§ MR. STUART WORTLEY
having presented numerous petitions, praying for an alteration of the law of marriage as relating to the prohibited degrees of affinity, said, they were signed by 100 clergymen belonging to the Established Church, 141 Dissenting ministers, 126 solicitors, 6 mayors of boroughs, 68 magistrates, 94 town-councillors, 95 merchants and bankers, &c. He would then proceed to bring 743 under the consideration of the House the Motion of which he had given notice—That an humble Address be presented to Her Majesty, praying that She will be graciously pleased to appoint a Commission to inquire into the state and operation of the Law of Marriage, as relating to the prohibited degrees of affinity, and to Marriages solemnized abroad, or in the British Colonies.He said that the numerous petitions which had been presented to the House on the subject of the law of marriage, proved distinctly that the question was one which excited the interest of a large portion of the educated community, and which demanded the attention of Parliament. He trusted that, in consequence of the number of those petitions which had been intrusted to his hands, he should be acquitted of presumption in undertaking to bring the subject before the House, notwithstanding its delicacy, difficulty, and deep importance. It was a subject on which much feeling existed, and with respect to which it might not be difficult perhaps to excite the sympathy of any assembly; but he wished to appeal to reason rather than to passion. His Motion was not the same as that which, on more than one occasion, had been made in reference to this subject in either House of Parliament. In 1841, a revered relation of his introduced the subject before the House of Lords, with, however, but little encouragement; and, it being near the end of the last Parliament, nothing more was done then. In 1842, this subject was again introduced in the House of Commons by one whom they would all regret not now to see amongst them, were they not aware that his absence was occasioned by elevation to a higher rank—he meant Lord Ellesmere. He was happy to find, by communications with that nobleman, that, so far from having altered his opinion, he thought the subject even more deserving investigation now than at that time. He (Mr. Wortley), however, was of opinion that it would be scarcely respectful towards the House, on his part, if he were now to renew the identical Motion of Lord Ellesmere, for the introduction of a specific measure; because, if Lord Ellesmere, with his ability and with the influence of his name, was unable to obtain the assent of the House to that specific measure, it would be great presumption in him (Mr. Wortley) to attempt to do so. But, since the measure of Lord Ellesmere was defeated (and only by a majority of 23 in a House of 223 Members) 744 —since that period five years had rolled on, and in that time there had accumulated a mass of inconvenience and hardship. He trusted, therefore, that there would be little objection to his present Motion. By it he did not seek to pledge the House to any opinion with respect to the law forbidding marriages within the prohibited degrees; but at the same time, he felt that he should not be dealing candidly by the House if he for one moment disguised the fact that his opinion was in favour of the relaxation of those prohibitions, and especially of that prohibition which forbad the marriage of a man with the sister of his deceased wife. He would undertake to show that the Act of 1835 had not only been totally inoperative in effecting the object which some of its supporters had in view, but that, instead of rendering the law more certain, it had rendered it far more uncertain, both in respect to marriages and to the questions of legitimacy and titles to property. The Act was professedly introduced to render the law certain. It was well known that, before the Act of 1835, marriages within the prohibited degrees, and among them marriages of men with sisters of their deceased wives, were not actually void, but merely voidable. In former times the ecclesiastical courts assumed the right to decide with respect to the validity of marriages; and the courts of common law so far allowed that assumption as to give effect to the judgments of the ecclesiastical courts on the subject. But, unless the ecclesiastical courts interfered, the principle of the common law of this country was, that such contracts of marriage as he had referred to were valid. But the ecclesiastical courts, trying to stretch their power, endeavoured to interfere with the question of the legitimacy of the children the offspring of these marriages; but the common law resisted this interference, assuming their legitimacy, if the marriage of the parents had not been rendered void. Hence arose the doctrine of "void" and "voidable," against which the Act of 1835 was directed. He wished here to correct an erroneous impression which had gone abroad. It was commonly supposed that the Act of 1835 was introduced to prevent marriages within the prohibited degrees, and that the noble and learned author of the Act had that object in view. This was not the case, the object of the Act introduced by Lord Lyndhurst being rather to quiet the suspense attaching to these marriages and to facilitate 745 such contracts; and the noble and learned Lord, in the inquiry respecting the Sussex Peerage, made use of the following observations:—With respect to the statute just mentioned, I wish to observe, that I am supposed to have brought in a Bill to prohibit a man from marrying his former wife's sister. I did no such thing. The statute simply says that such a marriage shall be