§ Order read, for resuming Adjourned Debate on Question [18th April], "That Mr. Speaker do now leave the chair."
§ Question again proposed.
§ Debate resumed.
§ MR. DIVETT
rose to move, as an Amendment, that the House do resolve itself into Committee on the Bill that day six months. In his opinion it was a scandalous and an immoral Bill, and he was astonished that a man of the learning and ability of the right hon. Member for Buteshire should have been induced to take charge of such a measure. In all his Parliamentary experience he had never seen anything of the sort; and, remembering the place which the hon. and learned Gentleman represented, he could not avoid noticing the fact, that there had that evening been presented from Buteshire a petition signed by 152 of the electors against the Bill. It might truly be said that Scotland and Ireland were both against the Bill. Every one knew that great efforts were made to get up petitions in England 112 in favour of it; that a powerful firm of London attorneys, paid by a gentleman well known in that House, were sparing no pains to promote the Bill, for the purpose of effecting some marriages and of legalising others. It was not proper that he should then reopen the discussion of last year, or any former discussions; but it was impossible for any one who heard the speech of the hon. and learned Member for Abingdon to avoid feeling that it was their duty to stop at the stage which the Bill had now reached, and not oppose themselves to the deliberate sentiment of the men, and still more of the women, of England. It appeared to him that, in a social point of view, a more mischievous Bill had never been presented to Parliament.
§ Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words "this House will, upon this day six months, resolve itself into the said Committee," instead thereof.
§ Question put, "That the words proposed to be left out stand part of the Question."
§ The House divided:—Ayes 42; Noes 40: Majority 2.
§ Clause I agreed to.
§ On Clause 2,
§ SIR F. THESIGER
said, they had now arrived at that stage of the Bill at which all discussion with regard to its principles should be suspended, and they should confine themselves entirely to a consideration of its details. He mentioned this in order that his position might not be misunderstood, and that when he stated his objection to certain portions of the Bill, it might not be supposed that he was in any degree waiving the right which he had to object to its principle at some future stages, which he should most unquestionably do if an opportunity should be afforded. What he proposed to submit to the Committee was, the Amendment of which he had given notice, that marriages with a deceased wife's sister, which had been contracted since the year 1835, in direct violation of a known law, should not by this Bill be rendered valid. It would easily be observed by hon. Members who were of opinion that the law with respect to these marriages ought to be changed, that they might quite consistently vote for his Amendment, because they might be or opinion, with him, that the Act should not have the operation which the clause, 113 as it at present stood, would give it. He thought it would be admitted that all retroactive laws were, in general, a violation of the principles of legislation. They were very sparingly to be resorted to, and not to be adopted unless there was something which amounted almost to a moral necessity. There were some instances where the Legislature had stepped in for the protection of parties who had through ignorance inadvertently violated the laws, and incurred penalties; but no instance could be found where persons guilty of a wilful violation of the law had found protection and indulgence from the Legislature; and more especially could no instance he found of such legislative interference where the important rights of others would be affected by such legislation. As illustrative of the mode in which the Legislature had interfered by retroactive laws, he would refer to the most recent instance of that kind—the Act passed in 1845 to exonerate the printers and publishers of newspapers who, in violation of the law against advertising foreign lotteries, had inadvertently inserted advertisements of that description in their newspapers, and thereby incurred penalties of 50l., half of which went to the informer, and half to the Crown. The Legislature interfered and saved them from those penalties; but it was a remarkable instance to show how careful it was not to interfere with the rights of individuals which had accrued, though merely by putting themselves forward to institute proceedings against the offending parties, that, although it declared that from the time of passing the Act, no proceedings should be instituted by a common informer, and referred the whole matter to the Attorney General, yet in the suits which had been instituted and carried to judgment, it would not protect the parties who had offended against what was considered the vested rights of those who had commenced proceedings; and those suits were only terminated on payment of costs by the parties proceeded against. That Act specially recited that those who had offended against the law, had done it through inadvertence. Taking the principle that the Legislature would only interfere in cases of ignorance or inadvertence, or where something like a moral necessity existed, let the Committee look at the position of those parties who, since 1835, had contracted marriages with a deceased wife's sister, and inquire whether they had erred through ignorance or inadvertence, or whether they had not 114 wilfully and deliberately violated a known law. Referring to a letter at page 143, of Appendix No. 18, he found the writer stating—"I knew, of course, that I was running counter to the Act of Parliament." In No. 19, a party says—"I did not imagine that Acts of Parliament could either create or annul moral obligations." [Mr. S. WORTLEY: Finish the sentence.] The writer adds—"Though I so far respected them as to have the marriage solemnised in a country where