HC Deb 03 May 1849 vol 104 cc1162-239

Order for Second Reading read.

Motion made, and Question proposed—" That the Bill be now read a second time."


having presented several petitions against the Bill, proceeded to move that it be read a second time that day six months; and in so doing he said, he was sensible that in opposing the Bill he had imposed upon himself a duty which, under any circumstances, would have been painful. It was painful to him to find himself opposed on a question of religious obligation to many persons for whom he entertained the highest respect, and to whoso opinions, under ordinary circumstances, he should be most ready to defer; and he could assure his right hon. and learned Friend the Member for Bute, that it was an aggravation of that feeling to find himself in opposition to him. It was painful, also, to him to resist the wishes of many who, having violated the law, looked to the present measure as a means of relieving themselves from the penalties to which, by such violation, they had rendered themselves liable. Above all, it was painful to him to resist the wishes of others who, anxious to enter into marriages which the law now forbade, had hitherto been restrained by a sense of the obligation imposed upon them by the law, from contracting marriages which they thought would add to their comfort and happiness. But he felt too strongly the importance of the present question to allow personal motives of any kind to influence the course he was about to take. That course was not unattended with difficulties. He felt most deeply, what be was sure every man must feel, that this was a question which it was not easy to deal with in Parliament. Religious questions were those least calculated for discussion in that House; and when the subject was, as in this case, the correct meaning of a divine command conveyed in Holy Writ, it seemed rather fitted for an assembly of divines and holy men, who might calmly meditate upon and discuss the portions of the Scripture by which such questions were to be decided, than for a popular assembly, in which conflicting passions and interests entered into and influenced the controversy. He only hoped that nothing would fall from him which should in the slightest degree lead, either on his own part, or on that of others, to anything like irreverence, and that he should say nothing which could be construed by any man into censure or blame of those from whom he differed. The subject which the House had to discuss this evening, was the whole law affecting the prohibited degrees of marriage in this country. His right hon. and learned Friend, indeed, had taken a much narrower basis, for he had limited the indulgence to be granted by his Bill to two particular cases—namely, marriage with the sister of the wife, and with the niece of the wife; but those who looked into this subject must perceive that it was impossible for the House to limit itself to the consideration of these two relaxations—that if the law were relaxed at all, it must be relaxed upon something like principle—and that such relaxation, therefore, must go far beyond the point to which the right hon. and learned Gentleman proposed to extend it. The relaxation of two, and one of them not the more distant of the prohibited degrees, would naturally lead to the relaxation of those that were nearer, and so legislation would be carried on with a velocity that could not be stopped, until all restriction, save that of consanguinity, was removed. As the law stood at present, it rested upon a recognised principle. All marriages within the fourth degree were prohibited; all beyond it were excluded from prohibition; and if one class of marriages were relaxed, those within the same scale or degree must he relaxed also. The Bill of the right hon. and learned Gentleman was an example of this necessity, for it originally professed to provide only for the case of a marriage with the wife's sister; but it appeared that when he came to consider the case, he reasoned with himself that it would be preposterous to make a relaxation with respect to a marriage in the second degree, and not to extend a similar relaxation to one in the third degree—namely, the niece of the wife; and thereby laid down the principle that if relaxation within the one degree were to he made, prohibition within the other, and that more distant, could not be maintained. The House must therefore regard the whole law of marriage as being this evening put upon its trial; and put upon trial, too, under circumstances more unfavourable than those under which any former law had been tried. There had been a commission appointed to inquire into the subject, the report of which had been laid upon the table, together with the evidence. And what had the commission told the House of the course that had been pursued? It appeared, from the evidence, that for the last six years there had been an organised system of impressing upon the public mind a sense of a particular grievance arising out of this particular law—that gentlemen of great ability had been employed in ransacking the country for materials by which such an impression on the public mind might be confirmed and extended. For six years past the press had been employed in writing up this grievance; and nine or ten gentlemen of the legal profession had been sent forth into different parts of the country, to examine witnesses, and record their testimony so as to bring it to hear through this commission, upon the opinion and judgment of that House. And, be it observed, that during all these proceedings there had been no power of cross-examination allowed to the opposite side; there had been no means of bringing before the public those cases of grievance which the relaxation of the law would produce; or of the evil consequences which would flow from it,; but all that had been collected went to show that of all marriages contracted, the happiest were those which the law at present prohibited. Upon such evidence the House was called upon to legislate, and to extend the limits within which it was supposed by some that marriage was at present improperly confined. He did not accuse those gentlemen who had been going about the country of having perverted the truth. Let him not be misunderstood upon that point. But he did say, that gentlemen under the influence of a particular bias, getting up evidence to establish a particular grievance, with a view to carry a particular object in which a number of persons were interested, tended to an exaggeration of the case on the one side, and a depreciation of it on the other. That that had been so in this instance, appeared from the evidence itself. The first argument that had been used in favour of relaxing the law, was the extent to which, in the present state of the law, the violation of it had proceeded. Now he would frankly admit, that there might he a case where offences were numerous from being too severely visited, and a relaxation of the law might in such case conduce to the prevention of the crime; but then these were offences which all had a direct interest in putting down, because they were at variance with the feelings and interests of men; and therefore a relaxation of the law left in all its strength the general desire for the repression of the crimes in question. But with respect to the offence now under consideration, the case was different: there were in the heart of men propensities and feelings that led to a violation of the law intended for their control; and therefore it was not a matter which could be in doubt that the relaxation of the law would aggravate the evil. If, however, the extent of the offence were to be the principle which should justify a relaxation of the law, he asked them whether they were prepared to adopt that rule in other cases—whether, if they perceived great neglect of the Sabbath, they should therefore think it right to relax the prohibitory statutes in regard to its desecration, and countenance a forced relaxation of the divine law, which had consecrated the day to religious purposes? Other cases might be quoted whence the fallacious character of such a principle would be equally apparent; and, if they were not prepared to affirm the principle in these cases, how could they proceed to apply it to the question before the House? So much for the deduction which others made from the facts they had assumed. But he was prepared to controvert the fact that the violation of the law had been as extensive as was described in the report of the commissioners. He said, with respect to that report, that part of it was a statement of facts. But, on the other hand, part was imaginary, and, as usual where wishes and imagination united dealt with any subject, the bias to which he had adverted led to error. It was stated, upon the faith of information obtained by the commissioners, that they had been able to discover illegal marriages of this description during the course of fifteen years—the period which had elapsed since the introduction of the Bill proposed to be repealed—to the number of 1,500 only; and the commissioners made a calculation upon that basis, as to the number of such marriages which they supposed had taken place throughout the country. They wished the House to believe, that during the period which had elapsed since Lord Lyndhurst's Bill, the number of marriages of a widower with his deceased wife's sister amounted to no less than 30,000. If hon. Members would take the trouble of reading the evidence, they would find it difficult to reconcile that statement with the facts stated by the different gentlemen who were examined before that commission. He wished the House to listen to the facts which had been elicited in the course of that investigation—elicited too, not from persons anxious to maintain the law as it was, but from those who were in favour of the alteration proposed in the Bill of his right hon. and learned Friend. He would take the witnesses in their order, and would begin with the clergy. The first was the Rev. Mr. Denham, who had charge of a parish with a population of above 2,000 souls. He states that "he knew of one such marriage, and thought there might be more among the lower classes." The next witness was the Rev. Mr. Hatchard, who had been for twenty-three years rector of Plymouth, with a population of 25,000. He had the pleasure of knowing that gentleman, and he could state fearlessly that no one was more active in the discharge of his parochial duties, or better acquainted with the circumstances of his flock. He says, "That of his own knowledge he could speak but of one case." He adds, indeed, that when he resided at Chatteris, before Lord Lyndhurst's Bill had passed, he had known of several cases; but that during twenty-three years' residence in a population of 25,000, he knew of one case only. Next came the Rev. Mr. Owen, rector of Bilston, with a population of 22,000. He did not think that one case had occurred in his district, but he had heard of four in the neighbourhood, and of seven in the diocese of which he was surrogate, the population of which was 780,000. The Rev. Mr. Jenkins, however desirous he was of a change in the law, knew of no instance in his own flock of 3,000 persons; the Rev. Mr. Garbett, the rector of St. George's, Birmingham, with a population of 20,000, knew of two or three cases among the higher classes, but not of one since the year 1835; and this gentleman was surrogate over two dioceses, with a population in each of from 600,000 to 700,000. So much for the testimony of the ministers of the Church of England who were anxious for the relaxation of the law. On the other side, the Rev. Mr. Tyler, rector of St. Giles's for 23 years, stated that he did not know one instance of the particular kind of marriage in his parish since he was rector, and yet he had made a most careful inquiry on the subject. The Rev. Mr. Sinclair, of Kensington, gave evidence similar to that of Mr. Tyler; and the Rev. Mr. Hales, of St. Giles's, Cripple-gate, gave similar testimony. Thus, as far as the testimony of ministers of the Established Church went, it was shown that in a population of 310,000 persons no more than five or six cases of the marriages in question could be spoken to within a space of fifteen years. Now, with respect to Dissenters, Dr. Cox, a Baptist minister, having 150,000 persons under his control, stated that such marriages were not frequent, and that he had the best means of ascertaining the fact. Mr. Binney, of Fish-street-hill, gave similar evidence, adding that he knew of one case of hardship, but could not say that the law was disregarded by the poorer classes. A Roman Catholic bishop, the Rev. Dr. Wiseman, was also examined, and he certainly said that he had known several such marriages in the course of a year, but he specified no particular number, though anxious to procure a relaxation of the present law; and he added that he had never heard the laity speak much of the present law. The argument, then, being that the frequent violation of the law required the repeal of the existing statute; he maintained that the commissioners had failed to lay sufficient ground in their report to support such a change, even if it were admitted that a change in the law on that ground ought to be made. But there was futher evidence of the exaggeration of the commissioners: the whole amount of such marriages conjectured by them was 30,000 having taken place in the course of fourteen years, since Lord Lyndhurst's Bill had passed into a law. He had taken some pains to go through the register of marriages in England, which was annually laid before the House, and he found that at the period when Lord Lyndhurst introduced his Bill, the total number of marriages in England was 100,000 annually, and that last year they amounted to 144,000, there having been a gradual progressive increase from 1835 to the present time, with annual variations according to the times. But as they improved their statistical accounts, they got a more intimate knowledge of particular circumstances. There was latterly one column in the register which showed how many widowers had married spinsters; and, of course, that was just the class which the House had now to deal with. He found, then, that the number of widowers who married spinsters, the total number of marriages being 144,000, was 12,000 in each year, as nearly as possible. If, then, they took the number of marriages consummated with a deceased wife's sister during the lapse of fourteen years at 30,000, and supposed that these marriages had increased in just proportion with the others from 1835 to the present time, they would find that the proportion which would fall to last year, as the number consummated in that period, was somewhat more than 3,000. But as only 12,000 widowers married spinsters last year, it followed that three out of every twelve, or one out of every four, must have married his deceased wife's sister. He asked the House whether they could believe that one out of every four widowers who married, contracted marriage with his wife's sister? Yet the commission over which his right hon. and learned Friend presided made such a statement the basis on which they sought on this occasion to introduce an alteration of the law. As respected the multitude of cases, then, he would not dwell further. Another argument advanced by those on the opposite side was, that to prohibit marriage within the degrees now declared illegal, would necessarily encourage concubinage. Now, considering the relations in which the parties stood to each other, he could not for a moment suppose that the House would desecrate the whole law of marriage by yielding to such an argument; and, for his part, he could not consent, in order to prevent unlawful concubinage of an incestuous character, to legalise marriages of a nature equally incestuous. The real question which they had before them—a question demanding serious consideration—could not be better stated than in the words of one of the witnesses examined before the commission. First, was marriage of a man with his wife's sister prohibited by divine law; and, secondly, independently of divine law, was there no reason in the relationship itself for prohibiting it by the law of man? To both those questions he had no difficulty in giving an affirmative answer; he believed the proposed alteration was in opposition to the divine law, and that were it not in opposition to the divine law, he believed there were yet political and social reasons sufficient to prevent this Bill passing into law. He would consider the two questions in their order; and, first, he said it was in opposition to the divine law. This question was by no means a new one: it had been discussed by the ablest men of antecedent times, and it had been decided, as he believed satisfactorily, not only for their own generation, but for the generations that were to succeed. It had been decided at least 300 years ago, at a period when there was a greater amount of deep knowledge of the Scriptures, when the language of those Scriptures was, he believed, better understood, and when there was a more intimate knowledge of the theological history of previous times. It ought to be remembered by the House that this was no question of science, on which every year was likely to increase knowledge by enabling them to draw now deductions from a longer series of antecedent facts. The truths of Scripture were as well understood, and the laws as clear, at the moment of their promulgation, as at the latest period of the world; and the advantage which the men of former times possessed over the moderns, in addition to what he believed their superior ability and their superior knowledge, was, that their attention was not distracted by the vast number of new controversies and questions which had arisen in succeeding years, and which demanded attention at the present day. He concurred with his right hon. and learned Friend in this, that it would not be necessary, in discussing this question, to go back to the Christian era. He took his stand upon the period of the Reformation—he took his stand upon divine law, and upon the constructions put upon it by men who were distinguished in the history of this country for their ability, their information, their religious feeling and piety, their discretion and moderation. He begged the House to remember that those men who lived at the period of the Reformation were not interested in extending the prohibitions which Scripture imposed. They went to work on this principle, that they were to keep strictly to the literal words of the text, and to permit only such things as were permitted by the Scriptures, and to forbid nothing which was not forbidden in them. Such was the principle on which they based all their interpretation of Scripture, and on which they had come to the conclusion adopted on this particular question. But his right hon. and learned Friend, in the course of his speech the other night, in referring to Bishop Cranmer, said, that he being desirous of conciliating Henry VIII., with a view to the Reformation, adapted his opinion to the wishes of the monarch, or at all events, acted under an influence which disturbed the calmness of his judgment. Now, his hon. and learned Friend was rather hard upon the bishop; for Cranmer and he agreed in prohibiting the marriage of a brother with his brother's widow, which was the point then in dispute. But, independent of this, so far from there being the least ground for such an imputation on Cranmer's character, he found that Henry, having on one occasion caused letters to be written to him for a dispensation, to permit the marriage of one of his domestics within the prohibited degrees, he was answered by the Archbishop in the language which he would now read to the House. The Archbishop says— Whereas your Lordship writeth to me in favour of this bearer, Massey, an old servant of the King's highness, that, being contracted to his sister's daughter of his late wife, deceased, he might enjoy the benefit of a dispensation in that behalf, especially considering that it is none of the causes of prohibition contained in the statute; surely, my Lord, I would gladly accomplish your request herein, if the word of God would permit the same. And where you require me that, if I think this license may not be granted by the law of God, that I should write to you the reasons and authorities that move me so to think, that upon declaration unto the King's highness you may confer thereupon with some other learned men. For shortness of time I shall show you one reason, which is this:—By the law of God many persons be prohibited, which be not expressed, but be understood by like prohibition in equal degree. As St. Ambrose saith that the niece is forbid by the law of God, although it be not expressed in Leviticus, that the uncle shall not marry his niece. But where the nephew is forbid there that he shall not marry his aunt, by the same is understood that the niece shall not be married to her uncle. Likewise as the daughter is not there plainly expressed, yet when the son is forbid to marry his mother, it is understood that the daughter may not be married to her father, because they be of like degree. Even so it is in this ease, and many others, for where it is there expressed that the nephew shall not marry his uncle's wife, it must needs be understood that the niece shall not be married unto the aunt's husband, because that is also one equality of degree; and although I could allege many reasons and authorities more for this purpose, yet I trust this one reason shall satisfy all that be learned and of judgment. Cranmer, then, however desirous he might he of conciliating Henry VIII. for the purposes of promoting the Reformation, and the accession of Queen Elizabeth, yet gave expression to that which he believed to he the intention and spirit of the law of God, although it was unfavourable to the wishes of the monarch. He laid it down that marriages of this description were illegal. This opinion, however, did not rest on the authority of Cranmer alone, whatever might he thought of his authority; for he had now to remind the House that in the 5th of Edward VI., in the year 1551, just fifteen years after the date of the letter which he had read to the House, a commission was appointed to consider and to settle the ecclesiastical law. That commission consisted of thirty-two members, eight of them being bishops, eight of lower rank in the Church, eight gentlemen of the civil and eight of the common law. On that commission were some of the most illustrious men of the time for ability, religion, and rank. Among those in that commission were Archbishop Cranmer, Bishops Ridley, Coverdale, and Hooper, Dr. Taylor, Dr. (afterwards Archbishop) Parker, Dr. Latimer, aided by Peter Martyr, a man eminent for his wisdom and moderation; and the lawyers, too, were undoubtedly the most distinguished men of their time—the lights of their profession—men in whose statements and opinions, deduced from patient investigation, confidence might be placed on this or any other question. These individuals reported upon the different points of ecclesiastical law, and among those the question now before the House was considered as essentially important, and accordingly, having addressed themselves to it, they came to the conclusion which he would now read to the House. They say— Nor were these commands peculiar to the Commonwealth of the Israelites (as some think), but they have the same weight of authority which our religion assigns to the decalogue. But this is to he diligently observed in those passages of Leviticus, that all persons within the prohibited degrees are not there expressed by name. For the Holy Spirit lays down evidently and expressly those persons from which the like distances of the remaining degrees may he easily computed and settled. As, for example, where a mother is not allowed to marry with her son, it follows that a daughter cannot be allowed to be the wife of her father; and, if it is not lawful to marry the wife of thy father's brother, neither can marriage be allowed with the wife of thy mother's brother. Above all, we wish two rules to be attended to, of which one is, that we should understand that those places which are assigned to men, are assigned to women always in equal degrees of proportions and relationships. The second is, that a man and his wife should be considered to have one and the same flesh; and thus, in whatever degree of consanguinity any one stands to another, in the same degree of affinity he stands to the wife, and so conversely. And if we keep ourselves within these limits we shall not introduce more prohibited degrees than the sacred Scriptures have appointed, and we shall preserve whole and inviolate those degrees concerning which God has given us a commandment. And not only does the rule which we have now laid down apply to lawful matrimony, but has the same force with respect to any unlawful connexion. Such was the conclusion at which they arrived after the most patient and searching investigation, first in committees of eight—afterwards in a full assembly of the whole commission, where the opinion of the lesser body was