void, not voidable. The statute was passed merely for the purpose of getting rid of the doubt which might for years leave two parties and their children in the belief that a valid marriage had taken place, subject, in fact, to have that marriage declared void by a suit instituted just before the death of one of the parties.It was not Lord Lyndhurst's object to prevent marriages of this description. The Bill was brought into the House of Lords by Lord Lyndhurst, in June, 1835; and, as originally introduced by Lord Lyndhurst, provided that where such marriages had already taken place, they, instead of being voidable at any time during the lifetime of the contracting parties, should not be called in question after six months from the passing of the Act; and that with respect to all future marriages of the same description, they should not be called in question after two years from the date of the marriage. In the course of the progress of the measure, it was suggested that it would be better to make all these marriages which had taken place before the introduction of the Act, absolutely good; and at the same time it was also suggested that it would be advisable to make all such marriages thereafter contracted null and void. The first suggestion, and, unfortunately, the second also, were adopted; and in this shape the Bill passed. Now, let them consider the consequences. The object of those who introduced the clause into the Bill, rendering these marriages, in future, absolutely void, was to prevent the contract of marriages within the prohibited degrees of affinity, and absolutely to prohibit them. The prohibition had now existed for twelve years; but during that time, so far from these marriages having been prevented, numberless such marriages had taken place amongst all classes of society, from the humblest to the highest. On this point he was furnished with valuable information. There was an immense number of persons and families interested in this question, in every part of the kingdom, whose peace was disturbed by the existing state of the law. They agreed to ascertain, as far as they could, what had been the effect of the 746 statute. They employed a number of gentlemen, some of them personally known to him (Mr. S. Wortley), and with all of whom he had had personal communication, and who in the most careful and the best manner that unauthorized persons could, undertook to collect information upon this subject. They occupied themselves upon it for three months. They selected a number of towns, some with a manufacturing, some an agricultural, population; and, in short, representing the different classes of society. They went there in person, and upon the spot made inquiries; and though in three months they examined but a small portion of the country, they ascertained to their entire satisfaction the existence of no less than 1,648 cases, exclusive of those amongst the lower classes; for it was found impossible to ascertain the cases among the humbler classes; these last were not known, and for that very reason they were more numerous, such parties being able to get married when those in the higher classes could not. Of these 1,648 cases, only 196 took place before 1835, 1,364 were since; and in 88 marriage was prevented by the statute. 1,501 were marriages with the sister of a deceased wife; 147 were between parties in other prohibited degrees. In spite of the Act, therefore, an amazing number of these marriages took place. One of the highest authorities in the civil law, who was long an ornament to that House, as he was now one of the greatest ornaments of his department of the law, had stated that he had been consulted over and over again upon this subject, and that the question put to him always was how to evade the law; that he found the subject a most difficult one, and had in every instance endeavoured to dissuade the parties from contracting such a marriage, on account of the doubt which existed, and that he had even strained his own opinion of the real state of the law with that view, but that, having had hundreds of these cases before him, he had succeeded in preventing marriage in but one; a pregnant proof that this law was not consonant to the feelings of society. Among the cases ascertained, there were 5 of mayors of towns; 70 of magistrates and the upper classes, men of title and fortune, naval and military officers, barristers and physicians; 30 of clergymen and ministers of the gospel; 1,503 of the middle classes, including merchants, manufacturers, professional men and tradesmen; of labourers and mechanics only 40, 747 for the reason already stated. A more extensive collection of facts, to show the operation of the law, might undoubtedly be obtained if inquiry were made by authority of the Government, for the purpose of assisting the Legislature in dealing with so important and difficult a subject. It had been calculated by an ingenious gentleman who had given attention to this subject—and though such calculations could not approach very near to the real numbers, they were just as likely to be under the mark as above it—that there must have been some 6,000 of these marriages solemnized in England since 1835; so that the law upon the subject affected above 30,000 of the population. The real object of the authors of the Act of 1835 was to render the law certain, to quiet families, to quiet titles, to quiet consciences—in fact, to quiet society upon the subject; but, the introduction of the second clause, rendering such marriages void, had the effect of defeating that benevolent intention. First, with respect to marriages solemnized in this country. These included all the cases among