§ MR. STUART WORTLEY
then rose to ask leave to bring in a Bill to amend and alter the Act of 5th and 6th William IV., c. 54, so far as relates to marriage within certain degrees of affinity. He was sensible not only of the extreme difficulty, but of the extreme delicacy of the subject, and if he consulted only his own feelings he should have abstained altogether from bringing it forward. But he had from time to time been made aware of the extremity and extent of the grievances arising under the present state of the law, and of the extent to which it affected the morals of the people, and he did not feel himself fully at liberty, in consequence, to decline the task imposed upon him. For there was a claim upon him more than upon other Members of the House, in consequence of those complaints having been sanctioned by one whose memory he most deeply revered. In 1841 the subject had been introduced into the House of Lords by a revered relative of his; and he (Mr. S. Wortley) had himself investigated the matter closely and carefully, in order to see whether he could come to the same resolution, having at first, he was willing to confess, an impression which he admitted might be called a prejudice against the 1102 measure. And it was not until after the most careful and mature deliberation that he had ventured at last to bring the question before Parliament. In the year 1842 a noble Lord, then a Member of that House, he meant the Earl of Ellesmere, than whom there was not a more true and faithful adherent of the Church, nor a man to be found who held Church authority in higher respect, introduced the question to the notice of the House. Upon that occasion the House refused to grant his noble Friend the leave he asked. But the noble Lord received so much support as to lead him to believe that the discussion of the subject more prominently before the public mind—that further and fuller discussion would take place, which would lead to inquiry, and the result of which would create a demand for alteration. The facts that had been elicited were those principally on which he (Mr. S. Wortley) had founded his present Bill. Since the discussion in 1842 the position of the question had been altered, with respect to the doubts as to the legality of these marriages. There were two classes of these marriages—those celebrated abroad, and those celebrated in this country. The doubt about the legality of marriages within the prohibited degrees, was removed by a decision of the Court of Queen's Bench, which was to the effect that marriages between persons within the prohibited degrees of affinity were absolutely null and void. The law, therefore, was found to affect all classes. It affected the legitimacy of parties, and the descent of property. There were some cases in which the marriages had been celebrated abroad; some between persons resident and domiciled there; others between persons who escaped there from the stringency of the law of this country. Those marriages still continued, and showed the necessity which existed for still further inquiry by Parliament. Since the Motion which had been made by the Earl of Ellesmere, they had had many proof's that the law, far from being more efficient in its effect for the prevention of those marriages—far from having tended to the improved morality of the people—had been extensively evaded by them. It had in some cases been avoided, in some it had proved a snare for the lower classes. It had led to perjury, he meant such perjury as was involved in the giving of misdescription, in the denial of the actual truth; and in other instances it had led to concubinage where the parties cohabited 1103 together without the ceremony of marriage. It had, in short, tended to the production of immorality amongst the lower classes. It was not until a very late hour of the day that he had received an intimation that he would not be opposed at the first stage of his Motion; and that there would be no division taken upon the question of leave being given to bring in the Bill. If that were so he would be happy to relieve the House from a great portion of the detail which he would otherwise have thought it necessary to lay before it. But he still would be obliged to state as shortly as possible a history of the restrictions imposed in those cases to which he more particularly referred, and the substance of the report of the Commission presented to the House a year and a half ago, and which report was then lying on the table. It had been said that this report was the production of parties who had a preconceived opinion on the question. This was answered by the evidence of the papers before them, and by the extensive correspondence which had arisen. That Commission was appointed in consequence of various petitions that had been presented to the House, some of them from parties interested in the question—others from individuals not interested, except from seeing the evils to which the law had led—and others still from a considerable body of the clergy of the Established Church. It was said, upon that occasion, that those petitions were not very numerous. But it was a peculiar and difficult question. It was one from the discussion of which people shrunk, and one upon which people were unwilling to put themselves forward. But this much had been ascertained from the book before him, and from the extensive correspondence that had taken place, that the complaints, if not loud, were deep and general, and that a great body of the people of this country were interested in obtaining the relief which he (Mr. S. Wortley) wished to give. The Commission was granted "to inquire into the state and operation of the law of marriage, as relating to the prohibited degrees of affinity, and to marriages solemnised abroad, or in the British colonies;" and he was justified, he believed, in saying, that with the exception of the humble individual who was addressing the House, there could not have been selected a list of names more fully entitled to command confidence than that of the persons chosen to constitute the Commission. At the head was a right 1104 rev. Prelate, of the highest character in the Church (the Bishop of Lichfield); next was Dr. Lushington, who was second to no man in authority upon matters connected with ecclesiastical law; the next was his lamented friend, Mr. Blake, the late Chief Remembrancer of Ireland, a member of the Roman Catholic body, and one who commanded their highest confidence and consideration; then came Justice Vaughan Williams, and his right hon. Friend opposite, the Lord Advocate (Mr. Rutherfurd), whose knowledge of the law of marriage in Scotland was most extensive; and of all those Commissioners, with the exception of himself (Mr. S. Wortley), who had expressed his opinion in the House, there was not one who had come to a definite conclusion, or who had made up his mind upon the subject. They all came to the consideration of the question with minds perfectly open to conviction upon it. They, in their report, recommended no particular plan or measure, for this reason, that the Commission did not entitle them nor authorise them to do more than inquire into the state and operation of the law; and they therefore felt themselves not at liberty to do more than report upon that subject. But he apprehended that no man could read that report, and the conclusion to which it came, without being convinced that there could have been no member of the Commission who was not prepared to say that some alteration was necessary for the purpose of relaxing the restrictions of the law—restrictions that could not be justified to those Commissioners, who were men of high station in the Church—of high station in the law, and of high character in private life. In proposing a measure of that kind, he thought it wise to confine himself to the actual grievance that existed. He wished not to set afloat questions that were unnecessary, nor to enter into wide controversies. He should, therefore, confine the proposition he had to make to the only two cases which seemed of importance during the inquiry. They were—marriage with the sister of a deceased wife, and marriage with the niece of a deceased wife. These two