Canadian opinions on the bill introduced into the Dominion Parliament by Desiré Girouard, Esq., M.P., (Jacques-Cartier), legalizing marriage with the sister of a deceased wife, and with the widow of a brother
The following letter was addressed by Mr. D. Girouard, M.P., to the Catholic Bishops of the Province of Quebec:—
My Lords—The discussion on the hill to render legal marriages between brothers-in-law and sisters-in-law began last night, as your Lordship will have seen from to-day's newspapers. The point meeting with most opposition is the recognition by the State of the right to give dispensations in the case of the impediement resulting; from affinity.
Would your Lordship be content to see Art. 125 of the Code repealed in order to legalize such a marriage without further ado? Do you not think that in that case the right of giving dispensations would be sufficiently protected?
An answer addressed to me at Ottawa will oblige
Your obedient servant,
The following answers were received:—
THE BISHOP OF RIMOUSKI.
Montreal Telegraph Co., March 2, 1880.
By telegraph from Rimouski to D. Girouard.
Letter received this morning. What you propose will suffice and satisfies me.
THE BISHOP OF MONTREAL.
My Dear Sir,—I certainly think that Article 127 sufficiently establishes the right to grant dispensations, and that your plan to legalize the marriages in question by amending Article 125, will be for the best.
I wish you every success. Yours faithfully,
THE BISHOP OF THREE RIVERS.
D. Girouard, Esq., M.P.
{{smallcaps|My dear Sir,}]—I regret that your bill for the legal recognition of marriages between brothers-in-law and sisters-in-law cannot pass as it was hrought forward. Nevertheless, the repeal of that prohibition in article 125 of the of the C.C. being favourable to the liberty of the Church, I have no objection to its simple repeal, leaving the dispensation of that impediment as well of the other impediments, to the authorities designated in article 127
I remain, etc.,
THE BISHOP OF SHERBROOKE.
{{right|Sherbrooke, 1st March, 1880.
D. Girouard,Esq. M.P., Ottawa.
Sir,—I think it is sufficient to repeal Article 125 of the Code in order to legalize the marriage now before Parliament. I am also of opinion that the right to grant dispensations is sufficiently safe-guarded by Article 127.
But would it not also be àpropos to repeal at the same time. Article 126 which prohibits marriage between uncle and niece, aunt and nephew
I am, sir, Your obedient servant,
THE ARCHBISHOP OF QUEBEC.
Quebec, March 1, 1880.
D. Girouard, Esq, M.P., Ottawa.
Sir,—Replying to your letter of 28th February; 1. It is most desirable that the bill concerning the marriage of brothers-in-law and sisters-in-law should pass, such as amended by you, for it would be of service not only to the Province of Quebec, but to the whole of Canada as well. 2. By contenting yourself with repealing the second part of Art. 125 of the Civil Code of Lower Canada, you will no doubt provide in a satisfactory manner for the legalization of these marriages in our Province, but not in the other Provinces, and each one of them will in turn ask for the passing of a law more or less contrary to the rules of the Catholic ecclesiastical discipline. With us. Article 127 maintains the impediment until removed by a dispensation, but will the same be the case in the other Provinces?
I have the honor to be, sir,
Your obedient servant,
THE BISHOP OF ST. HYACINTHE.
D. Girouard, Esq., M.P. Ottawa:
Sir,—I have the honor to inform you, in answer to your yesterday's letter, that I would be content to see disappear from our Code, not only article 125, but also article 126, which, in many cases, are very embarrassing for us Catholics. Bishops and priests oppose with all their might, as is imposed upon them by the Church, marriages contracted between such close relations, but there are circumstances when, for the welfare of the parties interested and the honor of families as well as the safeguard of public morals, they are obliged to solemnize such marriages, after having obtained from the Pope all the dispensations required in a similar case. A real service would thus be done us, were those two articles , which in my opinion, should never have been introduced into it, eliminated therefrom.
Article 127 might be retained, but worded as follows:—'The impediments to the marriage being admitted according to, etc. the Catholic Church concerning our impediments to marriages and our right to grant dispensation thereof are therein sufficiently recognized and safe-guarded I do not therefore, see any reason for not maintaining that article after making in it the slight change suggested by me. Wishing you succsss.
I remain most sincerely.