the lower classes; and, in spite of the law, they were living in what was commonly supposed to be a state of concubinage. With regard to the middle classes, the great majority also married here; but some went abroad for the purpose, as also did numbers of persons of the highest station. Now, it was generally supposed that there could be but little doubt with respect to the marriages in this country; but such was the strength of feeling against this law, that every effort had been exerted to make out that these were not void; and, after much investigation, a case was laid before one of the most eminent men at the common law bar in 1844, very shortly before he was raised to the bench — Mr. Erie, whose elevation was hailed by the whole country as one of the best appointments that had been made for a number of years. The case raised the point plainly and clearly, and referred to a marriage solemnized in England; and while Mr. Erie's mind was full of the law upon the subject —for he had been counsel in the Sussex Peerage case—he deliberately wrote as his opinion, "I incline to think that the marriage with a sister of a deceased wife is valid." It was not necessary to convass that learned person's argument in detail; it was enough that a counsel of his standing should have given that opinion after the fullest consideration. Since that opinion, many other gentlemen of learning and in- 748 genuity had taken the same view; and, consequently, there hung a great doubt over the question of the validity of such marriages. The result had been, that persons interested in this subject were actually appealing to a court of error, as in the case of a man of the name of Chadwick, who was lately tried at Liverpool for bigamy, in marrying a third wife while his second was alive, the question being whether the second marriage was a valid one at all, since the woman was the sister of his first wife then deceased. The hon. and learned Member for Abingdon (Sir F. Thesiger) was also about to argue the question in a case of settlement under the Poor Law; and the validity of many titles might be dependent upon it. The law upon the matter, independent of the Act of 1835, rested on various statutes of Henry VIII., Mary, and Elizabeth; and the general opinion was, that if the Act of 1845 did not prohibit the marriages in question, they were not prohibited by any Statute, though there was one decision to the contrary, and that the canons of 1603, not having been ratified by Parliament, did not bind the laity. It must be under the ecclesiastical law, if at all, that these marriages could be avoided, independently of the Act of 1835; and the most that could be contended for in that view, under the statute or the canon law, was, that they were voidable, and not void. The doubt as to the law became infinitely greater in the case of marriages solemnized abroad. The law of this country recognised a marriage as valid if solemnized according to the law of the place where it occurred; and, consequently, unless the Statute of 1835 constituted a personal incapacity-—as some contended, but as, he thought, it did not —a marriage solemnized abroad might effectually evade the law. But upon this there was every shade of opinion. Some held that a marriage abroad was good, even if solemnized between parties who— as in the cases of resort to Scotland—went there for the purpose, and intending to come back immediately; others contended, that though that was not good, yet, if the parties were domiciled abroad, and intended to stay there, their marriage would be regulated by the law of the foreign country, and might be good notwithstanding our statute; and a third class, including eminent lawyers, as also did the two former classes, insisted that by this statute there was stamped upon the parties a personal incapacity, which accompanied them 749 wherever they went; and that, even though their domicile were established in a foreign country, they could not escape from the prohibition imposed by this Act. This point affected chiefly the richer class, who were best able to pass over to another country; and it must be remembered, that they were the owners of property, and their settlements and the title to their estates became liable to doubt in consequence of the state of the law. With regard to Scotland, it was stated in the text books that marriages there within the prohibited degrees were void; but he had in vain endeavoured to trace the authorities for the statement; and, though he found authorities for the position that such marriages were voidable, he was not able to satisfy himself even of that. He believed the law of Scotland on this subject to be dependent on the Levitical law; and the immense preponderance of opinion in this country, both among lawyers and divines, was, that the Levitical degrees did not include the relationship in question; and, if so, persons crossing the border might contract a legal marriage, notwithstanding the statute. A benevolent object of the Act was to relieve children from suspense during the lifetime of their parents, since the marriage might formerly be disputed during the joint lives of the parents; but where the effect of a marriage out of England was doubtful, the suspense was now perpetual, and at the distance of a century the question might have to be tried whether parties were domiciled in France, or in Holland, or Hanover — a question depending upon whether they intended to stay there or to come back—a question almost impossible to be ascertained after twenty years. Many titles must thus be rendered insecure for years and years, because of such marriages. That was an intolerable state of things; and it had been