stood pretty much in the same category. The measure he should propose was merely a permissive one. There was nothing compulsory in it. The marriage of two brothers with two sisters had been formerly prohibited. They were subsequently permitted, and there was no reason for supposing that the number of such marriages 1105 had increased in consequence. Neither was there any reason to suppose that such marriages as he now proposed to legalise would be more numerous in consequence of such permission. Up to the year 1835 those marriages were practically permitted. He said "practically," because although, no doubt, they were not legally permitted, yet there was little or no danger of their being invalidated; and, except in some occasional cases of malice, there was not the slightest probability of their being disturbed. And for many years before the appointment of the Commission, those marriages had been celebrated in every rank of life. Less numerously, probably, amongst the wealthy and those in high station, but in greater number amongst the poor, whose obscurity and poverty prevented them from being interfered with. It was remarkable, that during the long period that those marriages so existed, they had heard no complaints about them. No restrictions were sought to be put upon them, and he was justified in saying, that there was no very extensive horror of them in the public mind. It was not until one of them occurred in the very highest rank of life, that they became noticed, and it was no blame to anybody to say that that event immediately attracted public attention. But, instead of the Legislature stepping forward to point it out to reprobation, an application was made to the Legislature, and with the consent of both Houses of Parliament, including the heads of the Church, the sanction of the law was given to that marriage. It was not said to be a valid one, but all chance of invalidating it was taken away by Lord Lyudhurst's Act. The question, therefore, was not whether these were desirable marriages. The question was, whether they had a right to prevent them. He thought their principle ought to be to give every facility for marriage. That was the principle of the law of England. And he therefore apprehended that those restrictions could only be justified by the fact that those marriages were forbidden by the law of God, or in consequence of some public overwhelming necessity. Now, with respect to the law of God, he would not venture upon that part of the subject at that stage. He would avoid all discussion upon it, as he found there was to be no division upon that stage of his Motion. He would also pass over the question as it related to the condition of the subject. 1106 But perhaps it would be as well for him to explain to the House, for the information of those hon. Members who might not have had time to investigate the matter for themselves, how the question had arisen. With respect to the prohibition in general, there was no certainty that it existed amongst the early Christians. He should say no more than that its origin was extremely doubtful, and almost lost in obscurity. It defied the investigation of the most learned men. On the authority of Michaelis, it was alleged not to have been forbidden; but that, on the contrary, it was practised during the early ages of Christianity. During the three first centuries of Christianity, there was no mention of its prohibition. It was not until the fourth century that it was prohibited. It was prohibited by what were called the Apostolic Canons, not the Canons of the Apostles, but still of high authority in the Church; and by the Council of Eliberis in 305; but by neither was it declared to be contrary to the law of God. During the fourth and fifth centuries the councils condemned those marriages, and afterwards, during the corruption of the middle ages, came councils and canons innumerable condemning them, but in company with many more which had since been established as perfectly legal and within the permission of the law of God. It therefore became perfectly settled in canon law that these marriages were prohibited; but the grounds of the prohibition rested principally, he believed, upon a letter of St. Basil, which had been referred to in another place. St. Basil, who was the founder of the Eastern Church, and the founder of the monastic order of that church, in the fourth century, entered into a controversy with another bishop of the Christian church, who, as appeared from St. Basil's letter, differed from him upon the subject of those marriages. But the prohibition had, at all events, been established from time to time, from the fourth and fifth centuries, down to the time of the Reformation. The canon law had been introduced into England. It formed no part of the law of England, except so far as it had been grafted upon the statute law; but undoubtedly it had been so grafted upon the law of England, that the law said, if such a marriage be contracted, it should stand good during the life of the parties; but if the ecclesiastical law annulled it, then the statute law of England 1107 acknowledged that annulling. He should not endeavour to trace, as he should have have done had his Motion been opposed, the origin of the canons, and the origin of or motives for the prohibition of those marriages. But he should observe, that after the authority of Rome had been established in this country, there came with it, necessarily, all the canons of the Roman Church. Such was the state of the law until the reign of Henry VIII. At the time of the Reformation, those marriages had been forbidden down to the Council of Trent. But they had been dispensed by the Roman Catholic Church from time to time, and it was in consequence of that power of dispensation Henry VIII. was enabled to espouse Catharine of Arragon, who was the widow of his brother. Henry obtained a dispensation from the Pope in order to marry Catharine, and that dispensation was granted upon the grounds that such marriages were not forbidden by the law of God, but only by the canon law. And afterwards, when Henry VIII. was about to marry Anna Boleyn, and it became necessary to get rid of the marriage with Catharine, the famous discussion took place which ended by Cranmer, on the part of Henry, obtaining the majority of opinions from the universities of Europe and of this country in favour of such marriages being forbidden by the law of God, and that they, in consequence, could not be dispensed. Upon the Reformation taking place, Cranmer undertook to reduce the canon law to something like a code, and drew up the Reformatio Leges. He had been the principal means of invalidating the marriage of Henry with Catharine, for the purpose of enabling Henry to marry Anna Boleyn. The validity of Anna Boleyn's marriage depended upon the doctrine that such a marriage as that of Catharine's was contrary to the law of God; and the legitimacy and right of Elizabeth to the throne depended equally upon that doctrine. It was not to be supposed, therefore, that under these circumstances Cranmer would have omitted to introduce this particular prohibition into the code he drew up in the reign of Elizabeth. Archbishop Parker had been brought up, or, at least, he had been protected by Cranmer, and he was recalled by Queen Elizabeth from exile. He shared with Cranmer in his views, and in the necessity of establishing the invalidity of the marriage of Henry with Catharine. To establish that upon which the legitimacy of Elizabeth depended, 1108 the prohibition of those marriages became absolutely necessary; and, under those circumstances it was that the table of prohibitions was drawn up by Archbishop Parker, in 1603, which was now hung up in all churches in this country, and was sometimes added to the Book of Common Prayer. It was universally acknowledged, however, that that table formed no part of the Book of Common Prayer—a fact that could not be too widely known. It was merely bound up with it for convenience. The law continued to be administered in this country much in the same way after the Reformation as it had been before it, with this exception, that whereas before the Reformation there existed a power of dispensation which greatly mitigated the evils arising from those prohibitions, after it that power was given up; for, although by an Act—21 Henry VIII.