carefully reviewed and passed with the sanction of all. Such was the opinion of men distinguished in their times and distinguished in history—men who laid the foundations of the Church of England; these were the men who proclaimed to this country and to the world that marriage with a deceased wife's sister was contrary to the law of God, and ought to be contrary to the law of this country. And he would say that whatever number of exceptional individuals there might be, the people of England had concurred hitherto with the opinion of the great men whom he had quoted. The construction then given to the divine law had ever since been adopted by the Church of England. In the year 1561 another commission was appointed to regulate and order the affairs of the Church; and was there any difference between their opinion and those of the learned men to whom he had already referred? Quite the contrary; for in the report of this last commission there occurred this particular paragraph:— It is agreed that all such marriages as have been contracted within the Levitical degrees be dissolved; and, namely, those who have married two sisters, one after another, who are by common consent judged to be within the case. So that ten years after the preceding commission, and twenty-five years after the declaration of Archbishop Cranmcr, the Church of England, by an authorised commission, again declared its adherenee to the principle which the House was now asked to overturn. But if authority were regarded, he would add that in 1561 there was a very remarkable case of an individual, a bishop, who had taken no part in cither of the commissions referred to, who was called upon to give his opinion upon a case of this description. That individual was the learned Bishop Jewell, who presided over the diocese of Salisbury—a man of whose merits it was unnecessary to speak in a house where the Christian religion was acknowledged. Bishop Jewell stated the points then in discussion. They were just the same as those now brought forward by the supporters of the present motion; and he said— I reckon the words in Leviticus, whereupon you ground, are those, Uxorem et sororem suam ad lacessendam eam, ne ducas, ut retegas turpitudinem ejus, ilia adhuc vivente; which words I know have been diversely construed by divers men, and in some men's judgment seem to sound of your side. Vellican, Paul Fagius, and Lyra, with certain others, think such marriage to be lawful; and that God forbad the having of two sisters in matrimony at one time, both of them being together onlyve. And that for the spightful and continual contention and jealousy which must needs grow between them, as appeared in the example of Jacob with his two wives, Rachel and Leah. And therefore some think the Jews continue such marriage among them, as lawful, until this day. Al these things hitherto make on your side; and the same would not greatly mislike me, saving that I find the judgments of the best learned men now living, and the continual practice of al ages, and in manor very public honesty, to the contrary. The practice of former times appeareth by the canons; but I know you make smal stay upon the canons, and sooner rest your self upon these words in the text, ilia adhuc vivente. And therefore thus you ground your reason; a man may not mary his wives sister, while she is onlyve; ergo, he may mary her after she is dead. This reason, a negativis, is very weak, and makes no more proof in logic than this doth, Corvus non est reversus ad arcam donee exsiccaœ erant aquœ; ergo, 'he returned again after the waters were dried up.' Then, after showing that in the Levitical prohibition there were certain eases within the prohibited degrees not specifically mentioned—of which no man would say that marriage was allowable, as, for instance, a man and his daughter, he went on:— Wherefore we must needs think that God in that chapter hath especially and namely forbidden certain degrees; not as leaving al mariage lawful which he had not there expresly forbidden, but that therhy, as by infallible precedents, we might be able to rule the rest. As when God saith, 'No man shal mary his mother,' we understand, that under the name of mother is contained both the grandmother and the grandfather's wife, and that such mariage is forbidden. And when God commands, that no man shal mary the wife of his unkle by his father's side, we doubt not but in the same is included the wife of the unkle by the mother's side. Thus you SCO God himself would have us to expound one degree by another. So likewise in this case, albeit I be not forbidden by plain words to mary my wives sister, yet am I forbidden so to do by other words, which by exposition are plain enough. For when God commands me I shal not mary my brother's wife, it follows directly by the same that he forbids me to mary my wife's sister. For between one man and two sisters, and one woman and two brothers, is like analogy or proportion, which is my judgment in this case. The bishop, following the steps of the: learned men who preceded him, came to the same conclusion as that to which I they had arrived, namely, that marriage with a wife's sister was distinctly forbidden by the law of God. It is known that in 1563 the prohibition was renewed by Archbishop Parker's Table of Kindred and Affinity, which was directed to be hung up in all churches. It might be said that that table was no part of the law of the land. That might or might not be so; but he was not arguing the validity or invalidity of the canons. What be said was, "There is your own law, and upon that the case is conclusive." He referred the House to the opinions of the great men who founded the Reformation—translated the Bible—to those who had founded the Church of England, and he found that for an unbroken period of three hundred years the same principle had been maintained—that marriage with a wife's sister was contrary to the Scriptures. If, in the construction of Scripture, authority was to have weight, where would you find it more clear or conclusive? This was the ground upon which, independently of other considerations, he pronounced such marriages to be unlawful. But did the Church of Scotland approve of such marriages? Did the founders of that church, in their discussion and examination of the Scriptures, allow of them? Clearly not; it appeared upon the face of the evidence before the commissioners that the Church of Scotland was not only averse to the present measure, but that such marriages were in Scotland a civil crime. In the course of the discussions on this question, there had been brought in aid the opinion of a learned rabbi, and upon the opinion of that learned man the House was called upon to overthrow the existing law. He demurred to the opinions of a Jewish rabbi upon such a point. We knew that, 1,800 years ago, it was said they had "made the word of God of none effect by their traditions;" and no man who had examined the history of the Jewish Church since that period could doubt that their corruptions, though they might have varied, had continued up to the present day, so as to make their interpretation of the Scripture little available as a guide to any Christian nation. He, therefore, attached no weight to the opinions of the Jewish rabbi as an authority. With regard to the opinions of the Roman Catholic Church, he should be extremely delicate in using any expressions which might be considered harsh towards any member of that communion. He had certainly no such intention. But the House must remember that Dr. Wiseman, in his evidence, said he believed that it was only a provision of the ecclesiastical law which prohibited the marriage of a man with his wife's sister, and that what was prohibited by ecclesiastical law in the Church of Rome, might be dipensed with by the authority of the Pope. He (Mr. Goulburn) did not wish to enter into questions of such a nature; but he should have been tempted, had he been a member of the commission, to ask this question—" Upon what do you found your ecclesiastical law? Is it on an arbitrary dictum of the Propaganda at Rome, or of the Pope, or is it founded on Scripture?" The Church of Rome, he said, granted dispensations in some countries, but they were delicate in granting them in others. In Ireland they were not granted, but they were granted in England. But the Church of Rome had granted dispensations for marriages between much nearer relations than those, for it was in evidence that in cases of monarchs and great families, there was no objection to the marriages of uncles and nieces, though otherwise they were granted with difficulty. He could not see, under such circumstances, that any great credit was to be given to the dispensations of the Church of Rome, as evidence of what marriages ought to be retained; and, therefore, he did not admit this Church as an authority for the proposed alteration. Various other arguments, however, had been used to induce an opinion favourable to the Bill. Dr. Cox, for example, stated that he did not consider any part of the Levitical law to be at all binding upon a Christian community. He said— I do not think there is a direct prohibition. There is no prohibition which I should deem of authority in the case, because I do not consider that the Levitical law is an authority for us. I think that belonged to the Jewish dispensation; it was a constitution for the Jewish nation, therefore I should say there is nothing in Scripture expressly to forbid any such marriage. And he said again— I should feel great delicacy about the prohibition of marriages. I do not know what particular points may be referred to, but I should not see any objection to the Legislature acting independently of the Levitical constitution, which is the only divine law we have upon the subject, and which I think is not binding upon Christians. I see no objection to the Legislature taking into consideration what affinities are proper, and what are not; and, therefore, the prohibition might extend to some points not at all referred to in Scripture; or even if they were in the Old Testament, I do not think that, in itself, is binding upon us. I should not hesitate to act upon the general considerations of reason and propriety, and the good of society, as now constituted, independently of what may be found in the Old Testament Scripture. Now, he (Mr. Goulburn) did not agree with Dr. Cox in this rejection of the whole Levitical code, nor in the abolition of the distinction always hitherto made between that part which was moral and that which was ceremonial. He did not think this was the best mode of forming a judgment upon the question. It was said that the law laid down in the 18th chapter of Leviticus applied only to concubinage, and not to marriage; but the universal construction put upon it was an answer to the argument. It prohibited marriage as well as unlawful connexion; and whether one or the other took place, it was an offence that called down punishment, not upon the individuals alone, but upon every nation guilty of it. It could not refer to the Jews alone, because the prohibition was repeated subsequently with particular penalties applicable to the Jewish people, and varying in intensity according to the nature of the crime. But it had been attempted to be maintained that the law of Leviticus was confined to cases of consanguinity; but surely no man who read it carefully could adopt that opinion. To his mind it seemed expressly framed with a view to guard against an idea of that kind, because the denunciation with which it concluded was a denunciation against a particular marriage, namely, a marriage of affinity of which it is specially said, that "it is wickedness." But it might be urged that allowance was made by the Jewish Church for marriage with the widow of a brother. He denied that that was a correct representation of the case. The words of the chapter authorised him to maintain that there was a general prohibition of marriage with a wife's sister and a brother's widow. Nothing could be more distinct than the general prohibition, and that it was addressed to all people in all ages; but there was a special command—not an allowance—to the Jewish people, that, under a particular class of circumstances, a brother should marry the widow of his brother. What was the precise object of this command it is not for us to say. It had the effect of enabling us, who came after, to trace the generations of the Messiah, which were to us one proof of the prophecies having been accomplished which foretold His coming. It was one of those exceptions from the moral law which God had been pleased to authorise on the part of the Jewish people in this and other instances, for the purpose of a wise fulfilment of a great object. But stress had been laid upon this, that the verse in Leviticus related only to marriage with a sister whilst the other sister was yet alive, and it was supposed therefore to authorise the marriage when the first wife was dead. He begged to call attention to what he considered to be the real construction of this verse. A very able person, the Rev. W. C. Jenkins, had been examined before the commission. This gentleman was favourable to a relaxation of the law; and what did he say of this verse, Leviticus xviii. 18? He said— It appears, however, that the traditional law of the Jews did exclude the marriage of two sisters in succession; but whether upon the ground of this passage, or upon some more general law, does not clearly appear. It appears, moreover, that they interpreted the passage in question merely as prohibiting a particular case of polygamy, and allowing others; according to which interpretation, this law is designed only for a particular period, and for the regulation of an indulgence altogether removed by Christianity, must fall rather under the positive than under the divine law, and have no bearing upon the matrimonial code of the New Testament. But if, on the other hand, the passage in question refers to the marriage of a wife's sister after putting away the former wife, it cannot extend itself to the marriage of a deceased wife's sister, as this involves none of the conditions here laid down—namely, beside her, to vex her, and in her lifetime. He entirely agreed in this statement. This particular verse had no reference whatever to the prohibition of marriage within limited degress; it was directed against the practice of polygamy. In considering, therefore, the law of God as affecting marriage, this verse was to be put out of consideration. He came, therefore, to the conclusion that the marriages which it was now sought to legalise were contrary to the law of God; and, with the Reformers of old, he said "such things ought not to be permitted." If they were forbidden by the Scriptures, expressly or inferentially, then he said with the commissioners, Cadit questio. But it was urged that there was a second ground, independent of the divine law, which made it undesirable that the law should remain as it was—and that was founded on social reasons. He had, however, no difficulty in saying that no valid social reasons had been offered for its change. He believed no step could be more fatal to the peace of families, more calculated ultimately to produce impurity and corruption, than the abrogation of the existing prohibition. It had been stated that the sister of a deceased wife would make the best mother to her sister's children, and that, therefore, it was desirable that the husband should contract marriage with her. But they took a very narrow view of this question who limited their consideration of it to this particular apprehended case. It might be that there were cases—and the report stated there were many—of a sister having married her sister's husband, and of the children being placed under her care; but the report did not state in how many cases the possibility of such a marriage would have effectually debarred the children from such superintendence. They must, however, in order to a correct judgment, look at the effect of such marriages upon the relations of society independent of the death of the wife. How would they operate upon social intercourse? What could be more delightful, what pleasure was there purer, than that derived from unrestrained intercourse and entire confidence between a brother and his sister-in-law? But pass the proposed law, and the effect would be at once destroyed. It would be said by a censorious public, that more attention was paid to the sister than was due; her character would be affected, her honour impeached, and she would necessarily break off a connexion which, under the present law, was a source of unalloyed happiness. The censorious tongue of the world would not permit the woman to conduct herself as if she thought a possible marriage might be the result; for the rule of society was, that where marriage was possible, marriage was the object. One woman gave evidence before the commission, to the that effect she was the third sister whom her husband had married in succession, and she anticipated that, in course of time, if she should die he would marry another sister as his fourth wife. There was another instance of the same character, with this exception, that the lady in the second case did not express any opinion as to whether she expected the husband would marry another sister in her turn. If she had any such expectation, she kept it in her own breast. Now, was that a state of society that ought to exist? Would any man tell him that in that family there could be happiness, or peace, or intimate affection between the husband and his wife? Observe, too, the painful position in which a change of the law will place the unhappy widower. At the moment of the most severe bereavement to which man can be subjected, he will be required to decide as to marriage with or separation from his sister-in-law. Can any one of common feeling, or even of common delicacy, doubt the decision? The thought of a union with another at such a moment must be intolerable, and the law will therefore deprive the unhappy man of the best solace which he might otherwise have enjoyed, and rob the children of that care which is stated to be almost essential to their welfare. But it had been said that, in the upper classes, the present law was an interruption to happiness; but he had on this point the testimony of an admirable man, the rector of a London parish, who entertained upon the law in general an opinion adverse to that which he (Mr. Goulburn) professed. This gentleman said, in a pamphlet which he had published— In our rank of life I believe good is more likely to be obtained by leaving the law as it is. But he added— If you do not allow this liberty to the lower orders, they will go into a state of concubinage. On this latter point he (Mr. Goulburn) entertained a very opposite opinion. If you formed a judgment as to the feelings of the poor from those classes in great towns who were utterly ignorant of the law of God, and who, not knowing it, owing to the little care taken of them by the Legislature, had no religious knowledge, that might possibly be the case. But his observation of the poor in general led him to a different conclusion. He had had an opportunity of observing them, not in the populous districts of Westminster or Marylebone, but in the rural districts, and he could truly say, that there prevailed there an instinctive respect for God's law, which was more effective in procuring moral conduct than any law that Parliament could pass. What would be their situation after the present law was repealed? The poor at the present moment lived in crowded dwellings. There was every opportunity of intercourse between the members of the same family of different sexes. If they took away the protection afforded by the dread of incestuous connexion, what would be the effect on the sister or niece of the wife, now preserved in a state of purity and innocence by a respect for God's law, which it was now sought to repeal? They would then be left exposed to the passions of those with whom they were now living in safety? If Parliament once relaxed the law, the passions of the public would soon outrun the limits which his right hon. and learned Friend proposed to retain, and a new commission would be found necessary to recommend further extension as essential. There was only one other point which he would detain the House by referring to. His right hon. and learned Friend, in proposing to relax a law binding on the Church, evidently did not know how to deal with the altered position of the clergy. The clergy were bound by their oath and the canons of the Church to regard these marriages as forbidden; and he accordingly proposed to leave it optional with them to refuse or to perform the ceremony as they might think proper. But such an arrangement would place the clergy in a very awkward position. If a clergyman refused to perform the ceremony, as in nine cases out often they no doubt would, where were the parties to go? They could only go to the civil registry-office; and the House ought to reflect what the effect of sending them to the civil registrar would be on the morals and feeling of the population. The Rev. Mr. Denham, before the commission, gave the following evidence:— Even now, wherever the human law, as it now stands, contravenes their wishes with regard to marriage, they set very light by it in a variety of ways. For instance, if parties meet with a slight impediment in putting up the banns—supposing, for example, I have found that parties did not belong to my parish, and I have in consequence suspended the banns—I have reason to fear that those parties have gone away, and said, 'We shall content ourselves with the application we have made to the Church: we have made an honest effort to be married; what is the mere reading of the ceremony to us? We are as much married in the sight of God as we should be if the priest had joined our hands.' The whole question of the ceremony of marriage, as to the ecclesiastical part of it, has a Very frail tenure over the minds of the people of this country, and especially since the permission of marriage by the registrars. They have exceedingly confounded the two things, the legality of the tie, and the sacredness of the tie. The sacredness of marriage, in the view of the poor, has very much sunk in consequence. They say, 'We can be married in a lawyer's office, or in the union-house, just as well as in the church; and if there are two modes of marrying, let us have our own.' They have a familiar phrase in common life for the designation of this sort of marriage.' Jumping over the broomstick' is a common phrase amongst the lower orders of the people, both in town and in country; and that that is continually done I am persuaded from the fact that there are so many who merely put up the banns, but of whom I never hear again, I believe as many as two-thirds. Out of fifty who put up the banns, I believe there are as many as thirty who content themselves with having had the banns put up; and then they say, 'Marriage, after all, is only a ceremony; we are as much married as we should be if we went to the church: we shall merely incur a legal liability by going to the minister; I am persuaded of your affection; my children will never be so well provided for as by you. Now, if you do not think ceremony of any importance, I will live with you, and you with me. We have no public character to lose; no man will injure me for this. If I am a butcher or a baker, my meat or my bread is just as good as it ever was; and, as to the Government making us amenable for it in the Ecclesiastical Court, they will have to proceed against half the nation if they do; we have nothing to fear.' Under these circumstances, seeing that the sacredness of marriage as to the ecclesiastical portion of it has received so severe a shock, I think it would be a wise tiling to diminish the restriction which exists in this respect as to marriage. The natural tendency of this provision, therefore, was either to induce the public to argue in the mode in which the Rev. Mr. Denham said they argued, or to go before the registrar and have the marriage celebrated without a religious ceremony, and regarded therefore as a mere ordinary agreement. He felt this difficulty very strongly on a former occasion when the Marriage Bill Lad been before the House: he was now the more anxious to avoid anything having a tendency to throw the celebration of marriages into the civil registry offices. He took no credit to himself for any arguments that he had made use of on the present occasion, for he only repeated the views of the great men who were the pillars not only of the established but of all the reformed churches in this kingdom. But he could not conclude without imploring the House, in a case of such importance, not rashly to take a downward step. He would ask them to adhere to that course which was clearly safe, and "which on a moral question when weighed against a doubtful course, was clearly right—namely, to maintain the law as it was; and, in doing so, to show the people that they bore respect to their feelings, and that they appreciated the teaching of the Word of God.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."


