§ Mr. Borthwickdid not move the adjournment of the debate on the motion that leave be given to bring in a bill to amend the present marriage law; yet he hoped the House would allow him to state briefly the grounds upon which he should give his vote. There appeared to him to have been urged against any measure of this nature three main objections. First, that it was a bill contrary to the revealed will of God; secondly, that the whole course of legislation in this country for nearly the last 1,500 years had been in opposition to the principle of the bill; and, thirdly, that the practical operation of such a law being once incorporated in the statute-book would be to take off the fine edge of that morality which now existed in families. If these three propositions could be maintained, then he was sure that the noble Lord who had proposed the measure (Lord Francis Egerton) for the consideration of the House, would have been the very last man to have brought it all under discussion. If it could be proved that the revealed will of God was in direct opposition to the prososal now made, it was the duty of the noble Lord, even at this stage of the measure, to withdraw it. But in his opinion the argument which had been advanced in support of that proposition could not be sustained. The text which had been quoted from Leviticus clearly forbade the marriage of a wife's sister only during the life-time of the wife herself, and did not in any way prohibit the mar- 696 riage of such sister after the death of the wife. Then with regard to the second proposition, he confessed that it was one which, at first sight, wore the appearance of much gravity. It asserted, that for nearly 1,500 years, the united opinion of the Catholic Christian church had been directly against the law now proposed by the noble Lord. He had to observe, first, that although they found in the Roman Catholic church there were prohibitions against these marriages, yet they found also that there was a prohibition against any marriage at all on the part of the priesthood. Now, he would ask those who put this argument as against the present bill becoming the law of the land, did the Roman Catholic church forbid marriage to their priesthood as a matter of discipline, or as a matter of moral rectitude? The reply must be, that the Roman Catholic church forbade it as a matter of discipline solely. The English Protestant Church had, so far as regarded their priesthood, annulled the prohibition. The same principle which induced the Roman Catholic church to prohibit their priests from marrying, also induced them to prohibit a man from marrying his deceased wife's sister. And if the reformed church had the power to annul the former class of prohibited marriages, so also had it the power to annul the latter class. The Pope also could grant to parties dispensation, and allow them to marry within the prohibited degrees. But no dispensing power was ever given to the Pope by the Catholic church over acts which were in themselves and in their own nature directly sinful. It would not be attempted by any Protestant to be argued that the Pope had a dispensing power over acts that were contrary to the revealed will of God. It was clear, then, that the argument founded upon the long continuance of the law which forbade such marriages could not be adduced in support of any other proposition than that the Roman Catholic church had deemed it right to make the prohibition as a matter of discipline merely; and as a mere matter of discipline on the part of that church it could not be put as a reason why the Legislature of a Protestant community should not alter such a law. Then with respect to the third objection, founded on the moral effect of this measure on society. It had been said, that the opposition of the Church of Rome to the marriage of a 697 man with his deceased wife's sister was founded upon the immoral tendency of such marriages. If that could be shown, no person would be more ready than himself to reverence the motive which actuated that church. Still the purity of the motive was not sufficient to convince him of the soundness of it in reason and in experience. For his part, he believed that those who contracted these marriages were actuated by the purest motives. At all events, he was firmly convinced that if a man could be brought to regard his wife's sister with any feelings of an improper nature, it was not in the power of legislation to set aright the moral derangement of that man's mind. His arrangement in favour of the bill now before the House was this, first, that these marriages were not prohibited by the sacred writings, secondly, that they were not against the authority of the church, inasmuch as that authority rested on moral grounds; and, thirdly, that they were not productive of moral inconvenience to one-half the amount that existed under the present law. The prohibition which this bill went to remove produced evils in law, evils in morals, and evils in religion, which he was sure hon. Members would be very slow to encourage. On these grounds he implored the House to adopt the present measure in order that an end might be put to them.
§ Mr. Curteisthought the evidence to be adduced from scripture much in favour of the bill, but he reprobated an attempt, such as had been made by the hon. Baronet the Member for Oxford, to give a religious character to the discussion. He could see nothing like impurity in the connection between a widower and his late wife's sister, and some of the evils of the present state of the law had fallen under his own observation. How the notions of persons might conscientiously differ upon this question was illustrated by the fact, that while Dr. Pusey had written strongly in support of the cause espoused by the hon. Baronet the Member for Oxford, the Archbishop of Dublin had taken an opposite view and in a published letter had given it as his decided opinion that it was much better to leave persons to the guidance of their own feelings, and to the dictates of their own consciences than to legislate at all upon the subject. He trusted, therefore, that the ordinary courtesy would not be denied in this 698 instance, and that the noble Lord would be allowed to bring in his bill.