very widely felt. Several petitions had been presented with respect to it from solicitors, a most intelligent class, well acquainted with the subject, and speaking apparently against their interest; for difficulties and suits would be multiplied by the law being left in its present condition. In 1841 a petition was presented to the House of Lords, signed by seventy-seven leading firms of solicitors in London, well conversant with titles, and with the deeds and muniments of landed property; and they stated—That the effect of the existing law, which prohibits marriage within certain degrees of affinity, 750 admits of serious doubts as applied to such marriages solemnized abroad; that your petitioners have reason to believe that numerous marriages of this kind, especially between widowers and their deceased wives' sisters, have been solemnized abroad since the passing of the Act of the 5th and 6th of William IV.; that in the opinion of your petitioners such a state of the law is highly inexpedient, being calculated to create doubts as to the legitimacy of children, to promote litigation amongst the nearest relatives, and to place the titles to numerous estates upon an insecure footing.There were also petitions from a great number of country solicitors. Since that time it had been ascertained that these marriages abroad had been continually taking place, and were increasing in number. Since he gave his notice of Motion, scarcely a day passed without some new case coming to his knowledge; within the last forty-eight hours he had heard of one which took place within a very recent period, between parties in the highest ranks of society, who went abroad to avoid the statute. He was not perhaps in a situation to state his facts in such a way that Parliament could legislate at once; but he apprehended he had made out a case for inquiry. He had been told it would be said, "Although you do not wish to pledge the House upon the question of marriage within prohibited degrees, the very granting this commission will raise a doubt whether they ought not to be allowed." But was it necessary, in order to raise that doubt, that this Motion should be carried? Was not the question being canvassed in every society? Was not the crying evil such as must, sooner or later, force itself upon the House? Was it not best to make inquiry at once, that the new Parliament might have the facts before it? If he could conceive that it could do any injury to society to alter or to investigate the law which was supposed to prohibit marriage with a wife's sister, he would be the last to propose it. But what was the case in other Christian and Protestant countries? Why, we were almost alone in this regulation, with the exception of some of the cantons of Switzerland, and those certainly not the most likely to be followed by us as legislators. When the same Sovereign ruled these dominions and Hanover, he was in the habit—George III. was in the constant habit—of granting dispensations to enable persons in Hanover to marry, notwithstanding a relationship which was supposed to make a marriage between them unlawful here—it was the custom and the law of Hanover. In France these 751 marriages were allowed by dispensation previous to the Revolution; at the Revolution there was no law upon the subject for a time. Subsequently a commission was issued, and their opinion was in favour of such marriages; but the ultimate result was, that they were prohibited, as the marriages of uncles and nieces were prohibited, though the extraordinary distinction was drawn, that a dispensation might be obtained in the latter case. In 1832, after the experience of a great many years, France returned to the law which existed prior to the Revolution; and nothing was so easy as to obtain the dispensation necessary for contracting such marriages. In that country provisions were introduced into the law which prevented the possibility of these marriages being turned to immoral purposes. The only objection to the Motion which on the present occasion he would venture to meet, was the objection that, in raising doubts upon the subject by instituting an inquiry, the peace of families would be disturbed. But it was disturbed as the law existed. No young woman, it might be alleged, could incur blame for taking charge of the family of her deceased sister under their own roof. He denied the validity of the argument— he denied the fact. Could a young woman with safety go to reside with her brother-in-law when he was a widower? Could she do so without bringing reflections on her own character? Among the middle classes, for example, the result of investigation showed that she could not. A correspondent, who had taken pains to make himself acquainted with the state of feeling on the subject, said—In regard to the position of a deceased wife's sister, who, as the law now stands, after her sister's death, resides in the house of the widower, I found it everywhere acknowledged that no woman could without provoking scandal live permanently with the husband of her deceased sister. In the middle classes, to whom, from various causes, the idea of marriage with a deceased wife's sister is perfectly familiar, the progress of scandal, where the parties live together, is rapid and decided; for if circumstances make a match of the kind feasible —the state of the law being put out of the question—it is generally looked upon by the neigh-hours as the best thing that could happen. As to the lower orders of society, they are quite incapable of comprehending the considerations of refined delicacy on which the law has been defended; and during an inquiry which lasted for more than two months I did