Your obedient servant,
The following letter was addressed by Mr. Girouard to the Bishops of Ontario:—
My Lord,—Your Lordship has undoubtedly noticed by the reports of the debates on my bill to legalize the marriage with a deceased wife's sister, that the opposition to the same is principally confined to that proviso which acknowledges the right of the Catholic Church to grant previous dispensation from the Pope. Without that proviso, the bill has a fair chance of being carried. Several Catholic members of your Province desire to know whether they should vote or not for the legalization of such marriages pure and simple, without insisting on any reservation as to Church discipline or regulations.
An answer will oblige,
My Lord,
Your obedient servant,
THE BISHOP OP SAREPTA.
D. Girouard, Esq., M.P.:
Dear Sir,—Although the marriage of man with his deceased wife's sister is prohibited in the Catholic Church as a general rule, still we are sometimes under the necessity of applying to the Holy See for a dispensation for such marriages. So I consider that it will be a satisfaction to know that the State recognizes the validity of such unions. I highly approve of the tenor of your bill. I hope that it will pass such as it is. But if the first proviso cannot pass, try to have the second.
I have the honor to be,
Your obedient servant,
† John Francis Jamot
Bishop of Sarepta,
Vienr Apostolic of Northern Canada.
THE ARCHBISHOP OP TORONTO.
D. Girouard, Esq.. M.P., Ottawa:
Dear Sir,—I think that a Catholic can vote for the bill in question, inasmuch as the Catholic Church grants, for grave reasons, a dispensation to marry a deceased wife's sister, &c.
The inconvenience is very serious in the case when a dispensation is granted by the Church and not by the State. The State looks upon, as invalid, a marriage which the Church holds as valid, on account of the dispensation, and the State holds as illegitimate the children, and that they are disqualified to inherit the property of their parents.
Respecting the clause about the dispensation I think in a Parliament like yours at Ottawa the Catholic members might overlook that, as it is supposed that a Catholic will always obtain such a dispensation when necessary from his Bishop or from the Pope.
The proviso may be retained that no clergyman is to be compelled to officiate at a marriage against the rules of his church. If a Catholic member have a scruple to vote for this bill, he may abstain from voting.
I have the honor to be,
Your devoted servant.
Archbishop of Toronto.
Mr. Gault, M.P. for Montreal West, sent a copy of the bill to all the Protestant clergy of Montreal on its first presentation. From these he received no replies, except from Rev. Gavin Laing and the Rev. John Cordner, a fact which certainly indicates that there is no feeling against the bill amongst the Protestant clergy of this city. The following are the letters addressed by the clergymen we have named to the member for Montreal West:—
THE REV. J. CORDNER, D.D., Unitarian Church.
M. H. Gault, Esq., M. P.
Dear Sir.—I thank you for copy of Billl to "legalize marriage with. &c." In my Judgment it would lie in the interest of good morals and sound public policy to pass such a measure. I would omit the two provisos, however, as likely to lead to complications. But rather than have the measure fail I would accept them.
Very truly yours.
THE REV. GAVIN LANG, St. Andrew's Church (Church of Scotland), Montreal.
Dear Mr. Gault,—I thank you very much for sending me a copy of Mr. Girouard's Bill for legalizing marriages with a deceased wife's sister, &c. For one, I heartily approve of its principle, and hope it will pass and become law.
It occurred to me that I would mention to you that, to the astonishment of most people, the United Presbyterian Body of Dissenters in Scotland declared, last year, that they could no longer regard such marriages as Mr. Girouard's Bill contemplates as un-Christian. Their ministers are permitted to solemnize these, and to admit the parties to them to the privileges of their communion, The importance and significance of this action of the part of a severely Evangelical body cannot be exaggerated.
The attitude of your own Church and of mine, both national churches and the only State Churches of the Empire, must necessarily be determined by the position taken up by the law makers. When Parliament sanctions marriages with deceased wives sisters, so must we. I speak for the Church of Scotland, to which I belong, when I say that we are quite ripe for the ready performance of these marriages. In my first parish in Scotland I had a couple who took that step in (ecclesiastically viewed) an irregular way "furth of the kingdom." and came back to live in the parish. I had no hesitation in regarding them as parishioners of mine in good standing.
