases can often not be disclosed without revealing or reviving great scandals, from which all parties shrink.
Some good judges are of opinion that the standard of domestic morals, in a considerable section of the upper classes in England, has in the present generation been lowered, and that principle and practice have alike grown more lax. It is extremely difficult to arrive at any accurate judgment on such a subject, but it may, I think, be confidently asserted that, if such a change has taken place, it has been due to quite other influences than the divorce law. Sudden and enormous increase of wealth brings with it luxury, idleness, and self-indulgence. Cosmopolitan habits of life break down old customs and introduce new manners. The decay of ancient beliefs loosens many ties, and a few bad social influences in high places will affect the tone of large sections of society. On the whole, it seems to me that the signs of increasing moral laxity in England are more apparent in other directions: in increased worldliness and hardness, and craving for wealth and pleasure, among the young; in the increased social influence of dishonestly acquired money; in the frequency, the cynicism, and the success of gross instances of political profligacy.
The multiplication of divorces is often the symptom, but it is rarely, I think, the cause, of a moral decadence. Few things are more difficult than a comparison of the social morality of different countries. The clear and decisive evidence which statistics can throw on comparative criminality is here wanting; the sphere of observation of the best observer must be very limited, and many influences are calculated to mislead. No grosser injustice, for example, could be done to ordinary French life than to judge it by the writings of French novelists or French playwriters; and some Catholic theologians on the Continent are accustomed to draw pictures of domestic life in England and America which are at least equally misleading.93
On the whole, it seems clear that domestic morals in the past have seldom sunk lower than in some countries and periods when divorce was absolutely impossible; and in the present day, I do not think that those who will compare the domestic morality of countries where divorce is denied with those in which it is admitted will find any real superiority in the former. A comparison from this point of view of Italy, Spain, and Portugal, with the Scandinavian countries, Germany and Switzerland; of Berlin with Vienna; of Belgium and Holland with France as it existed before 1884; of the Catholic with the Protestant populations of the Austrian Empire, will, I think, support this statement. It seems, however, to be a general law that in countries in which divorces are permitted they have a tendency to multiply. Bringing with them the power of remarriage, they have proved far more popular than simple judicial separations, which they are manifestly tending to replace.94
The legislators who have dealt with this question, not on theological, but on purely utilitarian grounds, may be roughly said to have adopted two systems. One class, who appear to me to have taken by far the safer course, have restricted divorce to a few serious and well-defined causes which manifestly ruin the happiness of married life. In these cases, they contend, the clear balance of advantage is in favour of a complete severance, and the innocent partner, at least, has a moral right to seek his or her happiness in another union. They consider it, however, a matter of supreme social importance that divorce should be only a rare and very exceptional thing, growing out of some great moral catastrophe, and they take no account of mere divergencies of temper or tastes, of alienated affections or capricious fancies.
Another class of legislators have gone much further. They act upon the principle that whenever marriage is clearly proved to have been a failure, a source of unhappiness and dislike rather than sympathy and union, the law ought not to prevent its dissolution. They have multiplied largely the grounds of divorce, including some that are very trifling. In Denmark, in Norway, in Prussia, and in some other parts of Germany, they grant divorce by mutual consent, subject to certain conditions which are intended to guard against the action of mere caprice, by securing a long period of delay for reconsideration. In Switzerland, under slightly different forms, the same system prevails, and the widest discretion is granted to the tribunals. A power of granting it for reasons not assigned in the law has in many parts of Germany, been vested with princes,95 and under lax laws and lax administration divorces have, in some parts of Europe, multiplied to an extraordinary degree. In Switzerland, in 1876 there were no less than 1,102 divorces in a population of about 2,800,000; and although Switzerland is one of the few countries where the number of divorces tends slightly to decrease, that number is still, I believe, in proportion to the population, higher than in any other European country.96 Some portions of Germany come next on the list. Divorces appear to have been, during the last ten years, somewhat more frequent in Germany than in France, but in France the rate of increase is more rapid.97
It may be doubted, however, whether divorces are anywhere more frequent and more easy than in some parts of the United States, and it is remarkable that among these parts are the New England States, which were the special centres of American Puritanism. It is remarkable also that this great facility of divorce should exist in a country which has long been conspicuous for its high standard of sexual morality and for its deep sense of the sanctity of marriage.98 There is no general divorce law in the United States; each State, provided it does not establish polygamy, may make its own marriage laws, and the differences are very great. South Carolina admits no divorce; New York admits it only for adultery. In Maine, on the other hand, it may be given whenever ‘the judge deems it reasonable and proper, and consistent with peace and morality.’ In Arizona the same latitude prevails; and in several States, where such provisions do not formally exist, the discretion practically exercised by the courts is scarcely less.99 Dakota is said to be, of all parts of the United States, the most notorious for its facilities of divorce. Under cover of laws granting divorce for cruelty and ill-usage it has been frequently accorded on the most frivolous pretexts. In the twenty years between 1866 and 1886, on this ground alone 45,731 wives and 6,122 husbands are said to have obtained it. Collusive suits are very common. The increase of divorces has been proportionately far more rapid than that of population. In the period from 1867 to 1886 divorces increased in the United States nearly 157 per cent., while population only increased about 60 per cent. In the Census returns of 1890 we find 49,101 men and 71,895 women mentioned as divorced, exclusive of divorced persons who have remarried. In some States, indeed, the unlimited liberty of divorce which Milton desired for one sex has been very nearly attained by both.100 Hardly any problem affecting the future of humanity is more important than the type and character which the great Republic of the West is hereafter destined to assume. In the opinion of many good judges, the possible decay of its family life through the excessive multiplication of divorces is the darkest cloud upon its horizon.
