HC Deb 04 May 1849 vol 104 cc1290-316

said, that he was ready to proceed with the debate; at the same time he was aware that there had been some misunderstanding between himself and his hon. Friend the Member for the University of Oxford and others that the discussion should not be taken after nine o'clock. [It was then twenty minutes past nine.] While he should be unwilling to depart from that understanding, he was, on the other hand, prepared to go on with the debate.


admitted that his right hon. and learned Friend the Member for Buteshire had not risen in his place to tell him that the debate would not be resumed after nine o'clock; but he had informed him, in that kind of intercourse which took place between Members holding opposite opinions on a question, that he would not bring on the question after nine o'clock. Of course he did not conceive he had violated any confidence in communicating such an intimation to others; and others had gone away. He admitted the hon. and learned Gentleman might urge the resumption of the discussion if it could terminate that night. But did any hon. Member believe it would terminate? [An Hon. MEMBER: Yes.] An hon. Member said "yes;" but such, he was sure, would not be the response of the hon. and learned Gentleman, for he himself would probably occupy at least two hours. From the number anxious to speak, it would be imposssible to dispose of the question tonight. The Government proposed to postpone other public business of importance, although there was no chance of the debate on this question being concluded tonight. He should resist the proposition.


trusted that he had not been guilty of the slightest breach of faith to the hon. Baronet. He had hoped that the debate would have been resumed before nine. They had been trembling in the balance, in the hope that hon. Gentlemen from Ireland would not have detained the House after that time; and as the hour had only been exceeded by twenty minutes, he trusted he should not be acting unfairly, if, in deference to what appeared to be the feeling of the House, he proposed to go on with the debate.


expressed his willingness to postpone the Orders of the Day in order that the debate might be resumed.


protested against the course of proceeding proposed to be adopted. It was impossible to conclude the debate that night; and to resume it under those circumstances would, for all practical purposes, cause the loss of the rest of the evening.


said, that if a pledge had been given to hon. Members that the debate would not be brought on after nine o'clock, it was only right to consider what influence it had upon their attendance, especially as an Irish debate happened to be in progress.


said, if the arrangement had not been publicly made, it had certainly been generally understood that the debate should not come on after nine o'clock. It was impossible that so important a discussion could close that night; and it would certainly be setting a very bad precedent if they were on this occasion to depart from the ordinary rule of the House of acting upon any general understanding that might be come to between the Gentleman having charge of a Bill, and those who took a leading part in the discussion of it, even although that understanding did not amount to a definite public arrangement as to the hour for a debate coming on. If the discussion were now to go on, it was not likely to be conducted in the proper spirit.


would agree to the debate going on if he thought it possible to conclude it that night; but it was clear they could not divide upon the Bill that night. If the Government did not consider the other orders of sufficient importance to occupy the remainder of the night, he would insist upon moving the adjournment of the House.


should have been glad to have had last night and to-night for other business; but as this Bill was an important subject, he had given up the whole of yesterday for its consideration, thinking, if such a measure ought to be passed at all, it should be passed as soon as possible. He had known nothing whatever of the arrangement fixing the latest hour for continuing the debate at nine o'clock; but all he could say was, he would leave the House to decide whether it should go on with the discussion now, or prefer some other time for resuming it.


said, several Gentlemen had gone away with the impression that there would be no division that night.


asked whether any hon. Member knew of anybody who had gone away between nine and half-past nine o'clock; and if so, whether there could be any difficulty in bringing them back again?


said, he should move the adjournment of the House.


seconded the Motion. He had been asked if he knew any one who had left the House, expecting the discussion would not come on. He would answer that he did. The noble Lord the Member for Bath was one, and went away almost at the very moment.


did not think it impossible for the House to divide that night; the subject was pretty much exhausted last night, and the opinions of two important classes upon it had been tolerably well obtained. At the same time he must apologise to the House for taking it upon him to mention to any hon. Member that he supposed the debate would not come on after nine. The noble Lord the Member for Bath had gone away with the belief that they would not divide to-night.

Motion made, and Question put, "That this House do now adjourn."

The House divided:—Ayes 25; Noes 116: Majority 91.

List of the AYES.
Arkwright, G. Lockhart, W.
Bernard, Visct. Napier, J.
Broadley, H. Oswald, A.
Cobbold, J. C. Palmer, R.
Dundas, Sir D. Pugh, D.
Ffolliott, J. Sheridan, R. B.
Fox, W. J. Simeon, J.
Gooch, E. S. Smith, rt. hon. R. V.
Goulburn, rt. hon. H. Thesiger, Sir F.
Grace, O. D. J. Turner, G. J.
Halsey, T. P. Walter, J.
Hamilton, G. A. TELLERS.
Hope, A. Inglis, Sir R. H.
Jones, Capt. Henley, J.
List of the NOES.
Adair, R. A. S. Brockman, E. D.
Aglionby, H. A. Brown, W.
Alcock, T. Bunbury, E. H.
Baines, M. T. Butler, P. S.
Baring, rt. hon. Sir F. T. Campbell, hon. W. F.
Barnard, E. G. Chaplin, W. J.
Barron, Sir H. W. Clements, hon. C. S.
Bass, M. T. Clive, H. B.
Berkeley, hon. Capt. Colebrooke, Sir T. E.
Berkeley, C. L. G. Cowper, hon. W. F.
Blair, S. Dalrymple, Capt.
Blakemore, R. Devereux, J. T.
Boyd, J. D'Eyncourt, rt. hn. C. T.
Brackley, Visct. Dick, Q.
Duncuft, J. Mulgrave, Earl of
Dundas, Adm. Mundy, W.
Dunne, F. P. O'Brien, J.
Ebrington, Visct. O'Connell, J.
Edwards, H. O'Connor, F.
Ellis, J. O'Flaherty, A.
Elliot, hon. J. E. Paget, Lord C.
Evans, W. Parker, J.
Fagan, W. Pechell, Capt.
Ferguson, Sir R. A. Peel, F.
Filmer, Sir E. Pennant, hon. Col.
Forster, M. Power, N.
Graham, rt. hon. Sir J. Pryse, P.
Granger, T. G. Raphael, A.
Greenall, G. Renton, J. C.
Grenfell, C. P. Reynolds, J.
Grenfell, C. W. Rice, E. R.
Grey, rt. hon. Sir G. Romilly, Sir J.
Hanmer, Sir J. Rumbold, C. E.
Harris, R. Russell, Lord J.
Hastie, A. Sadleir, J.
Hawes, B. Salwey, Col.
Hay, Lord J. Scrope, G. P.
Hayter, rt. hon. W. G. Scully, F.
Heathcoat, J. Seymour, Lord
Herbert, rt. hon. S. Slaney, R. A.
Heyworth, L. Somerville, rt. hn. Sir W.
Hindley, C. Stanton, W. H.
Hobhouse, rt. hon. Sir J. Talbot, J. H.
Horsman, E. Thicknesse, R. A.
Howard, Lord E. Thompson, Col.
Jervis, Sir J. Thompson, Ald.
Keogh, W. Thornely, T.
Kershaw, J. Tollemache, hon. F. J.
King, hon. P. J. L. Trelawny, J. S.
Lacy, H. C. Tufnell, H.
Lascelles, hon. W. S. West, F. R.
Lewis, G. C. Wilcox, B. M.
Lushington, C. Williams, J.
Macnaghten, Sir E. Wilson, J.
M'Gregor, J. Wilson, M.
Meagher, T. Wood, rt. hon. Sir C.
Maitland, T.
Matheson, Col. TELLERS.
Maule, rt. hon. F. Wortley, S.
Mowatt, F. Hill, Lord M.