not meet with one man or woman in humble life who considered marriage with a deceased wife's sister improper. You will draw your own conclusion from this fact.Another correspondent said— 752I have been much struck with the frequent instances which I find of scandal being exceedingly busy where the wife's sister, being at all a young person, lives in the house of a widower. I have never met with a case of this sort without hearing, more or less, malicious remarks, and, in many cases, from the very persons who were professing opinions hostile to the marriage on the ground that they ought to be as brother and sister.A young woman, then, could not live in the house of her brother-in-law, after the decease of her sister, without scandal; and that such was the case appeared further from the fact, that when young women who were willing to devote their care and attention to the children of a deceased sister had attempted to do so, they had not been able to remain in such a position; the parties had been forced to set the law at defiance, and endeavour to obtain elsewhere that sanction to their marriage which was refused in this country. And, further, could it be denied that the present law led to immoral consequences? Not long ago a most painful case came before the public at the assizes in one of the midland counties. It was the case of a young woman, who, up to that time, had borne a most irreproachable character, and been placed in a most respectable station; she resided with her brother-in-law, and assisted him in the post-office. They formed an attachment, and applied to two clergymen of the town with the view of being married. But both clergymen refused to celebrate the marriage. Not long after, that unfortunate young woman was tried as a common felon; and though the prosecution failed to bring home the charge on which she was arraigned, there was no doubt from the evidence that criminal intercourse had taken place between the parties. He thought he had shown how injuriously the great uncertainty of the law in its present state affected society; and the evils to which it had given rise established the necessity for instituting inquiry. He held in his hand a remarkable petition from the city of Lincoln, signed by all the clergy with the exception of the dean. The petition was as follows:—That, in the opinion of your petitioners, it is of the last importance that the law affecting the validity of marriages and the legitimacy of children should be clear and well-defined. That, as your petitioners are informed, the effect of the law as it now stands, admits of great doubt in cases of marriages with a deceased wife's sister, which are of the most common occurrence. That, although your petitioners are by no means advocates for such marriages, they humbly conceive, that as the uncertainty of the law may have tended to encour- 753 age the celebration of them between parties whose sentiments on the subject differ from their own, it is expedient that all marriages of that description which have been solemnized since the passing of the Act of 5th and 6th William IV., c. 54, should be declared valid, and that the law with reference to similar marriages in future should be clearly defined.Their opinion was in favour of a relaxation of the law, so as to make existing marriages valid. On the other hand, there were many clergymen who not only thought the present uncertainty of the law a cruel grievance, but were satisfied from experience that the law ought to be relaxed. He could refer to the opinion of the late Dr. Tattershall, who had frequently shown his anxiety to facilitate such marriages; and he could refer also to the opinions of the Rev. Mr. Close, of Cheltenham; of the Rev. Mr. Hatchard, one of the clergymen of Plymouth; and of the Rev. Mr. Hill, Archdeacon of Derby, whose learned diocesan esteemed him as one of the best clergymen in the diocese. There was no division of opinion among them as to the necessity of a remedy for the present evil. If it was conceded that some inquiry ought to be granted, it only remained to decide what shape that inquiry should assume. He repeated that he thought it hardly respectful to the House to propose a Bill under existing circumstances. His first impression was in favour of a Committee; but, considering the period of the Session at which they had arrived, he had abandoned the idea, especially as he was not prepared to give up the whole of his time to the inquiry, which he should feel bound to do if he sat on such a Committee. He had, therefore, proposed a Commission, which possessed peculiar advantages, and by which the inquiry might be fully, liberally, and confidentially conducted; for it was desirable that the commission should have power to take evidence under seal of confidence. He had now stated the grounds on which he asked the assent of the House to his Motion. He had anxiously avoided saying aught to offend the feelings of any Gentleman whose views differed from his, or attempting to pledge the House to any specific opinion. But, if he had succeeded in showing that so great uncertainty existed as to the law on the subject, and that so great mischief was thereby wrought to society in regard to property, morals, and the intercourse of families, he did hope that Her Majesty's Government and the House would consent to his proposal, that an Address should be presented to Her Majesty praying for the appointment of a 754 Commission of Inquiry. When that Commission had reported, it would be for the House to consider whether measures should not be taken to relieve society from the embarrassment, excitement, and trouble attendant upon the present unsettled state of the law.