It would be scarcely possible, without much personal observation of a society in which such a system exists, to form any confident estimate of its effects. In 1878, important restrictions were introduced into the marriage law of Connecticut by removing ‘general misconduct’ from the causes of divorce, and, in consequence of the change, divorce in this State greatly diminished.101 Occasional protests against the prevailing license are sometimes heard, but they do not appear to be very powerful, and, on the whole, the tendency of recent legislation seems to be rather to enlarge than to restrict the liberty of divorce.102 Some very serious American writers defend it. They contend that, in spite of these laws, the high moral tone that has long existed in America in the relation of the sexes is unimpaired; that the marriages of respectable Protestants, as well as of Catholics, are quite as pure and stable in the United States under the system of great legal license as they are in Europe; and that the numerous divorces, which so impress a foreigner, take place among other classes, and have the effect of mitigating grave evils. The legislator, in the words of the chief American writer on the subject, must choose between illicit connections and a wide liberty of divorce. The marriage-tie is not likely to be often violated if it may be easily dissolved. Illicit connections are not likely to be formed and persisted in when there is little difficulty in bringing them within the domain of law and of settled rights. A system under which marriages may be very easily contracted and very easily dissolved may not in itself be good, but it is, in the opinion of these writers, the best means of remedying or preventing other, and perhaps greater, evils.103 Such reasonings appear to me to be very questionable, and not a little dangerous. It is evident, indeed, that in some parts of the United States, as well as in some parts of Europe, under the operation of the divorce laws, a kind of inferior and unstable marriage, much like the Roman concubinatus, is growing up.
It is a curious fact that divorce, which was long regarded as the special privilege of the male, and as specially injurious to women, has become most frequent and popular in the country in which the position of women is probably the highest, and that it is most frequently demanded by them. The same phenomenon may be found in Switzerland, which on questions of divorce approximates more nearly than any other country to the American system;104 and it is also to be found in France.105 It is not inexplicable. Laws which grant divorce for violence, or cruelty, or habitual intoxication, are a special protection to the sex which is the weaker and the more sober, and the tendency of modern legislation to give women increased rights of property and employment diminishes the inequality between the two parties in the marriage contract. The difference which English law establishes between adultery in a man and adultery in a woman, though it is strenuously defended by English, French, and Italian lawyers, on the ground of the more serious effects of female adultery on the constitution and the property of the family,106 is not widely adopted. It does not exist in Scotland. It is not recognised by the canon law, and it is not in accordance with the general tenor of modern legislation.107
Some of the evils which American legislation professes to remedy, by giving great facilities both of marriage and of divorce, have been dealt with in other countries by special legislation in favour of illegitimate children. The kind of moral or quasi-moral stigma which the public opinion of most countries attaches to persons who are known to be born out of wedlock, is a curious instance of the way in which considerations of public interest and considerations of morals become confused and intermingled. Few things can seem more irrational than to blame a man for one of the few circumstances of life which can by no possibility be in any degree his fault. The sentiment is a kind of correlative to the aristocratic sentiment which transfers to a living man something of the merits of his ancestors, and it is supported by a strong feeling of the expediency of defending, by the whole weight of public opinion, the inviolability of the family. The French Revolutionists, in 1793, attempted to break down this sentiment by decreeing that legitimate and illegitimate children should have equal rights. The Roman law and the canon law, which is followed in Scotland and in all, or nearly all, the legislations of the Continent, humanely, and, I think, wisely, mitigates the injustice to the children and promotes the marriage of the parents by providing that illegitimate children become legitimate through the subsequent marriage of their parents.108 English law refuses them this remedy, though it recognises as legitimate all children born in marriage, even when the marriage immediately precedes the birth. It is remarkable that the United States have, for the most part, followed in this respect the English law.109 In England, also, illegitimate children have, as such, no rights of heritage. Many continental legislations, following the Roman rule, which is also the Germanic rule, give them equal rights with legitimate children in the succession of their mothers and of their relatives in the maternal line, and some of them, under certain circumstances, give them rights, though usually in a less degree, to the paternal succession.110 The provisions which exist in many continental legislations, making it a less crime for a mother to kill her illegitimate than her legitimate child, spring from another order of ideas—from the belief that in the former case the act is more likely to be perpetrated in an ungovernable paroxysm of shame and of remorse.111
The secularisation of marriage legislation is an evident accompaniment, if it is not a consequence, of the progress of democracy. One of its necessary consequences is, that the natural liberty of marriage should never be withheld, except on the ground of evident and considerable physical, moral, or social danger. Under this head falls the question, which has been so much debated in England, about the lawfulness of marrying a deceased wife's sister.
There can be little doubt that the opposition to these marriages rests mainly upon theological grounds.112 It is said that they are forbidden in the Levitical law, and the belief in their impropriety was adopted by the canon law, and has passed through the canon law into English legislation, into one of the canons of the English Church, and into the Table of Affinities in the English Prayer Book. The Catholic and Anglican views on this subject are, however, not the same. The Catholic regards the prohibition as resting, not on direct Divine or natural law, but merely on an ecclesiastical command, and his Church therefore claims and constantly exercises the right of dispensing with it. English divines and legislators under Henry VIII. and Elizabeth treated these marriages as ‘incestuous,’ and maintained that they are condemned by the Old Testament. It is by no means irrelevant to observe that the conflict of Henry VIII. with the Pope grew out of the refusal of the Pope to dissolve, at the wish of the king, a marriage of affinity, and that the title of Elizabeth to the throne rested upon the position that this marriage was invalid.