The Church of Rome, of course, takes up a different position in this matter, but Mr. Girouard fully provides against any infringement of its rules and rights; and it is entitled to hold and assert its own opinions and views.
I would be very glad it you offered our mutual friend, Mr. Girouard, my warm and sincere wishes for the success of his measure. Its adoption and enactment by the Parliament of Canada will give wider and greater relief than any of us imagine, and would not in any wise conflict with the teachings of the Word of God as interpreted by either Roman Catholics or Protestants.
With repeated thanks for your courtesy in sending me a copy of this important bill, and with kind regards, as also deep sympathy with you in your recent heavy affliction
Believe me.
Yours very sincerely.
M. H. Gault, Esq., M.P
THE BISHOP OF OTTAWA.
The Roman Catholic Bishop of Ottawa has also given his opinion as follows, this letter being written after the bill had been reprinted, and had passed through committee of the whole, and therefore with the full knowledge that the provisos had been struck from it.
D. Girouard. Esq., M.P.:—
Sir,—As the Catholic Church permits, under special circumstances, for grave reasons, marriages between brothers-in-law and sisters-in-law, your bill, as amended by committee of the whole House, to legalize these marriages meets my views, in the absence of something better.
I have the honour to be, sir.
Your humble servant,
MR. McGIBBONS LETTER.
The following letter was addressed by Mr. R D. McGibbon, B.A. B.C.L., Advocate,of Montreal, to the Montreal Daily Witness, and appeared in that journal on Saturday, March 20th. The letter in answer to a communication which had appeared in the same paper, signed "T. F.":—
TO THE EDITOR OF THE WITNESS.
Sir,—I observe in your issue of the 17th March a communication signed "T.F." in which the bill introduced into the Dominion House of Commons by the honorable member for Jacques Cartier. Mr. Girouard, is rather severely animadverted upon. Having for some time past taken a considerable interest in the discussion of Marriage Law Reform—not, I may interpose, from any selfish motive, for I happen to be a bachelor with no intention of marrying into a family of sisters.—I trust you will permit me to answer as briefly as possible the arguments advanced by "T. F." and other opponents of the measure.
First, as to marriage with a deceased wife's sister. Two questions present themselves.
(a). Are the injunctions of the Mosaic Law in this regard, binding upon present day Christians or not?
(b) If so does that code prohibit marriage with a deceased wife's sister?
As to the first question, I shall merely say that there are many sincere Christians, who doubt whether we should be bound by rules promulgated centuries ago, and intended for a state of society entirely different in manners, customs and civilization from our own. I may remark that the Archbishop of Dublin Dr. Whately, in a letter addressed to the late Dr. Hinds, Bishop of Norwich, says:
"The Levitical Law is no guide for our legislation, even in cases where all admit that morality is concerned; e.g., no one doubts that gluttony and drunkenness and disobedience to parents are moral compass, yet no legislature has (in conformity with the Mosaic Code) affixed the penalty of death to them."
But, admitting for the sake of argument that it is incumbent on Christians to conform themselves to the strict letter of the Mosaic Code,—although I doubt very much if any do so—let us consider the second question: Does the Levical Law really prohibit marriage with a deceased wife's sister?
Leviticus .xviii. 18 reads: "Neither shalt thou take a wife to her sister to vex her; to uncover her nakedness, beside the other in her lifetime.
The Rev. Dr. Chalmers, no mean authority, gives the tersest and best interpretation of this passage. He says:
"In Leviticus xviii, verse 18, the prohibition is only against marrying the wife's sister during the lifetime of the first wife, which of itself implies the liberty to marry the wife's sister after her death."
Dr, Abler, the chief Rabbi of the Jews in the British Dominions, says:
"Neither the Divine Law, nor the Rabbis, nor historical Judaism, leaves room for the slightest doubt on this point. I can only reiterate my former assertions that all sophistry must split on the clear and unequivocal words, 'in her lifetime.'"
The Rev. Dr. Kadie, the Rev. Dr. Moffaft, the Rev. George Gilfillan (Dundee), the Rev. Dr. A. McCaul. Dr. Vaughan, Master of the Temple, the Archbishop of York, the Bishop of Bath and Wells. Dr. Kitto, Cardinal Wiseman, and hundreds of leading divines, in all parts of the world, agree in the above opinions.[1]
I would also refer to the opinions of the Catholic Bishops of this Dominion, published in last Monday's Minerve, and republished in this morning's Gazette.