said, that he should leave the historical portion of the right hon. Gentleman's arguments to he dealt with by abler hands than his; but he wished to refer briefly to some special reasons why he thought that this Bill ought to be supported by the Members of the different denominations of which that House was composed. The law of the Roman Catholic Church on this subject was that the Church generally disapproved of such marriages, but that under peculiar circumstances the power of granting dispensations, which they believed to rest with the Pope, and under him, with the prelates whom he appointed, might he used in giving permission for the celebration of such marriages. The evidence of Dr. Wiseman before the commissioners showed that this permission was very often granted, and that the bishops of the Roman Catholic Church very seldom indeed refused to grant the dispensation demanded. But after a man complied with the law of his church, was it not very hard that the law of England should step in and declare that his marriage was no marriage, and that the children horn after it were illegitimate? That was, therefore, a Roman Catholic disability, and he was sure that the Roman Catholic Members in that House ought, therefore, to give the Bill their best support, in order to ensure that the dispensations given by their Church should be to do what was legal, and not what was illegal. As to other Dissenters, he thought that those who called themselves the friends of civil and religious liberty, ought to support a measure that sought to get rid of one of the most serious interferences with social liberty that existed under the English laws. He now came to the Anglican Church. Some hon. Gentlemen opposed the Bill on account of its interference with the canon law; but he would venture to remind the House that there was a law passed in the 2nd of Edward VI., and made perpetual by an Act of James I., and in force to this day, for legalising the marriage of priests. The preamble of that Act, after referring to the numerous scandals that had occurred, by reason of the marriage of priests being forbidden, proceeded to say— Be it therefore enacted, that all laws and canons aforesaid shall be utterly invalid, and of no effect. This Act got rid of various old canons, but it met with much opposition in the House of Lords, where nine bishops entered their protest against it. The reason assigned for the passing of that Bill was the scandals that ensued in consequence of the clergy not being permitted to marry; but he would ask whether the scandals by reason of the conduct of the priesthood bore any proportion to the scandals described in the report of this commission; or rather, whether the scandals that would take place if celibacy were enjoined among the priesthood at the present day, bore any proportion to those which this Bill sought to prevent? In conclusion, this was a question on which to create sympathy was difficult, to excite enthusiasm impossible, but it was one, he begged the House to recollect, which was intimately connected with the morality, the peace of mind, and the domestic happiness of numbers of their fellow countrymen, and it was from a feeling that such was the case, that he gave his full support to the second reading of the Bill.


When I consider the vast importance of this question, and the greatness of the interests at stake—that it is not a mere commercial question, or one connected with the passing politics of the day, but one involving the happiness of hundreds of families, and thousands of individuals among our fellow countrymen—I cannot but feel that it is a subject which should not be discussed with levity; and therefore I confidently claim a more than usual share of that indulgence which the House so kindly affords to those who address it for the first time. There are two grounds on which this question may be discussed: the theological and the social grounds; and on both these I conceive it to be the solemn duty of the House to reject the Bill. Now, I am aware that it is an inconvenient course for a Member of this House to enter upon theological discussions, yet I know not how else we can decide upon the grounds which should undoubtedly guide us, namely, the ascertaining how far our votes are likely to be in accordance with the laws of our Creator. Now, there is one ground which would completely satisfy my own mind, and it is this—that such is the sanctity of marriage under the Christian dispensation—a sanctity which did not exist in the same degree either among the patriarchs or the Jews, that man and wife become, in some mystical sense, in the sight of God, one flesh. Now, it may be asked in what sense we say man and wife are one; and, indeed, a pamphlet, some time ago, attacked this argument, denying that man and wife are one in such a sense as we believe them to be; but the fact is, that they are one in some mystical sense, and in the sight of God, so that the relations of the one become the relations of the other in the same degree. Now, I come to the argument from the Levitical law; and here I differ from most of those who agree with me in the main question which we are discussing, for I am inclined to think that these marriages, probably, were not forbidden to the Jews; but it docs not follow that they are, therefore, permitted to Christians. The marriage with the brother's wife was forbidden, and that in language which showed clearly that the prohibition was not merely on social grounds, but that the marriage was prohibited as being in itself wrong. It is true that in one exceptional case where the first brother had died childless, that marriage was not only permitted but enjoined, under a slight penalty, but still a penalty. In that case it became a duty, and so far from giving rein to human passions, it restrained them. Laws may be dispensed with by the maker of them, and there were many other such things enjoined to the Jews. (I need not instance the extermination of the Canaanitish nations, and various other things, which were opposed to the laws originally given). But in all other cases the marriage with the brother's widow was strictly forbidden. Now, it is quite possible that the brother's wife was forbidden to the Jews, and yet the wife's sister permitted. Polygamy was permitted to the Jews, because of the hardness of the human heart, and a man might marry more than one wife, though a woman might not marry more than one husband, and so the marriage with the wife's sister might have been allowed, when that with the brother's wife was prohibited. But under the Christian dispensation no such relaxation is permitted, and the same strict purity is inculcated on men as on women; so that, if the Jews might not marry the brother's wife, neither may Christians marry the wife's sister. Now, the view I have taken is materially strengthened by the consideration that such appears to have been the doctrine of the Christian church during the whole course of its existence. I utterly deny that these marriages are permitted, as it has been said they are, among all the nations of Europe: the Christian church has always forbidden them. It is no argument against this to say, that, as we find them forbidden in the early councils, they must have been allowed before. The truth is, that they were always prohibited from the first establishment of the Christian Church, and the prohibition was repeated over and over again, at the earlier councils, in order to enforce it. The Eastern church, which adheres with peculiar tenacity to its ancient doctrines and customs, still continues the prohibition. In the Roman Catholic Church, dispensations are granted, but no dispensation for a marriage of this kind was given till a period when the most zealous adherents of that Church must admit that it was overrun with such a corruption as had never existed either before or since. Now, these dispensations are granted in England by the Pope, acting as Christ's vicar, in order to avoid what is considered a greater evil—mixed marriages between Roman Catholics and Protestants; and as a bishop of the Roman Catholic Church, a most able man, stated in his evidence, they are scarcely ever given in Roman Catholic countries. And now I come to the question as it affects the Church of England. If this measures passes, the Church and State will be placed in opposition to each other, for since the Reformation the Church of England has adhered to the prohibited table of degrees, which is sanctioned by the canons, so that if this Bill passes into a law, the Church and her canons being still opposed to the law of the State, a great evil will be inflicted on those conscientious clergymen who will still look upon these marriages as abominable and incestuous, and who will feel themselves bound to refuse to those who contract them the holiest rites of the Church. These circumstances would lead to evils which we should all deprecate, and which, I am sure, have never been contemplated by many hon. Gentlemen who support the Bill in this House. I have dwelt so long upon the religious grounds of the argument, because I feel that they are the grounds on which the question should be decided; and, indeed, I do not know how far I should feel justified—though even here there is much to be said—if I did not believe the divine law forbad these marriages, in forbidding them on merely social grounds. As it is, however, I think the social grounds come with double force as secondary arguments in support of the theological ones, and are of great assistance in guiding us to a right decision. The question, it should be remembered, is whether you will compel a man to marry his sister-in-law, or forbid their marriage altogether. I will take the case of a lady of a pure and delicate mind, whose married sister has died. Now, if she went to live with her brother-in-law, either she must marry him, or else the law must forbid their marriage altogether, for she could not live with the husband of her deceased sister, if any doubt existed as to the possibility of their marriage. Now, a great deal has been said with regard to the condition of the poor, but I am inclined to think that in this, as in many other instances, the case of the poor is quoted to cover men's own individual desires; and our duty ought to be to endeavour by education and every other means in our power to raise the social character of the poor to the standard of the law, rather than to lower the laws to suit their standard, otherwise we shall he making a retrograde movement. Our opponents take different grounds: some maintain that the Levitical law is binding, and some that it is not binding, but that we should rather appeal to the law of nature. Now I wish that those who so often use the word nature, would define exactly and precisely what they mean by it. Is it mere brute instinct, is it prejudice, or is it an earnest feeling arising from a religious and moral education? If it be mere brute instinct, it is scarcely worth attention, as I doubt whether even sisters by blood would be exempted in that case. In the first age of the world, marriages with sisters by blood necessarily took place; and among the heathen nations, and indeed in the civilised state of Athens, it was considered no disgrace for a man to marry his half sister. I believe too, but am not sure, that the old Roman law was the same on that subject. In one of the oldest of poems, the Odyssey, we have a case mentioned of a king who had six sons and six daughters, and who thought it no shame to marry the six sons to the six daughters. Now I merely mention this to show that at that early age no scandal attached to the idea of brothers and sisters marrying, and that there is nothing in the argument as to nature having given us a brute instinct against it. But if nature means the feeling arising from a religious education, I think that it will hold good in the case of the sister-in-law as well as the sister, as persons of pure and refined feelings would instinctively object to both. The proposed measure, too, does not stand by itself. It is, and should be considered, as only one of a class. There are two great principles abroad in the world—the principle of laxity and licentiousness under the specious name of liberty, and the principle of strict obedience. The one may be more fascinating, but the other is better calculated to give a higher tone to our moral nature, to elevate man, and to enable him to approach more nearly to the nature of his Creator. The first is that to which this Bill appertains. I appeal to those hon. Gentlemen whom I have often heard defending the cause of Christianity, and I ask them to strive for Christianity not by words but by actions, and to take care that it be not a fiction but a reality. If we have reason in this country to be proud of, or rather I should say to be thankful to Providence for, the fidelity with which the marriage contract is observed amongst us, and the purity of mind and heart of our countrywomen; let us pause before we take the first yet fatal step in the downward path. The House then will have to decide between these two principles, that of liberty and that of obedience; but let them remember that the one is but the principle of human folly, the other the principle of eternal truth.


begged to compliment the hon. Gentleman who had just addressed the House on the ability he had shown in arguing a very difficult question, and one which it was very painful to discuss. He did not consider the House capable of entertaining the theological argument. Because, if they were to decide that the theological arguments were good at all, they should admit that they were good throughout, and all the political and social arguments involved in the question should be cast out of sight—in fact, the House should erect itself into a court of theological discussion; and if, on the other hand, the question were to be viewed merely in its social and political bearings, they should lay aside the theological. Now, let the House consider the dilemma in which hon. Members would be placed by the discussion of the question in its theological aspect. He himself, for instance, as a member of the Church of England, would be bound to enter into a discussion upon points which were viewed in an entirely different light by those hon. Members who did not belong to the Church of England; and he must either press those views, or not discuss the matter at all. But the history of the Christian Church showed that it admitted of such fluctuations and variety of opinions upon the question of marriage as almost to invalidate its present authority upon the subject. It appeared to him to be very difficult for them to allow themselves to be guided solely by the early Christian Church in the matter. And if, coming to more modern times, they looked to the founders of the reformed religion, hon. Gentlemen would find that the question came forward in a very singular way. It was matter of notoriety that even the question of polygamy was seriously entertained by Luther and Melanct hon. and others of the first reformers, and that decisions were given by some of them upon the subject that would be now considered not only abhorrent to Christian interpretation but to moral sense. The respected layman of the Church of England who had moved the Amendment, regarded the question as absolutely decided upon religious grounds; but he (Mr. Monckton Milnes), upon turning to the blue book, found that the first of those who recommended the issuing of the commission was a bishop of the very Church to which the right hon. Gentleman belonged. He knew that there were many distinguished clergymen of what was called the high church opposed to the principle of the Bill before the House; but Dr. Hook declared that the interests and the morality of society depended upon the legalising of marriage with a deceased wife's sister. He did not wish these arguments to go for more than just what they were worth. But they certainly proved that it was—he would not say presumptuous—but that it was hardly consistent with Christian charity for any man to take upon himself to say that the religious objections to the measure were so great, so plain and palpable, that no man with Christian opinions could support it. Turning from the religious to the moral position of the subject, similar difficulties presented themselves. They did not find any general impression of the absolute criminality of such matrimonial engagements. Whatever might be the opinions of his right hon. Friend the Member for the university of Cambridge as to the direction from which the demand for the relaxation in the law had come, he (Mr. Monckton Milnes) thought he could not but allow that it had not come from any portion of the population of degraded or loose habits of life. It had come from the large body of the middle classes of the country, upon whom the effect of the law had not been to impress them with a sense of the criminality of marriage with a deceased wife's sister. The law had not been such as to induce the people of this country to look upon such alliances as moral offences. Such stringent laws had not the effect of improving the moral tone of society; indeed, he could point to an example of the directly contrary effect of loose legislation in the case of Scotland, where the people were the most strictly moral, whilst their law of marriage was of so loose a character, that, à priori, it might have been expected to have depraved the habits of any population. The law of England having regarded such marriages as those under consideration as voidable, they were not viewed by the people as incestuous; and the very marriages which occasioned that change in the law which was now complained of, had occurred in the very highest classes of society, in those classes which gave the tone to the morals of the country. Such marriages then might occur without occasioning social shame, without being visited by the vengeance of society against evildoers. And the unpleasant results which followed their contraction were merely legal ones. When the alteration in the law took place, the Legislature went only far enough to include the cases of those noble families that were involved, and did not look to the effect upon the great mass of society of absolutely forbidding marriages which the old law permitted; and the consequence was one which, he was happy to say, was very rare in England—the law was habitually disobeyed. Surely it ought to be a matter of grave deliberation in the House whether such a law ought not to be altered. If they had allowed the law to remain as it had previously been, they would have created no grievance whatsoever; but they had made the grievance, and they were now called upon to remove it. Since the introduction of the Bill originally by the Earl of Ellesmere, there had been a gradual, but constant and steady, increase of public opinion in its favour; and that increase was not confined to men, but the opinions of females were known to be also increasing in its favour. And the change had been brought about by various causes. There was scarcely an individual who did not know some instance of great mental anxiety being suffered by some acquaintance, in consequence of the present state of the law. If any stranger (he did not know whether there were any in the House) had been present, and had heard only the speeches of his right hon. Friend and the hon. Gentleman who had spoken last, they might have gone away under the impression that every clergyman of the Church of England was opposed to any change in the law; but, as he had before stated, such was not the case. He had mentioned the bishop, and the vicar of his own borough, who was a man of the most profound piety, and who was a political opponent of his own—and there were many others—so that the question could not stand upon either religious or moral grounds merely. As to its social bearings, they were scarcely capable, in their sphere of life, of fully judging of its effects upon the lower classes. But he hoped they would not allow the complaint to be made, that a Legislature composed of the higher classes of society had shown itself regardless of an evil pressing chiefly upon the middle and lower. He had not heard a single argument adduced in support of the present state of the law, that was not capable of an immediate reply and refutation. They threatened, as one of the probable results of a change in the law, increased immorality in the lower classes of society. But could they show that that immorality did not already exist? They said that a wife's sister could no longer perform those offices of familiar kindly charity in her sister's household which she was now accustomed to perform, if she were a person with whom it would be lawful for the husband to contract a marriage after his wife's death. He could only say in reply, that he believed such a supposition implied a very low and false estimate of the morality of the females of this country. He thought that in the middle and lower classes of the country—cousins, and even more distant relatives, were not regarded as objects merely of the sexual instinct, for they were accustomed frequently to he in habits of the most friendly and familiar intercourse of daily life with their relatives. Even persons who bore no relationship to either party would be found amongst the humbler classes on terms of most intimate friendship, without exciting the least jealousy or remark—on terms that would not be permitted at all amongst the higher classes. He believed the effects of the alteration of the law would be most beneficial, and that by it a great deal of concubinage would be avoided. The Roman Catholics could solve the difficulty by obtaining a dispensation. Why should Protestants be prevented? That moral monarch George III. had no scruple in giving licenses to his Hanoverian subjects to contract such marriages; and the absence of any observation upon the circumstance in this country at the time showed that there was no repugnance to it entertained here. There was one point which, had it not been explained, might have induced him to vote against the Bill, he meant the clause which gave permission to the clergyman to decline performing the ceremony of marriage between parties whom his conscientious scruples forbid him to unite. But on the previous evening the hon. and learned Attorney General stated to the House that every clergyman was bound by law to perform the rite of marriage between any persons demanding it who had been civilly married before. So that if his right hon. and learned Friend had left that portion out of his Bill, any clergyman might be compelled, if it became law, to perform the ceremony, however repugnant to his feelings. He, therefore, could no longer disapprove of the clause which left the clergy free to do as they pleased? Were the whole body of the clergy opposed to such marriages, the Bill would become a nullity. But when a man should be refused by one clergyman he would readily find another who would have no objection to such marriages. One might say to him, "I have conscientious scruples against such matrimonial alliances, but you can go to the Rev. Mr. So-and-So, in another parish, who will have no objection to marry you." He hoped that it might be permitted to him, as a member of the Church of England, conscientiously to support the Bill.