The interpretation of the Old Testament adopted by the Anglican authorities is, to say the least of it, very disputable. The Jews themselves maintain that this kind of marriage is not forbidden in the Old Testament, and great numbers of the most eminent Christian divines concur in their opinion.113 It is said, on the one side, that with one important exception, the corresponding relation of marriage with a deceased brother's widow is forbidden in the Levitical law,114 and that some of the other Levitical prohibitions rest on the notion of affinity, and seem to imply that the Jews regarded relations acquired through marriage like blood relations. On the other hand, it is quite clear that the single passage in the Bible which directly forbids marriage with a wife's sister forbids it only during the lifetime of the first wife, and therefore, as far as it has any bearing on the controversy, implies that the prohibition would terminate on her death.115 It was intended in this one respect to restrict the latitude of polygamy which was then conceded to the Jews; to forbid in the future marriages like that of Jacob, who, apparently with the full approbation of the Old Testament writer, had at the same time two sisters as wives.
Some distinguished commentators maintain that, ‘according to the Hebrew law, a man was more nearly related to the house of his brother (that is, the family of his own father) than to the family of his wife's parents,’ and that this accounts for the fact that marriage with a deceased brother's wife is expressly forbidden, while there is no corresponding prohibition of marriage with a deceased wife's sister.116 It is certain that the Old Testament does not directly condemn such marriages, and it is very doubtful whether it condemns them even by inference. It is not at all doubtful that it sanctions, and sometimes eminently blesses, polygamy;117 that it strictly enjoins that, in every case of adultery, both parties should be put to death,118 that it makes it a capital offence for a man to have intercourse with a woman who, though unmarried, was betrothed to another;119 that it commands that a man who had defiled an unbetrothed virgin should be compelled to marry her;120 that it forbids marriage with aliens in religion;121 that it not only permits, but enjoins, a man to marry the widow of his deceased brother if she had no children, or only daughters,122 which could scarcely be the case if such marriages of affinity were in their own nature incestuous. It is not easy to understand the process of mind which, among all these provisions of the Jewish code, selects a very doubtful inference condemnatory of marriage with the deceased wife's sister as alone binding on the conscience of the Imperial Parliament.
The other Scriptural argument which has been adduced is based upon a metaphor, which is treated and argued from as if it were a literal fact. Because man and wife are spoken of as being ‘one flesh,’ it is inferred that they are literally so, and that it is, therefore, as incestuous for a man to marry his wife's sister as to marry his own nearest relative. This mode of treating metaphors has played a great part in the history of the Church. The whole doctrine of transubstantiation is based on such a method of interpretation; and it was also largely used by the many theologians who, in the early Church, condemned second marriages on the ground that they were inferentially forbidden by St. Paul's comparison of marriage to the union of Christ with his Church.123
But, however important these theological considerations may be for the guidance of individuals in their own personal conduct, they are considerations which ought to have no weight in legislation. The question, and the only question, for the legislator is, whether these marriages produce such a clear preponderance of evil as to justify him in restraining the natural liberty of marriage by forbidding them. Of the physical evils which accompany and stamp really incestuous marriages there can here be no question. Many marriages, indeed, which take place without legal impediment are on such grounds liable to very great objection. Few persons can be insensible to the evils that have been brought into the royal families of Europe by frequent intermarriages within a small circle, and similar evils, due to either social or geographical causes, may be found in other societies. The marriages of near cousins are of very doubtful expediency; and arguments immeasurably stronger than any brought against marriage with the deceased wife's sister might be advanced to justify a legislative prohibition of the marriage of persons afflicted with some grave hereditary disease. Of this class of evils there is nothing in the marriage we are considering, and the sole real question is its social effects.
Of all the social effects of matrimony, that which most concerns the legislator is the interest of the children, and Montesquieu has justly remarked that, in one large class of cases, those interests are peculiarly consulted by this kind of marriage.124 It frequently happens that a mother dies leaving a young and busy husband and very young children, and in such cases a second marriage will almost certainly take place. No marriage can, in general, be so much in the interest of the children; no marriage can be, in general, so congenial to the feelings of the first wife as a marriage which makes the sister of the dead woman the mother of her children. Such cases form a large proportion of the marriages with a deceased wife's sister, and they frequently take place in obedience to the wishes of the dying wife. They are not unusual among the rich; they are very common among the poor; and it is not too much to say that they stand conspicuous among marriages for the purity of their motives and for the beneficence of their effects.125
It is argued, however, that the permission of marriage with a deceased wife's sister would destroy all familiar intercourse with sisters-in-law during the lifetime of a wife; would make it impossible for the widower to have his sister-in-law in his house after the death of his wife; would even make it difficult for her to attend his wife on her bed of sickness; and that it would thus introduce revolution and suspicion into the constitution of the family. Undoubtedly, if all this were true it would form a real argument, well deserving of the consideration of a legislator. The best answer to such statements is that these marriages exist over a great proportion of the civilised globe without the smallest question, or producing the smallest family disturbance. It is the custom of some of their opponents to declaim on this subject as if the family were a peculiarly English institution, not known in other countries. In all, or nearly all, of the United States these marriages are legal and common, and though a modern school of High Churchmen have raised some objections to them on ecclesiastical grounds, no question has been raised about their domestic consequences. Lowell, while dilating on the earnest protest of thoughtful men in the United States against the demoralising consequences of too lax laws about divorce, contrasts it with the complete absence of any complaint of bad consequences arising from marriage with a deceased wife's sister. ‘Nothing,’ wrote Chief Justice Story, ‘is more common in almost all the States of America than second marriages of this sort, and, so far from being doubtful as to their moral tendency, they are among us deemed the very best sort of marriages. In my whole life I have never heard the slightest suggestion against them founded on moral or domestic considerations.’