Order read for resuming Adjourned Debate on Amendment proposed to be made to Question (3rd May), "That the Bill be now read a second time;" and which Amendment was to leave out the word "now," and at the end of the Question, to add the words "upon this day six months."

Question again proposed, "That the word' now' stand part of the Question."

Debate resumed.


said, he laboured under very considerable disadvantage, in rising at that period of the debate, and especially after the able and eloquent speeches addressed to the House last night by the hon. and learned Member for Southampton, and the hon. and learned Member for Plymouth, who had to a considerable degree exhausted the subject. However, the result of their speeches had been to narrow very much the issue which the House had to decide; and it was with great satisfaction that he had heard the hon. and learned Member for Plymouth admit at the outset, that whatever his views might be upon the social and political branch of the question, he would not feel himself justified by these considerations alone in continuing to impose the existing prohibitions. He had frankly admitted, that unless it could be shown that these marriages were forbidden by the law of God, the law of man was not possessed of sufficient authority to forbid them. It was upon this point, above all others, that he (Mr. Bunbury) wished to rest the argument; and, without following the hon. and learned Gentleman through all his theological inquiry, he maintained that the prohibition must not be based upon any thing short of the divine law. If the divine law had been clear and precise upon this point, the question would never have been mooted. But he maintained that he had a right to go further; and to assume, that while it was incumbent on the opponents of this Bill to prove that the marriages in question were distinctly prohibited by the law of God, it was not necessary for its advocates to prove that they were not so prohibited: it was sufficient if they could show that the point was a doubtful one. If it could be shown that conflicting opinions were entertained with regard to the prohibition by different sections of the Christian Church—that different theologians interpreted the Scripture passage in different and opposite ways; this fact in itself was sufficient to prove that the scriptural view ought not to form the basis of their civil legislation respecting these marriages. This was not a question of ecclesiastical law. The authorities of the Church might think they were right in their canonical prohibitions; but the question was—Had the Church a right to call in the civil law in aid of her canons? Had Parliament a right to impose civil disabilities, at the instance of the Church, upon persons holding conscientious opinions of a different character; for it was inflicting a civil disability to say, that persons who interpreted the divine word differently from the Church of England should be absolutely prevented from contracting marriages which they believed to be in perfect accordance with God's law, and to inflict upon their offspring the stigma and concurrent disadvantages of illegitimacy. That House was not to constitute itself into a theological tribunal to fix the interpretation of disputed texts of Scripture—every Christian should be left to search the Scriptures for himself, and follow the guidance of his own mind. Whether the prohibition could be regarded as clear and distinct, might be judged of from the number and variety of the opinions expressed on the subject by different pious and talented men. Their evidence appeared in the blue book before the House; and he believed, notwithstanding the slur which had been cast upon the commissioners (who, he had no doubt, would be ably defended by the right hon. and learned introducer of this Bill), that this evidence had been very fairly and impartially collected. Many pamphlets had also been written on both sides; but he would not enter into any criticism of the various authorities. Some of them declared that they had no doubt or hesitation whatever as to the marriages in question being prohibited by the law of God; whilst others averred they had also no hesitation or doubt on the matter, whilst their opinions went quite the other way. A considerable majority of the clergymen who had been examined as witnesses before the commissioners, were clearly of opinion that these marriages were not prohibited by Scripture; and the same feeling existed among many of the other clergymen of the Church of England. The hon. and learned Member for Plymouth had attempted to trace the common consent of the Christian Church in favour of those prohibitions from the earliest times down to the Reformation; but surely the force of the argument founded upon this supposed common consent must be greatly weakened by the fact of the great difference of opinion that prevailed among the ablest divines of not only different but of the very same Protestant communities at the present day. The right hon. Member for Cambridge University had cited the authority of the great leaders of the Reformed Established Church—Cranmer, Parker, Jewell, and others—and ended by saying that these testimonies were conclusive. Now, great as was his (Mr. Bunbury's) deference to these great names, he, for his part, could not agree that these authorities were altogether conclusive and decisive upon the point, and precluded everybody else's opinions. The fathers of the Reformed Church were not, in his opinion, entitled to that implicit submission which the right hon. Gentleman claimed for them; and in this, the 19th century, the Protestants of the present times could not be bound down to accept the authority of the fathers of the English Reformed Church, any more than these fathers of the English Reformed Church considered themselves bound by the authority of the fathers of the early Christian Church, as decisive and conclusive upon matters of this kind. Protestants in the 19th century ought to hold fast by the great Protestant dogma of the right of private judgment in searching the Scriptures, and afterwards deciding our opinions for ourselves. This was the principle upon which they should base their legislation. The present law was disregarded by the people of this country—but with regard to the prohibited degrees in question only, and no others—not because their religious feelings were weak, as had been alleged, but because the people, and especially the middle classes, had, on the contrary, too strong a view of the sanctity of the marriage vow ever to submit to its being based upon mere human legislation. They required it to be grounded upon the divine law alone. A clergyman of one of the most populous parishes of Birmingham stated in evidence that many parties, related by affinity, came to him to be married, and on his refusing to perform the ceremony, they challenged him to show them any passage of Scripture against it. The more he (Mr. Bunbury) looked at the great divergence of opinion existing on the subject, the more strongly was he convinced that there must be something inherently wrong, and contrary to the common feeling of mankind, in the prohibition; because, how was it in different cases? Why, the relation by consanguinity was acknowledged by the universal sentiments of all mankind to be an utter bar to all matrimonial alliances. The particular cases in question, among so many prohibited degrees, were the only instances with regard to which any question arose; and this singular circumstance was only to be explained by the prohibition being at war with human nature. It had been said there was no general unanimity in the country in favour of this Bill; the fact was that both the laity and the clergy of the Church of England were divided in their sentiments upon the principle of the measure; but if it was borne in mind that these marriages had been prohibited by the canons and express decisions of the Church of England during three centuries, it would appear strange, not that there was no unanimity in favour of the Bill, but rather that the Church had succeeded in producing so little unanimity against it. The clergy of the Church of England, the Dissenting ministry, and members of all sects, were at issue in their interpretation of the scriptural view of the question. Many of the Catholic clergy and their people were favourable to the repeal of the prohibitions; and the Protestant Dissenters were also on the side of the relaxation of the law. Whether considerations of social expediency would justify the passing of the law, was a very subordinate part of the subject, although many weighty reasons, drawn from the social relations, the domestic affections, and the peace and comfort of families, might be adduced to strengthen the other branch of the argument. The most predominating of these considerations, to his mind, was, that the continuance of the present law led to numerous instances of concubinage, and all its attendant evils, among those whose happiness and comfort it interfered with. Now, he contended that they had no right, upon any fancied ground of expediency, to continue a course of legislation which had the effect of producing immoralities, and driving people to the commission of sins of which they would not otherwise have been guilty. The effect of the present law in respect to the mischiefs produced by it, resembled those which resulted in another department of legislation from the present system of game laws, which led men first to be guilty of poaching, and from thence they gradually were led to the commission of theft and robbery. He would not detain the House any longer; but for the reasons he had stated he would cordially support the second reading of the Bill.