In fact, there seems at the present day to be a general consensus of opinion in favor of the interpretation given to this passage by the promoters of reform. That many bishops and clergymen oppose the bill is of course true, but numbers of these do so, not because the reform is at variance; with Scripture, but because it conflicts with what they call "ecclesiastical law."
Secondly, and now as to marriage with a brother's widow.
Leviticus xviii, 16, reads: "Thou shalt not uncover the nakedness of thy brother's wife, it is thy brother's nakedness." It is well known that under certain circumstances a man was distinctly enjoined by Moses to marry his brother's widow. See Deuteronomy xxv, 5.
Now the promoters of this bill contend for several points:
1. Leviticus xviii, 16 does not prohibit marriage with a brother's widow. The words are not "take to wife," but "uncover the nakedness," not "brother's widow," but "brother's wife."
2. That the contention of "T.F." and others like him is unsound, because the pretended prohibition of Liviticus is over ridden by the passage in Deuteronomy above referred to
See Dr. McCauls's pamphlet, p. 55.
I might add that Sir William Jones and many others well qualified to give an opinion on the subject, say that Leviticus xviii, (verses 6 to 17) has no reference to marriage but to the promiscuous intercourse amongst members of the same family so common in those days.
But perhaps some one will refer me to St.Matthew, chap. xiv. Verse 4, where John the Baptist is reported to have proclaimed the illegality of Herod's union with the wife of his brother Philip. In answer to this let me say that the Biblical critics seem to be agreed that Philip was actually living at the time, and that the rebuke of John had reference to Herod's open adultery with the wife of a living man, and not to his marriage with the widow of his brother.
The Bishop of Ontario in his petition takes this rather extraordinary stand. He says in effect: A man and a woman by marriage becomes one flesh; ergo, a man in marrying the sister of his wife, marries his own sister. This argument or pretention can best be met by a reducto ad absurdum, take the following case: John Smith marries Mary Jones; William Smith, John's brother, then becomes brother to Mary Jones; William Smith, John's brother, then becomes brother to Mary Jones. The latter's sister then must he regarded as William's sister also; therefore, two brothers may not marry two sisters, a conclusion which I do not think His Lordship would feel inclined to adopt.
So far, I have been reasoning on the assumption that the Mosaic law is binding on the Canadian people of to-day, is it binding? If so do we conscientiously obey it? Does "T. F." Does the Bishop of Ontario?
I confess that I am appearing in a rôle' which is somewhat new to me, in venturing to expound the Scriptures and Levitical law, but the fact that your correspondent has—to my mind—distorted a very plain passage of Scripture must he my apology for my boldness.
Let me say in conclusion that no measure which has received the hearty endorsation of men like Gladstone. John Bright, Lord Houghton, the Earl of St. Germans, Earl Grey and the numerous leading divines whose names I have mentioned,[2] will ever attach to its supporters the stigma of subordinating the commands of the Deity to their own ideas expediency.
The restrictions now imposed in Canada upon these marriages are virtually a dead letter, and I feel convinced that the great mass of the Canadians desires the passage of Mr. Girouard's bill. The absence of petitions in its favor is easily accounted for. There is little or no need for them. When the country sees men like the Hon. Edward Blake. the Hon. J.J.C. Abbott. Mr. Hector Cameron, and others uniting to support the bill, it at once feels that the measure is being carefully looked after in Parliament, and requires little outside assistance.
I should add, perhaps, that I have not referred to the many arguments in favor of the measure, looking at it in the light of social reform. These will suggest themselves to everybody. For the present I think I have disposed of "T.F.'s". contentions. A surprisingly large literature has of late years sprung up on this subject, and I am indebted for many learned pamphlets to Mr. T. Paynter Allen, the Secretary of the Marriage Law Reform Association of London, England. This Association has done much excellent work in England and in other British colonies, and comprises many of the leaders of thought and culture in Scotland, Ireland and England.
I must ask you, Mr.Editor, to excuse the length of this communication.
The following letter appeared in the Montreal Gazette of March 29;
MARRIAGE WITH DECEASED WIFE'S SISTER
'Bishop of Ontario's Text "Contra."