In all the chief Protestant countries on the Continent these marriages have long been legal and common, and are perfectly accepted by opinion. In the Catholic Church, it is true, like the marriages of cousins, they require a dispensation, but such dispensations are frequently, in some countries I believe almost invariably, granted.127 By the French law of 1832 a dispensation from the civil power is required, but this dispensation is regularly accorded.128 The great British colonies have nearly all taken the course of expressly legalising these marriages, though their legislation has been much retarded by a frequent and unrighteous exercise of the royal veto. These marriages, however, are now perfectly legal in Canada, in the three Australian colonies, in Tasmania, and in South Africa.129
It would be difficult to overstate the extravagance of the language which has been sometimes employed in England by their opponents. One gentleman, who had been Lord Chancellor of England, more than once declared that if marriage with a deceased wife's sister ever became legal ‘the decadence of England was inevitable,’ and that, for his part, he would rather see 300,000 Frenchmen landed on the English coasts.130 Pictures have been drawn of the moral anarchy such marriages must produce, which are read by American, colonial, and continental observers with a bewilderment that is not unmixed with disgust, and are, indeed, a curious illustration of the extreme insularity of the English mind. The truth seems to be that there are cases in which the presence of a young and attractive sister-in-law in a widower's house would, under any system of law, produce scandal. There are others where, in all countries, a sister-in-law's care and presence would seem natural. There are cases where every murmur is silenced by the simple consideration that the two parties are at perfect liberty to marry if they please. 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. They will long be opposed on the ground of ecclesiastical traditions, and apart from all consideration of consequences, by a section of theologians in England, in America, and in the Colonies. Those who consider them wrong should abstain from contracting them, and a wise legislature will deal gently with the scruples of objecting clergymen, as it has done in the case of the marriage of divorced persons. But the law of the land should rest on other than ecclesiastical grounds, and a prohibition that has no foundation in nature or in reason is both unjust and oppressive. It is not for the true interests of morals or of family life that the law should brand as immoral, unions which those who contract them feel and know to be perfectly innocent, and which are fully sanctioned by the general voice of the civilised world, by an overwhelming majority of the English race, by a great and steadily increasing weight of public opinion at home, and by repeated majorities in the House of Commons. 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 can be more deplorable than that this House should have suffered itself to be made the representative of a swiftly vanishing superstition, the chief instrument in perpetuating a paltry and an ignoble persecution.
Colossians ii. 16.
The whole history of Sunday observance, and of the doctrine connected with it, is treated with an admirable and almost exhaustive fulness in Hessey's Bampton Lectures on Sunday, its Origin and History. The reader will find in this book nearly all the authorities I have cited. See also Bingham's Christian Antiquities, Book XVI. c. 8, Book XX. c. 2.
Celui qui avoit mangé de la chair au vendredi estoit bruslé tout vif, comme il fut faict en la ville d'Angers, l'an 1539, s'il ne s'en repentoit, et jaçoit qu'il se repentist, si estoit il pendu par compassion’ (Bodin, Démonomanie des Sorciers, p. 216).
27 Henry VI. c. 5.
13 & 14 Vict. c. 23.
See Hessey, Lect. VI.
This language is very like that of one of the articles for the Irish Church drawn up under the direction of Archbishop Usher in 1615. ‘The first day of the week, which is the Lord's Day, is wholly to be dedicated to the service of God; and therefore we are bound therein to rest from our common and daily business, and to bestow that leisure upon holy exercises, both public and private’ (see Hessey, Lect. VII.).
Strype, Annals of the Reformation, ii. 669. ‘The Sundays set apart for the public and solemn worship of God were nowadays much profaned in riot and intemperance, chiefly caused by interludes and sports practised on the eves of those days, and the afternoons also’ (iii. 340).
Ibid. iii. 140, 295–96.
Strype's Life of Whitgift, p. 530.
Gardiner's History of England from the Accession of James I., iii. 247–52.
1 Car. I. c. i.
3 Car. I. c. i.
Perry's Hist, of the Church of England, i. 259–61, 464–70. See, too, Govett's King's Book of Sports.
29 Car. II. c. 7. A law of William III. (10 & 11 Will. III. c. 24, s. 14) authorised the sale of mackerel on Sunday. An Act of Anne (5 Anne, c. 9, s. 3) allowed the apprehension of persons on certain escape-warrants.
For the history of Sunday observance in the eighteenth century, see Abbey and Overton's English Church in the Eighteenth Century, ii. 513–19, and my own Hist, of England in the Eighteenth Century, iii. 14–18, vi. 12–14 (Cabinet Ed.).