the union was legal." But that was not the object for which he had cited the passage. Though it might be doubted whether an Act of Parliament could annul a moral obligation, there was no doubt whatever that it could create one; for in the case of any law that was passed, not in opposition to the Divine law, there was a moral obligation to obey it. They were now dealing with wilful transgressors of the law, who knew perfectly well that the Act had rendered these marriages null and void; and there was no instance of the Legislature interposing for the protection of such parties. He might be referred to the Act of 1835, as an instance in which persons who violated the law, and knew they were violating it, had been protected by the Legislature, and their act rendered valid. It was, therefore, important to explain the circumstances under which that law was passed; and it would be found not to have the bearing contended for on the other side. Up to 1835, the law as to marriages within the prohibited degrees was this:—Although these marriages, which he held to be contrary to the Divine law, might be annulled by a suit in the ecclesiastical court during the lives of the parties, yet, on the death of either, the ecclesiastical courts could not interfere to invalidate the marriage, and render the issue illegitimate; or, if the ecclesiastical court was put into motion, the common law would interpose by prohibition. It had been erroneously supposed that the law made a difference between marriages within the prohibited degrees of affinity and those of consanguinity—that the latter were void, but that the former were voidable only. That was an entire mistake. Both were on precisely the same footing prior to 1835. Even had the shocking and revolting case of a brother marrying a sister occurred prior to 1835, if either party were dead, there was no possible mode of invalidating that marriage; for all practical purposes for conferring legitimacy and succession on the children, 115 the marriage was a good one. The law had not, in opposition to the Divine law, declared those marriges valid, but had merely, for the sake of the innocent children, prohibited the ecclesiastical courts from invalidating them. But, to show that it gave it no sanction whatever to these marriages, there could be no doubt whatever that, after the death of one of the parties, the ecclesiastical courts might have proceeded to punish the survivor for incest—showing that the reprobation of the original prohibition was still stamped on marriages of that description, and that they were never sanctioned by any law. During the whole lives of the parties, not only might any person interested in the succession have instituted a suit to annul the marriage, but the parties themselves, had they become tired of the union, or found it convenient to dissolve it, at however late a period during their joint lives, might have instituted a suit, and the marriage would have been instantly declared void. This brought the state of the law to the attention of the Legislature, and they had one of three courses to adopt, either to leave those marriages in the state in which they were, to render them void, or to make them binding. The first course was quite out of the question; with regard to the second, it would have been a harsh and cruel thing for the Legislature to have taken away from the children the chance which they had, if no suit were instituted during the lives of their parents, of becoming for all important purposes of life legitimate. There remained nothing else but to declare these marriages valid; and as the Legislature was about to pronounce an authoritative decision that for the future they should be avoided, a consideration of all these circumstances and the advantage of defining the law for the future, induced the adoption of that course. He was incorrect in saying that the Act of 1835 declared these marriages valid. It did not do so in terms; but it enacted that they should not be annulled by suit in the ecclesiastical court, with a reservation, however, as to the suits then pending. Thus, while the Legislature meant to prevent these marriages being annulled, it took special care not to declare them valid, as though reluctant to interfere with a divine prohibition. It was very remarkable that Scotland was excepted from that Act. Why? Because, by the law of Scotland, marriages of that description had always been considered null 116 and void. [Mr. S. WORTLEY: No!] He maintained, with great submission, that that was the general impression, and that was the reason why the Legislature had excepted Scotland. In order that parties should have no excuse for ignorance in future, and that there might be no doubt what was the law, the Legislature declared, in direct and positive terms, that for the future marriages within the prohibited degrees, whether of affinity or consanguinity, should be null and void to all intents and purposes whatsoever. After that, there could be no possibility of doubt as to the state of the law. The circumstances under which it was introduced were notorious; persons interested had their attention directed to the Act, and to the proceedings in Parliament; and the express and positive terms of the enactment shut out all fair or legitimate excuse for contracting marriages of that description. The parties well knew that the death of either of them would not prevent the ecclesiastical courts from annulling the marriages, and that all the fatal and painful consequences of illegitimacy in their offspring must follow. It was in favour of these parties, who, since 1835, in defiance of the law, had chosen to contract marriages of this description, that his right hon. and learned Friend proposed to interfere by a retroactive law rendering all those marriages valid, and investing them with all the rights, privileges, duties, and sanctions which belonged to a legitimate union. Would any one venture to assert that they had the smallest title to such interference? Upon what ground, then, ought the House to interfere? [Mr. HUME: The House has done so once, and will