—the power of dispensing was transferred from the Pope to the Archbishop of Canterbury, a dispensation by the Archbishop from canonical regulations was unknown: it had scarcely ever been exercised, and the practice had become obsolete. The consequence was, that those restrictions which were dispensed with in the Roman Catholic Church, became absolute and indispensable in this country, and the ecclesiastical courts, except when called upon, which was very rarely, avoided those marriages altogether. At length the ecclesiastical courts having entertained the question of the validity of those marriages after the death of the parties, necessarily luegitimlsing the children after the death of the parties, the common law courts interfered, and prevented the ecclesiastical courts from invalidating such marriages at all when even one only of the parties was dead. The result was, that a law was passed, declaring what marriages were void, and what were voidable merely. Marriages of consanguinity were declared void, and marriages of affinity only voidable if during the life of the parties a suit were instituted for the purpose. Marriages which were merely, so far as their morality was concerned, matters of opinion, came under the latter category. Those which were contrary to the known will of God, as contained in the pages of revelation, were included in the first. Such a state of the law was very anomalous, and it led to grievous cruelty. It made such marriages almost always lawful, except where property or right was concerned—as in cases where estates were entailed, and in some of those 1109 the greatest hardship was at times inflicted. He would mention one instance given by Dr. Lushington, before whom it had come. The suit was instituted after the parties had been married upwards of thirty years, and eight children had been born to them, and when the father was very advanced in age. Then it was that the opportunity was taken by a malicious relative to invalidate the marriage, and the ecclesiastical court was obliged to annul it. The children were illegitimised, and the whole family, after the father's death, were thrown into the greatest poverty. Yet, deep as the injury inflicted by the law was felt to be, it was not until the marriage within the restricted degrees tools place in a very high station of life, that it was publicly noticed. It was for the purpose of providing a remedy that Lord Lyndhurst's Bill was passed, and they had it on the authority of that noble and learned Lord, expressed in the case of the Duke of Sussex's Bill, that he never intended by it to prevent a marriage with a deceased wife's sister. Lord Lyndhurst's object was to establish the legality of all such marriages which had been contracted up to that time, and to provide that as respects such marriages in future they should not be invalidated if they had existed for two years. This was the object of Lord Lyndhurst's Bill as introduced; but it was proposed by Lord Brougham that such marriages contracted after that time should be deemed illegal; and that view being taken by certain Members of the bench of bishops, it was enacted that after the passing of that Bill marriages with a deceased wife's sister should not be permitted. The result of the Act was, however, that, notwithstanding its provisions, thousands of marriages had, since it was passed, taken place between the prohibited degrees. An inquiry, indeed, was instituted into the matter, and persons were called before the Commissioners who had made it their business to ascertain all the circumstances which could be discovered as to the violation of the law. And here he would be allowed to allude to the attempts to throw discredit upon the view of the matter which he was urging, on the ground that particular individuals had interested themselves, and had instituted inquiries into the subject. Indeed he did not see how, unless this had been done, it would be possible to ascertain numerous facts of high importance necessary to be taken into consideration in dealing with the ques- 1110 tion. The course taken had been this: the parties interested in the matter had selected a firm in London, of the highest respectability, as a central point, to which all information was to be communicated; and they employed gentlemen of station and intelligence to go through the country collecting the necessary particulars. From these sources the necessary information had been ascertained, and they were thus alluded to in the eighth page of the Commissioners' report:—Towards the close of the year 1846 a limited inquiry was instituted, at the instigation and expense of some private individuals interested in this question, for the purpose of ascertaining to what extent the Act of 1835 had been infringed, and whether any hardships were inflicted by the operation of that Act, to such an extent as would warrant an application to Parliament for an alteration in the law. In stating the result of this inquiry, as it has been proved before us, we feel bound to observe, that, although made at the instance of interested parties, it appears to have been conducted by gentlemen of intelligence, station, and character, and with discretion, as well as with perfect integrity and good faith. The inquiry was limited to a period less than three months, and to a comparatively small portion of England alone; but five districts were selected with impartiality and discrimination, as likely to afford a test of the probable operation of the law throughout the kingdom. The districts consisted, 1st, of some of the manufacturing portions of Lancashire and Yorkshire; 2nd, Norfolk and Suffolk, and parts of Lincolnshire and Essex; 3rd, parts of Warwickshire and Staffordshire, including Birmingham and the Potteries; 4th, parts of Hampshire, Dorsetshire, and Devonshire, including Portsmouth, Southampton, Winchester, Dorchester, Plymouth, and Exeter; and, 5th, the towns of Bristol, Bath, and Cheltenham, and their immediate vicinities. Besides these districts, an inquiry was also commenced within the limits of the metropolis, but was not prosecuted to any extent, in consequence of the difficulty of obtaining information in so mixed and numerous a population, without any legal authority to require it. The summary of information thus obtained may be stated as follows, namely—Of marriages ascertained to have taken place in the districts alluded to, between parties within the prohibited degrees, 1,364 have been contracted since Lord Lyndhurst's Act; and of these, upwards of nine-tenths have been contracted with a deceased wife's sister. There were discovered, in the course of this inquiry, 88 cases only in which the Act had prevented an intended marriage; and of these 88 cases, 32 are stated to have resulted in open cohabitation, without the sanction of any form or ceremony. Of the marriages thus ascertained to have been contracted, very few were between persons in the poorer classes. For though we have reason to conclude that such marriages are at least as frequent in those classes as in any other, and perhaps even much more so, the condition and circumstances of the parties render their affinity loss observed, and consequently difficult to be traced without more elaborate investigation. On the other hand, among the parties contracting 1111 these marriages since, as well as before, the Act of 1835, there are found to be many persons of station and property, and of unimpeachable character and religious habits.It had, therefore, been ascertained by this inquiry that the number of prohibited marriages which had taken place since Lord Lyndhurst's Act had been 1,364. He could not well ascertain the proportion which the population of the districts inquired into bore to that of the whole kingdom; but it was difficult to suppose that the investigations had extended throughout more than one-tenth of the entire community. Taking it to be so, the result was, that the entire probable number of marriages would be about 13,000; and, giving three children to each marriage, which was a low average, they