R v Dibdin

by Philip Jones

(1907) Probate 57 and 101

This once-famous case concerned the Deceased Wife’s Sister’s Marriage Act 1907.  The 1907 Act permitted a man to marry his deceased wife’s sister (‘DWS’), and retrospectively validated any marriages with a DWS contracted before the Act came into force.  Moreover the Act permitted such marriages to be solemnised in church.

The religious difficulty with the Act was that an earlier Act, passed during the reign of Henry VIII, not only forbade marriage with a DWS, but described such a marriage as ‘against the law of God’ (p.79).  The doctrine of the Church of England held that marriage to a DWS contravened the ‘Levitical laws’ in the Old Testament.

The Rev Canon Thompson refused to give Holy Communion to a parishioner, Mr Banister, who had married his DWS.  For this refusal he was disciplined by the Court of the Arches, of which Sir Lewis Dibdin was then Dean.  He then applied, unsuccessfully, to the secular courts for an order restraining the disciplinary proceedings against him in the ecclesiastical court.

The proceedings in the Court of the Arches are reported as Banister v Thompson (1908) Probate 362.  However, the secular case is interesting in its own right, as it is probably the only case in which the secular courts have discussed at length the tension between Church doctrine and modern ‘permissive’ legislation (now more usually known as ‘equality law’).

The Divisional Court boldly sought to construe the divine law as well as the human law.  It concluded that marriage with a DWS was not against divine law.  One judge stated that, before the 1907 Act, such a marriage was ‘bad in law, not because it always was against the law of God, but merely because the statutes of the realm declared it to be unlawful’ (p.79).  He held that ‘this marriage, which before was contrary to the law of God merely because the [Henrician] statute condemned it as such, is so no longer’ (p.81).

Another judge reached the same theological conclusion: ‘the words ‘contrary to the law of God’ [in the Act of Henry VIII] cannot be meant literally … for the Pope … grant[ed] dispensations in these cases, and Henry VIII himself married under such a dispensation’ (p.97).

One judge suggested that the Act of 1907 had not disturbed the theological position: ‘The Act … give[s] the persons contracting such marriages their full civil rights [i.e human rights] but no more … It does not repeal the Act of Henry VIII which declared that such marriages were contrary to God’s law’ (p.88).

The judges of the Divisional Court was clearly reluctant to accept the possibility that an Act of Parliament could be contrary to divine law: ‘Were the meaning of the Act not what I suggest, it would provide … that a clergyman … might solemnise … a marriage contrary to the law of God, and this we must not lightly suppose Parliament to have intended’ (p.81).

The Court of Appeal largely agreed with the Divisional Court’s theological conclusions, adding that prohibition of marriage to a DWS ‘was not in accordance with the general practice of Christian countries and Churches’ (p.119 – in other words, such marriages were permitted in most other countries by the time the 1907 Act was passed). 

One Lord Justice even suggested something resembling a doctrine of parliamentary infallibility: ‘this right of individual judgment which created the Reformation necessitates some ultimate arbiter, for the opinions of men … will differ, and the state is the only possible arbiter’ (p.132).

Of all the judges who spoke in the case, only the Master of the Rolls, Cozens-Hardy, declined to enter the theological discussion.  Instead he took a clear positivist view that an Act of Parliament is the law and requires no further justification.  The judges’ function is merely to interpret and apply the Act, not to reconcile it with divine law.  Cozens-Hardy MR stated that ‘marriages … with [a] DWS were [fomerly] declared to be prohibited by God’s law … That was the then view of the Legislature.  It is not for any court to consider whether they were in truth forbidden by God’s law’ (p.107).

Mr Justice Darling probably had the clearest insight into the policy behind the 1907 Act: ‘in reality, Parliament had not any settled intention whatever, except … to legalize these marriages … perhaps desiring to leave altogether unsolved the many embarrassing questions of conscience … arising out of it’ (p.82).

Both courts affirmed that the Church and the clergy were subject to the 1907 Act, regardless of its consistency or inconsistency with divine law.  The Master of the Rolls stated that a marriage ‘is one and the same thing whether the contract is made in church … or before a registrar … the Established Church has never refused to recognize any marriage which by our law is valid as being otherwise than a good marriage for ecclesiastical purposes’ (p.109).

One Lord Justice remarked sternly that ‘No man has a right to become a clergyman of the Church of England who is not prepared to perform the lawful duties of that office … If the [performance of a lawful duty] would do violence to his conscience, he should abstain from entering holy orders’ (pp.129-30).

Tension between secular law and Church doctrine obviously becomes acute when the law obliges the Church to do something incompatible with its doctrine. 

The legislature’s solution to ’embarrassing questions of conscience’ arising from the solemnisation of marriage has been the insertion of a ‘conscience clause’ in the relevant Act, relieving individual clergy from the obligation of solemnising marriages which they regard as contrary to the Church’s teaching.  The conscience clause concerning the marriage of divorced persons in church is now contained in the Matrimonial Causes Act 1965, s.8(2).

This device seems to have avoided direct conflict in the century since Dibdin was decided.  In the Civil Partnership Act 2004, Parliament apparently inserted a conscience clause for the entire Church by providing that civil partnerships may not be registered on religious premises (s.6(1)).  This has recently been amended (s.6A, introduced by the Equality Act 2010, s.202).  However, there is no guarantee that secular authority’s delicacy towards embarrassed religious consciences will continue in the future. 

The attempts of the judges in the Dibdin case to reconcile divine law with an inconvenient Act of Parliament may well seem clumsy and confused.  Their modern counterparts apparently decline to acknowledge that there is a divine law (or at least they plead ignorance of it).  Any claim of divine law is treated as a matter of individual religious belief only.  The religious belief (not the divine law) is then required to be proved by evidence. 

This current attitude fails to appreciate that divine law is still incorporated into English ecclesiastical law to some extent (by the Worship and Doctrine Measure 1974, s.5).  Nor can the tension between divine law and human law be got rid of by simply denying divine law.  Secular authority may try to deny divine law, but it cannot escape religious belief and conscience, which are the human response to that law.  Judges who now try to reconcile this human response to divine law with secular law, while rejecting divine law itself, are likely to end just as clumsy and confused as their predecessors were in the Dibdin case.

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