agreed that it was incumbent on those who opposed the Motion to show that the prohibition was in accordance with the law of God; but there was no inconsistency in those who believed this assuming that the prohibition in Scripture was not positive, in order afterwards to argue the question on social grounds. It was a material step in the argument to show that the prohibition operated beneficially to society. The laws of God were all wise and good, and that which operated injuriously might be assumed to be opposed to them. As to the allegation that the existing state of the law led to immorality, that was begging the question. If the thing were wrong in itself, the giving of a ring could not make it right; it would only be super-adding to concubinage an unreal form. Among the things which appeared to him as strange in the conduct of this case, none appeared more so than that his right hon. Friend excluded the marriage of brothers and sisters-in-law by the husband's side. He sought to draw a distinction between these two cases in his speech on obtaining leave to bring in the Bill. But supposing that the individual grievance which had caused the present movement, had been of this class, and supposing a firm as indefatigable as the one employed had conducted it, and a Member as eloquent as his right hon. Friend had introduced the measure to the House, he thought quite as good a case might have been made out in favour of allowing the marriage of brothers and sisters-in-law on the husband's, and disallowing it on the wife's side. We should have been told of the children who wanted the strong arm of a man to protect them. We should have heard of the attachment of the widow to her husband's name and family. We should have been told what a desirable wife for a poor man her previous knowledge of housekeeping made her, and so on, none of which reasons we should have heard existed on the other side. It had been asserted that the present was a poor man's question. He denied the truth of that assertion, and confidently appealed to the blue book which had been presented to Parliament on this subject. The evidence collected was drawn from a district of a country, comprising a large proportion of the most crowded towns of England, where immorality of all sorts reigned. What proof was given that the alleged marriages were all really marriages? Every one knew how constantly concubinage passed by the name of marriage among the lower orders. Where were the proofs that the commissioners had entered the miserable dwellings and penetrated the dirty alleys in which their asserted clients were to be found, for the purpose of obtaining the conclusive proofs, in the reality of their marriages, of the necessity for passing such a measure as the present? There were no such examples, no such stringent proofs, adduced in the report. But on examining that blue book, what did he find was the most stringent cases which were adduced in support of the Bill, all taken from the higher classes? There was one case in particular which had been greatly relied upon because of its so-called interesting—he would not say its meretricious—character. It was the case of the anonymous stockbroker. This interesting person appeared from the evidence to have married his first wife in the year 1816, and to have contracted a second connexion with her sister in 1844. Consequently, supposing he was of the legal marriageable age of twenty-one years when he first entered into that state, he must have arrived at the not altogether adolescent period of forty-nine years when he formed this second connexion; and his wife's sister, supposing she was only fifteen years of age when her sister was first married to this anonymous stockbroker, must have reached the somewhat mature age of forty-three years before she was sought in marriage by her deceased sister's husband. The blue book contained a letter from her brother to the witness urging the marriage, because his eldest daughter, under whose chaperonage the aunt seemed to have lived, was going to be married. "The mature age of Mary, while resident with you, tended to render my sister's situation less embarrassing and awkward, which her absence will occasion." If "Mary" was mature at twenty-two, how much more mature her aunt must have been at forty-three, and yet she could not he allowed to live with her brother-in-law, though the same letter testifies to his respectability. It was clear that he was trepanned into the marriage by her brother. There was a case he had meant to quote, but it was of so disgusting a nature that he would not do so. When he stated that he referred to that of the postmaster at Wolverhampton, many hon. Members would understand to what he referred. There was another case cited in the blue book, that of the architect and engineer of Bristol, who, at the age of seventy years, sought the hand of his wife's sister, she being sixty years of age. This person's wife, with whom he had lived nearly thirty-six years, died in August, 1836, leaving him with six daughters, only one of whom, the youngest, was living with him; and she being considered too young to be entrusted with the care of the establishment, his late wife's sister, who had resided with them as one of the family upwards of twenty years, undertook the care of the household. This gentleman said of his sister-in-law, in a letter dated December 20, 1847— We are now to all appearance destined by Providence to spend the remainder of our lives together. I am sure I need not use any argument to show how much it would add both to her comfort and my own could we be lawfully placed in the situation of man and wife; and this we had determined to do, but find the law of consanguinity as it now stands to be a bar, and unless this obstacle is likely to be speedily removed, we shall be induced to adopt some mode to evade or seek redress in a foreign country. I view the prohibition as unjust, my conscience bearing me witness. I see no law, neither in morals nor religion, that imposes such a prohibition, and in this I am borne out by my own family and connexions, including my brother's family and the minister with whom it is my happiness to be connected; nor do I know of any reason, either private or public, which can be urged against it, except this which I am induced to call an iniquitous statute. We are both above sixty years of age, and may not therefore be charged with the frivolities of youth. Now, he (Mr. Hope) conceived that if they relaxed the law maintained by our Church for three centuries, and the custom of the Christian Church for fifteen centuries, they ought to do it in order to meet some real grievance of overwhelming weight, and not to suit the caprice of this wretched architect of Bristol, who, at seventy years of age, could not live honestly and respectably with an old woman of sixty without talking about evading the law, and seeking redress in a foreign country. It had been assumed, because the Bishop of Lichfield was included in the commission, and because ten clergymen were examined before that commission, that the clergy gave a sort of tacit assent to the proposed alteration of the law; but that assumption was altogether unfounded. He found that although the commission first met in November, 1847, the Bishop of Lichfield was never present at a meeting of the body until eight months afterwards. He had himself presented a petition against the Bill from the Dean of Lichfield and the clergy of that city. The opinion of the Established Church of Scotland had likewise been shown to be adverse to the measure; and the great majority of the Roman Catholics were against it. Under these circumstances, he trusted that the House would not change the law and moral institutions of this country on such vague, insufficient, and intangible grounds as that presented by the report of the commission.