TO THE EDITOR OF THE GAZETTE
Sir,—The text of Scripture as given by the good Bishop in his petition against Mr. Girouard's bill, and as reported in yours of 13th instant, is "Leviticus, ch. 18. verses 16, 18, 20 and 21. Let us examine them. I cite from a standard copy of the Bible, with copious marginal references and interpreters by one of the profoundest commentators and interpreters of Scripture, viz., the late Rev. John Brown, D.D., of Haddington, Scotland, with the concordance, fullest we have, of the celebrated Rev. Dr. Hannay. The text was thus, verse 16: "Thou shalt not uncover the nakedness of thy brother's wife; it is thy brother's nakedness."
Note.—I find the word "is" in italics, but that, I take it, is merely to indicate that the word is not in the original, but that in our translation the obvious sense requires it.
This verse, it will be remarked, does not precisely touch the point at issue, viz. as to marriage with a deceased wife's sister. On the other hand, the inference to be drawn from it, in face of the general prohibition against adultery, is one, I humbly think, which is directly to the contrary of what is advanced by His Lordhsip. The exposition of my point would involve considerable citation, and for the nonce I shall assume it, to be self-evident.
Verse 18: "Neither shalt thou take a wife to her sister, to vex her, to uncover her nakedness, besides the other in her lifetime." The italics are in the text. The expression, "take a wife to her sister," is, in the margin rendered "one wife to another" "This exception proves the general rule." The limitation—and the inculcation—law, "directory," is solely all to time and occasion, and is, in fact, as directly against his Lordship's proposition as any text short of direct negation could possibly be.
Verses 20 and 21 have no application, not even the most indirect to the question at issue.
But further, in connection and in perfect accord with this law, permissive, we have in Deuteronomy, chap. xxv, verse 5. the following: "If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not marry without unto a stranger; her husband's brother shall go in unto her, and take her to him to wife, and perform the duty of a husband's brother unto her."
Further, we have in Mark chapter xii. verses 19 to 23, the following in recognition of the same law. The Sadducees addressing Christ say, v. 19: "Master, Moses wrote unto us, If a man's brother die and leave his wife behind him, and leave no children, that his brother should take his wife, and raise up seed unto his brother."
V. 20: "Now there were seven brethren; and the first took a wife, and dying left no seed."
V. 21. "And the second took her, and died, neither left he any seed; and the third likewise.
V. 22. "And the seventh had her, and left in seed; last of all the woman died also."
V. 23. "In the resurrection therefore, when they shall rise, whose wife shall she be of them?—for the seven brethern had her to wife?
The answer as given by Christ does not gainaay the law, but tells them:—"When they shall rise from the dead, they neither marry, nor are given in marriage; but are as the angels which are in heaven."
Thus we have, as a reverbation from the thunders of Sinai, the command in such case, and strange to say, it is to be found as a cardinal law in the social life of some, or at least one (the Shus-waps), of the wildest and most isolated savage tribes of the Pacific slope.
As to the difference sought to be made between a brother-in-law and sister-in-law, there is none in reason that I can convince—none at least to call for a difference and there is no law, written or unwritten, for it. I say "no law," for the prohibition wherever observed, is one of purely ecclesiastical rule.
But this I feel: That at this juncture of our national progress, when the Chinese question and others of vital and organic import are starting up. it is all important for us, the Dominion of Canada, to lay 'broad, as well as deep the foundations of our national structure, Our's is to be, in its vastness of field for honorable, varied industries, social life and national aspirations, a nature of nations, where every child of God may worship and holy live as he will, giving to God what is God's, and unto Cæsar what is Cæsar's—civil liberty untrammeled by the clogs of an antiquated ecclesiasticism or of class.