do it again.] He must say it was in vain to attempt to make any distinction intelligible to the hon. Member for Montrose. He had endeavoured to show the circumstances under which the Act of 1835 had been passed, and the distinction between what was done then and what was proposed now; but, from the remark of the hon. Member, he utterly despaired of making his proposition intelligible to him. It had been suggested to him that the hon. Member was going to vote in favour of his proposition; and he thought it very possible, as he had made an observation against it. As a reason for interference, the hon. and learned Member for Southampton had appealed to the compassion of the House, in favour of the innocent offspring of these marriages. Compassion was a most amiable quality, and it ought to be indulged, except 117 when higher considerations intervened. Were they to legislate in reference to the children of these marriages, they should be carried, if the principle was of any validity at all, to an extent in the same direction which they could hardly anticipate. In the course of inquiry into this important and interesting subject, the feelings of all must have been revolted by learning that marriages had taken place between persons related within very near degrees of consanguinity. There were the innocent offspring of these marriages; and if the House was to be consistent, and if they interfered merely for the sake of the children, and not of the parties themselves, could they stop short without rendering all these marriages valid, for the purpose of giving legitimacy to those innocent children? Throughout the country there were many more illegitimate children than the fruit of marriages of this description—all innocent victims of the shame produced by the guilt of their parents; would they push legislation to the extent of rendering all these persons legitimate? To legislate on the ground of compassion would open so wide a field in this direction, that it would embrace every case in which the criminal law imposed a punishment upon parties; for in most cases, the effect of crime extended beyond the criminals themselves to all who stood in a near relation to them. He submitted these considerations to induce the Committee to exclude from the Bill those who had wilfully violated the law, and who therefore could not be considered proper objects for this interference of the Legislature. He would appeal on this subject to his right hon. and learned Friend who had brought in the Bill, who was actuated by no interested motives, but had been induced to come forward by the sincerity of his convictions. He would ask him whether it was at all within the purpose of ordinary legislation, that parties who had acted in known, direct, wilful, and express violation of the law, should be put in precisely the same position as they would have occupied had the law been different, and the marriages which they had contracted lawful. Their position was this: they had contracted no marriages; their marriages conferred no rights, imposed no duties; no succession or legitimacy could follow from them. They were unions of a meretricious, and not of a matrimonial character. This Bill proposed, without any religious sanction, without any legal ceremony, to wipe 118 out the stain of fifteen years—to put the parties precisely in the same situation, with regard to all the rights and consequences of those marriages, as if they had been legal from the beginning, although they were utterly void to all intents and purposes—and to do that which no legislature had previously done, to render that a holy union which, for fifteen years in some cases, had been one unhallowed by any legal or divine right whatever. If the right hon. and learned Gentleman was actuated by compassion for the children, let him consider whether it was discreet to weaken any of those motives which induced men to abstain from disobedience to the law by a tender regard for those near and dear to them—whether it was at all consistent that those persons who had openly and flagrantly violated the law should receive—not the punishment, not the pardon of their offence even—but should receive, as a reward from the Legislature, the very fruits which they had derived from their offence. The right hon. and learned Gentleman had made a strong appeal to the House on the ground of the number of persons guilty of this violation of the law. If a few insignificant persons only had been found to have offended, he believed Parliament would never have been troubled with this question at all. Was it a consistent and just principle of legislation to say, that because the examples of offenders were multiplied—because the offence was rendered more dangerous by the number of persons guilty of it—that therefore the law was to retire before the numbers of those who had invaded it? On such a ground was the House to interfere for the protection and the reward of these parties, by placing them in the very same position in which they would have been had no offence against the law been committed? Objecting as he did to the principle of the Bill throughout, he felt that there was such a violation of all principle in the attempt now made to render marriages of this description valid, that he could not discharge his duty without fairly and fully laying before the Committee the grounds on which they ought to abstain from the proposed interference. Unless it could he shown that, under circumstances at all similar, with wilful and known violators of the law, the Legislature had ever interfered and protected them in the way proposed, he must condemn this legislation not only as being against principle, but as a dangerous invasion of existing rights. 119 This clause interfered in the most flagrant manner with the rights of individuals, the rights of property and honours. He would ask his right hon. and learned Friend whether he could bring forward any precedent, or anything like a precedent, for what he proposed in this clause? Believing that he could not do so, he begged leave to move the omission of the words he had stated.