said, he would be as brief as possible in stating the reasons which induced him to vote for the second reading of the Bill. He was relieved from the necessity of saying much, because he fully agreed with what had been said in the early part of the evening, that the subject was almost entirely exhausted by the speeches which had been delivered on the former night of discussion. He would not enter into the theological branch of the subject, not certainly because he undervalued its importance, for he felt that it involved a preliminary point upon which it behoved every man to satisfy his own mind and conscience before he gave his vote upon this Bill. But he did not think that the question, whether or not these marriages between a man and his deceased wife's sister were prohibited by the word of God, was one likely to receive a solution by a decision of that House. It was a question upon which every man must satisfy his own mind, and if in the course of that preliminary investigation, which he hoped all had given to the subject, and which it had been in the power of every one to bestow, any hon. Member had arrived at the conviction that there was an express prohibition in Holy Writ against this kind of marriage, he (Sir G. Grey) admitted that such a one was not at liberty to treat this question on the mere grounds of social convenience and expediency. But those who had arrived at the opposite conviction, that there was no such divine prohibition, or at the conclusion that the question was left in doubt and incertitude, were, as it appeared to him, in either or both of these cases, perfectly free to consider this question in its practical and social bearings. All had access to the word of God, to the writings, and authorities on the subject, and to the publications which had issued from the press, in some of which the theological part of the question was very fully treated. Every aid, therefore, which human ingenuity and piety, and learning, and argument could afford, had been given, and the question might now be safely left to the decision of each man's own mind and conscience, without entering in that House upon a theological discussion. He (Sir G. Grey) had given his best attention to the arguments adduced to show that there was a divine prohibition against these marriages, but he was satisfied in his own mind that no such prohibition existed. He therefore felt at liberty to view the subject simply in regard to its practical bearing upon the interests of the community. The authority of the Church had been rather largely dwelt upon, but he felt at a loss to discover precisely in what sense that authority was invoked. If by the authority of the Church was meant that of the early fathers, of general councils, and ecclesiastical authority prior to the Reformation, he avowed he could not attach much weight to it; because, if he did, he felt he should be carried considerably beyond the conclusion deduced from that authority as applicable to the cases provided for by the Bill. If this deference was to be paid to Church authority in that sense, we should find ourselves in- volved in a multitude of prohibitions, many of them utterly inconsistent with prevailing opinions and practice, and restrictions would have to be imposed upon marriages between parties supposed to be related by sponsorship, or some supposed degrees of affinity, not now included in any recognised prohibition. Before he proceeded, however, he would observe that he concurred in the view taken by his hon. Friend the Member for Bury St. Edmunds, that where the question of divine prohibition was a doubtful one, they were not at liberty, irrespective of other considerations, to render that certain by human law which was left uncertain by divine law, and to impose restrictions which they were not satisfied did exist by reference to Scripture. If by the authority of the Church was meant the authority of our early reformers, or of that branch of the Christian Church established by law in this realm, then he could not see how the authority of the Church of England could be cited as a general law extending to persons not members of that Church. The prohibition extends to the whole of the subjects of this realm, whether members of the Church or not. It would be unjust and tyrannical to impose upon the members of the Church the necessity of choosing between their allegiance to their own Church and the law of the land; and if violence was done to the consciences of members of the Church, it would be an objection to this measure. But the Bill did no such thing. It merely left those who did not think they were bound by the authority of the Church at liberty to follow the dictates of their own consciences, and removed a restriction imposed upon them by the law of the land. Then came the question as to the effects of this measure upon society, and he thought that the great preponderance of arguments, and facts upon which the arguments were grounded, was in favour of the alteration of the law. He stated this with diffidence, for he felt that the question was one upon which much difference of opinion might honestly exist, and he felt the force of many of the objections which had been urged against the relaxation of the law. He had listened attentively to what had fallen from the hon. and learned Member for Plymouth at the conclusion of his able speech of the preceding night, and to his appeal to the House not to disturb that free and unrestrained intercourse which now subsisted between a man and his wife's sister. But they were bound to regard society as a whole, and to the effects produced by the law of 1835 upon all classes. And what had been that effect? The hon. and learned Member for Southampton had reminded the House of the circumstances under which the prohibitory clause had been introduced into that Act. It was true, as he had stated, that the Bill, as originally brought into Parliament, contained no such clause. The Bill had a legitimate and useful object, and so far as it was limited to that object, the Act had proved beneficial in removing the uncertainty which had existed relative to a large class of marriages, which, not regarded with disfavour by society in general, stood in this position, that although not void they were voidable, and might be set aside by a suit in the Ecclesiastical Courts during the lives of both parties; so that the result was a perpetual disquietude and anxiety, and the marriage tie, which should be indissoluble, was left to mere accident whether it should be dissolved or not, and whether the children of that union were born in lawful wedlock or not. But in the passage of the Bill through the other House, a clause was inserted rendering all such marriages in future void. He dissented from the doctrine of the hon. and learned Member for Plymouth, that the Act of 1835 did not give a legislative sanction to such marriages as had taken place before the passing of that Act. Before the Act of 1835 there was but one method whereby such marriages could be rendered invalid; but the Legislature, when they enacted that law, stepped in and placed a prohibition on the further invalidation of them. It decreed that all marriages of that description, which had taken place previously to 1835, should be declared as valid as any other description of marriage whatsoever; but it at the same time put a bar on the solemnisation of such marriages for the future. The promoters of the law of 1835 proposed to themselves the attainment of two objects totally dissimilar. They said "by the retrospective action of the measure we will render valid all marriages of this description which have been solemnised in times past, and by its prospective action we will prevent the possibility of such marriages being solemnised at all in time to come." But the very course they adopted rendered it impossible for them to succeed in such a project. The law was a most anomalous one, for it included two priciples which were entirely antagonistic. By one part of the Act a provision was made which amounted to a legislative declaration that there was nothing whatever immoral or worthy of objection in such marriages, and that they ought to be made as valid as any other description of marriage; and in the very next clause was found a sweeping prohibition of them. The Act of 1835 had produced no change of feeling or opinion with regard to these marriages in the minds of the people. Society still regarded the question in the same light as it had done before the passing of the law, and still refused to class such marriages in the same category with incestuous marriages. Notwithstanding the censure which had been cast by hon. Gentlemen on the commissioners for the manner in which they had discharged their duty—censure in which he could not concur—he thought there was abundant evidence produced by them that such marriages had not been stopped by the Act of 1835, but that they had continued to the same extent as before, and that evils of a serious character had been caused by the alteration of the law. The commissioners say— We cannot avoid the conclusion that the statute of 5 and 6 William IV., c. 54, has failed to attain the object sought to be effected by its prospective enactments. It has not prevented marriage with the sister, or niece, of a deceased wife from taking place in numerous instances; whether more or less numerous than before the passing of the statute, we have not, as was before observed, sufficient data to enable us to form an opinion. But, without