wished to say a few words as to the proceedings of the late commission on this subject. He had read over, he believed, every question and answer in the blue hook, and he still retained his original opinion, that the proceedings of the commission had been of a most onesided character. It had been stated that it was during the progress of its labours that the commission had become convinced of the necessity of the present measure. If such were the case, that impression must have seized their minds at a very early period of the investigation. This was evident by the way in which the witnesses were examined. He did not think it a matter of charge against the commission that they had examined witnesses interested in the passing of such a law as the present; but what he complained of was, that as regarded the social state of the question, the commission had heard only one side. He believed that such was the general impression. Indeed, in an article in the Law Review, the argument against the Bill was summed up by the remark that the blue book was imperfect in many respects, but in none more so than not bearing at its termination the names of "Crowder and Maynard, solicitors for the plaintiff." Look at the way in which the first witness was received, see the manner in which he was cross-examined, and there was no mistaking the feelings and opinions of the cross-examiners. Both sides of the case were heard upon the religious bearing of the question; but the evidence of the social case was, he repeated, got up by the promoters of the Bill. A great deal had been said about the hardship which the present law inflicted upon the children of such marriages. No doubt there was hardship upon them; but there would be no hardship had their parents obeyed the law. Was the House prepared to repeal a law because it was violated, or to alter an Act of Parliament because the children of the delinquents were in some measure visited by the transgression of their parents? But it was said, we ought to alter the law because it had failed. In reply to that he would observe, that the law had not had a fair trial. It might be said, that the law made against sheepstealing had failed; but was that a reason why parties should go about the country, telling the peasantry never to cease their exertions in sheepstealing until the law against it was abolished? Why, would not such a course have the effect of encouraging sheepstealing? It was also urged that marriages of British subjects solemnised abroad, under certain circumstances, were even now legal. Well, then, let there be a short Act passed, declaring all such marriages illegal. There were one or two points in the evidence given before the commission, to which he would allude; and, first, he would refer to that of Mr. Brotherton. He is asked— Did you meet with any cases of marriage within the prohibited degrees of consanguinity?—Several. Did you observe that those marriages were regarded in a different manner, and that the feeling of the people was different with respect to those marriages in cases of consanguinity?—In some cases, but not in others. Do you think that marriages in eases of consanguinity do not meet with general disapprobation?—In many instances they do. Do they bear a large proportion to the marriages in cases of affinity?—No, very small. Did you hear any complaints of the existing law?—A great many complaints. And Mr. Thorburne gives the following evidence:— I may mention one instance more to show the injurious operation of the law in another way. It is a well known case at——, that of a party in very extensive business, a man of wealth, who keeps his carriage, and lives avowedly, in fact, with his deceased wife's sister, whom he would gladly marry, but for the uncertain state of the law. He is much respected, and bears a high character as an excellent man and a good citizen, where be has lived for the last quarter of a century; and, though he is living in open concubinage, his neighbours sympathise with him, and in a manner excuse him because of the restraint of an inexpedient law, he himself openly declaring that he would marry her, and will marry her if the law will permit him. This man, living in a state of concubinage, is called a respectable man. He protested against the application of the term "respectable" to such a person. He feared that this epithet was applied to all men who kept their carriage and paid their weekly bills. He protested against this mercantile phraseology—of which thing they had quite enough in considering commercial questions—being employed in this manner to confound the distinctions between right and wrong. It was stated in the blue book which he held in his hand, that considerable property would be affected by the decision on the question. He trusted the House was not going to decide the question on conveyancing principles. He would remind them that there were many other questions involving a much larger amount of property than the present. Reference had been made to the time when marriages with kindred had been permitted. He believed the first case was when one of the Emperors of Rome married his niece, and then the practice sprang up. He found, from the evidence given before the commission, that Dr. Cox, a dissenting divine, said he had no objection to marriages, except within the prohibited degrees. Now, he thought that this would open the door to many abuses. In the book of Leviticus, half the cases referred to were cases of affinity, and half of consanguinity. He must say, that he thought the clergy would feel themselves placed in an unpleasant position if the Bill passed. He would not, if he were a clergyman, like to see hanging up in his church the words "Thou shalt not marry thy wife's sister," and then to be told that he might do so if he liked. He would assure the House that a strong feeling was springing up on this subject—a feeling originating with men, not of extreme views, but men of thought-fulness and watchfulness, or, as he would term them, men of progress—who would not tolerate any interference with the free actions of the Church. He might be told that this was the penalty of State endowment; but he denied that such was the case. He was anxious not to trespass on the time of the House, as he was aware that many Members were waiting to deliver their opinions on the question, so he would only say, avoiding the theological question, that he believed the Church regarded the degrees of affinity and consanguinity as similar on the simple ground that man and wife were one flesh. He believed this to be a high and holy principle. It might be, perhaps, called mystical, but there were some people who thought any doctrine mystical which was not to be found in Adam Smith or William Nassau Senior, At all events, if the doctrine were mystical, it was scriptural; it was also the doctrine of the Church and the law, and therefore the doctrine which he felt himself called upon to support.


said, he wished to explain the theory upon which dispensations were obtained from the Pope in the cases of marriage between a deceased wife's sister, and between an uncle and niece. The theory of the Roman Catholic Church was, that an inferior could not permit an infraction of a law imposed by a superior; that a priest could not permit an infraction of a law imposed by a bishop; that a bishop could not permit the infraction of a law imposed by the Pope; and that the Pope could permit no infraction of a law imposed by God. The theory was, that the inferior could cause no infraction of the law where a dispensation was given by the superior. Such being the case, he was of opinion that the practice of the Roman Catholic Church was not contrary to the law of God. Having stated that, he would leave the argument on that subject, as well as that in reference to the cases of antiquity which had been cited. He was in favour of the Bill, because he regarded the restriction as unjust to all Roman Catholics who had obtained dispensation from the Pope—because, being conscientiously and properly married, their children were yet illegitimate by the law of the country. He regarded it, also, as an injustice to that great body of Dissenters who framed their acts by their own conscientious interpretation of Scripture, and, from that interpretation, considered that such marriages should be. He thought it unjust, also, to that large portion of the members of the Church of England who in that respect agreed with the Dissenters; and he considered it not unjust to that portion of the Anglican Church who were opposed to the Bill. It was in no way compulsory upon their consciences; it could not compel them to marry; it could not even compel their clergy to marry against their consciences; and in no way would it be unjust to them in any of its consequences. The Bill being passed, they would remain in the position of Roman Catholics and others; they might act according to their own consciences, and respect the canons of their own church, as the Roman Catholics did. He must admit that there was a difference of opinion amongst Roman Catholics, not as to whether this was contrary to the law of God, but as to the propriety of making fresh social arrangements in the matter. He had been informed that in Ireland the feeling was strong against the propriety of these marriages, and he knew that the feeling was divided in this country. Notwithstanding, seeing that it was not against the law of God—seeing the great social evils which arose from the restriction, and believing that there was no comparison between the social advantages and the social disadvantages arising from this cause—he should give the measure his cheerful assent, trusting that the Legislature would feel it their duty to pass it.


regretted that on the present subject he had to differ from the noble Earl who had just addressed the House. Entertaining, as he did, the greatest respect for the opinion of the noble Earl, he regretted to say that he felt it to be his duty to oppose the further progress of the Bill. He thought the Catholic Members of that House had not been fairly dealt with on this question—they had been subjected to a species of canvass—he must say, a most indecent practice. They had each of them been favoured with two or three circulars on that important question, just as if it were a private Bill, and their support was sought by contending parties. That made him fear that the promoters of the measure had some ulterior object in view; and he was rather strengthened in that conjecture by the fact, that although by the Bill a man might marry the sister of a deceased wife, there was not a word about enabling a woman to marry the brother of her deceased husband. It appeared to him that the promoters of the measure were afraid of alarming the prejudices of man, but feared not to tamper with woman. With reference to the opinion which the Catholic hierarchy and clergy of Ireland entertained on the subject, he was permitted by one right rev. Prelate to state his view to the House—taking care, however, to remind the House that the right rev. Prelate spoke only as an individual member of the hierarchy, the other members of whom he had not consulted. He alluded to the Right Rev. Dr. Browne, Bishop of Elphin, who had had the charge of two dioceses; firstly, of Galway, and secondly, of Elphin. That right rev. Prelate had told him that in neither of those dioceses had he ever known a single case of a man marrying the sister of his deceased wife. The right rev. Prelate dreaded the result of a repeal of the Act, which repeal would, in his opinion, act as an incentive and stimulus. The dispensation afforded to enable first cousins to marry, had been attended with this consequence—that whereas such marriages were formerly the exceptional case, they were now the general rule. The Catholic people of Ireland, in his opinion, thought that if the Bill passed, all restrictions would be done away with. He would ask the House what would be the feelings of delicate-minded woman, if the Bill became a law? She would always consider that she was suspected by her married sister; and being placed in so delicate a position, would she, in the event of that sister's decease, act as the mother of her children, when it might be supposed that in performing such a duty she was either looking after a husband, or was being looked after by the widower? As he had been appealed to as a Catholic, he must say, that on the religious part of the question, he had the opinion of the Right Rev. Dr. Browne, and entertaining, as he did, the deepest veneration for that Prelate, he perfectly coincided in his views.