§ Amendment proposed, page 2, line 23, to leave out the words "hath been heretofore or."
§ Question put, "That the words proposed to be left out stand part of the clause."
§ MR. S. WORTLEY
said, after what had passed that night previously to the division, and since, he was anxious to take the earliest opportunity in his power to explain the position of the Bill, and the bearing which the Amendment of his hon. and learned Friend would have upon it. He did not wish to advert to the language of the hon. Member for Exeter; but when the hon. Gentleman was aware that on that side of the question which he (Mr. Wortley) advocated, there were ranged some of the most eminent divines, some of the most pious men, some of the most virtuous, and, he would add, some of the most wise, both in the Legislature and among every class in the country, he thought it was hardly within the bounds of prudent language to designate a measure so advocated as an immoral and scandalous Bill. He thanked his hon. and learned Friend the Member for Abingdon for having stated publicly what he would not have alluded to himself—that not in the most remote manner, either by relationship or connexion, or even intimate friendship, had he the slightest interest in this measure. He was ready to say at once, in answer to his hon. and learned Friend, that he had no sympathy with the man who wilfully disobeyed the law; and that he had no wish to extend to him any relief; but, when his hon. and learned Friend referred to the number of cases that had occurred, and repeated the fallacy so often answered, that this was an appeal to the Legislature as a matter of compassion to the persons who had entered into these marriages, he must tell him that such was not the case. The argument was this—that there were so many who had entered into that state ignorant of the law—that there were so many who had entered it in the belief that they were contracting a valid marriage—and that there 120 were thousands of children suffering from this state of things; but, above all, that the fact of such a number of these marriages having taken place without the censure of public opinion, or of the societies in which the parties lived, established the fact that the present law was not in consonance with the public feeling. This was the state of the case; but he admitted that, if the Bill he had introduced was one for the relief of persons who had wilfully violated the law, he would be taking a course insulting to the House. He had been challenged to point out a precedent for the measure he had introduced. He would, in answer to this challenge, speak presently of the Bill of 1835; but in the meantime he begged to refer to the Act of Lord Hardwicke, which prohibited the marriage of children and minors without the consent of parents and guardians. This measure was found to lead to great inconvenience, for in spite of the law minors married, and children were born; and in 1823 an Act was passed to redress the grievance. This Act recited the mischiefs which the alteration in the law of marriage had produced, and made all past marriages actually valid, while a clause was introduced for the reservation of rights and honours. This clause he had transferred, word for word, from that Act of Parliament to the present Bill. Then, as for the Act of 1835, it was all very well to mystify the operation of that law; but, mystify it as they would, the real and practical effect of that law was to render all marriages of this sort that had taken place before valid. If that was so, did it not amount to a perfect precedent? His hon. and learned Friend said it was not so, because, before the Act of 1835, marriages of affinity were on the same footing with marriages of consanguinity, both being voidable; and it could never be contemplated to make all marriages of this kind valid. He referred to some cases of unnatural and monstrous connexion; but, practically speaking, these marriages never having taken place, no remedy was wanted for them. They punished murders, but they did not punish parricide as such; for, as Cicero observed, there were crimes so monstrous, that the law did not contemplate their being committed. [Here the right hon. and learned Gentleman quoted a passage from the writings of Mr. Serjeant Manning in support of his view.] Was such marriage lawful or unlawful before 1835? 121 His hon. and learned Friend contended that it was unlawful, and he (Mr. Wortley) argued that it was voidable; but the Act of 1835 removed the contingency by which such marriage might have been rendered absolutely void, and made it perfectly valid. That Act was therefore a positive precedent for the clause under consideration, for the whole effect of it was retrospective. It was intended to have that effect; and it had accordingly had the practical effect of rendering every such marriage that had been previously contracted perfectly valid. It was a curious fact, that during the pendency in Parliament of the Act of 1835 certain parties of very high position and standing in the relationship which the Bill contemplated, on making the fact of their intention known, received advice from very high authority to go and be married as fast as they could, and they did so. His hon. and learned Friend had said that everybody knew the provisions of the law of 1835, but that was not the fact. Many persons of all classes