Mr. Charles Butterhaving moved the adjournment on a former day, wished to be allowed to make a few remarks on the present occasion. He had made up his mind to support the bill, although in the first instance he had felt adverse to its provisions. He was disposed to argue the question on the grounds of national expediency, and in the outset he readily admitted that there was something to be said on both sides. The principal argument against the measure was founded upon the disturbance of domestic relations, by allowing husbands to look upon a wife's sister as a person to whom they could hereafter be allied by nearer ties. Nevertheless, in his opinion, all yielded to considerations of expediency, justice, and humanity, especially applicable to the middle and lower classes. In that division of society, it was often highly important to allow the wife's sister to become the stepmother of the children, as she was bound by every bond of affection to take care of them. The remark did not apply to persons of the rank to which he belonged, but in the middle and lower classes such unions were frequent and natural. In the case of a cottager, what woman so fitly as the wife's sister could fulfil the duties of a mother? Neighbourly charity could hardly be expected to undertake such duties; and, although the House was necessarily without statistical details, there was no doubt that among country people, the marriage of the widower with the wife's sister was the ordinary mode of providing for the care of the children. Among the sober and industrious classes, he had understood that such marriages were extremely common, and it was natural that they should be. Supposing the inclination to exist between two parties, what would be the consequence of prohibiting marriage by law? The parties would dispense with the ceremony altogether, and they would thus in a manner be compelled to unite without the sanction of the law. It was very unwise in the Legislature to require more preliminary conditions as to marriage than were absolutely necessary. At present, if a marriage of the kind took place in ignorance, the penalty did not fall upon the father or mother, but upon the innocent children. In the higher classes, large properties and fortunes were often involved in questions arising out of such irregular unions. A very proper disposition had 699 been shown by the House to prevent the discussion taking a theological turn; where the commands of religion were so clear that no Christian man entertained a doubt, no disposition was evinced to violate the Divine law; but the moment any point of controversy arose, it was unwise to make the House the arena for such discussions. Was there, then, any unanimity upon the point? On the contrary, in the greater part of Christian Europe, and among the white population of America, these marriages were perfectly lawful. Besides, it was extremely unjust to make the rules and canons of a particular church the rules and canons of an entire population. The Roman Catholics regard these marriages as prohibited; but the rule might be relaxed by the dispensing power of the Pope. Therefore they were able to contract these marriages; but what would be the effect of prohibiting them by law? They would be deprived of the power of doing an act which by their own religion having the dispensation was perfectly lawful. Many Protestant dissenters also held these marriages to be lawful; and if the consciences of members of the Church of England were opposed to them, it was easy for them to avoid them. By declaring such marriages illegal, the religions liberty of those who now could contract them was violated, while by passing the bill now to be introduced no man's privileges were interfered with. It was not necessary to refer to the Fathers nor to the council De Liberis, to which the hon. Baronet the Member for Oxford had made a timid allusion, but it seemed trifling with the sanctity of marriage to permit the existence of any discrepancy in the practice of different Christian countries. If a law was passed forbidding these marriages, it would be defeated by the mere circumstance that they were held lawful by neighbouring states; and how was it possible to look with horror here upon unions which were actually sanctioned by the law of many Christian countries? The only way of legislating effectually in such a case would be to apply the same rule to the marriage of a wife's sister as to that of a sister by blood; but his main ground in favour of the introduction of the bill was, that to prohibit such marriages was opposed to the general feeling of the country. There was no extent to which people might not go in reference to what were called the prohibited degrees; and at one time it was 700 held by the Church of Rome that marriages even to the tenth degree could not be celebrated without dispensation. Lord Coke had referred to a case where a marriage was annulled because the husband had stood godmother to his wife's cousin. [Laughter.] He had made a mistake; the case did not go quite so far, but the marriage was annulled because the husband had stood godfather, not godmother, to his wife's cousin. If any one had proposed then to alter the law, the argument of the hon. Member for Oxford— he could fancy him living in that time—would come to this; he would say, "Where will you stop? Here is a marriage to be allowed between parties in the tenth degree; you will very soon demand the legalisation of marriages in the ninth degree, and there will be no ending till you come to the last terrible degree, which frightened all men, marrying a man's grandmother." Now, he did not think that if they gave this permission there would be any other demand for encroachment; for even where the Pope had the power of dispensing with prohibition of marriages within nearer relations, such as a man marrying his niece, a marriage common in Spain, he did not believe that there had been one such case in England during the whole of the Popish time. Take, however, the question free from all prejudices; let them look at the marriages that had occurred. Did they believe that in ninety-nine cases out of a hundred, more desirable marriages could arise than under such circumstances? In the first place, there was the equality of affinity, if not of original birth; and in the second place, did they desire that marriages should be formed upon a knowledge of the character of the parties, each knowing the other's faults and virtues? He asked, when they could enter into the marriage state with the fuller knowledge of character on both sides? He asked, in what case could the attachment be formed on purer or more refined motives? And he would ask, under what circumstances the passions were likely to flow in a purer and more refined course? It was no idle passion—it arose from no heyday of youthful blood—it arose most probably from common affection and common sympathy for fond and beloved objects; and the tie which would bind the living was the common feeling of attachment towards those left to them as the objects of their common care.