reference to any comparison of this description, the number of those marriages is so great as to justify us in saying, that the provisions of that statute, rendering them null and void, have not generally deterred parties from forming such connections. We are not inclined to think that such attachments and marriages would be extensively increased in number were the law to permit them, because, as we have said, it is not the state of the law, prohibitory or permissive, which has governed, or, as we think, ever will effectively govern them. How were these marriages viewed by men of a high tone of moral feeling, and who bore an upright and even a religious character? The commissioners had stated in their report that they had found that no strong objection to the present law was entertained in many cases by clergymen of various denominations—men who, so far from being chargeable with laxity of conduct, were remarkable for the rectitude of their lives. The commissioners spoke as follows:— We do not find that the persons who contract these marriages, and the relations and friends who approve them, have a less strong sense than others of religious and moral obligation, or are marked by any laxity of conduct. There was this remarkable circumstance connected with the evidence, that all the witnesses who had spoken in favour of a change in the law were persons who, from their profession, their habits of life, and their position in society, were intimately associated with the great masses of the people, and enjoyed the fullest opportunity, not only of becoming acquainted with their habits, their feelings, and their prejudices, but also of forming an opinion as to what the probable result of a change in the law would be; whereas those witnesses who had spoken against any alteration in the law were for the most part gentlemen who had no such opportunities, and who merely gave their testimony as a matter of personal opinion, founded on the writings of theological writers. He had no hesitation in saying that he should be disposed to attach greater weight to the evidence of the first class of witnesses than to that of the second, because it was better to have the experience of men who had a practical knowledge of the wants, wishes, and feelings of the people, than the speculative opinions of men whose views were only derived from their literary studies. In addition to the evidence of the Rev. Mr. Garbett, of Birmingham, the opinions of five clergymen, four of them having a large cure of souls in the metropolis, had been recorded in favour of an alteration of the law; and Dr. Hook, of Leeds, with whose name the House was familiar as a divine of eminence, to whom was committed the spiritual charge of a large number of his fellow-Christians, had also concurred in the opinion that there was no positive prohibition in the Scriptures, and that the removal of the prohibition imposed by the human law, would tend to the morality and general welfare of society. He did not mean to question that some inconvenience, and, possibly, some diminution of comfort, and, perhaps, even of happiness, might be felt in the upper classes of society as the result of an alteration in the law; but he had no doubt whatever that the interests of the lower classes of society were very much involved in the alteration of the law, and would be materially promoted by it. That was a consideration of peculiar weight and importance. He did not think it could be seriously contended by any one that an increase of morality had been the result of the law of 1835. The law was disregarded, which was in itself a great evil. Many unworthy attempts were constantly made to evade it, and great misery and anguish of mind were inflicted on persons who did not like to disobey the law, and who had no hope of relief from the distress in which they were now plunged, except in the expectation that the law would be altered. Uncertainty as to the validity or invalidity of these marriages, when solemnised under peculiar circumstances, still existed, and was productive of much mischief. That the law was not successfully evaded by parties who passed from England to Scotland, or from Scotland to England, in the hope of being able thus to elude it, must be evident; but in cases where persons going abroad, professedly with the intention of residing abroad, contracted marriages of this description in foreign countries, and afterwards returned to England, there were serious doubts whether, as the law now stood, such marriages were or were not valid. So that still there was much uncertainty and doubt which it would be well to remove. But the immorality of cohabitation without marriage, and the liability of contracting a defective marriage, did not constitute the only objections to the present system. The Rev. Mr. Garbett, in his evidence before the commissioners, expressly stated that the law of 1835 was liable to the most grave objection, from its tendency to encourage the practice of perjury. The rev. gentleman observed, that the law was disregarded "entirely upon the ground that people have a strong feeling that it does interfere with what may be considered the first natural rights. I think," he said, "the argument" you ought not to set the law at defiance,' is one which is very difficult to urge upon people when their affections are deeply interested in a manner that religion and conscience do not control. I do not think the law should put persons in such a position." He was then asked, "Do you think that the present state of the law tends to cause false oaths to be taken?" To which he replied—"I am quite satisfied of that. Persons are told by a particular surrogate that they cannot have a license, and they are unprepared for it. Many surrogates do not ask the question; they merely put the affidavit to them, and they take it without thinking what they are doing. I always ask the question, and of course refuse if they are within the degrees; but I know that they go some- where else and get licenses. They go to a surrogate who is simply content with their taking the oath, which, legally, is all that he is required to do. It is gross perjury on the part of those who do it, provided they understand the meaning of the affidavit, which is not always the case; but you should not tempt them." Most assuredly that was a consideration which ought not to be overlooked in considering the present question in its social tendency. He did not at all deny that the question was a difficult one—and that, all circumstances considered, it might perhaps have been better that it had not been mooted in that House; but, having been mooted, and their attention having been called to it, it was the duty of every Member to give the matter the most serious consideration, and to pursue with reference to it that course which in his conscience he believed to be the best. But, in addition to the social considerations which should induce them to view with favour the proposition for an alteration of the law, it should be remembered that they were not called upon to take any step not warranted by the sanction of experience. They had the experience of other countries to appeal to, and they found that in the majority of the Continental States of Europe, and in the greater part of the United States of America, the practice, prohibited in this country by the Act of 1835, was permitted, and had not been productive of any of those evil consequences which some hon. Members anticipated as the result of the repeal of the present law. Judge Storey, in a letter recently received from him, had stated, that nothing was of more common occurrence in America than such marriages, and that he had never heard a single objection against them founded either on moral or domestic considerations. Moreover, it should be borne in mind that the great body of Protestant Dissenters in this country had expressed themselves in favour of the contemplated change: 108 nonconforming ministers had petitioned the House a few evenings since in favour of the Bill now under consideration; and he believed that not one single petition against it had been presented from the Dissenters. A large portion of the Catholics of this country were also in favour of the alteration of the law, as like-Wise were a largo portion, though not a majority, of the clergy and laity of the Established Chureh. People ought to be allowed in such matters to act according to the dictates of their own consciences. The present Bill did not propose to coerce their conscientious convictions in any way. It left any man at liberty to pursue that course which he believed to be most consistent with the dictates of morality and the law of God. He hoped that hon. Members would feel themselves at liberty to decide this question with reference to its influence on the interests of society. He hoped that they would be guided in their decision respecting it by the dictates of reason and the lights of judgment, rather than by the impulses of passion and of feeling. He trusted that the appeals which had been made last night to their feelings would not induce them hastily to destroy the hopes of those who, with anxiety, looked forward to the enactment by Parliament of a change in the present law. He had spoken his own opinions only; but having given to this subject the most serious consideration, he had arrived at the conclusion that, for the reasons he had endeavoured to explain to the House, he should best discharge his duty by voting in favour of the second reading of the Bill.