§ Sir G. GREY
said, that it only remained for him to express on the part of Her Majesty's Government their concurrence in the Motion. The grounds which the right hon. and learned Gentleman had stated so clearly to the House in favour of his proposition, were amply sufficient to justify an inquiry into the existing state of the law. After the observations of the right hon. and learned Gentleman, it was unnecessary to enter at any length into the reasons which induced Her Majesty's Government to think it advisable that an inquiry should be instituted. It was enough to say that the law was at present in a most unsatisfactory state; he was satisfied of this from his own knowledge; but it was, further, in accordance with the experience of others who had the fullest means of information, and whoso opinions were entitled to the greatest weight. Such an inquiry as it was now proposed to institute would enable them to see their way more clearly to a remedy. The law of 1835, instead of accomplishing the object it was intended to accomplish, removing the doubts previously existing on the subject, had increased the difficulties which attended marriages of this nature, and to a considerable extent had also led to immorality. It was but an act of charity and justice that the law should be cleared up in some way or other; and the course proposed by the right hon. and learned Gentleman was the best which could, under the circumstances, be pursued. Persons might be appointed on a commission whoso opinions were entitled to the greatest weight, who were fully competent to conduct such an inquiry, and who could devote more of their time to it than Members of that House, in other respects perhaps qualified to take part in an investigation. In acceding to the Motion, he begged to state that he did not wish to express an opinion as to what the law ought to be. The uncertainty of the existing law had been proved to his own satisfaction; and, under these circumstances, he was certainly prepared to give his assent to the Motion.
§ SIR R. H. INGLIS
regretted that the right hon. Gentleman the Secretary of State for the Home Department had given 755 his consent to the Motion. It was true, indeed, that the right hon. Gentleman the Member for Bute (Mr. S. Wortley), who might be called the hereditary friend of this Motion, had conducted the discussion in a manner so absolutely unexceptionable—evincing such laborious investigation, as well as attention to all the delicacies involved in the consideration of the question—that no fault could be imputed to him. But when the right hon. Gentleman the Secretary for the Home Department gave his consent to the Motion (without which consent it could not have a chance of being carried), it was for the House to say whether they were prepared to retract their decision of 1842, when by a considerable majority they refused to alter the law when leave was asked by the present Lord Ellesmere to bring in a Bill to that effect. When the House should pass an Address to the Crown praying Her Majesty to issue this Royal Commission, it would imply a desire and intention to make some change in the existing law. At all events, inquiry implied dissatisfaction. Then, as to the history of the existing law—what practical benefit did the right hon. and learned Member for Bute expect to derive from the statement in the earlier part of his speech as to the construction of the last Act passed in relation to this subject? Who cared whether the stories of the circumstances in which the Habeas Corpus Act was adopted, were correct or not? People took the law as they found it. And what mattered it whether Lord Brougham proposed a particular clause in the Act as to these marriages for a particular purpose? By that law the question ought now to be decided. The right hon. and learned Gentleman urged, in the first instance, the number of petitions presented in favour of an alteration. It was stated that 153 clergymen had petitioned to that effect; but what was the value of that 153 when compared with the 15,000 who silently opposed any alteration? His right hon. and learned Friend had also referred to the number of cases in which such marriages had been contracted—for the purpose of showing how large a proportion of the people of England were interested in this question. But that number embraced at the most only a fractional part of the whole kingdom. His right hon. and learned Friend had also said that England was the only country—the only Protestant country at least—in which such marriages were prohibited. He doubted exceedingly that 756 fact; but admitting it to be so, it did not follow that the law of England was necessarily wrong. Was his right hon. and learned Friend prepared to legalize, in this country, all the degrees of consanguinity permitted in foreign countries? At present, perhaps, there was no demand made for further relaxations beyond that now under consideration; but if that were agreed to, it would give encouragement to further demands in pursuance of the precedents of foreign countries. His right hon. and learned Friend's present Motion, it was true, did not include any further relaxations; but he gave a precedent, if he did not give any argument, for them; and his precedent would go further than an argument would carry him on the subject. He should have pre-eminently desired to have the benefit of the judgment of his right hon. Friend Dr. Lushington on the subject. That was not the only occasion on which he had regretted his absence from the House; that was not the first time he had regretted that Her Majesty's Judge Advocate (Mr. C. Buller), and another hon. Friend whom he did not then see in his place, had not been pleased to bring forward a Motion to which he thought, from what had fallen from them both, three years or four years ago, they were almost pledged—a Motion to repeal so much of a certain statute as prevented Dr. Lushington sitting in that House. He and that right