§ The Chancellor of the Exchequerthought that what the hon. and learned Gentleman had said, formed the strongest argument against the measure. The hon. and learned Gentleman bad said, that if these things had occurred among the higher classes alone, he would not interfere; hut he would legislate for the lower orders. Now, he could not consent to place the moral feelings of the higher and lower classes upon a different footing. He had known much of the lower orders, and he knew them to be as strongly actuated by moral feelings as those moving in the most exalted ranks. If the hon. and learned Gentleman deemed it desirable to prohibit these marriages among the higher classes, he thought he could convince him, that it was equally desirable to prohibit them in the lower classes. Among the lower orders, the hon. and learned Gentleman must admit, that there were many more occasions of familiar intercourse. They were necessarily confined within narrower limits; and if, in the higher classes, the attention of the husband to the wife's sister would assuredly create dissension, that dissension would, among the lower orders, be equally strong. He could not, therefore, acquiesce in the hon. and learned Gentleman's opinion that this measure was expedient for the sake of the lower orders. The hon. and learned Gentleman then spoke of these marriages as if they were the common rule of society. [Mr. C. Buller: They are common.] He had had considerable experience of the rural population, and he had never heard an instance of a marriage of this description, and he believed the feeling with respect to such marriages to be decidedly against them. The hon. and learned Gentleman also relied much upon a petition from the parochial clergy, to which he attached too much importance, for he believed it came entirely from the parochial clergy of the diocese of Norwich, and it could not, therefore, be fairly taken as expressing the general feeling of the parochial clergy throughout the country. For himself, having much communication with the parochial clergy, he thought, that the opinion they entertained was against such a change, not only on public grounds, but also upon others, which, if he abstained from mentioning, it was because he was unwilling to make the House the arena for theological discussion. The hon. and learned Gentleman used also the argument, that whilst a contrary system was prevalent in other 702 countries, it was absurd, or, at least, not desirable to maintain it here — he spoke of Roman Catholic countries—and he said,—
If it be competent for Roman Catholics in foreign countries to marry in this way by dispensation, how can you in England, where you have so many Roman Catholics, object to legalize what the Catholic Church does not prevent?But the hon. and learned Gentleman must know, that it was usual in the Roman Catholic Church to grant a dispensation in much nearer degrees of relationship. If, therefore, he admitted the arguments of similarity with other countries, he must not only adopt the present measure, but go one step further; and if, in other countries, he found that Roman Catholics in still nearer degrees could marry, he would by the same argument be called upon to legalise those marriages, and throw the existing marriage law into utter confusion. He believed that the measure, if carried, would lead to great distress. He thought, that the mere discussion carried with it many inconvenient consequences—doubts were thrown out, whether marriages before considered impossible might not be rendered legal? He believed, that the happiness of married life depended much upon the fact that marriages were indissoluble; he believed, also, that much of the happiness of social life depended upon the impossibility of marriage between certain members of the family; and he doubted whether the mere discussion would not tend to unsettle the minds of persons, and lead to disunion and to the injury, if not the ultimate destruction of domestic happiness. If that were the evil of discussion, how much greater would be the evil of legislation? He was of opinion, that the legislation in 1835 had been an evil, for marriages of this class were limited in number before 1835. The cases which then occurred were rare exceptions, and excited observation; but as soon as Parliament gave out that they were prepared to legislate, the marriages which took place immediately increased ten-fold, the parties believing that as the Legislature had legalised some, it would, if many cases occurred, go one step further and legalise all. It was impossible to say, when the door was opened, how far the passions of men would carry them in the evasion of the law. Many might possibly have done so in the belief that Parliament would, by the frequency of the practice, be called upon to 703 legislate. And even if this should not actually be the case hereafter, and if Parliament should not be willing to extend 'the law, yet the proposal would have the evil of unsettling the minds of men and of women on this subject. Then the hon. and learned Gentleman most feelingly alluded to the advantage of having the wife's sister as the step-mother of the children. He said, that no union could be so suitable, so proper, so likely to 'arise from the purest of motives, and so well calculated to benefit the family. He admitted, as far as the children were concerned, that probably no person was more desirable to take care of them than the sister of the deceased wife; but to render that care effectual, he did not think it necessary to legalise a marriage. The hon. and learned Gentleman had enumerated many cases in which this had taken place, where the parties wished, but were not enabled to marry; there were, however, many more cases where the sister took care of the children without any thought of marriage; and he must observe, that if they allowed marriage between the parties, they would actually prevent the taking charge of the children by the deceased wife's sister, unless there was a marriage, for in this country, where family intercourse was looked upon, and was the greatest luxury of life, it formed a rule of society, that parties of different sexes, capable of being united in marriage, should not live together without that union. The advantage, therefore, which the hon. and learned Gentleman desired of having the children consigned to the care of the deceased wife's sister, would, in all cases in which the husband did not wish to marry his wife's sister, be effectually prevented, and upon that ground alone this measure would prove a real disadvantage to the children. He did not admit the consequences which the hon. and learned Gentleman thought likely to result from the continuance of legal impediment to these marriages, or that litigation would take place. If the public were only satisfied that Parliament would not alter the law which regulates marriage, they would obey the law, and there would be far fewer marriages illegally and improperly formed, than if by new legislation we excite hopes that the Legislature will legalise marriages, though contracted contrary to law, so soon as they are stated to be numerous.
§ Mr. Brothertonsaid, that if they went upon strictly scriptural grounds, it was 704 probable that second marriages, in, any case, could only be justified on the ground of expediency. It must be observed, that it was only since 1835 these marriages with the deceased wife's sister were declared illegal—previously they were voidable but not void. A bill was then brought in declaring that these marriages, after a certain day, should be illegal; he well recollected the feeling of the House upon the subject, and when the bill had gone through committee the House left the law, by the bill, just as they found it. Hon. Members had several representations from the country, requesting the law to be passed as it was brought in, and they were told that it would not pass the other House if it were not altered. Parties desirous of having their own marriages legalized made a general canvass among the Members, and on bringing up the report a clause was added, making all future marriages void. As the bill passed that House those marriages which took place after the 1st of July were to be void, but some interested person got the bill altered, and it stood that they were to be void from the passing of the act. He had heard that a gentleman, while the bill was passing through Parliament, had married his deceased wife's sister, and the alteration of the date made this marriage legal. He recollected also that Mr. Sergeant Talfourd, on the very night the bill received the Royal Assent, moved for its repeal. A few days afterwards he (Mr. Brotherton) was visited by a young man who had promised his deceased wife on her death-bed to marry her sister, on account of the children, and asked if the act would make his marriage legal, for they had agreed to be married the next Sunday. He told the young man what the act contained. He stated the facts of the case—that the marriage would be void. He knew that in many cases other marriages of the same sort had taken place, and he was acquainted with one case of a servant, who, although he was aware that the marriage would be void, could not be prevented from contracting a union; and he was told, that amongst the working people such marriages were frequent. He believed, that there was a general impression that marriages of this kind were not immoral, and that as Parliament had declared all such marriages, previously to 1835, to be legal, the same course might be taken again.