had contracted these marriages without any knowledge of such an Act having passed. How was it passed? It had been introduced in the House of Lords in July, and it reached the House of Commons late in August, when there was the thinnest possible attendance of Members. If it had been heralded into public notice at all, it was only by the speech by which it was introduced into the House of Lords by a noble and learned Lord, whose every word always attracted notice, as it would attract the notice of posterity. But what was that Bill when so first introduced? It was the enactment of a statute of limitations to prevent all such marriages from being disturbed. But afterwards, in perfect silence, and in fatal haste, as regarded the great body of the people, by a compromise—an unworthy and unprincipled compromise—all such past marriages were rendered good, and all such future marriages were rendered illegal. And what had been the consequence? An hon. Member, at the time, said that if the Bill passed in that shape, it would be a cause of disturbance to every family in the kingdom. And had the Act produced no disturbance? He had received a letter stating these facts: Two persons of high station, with the perfect consent of both families, were engaged to be married at the instance of the deceased wife. On the 1st of September, 1835, those persons were married, and they went upon the 122 ordinary tour. The writer stated that when he returned to the bosom of his family, and among his friends, he was informed that in the meantime an Act had passed the Legislature, and had received the Royal Assent on the 31st of August, which rendered his marriage invalid, so that he had been necessarily living in a state of concubinage. This gentleman knew of the law, which had been smuggled through the House in the manner he had described. But, how had it affected the lower classes? He wished further to refer to the evidence of Mr. Tyler, whose testimony was illustrative of this point. He said, in his examination, that he believed the law was very little known. [Sir F. THESIGER: And that he did not know of a marriage of this sort.] Yes, and what was the fact? Why, in throe weeks after, Mr. Tyler discovered that one of his own churchwardens had contracted a marriage of tills sort. [The hon. and learned Gentleman read extracts from the evidence of clergymen given before the commissioners, in which they stated their belief that the law had hardly any effect in prohibiting these marriages among the lower orders.] Great doubts were also entertained among many eminent men whether the law rendered these marriages illegal if they had boon contracted in countries where such marriages were recognised. It was a very prevalent opinion, that if the marriage were celebrated in Scotland, it would be legal. In 1840 a learned advocate of high station, and in the confidence of the Church of Scotland, had given an opinion that such a marriage was valid. But, whether that opinion was right or wrong, many persons from England and Ireland went to Scotland to be married, that they might have the benefit of what was supposed to be the law of the land. Lord Justice-General Macqueen was of opinion that such a marriage was a good marriage. Now, he would not ask the compassion of the House, but he would appeal to their sense of justice, with regard to the children. If legislation had entrapped persons into this painful situation, would they not, as in 1823, and as in 1835, at all events relieve them from the stigma which the law had thrown upon them? But what would be the effect of his hon. and learned Friend's Amendment, supposing the words he proposed to strike out were omitted, and the rest of the Bill should be carried? The effect would be, that if those persons who had already transgressed the law were 123 to-morrow to go and be married, they would get all the benefit of this Bill, while their children who were already born would be left illegitimate. Thus the peccant parties would hare all the benefit, whilst the innocent would undergo all the injury. In spite of all that had been said to the contrary, he would repeat, that it was not true that this was a measure merely affecting persons in high stations, but that it concerned, to a great extent, the middle and lower classes of the people. Among many oases that had been forwarded to him, was that of a pauper who was an inmate of the workhouse of St. Margaret's, Westminster. On her being examined as to her place of settlement, she said—James—married my sister at Paddington in 1841. She died in October, 1848. James—then married me at St. Margaret's, Westminster. My mother married my father, James—, at St. Andrew's Undershaft; my father had previously married my mother's sister.Experience had shown that after persons had lived together for years as man and wife, and had reared up a family of children, on investigation it had turned out that the wife was by law no wife at all, and that the children whom they had regarded as legitimate were declared by law to be bastards. What was the consequence? The father was sent to one settlement, the mother to another, perhaps 200 miles apart, while the children were sent to a third, and none of the parties would ever see one another again. Would the House then allow an Amendment which inflicted such an injury, especially upon persons who were perfectly innocent?