had no less than nearly 40,000 children, whose claims to legitimacy could not be legally admitted. Of course, if the districts examined into contained less than one-tenth of the population of England, the number of persons thus situated would be correspondingly greater. Perhaps, then, there had taken place from 30,000 to 50,000 prohibited marriages since the statute of Lord Lyndhurst. Now, he did not make use of this fact to argue that, because many persons violated the law, the law should be therefore changed; but he did think that it was a fact which showed that the law was one which had not obtained the general acquiescence of society, while the calamitous state of things resulting from the circumstances called loudly for redress. But the prohibitory statute created evils of a different kind. In addition to having led to perjury and evasion of the law, it had placed the clergy in a false position, for he found it stated—and that, too, by clergymen who had been opposed to any change in the present law—that they found it impossible to ascertain the affinity of parties who presented themselves for marriage, and that, in fact, they were daily celebrating illegal marriages without knowledge of the fact. This was a position very painfully felt by many of the clergy. Either the House ought to devise some means of more rigid and effectual restriction, which they could not do, or it must alter the law so as to bring it more in accordance with public opinion. But, besides, many marriages were now contracted before registrars. In the case of such marriages there was absolutely no check. The difficulty was greatly increased. Again, it was found that persons 1112 of property and station, being unwilling to break the law, resorted abroad, while even in the middle classes there were numerous instances of persons expatriating themselves permanently or temporarily for the purpose of freeing themselves from the trammels of the English law. Yet all foreign marriages of this kind contracted by British subjects, were, by Lord Lyndhurst's law, null and void, unless the parties were absolutely domiciled abroad. Such being the effects of the Act, surely some remedy was required. What was the opinion of the Commissioners?—We cannot avoid the conclusion that the Statute 5&6 William IV., c. 54, has failed to attain the object sought to be effected by its prospective enactments. It has not prevented marriage with the sister or niece of a deceased wife from taking place in numerous instances; whether more or less numerous than before the passing of the statute, we have not, as was before observed, sufficient data to enable us to form an opinion. But, without reference to any comparison of this description, the number of those marriages is so great as to justify us in saying that the provisions of that statute, rendering them null and void, have not generally deterred parties from forming such connexions. No doubt this is a great and continually increasing evil. On a low computation, such marriages must amount to thousands; but from the nature of the connexion, and the secrecy which often attaches to it, their number cannot be accurately ascertained. The evil is great; for, as beyond all reasonable doubt, such marriages, when celebrated in England or Ireland, are void, the consequences are disastrous to the parties and their issue, at once affecting all the relations of mutual duty and obligation, as well as the rights dependent upon status; nor less pernicious in a public view, as exhibiting avowed disobedience to law by the open assumption of a sacred character which the law expressly denies.The Commissioners then proceeded to state the effects of the law on the poorer classes. And here let the House observe, that although they might succeed in getting persons of education and refinement to obey the law, although at the expense of much hardship and severe suffering, it was quite impossible to prevent illegal marriages amongst the poorer classes. The effect of the prohibitory statute upon these classes was briefly described by one of the witnesses, who told the Commissioners that in the families of the poor the result of the death of a wife, when a sister was domiciled in the household, was either to turn that sister away, out into the streets, or, if she remained, to bring about, if not marriage, at least cohabitation with the widower. Members of poor families, this witness said, were thrown into such immediate contact, that if they had no 1113 hope of marriage, they would probably continue to live together without it. Many witnesses, some of them clergymen, took the same view of the subject, and the Commissioners came to this conclusion—Among the poorer classes of society, we believe that, in a great majority of cases where the sister of the deceased wife becomes an inmate of tile house, and the parties are not advanced in age, the end of such a state of things is marriage or concubinage.Could there be a more unhappy state of things than that thus presented to their view? They not only had a law which was continually evaded—they not only had a law which led to perjury and immorality.—but they had a law which was so little in accordance with the feelings of the people, and so inefficient for the purposes for which it was intended, that thousands on thousands of their poorer fellow-countrymen, who were placed in circumstances of irresistible temptation, and yet debarred from marriage, were led to live in a state of concubinage. On the whole, then, he thought that this question assumed a most important character, and it was with this conviction that he would urge upon the House the propriety of allowing him to bring in his Bill. The present state of the law was fruitful of immorality and demoralisation amongst the lower classes, and it would surely be admitted that it was the duty of the Legislature to apply some remedy to an evil which, as the Commissioners stated, was not only already great in itself, but was daily increasing in magnitude. The Commissioners closed their report in these words:—On a review of the subject, in all these its different bearings and effects, we are constrained not only to express our belief that the Statute 5 & 6 William IV. has failed to attain its object, but also to express our doubt, whether any measure of a prohibitory character would be effectual. These marriages will take place when a concurrence of circumstances give rise to mutual attachment: they are not dependent on legislation. We are not inclined to think, that such attachments and marriages would be extensively increased in number were the law to permit them; because, as we have said, it is not the state of the law, prohibitory or permissive, which has governed, or, as we think, ever will effectually govern them.He would now leave the question in the hands of the Legislature. Into the social argument of what was likely to be the effect of a change in the law, with respect to the relations of husband and wife, he would not enter. He would content himself with remarking that, in his opinion, the evils resulting from the present state of the law were greater than any which could be an- 1114 ticipated from the change which he proposed to introduce. But whatever the arguments might be arising from the delicacies and niceties of social intercourse, these arguments were confined to the higher and middle classes, while to the poor, who were compelled to live together with scanty accommodation, they did not and could not apply. He held in his hand letters from many clergymen, incumbents of populous parishes, who stated that the condition of their flocks was so injuriously affected by the present state of the law, that they were fully prepared to advocate its alteration. He had had similar communications from persons of the greatest weight and highest character in the Church; for, be it observed, that it could not be said, with reference to the extensive evasions of the prohibitory statutes amongst the poorer classes, that there also existed, in the instances of the persons thus marrying within the prohibitory limits, many gross cases of adultery and incest. On the contrary, it was proved that the great majority of persons who had contracted