Mr. Vernon Smithsaid, he wished to address a few words to the House on a 705 subject which had, at least, the merit of novelty. One reason that induced him to give his vote against the proposition, was the time at which it was made. He did think, that considering the security the House had in the character of the noble Lord, from his high character, and the ample consideration he had given to this question, as well as the position he occupied in that House, not only from his rank and the large constituency he represented, but from the course he had pursued in the House, showing that strong party attachments, and talents of no ordinary kind, might be made perfectly consistent with the most conciliatory demeanour towards all parties in that House—he did think it was due to the noble Lord to have allowed him to introduce his bill. That permission, he considered, had been denied him when the adjournment took place; and, therefore, on the present occasion, he felt obliged to give his vote against the bill. He should not enter into the religious considerations connected with the question, they had been very properly avoided, for if there were religious objections to such unions, no law that could be passed would obviate them. In this respect, every man must be left to be guided by his own conviction, whatever law might be passed. He should confine himself solely to the inconvenience and inexpediency of these marriages. The hon. Member for Liskeard had made an able speech on the question, but he thought it told rather against the bill, for which he intended to vote, than in its favour. The hon. Member had considered, that if the question were confined exclusively to the upper classes, it would be different; but with regard to the working classes, among them a widower could find no person so well fitted to take care of his children as his wife's sister. He differed from the hon. Member in his view of the question, in reference to the upper and working classes. Among the working classes, it was a much simpler proceeding for a sister of a deceased wife to live with the husband, without any impropriety than among the higher classes. The laws they might carry in that House, on such subjects, were calculated to have a very great effect on the morals of society. Fiscal laws might be avoided by those determined to evade them; in political legislation also, laws might be obstructed by those who were disposed to obstruct them; but with respect to laws bearing on morals, 706 the case was different; persons were not unapt to take their moral tone from the laws passed by that House. They were called on to consider the views prevailing on this question among society. It was stated, that there was a very strong feeling in favour of such a law among the people. Now he meant to say, that if such a feeling existed, he was perfectly ignorant of it. When they were called on to look at the distress of the persons who were agitating this question, he thought that they had no great call on their sympathies. Who were they? Who must they be? He should be sorry to treat the question with anything that had the appearance of ridicule towards the feelings of any portion of his fellow-countrymen. But he supposed the persons who were agitating this question were a number of mature gentlemen who were widowers, and anxious to marry their deceased wife's sister. He must say, that the agitation of such a question by such a body of men need not necessarily excite the sympathy which the situation of any other sort of distressed persons would do. He believed, with the Chancellor of the Exchequer, that many persons who had lost their wives, were not unwilling to permit their wife's sister to live in their house, and to take care of their children. The moment they passed a law, permitting these parties to marry, there was not one of those couple now living together in a perfectly harmless and respectable manner, who would not feel called on by the state of society in the country districts of England, immediately to marry. This would be a very great inconvenience, as there might be numerous cases in which persons were willing to live together, but who would yet be extremely unwilling to increase their expenses by a family, or become connected by marriage. He knew this was a delicate subject to touch on; he was not such a master of language, but some expression might escape him, which might excite ridicule; but he hoped hon. Gentlemen would believe, that he was endeavouring to speak seriously, and not think that he had any intention of exciting mirth. The principal purpose of this bill was founded on an assumption that, he was unwilling to allow,—namely, that it was impossible for affection to exist between the sexes without marriage. It assumed, that it was utterly impossible for a widower to live with the sister of a deceased wife, without some improper con- 707 nexion. He admitted the dangerous tendency of placing young persons to live together in the same house, but he did not think the objection applied to cases of this kind. He thought, that in these cases the law might create the very feeling they wished to avoid. He could not agree to the principal proposition on which the bill was found d, and on the fullest consideration which he could give to it, he had come to the determination to vote against the introduction of the bill.
Mr. O'Connell:It had been said that this measure had been demanded of the House by the state of society, especially among the poorer classes in this country. It certainly was not demanded by anything that had occurred in Ireland, for such marriages as those which were contemplated to be legalised were never heard of among the Roman Catholic population of that country. He did not oppose this Bill upon the ground of such marriages being prohibited by the Christian law. He had heard some theology spoken upon this question, and very indifferent theology it was. The hon. member for Salford was mistaken in his view of the Roman Catholic doctrine upon the subject; and he would afford him some consolation, by assuring him that, if it should happen that a clergyman of the Anglican church should be reconciled to what he would call the mother church, he might hold his living without parting with his wife. But he opposed this measure upon a strong conviction that it would not have a moral tendency. He would not enter into the train of reasoning which had conducted his mind to this conviction; but upon a most deliberate view of the case he had arrived at that conclusion, and having done so he should vote against this bill.
§ Lord Ashleywould only offer a few words for the purpose of stating some facts, which he thought had some bearing upon this question. It was said that the practice which was sought to be introduced into this bill was in harmony with that of the greater part of Christendom, but that there were no moral statistics by which positive information upon the point might be obtained. There was evidence, however, of a highly important character upon the question which he would bring before the House. First, as to the practice of Protestant Europe. The hon. and learned Member for Liskeard would not 708 derive much benefit from this point, because, if he considered what was the law of marriage in Europe, he would perceive that the tie of marriage was looked on with a less strict eye on the continent than in England, and any argument which he might draw from the state of things which he had remarked, therefore, lost much of its weight and applicability. He believed that nearly all the thinking men of Germany were of opinion that the present law of marriage could not be maintained, but that recourse must eventually be had to a return to the old canon law. But the subject was not now broached for the first time. It had been discussed at length, and had been decided upon in France by persons who had no sympathies for the ecclesiastical or the canon law, and who came to a conclusion contrary to that now sought to be acquiesced in by the House, simply and solely because they looked to the domestic position and comforts of the people, and to the future safety and security of the institutions of the country. At the time when Napoleon was drawing up his civil code, amongst other things, the law of marriage was submitted to the consideration of the Council of State, to which the general questions of the laws of France were referred. The Council of State was the body to which the discussion of this question was confided, and Napoleon himself occasionally presided over its sittings. By the law of 1799, passed in the time of the republic, the ecclesiastical and canon law of the kingdom were totally abandoned, and marriages were prohibited only within the natural and legitimate degree in the direct line; brother and sister were interdicted from marrying, but marriage was permitted in every other degree, and it was necessary in drawing up the code that this matter should be considered. The subject which was discussed in 1804, was the same which was now submitted to the attention of the House; namely, whether brother-in-law and sister-in-law should be allowed to marry, as provided by the law of 1792. By the authority of the Emperor the deliberations of the Council were published. On a debate on this article, at which Cambacéres, Laplace, Rennier, Tronchet, and others were present, an argument was raised precisely similar to that which had now been brought forward. It was said, "There is no reason for prohibiting the marriage 709 between brother-in-law and sister-in-law, and the welfare of the children of the first marriage demands that such marriage should be authorized." To this argument it was answered that what had been said with regard to the interests of the children of the first marriage would apply in very few cases, but that motives much less respectable would ordinarily determine this kind of marriage, and the frequent occurrence of cases of divorce would lead these relatives to very indecent practices. M. Rennier, the minister of justice, on this observed, that the facilities given to such marriages by the law of 1792, had given rise to numerous divorce suits, and after M. Tronchet and another had expressed their views, the First Consul gave his opinion, and the result was this, that having said that marriages between uncles and nieces, and aunts, and nephews, were prohibited, with power, however, of dispensation, he came to the conclusion, and it was now the law of France, that marriages between brothers and sisters-in-law should not be permitted under any circumstances. That was the conclusion to which the council came, and they did so simply and solely on the experience which they bad had upon the law of 1792; and although Napoleon carried this measure, he yet carried a law of divorce so stringent that it was almost impossible to obtain a decree of divorce under it. This, then, he held to be something to guide the House, at all events, upon their coming to a decision upon this question. But if the bill of the noble Lord were carried, he did not know how they were to stop the progress of further legislation upon this point. Now, the line of demarcation, beyond which parties were not to go in contracting marriages, was clear and well defined; but this point once broken down, it was impossible to see to what extent the mischief might be carried. And this objection appeared to have been very strongly felt by the noble Lord who had introduced a similar bill in another place during the last year, because in that bill he reduced the number of prohibited degrees from thirty to twenty. He thought, however, that the House would agree with him that this was not a question upon which any new legislation was called for. Where such a measure was proposed, not only must the most overwhelming necessity be shown for it, but the national voice ought to be most powerfully expressed in favour 710 of it, to induce the House to accede to it. Scarcely anything had been said in favour of the measure, and the utmost which had been urged in support of its popularity, was a petition of some few clergymen and other persons residing in a small district of country. He believed, that the feeling of the clergy of England was against this proposition, and he was sure, also, that the feeling of the great body of the people of this country was against such an alteration of the law; and, if he might take the opinion of the women, who were no bad judges of what was most conducive to domestic honour, and what was best for the ultimate good of mankind, a measure of this kind would never have been introduced within the walls of the House.