said, he was anxious that this measure should receive the very careful consideration of the House. The Act which it was intended to repeal, had been introduced into the other House without any such clause as that now sought to be defended. It had been introduced for a totally different purpose—to protect marriages liable to be impugned by the institution of legal proceedings, and preventing them from being so assailed beyond a given period after the marriage. This was done, not with any reference to the general interests of society, but for the purpose of protecting particular parties against consequences. In the course of the discussion it was suggested, that it would be better at once to remove the anomalous state of the law; and, instead of allowing marriages then voidable to be avoided within a specific time, to make all such marriages void for the future. Accordingly, the Bill was so passed; in other words, the particular case was protected by the sacrifice of all those who might be found in a similar predicament. When the Bill came to that House, the clause was strongly opposed; but it being near the time for prorogation, it was suggested by the supporters of the Bill, particularly Sir William Follett, who had the charge of it, that the rejection of the clause might endanger its safety in the other House—that the Bill should be passed for the sake of the good it did, and with the understanding that, when the matter was again submitted to the Legislature, this point should be considered as one particularly deserving its notice. Under such circumstances it now came before them, and he at once admitted, that if the position of the right hon. Gentleman the Member for the University of Cambridge was tenable, and that these marriages were prohibited by divine law, there was an end of the question. But this must not be treated as an exclusively theological question. If these marriages were contrary to divine law, let that law be cited; for surely they were as competent to judge of it as any Churchman could be. But there was no such prohibition in the whole range of Scripture. The only verse (Leviticus xviii. 18) which referred to the matter at all was as follows:—"Neither shalt thou take a wife to her sister to vex her beside the other in her lifetime." These were almost the ipsissimus verbis. Well, surely the words "to vex her," coupled with those "in her lifetime," showed that the prohibition related to marriage with two sisters at one and the same time. Such was the interpretation put upon the passage—polygamy being, of course, permitted—by a great number of authorities; while others considered that the command was directed against the divorce of a wife by the husband, in order that he might marry her sister: such a proceeding being one evidently calculated to embitter the life and aggravate the misery of the forsaken wife. Such, then, being the only passage prohibitory of marriage with a wife's sister, and that prohibition extending only to certain circumstances, it actually amounted to a permission to contract such marriages under all other circumstances. Reference had been made to the early councils of the Church upon this matter. It was very true, that from the first time there was any mention of these marriages they were disapproved of. Why? Because the first mention of these marriages took place after Christianity had spread itself into the Roman empire, and when the subjects of the Roman State had become Christian. Amongst the numerous declarations of the Roman law was one which stated, that a person marrying a wife should be held to be connected with that wife's relatives by consanguinity. It, therefore, followed from that, that a man could not marry his wife's sister after the death of his wife. That view was adopted by the early Christians as the law of the land in which they lived. It was notorious to every one that the early fathers of the Church—great as was their virtue—introduced into religion a mistaken and mischievous asceticism, which they carried to a most injurious extent. The early canons of the Church prohibited third marriages absolutely and entirely. The expression was, that a man who would marry a third time was no better than a hog. Chastity was the great and paramount virtue, which seemed to supersede all other obligations moral or religious. Second marriages were discouraged, while third marriages were denounced as an abomination. Had these canons been binding on the Christian world? By no means. Third marriages had been allowed to this day. The canons prohibited second marriages amongst bishops and clergymen under any circumstances. The clergy were also prohibited from marrying widows, or servant maids in their establishments; and if a bishop or priest should chance to be married at the time of the canon being promulgated, he was by no means to increase his family or have any children at all. In the 93rd canon of the Council of Eliharis, they were ordered, Abstinere se a conjugibus suis et non liberos generare. He was not aware whether that canon was still binding on the Christian Church. He believed that clergymen married a second time, and sometimes married widows, and he knew of no class of Her Majesty's subjects who had larger families. That was the state of things at the time of the early councils. He then came to the time of clergy usurpation, when not only second cousins were prohibited from marrying, but even relations in the seventh degree were subject to the prohibition; and in some cases they went to the length of prohibiting marriages within the degrees of consanguinity however remote. Were those things enforced? Most unquestionably not. They were looked upon as simply and purely ecclesiastical discipline. The Catholic Church, even in the days of its strongest assertion of supremacy, always looked upon this as a matter of discipline which might be dispensed with. Even in the early periods of the Church, marriages taking place within those prohibited degrees were never held to be void. They were matters of ecclesiastical penance only. If a man married his deceased wife's sister, both parties were liable to penance of several years, but the marriage was not held to be void. So under the Catholic Church these marriages were only matters of ecclesiastical discipline; and if the parties were only prepared and only willing to seek a dispensation, and were ready to pay the price of it, the marriage was allowed. Then came the period of the Reformation, upon which the right hon. Gentleman the Member for Cambridge placed so much reliance. From a great portion of Europe the doctrine of dispensation was swept away, and these marriages became lawful, and had remained so up to the present moment, over the great bulk of the Protestant population of Europe. Why was that not so in England? Why, for this reason, that at the time of the Reformation there happened to be in this country a licentious and unprincipled monarch, who had become tired of his wife, with whom he had lived for twenty years, and to whom he was united by a dispensation of the Pope. He applied to the Pope for a divorce, but he did not succeed; and then, assisted by the artful Cranmer, to whose rising fortune that was the first stepping-stone, he applied to the various Continental universities; and, by means of bribes, he obtained favourable answers from some, but not from others. He then tried his hand at the two universities in this country, which stood out manfully until they were overcome by intimidation, and silenced by the power of the King. From a servile Parliament—a Parliament pandering to his tyranny and lust—he obtained the celebrated Act of 23rd Henry VIII., declaring these marriages illegal. That Act had remained law to the present time, with the exception of a short interval in the reign of Mary; and the reason it was restored by Elizabeth was, that without it she would be illegitimate, and consequently have no title to the throne. Prom that unholy and polluted source had proceeded the views that English divines had taken of this subject. But then it was said that the English law had made these marriages illegal. But the English law had only made them illegal on condition that legal proceedings should be instituted to set aside such marriage in the lifetime of the parties. Now, he would ask if anybody ever remembered any such proceedings being instituted? Why, no; because it would be deemed most unhandsome, most ungenerous, and somebody near him said most immoral conduct, to endeavour to set aside such a marriage, and to endeavour to bastardise the issue of such marriage. He recollected a case within his own knowledge, where a title was in the family, and the party at the head of the family had the misfortune to lose his first wife, and he married her sister. The son of his next brother was anxious that the family estates and the family honours should descend to him, and he instituted a suit in Doctors' Commons. What was the consequence? His father's and every member of his family, rose with one common sentiment of indignation and disgust, and compelled him, by the exercise of paternal and family authority, to abandon the proceedings. Any one who entered into a marriage of this description was enabled to protect himself by instituting a suit against himself in the ecclesiastical court, as it was not competent for any one to institute a second suit while the first one was pending; and that afforded complete protection against any such proceedings during the lifetime of the parties. The result was, that, practically, these marriages were permitted to exist under the old law. They had altered that state of things, and the alterations, as it appeared to him, had inflicted very great hardships upon a certain class. At the same time, he admitted that all parties were bound to obey the law as it existed. But, on the other hand, he might ask whether it was not a corresponding obligation on the part of those who made the law—whether it was not, according to all sound principles of legislation, the imperative duty of the Legislature not to interfere with the freedom of individual action—not to interfere with the course of human affections, more especially in a matter so intimately connected with the happiness of mankind, except in cases of great and overwhelming necessity, excepting there were benefit to be obtained and mischief to be averted more than commensurate with the evil of their interference? He apprehended that that was a canon of legislation that no one would dissent from. But certain Gentlemen said there was the law as it stood, and they must make the best of it. Those Gentlemen must recollect that laws should not be made arbitrarily, but with a view to the benefit of the subject, and for the good of mankind. He would now approach the consideration of this subject upon its real merits. What was the effect of the law which they had passed upon the social and domestic happiness of those who were subjected to its operation? It was said, that to permit those marriages would be to produce great social mischief; and he understood the argument upon that to be founded upon these grounds—it was said that if they allowed marriages to take place between persons thus nearly connected, the consequence would be great domestic profligacy and immorality—that familiarity in the domestic circle would lead, on the part of the husband—[Mr. GOULBURN: I never made any such statement.]—would lead to an immoral connexion with the wife's sister. If that was not the argument, he knew not what the argument was. That argument appeared to him to be based on a view of the domestic morality of Englishmen and Englishwomen that was perfectly monstrous. Was he to be told that the standard of domestic morality was so low in this country, that the husband could forget the obligation of conjugal fidelity, the obligations of religion, of morality, and of honour—and forget too the sacred duty of hospitality, and that be would, under his own roof, almost in the presence of his own wife, seek to debauch that wife's sister? This appeared to him an unfounded, an unsubstantial calumny. All he could say was this—that if such hypothesis were correct, this law was perfectly nugatory. Let him suppose for a single moment that there were men so lost to all sense of right and wrong as to avail themselves of every opportunity to lay hands on their wives' sisters. Were Englishwomen so lost to all sense of virtue, and principle, and shame, that the sister of a wife would not recoil with horror from the advances of her sister's husband? He could not believe that such cases would be found to exist. But if this were true with regard to the wife's sister, that the husband would make advances towards her, what could they say with respect to other women—the wife's cousin, the wife's friend, his governess, who were more or less within the domestic circle? Would they prohibit marriage with all these? Were the House called upon to speculate, à priori, what was likely to be the consequence of an altered state of the law if they were now disposed to alter it? By no means. The book of experience was open, and they had only to read it to be informed. Throughout the rest of civilised Europe, those marriages at this moment were fully permitted. Throughout all the Catholic countries these marriages were permitted if the parties only obtained a dispensation license from the Church, which was never refused on payment of the necessary fees. Throughout Protestant France the authority of the civil magistrate was required, and never refused, except where improper intercourse had before taken place between the parties. Throughout Protestant Europe the case was the same. In the greater portion of the United States these marriages were not only permitted but sanctioned by public opinion, as well as the authorities of law and of religion. The most eminent jurist of modern times, Professor Storey, said— The prohibition has been extended in England to the marriages between a man and the sister of his deceased wife; but upon what ground of scriptural authority it has been thought very difficult to affirm. In many, and, Indeed, in most of the American States, a different rule prevails. And, he adds, in a note— This is certainly the law in all the New England States. In Virginia the English rule prevails. In Prussia, Saxony, Hanover, Baden, Mecklenburg, Hamburg, Denmark, and in most other of the Protestant States of Europe, the rule prevails that a man may lawfully marry the sister of his former wife. He described those marriages as being deemed in America not only in a civil sense lawful, but "in a moral, religious, and Christian sense lawful, and exceedingly praiseworthy." If those evils which were anticipated from an alteration of the law, had been experienced in other countries, had been experienced in the united States, where the standard of morality as regarded the intercourse of the sexes was quite as high as here, mankind with one universal acclamation would have swept away a law so injurious to the best interests of humanity. But those evils were purely imaginary. The argument founded on them rested on an hypothesis which was contradicted by the united experience of Europe and of America. Until the passing of the 5th and 6th William IV., practically these marriages existed, and existed to a great extent in this country; and did those results of which they were now apprehensive then flow from such marriages? Certainly not. He did not mean to say that there were not solitary and isolated instances of abuse; but what did that prove? There was no crime, however monstrous, that history could not give the name of some man as an example. With regard to the next ground, that the wife would be in a state of constant anxiety lest her sister should supplant her in her husband's affections, why, the sister would be the last person to raise such a feeling. Such cases could only occur where there was horrible domestic treachery, and they were cases purely exceptional. He then came to the third ground—that the sister could not go to live in the household of her sister's husband after the decease of the wife. He admitted, for the purpose of that part of the argument, that no person was so fitted to take charge of the husband's family after the death of his wife: no person was so fit to watch with a mother's fondness over his helpless children, as the sister of his deceased wife. He fully admitted that: but did they suppose that by the law, as it now existed, they would protect the sister, who thus entered the household of her brother-in-law for the purpose of taking charge of his children, against suspicion and insinuation. It was not law that would do that. It would be natural to expect, in the ordinary course of human conduct and human passion, that affection and love would spring up between them. Suppose a man to take a widow, or a married woman separated from her husband, to superintend his house, and the parties to be of an age when the passions are difficult of control, did they suppose that, whatever might be the propriety of their conduct, they would not be liable to suspicion and imputation? The law could not alter human nature. They must not expect it—for if they did, they would be legislating in the dark, and their legislation would only be productive of evil and mischief. They could not protect the parties if the circumstances were such as to lead to suspicion. They could protect them, however, in case of affection springing up between parties from the consequences of their passions, by allowing them to gratify their passions legitimately. He would look at the other side of the picture. Were there no mischiefs to result from the state of the law as now established? To a very great extent the law was inoperative. Whatever was said about the report of the commission which had been laid on the table, certain evidence had been laid before that commission which appeared to him to be of the most valuable character. Very possibly that commission might have accumulated more evidence, and might have produced a thicker blue book than that which they had succeeded in filling. But there were certain facts about which there could be no dispute. In a limited district of England, it appeared that within a few years after the passing of Lord Lyndhurst's Act, there had taken place no less than 1,500 of these marriages with the sister of a deceased wife. The thing was notorious. It was well known that amongst certain classes of society, where persons could afford to pay the expense, they took a trip to the Continent. Altona was the Gretna-green of Europe. Do what they might, they never could bring the feelings in harmony with those laws, because they had taught persons to look upon the matrimonial tie as a matter to be determined by religious sanction; and then if those persons turned to the religious law, and found no prohibition there against these marriages, their consciences were satisfied, they felt the law to be arbitrary, and they violated It to gratify their passions. He agreed, however, in this—that where parties had broken the law, they had not such a ground for coming to that House and asking for an alteration of the law, as those who differed from, and yet observed, the law. But upon whom did the consequences of the present law fall? Not upon those who had married in violation of the law. The consequences fell upon the unfortunate offspring. Upon the unfortunate and innocent children—who, after having been brought up in the belief that they were the legitimate issue of parents united in the bonds of matrimony, might find themselves one day in the painful position of having their rights of legitimacy and inheritance questioned. Was this a situation which the House could contemplate with any degree of satisfaction? The hon. Member for Dorsetshire had said that the lawyers were not to treat this as a question of conveyancing. The lawyers did not desire so to treat it, except indeed, as a question of conveyancing intimately associated with the happiness of families and the interests of children. If children were to be deprived of their paternal inheritance because of this law, confusion and misery were introduced into families. Turn to the cases in which the law had been obeyed—so far, at least, that marriage had not taken place. There were many who obeyed the law, and at the same time observed the precepts of morality, and abstained from all intercourse; but there were cases of another kind. Inasmuch as the House were dealing with a passion so intimately connected with human happiness, they ought to be chary and kindly, to act with sympathy and regard, and not trample lightly or unnecessarily on those affections upon which rested the whole fabric of human happiness. But he would pass that by, and come to the consideration of that case in which the law was observed, and marriage did not take place, but concubinage did take place. Within a given time, and in a given district, there were 1,500 cases of marriage in direct contravention of the Act 5th and 6th William IV. There were, on the other hand, 88 cases in which the law had been so far observed that no marriage had taken place. Of those 88 cases there were no fewer than 32 in which the parties were now living in a state of open and notorious concubinage. Now, he contended that these 32 cases were owing to the law. It had been said that these were cases in the lower conditions and grades of society, where that fine moral feeling inducing persons to abstain from overt acts of immorality was not to be found. That argument would not apply, inasmuch as these cases had been ascertained to be those of persons who were willing and desirous to marry if the law would have permitted them. Then he did maintain that these cases were the result and consequence of the law, and that the principle involved in them must be taken as one of the grounds on which the law ought to he repealed. But it was said, that persons were bound to obey the law, and bound also to obey the precepts of morality. But they, as legislators, were bound, too, not to throw stumbling-blocks in the way of those persons. Here he would again turn to his favourite authority—Jeremy Taylor—and upon this point he found that the views of that great man, as a bishop and a divine, corresponded with his own. The bishop was discussing the question of the marriage of cousins-german; his language was perfectly applicable, mutatis mutandis, to the present case, and he used the same argument which he (Mr. Cockburn) was anxious to enforce. Adverting to the suggestion that it were well if cousins-german did not marry, because of the dangerous consequences which might ensue by reason of their usual familiarity, converse, and natural kindness; it being too ready for natural love to degenerate into lust; that great divine said— I answer, that, therefore, let them marry, as the remedy. For it were a hard thing that cousins, who do converse and are apt to love, should by men be forbidden to marry, when by God they are not. … For brothers and sisters, where the danger is still greater, God hath put a bar of positive law, and nature hath put the bar of a natural reason and congruity, and the laws of all mankind have put a bar of public honesty and penalties, and all these are sufficient to secure them against the temptation. … It were good, if standing in the measures of the Divine law, we should lay a snare for no man's foot by putting fetters upon his liberty, without just cause, but not without great danger. Now, for "cousins" in this passage, he (Mr. Cockburn) would read "brothers and sisters-in-law" who were in the same familar intercourse, and in the same way were apt to love, and why should they be forbidden by man to marry when by God they were not? He (Mr. Cockburn) appealed to the House whether in this law of prohibition they had not done this, and laid a snare for the foot of the unwary? Well, it was said that these cases of concubinage were among the poorest classes; and why was it so? Because a poor man was placed, on losing his wife, in a very different position from a rich man. The poor man could obtain no assistance in bringing up his children, and nearly always had recourse to the sister of his deceased wife. If he was prohibited from marrying her, what was the consequence? The social familiarity and converse between the parties engendered that attachment and love to which the great divine just quoted referred. Those feelings being engendered, the parties would gratify them in a legitimate mode if the doors of the church were not shut against them. That was the real state of the case, and there could be no doubt that the present state of the law produced great misfortune and injustice. In some cases the law was observed at the expense of suffering; in others it was totally disregarded and violated; and in others parties were exposed to the danger of a connexion which they would gladly and willingly avoid if the door of matrimony were but left open to them. He owned that, strong as were his sentiments in respect to the parties now disallowed from entering into the marriage contract, there were others concerning whom he had far higher feelings. He alluded to the children. Take the case of young and helpless children deprived of a mother's care and affection. If the sister of the deceased wife were shut out from becoming the partner of the father, these children were deprived also of the person who, of all other human beings, was the best constituted and adapted to act as a substitute for the mother. She was already, as it were, half a mother to them from her very position; and even the law regarded her in the place of a parent. The children, who would have shrunk from a stranger, turned with affection towards the sister of their mother. All those dangers and evils and that unhappiness which so frequently resulted from the introduction of stepmothers into families, such as the disaffection of the children, were mitigated, if not removed, by the introduction of an aunt in the place of a mother. The children ought not to be deprived by the Legislature of such an advantage as this. It had been argued that the effect of altering the law would be to arouse in the minds of wives apprehension and alarm during their lives. This view he deemed to be purely imaginary and hypothetical; and against it he would ask the House to imagine the case of a dying mother leaving young and helpless children. Did they believe that the pang of separation, the anguish of leaving her children, would not be assuaged were she but conscious that her place would be filled by one who, from her affection to those children, would be a mother to them when their mother was gone? It appeared to him that, by prohibiting such a marriage, the Legislature would be stopping the source of benefit and intense happiness to children who had unhappily been left young, without a mother's care and protection. He must apologise for troubling the House at so great a length; but he had been led by remarks which had fallen from his predecessors in the debate to a more elaborate treatment than he had originally intended upon a subject which he considered of the deepest interest and importance to all classes of society. He should give his cordial support to the second reading of the Bill.


* I feel that it is at once an advantage and a disadvantage to follow the hon. and learned Member for Southampton in this debate—an advantage to have the argument against me so clearly stated, and a disadvantage to be placed in contrast with a display of eloquence and ability which has excited my admiration, as it must have done that of the House. There are some points on which I have the satisfaction of agreeing with the hon. and learned Member. I agree that we cannot look with indifference upon the fact (if it be the fact) that a law of this nature is extensively violated in the country; and if there were no principle to which the law could be referred, and for the sake of which it ought to be maintained, I should not feel able to defend it, even against so imperfect and one-sided a case as is made by this report. Beyond all question, if there were 1,500 of the Queen's subjects deprived of the power of marrying according to their inclinations by a purely arbitrary Act of the Legislature, I should be one of the first to say that Act ought to be repealed. More than this, I concur fully in the view taken by my hon. Friend the Member for Herefordshire, who has said, that he could not take a strong course in opposition to this Bill, for reasons merely of convenience and expediency, if the law were really not well founded upon the law

*From a speech published by Parker, Oxford.

of God. It is because I am convinced that the law, as it stands, and always has stood in this country, is not arbitrary, and does not rest solely on reasons of convenience and expediency, but is established on the highest source of moral obligation, the will of God revealed to man; it is, therefore, that I am decidedly opposed to the present Bill. And while I take my stand upon this ground (a ground hitherto common to every speaker on this side of the question), it is fully open to me to insist upon the inestimable privileges and advantages resulting to society from that law, and of which we should all be deprived contrary (as we believe) to the divine appointment, if that law were repealed.

The hon. and learned Gentleman, the Member for Southampton, has thrown out a challenge to those who oppose this Bill to go to the Word of God, to cite texts from Scripture, in order to prove that marriage with a wife's sister is really prohibited by the divine law. I cannot feel surprised that those who preceded me should have shrunk from this line of argument—not on account of any inability on their part to enter into it, or from any doubt of the soundness of their position, but on account of the great difficulty of arguing upon such a subject with propriety in this assembly. For my own part, I enter into it most unwillingly; but I do not think myself at liberty to decline the challenge of the hon. and learned Gentleman. The law which we defend is altogether founded upon the assumption (expressed both in the canon of 1603 and in the statutes of King Henry VIII.) that it correctly represents the prohibitions of the divine law, as laid down in the book of Leviticus. The hon. and learned Gentleman, therefore, has a right, if he pleases, to call for an explanation of the grounds on which it is held that this prohibition is contained in the book of Leviticus. And this is another reason why the advocates of this law cannot safely take their stand upon merely social considerations; because, unquestionably, those who made the law have placed its foundations upon other and higher ground. What they meant to do certainly was, to discard all merely human prohibitions, and to reduce the table of prohibited marriages within the exact limits which they found in the divine law. Feeling, therefore, the delicacy and difficulty of the subject, and my own inadequacy to the task, I must, for a short time, ask the attention of the House while I endeavour to place before them the real state of the argument from Scripture.

Now first, to introduce this argument, let us look at the table of prohibited degrees. That table contains thirty degrees in all, within which marriage is prohibited; with only two of which the right hon. and learned Member for Bute now proposes to interfere. Of those thirty degrees, only fourteen are prohibited in express terms in the book of Leviticus; the intermarriages of father and daughter, uncle and niece, and others more remote, both in consanguinity and in affinity, are among those not in terms forbidden; and there are, therefore, not less than sixteen degrees, a majority of the whole table, including several of near consanguinity, which must be abandoned, if those who support the prohibitions are not permitted to argue from something more than the naked, dry letter of Scripture—if they are not allowed to collect one prohibition from another, to construct a consistent system upon the principles indicated by the instances given in Scripture, and to look to the general tenor and effect of the whole passage of Scripture in which the prohibitions are found. I would ask the House to approach this argument, not in the spirit of sophistry— I cannot find it; 'tis not in the bond;

but in the spirit of those who wish bonâ fide to look to the law of God, fairly to collect its meaning, and to submit themselves to it fully and implicitly. Before referring to any authorities, I will deal with the text; and the House will judge whether the argument, on these principles, is not at least sufficiently probable to make them pause before they depart from a rule of interpretation which has been recognised in the legislation of all Christendom down to the present time.