these marriages were persons of moral habits and religious feeling, and persons who did not otherwise offend against the law. He thought that he had now said enough to induce the House to consent to the introduction of his Bill, and he would therefore shortly state some of its principal provisions. Before he did so, he might, however, remark, with reference to marriages with nieces of the deceased wives, that, although such instances were rare, they did occasionally happen, and that it would be difficult to permit marriage in the closer degrees without relaxing at the same time the rules which forbade it in the more remote stage of affinity. Otherwise, he would hardly have deemed the case of marriage with a deceased wife's niece to be deserving of any alteration in the law. Now, as to the provisions of his Bill, he did not intend to extend the permission to any other degrees, or to alter Archbishop Parker's table in any respect, but as regarded marriages with the sisters and nieces of deceased wives. Neither did he intend to permit a widow to marry her deceased husband's brother; as, without entering into the social part of the subject, he considered that such a state of things would more probably tend to the introduction of immorality into a family than could be expected from the converse condition of matters. As regarded the clergy, he did not intend to make it compulsory on them 1115 to celebrate these marriages. He knew that there was a difficulty in this part of the case. It had been doubted whether there were any means of compelling a clergyman to perform a legal marriage. His own opinion was, that a clergyman could be so compelled, and he would therefore provide, on the one hand, that no clergyman should be liable to a suit for celebrating marriages of this kind; and, on the other, that no clergyman should be liable to a suit for refusing to celebrate them. He wished to avoid as much as possible interfering with the laws of the Church. But he was obliged to make one provision. These marriages were permitted in almost every Protestant country. They were permitted in the United States. True, Dr. Pusey had attempted to show that the results had been injurious in Germany and other countries; but the House would find it broadly laid down in the report that these statements were destitute of foundation. But in many countries there was a dispensing power vested in the ecclesiastical authorities with reference to these marriages. This, for instance, was the law of Hanover; and, until the separation of the two crowns the King of England was often called upon to grant dispensation for an act, which in England was held to be illegal. Now, if he could place such a power in the hands of anybody analogous to those by whom it was exercised on the Continent, he would willingly do so. But he could find in this country no satisfactory depositary for a dispensing power. Notwithstanding, however, he did propose to prevent marriages of the kind in question taking place in cases where there had been immorality between the parties before the death of the wife. In no such cases, he thought, ought marriages between the prohibited degrees in question to be allowed. It was not his intention to confine his measure to England. He trusted to make it applicable to all parts of the kingdom. The Scotch law on the question was doubtful, but these marriages did not often take place in Scotland. The effect of his measure would, therefore, be to legalise such marriages in Scotland if they were now illegal; but if the reverse were the case, to leave matters as they stood at present. But there was another class of persons who were entitled in this respect to great attention at the hands of the House. In 1836, a Bill was passed to afford to persons dissenting from the 1116 Established Church the means of marriage according to their own forms and opinions. From the evidence contained in the report it would be seen that by some of the bodies in question the practice of marriage with a deceased wife's sister was considered to be contrary to the laws of God, and therefore he thought that the dissenting sects in question were entitled to some such measure as that which he now proposed. Having thus stated the grounds upon which he rested his measure, he would not further detain the House. The Bill which he asked leave to introduce affected a very large class of the community, and he believed that, were it to pass, such a result would be matter of sincere happiness and rejoicing to thousands, who were now suffering from the present unsatisfactory and anomalous state of our law upon the subject.
§ The question having been put,
MR. A. J. B. HOPE
said, that if he did not divide the House upon leave to bring in the Bill, at which stage a similar Bill was rejected in 1842, it was not because he was less strongly opposed to the measure than he was then, but simply out of deference to the Royal Commission. Still he must make a few observations on the speech of his right hon. Friend (Mr. S. Wortley). The right hon. Gentleman had argued that the early Church did not absolutely prohibit such marriages, from the apostolical canons only declaring that those who contracted them should not be competent to take holy orders; but at the same time those canons were made, the church was but a body of dissenters from the religion of the State, and could not, therefore, inflict temporal punishment for what was not against the laws of the State. A person wishing to make such a marriage, might do so by leaving the Christian community. By a similar argument it might be asserted, that because St. Paul said a bishop should not be a drunkard or an extortioner, therefore there was no harm in a layman being such. Mr. Binney, indeed, in the evidence in this question, had applied this to the case of a bishop being ordered to be the husband of one wife, as proof of polygamy not being forbidden to the earliest converts. St. Basil, in his letter to Diodorus, speaks of such a marriage as a thing unheard of. It was quite clear that the practice of the Church of England, both before and after the time of James I., was against such, though between that time and the passing of Lord Lyndhurst's 1117 Act, the civil had thereby invaded the prerogatives of the ecclesiastical court. The case, however, of Regina v. Chadwick, had set at rest what were the prohibited degrees. The secret history of Lord Lyndhurst's Act was alleged, but this no where appeared on the face of it. The right hon. Gentleman had spoken of the comments which had been made upon the use which the Commission had made of the labours of Messrs. Crowder and Mayward. He did not object to their having done so, as they could not do otherwise; but he did so to their not having taken pains to get evidence on the other side. It was just like a Railway Committee examining the promoters of a Bill, and not attending to the landowners' case. The right hon. Gentleman had said that the Commission had investigated a tenth of England, and based his statistics on this calculation. But this tenth of England included Manchester, Leeds, Sheffield, Hull, Birmingham, Coventry, Norwich, Southampton, Bath, Bristol, Cheltenham, Plymouth, and Devonport. Unless the Commission had examined the condition of marriage altogether in those close and crowded towns which afforded such a fearful and multitudinous detail of sin and vice, they had no right to come down with such a report to the House. The extent of concubinage in them was notorious. It stood ex confessio that Lord Lyndhurst's Act was little known amongst the lower orders. The same would be the case with the present Bill. He did not believe that, if the proposed Bill passed, there would be much increase of such marriages. Persons, as it is, go to be married, and the clergyman does not know how they are related to each other. As to the argument that, therefore, the clergy should be relieved from celebrating marriages which are illegal, by legalising them, it would apply as well to legalising bigamy, for our newspapers show how often bigamous marriages are celebrated by the clergy. He concluded with expressing his intention of dividing against the second reading of the Bill.