§ Mr. C. Woodconfessed, that he thought the noble Lord who had just sat down, had much misrepresented the bill before the House, in stating, that it would make an innovation in the practice of the country; for he believed, the innovation was made by the clause introduced into what was called Lord Lyndhurst's bill, which clause was introduced, not by the noble Lord who moved that bill himself, but in the course of the debate thereon, and actually and altogether prohibited those marriages which, when the bill was brought in, were almost universally sanctioned by the practice of the country. The state of the law was, that such marriages were voidable, but not void. He believed, that not only amongst the higher classes, but also amongst the most respectable portion of the middle classes, and people whose morality and regard for considerations of that sort nobody would question, as well as among the lower orders, these marriages were carried to no inconsiderable extent. He had heard, from a learned Gentleman of no mean authority on questions of this nature, that the effect of the clause so introduced in Lord Lyndhurst's Act, had produced no effect whatever in checking those marriages, and that in point of fact, the practice had gone on to an extent of which hon. Gentlemen were not aware, the parties trusting that no question would be raised as to the validity of those marriages. The innovation, therefore, he apprehended, was made by the law passed to check those marriages; and the interruption to domestic happiness and the accession to property would arise, not from the bill of the noble Lord, but from the effect of the clause in Lord Lyndhurst's bill, 711 which was admitted into that measure almost without discussion, attracting but little notice, and was passed through this House under the assurance that it might be re-considered in the next Session of Parliament. As to the conclusion which his noble Friend drew from a discussion of the Council of State in France, it must be evident that the arguments against the measure rested on the facility of divorce which existed under the then law in France. The opinions which the noble Lord had quoted, were of two persons, who said, that in the then existing facility of divorce, it was exceedingly objectionable, that inducements to divorce with a man's wife should be sanctioned by the possibility of a marriage with her sister. He apprehended, that that facility did not exist in this country, and he hoped it never would. That being the case, the arguments which his noble Friend derived from that position was entirely inapplicable to the present discussion. It was his opinion, therefore, that to the marriage of a man with his deceased wife's sister there ought to be no obstruction, ecclesiastical or civil, and that the House ought again to pass this bill.
§ Sir W. Follettthought, that the hon. Gentleman laboured under a great misapprehension as to the state of the law on this subject previously to 1835. The effect of the bill was not to render valid that which was invalid before; for, as he read the law, such marriages had always been illegal in this country. These marriages were not only prohibited by the canon law, but they were also prohibited by an act of Parliament so far hack as the reign of Henry the 8th. The bill of Lord Lyndhurst was introduced to alter an anomaly in the law, which stated that these marriages must be declared invalid in the ecclesiastical courts, but that they could only he declared void during the lifetime of the parties. The same law which prohibited the marriage of a man with his deceased wife's sister, also prohibited marriages between a father and daughter, a brother and sister, and an uncle and niece, for they were only voidable through a process in the ecclesiastical courts, for the common law courts could not take up the inquiry, for the matter must be first questioned in the ecclesiastical courts. If in any of these cases the matter was not taken up during the lifetime of the parties, the marriage would to 712 all intents and purposes be regarded as legal. But these marriages were not merely voidable on the case being brought before the court, for not only any person interested with the parties might take steps to destroy a marriage, and bastardise the issue, but any person who wished to extort money might institute proceedings against the parties. Surely this was a state of the law which ought not to be allowed to continue. The hon. Member for Salford said, that this clause was introduced into the bill on bringing up the report, and he was the person who brought up the clause. and he assured the House that he had never regretted having done so—by which it was enacted that, whenever parties married within the prohibited degrees of consanguinity, it should not be left to other persons to adopt proceedings to question the marriages, but that they should at once be declared void and invalid in themselves. The subject had been fully considered when this clause was introduced, and he denied that there was any understanding that the clause should be altered in the subsequent Session. If any hon. Gentleman thought that marriages should be declared legal contracted within certain degrees of consanguinity, he should bring forward a specific motion to exempt them from the operation of the act, instead of going to the repeal of the whole of the clause. Lord Lyndhurst's bill did not alter the general law in this matter; for it had always been the law of the country, and he believed that these marriages had always been inconsistent with a healthy tone of moral feeling, and that the public opinion of this country had always been opposed to such contracts. He did not deny that such marriages took place, but he believed that the feeling was as strong amongst the lower as amongst the higher classes against this description of marriages. He had no wish to enter upon any discussion of the religious question, for he thought that all such topics should be avoided as much as possible in that House. He believed that the moral feeling of the country was, that it was better that they should keep the law as it then was. He thought that the arguments of his hon. and learned Friend, the Member for Liskeard, with respect to the reasons why the higher classes of society were opposed to this description of marriages, was equally applicable to all the other classes in the community. He was satisfied that the sister of a deceased wife 713 was the best person to act as a mother to a man's children; but if such a proposition as the present was adopted, the sister would be merged in the stepmother, and all the best affections of the sister would be lost. He was convinced that, if the Legislature once relaxed the law on this point, it would be impossible for a person to live in the same House with the husband of her late sister, for the voice of society would be strongly opposed to it, and would always regard her in the light of a man's future wife. Under these circumstances, he thought that the happiness of society made it necessary that they should not attempt to relax the law on this subject. On these grounds he should feel it to be his duty to give his vote in opposition to the introduction of this bill.