The first point to be considered is, whether the Levitical prohibitions are applicable as a rule for Christians, or only for Jews. The right hon. and learned Gentleman does not (as I understand) dispute that they are generally binding upon Christians as part of the moral law; his Bill, certainly, does not propose so extensive an alteration of the law as would follow from a denial of this principle, though it is denied by some of his witnesses, and by some of his advocates in this House. As the prohibitions themselves stand in the Book of Leviticus, this point would seem to be free from doubt, because they are introduced by a preamble referring to the practices of heathen nations, which the Jews were not to follow; and the instances of prohibited marriage, together with a few other practices of a different kind, having been enumerated, all these things are spoken of as abominations and defilements, and causes of penal judgments, not in the Jews, but in the Gentile nations who were not subject to the peculiar Jewish law. Assuming, then, that the prohibitions are moral, and of general application, what are they? They begin with a general principle thus laid down:—" None of you shall approach to any that is near of kin to him:" and the question is, where that principle is to be limited? A number of cases are enumerated, some of consanguinity, some of affinity, showing that affinity is here clearly included in the notion of kindred; and among the enumerated cases there is an express general prohibition of marriage with a brother's wife. The enumerated cases do not exhaust more than half the instances which the common reason of mankind perceives to fall within the same principle; the common reason of mankind requires the application under such circumstances of these principles, that the more remote includes the nearer, that equal implies equal, and that the rule laid down as to a man shall govern the converse case of a woman, where the degree of propinquity is exactly the same, and nothing but the sex is different. On these principles of interpretation our table of prohibited degrees is founded; and marriage with a wife's sister is held to be prohibited, because it is the exact converse of the marriage, expressly prohibited, with a husband's brother. But the argument from the text of Scripture does not stop here. In the 17th verse of the chapter, a man is expressly forbidden to marry "a woman and her daughter," or to take "her son's daughter or her daughter's daughter;" because "they are her near kinswomen; it is wickedness." It is wickedness, therefore, to marry the near kinswoman of a wife; and, for that reason only, marriages with a wife's mother, daughter, or granddaughter (none of which marriages the right hon. and learned Gentleman proposes to legalise), are forbidden. But is not a wife's sister a near kinswoman? Does not the common sense of mankind answer that question? Or, if it must be strictly proved that a sister is a near kinswoman in the sense of this passage, look at the 12th and 13th verses, where marriage with a father's sister, or a mother's sister, is prohibited, "because she is thy father's" (or thy mother's) "near kinswoman." If the father's sister is the father's near kinswoman, the wife's sister is the near kinswoman of the wife; and if it be "wickedness" to marry the wife's near kinswoman (as the 17th verse expressly says it is), how can it be otherwise than wickedness to marry the wife's sister?

If the passage had ended here, I cannot think any logical reasoner, or any serious Christian, could have entertained a moment's doubt that the prohibitions of this chapter extend to "the case of a deceased's wife's sister. But it is said that the next verse (the 18th) is in these terms:—"Neither shalt thou take a wife to her sister, to vex her, beside the other, in her lifetime;" and the argument is, that in this verse the prohibition of marriage with a wife's sister is limited to the wife's lifetime, and that permission to marry a wife's sister after her death is, therefore, implied. I pause for a moment to notice the very unfair way in which it has been continually represented, that the argument for the prohibition rests upon this verse. The fact is precisely the contrary:—it is upon this verse, and upon this translation of it, and upon this inference from the verse so translated, that the argument against the prohibition entirely and exclusively rests. Take this verse away, and, as I have already shown, this prohibition must of necessity be inferred from the unambiguous language of the previous verses. Before, therefore, we suffer that conclusion to be shaken by any inference from this 18th verse, as it stands translated in the text of our English Bibles, it is not immaterial to inquire whether that translation is certainly correct and free from doubt. When the argument from that verse was lately insisted upon before the Court of Queen's Bench, by parties who then sought to persuade that Court that marriage with a wife's sister was not prohibited by the existing law, Lord Chief Justice Denman made these pertinent observations:— If I am to be the judge to pass a judgment upon the meaning of the Scriptures, am I bound by any particular translation of them? That is one of the stumbling-blocks at the very threshold of such an inquiry, and we have witnessed the effect of it upon the present occasion. Six different interpretations have been put upon the text of Scripture, as it presents itself to us in the Old Testament.

Six different interpretations had been put upon the 18th verse in the discussion before the court of law. I do not, however, propose to detain the House by referring to more than one of them; and I refer to that because it is an interpretation resting, not on any private or conjectural criticism, but on the authority of the translators of the English Bible themselves. Those translators have themselves told us in the margin that there is room for doubting the accuracy of the version which they have adopted in the text; they have warned us not to rely upon inferences drawn merely from that translation, by telling us in the margin that the verse may with equal propriety be rendered, "Thou shalt not take one wife to another, to vex her, in her lifetime." Adopt that reading, and the verse ceases to bear upon the question now before the House; it refers to the subject of polygamy, and not of incest; and is a prohibition of polygamy under circumstances which tend to the vexation or infraction of the rights of the first wife. That this is the real meaning of the verse was the opinion of Schleusner and of other very considerable Hebrew scholars; and the verse so rendered would correspond in sense with another precept which we find in the hook of Exodus, chap. xxi. ver. 10, concerning a maid servant married by her master or her master's son: "If he take him another wife, her food, her raiment, and her duty of marriage, shall he not diminish." The form of expression with which the verse is introduced, and the great preponderance of arguments from probability, appear also to favour this sense; for the reading even in the received text is not, "Thou shalt not take her sister to thy wife," but, "Thou shalt not take a wife to her sister;" and if polygamy were allowed in all other cases, and marriage with a wife's sister were allowed after her death, it would be difficult to conceive any consistent and satisfactory reason why, among these moral precepts of universal obligation, a marriage with two sisters at once, like that of the patriarch Jacob, should be specially forbidden. Without, therefore, troubling the House with any philological disquisition, I think I have at least stated sufficient ground for the conclusion that a prohibition, clearly and certainly collected from the first seventeen verses of this chapter, cannot safely or reasonably be set aside in favour of an inference drawn from the letter of the 18th verse as it stands translated in the text of the English Bible, but which inference cannot be drawn either from the letter or the spirit of the same verse as it is translated in the margin—an inference which the translators themselves did not draw, because they unquestionably held the Levitical prohibitions to be correctly expounded by the table of prohibited degrees.

There is one argument more used by the hon. and learned Member for Southampton, and by many others, on this part of the subject, which I must touch slightly, and then I have done. It has been said that there is in the book of Deuteronomy a special injunction that, under certain circumstances, a man should marry his brother's widow; and it is argued that, reasoning from this case to the converse, it must be equally lawful for a man to marry his wife's sister. This argument concedes that we may properly reason from the case of the brother's widow to the converse; and the hon. learned Member for Southampton does not appear to perceive that, by doing so, he concedes the whole question. For in the 16th verse of the 18th chapter of Leviticus there is a direct general prohibition of marriage with a brother's wife; and in the 20th chapter such a marriage is said to be "an unclean thing;" and accordingly the right hon. and learned Gentleman the Member for Bute does not propose to legalise that marriage, or disturb that prohibition; and yet the hon. and learned Member for Southampton asks the House to conclude that it is not incest to marry a wife's sister because marriage with a brother's widow, which you now regard, and—if this Bill passes-will still regard, as incestuous, was, under certain particular circumstances, enjoined to the Jews; not permitted by way of relaxation, but enjoined by a very special commandment, forming part of their peculiar law of inheritance. We cannot enter into the reasons why certain things which appear to us contrary to the general principles of morality were permitted under the Jewish dispensation, or were enjoined upon the Jews under particular circumstances. We cannot judge why the world was originally so created that in the necessity of things brothers and sisters must have married in the earliest generations; but we entertain no doubt that the Divine Author of the world had in view the interests of His creatures and the social necessities of mankind in different ages; and what we ought now to do is to look at the morality laid down as applicable to our own case, and by that abide. The general rule among us, that a woman may not marry her husband's brother, is plainly established; and, unless the argument from the converse is to be excluded, it follows, as a necessary consequence, that a man may not marry the sister of his wife.

I have now done with this difficult and delicate part of the subject, on which it has been painful to me to speak at all, and on which I am grateful for having been heard with so much patience. I now come to consider the assistance which we receive, with respect to the scriptural argument, from the judgment and authority of the Christian Church down to the present time. The Jewish authority, which has been called in to settle the question, I set aside; if I were a Jew it might weigh with me; or if Christians were taught in the New Testament to look with respect to the Jews as interpreters of their own law. But when I find that in the New Testament the Jewish glosses and traditions are always spoken of in language of reprobation and warning—when I find it stated that the Scribes and Pharisees "made the word of God of none effect through their traditions"—I cannot for a moment admit the authority of their interpretation in a case where I find them opposed to the general judgment of the Christian Church.

Now there is, no doubt, some difficulty in investigating the opinions held in very ancient times by the Christian Church upon almost all subjects, on account both of the paucity of the records and literature of those times, and of the necessity that questions should be raised, in order to give occasion for authoritative judgments concerning them. There is a further difficulty introduced into the present question from the circumstance that the Church, from an early period, added of its own authority many prohibitions, not now recognised in this country, to those contained in the Levitical law; which, of course, creates a difficulty in showing how, in those very ancient times, the line which we desire to draw would have been drawn. But some things are certain; and, first, it is certain that no recorded instance can be produced of any marriage with a wife's sister permitted in the Christian Church before the end of the fifteenth century. It is also certain that such marriages were, down to that period, never mentioned, except to be reprobated, and were repeatedly, and in every part of Christendom, condemned and prohibited by canons, councils, and individual fathers of the Church. In the fourth century St. Basil was consulted on the subject, and expressed himself horror-struck at hearing such a question raised. He did not hesitate to lay it down that this case was within the true sense of the Levitical prohibitions; and he referred to the uniform tradition of the Church as opposed to such a connexion. At a later period, and almost till the time of the Reformation, a distinction was made and recognised by popes, by canonists, and by leading divines among the schoolmen, between the Levitical prohibitions and those other prohibitions superadded to them by ecclesiastical authority; within the latter only it was held that the pope had a dispensing power, and as to these the practice of dispensation did in fact prevail; but the Levitical prohibitions were held to be indispensable; it was not the practice of the popes to dispense with them, and it was then considered to be beyond the power of any pope to do so. In the evidence of Dr. Pusey, at pages 43–51 of the book before the House, references will be found to the works of Aquinas, and many other very learned men, who always insisted on this distinction; and those who did so agreed in referring the particular case of marriage with a wife's sister to the class of marriages prohibited by the divine law, and not to the class of prohibitions by ecclesiastical authority. Dr. Wiseman himself, though not holding the Levitical degrees, as such, to be binding on the Church of Rome, or indispensable, appears clearly to think the case of a wife's sister included in the Levitical prohibitions. When asked by the commissioners, whether he thinks marriages between a man and the sister or niece of his deceased wife "in any way prohibited by, or contrary to, Holy Writ;" and "what passage there is in Holy Writ which in any way prohibits such marriages;" he says, "Such marriages are disapproved of in the Mosaic law;" and, "The 18th chapter of Leviticus is the one in which the prohibited degrees are enumerated, and that of the widow of a deceased brother seems to be mentioned." All Christian authority, therefore, down to the first dispensation given in this degree, was in favour of the doctrine, that marriage with a wife's sister was prohibited by the Levitical law. And by whom was that first dispensation given? By Pope Alexander VI., the infamous Borgia, who, if history has not done him most grievous wrong, was stained in his own person with incest of the deepest dye, and almost every other crime. He was the first man to permit a marriage of this description in the Christian Church; and only one other dispensation in the like degree was granted before the Reformation, and that not in the case of a wife's sister, but in the case of a brother's wife. This was the celebrated dispensation granted to King Henry VIII. by Pope Julius II.—a pontiff not indeed so stained with profligacy as Alexander VI., but far more celebrated for his military and political genius than for any qualifications as a divine. And so the question stood, until the validity of this very dispensation was brought under the judgment of Christendom in the case of King Henry VIII.'s divorce; and then the Reformation followed.

Now, how did the Reformation pronounce upon this question? I shall be able to show that, by the unanimous voice of the Reformation, at home and abroad, the marriages which the right hon. and learned Gentleman proposes to legalise were pronounced to be within the Levitical prohibitions; and, for that reason, incestuous and unlawful. But, first, I must be allowed to express my surprise at the attack which we have heard this night from the hon. and learned Member for Southampton upon the characters and motives of those illustrious reformers who were most instrumental in defining the civil and ecclesiastical law of England on this subject. It has been said by the hon. and learned Member, that when Cranmer, and Ridley, and Hooper, and Latimer, laid down the doctrine that marriage with a wife's sister was plainly prohibited and detested by the law of God, they did so merely for reasons of political expediency and courtly subservience; because King Henry VIII., to gratify his passions, had repudiated his marriage with his brother's widow; and that, when Archbishop Parker and the Convocation of 1603 affirmed the degress expressed in Parker's Table to be prohibited by the law of God, they did so merely because Queen Elizabeth's legitimacy, and her title to the throne, depended on the invalidity of her father's marriage with Queen Katharine. In other words, that men, whose names I did not expect to have heard mentioned in any numerous assembly of Englishmen without veneration—that Cranmer, Ridley, Latimer, and Hooper, who died at the stake rather than renounce their religious belief under Queen Mary—that Parker, whom those most attached to the principles of the Reformation in the Church of England now delight to honour, distinguishing by his name the society which they have formed for the revival of the literature of that period—that the translators of the Bible, who were parties to the Convocation of 1603, and Jewell, the great apologist of the Reformed Church of England before the world, did, on repeated occasions, when dealing with this momentous question, when professing to expound the law of God on the subject of marriage in the name of the Church of England, so as to guide and bind her members for all future time—basely dissemble with God and man, and teach, from motives of secular policy, a doctrine which they did not, in their con sciences, believe to be true. Sir, I am satisfied that the House would never be moved by such imputations upon such men, even if it were not easy, as it is, to prove their futility. But the House has heard this evening a letter of Archbishop Cranmer read by the right hon. Gentleman the Member for the University of Cambridge, from which it appears that, when Henry VIII. used all his influence with Cranmer to sanction the marriage of one of his favourites with a deceased wife's sister, the archbishop refused the king's request, expressly on the ground that such a marriage was contrary to the law of God. And as for the King's own marriage with Queen Katharine, the hon. and learned Gentleman has spoken as if that were a marriage so clearly lawful, that nothing but an unworthy compliance with the King's passions could have induced the Reformers to question it; when, in point of fact, it was a marriage with a brother's widow—a marriage until then unknown in Christendom, which, according to the prevailing doctrine of the best canonists and schoolmen, down to that time, not even the Pope's dispensation could legalise—a marriage which the right hon. and learned Member for Bute does not now propose to legalise in this country, which the author of this Bill admits to be incestuous and prohibited by the divine law. So it comes to this, that the whole authority of the Church of England as to marriage with a wife's sister is to be set at nought, the characters of the reformers are to be vilified, and their names branded with reproach, because you say they had political reasons for prohibiting marriage with a husband's brother, while you yourselves acknowledge the correctness of their decision on that very point, and confess your obligation to prohibit that very marriage, not on political but on religious grounds.

Sir, I shall not weary the House by going again over the proofs so abundantly given by the right hon. Gentleman the Member for the university of Cambridge, that the voice of the Reformation in England was clear and express upon this question. The object of the Reformation in this particular was to bring back the law of prohibited degrees to the exact standard of the Book of Leviticus; to retrench and sweep away all the other prohibitions introduced by ecclesiastical authority, and to adhere to those which were expressed, or contained, by necessary inference, in the Word of God. The table of prohibited degrees, which the right hon. Mover of this Bill now proposes to alter, expresses the deliberate and often-repeated judgment of the Church of England as to the proper structure of a marriage code reformed upon this principle, and, therefore, as to the true interpretation of the Levitieal law.

But what were the opinions of other Reformers, and other reformed Churches, remote from the influence of such motives as those imputed to Cranmer? First, let us look to Scotland, to the Presbyterian Church of Scotland, whose Confession of Faith was framed under circumstances which could not possibly be affected by the question either of Henry the Eighth's marriage, or of Queen Elizabeth's legitimacy. I will take the doctrine of their Confession of Faith on this subject from the highest authority, from a petition of the ministers and elders of the Established Church of Scotland, met in the Commission of the General Assembly, which has been lately laid on the table of the House, against this Bill. They state that— As ministers and elders of the Establislied Church of Scotland, they feel aggrieved by this proposal; that, according to the constitution of the Church of Scotland, ratified by Act of Parliament and guaranteed in the integrity thereof by the articles of Union, they are expressly forbidden to recognise the marriages contemplated by this measure, and, on the contrary, are required and bound to deal with such marriages as incestuous connexions, it having been declared in the Confession of Faith of the Church, ratified by law, chap. xxiv. sec. 4, that 'the man may not marry any of his wife's kindred nearer in blood than he may of his own, nor the woman of her husband's kindred nearer in blood than of her own.

The Reformation, therefore, throughout the British islands was clearly unanimous upon this point. But the hon. and learned Member for Southampton referred to the practice of foreign Protestant States. What, then, is the case in Switzerland, the country of Calvin? Why, throughout Protestant Switzerland the prohibition of marriage with a deceased wife's sister was retained at the time of the Reformation as one of the prohibitions imposed by the divine law; and it is still prohibited; and to this day no dispensation for such a marriage can be obtained in any of the Protestant cantons. What was the case in Germany? I am content to take the facts as to Germany from the evidence of Mr. Bach, the only witness examined as to the law of foreign States before the right hon. and learned Gentleman's commission. In reply to question 989— In Protestant Germany, what are the limits within which a dispensation is necessary for a marriage, so as to make it free from objection?