§ MR. ROUNDELL PALMER
said, that he could not allow the Bill to be introduced without stating distinctly that he would, on all fitting opportunities, offer to it his most strenuous opposition. He did think this the most desirable opportunity to commence that opposition, because the very gravity of the subject rendered it necessary that the House should not come to the discussion with imperfect information, 1118 and without having full time to consider the character and nature of the specific measure which his right hon. Friend (Mr. S. Wortley) now sought to introduce. Reserving, therefore, to himself the power of entering into the debate at a future time, he thought it best at present not to go into any matters of principle or detail at any length, but merely to state the matters which the House would have to consider between the present time and the period when the measure would be discussed. Had they sufficient grounds for altering a law which undoubtedly stood upon this only basis, that down to this moment it had been received in England as the true exponent of a part of Christian morality, and of the will of God, applicable to all nations? It had been so believed by those who made the law; the Commissioners admitted that the same belief prevailed now throughout Scotland, and very generally among the clergy—at all events—of the Church of England, Had they, then, sufficient grounds, either upon the score of divinity or public expediency, to alter a law of that sort, on which, if they were wrong, they would be acting contrary to that morality upon which the very foundation of their institutions depended? It was now proposed to abolish only one or two of the prohibited degrees of affinity; but if those degrees were taken away, a code would remain inconsistent with itself. The House must not come to the discussion of this subject under the apprehension that Lord Lyndhurst's Act had introduced any change whatever into the principle of the law; and upon reference to the Act itself they would find it impossible to concur in his right hon. Friend's conclusions on that point. He confessed that he really did expect when the Commission issued, that they should have had an inquiry of a very different kind from that which now appeared in the report on the table. He was not prepared to hear that Commissioners appointed by the Crown upon a matter affecting the morality of the nation would have proceeded upon an exparte case previously got up, namely, through the agency of solicitors, by interested parties; for of the evidence of such parties, and the materials collected by them, the whole staple of the report, with very few exceptions, was composed. He had expected that archbishops and bishops of the Church would have been called, because they could have given a fair representation of the 1119 doctrine of the Church, and of the feelings of their respective flocks on so important a question. He found, however, that five clergy on one side had been examined, to balance five clergy on the other; but while they were certainly most respectable men, they were by no moans an adequate representation of the Church of England for such a purpose. Two Dissenting ministers had also given evidence; but no ground was shown for treating their evidence as a sufficient exponent of the general belief of the Dissenting bodies at large. The report contained, in addition, the opinions of some Roman Catholics and Jews; but, from the whole tenor of it, the House would learn that, although the Commissioners were appointed to inquire into the whole subject of marriage, they had practically confined themselves to certain particular degrees of affinity, with respect to which interested parties had previously been looking out for information. The evidence was therefore not entitled to the credit which the right hon. Mover had anticipated for it, and this was a point deserving of the serious consideration of hon. Members, and particularly of Her Majesty's Ministers.
§ MR. HENLEY
wished to guard himself against being supposed to give any sanction to the present measure in not opposing it at the present stage of its proceeding; and, deferring to those whose wisdom and knowledge of the subject were superior to his, he would yield to their intention of not dividing the House on the present occasion. He should observe, however, that in the remarks made about the former Commission, and the manner in which it had been conducted, he perfectly concurred. He never had heard of a Commission to the report of which less authority might be attached in that House. What amount of credit could be attached to that report if they took from it the interested witnesses examined? Actually, almost nothing. He believed no Commission had ever produced a report on evidence so unsatisfactory. He had read that evidence with the greatest possible care and attention; and it appeared to him that it was hardly possible for any person to peruse it attentively without coming to the conclusion that the witnesses on one side had been subject to a very different kind of cross-examination from that of the witnesses on the other side. That might have been accidental. He knew nothing of the opinion of the Commissioners themselves; but he certainly 1120 had been very much struck by the searching cross-examination of the witnesses opposed to those marriages, and the absence of any such cross-examination of the witnesses in their favour. It appeared to him, however, that it was those latter witnesses whose statements ought to have been most carefully sifted, as they were for the most part persons personally interested in the view which they took of the question. They might almost be looked upon in the same light as electioneering agents; and every one knew that the statements of those agents should be received with the greatest caution; for it was well known that they usually returned as favourable to their candidate every man who did not actually spit in their faces. Much had been said relative to the mischiefs and grievances caused by the existing law; but the districts selected by the right hon. Mover for obtaining his list of these complaints were principally situated on the sea-coast—such, for instance, as Portsmouth, Southampton, and Plymouth. If he had inquired how many wives men had at those places, he could have made out numerous cases of bigamy. He could then have shown how many men had two wives, and how many had half-a-dozen. The right hon. and learned Gentleman had said that the Commissioners had not recommended any alteration of the existing law, because that had not come within their powers; but he took care to give the House to understand, in a manner which he (Mr. Henley) thought hardly fair, that he was speaking their sentiments. [Mr. WORTLEY: What I said was, that I could not say how any Commissioner could put his name to that report, unless he was prepared for an alteration, and probably a relaxation, of the law,] He was sorry to find he had misstated the tendency of the hon. and learned Gentleman's language. But he had next to observe, that there was one very extraordinary omission in the report of the Commissioners. One of the most important points involved in the whole question, was the condition in which an alteration of the existing law would place the clergymen of the Church of England; and yet the Commissioners had left that point wholly unnoticed. That omission Was the more unaccountable, inasmuch as the point had been referred to by some of the witnesses. An Irish clergyman stated that the clergy could not celebrate such marriages. Archdeacon Sinclair said he hoped they would 1121 not be compelled to celebrate them; and Mr. Patterson said that the clergy felt themselves restrained in the matter by the canon law. Now, that was a serious difficulty. In what position was the House disposed to place those gentlemen? Would the noble Lord opposite (Lord J. Russell) have recourse to a convocation? And if not, how could be release the clergy from the canon law without it? The hon. and learned Gentleman had endeavoured to throw discredit on the canon law, as having been framed by Cranmer and Parker; but it should be remembered that it had been ratified and accepted by the Sovereign in the year 1603. At all events, many clergymen of the Established Church felt bound by the canon law, and the House should not overlook that circumstance. He did not mean to enter on that occasion into a discussion of the general merits of the question; but he could not help taking that opportunity of stating, that if ever there had been a case artistically got up, it was the case made out by those Commissioners. From the report no one could come to the conclusion that those marriages had been prohibited by the Church from the earliest ages; and yet there could be no doubt of that fact. The report got rid of the religious point of view of the subject in the most extraordinary manner; it would have you believe that the Pope had to do with the early ages of Christianity. Why, this degree of affinity was wholly rejected in the Eastern marriages; and the Eastern and Western Church did represent, before their unhappy differences, the united opinion of Christianity. He entertained strong objections to the measure upon social grounds, as well as upon others. He certainly saw nothing either in the report or in the evidence which ought to induce the Legislature to outrage the feelings of the community at large for the benefit of a few individuals, who deliberately, and with their eyes open, had violated the law of their country, and the law of that Church of which many of them were professing members. The whole of the people of Scotland, both clergy and laity, were opposed to these marriages; in Ireland, persons contracting such marriages were regarded with abhorrence; and in England, the great majority of the people decidedly disapproved of them. Under these circumstances, he hoped that the House would not pass the proposed measure, and thereby do violence to the public feeling, and compel clergymen to celebrate marriages 1122 which the great majority of them believed to be contrary, not only to the canon law, but also to the law of God.