hon. Gentleman (Dr. Lushington) had voted very seldom together in former times, and probably should vote as little together in future; but he certainly felt that his opinions in matters of this kind, and on questions of international law, were entitled to the highest respect. The opinion of Mr. Justice Erie had been quoted by his right hon. and learned Friend (Mr. S. Wortley). Now, in the first place, his right hon. Friend had himself stated that this was the opinion of Mr. Justice Erie, when a barrister—of eminence, he admitted, but still a barrister—upon a case submitted to him. Now, every one knew that the value of a lawyer's opinion depended upon the case laid before him. He had not seen that opinion, and did not know that it was entitled to any particular respect, except as coming from such a man as Mr. Justice Erie; but still, let the House recollect that it was the opinion of a counsel on his brief, and not the decision of a Judge on the bench. His right hon. and learned Friend had likewise quoted a number of cases in which the existing law had been violated. Was not this, in a House 757 of lawmakers, a singular reason for altering the law, not that it was wrong, but that it had been broken? The opinion of a clergyman here, and a lawyer there, and a solicitor in some other place, who had aided in the invasion and infraction of the law, had been quoted; but for his (Sir R. Inglis's) part, he had always held that the opinions of those who kept the law, were entitled to far more respect than the opinions or the wishes of those who violated it. As it so happened that he was the individual who had first urged the House to refuse leave to Lord Francis Egerton to bring in such a Bill, he did not consider it was taking an undue liberty with the House when he in some degree repeated the arguments which the House had considered sufficient to justify such an unusual course as that of refusing leave to bring in a Bill, particularly when asked by an individual—he would not say so high in station, for he left that out of view altogether, but—of such high talent and personal character as Lord Francis Egerton. But still, not his talents, not his station, not his personal character, could induce the House to consent to bring in a Bill to make this alteration; and, therefore, without meaning any disrespect to his right hon. and learned Friend (Mr. S. Wortley), he had been anxious to rise be-fore the Secretary of State rose, in order to make his appeal to the House, when it was less committed, to do that which they had done four years ago. On that occasion he had stated, in substance at least, that he regarded the practice to which the sanction of the law was now invoked as one which was contrary to the general interests of society, because hazardous to the peace and purity of families; that it was opposed to Scripture rule, and, although he did not lay undue stress upon the canons of the Church, either of our own Church or the Church of the earlier ages, still he did feel that the practice, which for a great many centuries had been enforced, was, at the same time, in accordance with the canons, and was directly contrary to what was now sought to be established. He apprehended that no real doubt existed, so far as the decisions of the law were concerned —he did not speak of the opinions of individual lawyers—that up to the present moment the one degree which was now sought to be blotted out of the list of prohibited degrees, was ipso facto prohibited. He saw no occasion then for appointing a commission to inquire into the state of the law. That point was conceded. The state of the 758 law was, that a marriage of this kind was within the prohibited degrees, and was not valid in law. If that were so then, and having no doubt that it was right to maintain the law in this state, he considered it inexpedient to appoint a commission to inquire into that matter. He believed that the existing state of the civil law only came in aid of the canon law—that it directly followed out the principle laid down in the Holy Scriptures, and the immemorial practice of the Church. He admitted that, totidem verbis, the marriages which it was now proposed to legalize were not prohibited by the Levitical law; but he asked if they were not by a parity of reasoning as completely prohibited as anything could be? Could any human being contend, for instance, that when the Levitical law prohibited the marriage of a man with his daughter's daughter, it did not also prohibit him from marrying his daughter? He therefore maintained that the absence of a direct prohibition against a man marrying two sisters in succession was no proof that such was not contrary to that law. It had been often held, as a deduction from the Levitical law, that the marriage of one woman to two brothers in succession was illegal; and did it not follow that the marriage of one man to two sisters in succession was equally so? He now came to a different branch of the subject, namely, the practical effects of the admissibility of the marriage of a man with two sisters in succession upon the habits of families. The right hon. and learned Gentleman had stated—and he had seen similar statements in a pamphlet by Mr. Campbell Foster—a most elaborate pamphlet on the subject, and probably comprising all that could be said in favour of this proposition—he found there statements similar to those which had been quoted by his right hon. and learned Friend, showing the hardships which were inflicted by prohibiting a man from taking his wife's sister to be a second mother to the orphan children. Now, on the other hand, he knew a case in which, if it had not been that the sister of the deceased wife felt that on entering the house of her brother-in-law she was as safe and as much above scandal as if she had really been his own sister, several children of a very tender age would have been deprived of the care which they had since enjoyed till they arrived at