See Chevalier, Organisation du Travail, p. 74.
Béchaux, Revendications ouvrières en France, p. 73.
See on this law a report from the English Consul at Mannheim, quoted in the Times, July 7, 1893.
Béchaux, pp. 73–74.
Castellane, La Politique Conservatrice, p, 171.
In a reply to a deputation in favour of Sunday opening of museums, December 14, 1892, Mr. Acland, the Vice-Président of the Council of Education, said: ‘I understand that in Birmingham certain persons of the Jewish denomination, who have their Sabbath on the Saturday, are willing to, and do, give their services on what to them is a week-day, for the purpose of assisting in the museum and library.’
See Jevons's State in relation to Labour, pp. 61, 65.
1 and 2 Will. IV. c. 32, s. 3.
Mill's Liberty, pp. 21–23, 26–27.
See an interesting article on the suppression of the lottery and other gambling in America in the Forum, April 1895.
McKenzie's Sober by Act of Parliament, p. 81.
Ibid. p. 142.
4 Jac. I. c. 5; 21 Jac. I. c. 7. The first Act and part of the second were repealed by 9 George IV. c. 61, s. 35.
35 and 36 Vict. c. 94.
See evidence on this subject collected by the Inebriates Committee, 1893.
Ibid. § 1548.
1 Esdras iii. 19–21.
Much evidence on this subject will be found in the parliamentary inquiries of 1872 and of 1893, and in the work on Habitual Drunkenness of Dr. Bucknill, who is opposed to this policy. As is well known, it is claimed for hypnotism that it can for long periods make drink distasteful to the drunkard, and, by changing desires, break the power of habit. It is manifest that, if this claim should ultimately prove well established, it may lead to consequences of the highest importance, especially as the habitual drunkard is commonly a person of very feeble will, and therefore peculiarly susceptible of hypnotic influences.
Report of the Committee of Inebriates (1893). Part of these recommendations bear an evident analogy to the legislation which exists in many continental countries for taking the management of the property of a confirmed spendthrift out of his hands.
See on this law a paper on ‘Drink Laws, American or English’ (Times, August 20, 1895).
See Fanshawe, Liquor Legislation in the United States; McKenzie's Sober by Act of Parliament; the Foreign Office report (1894) on Liquor Traffic Legislation in the United States since 1889; and excellent article by Dr. Gould in the Forum, March 1894; and two papers on ‘Drink Laws, American and English,’ in the Times, August 16 and 20, 1895. See, too, Bryce's American Constitution, ii. 350, iii. 280–81.
An interesting article on this struggle, by Mr. T. C. Doon, will be found in the Nineteenth Century, May 1895.
McKenzie's Sober by Act of Parliament, pp. 75–91. See, too, Dilke's Problems of Greater Britain, ii. 430–40.
A good account of the New Zealand legislation up to the end of 1893 (beyond which I do not go) will be found in an essay by Mr. Hazelden, Under-Secretary for Justice, in the New Zealand Official Year Book, 1894, pp. 256–60; see, too, McKenzie, pp. 92–103, and Dilke's Problems of Greater Britain, ii. 441–42.
McKenzie's Sober by Act of Parliament, pp. 87, 92, 98.
See Dilke and McKenzie.
Dr. E. R. L. Gould in the Forum, March 1894. This able writer has also written a report for the American Government on the Gothenburg system.
There is a large literature on this subject, but the reader will find all essential facts in the very full evidence that was given before the Commission on Intemperance in 1877, and in the writings of Dr. Gould. Among the writings in opposition to the scheme I may mention Dr. Wilson Turnbull's Law and Liquor, a lecture delivered at Edinburgh in 1873, and The Gothenburg Licensing System, by Bailie Lewis. An interesting series of articles on the Norwegian legislation about intemperance appeared in the Saturday Review of June 1893. This legislation has very recently been somewhat modified and extended. The most important difference between the Swedish and Norwegian systems seems to be, that in the former the profits of the drink traffic go to the municipal treasury, and in the latter to works of charity and public utility.
A full and interesting account of the working of the Swiss law will be found in an article by Mr. King in the Economic Review, April 1893. See, also, an essay on The Alcohol Question in Switzerland, by W. Milliet, published by the American Academy of Political and Social Science, and Le Monopole de l'Alcohol en Suisse, par Henri Ascaud, reprinted from the Bulletin de la Société de Législation Comparée. This last writer disapproves of the Swiss policy.
Foreign Office report on Liquor Legislation in the United States since 1889 (1894). See, too, Dr. Gould's essay in the Forum, November 1894, pp. 342–45.
I have examined this subject in some detail in the concluding chapter of my History of European Morals.
See Revue de Droit International, ii. 69–71, 243–50.
This subject is treated at length by Perrone, who is, I believe, the most accredited Ultramontane writer on the subject (De Matrimonio Christiano, in a chapter on the power of the Church over the marriage of heretics, ii. pp. 199–274).
Perrone, ii. pp. 205–6, 223.