said, as the hon. and learned Gentleman the Member for Abingdon had challenged the House to produce a precedent, he would offer him one. In the days of Catholic domination in this country, the marriages of priests were prohibited; but in the reign of Edward the Sixth they were legalised. During that reign, priests married in Great Britain, and had families. When the next sovereign, of unhappy memory, filled the throne, such marriages were declared illegal. But nobody could feel a reasonable doubt, that many ecclesiastics who—so to speak—had learned to marry from the example of their predecessors, must, during Mary's reign, have taken to themselves the comfort of wives under circumstances of evasion of the law, which were satisfactory to their own consciences. When Protestant sovereigns returned to the throne, he 124 would ask whether those marriages and their offspring were not legitimised by Act of Parliament? The precedent applied in every point to the case under discussion. There was a breach of the existing law: everybody know that; and a subsequent Act of Parliament legitimised the off-spring. But why did these people break the law? Because they did not believe it was just and right, but had been made upon a false application of the words of Scripture. It being proposed now to alter the law as regarded parents, he saw not a shadow of reason why the offspring should not have the benefit of the change; and here was the decisive precedent. He appealed to the House whether that was not the most essential part in the Bill, which gave a remedy to those who were suffering from the past legislation?
§ MR. PETO
, being one of the few Dissenters who were Members of that House, felt that he should fail in his duty if he did not express how deeply the millions with whom he was connected out of doors felt on this question. They felt that a question so sacred as that of marriage should be approached only on the unquestioned authority of the word of God, or as a great social and State necessity. Professing in things sacred only the word of God as their rule of action, and believing that no interdict was to be found in the Scriptures of such marriages, and knowing that when made the subject of legislation it had not been approached in that spirit in which it ought to have been affecting as it did the happiness of the whole community, they avowed that the question had not been settled to their satisfaction. Previous to the Act of 1835 there were no petitions showing that any extensive dissatisfaction with the then state of things had arisen. There were no leading articles or correspondence in the public journals, or anything that showed from the state of public feeling a necessity for legislation. On the contrary, the Bill, as introduced in 1835, was to legalise those marriages; but, in its progress through the Upper House, it was also converted into a Bill annulling those marriages in future. He considered that the religious aspect of the question had been virtually given up. There was no solid ground to rest upon: the only points mooted were the passages in Leviticus, which were in themselves extremely doubtful; and if the Hebrew nation was referred to it would be found that they held an opinion directly 125 the reverse of what had been stated. He was acquainted with the working classes, and he must tell the House that the Act, in reference to their happiness, had worked most injuriously. He could show a number of instances where the parties were not aware of the Act, and also instances where parties finding that they were not bound by the most sacred of all ties, had repudiated their offspring. He felt that their legislation should have for its object the happiness of the whole community, and not of a sectional part of it; and he could assure the House, on the part of the dissenting community, that through the length and breadth of the land, this law was repudiated. It was not based on Bound principle; its object was not the welfare of the whole community; and it was inoperative in its working, for it did not check that which it was intended to check. Believing that it was not based upon the word of God, and that it had not its foundation in necessity, moral, political, or otherwise, they demanded that a law hastily and unwisely enacted should be annulled.
§ MR. NAPIER
agreed with the hon. Gentleman, that if they legislated at all upon this subject, they should legislate for the welfare of the great body of the community. He found on the face of the report that almost the entire people of Ireland and of Scotland, and a large body of the people of England, were against this measure. He might, on that ground alone, ask, why were they to legislate for the benefit of a few who, from ignorance or from contempt of both human or divine laws, had contracted this relationship? With regard to Ireland, he was not acquainted with a single individual, whether a member of the Established Church, or of the Roman Catholic Church, or a Presbyterian, who had expressed an opinion in favour of this Bill. He agreed that they should legislate for the welfare of the great body of the community. Now, it was admitted in the report of the Commissioners, that almost the entire people of Scotland and Ireland, and a large portion of the people of this country, were against this measure. In fact, they were called upon to pass this Bill to carry out the objects and purposes of a few individuals. In Ireland, a great majority of the Established Church, and also the ministry of the Presbyterian Church, disapproved of these marriages. Amongst the laity of the united kingdom, said the Commissioners, 126 there were differences of opinion on the subject of these marriages; but they thought the prevailing opinion was against them. It could not be said there had not been ample time for the consideration of this question; and yet, would any hon. Member stake his reputation for accuracy on the assertion that the majority of the people were in favour of this measure? As far as Ireland was concerned, he could say, that both with regard to the Established Church and the Presbyterians, he had not met one single individual with whom he was acquainted who was in favour of it. In fact, every one with whom he had conversed on the subject, was adverse to it. They had the concurrent testimony of all Christian churches against the principle of the Bill; and the only sect of the Jews, which adhered to the text of Scripture in that respect, agreed with the Christian churches. He now came to the question of the retrospective effect of this Bill. What did the Commissioners say upon that point? They said, that with regard to marriages contracted since Lord Lyndhurst's Act, very few had taken place among the poorer classes. If that were so, what an example were they setting to the community? They had persons in the better ranks of life violating the law of man, and that which was believed by a large proportion of the people to be the law of God; and that was to be sanctioned! Let them legislate as they would in this matter, there would still be this mischief, that they never could convince the great body of the people of the united kingdom that these marriages were consistent with the law of God, whilst they would at the same time derange the whole structure of society. Upon these grounds he had no hesitation in supporting the Amendment of his hon. and learned Friend.