agreed with the right hon. Gentleman the Homo Secretary that it might not be desirable to enter into any detailed examination of sacred Scripture in a popular assembly; least of all, in one which did not acknowledge any common authority of interpretation. But there were subjects upon which it was not possible to avoid distinct reference to the word of God. The right hon. Gentleman had stated that if that word were clear upon this question, the decision of the House must be in conformity with it. Now, in regard to the ordinance of marriage, there was in the New Testament no authority whatever, so far as the choice of persons was concerned; and in the most important relation of life it must have pleased Almighty God to leave his creatures without any authority unless we were to take into consideration the Old Testament also. Taking that also, we should find no regulations except in Leviticus; and, taking Leviticus, we must take the 18th chapter. That chapter, warning against certain practices which had polluted the nations of Canaan, conveyed a general principle, that a man should not marry any one that was near of kin to him; but it did not detail every specific instance to which the principle might he applied. The hon. and learned Member for Southampton had told the House that that which was not prohibited was permitted. If that hon. and learned Gentleman were then present, he should ask him, was he prepared to maintain that doctrine to its fullest extent, and apply it to numerous cases—to that case from which human nature withdrew under the influence of aversion and horror? There was a prohibition against a man marrying his own granddaughter, from which the obvious inference had always been drawn that he was not to marry his own daughter. Such a marriage was clearly abhorrent to every feeling of human nature, and therefore the express prohibition might be deemed unnecessary; but surely no one would think of affirming, because it was not prohibited in words, that therefore it was permitted, though marriage with a granddaughter was expressly forbidden. In all cases where links of that kind were wanting, it required but a small exercise of ordinary understanding to supply them. It was fully acknowledged that the marriage of one woman to two brothers in succession was unlawful; and was it more lawful, he would ask, that one man might marry two sisters successively? The present state of the law was censured as an infringement upon liberty—that therefore such a law, like a penal statute, ought to be construed strictly, and they ought not to go beyond the letter of the law. But in the view which he took of the subject, he conceived that he by no means went beyond that which might be considered a fair construction of the law. He felt as much as any one could possibly feel, the delicacy, the importance, and the sacred character of the various subjects which were connected with the present discussion; and he had felt deeply anxious that no discussion whatever should take place. He wished that the decision of the House pronounced seven years ago, when they refused permission to introduce a similar measure, might have been taken as conclusive against the Bill then before them. His hon. Friend the Member for Dorsetshire had been as much opposed to discussing the present question as any one amongst them; but his excuse for entering upon it on the present occasion was that it had been brought under their notice by the report of a Royal Commission. Now, he would come to that commission and its Report, observing, in the first place, that his right hon. Friend the Member for Cambridge had exposed the insufficiency of that report in an argument as conclusive as had ever been heard, and as perfectly calculated to dispel the influence of the evidence laid before the House as any speech which could possibly have been made. He had thought, but his right hon. Friend had proved it impossible, that such a number of cases of the marriage of men with the sisters of their deceased wives could exist as had been assumed in the proceedings of the commissioners. But he never regarded mere numbers as constituting an argument of any importance in a judicial question. They were not sitting there to try the feelings of many or of few; he cared not whether the whole or a tenth part of the persons mentioned were to be affected by the Bill. If there were only one case, it ought to he decided on the same principle as the utmost possible amount of numbers; he, therefore, rose to address the House under the influence of the deepest personal pain; and he should have been glad on any account to have given a silent vote on the present question, if he felt that he could have done so consistently with his sense of duty. Looking again to the report of the commissioners, he would say, that there never had been laid on the table of that House a document so little worthy the authority of the Crown, or of the high and distinguished names which were appended to it. It was informal in every part. The House of Commons was indebted to the hon. Member who represented Dumfries for originating a regulation, according to which every Member of a Select Committee became responsible for the questions which he put. It was remarkable, however, in the evidence now before them, that the name of no individual commissioner was prefixed to any one question; nor had the attendance of the commissioners been in any case recorded; and, finally, what had Her Majesty's Commissioners stated on the matter referred to them? They came to no conclusion whatever. The House was no more bound by their report than by the eloquent speech of one of the commissioners. So far from the report containing any distinct recommendation, it altogether avoided a conclusion, and referred to the possibility of the House either relaxing the existing law, or rendering it more striet than it had hitherto been. The prestige of the Royal Commission, then, carried with it no higher importance than belonged to the speech of the hon. Member for Dorsetshire. The commissioners pledged themselves to nothing, and they recommended nothing to the House. There was one point, however, in which he agreed with the commissioners—he referred to that part of their report in which they admitted that the proposed alteration