§ SIR G. GREY
said, that as he understood there was to be no opposition to the Motion for leave to bring in the Bill, he would not address the House at any length on that occasion. If there had been any opposition to the Motion, he should have been prepared to state in his individual capacity the grounds on which he was prepared to give his assent to the Motion for leave to lay on the table a Bill to alter the laws relating to the marriage of persons connected by affinity in the manner which it was clear the Commissioners were disposed to recommend. He agreed with his hon. and learned Friend, that to the evidence collected by the Commissioners, as well as to their report, it was the duty of Gentlemen to give their careful attention; and unless further consideration should have the effect of changing the opinion which he then entertained, he would state on the second reading of the Bill the grounds on which he should give it his support. He should, however, limit his approval of the measure to its main provision—namely, that for altering the laws which regulated the marriages of persons connected by that degree of affinity to which the report and evidence chiefly referred; and he did not wish to be understood as agreeing in all the details which had been stated. He did not concur in the reproaches which had been cast on the Commissioners for the manner in which they had conducted their inquiries. The hon. Member for Oxfordshire (Mr. Henley) had said that they should reject the evidence because it had been given by interested parties. But the hon. Gentleman should have remembered that interested parties were alone capable of stating to the Commissioners the results of the present law, and detailing those facts which should influence the decision of the House. It appeared to him that the Commissioners would not have properly discharged their duty if they had omitted to examine not only those who approved of the existing law, but those also who were able to show that that law had failed of accomplishing its object. It had been said that the marriages in question had been prohibited by the ancient Church. But many of the prohibitions of the ancient Church were so unnatural and absurd, that it would be impossible to attempt to enforce them, unless a dispensing power was 1123 at the same time granted, such as that possessed in the Roman Cathollic Church by the Pope. He believed that the law on the subject of those marriages in this country, was at present in a state of uncertainty which was extremely undesirable, and prejudicial to some of the best interests of society. The law upon the subject differed from that which prevailed throughout the greater part of the Continental States of Europe and of America; and it had failed to secure the objects for which it had been framed. Lord Lyndhurst's Act had rendered valid marriages of that description contracted before its enactment; so that it had given to them a legislative sanction; and he (Sir G. Grey) could not understand how any person, who believed that these marriages were opposed to the Divine law, could hold that the Legislature ought to have declared their validity. Under all the circumstances of the case, he felt that his right hon. and learned Friend (Mr. S. Wortley) was entitled to the thanks of the House for his endeavours to remedy the evil to which this Bill applied. Whether his Bill was fully calculated to attain that object, he would not then discuss; but he had no hesitation in giving his assent to the introduction of the measure.
§ MR. NAPIER
said, that the feeling of his constituents on that subject was so strong, and he so completely concurred in that feeling, that he was anxious to take that opportunity of briefly stating the grounds on which he should give his most determined opposition to the Bill in all its stages. The question was one of the highest importance with reference to the social system prevailing in this country. Marriage rested on two grounds. It had a religious basis, and it had a civil sanction. With respect to the religious view of the question, he could only say, that no evidence which Commissioners might produce could shake a conviction to which he had come on Divine authority. He did not form his conclusion on the subject from private interpretation only. He had the mind of the Church of England, of the Church of Ireland, and of the Church of Scotland, and a concurrent Christian testimony of centuries, that those marriages were forbidden by the law of God to guide him in the matter; and the contents of that book could not remove the decision to which he had come under such guidance. Others differed, and had a right to differ, from him upon the subject; but it would be his duty 1124 to act on the conviction which he sincerely entertained. It had been said, that there was a class of persons whose feelings would be outraged if that Bill were not passed. But they had no alternative, except to do violence to the feelings of persons who had advisedly violated the law, or to do violence to the great mass of the people of this country, to the whole people of Scotland, and to the members of the Irish branch of the Established Church. They must choose between those two courses. Which would they adopt? Would they condescend to stoop to the animal passions of the violators of the law; or would they uphold, and ratify, and reverence a religious feeling consecrated by the concurrent testimony of ages? They had in favour of the existing law a strong religious conviction, a social system based on that conviction, and all those feelings connected with home which were so dear to Englishmen. But they were then called upon to disregard these considerations, and to defer to man's passions. Christianity, however, did not stoop to man's passions: it compassionated human infirmity, but it entered into no compromise with the vices of mankind. But, setting aside the religious view of the matter, he thought that there might be very intelligible reasons for the present law in the social system itself. He believed that the intimacy which necessarily subsisted between persons connected by affinity, required to be guarded by very hallowed feelings; and that advantage was afforded by that wise provision which interdicted those marriages. If they once stepped beyond the demarcation set down by the word of God, where would they stop? There was a reasonable fact in the history of the Irish Church, bearing upon that subject, which he wished to state to the House. He found that in the eighth century, before the Irish Church had been handed over by England to the See of Rome, a canon had been passed denouncing the marriage of a man with his deceased wife's sister, and placing it on the same footing as the marriage of a female with the brother of her deceased husband. He admitted that the right hon. and learned Gentleman (Mr. Stuart Wortley) had brought the question under the notice of the House with great ability and moderation; but, as he could not help thinking that the proposed measure was opposed to the word of God, and would dangerously interfere with domestic happiness and the most sacred relations of 1125 private life, he should feel it his duty to give to it his most earnest, firm, and determined opposition.