§ Mr. Wakleysaid, it must be very gratifying to the hon. and learned Member for Liskeard, to learn that his speech had produced such an impression on the mind of the hon. and learned Gentleman who had just resumed his seat. He thought the speech of the hon. and learned Member for Liskeard, a very eloquent and argumentative one, but it appeared that it had produced a conviction on the mind of the hon. and learned Gentleman who had just sat down, that the relaxation proposed with respect to the law of marriage should not take place. That was another example of the danger which attended hon. and learned Gentlemen when they made speeches without fees. He believed the hon. and learned Member's speech to have been a perfectly honest one, since he did not speak as an advocate, but as a senator; and if the hon. and learned Gentleman made such a mistake, he hoped it was participated in by the hon. and learned Gentleman the Solicitor-general. He had been much surprised to see to what source the noble Lord the Member for Dorsetshire, had resorted to find materials for arguing against the bill before the House, and that he had gone to the council of France in the year 1804. He hoped, after this, that revolutions would not appear so terrible and frightful to the aristocracy of this country. ["Oh, oh!"] Why, the sentiments and doctines which the noble Lord advanced against the proposition before the House were those which were uttered in the council of France under the presidency of Napoleon. The noble Lord, with his ability, must have been 714 very hard pressed indeed to go to such a quarter for doctrines with which to support his opinion. The hon. and learned Gentleman the Solicitor-general, had informed the House for what purpose he conceived the bill of 1835 to have been introduced. An opinion existed in the House at that time, and it existed out of the House at present, that that bill was brought in for relieving a nobleman from the peculiar situation in which he was placed. That opinion existed then, and continued to exist now, and he for one believed it to be the truth. He was somewhat surprised at the manner in which some gentlemen had treated the character of English women in this debate. Those who opposed the bill, made it appear that a wife's sister was a kind of female with whom the husband could do just what he pleased. ["Oh, oh!"] That was their doctrine—that she had no virtue—that she had no firmness of mind—that she had no power to resist importunity. They treated her as a child, as an infant, as a person who had no reason, who had no will of her own. [" No, no,"] No doubt it was exceedingly unpleasant for them to hear this, but such was the fact. If that was not the tendency of the arguments which had been urged, why did they fear the course she would pursue? Why did they apprehend danger from her conduct? Why did they believe, that she would pollute the fountains of society? Not one fact had been stated, or argument advanced, which ought to induce the House to reject the motion of the noble Lord. When these restraints on the liberty of the subject were proposed, it was the bounden duty of those who were the advocates of restriction to show its necessity, and if that was not done, their case fell to the ground. Believing that that had not been done in this case, he should give his most cordial support to the bill of the noble Lord.
§ Mr. Hardydid not mean to detain the House one moment ["Oh!"], but the hon. Member for Finsbury ought to recollect that there was such a thing as an argument à fortiori. When the noble Lord the Member for Dorsetshire referred to the council of France, he did so in his apprehension, and that of every other Member in the House but the hon. Member for Finsbury, to show that the people of France having had experience of the effects of the relaxed law from 1792 to 715 1804, obliged even the liberal Napoleon and the council of France to bring back the law to its former state, as being more in conformity with their feelings and wishes.
§ Lord F. Egertonsaid, I have in the first place to thank my right hon. and learned Friend, the Judge Advocate, for a correction which his legal knowledge enabled him to apply to an error of mine on the instant. I have not any distinct recollection of the expressions of mine which called for that correction, but I have no doubt that they were such as to imply my belief that the marriage law, up to a recent period, had rested entirely on the canons of 1603, and had no foundation in statute. It was not my intention to lay down such a doctrine. I have said that I do not recollect, or at all defend my expressions, but what was in my mind and intention was this, that there was no statutory definition of the prohibited degrees now in force. I will not now proceed to illustrate this position by a detailed reference to statutes, because the operation would be a tedious one, and the object after all, of little consequence. I admit that, though the acts of Parliament of the 25th and 28th of Henry 8th, which alone contain a positive enumeration of the prohibited degrees, are repealed, yet the 32nd of Henry 8th, which has survived various tamperings of Henry's successors, implies a reference to the degrees of affinity so prohibited. On the other hand, I think that if we look to the origin and motive of these two statutes of Henry 8th, it will be admitted that they have not that character of sanctity about them which should make us hesitate to alter or amend them if we see ground of reason, justice, and expediency to apply such amendment. Having made this acknowledgement, and bowed to the just correction of my right hon. Friend the Judge Advocate, I beg also to assure another of my opponents, the right hon. the Chancellor of the Exchequer, that I have felt the force of his observations when he pointed out the evil and inconvenience of stirring this subject at all in this House. No man is more alive than myself to the delicacy and difficulty of the proceeding, but in this instance, as in many others, it seems to me that the discussion, with its attendant evils, has been unavoidable. I have known many subjects discussed here which I, for one, should have been glad to have suppressed. The Reform Bill itself was one of them; still, while I acknow- 716 ledge the evils complained of, I must claim to throw the responsibility for them from my own shoulders on those of legislators whose acts I think it necessary to consider with a view to their amendment, and I leave it to others to apportion the burden between Lord Lyndhurst and Henry 8th, who, I think, may more justly bear it than myself. I have next to notice the observations of my noble Friend the Member for Dorsetshire, to whom I listened with the attention and deference which I always give to anything that falls from him, especially in any matter into which considerations of religion or morality can possibly enter. My noble Friend has drawn his principal conclusions from the state of society and the state of the law in two different countries of continental Europe, Prussia and France. With regard to Prussia, he traces to the state of the law in that country,—which, as he rightly says, permits, under certain restrictions, the marriages of collateral affinity which I desire to legalise here,—a laxity of morals which he considers to prevail in that country. He tells us, that the state of society there is such, especially with respect to the relations of marriage, as to make moralists and patriots sigh for a return to the old canon law. Sir, I am reluctant to draw in general uncomplimentary comparisons between the state of morals in my own country and any other,—such comparisons are often deceptive. I am nevertheless inclined to believe that between ourselves and Prussia a comparison would result to our advantage, and, knowing that my noble Friend has good sources of information, I attach considerable weight to his opinion, and I believe that the evils of which he speaks exist. I am however by no means so sure that the state of the Prussian law with regard to the degrees within which marriage may be contracted has as much to do with those evils as my noble Friend's argument would make us suppose. I strongly suspect that the facilities with which marriages may be dissolved contribute far more to any social irregularities or laxity of morals which may exist in Prussia than does the absence of that particular restraint on the contraction of marriages which I wish to remove in England. And is not my noble Friend well aware of other causes of the evil at work in that country? I know not whether its subjects would be well advised or not to return to the old canon law, but this I know, I wish they could return to the bible. I fear I do not overstate facts 717 when I say that in Protestant Germany the influence of that volume has been almost nullified by the systematic attack which for the last century and half has been conducted by rationalists and neologists against its inspiration. The denial of that inspiration has for at least that period been the purpose and object of a series of able and laborious men, whose names are as unpronouncable as the catalogue would be interminable, and that catalogue has reached its climax in a name at this moment of the greatest notoriety in Europe.