of the law did not concur with the public mind of England. He agreed to that proposition, and he did not believe that the public mind of England went along with the measure then before them. If it were a matter to be decided by the word of God, the question was quite at an end. It was said, however, that the petitioners who came to the House as opponents of the Bill, did not come forward boldly against it on scriptural grounds. Upon the theological part of the question, they, perhaps, hardly knew how to address the House of Commons. Then as to its being a question of ecclesiastical authority, they were told that many of the clergy held different opinions on the point; but the clergy must look to the Church to which they belonged. If they remained in the Church, and accepted its wages, and professed to perform its service, they must accept the interpretation which the Church put upon the Scriptures—they might be better than the Church of England, but if they did not agree with that Church they ought to leave it. They might preach according to the rubric and the canons, and they might enforce the discipline of the Church; but they must not altogether overlook that interpretation put by the Church on the Scriptures. He could not suffer the authority of men, however individually respectable, to be brought forward for the purpose of deciding an ecclesiastical question which the Church had already decided for them. Would any one deny that to be the doctrine of the Church of England which the Bill of the hon. and learned Member for Buteshire professed to set aside? No man acquainted with the rubric, the canons, and the authoritative decisions of the Church of England, would deny that the tables of affinity and consanguinity in the Book of Common Prayer were opposed to the Bill then before them. The tables of prohibited degrees were said to be no part of the Book of Common Prayer; but he must he allowed to say that he had never seen a Church prayer-book without those tables. The two copies used every day in the House of Commons contained, he would venture to say, the lists of prohibited degrees—they were then on the table of the House; those lists were suspended in every church and chapel, and no one could deny that they possessed the sanction of the Church of England. The learned Lord Advocate had said that he ought not to omit some reference to the law of Scotland. Of the law of England he would say nothing. Whatever doubts might exist regarding it some years ago, it was now perfectly clear on the subject. But with regard to the law of Scotland, he begged to call the attention of the House to the fact that on this point it was not merely a municipal law similar to those passed by Lord Lyndhurst or Lord Hardwicke, but that it embodied the confession of faith. In the 5th of the first Parliament of William and Mary the confession of faith was bodily inserted, and was as much a part of that Act as any of its other provisions. It was there stated, that— A man may not marry any of his wife's kindred nearer in blood than he may of his own; nor a woman of her husband's kindred nearer in blood than her own. No words could he more explicit. The Bill therefore proposed, not only to repeal the municipal law, but also the great ecclesiastical constitution of the realm of of Scotland. And he believed no Scotch Member would deny that the feeling of the clergy and people of Scotland was decidedly opposed to the change now brought forward. It was admitted in the report that it was so with the clergy, and had they added the laity also it would have been no exaggeration. They had heard the right hon. Gentleman the Paymaster of the Forces give notice that night that if the Bill should unhappily be read a second time, he would move an instruction to the Committee that it should not extend to Scotland. He hoped the hon. and learned Gentleman the Member for the University of Dublin would also move an instruction to the Committee that the Bill should not extend to Ireland, for in Ireland the feeling against the measure was as strong as in Scotland. The Bill was in the first place against Scripture; it was also opposed to the law of the Church of England, the law of the Church of Scotland, and the public feeling, both in the one country and the other. The hon. and learned Member for Southampton had delivered an able and eloquent speech; but, able as it was, it began with an assumption altogether unsupported by historical facts; for, in reply to what had been said by the right hon. Gentleman the Member for the University of Cambridge of the great learning, unparalleled in later ages, of those to whom we owed the Reformation, he contended that the state of the law in respect to marriage arose from the foul source of Henry VIII.'s desire to marry Anne Boleyn. It was not consonant with a correct view of history to say that either the ecclesiastical or civil prohibition was first imposed at the era of the Reformation. It was for their opponents to show that such marriages were ever sanctioned at all; and he defied them to do so. They had, in fact, been prohibited for 1,200 years at least before the time of the Reformation; for 300 more they had been prohibited by the Church of England; and he hoped an opposite principle would not be encouraged by Parliament. He could hardly conceive anything more objectionable than the proposal to make it optional with the clergy whether they would celebrate these marriages or not. His right hon. Friend might if he pleased make marriage a civil contract. Those who were not members of the Church would not complain—and those, who though members of the Church, disregarded its canons might go to the registrar's office, as they might indeed do now. But that in the parish of St. Pancras, where the writer of one of the letters referred to by his right hon. Friend was the able and faithful minister, and in St. Giles's, the adjoining parish, where one of the most active, zealous, and learned of his order, Mr. Tyler officiated—those clergymen should be called on to administer these marriages, the one, perhaps, choosing to do so, and the other not—he asked if, by such a state of things, the interests, not merely of the Church of England, but of religion, would not suffer? There was another important view of the