§ MR. COCKBURN
said, he was not disposed to follow his hon. and learned Friend who had just addressed the Committee, in addressing himself to the principle of the Bill. They were all agreed to discuss the question on the supposition that the principle of the Bill had been admitted on the second reading; and the question then was how far they could adopt the clause before the Committee. The principle being adopted, he took it the measure was to pass; and the question then was, whether they would give it a retrospective and retroactive effect. He wished to know why they should not. The hon. and learned Member for Abingdon had inveighed 127 against legitimising marriages contracted where consanguinity existed; but this measure proposed to do no such thing. Because whatever feeling of compassion they might entertain for the issue of such marriages, in a legitimate point of view, nevertheless these marriages were contrary to human and divine law, and no legislature could adopt them. The present was a different case, for here they were called upon to adopt the principle of legitimising in prospective. They all knew that in Scotland a man might, a few hours before death, after having lived during his life in a state of concubinage with a woman, marry that woman, and their children were consequently legitimised. Therefore the idea was not at all so monstrous as his hon. and learned Friend would wish to make it appear. By the present Bill they did not contemplate validating marriages contracted within the prohibited degrees of consanguinity, or the marriages of parties who had previously lived together in a state of concubinage—therefore the argument did not apply. It was proposed by the Bill to legitimise a certain class of marriages; and the question then was, would they extend its provisions to such marriages as took place since 1835? When that measure passed the House, it was on the distinct understanding that it should not be considered as conclusive of the question, which should again be open for reconsideration by that House. It was well known that when Sir William Follett pressed the Bill on the House, and when it was suggested as an argument against it that it would have the effect of altering the law, his answer was, that its object was to secure the validity of marriages that had already taken place, under the existing state of the law, and to prevent parties who had contracted such marriage being questioned as to the legitimacy of such marriage or its issue. He also said, "Let it pass, but on this principle, that whenever the question shall be brought before the House, it shall be considered an entirely open question." In consequence of that, many parties had contracted such marriages. As the Act had reference only to marriages solemnised within the realm, many parties were advised that by repairing to Germany or Denmark, and marrying there, such marriages would be legal, and, consequently, such marriages were contracted in those countries. He was aware that the Lord Advocate of Scotland admitted, in his evidence before the 128 Commission, that the law of Scotland was extremely doubtful on the point, as to whether a marriage of this description, solemnised in Scotland, was legal; but there was no question whatever that marriages contracted on the Continent were perfectly legal. His hon. and learned Friend the Member for the University of Dublin had talked of such marriages as being opposed to divine as well as human law. Now he wished to know how that could be said, when the opinion of the Church, as well as of the community outside it, was divided on the matter; and, therefore, how any such assertion could be made, was to him (Mr. Cockburn) perfectly monstrous. Let them, if they would, discuss the question on social or moral grounds; but certainly such assertions were not justified by the facts before them. The same hon. and learned Gentleman asserted that the churches in all ages of Christianity were opposed to such marriages. Now the hon. and learned Gentleman might have abstained from that assertion, because it had been declared by the hon. Gentleman who preceded him (the hon. Member for Norwich), that the Dissenters were perfectly unanimous in favour of the measure; and such being the case, it was not competent for his hon. and learned Friend to assert that the universal Church condemned the principle of the Bill before them. For the present, it mattered not what the opinion of the Church or the Dissenters was, because, the principle of the Bill being adopted, he assumed it was to pass as regarded future marriages; and the only question then was, whether they should apply the principle of the measure to marriages that had been contracted since the Act of 1835. Though they had been in the habit of regarding marriage more in the light of a religious ceremony than a civil or legal contract, yet it would be in vain for them to pass prohibitory laws, if the matter were in any way left in doubt. If other countries sanctioned those marriages, and if by resorting to those countries marriages of validity could be solemnised—and that the consciences of the parties felt at ease, and free from the idea that they were living in concubinage—they would not hesitate to violate any law to the contrary, particularly when they felt that the instincts of human nature acted in unison with their conscientious convictions.