‘Possem alia non pauca documenta ejusmodi proferre …quæ omnia in unam eamdemque sententiam conspirant, nimirum nulla esse conjugia, quæ in Galliis quovis tempore ab hæreticis inter se celebrata sunt, sive obtinuerint sive non obtinuerint statum quem civilem vocant. Apostolica sedes semper sibi constans fuit in rejiciendis uti nullis ac invalidis ejusmodi hæreticorum connubiis, eo quod ex una parte illi constiterit ab initio in universis provinciis decretum tridentinum Tametsi publicatum fuisse; ex altéra vero benedictinam decretalem an. 1741 pro Hollandia statibusque fœderatis Belgii datam, sine speciali ejuscem sedis extensione ad alias regiones ius commune non immutare…. Quæ de Galliis diximus, eadem de aliis regionibus sive catholicis sive acatholicis sive mixtis dici debent, adeo ut generale sit principium, conjugia sive hæreticorum sive mixta, ubi publicatum fuit decretum tridentinum Tametsi et quo benedictina constitutio pro Hollandia speciali ratione ab apostolica sede extensa non est, esse irrita ac nulla’ (Ibid. ii. 225–26).
Ibid. ii. 229.
Revue de Droit International, ii. 252. Perrone does not mention this case, but he gives some other curious instances. See also much evidence on the subject in Mr. Oscar Watkins's treatise on Holy Matrimony, chap. viii.
Ecclesia mitissima se cum hæreticis ratione se gessit ac gerit. Nullam unquam iis hac de causa molestiam intulit aut infert. Dissimulatione passim ac tolerantia utitur, ac si quid ex hac doctrina et praxi provenit, vertitur demum in bonum ipsorum acatholicorum, si quando contingat eos in ecclesiæ catholicæ sinum redire, dum ipsis indulgetur, ita poscentibus rerum adjunctis, vel ob mutua dissidia, vel ob separationem ab invicem, aliaque ejusmodi, novas inire nuptias, uti ex non paucis resolutionibus liquet, aut proprium instaurare conjugium si ambo convertantur conjuges’ (Perrone, ii. 245). Mr. Gladstone has made some remarks on this passage which seem to me just (Vaticanism, pp. 28–29).
Pothier, Du Contrat de Manage, Part iv. c. 1, s. 4.
Glasson, Le Manage Civil et le Divorce (1879), pp. 34–37.
12 Car. II. c. 33.
Burnet's Hist. of the Reformation, ii. 89–93, 305, 306, 397.
Burnet's Hist. of the Reformation, ii. 313–17; see, too, Milton's ‘Tetrachordon.’
Campbell's Lives of the Chancellors, v. 101–2.
It is a curious, and, I believe, little known fact that the French Church claimed the right of pronouncing marriages of the members of the French royal family celebrated without the king's consent null and void. It appears to be disputed among Catholics whether this action of a portion of the Catholic Church was valid. See Migne, Encyclopédie: Dict. Théol. Morale, i. 1004.
It should be added, however, that the expense and the complexity of the legal forms and proofs required in a French marriage are much complained of, and are said to be a cause why many of the poor content themselves with connections unsanctioned by law (see Revue de Droit International, ii. 259).
Troplong, Influence du Christianisme sur le Droit, pp. 241–45; see, too, an essay by Professor Lawrence, Revue de Droit International, ii. 55.
See that excellent work, Lea's Sacerdotal Celibacy.
Revue de Droit International, ii. 84–5, xix. 592.
Revue de Droit International, ii. 83–86.
Senior's Provision for the Poor and Condition of the Labouring Classes in America and Europe (1835), pp. 71, 74, 82, 88–90.
See the passage cited by Mr. Gladstone in his Vaticanism, p. 27.
‘Lex civilis quæ omnino pugnat cum ecclesiæ doctrina,’ i. 214.
Migne, Encyclopédie: Dict. de Jurisprudence, art. ‘Mariage.’
Glasson, Le Mariage Civil et le Divorce, p. 228.
See Revue de Droit International, ii. 79–86, xix. 592–94; Glasson, Le Mariage Civil et le Divorce, pp. 104–33.
See Glasson, pp. 155–60. Some papers on the Swiss laws of marriage will be found in the twelfth and thirteenth volumes of the Revue de Droit International.
Revue de Droit International, xix. 601–2, xxiii. 30–42; Glasson, pp. 78–85.
Glasson, pp. 170–75.
Annual Register, 1894.
Dareste, ii. 491–92, 648.
Glasson, pp. 87, 193–204; Dareste, ii. 216.
Migne, Encycl. Dict. de Théologie Morale, art. ‘Empêhements de Mariage.’
32 Henry VIII. c. 38.
Most accounts say at night, but according to Cardinal Fesch it was at 4 p.m.
See Lanfrey, Napoléon, v. 188. See, too, the account in Thiers; also Lyonnet, Le Cardinal Fesch, i. 364–65, ii. 240–49, 739–53. The whole subject has recently been examined with much detail by M. Welschinger, Le Divorce de Napoléon.
Glasson, Le Manage Civil et le Divorce, pp. 46–51.
Ibid. pp. 51–53.
‘Les sévices et injures graves.’
That is, real divorce. In some Catholic countries this term is applied to judicial separations, which do not dissolve the marriage-tie or authorise remarriage.
Glasson, p. 176. A fuller account of the Austrian legislation about divorce will be found in an Etude sur le Divorce en Autriche by Lyon-Coen, reprinted from the Bulletin de la Société de Législation Comparée. Statistics about Austrian divorces and about the number of marriages among Catholics that were annulled will be found in a Foreign Office report on the number of divorces in foreign countries during the last ten years (1895).
Glasson, pp. 135–36, 159.