question to which he would shortly refer. This was emphatically a woman's question. In his own personal experience, he had found that the women of England were in an immense proportion opposed to this measure. He did not merely refer to the numbers who had signed a petition to the Queen, but to the fact that everywhere they were to be found against the proposition. He had received a letter from a lady who stated that, having many sisters, she could not, if such a measure as this passed into law, receive them into her house. Her words were to the effect, "I should have been jealous of every sister I had." [Dissent.] He did not adopt the language altogether, but he pledged himself to the fact; and the House must deal with men and women as they found them. This lady, who was a person of high character, had addressed a letter to him in which she made that statement. They must, in all such cases, take the feelings of people just as they found them; they might or they might not be such as they wished to extend, but they were still feelings of human nature, and they must act upon them. The lady went on to state, what he had seven years ago urged upon the House, in answer to the argument that, unless a measure like this were passed, many children would be left without motherly protection—that she knew of more than one case where, if the Bill of the Earl of Ellesmere had been carried some years ago, the surviving sister would have left the house which had been for years her homo, and the children that for years had been under her care. He believed that, statistically, the number of these marriages must be few, and that what was stated in the Times newspaper of there being some 3,000, was nearer the mark, than the statement they had heard of there being 30,000 or 40,000. Then in how many of these cases had the deceased wife asked a sister to be her successor? The probability was that they would find very few indeed. Much of the argument in the House, and more of that which had been urged out of doors, assumed that the only alternative which a widower had was either to marry his wife's sister, or to leave his children in a manner orphanless. Now did it never happen that he had sisters of his own, or a mother, or an aunt, to whom such care might he confided? As to the manner in which this case had originated, he found that it was brought forward by two attorneys. He did not deny their zeal or diligence, but he thought their zeal had carried them far beyond that which duty warranted. When he saw letters addressed to Members of Parliament to know what their opinions were, it gave him an unfavourable opinion of the discretion of those who resorted to such a practice in order to promote any measure. Then, how unilateral was the evidence which had been produced. It had been said that one of the gentlemen who were examined before the commission, a minister of the Church of England, was examined under circumstances not so favourable perhaps to the character of the commissioners as it would have been desirable they should have been. It was said that his evidence was at first rejected, particularly a portion of it; and that afterwards, upon his insisting that either what he said should be recorded, or that he should not be considered a witness at all, the answers which were rejected were reinstated. He mentioned this merely incidentally, as it was one of the many proofs that the confidence bestowed upon the commission and their report ought to he limited somewhat more than the prestige of a blue book might otherwise carry. They had not conducted their inquiry with that laborious research which the matters referred to them required; and the result had been a meagre and unsatisfactory opinion, upon which he would defy any man to rest so sweeping a measure, unless he were determined to do it post hoc, if not propter hoc. He should be most anxious to extend, wherever he could, the reasonable happiness of all his fellow-creatures; but he must not compliment away his sense of what was right; and especially when that sense of right appeared to him to be so plainly dictated by the word and will of God, and when he found that word and will expounded by his own judgment in a manner so unequivocal as to leave no doubt upon his mind. He, therefore, adjured the House to reject the Bill of his right hon. and learned Friend for the sake of the general feeling of the people of England, for the sake of all but the universal feeling of the people of Scotland, and for the sake of the feeling of the people of Ireland, most ably, most temperately, but most firmly expressed in many of the petitions which had been addressed by the clergy from that part of the empire, and, indeed, by some of the evidence which appeared in the appendix of the report. But he would adjure the House, from higher considerations than any which affected the personal feelings of the day; for, if it were true, as he believed it was, that the measure now proposed was contrary to the word of God; if it were true, as he was sure it was, that it was contrary to the mind and will of the universal Church—for no church whatever could be found to sanction these marriages, till within the last 300 years, and it was the only question of discipline upon which the interpretation of all the great churches entirely coincided—if it were true that the Church of England, the Church of Scotland, the Greek Church, and the Church of Rome, differing as they did on so many other points, all concurred in this; if it were also true, as he believed it to be, that this was emphatically a woman's question—and that the feelings of the women of England were heartily and strongly against the measure; if these things were true, then on these considerations he did adjure the House not to disturb a state of things which had so long existed; and, for the sake of a few, however amiable, however excellent persons, and however painful it might be to refuse them, not to sanction a measure which, as he conceived, would violate the law—which, as he believed, was contrary to the mind and will of the Church—and which, as he well knew, was against the feelings of the great mass of the people of this country.

Debate further adjourned till Tuesday next.

House adjourned at half after Twelve o'clock till Monday next.