Mr. Bach said— The Levitieal law, as the revealed law by the Divine dispensation, being the foundation of the canon law of the Church of Rome, as regards the prohibited degrees of marriages: the latter law gradually underwent those modifications which the reformed religion required, and is now called the Protestant ecclesiastical law, though the canon law of Rome has not been altogether abrogated in Protestant Germany; and the reformed divines, in advising the establishment of consistorial courts to supply episcopal jurisdiction, were particularly anxious to uphold the authority of the Church in matters relating to marriage. Where the secular law has not interfered in modern times, as, for instance, in Prussia, marriages in those degrees which are not prohibited by the Protestant ecclesiastical law, of which the Levitieal law remains the groundwork, do not, of course, require dispensation, such as marringes with a first cousin.

That is to say, by the Protestant ecclesiastical law of Germany, established at the time of the Reformation, all marriages were left free to be solemnised without any dispensation, except those which were held to be prohibited by the Levitieal law; but marriages within the Levitieal degrees were prohibited, and could only be solemnised by special dispensation; the practice of dispensation within certain of those degrees (sometimes by royal and sometimes by ecclesiastical authority) being retained throughout Germany till the year 1791, and to this day in all parts of Protestant Germany except Prussia. The question is, whether by the law of Protestant Germany marriage with a deceased wife's sister was held to be within the Levitieal prohibitions? and the test is, whether it was allowed to be solemnised without a dispensation? Now, such a marriage was not allowed to be solemnised without a dispensation; it was, therefore, held to be prohibited by the Levitical law. It was placed upon the same footing with marriages between a woman and her husband's brother, or an uncle and his niece, both of which were prohibited, but dispensable, marriages. At this day no such marriage can be solemnised without a dispensation in any part of Germany except Prussia; and in Prussia it could not be solemnised without a dispensation, till the general abolition in that country of all dispensable prohibitions in 1791. In Holland the same prohibitions, founded on the same principle and accompanied by the same practice of dispensation, also prevail; and the result, therefore, is, that by the clear unanimous judgment of the whole Protestant Reformation, the particular species of marriage now under discussion was held to be included within the Levitical prohibitions. There might be private individuals, from time to time and in different countries, who dissented from this judgment; but the general voice of Christendom was everywhere against them; and the exceptions to the rule were not more numerous nor of greater weight than must always be found on all questions capable of controversy: and since the times of the Reformation, all the divines of the greatest note in England, who have spoken upon the subject (I do not mean living men), have expressed their individual concurrence in this judgment of the Church. Jewell has been already quoted by the right hon. Gentleman the Member for Cambridge University. Hammond is of the same opinion, so is Bishop Patrick, so is Matthew Henry, the great nonconformist commentator, so is Thomas Scott, a writer of the highest authority among the modern evangelical clergy.

But the hon. and learned Member for Southampton has referred to one authority which he considers greater than all these—to Bishop Jeremy Taylor, "that great bishop and divine," to whose writings the hon. and learned Member is so much addicted that he calls him "his favourite authority;" and he flatters himself that, upon this point, the views of that great man correspond with his own. In the passage which the hon. and learned Member read to the House, Bishop Taylor argues against the prohibition of marriages between first cousins; and the hon. and learned Member boldly transferred that argument to the present case of marriage with a deceased wife's sister. Fortunately, however, we are not left to make any such inference as to the opinion of Bishop Taylor on the particular question before the House. There is another passage in the same work, directly in point, which the hon. and learned Gentleman did not read; but I will supply the omission. The bishop is discussing the moaning and extent of the terms "near of kin," in the 6th verse of the 18th chapter of Leviticus:— Hemingius," he says, "gives a rule for this as near as can be drawn from the words and the thing: 'Propinquitas carnis,' saith he, 'quœ me sine intervallo attingit.' That is, 'She that is next to me, none intervening between the stock and nie;' that is, the propinquity or nearness of my flesh above me is my mother, below me is my daughter, on the side is my sister; this is all, with this addition that these are not to be uncovered for thy own sake; thy own immediate relations they are; all else which are forbidden, are forbidden for the sake of these; for my mother's or my father's, my son's or my daughter's, my brother's or my sister's sake. Only reckon the accounts of affinity to be the same; 'Affinitates namque cum extraneis novas pariunt conjunctines hominum, non minores illis quœe sanguine vene-runt,' said Philo; 'Affinity makes conjunctions and relations equal to those of consanguinity;' and, therefore, thou must not uncover that nakedness which is thine own in another person of blood or affinity, or else is thy father's or thy mother's, thy brother's or thy sister's, thy son's or thy daughter's nakedness. This is all that can be pretended to be forbidden by virtue of these words near of kin, or the nearness of thy flesh.

Here, therefore, the hon. and learned Gentleman's own favourite authority lays it down as the true rule for interpreting the 18th chapter of Leviticus, that all degrees which are forbidden in consanguinity are also forbidden in affinity; a rule which places marriage with a wife's sister upon the same footing as marriage with a sister by blood.

Such are the foundations among us of the law which it is now proposed to repeal; and I will next consider the arguments drawn from the change made by Lord Lyndhurst's Act in 1835.

A great deal has been said about Lord Lyndhurst's Act, as if it dealt with the particular class of marriages which it is now proposed to legalise in a different manner from other marriages within the prohibited degrees; and it is insisted, that certain marriages of this kind were rendered valid by this Act, and that it is, therefore, a legislative recognition of the propriety of those marriages in a moral and religious point of view; and much has been urged as to the private and personal motives which are alleged to have led to the introduction of that measure. Now I know nothing of Lord Lyndhurst's motives or of the motives of any other person; but when I look to the Act itself, and to the state of the law which preceded it, I find there no ground whatever for any of these observations. Upon this point I would adopt some very just remarks made by Mr. Justice Coleridge, in the case of Chad-wick, lately before the Court of Queen's Bench. That learned Judge said— It seemed to me, I own, to be a little fallacious to direct our attention to the shifting and tergiversation of the Legislature, with regard to this or that particular marriage, for the establishing or the annulling which great political interests were at work, and to say that on that account God's law had been pronounced different ways in the course of those different statutes. If the statutes themselves are looked into, they are not open to that remark at all. It will be found that whenever they lay down the law generally, they lay it down with great uniformity, and with direct reference to the Levitical degrees.

Upon the face of Lord Lyndhurst's Act, there is no trace of a distinction between the marriages which the right hon. and learned Gentleman has taken under his patronage, and marriage within any other prohibited degrees of affinity; there is not the least indication of a purpose to alter either the principle or the extent of the former legal prohibitions; the principal object and effect of that Act is to enforce all those prohibitions in a more stringent and summary way for the future. The previous state of the law was this. All marriages within the prohibited degrees were alike unlawful; and in a uniform course of decisions, the courts, both civil and ecclesiastical, had held that the same rule applied to marriages with a deceased wife's sister as to any other prohibited marriage. But these prohibitions did not enforce themselves. A marriage contrary to any one of them was a bad marriage, and when questioned before the proper tribunal, was pronounced to have been always bad and void from the beginning: but the ecclesiastical courts had the only jurisdiction over such questions, and no man was at liberty to treat a marriage solemnised de facto in the face of the Church as void until its invalidity had been the subject of adjudication in the ecclesiastical court, which could only be during the lifetime of both the parties. This is the meaning of the distinction between voidable and void niarriages. A marriage, which no man Could treat as void without a sentence declaring it to be so, was said to be voidable; and this was the situation of all prohibited marriages—of marriages within the degrees of consanguinity as well as those of affinity—until the passing of Lord Lyndhurst's Act. It was a mere question of form—a question, not of principle, but of administration purely; but the consequence of such an imperfect mode of enforcing the prohibitions was, that the status of the issue of all prohibited marriages was left uncertain during the joint lives of both the parents; and, if either parent died, the law could not be enforced at all, even against a man who had married his own sister, or (a case more likely to happen) a man who had married his niece, or his wife's mother, or his wife's daughter; between which cases and that of a wife's sister there was no distinction known to the law. Now, it was considered desirable that this state of the law should not continue; that the prohibitions should be maintained and enforced; that for the future there should be no mode of escape or evasion; and that the status of the children should not be left in uncertainty for a moment. Lord Lyndhurst's Act was therefore passed; and it enacted that, for the future, all marriages within any of the prohibited degrees of consanguinity or affinity should be ipso facto void, and that no sentence of the ecclesiastical court should be necessary for that purpose. The change, such as it was, affected marriages with a wife's sister only in the same way in which it affected marriages with a wife's mother, or daughter, or with a brother's widow; as to all which marriages the right hon. and learned Member for Bute proposes now to leave the operation of Lord Lyndhurst's Act entire and Undisturbed. But then it is said, that while the Act in effect annulled all future marriages with a wife's sister, it confirmed and gave validity to those which had been previously solemnised. Here, again, is the fallacy of representing that the Act had some peculiar operation with respect to the case of a wife's sister. But the truth is, that the Act (dealing no doubt more leniently with past marriages within the degrees of affinity than with those within the degrees of consanguinity) placed all past marriages within any of the prohibited degrees of affinity on an equal footing, and gave an indemnity to them all. If it gave validity to past marriages with a wife's sister, it gave equal validity to past marriages with a brother's widow, or with a wife's mother or daughter—marriages which nobody now denies to be incestuous. The right hon. and learned Gentleman draws a broad distinction, in point of morality and religion, between the one of these classes of marriages and the other; but the Act of Lord Lyndhurst dealt with them all exactly alike. And, after all, it is not true that Lord Lyndhurst's Act, notwithstanding its title, did declare any of these marriages valid; much loss that it gave encouragement to any one individual to contract them. The clause in question (I am not concerned to defend, but only to explain it) is a mere clause of indemnity; it took away the means which previously existed of declaring these marriages void by that form of proceeding in the ecclesiastical courts, which it was the object of the Act to abolish and render unnecessary for the future; and it would not have been consistent with the principles of English legislation to give a retrospective effect to the altered state of the law. The indemnity was given, not in all cases, but only in cases in which no proceedings had been commenced previously to the passing of the Act. Such proceedings might have been commenced at any time between the introduction of the Bill and the day when it received the Royal assent; but if this were not done, then the Act was to operate as a kind of statute of limitation with regard to marriages previously contracted: and it is to be defended, if at all, upon the principle that the parties might have married speculating upon the probability, which the imperfect state of the law then held out, of their marriage passing without challenge, and that such cases could never occur again. The Act gave the benefit of an indemnity to those particular cases, and at the same time established the general prohibition on a more firm basis than before. That indemnity affords neither a principle nor a precedent for the present Bill: not a principle, because it extended to marriages and degrees which the present Bill does not propose to legalise; not a precedent, because all marriages contracted since the passing of that Act have been contracted in the face of a recent and known law declaring such marriages absolutely void.

Then, under what circumstances, and on what grounds, are we now asked to pass the present Bill? Since the passing of Lord Lyndhurst's Act, an agitation of a very peculiar kind has been going on, and systematic attempts have been made, with very great industry and perseverance, to persuade the country that the law was doubtful, and that the case of a wife's sister was not within the prohibited degrees mentioned in that Act; in short, that a man might marry his wife's sister without any alteration of the law. Legal agents were employed, and years were spent, in propagating these pretended doubts; and this supposed doubtful state of the law formed one main ground on which the Royal Commission moved for by the right hon. and learned Gentleman the Member for Bute was issued. Happily, however, the parties were bold enough at last to bring the question under the decision of a court of law; and in Chadwick's case, which was decided after this commission had issued, but before it had made any report, all this fabric of doubts, which so much perverse ingenuity had been employed to raise, was at once demolished. Lord Denman, in pronouncing the judgment of the court against the validity of such marriages, said— Upon the authority to be found on this subject, there is such a fulness and uniformity of decision as in my judgment to remove, in a remark-able degree, all doubt from this case. … There is such an extent of authority as no other case perhaps could show.

And I will venture to prophesy, that whenever a court of law is again appealed to, many of the other pretended doubts, which are still circulated and put forward as reasons for altering the law, will be found equally groundless; and all the idle attempts made by unfortunate persons, under evil and ignorant advice, to escape from the laws of their country, by going to Altona or to Scotland, and then coming back to live as married persons in England, will meet with the same fate as soon as ever they are brought to the test of judicial decision. To go to Scotland, of all countries! Why, the right hon. and learned Gentleman the Lord Advocate of Scotland, though himself inclining to a different opinion, admits in his evidence before the commissioners that all the leading text writers on Scotch law have always laid it down, that a man could not marry his wife's sister in that country—that such marriages are unquestionably prohibited by the ecclosisastical law of Scotland—and that they have been punished as incest in former times by the temporal tribunals. And yet, in the face of all this authority, those bad advisers induced parties in this country to believe that such marriages might safely be contracted in Scotland; and it is impossible not to see that very many of the violations of the law mentioned in the evidence before the commissioners are directly attributable to the mischievous industry with which doubts which had no real foundation were invented and propagated by these agitators. The late decision of the Court of Queen's Bench must now convince the unfortunate victims of these delusions that they have been misled; and as the law is now settled and understood, there is great reason to believe, that if not disturbed by new legislation, it will for the future be better obeyed.

I now come to the commissioners and their report. And, first, let us see the character of the evidence and information on which we are asked to legislate. It does not appear how the inquiry was conducted by the commissioners, or upon whose suggestion their witnesses were selected or examined; but the result is, that they have examined thirty-six witnesses in all opposed to the present law, and only five in favour of it. Of those thirty-six, who agree with the right hon. and learned Gentleman, ten are lawyers employed by Messrs. Crowder and Maynard to get up evidence in favour of their case; sixteen are persons avowedly more or less interested in a change of the law; two are Dissenting ministers; one a Roman Catholic bishop; two are jurists (Mr. Bach and the right hon. and learned Gentleman the Lord Advocate); the remaining five are clergymen of the Church of England—who are set off against five other clergymen of the Church of England, the only witnesses examined on the opposite side. Now, could any possible mode of conducting such an inquiry be more one-sided or more unsatisfactory than this? I cast no imputation upon the commissioners, or upon the right hon. Gentleman the mover of this question; it may have been their misfortune, or some error of judgment, or some defect which I may not understand in their means of conducting the inquiry; but the result is, that we have nothing before us on which it is possible for a reasonable man to legislate. I do not say that the evidence of interested persons was not important, or that it was improper even to examine Mr. Crowder and his agents; it was no doubt quite proper that those on that side of the question should be heard. But that such evidence should form the whole staple of the inquiry, that the commissioners should have made their report, and that Parliament should be asked to legislate upon materials consisting almost exclusively of the reports and opinions of parties so deeply committed to one view of the case, is a circumstance of which I think the House and the country have just reason to complain. Without questioning the veracity of such witnesses on questions of fact, it is quite clear that no weight can be due to their opinions, or to what they say of the opinions of others. People who marry their wives' sisters of course defend their own acts, and necessarily associate chiefly with those who do not condemn them; and legal agents sent over the country to get up a case for an alteration of the law, as a matter of course, put themselves in communication everywhere with those who are known to dislike the law, and are thrown into direct contact with all the opinion which exists in society on that side of the question, their object being to organise that opinion, and bring it to bear upon the Legislature. But it is no part of their object to acquaint themselves with the extent of opinion which exists on the other side; and their proceedings can have no tendency to make them generally acquainted with it. In judging, therefore, which way the opinion and moral feeling of the country preponderate, all such evidence as this ought to be entirely set aside, or received, at all events, with the greatest degree of distrust and qualification.

This being the character of the evidence, on what grounds do the commissioners recommend an alteration of the law? They suggest four principal grounds: first, that public opinion is to a great extent favourable to the proposed change: secondly, that the law has failed to effect its object, which they assume to be the prevention of these marriages; then, that the prohibition operates as a cause of immorality; and, lastly, that the laws of foreign countries on the subject differ widely from our own, and that this difference is productive of inconvenience. Now, I propose to address myself to each of these points; and, first, with regard to the state of opinion in the country. What is the state of opinion in England, Scotland, and Ireland? The great mass of the evidence taken before the commissioners applies exclusively to England; and, setting aside the gentlemen sent to collect evidence and the parties personally interested, as being necessarily biassed and chiefly conversant with those who are favourable to a change, there will be found no proof that opinion in any class of the community is decidedly in favour of the alteration. The commissioners claim the Dissenters generally, and the Roman Catholics, as on that side; but only two Dissenting ministers were examined, and they (as well as Dr. Bunting, whose letters are printed in the appendix), prove that there is a difference of opinion among the members of their denominations; and the House has seen to-night that opinion is also divided among the Roman Catholics. The noble Lord the Member for Arundel (than whom no man is more respected in this House), has given in his adhesion tonight to the opinion expressed by Bishop Wiseman in favour of the present Bill. But the hon. and learned Member for Limerick, who followed him in the debate, has informed us that the opinion of the Irish Roman Catholics, as far as he is acquainted with it, is widely different; and he has spoken against this measure, not in his own name only, but also in that of an eminent Roman Catholic bishop, whose judgment may very fairly be set against that of Bishop Wiseman. As for the Church of England, the commissioners admit that the great majority of the clergy are decidedly opposed to this change; and they also admit that the prevalent feeling among the laity is the same. Then, with respect to Ireland, the commissioners took means for ascertaining the state of opinion in the Established Church of Ireland, which it is to be regretted they did not also take with respect to the Church of England. Dr. Lushington wrote to the Primate of Ireland, requesting him to ascertain the sentiments of his clergy. A more proper step could not have been taken; and I wish to call the attention of the House to the reply of the Archbishop of Armagh to that letter, because I think the House will concur in the surprise of the archbishop that such a mode of inquiry should have been confined to Ireland, especially after the suggestion made in that reply, that it should be extended to England also. The archbishop says— I should have replied to your letter of the 20th inst. Immediately on receiving it, but that I wished previously to inquire what steps had been taken, or were about to be taken, by the Archbishop of Canterbury for the purpose of ascertaining the opinions of the English clergy on the subject of marriages within the prohibited degrees, as I felt at a loss to know what mode of proceeding it would be best to adopt, with a view of obtaining the sentiments of the Irish clergy on this subject, and I presumed that the commissioners had addressed to his Grace a communication similar to that which I received from you. This, however, I find has not been the case.