mature years. If then the right hon. and learned Gentleman could produce an instance in which great evils had arisen from this law, he could thus quote one in which great blessings had occurred—blessings which would 759 most certainly have been withheld if the young lady who succeeded to the charge of the orphan children had ever supposed it possible that she could have been the wife of their father. He believed that so long as a feeling of sanctity attached to that relation, no improper feelings were likely to exist between these parties, any more than between the nearest blood relations; but the moment they were placed in a different position, and allowed to occupy a place in each other's affections which the law at present refused, from that moment they were placed in a way of temptation from which they were at present exempted; and exactly in that proportion the law would deprive the orphan children of the benefit of that protection which they might otherwise enjoy. Under these circumstances, and retaining the opinions which he had expressed on the last occasion on which the subject had been brought forward—and believing from the general practice of the House in former cases that inquiry would lead to concession—he deprecated the inquiry which was now requested. It might be, that the concession would not be such as the right hon. and learned Gentleman asked for, or which the petitioners desired to obtain; but it would be such as would unsettle the minds of the people, and lead them to conclusions alike inconsistent with the law of nature and the practice of the Church; it would be such as would unsettle the minds of the people without conferring any corresponding benefit, inasmuch as the total number of persons who were affected by the existing law was exceedingly small in comparison with the mass of the people, and was not such as would justify any great change in the policy of the country, especially on a subject so important as the sanctity of marriage. For these reasons he opposed the Motion.
§ MR. MONCKTON MILNES
said, he could not help accusing the hon. Baronet of having carried the House further into the subject than he was entitled to do from the speech of his right hon. Friend (Mr. S. Wortley). His right hon. Friend had abstained so carefully from entering into the real merits of the subject, as a question of discussion, and had confined himself so completely to the task of showing that the question was involved in doubt, that he thought the speech of the hon. Baronet, which had exhibited all that could be said on his side of the question, was rather inconvenient on the present occasion, because, the Government having agreed to the Commission, it was not desirable to 760 enter into the general question, which they would have an opportunity of discussing on a future occasion. He, therefore, would not have risen except for the purpose of offering his sincere thanks to his right hon. Friend for having brought the question before the House. On a former occasion he did not think it right to register his vote, as he did not feel it was one on which he could entirely make up his mind; but, as far as the present question was concerned, he felt that it was absolutely necessary that something should be done. He was confirmed in this by all he had seen about him in his little sphere, as he imagined what he had seen was not the exception, but the rule of what was going on in England generally. He was convinced that something was necessary to be done for the peace, not of the upper classes of society, who might be supposed in a great degree able to protect themselves, but for the sake of the lower classes, who could not. He pressed upon the hon. Baronet and the House this important fact, that on this question the public opinion of England did not generally support the law; and that where this was the case it was absolutely necessary some change should take place.
§ DR. NICHOLL
said, that he retained the opinion which on the occasion of Lord Ellesmere moving for leave to bring in his Bill he recorded in common with a great majority of the House, in unison with the opinions expressed in the speech then delivered by his lamented Friend Sir W. Follett. His right hon. and learned Friend had not dealt quite fairly with that eminent individual when he referred to his opinion as being favourable to the object which he had in view; because, when he was called upon—on the occasion of Lord Ellesmere's Motion—to express an opinion on the question of the propriety of altering the law, he declared that he felt a decided objection to it. He wished that his right hon. and learned Friend had omitted from his Motion the words which called for inquiry into the operation of the law. It did not appear reasonable, that because certain persons thought proper to evade the operation of the law, that circumstance should be made the subject of inquiry by a commission. The circumstance which principally reconciled him to the appointment of the Commission was, that it would extend its inquiries to the effect of marriages abroad. It, however, appeared to be a matter of doubt, from the terms of the Motion, whether his right hon. and learned Friend in- 761 tended the inquiry of the Commission to apply to marriages within the prohibited degrees of consanguinity.
§ MR. STUART WORTLEY
said, it was intended that the Commission should inquire into the operation of the marriage law, as related to the prohibited decrees of affinity in this country; and then—as a perfectly distinct question—into marriages solemnized abroad, whether within the prohibited degrees of affinity or not.
§ MR. WATSON
said, that the present state of the law was unsatisfactory; and when it appeared that within the period of eight years no fewer than 1,600 instances of marriages within the prohibited degrees had occurred, that fact, of itself, rendered it incumbent on the House to institute an inquiry into the subject.
§ Motion agreed to.