* These are circumstances which may well account for any features we may regret, if such exist, on the social condition of Protestant Germany. I know that the efforts of wise and good men, with one of the best of modern sovereigns in their van, are raised against this mighty evil. God send them success, but the task is one which will tax those exertions to the utmost. The disease lies too deep, in my opinion, to be reached by legal changes, but in so far as legislation can reach it, I doubt whether the cure should not rather be sought in a revision of the Prussian law of divorce than in any restriction upon the degrees of affinity within which marriage may now be contracted. Following my noble Friend to France, I find myself at issue with him on the fact that the marriages now in question are really prohibited in that country. That such prohibition is to be found in the code Napoleon, I am well aware, and I have no doubt my noble Friend is correct in his history of the introduction of the regulations he quotes, and that Napoleon and Cambaceres were its immediate authors. I venture, however, to assure the House that my noble Friend is mistaken in supposing that these prohibitions are now in force. I hold in my hand a legal statement, which I have the better right to quote because it is not only drawn by an unexceptionable authority, the legal adviser of the British embassy at Paris, but it fulfils the condition which, in the opinion of the hon. Member for Finsbury (Mr. Wakley), gives weight to legal advice,—it is paid for. It states that, marriage with the deceased wife's sister may be and is contracted in France by permission of the sovereign, and it points out all the forms and regulations under which that permission is obtained. The present law, therefore, in France, I state positively, is precisely on the same footing 718 as it is in most of the countries of Protestant Europe, in which the sovereign certainly assumes a discretion which a Roman Catholic can only attribute to the pope. Of course I presume that the strict Roman Catholic in France, as elsewhere, would think it necessary to procure a further dispensation from Rome, but with this the law has nothing to do. In all these instances it is clear that such marriages are not considered as conflicting with religion or morality. The restrictions imposed upon them have reference only to the circumstances of the individuals; they seem to me such as would not be practicable in this country, but they leave untouched the great principle that neither pope nor temporal sovereign can claim a right to dispense with a positive law of God. With regard to Scotland, I am far from saying that parties desirous to contract the marriages rendered void in England by the act of 1835, can do so effectually by resorting to Scotland for the purpose. But this I know, that such an opinion prevails, and that parties do resort to Scotland with such intent. I have a letter in my pocket from one of them, who seems content with the success of his proceeding. I fear that much confusion may arise from this state of things, and I may say in passing, that I should think this discussion, with all its possible evils, well bestowed if it could direct the attention of the Legislature and the Government to certain incidents of the marriage law of Scotland, and its possible effects upon English property and inheritance, which call loudly, in my opinion, for consideration. My hon. Friend the Member for the University of Oxford, has rested his opposition to the principle of my measure mainly on the practice of the early church. I regret that the lateness of the hour operated to make my hon. Friend compress materially his observations on a subject which he has deeply studied. I can claim for myself no such profound acquaintance with it as I attribute to him, and as he was under such disadvantage in discussing it, I wish to touch it now no further than to show that I have not altogether neglected its consideration, and that if I demur to his conclusions it is not from any want of respect for the authorities on which he relies, or from a presumptuous contempt for antiquity. My own general impression is just this, I think that for the first three centuries of the church we have little direct evidence of its practice. Towards the fourth century we have two facts in evidence. 719 First, that the practice prevailed to a certain extent, at least; this is clear even from Basil's famous letter against it: further, that when it came to attract the special attention of the heads of the church, when, if I may use the expression, they went to division upon it, the ascetic tendency of the age to restriction prevailed, and that various prohibitions were enacted, principally however, applied to the clergy. My hon. Friend, however, is well aware how many objects were embraced in these prohibitions, how many restraints were enacted by the same councils which he would be the first to disclaim and the last to revive. He is well aware that the marriage with the first cousin is forbidden under the same penalties. I have mentioned the name of Basil, who, I am sure, would be quoted by my hon. Friend as a very leading individual authority in his favour. No name ranks higher for learning and piety, and yet there is none in my mind who shows more distinctly to what an extent uninspired wisdom and learning may be misled by the circumstances of the time in which it flourishes. Take that prelate's opinion on slave marriages. What does he tell the slave who contracts a marriage without leave of the master. Does he say, as a Christian you should bow to the laws, however tyrannical, of the state in which you live? Had he confined himself to this, he would have, perhaps, spoken wisely and well. No, he says, you who contract a marriage without the leave of the heathen master who has fixed the chain on your neck, and the brand upon your brow, to the male he says, You are a fornicator; to the woman, You are an harlot. Sir, I have great respect for Basil, but I cannot admit him as an unquestionable authority. In conclusion, Sir, allow me to say, that if I felt myself possessed of any of that influence which has been kindly and flatteringly attributed to me by one of my opponents, the hon. Member for Northampton, I would not use it on such a subject as the present, to sway the deliberate judgment of any individual who hears me. There are many points of the question of expediency which hardly admit of argument or proof on which individuals must and will be guided by the results of their own reflection or experience. There are parties pleading at your bar for release from a restraint which they consider unreasonable and unjust. Give your unbiassed verdict, but if it be an adverse one, give it not in lightness of heart, or with that pardonable exultation with which you 720 go into the lobby to raise perhaps to power and office the idol of your political predilections, or to remove from them the minister you distrust; give it rather as the jury, when its foreman returns into court with the capital sentence on his faultering lips, for rest assured that to some at least of your fellow-subjects the death warrant it will prove of peace of mind and happiness on this side the grave.