There is a department in Paris called the ‘Assistance Judiciaire,’ which assists those who are too poor to pay for legal expenses. A writer in the Figaro (July 4, 1892) says: ‘Si l'on veut se rendre compte des progrés du divorce dans la seule catégorie des Parisiens et Parisiennes mariés qui ont recours à l'Assistance Judiciaire, il suffit de jeter les yeux sur une pièce officielle que j'ai là devant moi. Le relevé des affaires de divorce portées devant le bureau d'assistance près du tribunal de la Seine pour une période de quatre ans du 1er janvier 1888 au 1er janvier 1892 donne un chiffre de 21,000 demandes…. Pendant le même laps de temps il a été formé 2,000 demandes de séparation de corps.’
Return of Number of Divorces in Foreign Countries.
An examination of the opinions of the Reformers by a strong partisan of divorce will be found in Milton's ‘Tetrachordon,’ and by a strong opponent of divorce in Woolsey's Divorce Legislation in the United States. See also a remarkable book, called Observations on the Laws of Marriage, published in 1815, pp. 335–42.
This is, however, a ground for divorce in Scotland.
E.g., ‘Si vous alliez à certains jours sur une place de Londres ou d'une autre ville d'Albion, dit le P. Ventura, vous y verriez au milieu d'une foule qui rit et se permet les propos les plus grossiers et les plus insultants, des malheureuses, les yeux baissés, l'air profondément abattu, ayant au cou une corde dont un homme tient dans ses mains les deux bouts; ce sont des femmes que leurs maris ont mises à l'encan et qu'ils cherchent à vendre. Ne croirait-on pas se trouver en quelque ville d'Egypte, de la Chine ou de la Tartarie? Le gouvernement a bien essayé d'abolir cette coutume barbare, mais ses efforts sont restés impuissants. Elle est le résultat des doctrines du schisme et de l'hérésie touchant le mariage…. On ne s'étonne plus, quand on connaît l'Angleterre, du profond mépris dont John Bull accable la femme…. La femme du riche n'est ni plus heureuse ni plus respectée. La possibilité du divorce porte le mari à cacher soigneusement à sa femme tous les secrets de la famille…. On se réunit pour les repas et l'on mange comme des étrangers au restaurant sans échanger un sourire affectueux, sans presque se dire un mot. Au dessert il faut que les femmes se retirent, et c'est alors que les conversations s'engagent sur les affaires…. La défiance et le mépris de la femme sont poussés au plus haut degré …Humiliée, dégradée, malheureuse comme épouse, la femme en Angleterre, pourrait-elle être honorée comme mère? Les enfants ne lui appartiennent pas…. S'ils ont un secret, c'est à leur père qu'ils vont le confier et jamais à leur mèré’ (Famille et Divorce, par l'abbé Vidieu (1879), 6th edit. pp. 105–6). In America, l'abbé Vidieu assures us, ‘les mots de foi conjugale, d'adultère n'auront bientôt plus de signification,’ and in general ‘l'épouse est opprimée, dégradée, avilie chez les peuples hérétiques ou séparés de l'Eglise’ (pp. 113–14).
See Glasson, pp. 165–67, 263–66.
Glasson, pp. 67–106. In Norway there must also be the consent of the King (ibid. p. 221). In Sweden the King, acting in his Council of State, can grant it for incompatibility of temper, apparently at the demand of one party (ibid. p. 220).
Ibid. p. 164. From the Foreign Office report of 1894 it appears that in 1892 there were 881 divorces in a population of 2,962,098; in Belgium in that year there were 441 in a population of 6,195,355; in the Netherlands, 354 in a population of 4,669,576; in Sweden, 316 in a population of 4,806,865; in Norway, 39 out of a population of 2,022,000.
See the statistics collected in the Return of the Number of Divorces in Foreign Countries (Foreign Office, 1895).
Thus Tocqueville observed: ‘L'Amérique est assurément le pays du monde où le lien du mariage est le plus respecté et où l'on a conçu l'idée la plus haute et la plus juste du bonheur conjugal’ (La Démocratie en Amérique, ii. p. 215). In another passage he states that all travellers are agreed that the standard of social morals is higher in the United States than in England or any other country (iii. p. 331).
Encyclopædia Americana, art. ‘Divorce.’
The Foreign Office Report on Divorces in Foreign Countries (1895); and see also a curious article on ‘Divorce made Easy’ in the North American Review, July, 1893. Several examples are given in this article of the extremely frivolous grounds upon which divorce has been granted under the pretext of cruelty. Woolsey (Divorce and Divorce Legislation in the United States) has collected many statistics about American divorce, but he complains that they have only been published in a few States. According to the Foreign Office report, divorces are proportionately most numerous among the negroes, and, next to them, among the native-born whites. They are rarest among the Irish and Canadian Catholics.
Encyclopædia Americana, art. ‘Divorce.’
Mr. Woolsey goes so far as to say: ‘Every change of legislation in the United States increases the number of divorces. If there is any principle in our legislation, it is not a moral one of reverence for the most sacred institution of the family and of married life, but it is a desire to afford relief for cases that are nearly as pressing as those that have relief afforded already’ (Woolsey, Divorce and Divorce Legislation in the United States, 2nd edit. 1882, p. 247).