§ MR. PLUMPTRE
had formerly entertained some doubts upon this subject, and having been led into a serious inquiry, the result of that inquiry induced him to offer to the measure proposed his decided opposition, being under the impression that the proposed alteration would involve greater evils than those which at present existed. And upon reflection, he thought it was a very serious question that the very parties themselves, whom it was proposed to benefit, might not suffer materially by this change. Was it not likely, if the proposed marriage of the husband with the sister of his deceased wife were rendered legal, that during the life-time of the wife it would lead to jealousies, suspicions, and discontent?—jealousies and suspicions which did not now exist. Although such marriages might not be supposed to be in direct contradiction to the word of God, still they were contrary to the spirit and tenor of the Scriptures. Now, this being the case, there could be no doubt that the measure would lead to estrangement, and prevent that social intercourse which at present existed. He bogged to direct the especial attention of the House to the opinions of the clergy of the united dioceses of Down and Connor. The petition of those clergymen embraced the most important points connected with the subject, and was, in every respect, deserving of the consideration of the Legislature. He would certainly oppose the Bill.
§ MR. STUART WORTLEY
replied, that he had endeavoured to introduce this subject in as calm and dispassionate a manner as he was capable of, to the notice of the House, and regretted exceedingly that more than one hon. Gentleman had departed from that calm and dispassionate tone and manner. Anything more unwarrantable than the attacks of the hon. and learned Member for Plymouth, and the hon. Member for Oxfordshire, he had never heard. He owned he was not prepared to hear language or rather lucubrations of so strong a nature. It was alleged that the Commission had heard the evidence only upon one side, and that six clergymen had been examined who were known to entertain views favourable to the measure. Now, what was the fact? Why, that six clergymen had been examined upon one side, and six upon the other. It would seem, from the representations of hon. 1126 Gentlemen, as if the strongest feelings were entertained by the clergy upon the subject;, whereas, the truth was, there was the greatest difficulty in procuring the attendance of clergymen to give evidence before the Commission. So far from there having been anything unfair, unjust, or one-sided in the proceedings of the Commission, there was every encouragement to parties to come forward—every publicity; and there were even letters written to clergymen, in various districts, to come before the Commission. This zeal on the part of the Commission was not responded to. The clergymen of the united kingdom, as a body, did not manifest any desire to record their convictions; and, upon the whole, there seemed to be rather an indifference than anxiety upon the subject. The Commission appealed to Ireland, where he admitted there was a very strong feeling against the proposed change. There had been a strong remonstrance, every word of which was set out in this report. He was really almost induced to question his hon. Friend (Mr. Henley), when he stated that he had read the report of the Commission. His hon. Friend alleged partiality on the part of the Commission. Why, the Commission had examined six of the clergymen of the archdeaconry of Middlesex, and their opinions were equally divided upon the subject. They had also examined clergymen of the archdeaconry of Ripon, and the result was, that two were for the change, and one against it. Now, what did the report itself set forth?—We have been particularly desirous to ascertain the opinion of the clergy of the Established Church in England, on the two questions, whether the marriage with the sister of a deceased wife is prohibited by the law of God; or, if not, whether it ought to be interdicted upon any other ground, The number of clergy in England is so great, that we have found it impracticable to collect the opinions of the individuals composing that body. We have, however, to the utmost of our power, caused it to be made known that we were ready to receive information from every quarter, and more especially from the clergy; and we have taken the evidence of those who were known, by their published opinions or otherwise, to have carefully considered the subject—and on both sides of the question. We are satisfied that a great diversity of opinion prevails among the clergy of the Established Church in England upon both questions. We think that very many of them do not consider such marriages to be prohibited by the law of God, but that the majority object to them either upon this, or upon other grounds. In Ireland, the great majority of the clergy of the Established Church are represented as disapproving of these connexions, which are rare also 1127 among the Presbyterians in that country, and are generally disapproved of by their ministers.Did this prove the charge of the hon. Gentleman, that the Commission had shut out the evidence of clergymen? Nothing could be more unjust and ungenerous than such a charge. They had taken the evidence of Dr. Pusey at great length, than whom there was no higher authority. His evidence extended over seventeen pages. Then his hon. Friend (Mr. Henley) alleged that the Commissioners had not said a word about the practice of the Greek Church—that they had, in fact, suppressed that part. Now, let hon. Members refer to the report, and there they would find the following paragraph:—In the Greek Church these marriages are considered incestuous and unlawful, and are not allowed, cither by dispensation or otherwise. But in the case of a marriage solemnised in Russia, between persons not in communion with the Eastern Church, it seems, that such a marriage, if permitted by the law or discipline of the community to which these persons belong, would not be invalidated by the law of the State.It was true, as the hon. Gentleman said, that they had not extended their inquiries into the several degrees of consanguinity—they had thought it right to confine themselves to the particular question before them—otherwise their inquiry would be endless, and, probably, useless. The report plainly says—We have directed our inquiries to the Laws of other countries with respect to marriages within the prohibited degrees of affinity, and more especially to a marriage with the sister of a deceased wife. From the evidence which we have taken, there can be no doubt that this last class of marriages is, of all those within the prohibited degrees, by far the most frequent; so much so, that it necessarily forms the most important consideration in the whole subject. When, therefore, for the future, we speak, in this report, of marriages within the prohibited degrees, we intend, when it is not otherwise declared, to confine our observations to marriages with the sister of a deceased wife.Hon. Gentlemen seemed to speak as if the subject-matter of inquiry was either a great party or a great personal question. Now, he would like to know what interest had he or any other Member of the Committee in making the result appear favourable to the proposed measure, or otherwise? But it was said that several witnesses had not been cross-examined, and that others had. What was the fact? Some legal and other professional gentlemen stated certain facts which had come under their knowledge. The Members of the Commission, having had no reason to presume that the evidence 1128 given was incorrect, did not cross-examine them; but when clergymen came to speak upon doctrinal and theoretical matters, upon which differences of opinion were entertained, then the Commissioners did examine some of them, in order to ascertain the grounds upon which their particular opinions rested. He regretted extremely if he had been betrayed into any warmth in making these observations, for he was most anxious to keep the question free from all asperities; and he trusted that nothing of the kind would be exhibited on discussing the second reading. Without saying more, he begged to express his obligations to the House and the right hon. Baronet for allowing the question to be discussed.
Marriage Act (5 & 6 Will. 4, c. 54) read; Bill to amend and alter the said Act, so far as relates to marriage within certain degrees of affinity, ordered to be brought in by Mr. Stuart Wortley, Mr. Edmund Denison, and Mr. Masterman.