§ The House divided on the question, that leave be given to bring in the bill. Ayes 100; Noes 123:—Majority 23.
List of the AYES. | |
Aglionby, H. A. | Heathcoat, J. |
Ainsworth, P. | Hill, Lord M. |
Aldam, W. | Hindley, C. |
Antrobus, E. | Hodgson, F. |
Arkwright, G. | Horsman, E. |
Baldwin, C. B. | Howard, hn. C. W. G. |
Bell, J. | Jardine, W. |
Berkeley, hon. C. | Johnson, General |
Bernal, R. | Langston, J. H. |
Blewitt, R. J. | Larpent, Sir G. de H. |
Borthwick, P. | Leader, J. T. |
Bowring, Dr. | Lemon, Sir C. |
Brotherton, J. | Lindsay, H. H. |
Bruce, Lord E. | Macaulay, right hon. T. B. |
Buckley, E. | |
Buller, E. | Marshall W. |
Childers, J. W. | Mitcalfe, H. |
Cobden, R. | Mitchell, T. A. |
Colborne, hon. W. N. R | Morris, D. |
Mostyn, hn. E. M. L. | |
Colebrook, Sir T. E. | Muntz, G. F. |
Collett, W. R. | Neeld, J. |
Craig, W. G. | Ogle, S. C. H. |
Crawford, W. S. | Paget, Col. |
Currie, R. | Paget, Lord A. |
Curteis, H. B. | Parker, J. |
Dalmeny, Lord | Pechell, Capt. |
Dalrymple, Capt. | Rawdon, Col. |
Denison, J. E. | Rennie, G. |
Dodd, G. | Repton, G. W. J. |
Dowdeswell, W. | Rice, E. R. |
Duff, J, | Ricardo, J. L. |
Duncan, G. | Round, C. G. |
Dundas, Admiral | Scholefield, J. |
Easthope, Sir J. | Scott, R. |
Ebrington, Visct. | Smith, B |
Ellis, W. | Strutt, E. |
Elphinstone, H. | Thornely, T. |
Ferguson, Col. | Troubridge, Sir E. T. |
Ferrand, W. B. | Tuffnell, H. |
Forster, M. | Villiers, hon. C. P. |
Gaskell, J. Milnes. | Wakley, T. |
Gibson, T. M. | Walker, R. |
Gill, T. | Wawn, J. T. |
Gregory, W. H. | Wilde, Sir T. |
Grimsditch, T. | Williams, W. |
Hall, Sir B. | Wilson, M. |
Harford, S. | Wood, C. |
Hastie, A. | Wood, G. W. |
Hay, Sir A. L. | Worsley, Lord |
Wynn, rt. hn. C. W W. | TELLERS. |
Young, J. | Egerton, Lord F. |
Buller, C. | |
List of the NOES. | |
Acland, Sir T. D. | Hatton, Capt. V. |
Acland, T. D. | Hayes, Sir E. |
Ackers, J. | Henley, J. W. |
Acton, Col. | Hepburn, Sir T. B. |
Adare, Visct. | Holmes, hon. W. A' C. |
Adderley, C. B. | Hope, A. |
Allix, J. P. | Howard, Lord |
Bailey, J. | Howard, Sir R. |
Bailey, J., jun. | Jermyn, Earl |
Baird, W. | Johnson, W. G. |
Barrington, Visct. | Johnstone, Sir J. |
Baskerville, T. B. M. | Lambton, H. |
Bentinck, Lord G. | Lincoln, Earl of |
Blackstone, W. S. | Lockhart, W. |
Bodkin, J. J. | Lowther, J. H. |
Boldero, H. G. | Mackenzie, T. |
Bramston, T. W. | McGeachy, F. A. |
Broadley, H. | Mahon, Visct. |
Browne, hon. W. | Mainwaring, T. |
Bruce, C. L. C. | Manners, Lord J. |
Buller, Sir J. Y. | Marsham, Visct. |
Bunbury, T. | Master, T. W. C. |
Burrell, Sir C. M. | Maunsell. T. P. |
Busfeild, W. | Mundy, E. M. |
Cavendish, hn. C. C. | Murray, C. R. S. |
Cavendish, hn. G. H. | Neeld, J. |
Chelsea, Visct. | Neville, R. |
Chetwode, Sir J. | Newry, Visct. |
Cholmondeley, hn. H. | Nicholl, rt. hon. J. |
Christmas, W. | Norreys, Sir D. J. |
Clerk, Sir G. | O'Brien, A. S. |
Cochrane, A. | O'Connell. D. |
Colvile, C. R. | O'Connell, J. |
Corry, right hon. H. | O'Ferrall, R. M. |
Courtenay, Visct. | Ossulston, Lord |
Cowper, hon. W. F. | Packe, C. W. |
Crosse, T. B. | Patten, J. W. |
Darby, G. | Power, J. |
Dawnay, hon. W. H. | Pusey, P. |
Dickinson, F. H. | Rashleigh, W. |
Douglas, Sir C. E. | Reade, W. M. |
Drummond, H. H. | Reid, Sir J. R. |
Duffield, T. | Richards, R. |
Duncombe, hon. O. | Rolleston, Col. |
Egerton, W. T. | Rous, hon. Capt. |
Egerton, Sir P. | Rushbrooke, Col. |
Escott, B. | Russell, J. D. W. |
Esmonde, Sir T. | Seale, Sir J. H. |
Estcourt, T. G. B. | Shaw, rt. hon. F. |
Ferguson, Sir R. A. | Sheppard, T. |
Follett, Sir W. W. | Sibthorp, Col. |
Fuller, A. E. | Smith, rt. hon. R. V. |
Gladstone, right hon. W. E. | Smythe, hon. G. |
Somerton, Visct. | |
Goulburn, rt. hon. H. | Stanton, W. H. |
Greenall, P. | Stuart, W. V. |
Greene, T. | Tollemache, hn. F. J. |
Grogan, E. | Trotter, J. |
Hamilton, W. J. | Tyrell, Sir J. T. |
Hardinge, rt. hn. Sir H. | Vernon, G. H. |
Hardy, J. | Welby, G. E, |
Whitmore, T. C. | TELLERS. |
Wilbraham, hn. R. B. | Inglis, Sir R. H. |
Ashley, Lord |