See Bishop's Marriage and Divorce, especially his remarks on the state of South Carolina, i. 38. See, too, the article of Mr. Beech Lawrence, Revue de Droit International, ii. 244–59; Glasson, pp. 223–24. M. Glasson protests against the views of American writers. Speaking of the results of the very similar license in Switzerland, he says: ‘Le mariage tend à devenir dans certaines classes de la société un simple bail’ (p. 160). The article in the North American Review which I have cited above maintains that the American facilities of marriage and divorce do not seriously diminish the number of illegitimate births. See also on this subject Car-lier, Le Mariage aux Etats-Unis. Mr. Bryce is of opinion that the average of domestic virtue is higher in the United States than in Europe (American Commonwealth, iii. pp. 54–5, 499–500, 515), and Mr. Rhodes strongly maintains the same view (History of the United States, iii. 97–100).
Glasson, p. 166.
Foreign Office Report (1895).
Montesquieu, Esprit des Lois, xxvi. c. 8.
See on this subject Revue de Droit International, xv. 367–68.
Ibid. ii. 70.
Compare Blackstone, Book i. c. 16, and Carlier, Le Mariage aux Etats Unis, pp. 178–82. M. Carlier says that Ohio is the only exception. The English law on the subject is very ancient. The Statute of Merton (20 Henry III. c. 9) decreed that bastards were not to be rendered legitimate by marriage of parents.
See Revue de Droit International, ix. 259–63.
Ibid. vii. p. 234.
See the very candid confession of the Bishop of Winchester (Hansard, cclxxx. 1671).
A great mass of evidence upon this subject, from divines and scholars in various countries, will be found in a pamphlet called Opinions of Hebrew and Greek Professors of the European Universities, &c., on the subject of the Marriage with a Deceased Wife's Sister, edited by T. Paynter Allen for the Marriage Law Reform Asssociation.
Lev. xviii. 16.
‘Thou shalt not take a woman to her sister, to be a rival to her, to uncover her nakedness beside the other in her lifetime’ (Lev. xviii. 18, Revised Version).
See the views of Professor Dillman, of Berlin, in Paynter Allen's pamphlet, pp. 14–16.
Gen. xvi. 7–16, xxx. 16–18, xxxi. 50, xxxiii. 1–5; Exod. xxi. 10; Deut. xxi. 15; Judges viii. 30; i Sam. i. 2; 2 Sam. xxi. 8; 2 Chron. xxiv. 2, 3.
Lev. xx. 10; Deut. xxii. 22.
Deut. xxii. 23, 24.
Deut. xxii. 28, 29.
Exod. xxxiv. 14–16; Deut. vii. 3; Ezra ix., x. 1–14; Neh. xiii 23–31.
Deut. xxv. 5, 6.
I have collected much evidence on this subject in my History of Morals (ii. 326–28). It is curious to observe how these kinds of ideas go together. The Council of Illiberis, in the fourth century, is the first council that condemned marriage with a deceased wife's sister. This Council permitted in some cases laymen to baptise, but specially excluded from this right laymen who had been twice married. St. Basil (about a.d. 370) is the first of the Fathers who denounces marriage with a deceased wife's sister, and he is also (as Dr. McCaul observes) one of the most vehement assertors of the impurity and sinfulness of second marriages. See Allen's Opinions, p. 167.
Aux Indes …si un mari a perdu sa femme, il ne manque pas d'en épouser la sœur, et cela est très naturel; car la nouvelle épouse devient la mère des enfants de sa sœur, et il n'y a point d'injuste marâtre’ (Esprit des Lois, xxvi. c. 15). Montesquieu seems, however, to think that, where it is customary for brothers-in-law and sisters-in law to live together in the same house, their marriage should not be permitted.
This, e.g., is the report of the Ministry of Ecclesiastical Affairs in Saxony: ‘Marriages with the sister of a deceased wife are not rare in Saxony, and occur most frequently among the labouring classes and the agricultural population, where mostly the support of such near relations of the survivor precedes marriage. Public opinion, for a very long time past, takes no umbrage at such marriages, which often have their foundation in a wish expressed by the deceased wife upon the deathbed that her sister should be a careful mother to the children she leaves behind; and when such purposes are fulfilled these marriages enjoy a general approval’ (Paynter Allen's Opinions on Marriage with a Deceased Wife's Sister, pp. 180–81).
‘As every one knows, marriage with a deceased wife's sister very often occurs among Catholics, the Roman Pontiff readily dispensing in such a case of affinity; since, as there is no Divine precept or positive law opposed to these unions, it is within his power to permit them, and he does always permit them, especially when there exists some motive of convenience, or necessity for re-establishing an injured reputation or of compensating, as far as possible, irreparable wrongs’ (Manuel Ribero, Professor at Salamanca, Madrid, and Granada. Allen, p. 36). See, too, the Revue de Droit International, ii. 65.
Garin, Conditions pour la Validité du Manage, pp. 237–328. A report from the First Minister of Justice in 1882 states that, in the preceding year, 841 widowers in France were authorised to contract marriage with their late wives’ sisters (Allen, p. 174). See, too, pp. 179–80.
In South Australia the royal assent was refused no less than four times. It was refused once in New Zealand, and once in Natal. In Canada the measure was introduced by a Catholic, and supported by the Catholic clergy. In Mauritius, which is mainly Catholic, it was also passed. See Proceedings of the Colonial Conference, April 14, 1887, pp. 4–5, 15, 25–26.
Hansard, cclxxx. 1675. See, too, a speech of Lord Hatherley (Marriage Law Defence Union Tracts, No. xxx. p. 20).