What the archbishop did was to endeavour to collect the opinions of the whole clergy of Ireland through the bishops and the rural deans; and the result was, to obtain a clear expression of the almost unanimous opinion of the whole Church of Ireland against these marriages, as prohibited by the divine law, and socially inexpedient; and at the same time to supply proof that the law is practically obeyed on this point throughout Ireland. Similar evidence was obtained, and to the same effect, as to the opinions and practice of the Irish Presbyterians; and the hon. Member for Limerick has told us to-night that among the Irish Roman Catholics such marriages as these are unknown. In all Ireland, therefore, and by all classes in Ireland, the law is respected, approved, and obeyed: and the commissioners acknowledge that in Scotland it is the same: throughout Scotland marriages of this description are abhorred as incestuous, and in practice scarely ever occur. It is clear, therefore, from the experience of Scotland and Ireland, that this is not a law which human nature cannot be induced to obey; and it is only owing to the unhappy religious destitution in which too many parts of England have been left, the consequent immorality and negligence of all law, human and divine, and the doubts spread by industrious agitators, if this law has been less universally obeyed here than in Scotland or Ireland.

There is, therefore, no failure of the law in Scotland or in Ireland: and I shall be able to show that it has not failed to effect its object in England either. The commissioners reason as if the success or failure of the law could be measured by the proportion of the cases in which parties avowing a desire to marry their wives' sisters have been prevented from doing so, to the cases in which such parties have not yielded to its restraint. Mr. Foster tells them that 1,500 persons have married their wives' sisters notwithstanding the law; and that "eighty-eight cases of marriages are known to have been prevented by the existing law;" of which thirty-two resulted in cohabitation; and so they take these numbers, 88 to 1,500, as indicating the proportion borne by the success of the law to its failure. But what a fallacy this is! The real success of such a law is, in producing a state of society under which well-principled people consider it as impossible to marry their wives' sisters as their own, and are, therefore, prevented from ever feeling the desire to do so. Exactly in proportion as the law produces this effect, you will not, and cannot, Lave persons coming to tell you, that they would marry their wives' sisters but for this law. How many thousand cases there are in which widowers are on the terms of brothers with the sisters of their wives, to whom the thought of marrying them never occurs, and who, if it did, would repress it with abhorrence? Of these cases there can be no evidence; yet they are the true test of the success of the law; and that this is the general operation of the law who can doubt, with the knowledge which we all have of the footing on which sisters-in-law are received in English families?

But I am not obliged to stop here, for I find, in the evidence before the commissioners, proof of the success of the law of the strongest kind; proof of the successful operation of the law among classes of persons who, in the opinion of the commissioners, would willingly see the law altered; I mean the English Dissenters. Mr. Thorburne, in his evidence, mentions the case of a Quaker, who married his wife's sister, and was, in consequence, obliged to leave the Society of Friends— It being part of the rules of that body, that, no matter what the state of the law is in this country, members of the Society of Friends must respect that law of which they claim the benefits.

The Quakers, therefore, enforce this law upon their members under the penalty of the loss of membership. Dr. Bunting, an eminent Wesleyan minister, bears, in his letter the following remarkable testimony to the preventive efficacy of Lord Lyndhurst's Act among the Wesleyans:— Before the change in the law effected by Lord Lyndhurst's Bill, there were, from time to time, cases of the marriage even of some of our ministers with the sisters of their deceased wives, which were not generally regarded as so disparaging to the parties as to call for any expression of official disapprobation, or for the exercise of ministerial discipline. It was felt, I believe, that the matter, in the absence of any recognised prohibition of Scripture, must be loft to individual judgment and discretion. Since 1835, however, it has been universally admitted among us as a sound principle that, on the general ground of the scriptural duty of all Christian people 'to submit themselves to every ordinance of man for the Lord's sake,' the members of our societies in this country are bound by the law of Christ to conform themselves in all arrangements concerning marriage to the actual laws and institutions of the realm. So long, therefore, as the present legal prohibition shall exist, it would not, I think, be deemed right or seemly in any of our members to act in violation of it; and the position of the parties would be, as far as our community is concerned, very disadvantageously and painfully affected by it.

The moral feeling, therefore, of the Wesleyan body is on the side of obedience to this law; they visit with reprobation those who violate it. There is similar evidence as to the Baptists. Dr. Cox says, "I should not myself hesitate unless the law interposed; of course we should obey the law as it stood, whether right or wrong in our particular view." So that the whole body of Dissenters, whatever opinion they may entertain upon the abstract moral and theological question, recognise the moral obligation of obedience to this law as long as it is the law of the land, and because it is the law of the land; and in enforcing it you have the powerful aid of the whole moral influence of those religious communities.

Then, with regard to the demoralising effect which the commissioners attribute to the present law, surely it is not to be said that the law is evil merely because it is not obeyed. What law is universally obeyed? What possible legislation can secure the observance of any rule of morality? At all events, before legislating on such a principle as this, we ought to pause and inquire what is the standard of morality, in other respects, of the classes among whom the violation of this law is said to prevail; we ought to see how far this principle of altering the law because some persons disobey it, is to carry us. Marriages of this description are in themselves either incestuous or not; if they are incestuous, you may pass an Act of Parliament to allow them, but they will remain just as immoral as incestuous cohabitation without marriage was before.

And, after all, to what extent is the violation of the law, with the alleged immoral consequences, proved to prevail? Messrs. Crowder and Maynard have been at work for eight or nine years; and they have collected 1,500 cases of marriage, and thirty-two cases of concubinage, said to be owing to the prohibition of marriage between widowers and their wives' sisters—nearly all in the middle ranks of life—extending over a period of more than fifteen years. The inquiry which they made embraced all the great masses of population in England, except the metropolis, all the great seats of religious and moral destitution and neglect. These are the facts; the rest is all imaginary calculation, based upon the assumption that the cases actually discovered by this inquiry ought to be multiplied in a certain arbitrary ratio throughout the kingdom. With respect to the poor—the labouring classes—whose supposed interests in this question have been so much insisted on in argument, there is absolutely no evidence whatever: as to them, the case is all conjecture. In order to judge of the value of the facts ascertained, we ought to have had much further information, which this report does not give us. We ought especially to have known the statistics of other kinds of incest; but it was no part of the business of Mr. Crowder's agents to collect accurate information upon such subjects, although some incidental light is thrown upon them by several parts of the evidence. Mr. Foster had upon his list some cases of marriages with a brother's widow (the exact number is not given), "one or two" with a wife's mother or daughter; and about six with an own niece. Mr. Sleigh "heard of a village or hamlet," near Wakefield, in which "the morals of the people were extremely lax indeed, and in which uncles and nieces cohabited;" but be "did not hear of any marriage having taken place between them." Mr. Brotherton, in the Birmingham district, met with "several" cases of marriage within the prohibited degrees of consanguinity, though he thought their proportion to those within the prohibited degrees of affinity was very small; and, in some of these cases, he did not observe that they were differently regarded by the people from other marriages. Mr. Paterson's evidence shows how it is that we have not more information upon this point. He is asked, "Did you find any eases of marriages within the prohibited degrees of consanguinity?" His answer is very candid: "No; I did not inquire for them; but I do not remember to have heard of any; if there were, I never reported them, and paid no attention to them."

A great deal has been said about the respectability of the parties who have offended against this law. Upon that I shall only make this observation, that no parties could have such a marriage as this solemnised in England without either committing perjury, or practising a deception equivalent to perjury in moral guilt. Out of the 1,500 marriages with a wife's sister, mentioned by Mr. Foster, only thirty-eight were solemnised out of England. Consequently, the parties in the other 1,462 cases must have been guilty either of perjury, or of falsehood equally immoral; and I cannot understand how any one can think himself on safe ground when he relies upon the respectability of such persons as these, as evidence that their conduct would have been moral under a different state of the law.

I have now to deal with the remaining argument of the commissioners—that founded on the inconsistency of our marriage law on this point with the laws of foreign countries—of Prussia and the rest of Germany, France, and America—and with the Roman Catholic system of dispensation. Now, the first observation which occurs upon this point is, that you cannot avoid a conflict between your law and the laws of these countries, merely by altering your law as the right hon. and learned Member for Bute proposes to alter it. You cannot confine your attention to this one article in those laws, without looking at the whole scheme and system of them, and seeing whether you are prepared to follow it in other respects or not. But if the laws of those countries are to furnish the rule—if their example is to be imitated, the measure of the right hon. and learned Gentleman will be found quite insufficient, and all the prohibited degrees of affinity (instead of two only), together with some of consanguinity, must be altogether abandoned. Mr. Justice Storey has been referred to as a great authority, both for his own individual opinion on this subject, and with respect to the law of America. But Mr. Justice Storey says, he can find no natural principle on which any prohibited degrees of affinity, or those of consanguinity more remote than brother and sister, can be maintained. In Prussia, if a man may now marry, without dispensation, his wife's sister, he may also marry his wife's mother or daughter, his brother's widow, or his own niece. In the rest of Protestant Germany, in Holland, and in France, persons in all degrees of affinity, and uncles and nieces, may marry by dispensation; and a dispensation is equally required for marriage with a wife's sister. It is the same throughout the Roman Catholic Church. The House will remember the recent instance of Count Trapani, the uncle of the Queen of Spain, who was amongst the number of her suitors. Notwithstanding the relationship subsisting between them, he was considered to be a suitable consort for the Queen of Spain; and there can be no doubt that if the negotiation bad terminated favourably, a dispensation would have been obtained. If Parliament is to accommodate the law of this country to the practice of Protestant Germany, we must allow uncle and niece to marry; and if we imitate the law of France, we shall do the same.

The experience of those nations ought to operate, not as an example, but as a warning—a warning, that if we depart at all from the code of prohibitions settled in this country at the time of the Reformation, we shall find no principle at which to stop; we shall immediately he carried out of our depth. The subjects of divorce and of bigamy must follow next; no mistake can be greater than to suppose that those subjects are unconnected with this. Where-ever the prohibitory degrees have been relaxed, there has been an increasing laxity in the point of divorce also. In Prussia and other parts of Germany at this day, divorce is permitted for all kinds of reasons, whenever the parties are desirous to separate. Men of as great name and authority, and of as pure lives, have drawn arguments from Scripture in support both of polygamy and of the loosest system of divorce, as any who now advocate the lawfulness of marriage with a wife's sister; and all the arguments from social morality and convenience now used in favour of the right hon. and learned Gentleman's Bill, have been used with at least equal force in favour of an increased license in those respects. Milton, in two celebrated treatises, gave the weight of his great name, and exerted to the utmost his vast learning and wonderful powers, in order to prove that the prohibition of divorce for causes other than adultery was not really scriptural—that it was contrary to the purposes of the institution of marriage, and an infringement of the natural liberty of men. Towards the end of the last century, in 1781, "Mr. Madan, a learned clergyman of the Church of England, the brother (I believe) of a bishop, published a remarkable work, entitled The-lyphthora; or, a Treatise on Female Ruin, in its Causes, Effects, Consequences, Prevention, and Remedy, considered on the Basis of the Divine Law; in the advertisement prefixed to which I find it stated that the manuscript was submitted to "many eminently learned and pious men," and that the work was published "with their entire approbation." In this work the writer contends most strongly for a limited allowance of polygamy: he can find no prohibition of it in Scripture; he traces to the want of it some of the most frightful disorders of society:— That polygamy," he says, "is lawful in itself. and in many cases expedient—in some a duty—none will deny who will yield to the testimony of the Scriptures, and the plain matter of fact.

In another passage, he states the grievance of which he complains—the practical case for a limited allowance of polygamy—in terms which very nearly resemble those used by the hon. and learned Member for Southampton, when expatiating on the moral and social evils which he considers to result from the prohibition of marriage with a wife's sister:— The indiscriminate and total prohibition of polygamy, as it has no warrant from the Word of God, may also be the means of plunging many into the mischiefs of uncommanded celibacy; for many men there are, who very early in life marry, perhaps without all the consideration which ought to be exercised in so momentous an undertaking: many things may happen which may be very reasonable, and indeed unavoidable, causes of separation from their wives; as, for instance, incurable disease of mind or body; unconquerable violence of temper; perpetual refractoriness of disposition; levity of behaviour, though not amounting to such proof as to be the ground of utter legal divorce, yet such as may destroy the whole comfort of a man's life. By these and other means a husband may be reduced to the situation of an unmarried man, harassed by the same desires, subject to the same temptations; yet his condition is tenfold worse; the one may marry, the other cannot: so he must remain helpless and hopeless, or plunge into vice and misery, because he is debarred of the remedy which God has provided, stripped of that undoubted privilege with which God and nature have invested him, by the lyes and forgeries of fathers and councils, "fee.

Now, is not that just as true as the case made in favour of the present Bill? Mr. Madan's argument from Scripture, and against fathers and councils, in favour of polygamy, is, to say the least, as plausible as that of the hon. and learned Member for Southampton: and as to the facts, it cannot be denied that, in the main, what Mr. Madan says is true. Many persons are separated from their wives through unavoidable causes, not entitling them to a legal divorce; very great misery, very great temptations to immoral living, and a vast amount of actual immorality, do ensue; and it may be said in that case, with as much appearance of truth as in this, that all that misery and immorality is owing to the state of the law. I cannot help wishing that we could have access to the statistics of bigamy and immoral cohabitation under such circumstances, because I feel very sure that if the same industry were used to get up a case for the alteration of the laws of bigamy and divorce, which has been used by the promoters of the present Bill—I feel perfectly sure that a very much stronger case of the same kind would be disclosed. Among the poor—among the labouring classes—who are often separated from their wives by the nature of their service, and other causes, such violations of law and morality are, I am satisfied, far more common than marriage, or any other kind of connexion, with a wife's sister; and though offences of this nature are not pardonable, certainly, it is impossible not very often to feel great compassion for those who commit them: and, in the same way, I hope it will not be supposed that I am without feeling for those unfortunate persons who have been led to marry the sisters of their wives, especially when they have done so in ignorance, or under the influence of evil counsels calculated to mislead their judgment. But the laws of morality must not be made to bend to individual cases; and the proper mode of correcting such evils as these, among all classes, is not by degrading the law to the level of the practice of those who break it, but by holding up a sound standard of morality to the people, and by increased exertions to enlighten ignorance, alleviate distress, and extend the knowledge and practice of religion.

Sir, I am sensible that I have trespassed at too great length upon the House. I will not follow the right hon. Gentleman the Member for the university of Cambridge over the ground which he has so well occupied, when he dwelt with so much eloquence and feeling upon the social and domestic advantages of the present law. One word on that part of the subject, and I have done. The hon. and learned Member for Southampton has admitted that the effect of the present Bill, if carried, will be, for the future, to place our sisters-in-law with whom we now associate as freely and intimately as if they were our own sisters, upon the footing of first cousins. How cruel a privation this will be! We shall be deprived of the indulgence of that pure love and affection, unconnected with any thoughts of marriage, which now adds so much to the charm of life; of all that delightful familiarity, those tender and kind offices of the sister-in-law to the widower and his orphan children, which are now safe, because marriage between such relations is impossible, but which are not now permitted to any first cousin, unless she has reached an age which puts all considerations of marriage out of the question. Marriage must be determined upon, or these things must cease. And when it is remembered how vast is the disproportion between the number of women and men who do not wish to marry their brothers and sisters in law, whether from principle or from want of inclination, and those who do, and that the religious lawfulness of such marriages is (to say the very least) doubtful—when we remember all this, it does seem the height of cruelty to force this estrangement, for the sake of a few lawless persons, upon the great majority who prize the blessings which they enjoy under the present law. I entreat the House to give effect to these objections—objections entertained upon such strong grounds, and corroborated by all the experience and authority of the Christian Church—to respect the feelings and wishes of multitudes who ask to be protected in the right to treat the sisters of their wives as their own, and of the women of England, 11,000 of whom have petitioned the Queen not to assent to this Bill, if it shall unfortunately pass this House, and who now implore you not to violate the purity of domestic religion, and the sanctity of our homes.


moved that the debate be now adjourned. He believed many Members were anxious to express their opinion on a subject of much importance.


thought there was little hope of coming to a division that night, as there were many hon. Gentlemen who wished to speak. He hoped it would suit the convenience of the Government to allow the debate to be resumed to-morrow.


had no wish to come in the way of the House if they were desirous to come to a decision. At the same time, he should like to express his opinion on the question.


thought it would be scarcely fair to ask the hon. Gentleman to commence his argument on a question so important at that late hour. It was not possible to come to a decision that night; and he was sure there was no wish to come to any premature decision.


said, the House would go into Committee to-morrow with reference to an advance of money for Ireland. If that subject did not occupy too much time, the debate might be resumed afterwards.


hoped that no time would be fixed which did not give ample opportunity for debating the subject. If it could not be brought on at an early hour, another day should be fixed.

Debate adjourned till To-morrow.

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