Yours, &c.,
The following eminent persons have expressed the opinion, that marriage with a deceased wife's sister is not contrary to Holy Scripture:—
Divines—Dr.Whately, Archbishop of Dublin, and Dr. Musgrave, Archbishop of York; the Bishops of Bath and Wells (Lord Auckland), Ballarat (Thornton), Down and Connor, Durham (Villiers), Heber, Jewel, Killaloe, Limerick, Lincoln (Kay), Llandaff (Copleston), London, Mcllvaine (Ohio), Maine (U.S.A.), Manchester, Meath (1842), Melbourne (Perry), Norwich (1851), Potter (Pennsylvania), Ripon, St. David's (1851): Cardinals Bellarmine, Catjetan, Cullen and Wiseman; Revs. Dr. Adler (Jewish Rabbi), H. F. Bacon, Dean Bagot, Baptist Board, T. Binney, Dr. Boothroyd, Dr. Bunting, Principal Caird, D.D., Dr. Chlamers, Canon Champneys, Dr. Adam Clark, Dean Close, Dr Croly, Dr. Summing, Canon Dale, Dr Dodd, Dr. Eadie, G. Gilfillan, C. J. Goodhart, J.N. Griffin, Canon Gurney, Archdeacon Hare, J. Hatchard, Archdeacon Hill, Dean Hook, Cannon Jenkins, Dr. Kitto, Professor Lee, Dr. Alexander Lindsay, Luther, Chancellor Martin, Dr. McCaul, W. B. Mackenzie, late Dr. Norman McLeod, Melancthon, Canon Miller, S. Minton, Dr. R. Moffat, J.B. Owen, Dr. J. Parr, H. Renton, Professor Robinson, Tynedale, Dr. R Wallace, John Wesley.
Statesmen—J. Quincy Adams, Lord Albermale, Charles Buxton, Lord Robert Cecil (Marquis of Salisbury), Marquis of Clanricarde, Fourth Earl Clarendon, Lord Chief Justice Cockburn, Solicitors General and Attorneys General, Collier, James, Harcourt, Holker, late Lord Chief Justice Denman, second Lord Ellenborough, Earl of Ellesmere, Dr. Franklin, fourth Viscount Gage, Earl Grey, Sir George Grey, T. E. Headlam, Sidney Herbet (Lord Herbet of Lea), Lord Houghton, Sir Fitzroy Kelly, Lord Chancellor Westbury, fourth Marquis of Landsdowne, Sir G.C. Lewis, Richard Cobden, John Bright, W. E. Gladstone, Robert Lowe, Lord Lyndhurst, Lord Macaulay, fourteenth Duke of Norfolk, Lord Overstone, Lord Palmerston, Lord Penzance, Sir S. M. Peto, J. A. Roebuck, Earl Russel, third Earl of St. Germans, the Sardinian Ambassador, Lord Wensleydale, Earl of Wharncliffe, Earl of Kimberley, J. Stuart Wortley; also the following gentleman of legal and literary eminence: The Twelve Judges (1870), A. Bach, Esq., the Brazilian Ambassador, Sir David Brewster, M. Delangle (Gard des Sccaux, France), Hon. E. Everett, Sir William Jones, Chancellor Kent Judge Livingston, Dr. Lushington, Judge Mason, Professor Max Muller, Milton, Lord Advocate Rutherford, Southey, Chief Justice Story, Dr. Tregellos, &c.
TEXT OF THE BILL.
Tho Bill of Mr Girouard, as amended in committee of the whole, reads as follows:—
"1. Marriage between a man and the sister of his deceased wife, or the widow of his deceased brother, shall be legal.
"2. All such marriages heretofore contracted, the parties whereto are living as husband and wife at the time of the passing of this Act, shall be held to have been lawfully contracted; but nothing herein contained shall affect any rights actually acquired by the issue of the first marriage previous to the passing of this Act; nor shall this section render legal any such marriage when either of the parties has afterwards, during the life of the other and before the passing of this Act, lawfully intermarried with any other person,"
CONTENTS.
| PAGE | ||
| Introduction | 1 | |
| Civil Code | 1 | |
| Letters. | 2 | |
| Mr. Girouard | 2 | |
| Bishop of Rimouski | 2 | |
| Montreal | 2 | |
| Three Rivers | 2 | |
| Sherbrooke | 2 | |
| Quebec | 2 | |
| St. Hyacinthe | 3 | |
| Bishop of Northern Canada | 3 | |
| Rev. Dr. Cordner | 4 | |
| Rev. Gavin Lang | 4 | |
| Bishop of Ottawa | 4 | |
| Mr. R. D. McGibbon | 5 | |
| Lex | 6 | |
| List of Supporters | 7 | |
| Text of Bill | 8 |