§ MR. W. P. WOOD
would not argue again the principle of this Bill; but, as the right 129 hon. and learned Gentleman the Member for Bute had made a pointed allusion to one part of what he (Mr. Wood) had stated on a former occasion, which involved a question of fact, perhaps the House would allow him to make a few observations upon it. It was indeed a monstrous fallacy to say that this was a Bill for the poorer classes. That there were one or two rich men who were deeply interested in it, he well knew; but there never was a more monstrous fallacy than the assertion that the poor were in the least degree interested in it. Now what he had stated on a former occasion was this: that in the parish of St. Margaret, Westminster, or at least in that parish and St. John's, there were between 20,000 and 30,000 poor—if he had spoken of all classes he should have said 60,000, for that was the population—but he spoke only of the poor; that he had taken great pains to obtain information on the subject from persons who were in the habit of mixing among the poor, being employed in distributing charity, which alone was a proof that he was speaking of the poor; and that he bad discovered only one case of a marriage of this kind. The right hon. and learned Gentleman said there were twenty-one such cases, but they were marriages amongst all classes. [Mr. S. WORTLEY: No! I spoke of small shopkeepers and artisans.] But the small shopkeepers were a very wide class, and persons who were employed in distributing charity would not be likely to go amongst that class—they were not the poor. The poor were the labouring classes. Now, the Commissioners in their statistics gave 1,500 of these cases, and only forty amongst the poor; by the poor he (Mr. Wood) meant labourers and mechanics. That was about 1–35th of the whole number; and if the right hon. and learned Gentleman took the twenty-one cases in the families to which he (Mr. Wood) had referred, 1–35th would give him not one case among the poor. He knew that there had been a great many pamphlets in circulation, and advertisements in the public newspapers on the subject. A gentleman did him the favour to send him a copy of the Times, containing an advertisement in favour of the Bill, and on the following day he was likewise complimented by receiving a copy of the same advertisement, printed on a handsome sheet of paper. The letter was, he believed, written by a respectable person, an agent for a missionary society, and it stated that there were three 130 other instances of these marriages to be found amongst the poor in the two parishes to which he had referred. Admitting that statement to be correct, it would then appear that there were only four such marriages in a population of 30,000. Under these circumstances, how could it be pretended that there was a case of enormous grievance as regarded the poor under the existing law? It ought, perhaps, to be stated, that although he was willing to admit the statement respecting the three marriages, it was impossible to subject it to the test of accuracy, because when inquiry was made for the names of the parties who had contracted the marriages, the informant said he did not recollect the names in a single case. A clergyman in the Potteries had also written to him, stating that he knew of many cases in which men had married two sisters, one after the death of the other, and that he had performed the service in one such case himself. He (Mr. Wood) said, he was sorry to find that the rev. gentleman bad gone through the marriage service in such a case, because he knew that he ought not to have done so; however, he accepted it as a fact, and would be much obliged to him if he would furnish him with the names of the parties who had united themselves in the other cases. After be had made that request, he never heard from his rev. correspondent again. These circumstances confirmed the opinion he had formed, from his own observation, namely, that few of these unions took place amongst the poorer classes. Indeed, it must strike every one that poor men had seldom an opportunity of marrying a deceased wife's sister, for in consequence of the poor, generally, marrying while very young, it was extremely rare that on the death of a wife she loft a surviving sister unmarried. The hon. and gallant Colonel the Member for Bradford, maintained that it was proper to legislate ex post facto in favour of persons who, he said, had violated an unjust and immoral law. Now the law which the hon. and gallant Member treated in this offhand manner had endured only from the time of the Heptarchy! For his part he thought the law was very just and moral, and hoped that the Legislature would never permit it to be altered. The proposed change of the law was defended on the plea that it was desirable to do justice to the children who were the result of these illegal unions. The hon. and learned Member for Abingdon had so ably disposed of 131 that point, that it was unnecessary to dwell upon it further than to remark, that the hon. and gallant Colonel himself was disposed to inflict what was called injustice upon one class of children. The Bill of last year proposed to legalise marriage with a wife's niece. The hon. and gallant Colonel, it seemed, had a particular fancy against that description of union—he used the word "fancy," because the hon. and gallant Colonel discarded all religious considerations with reference to this question; nevertheless he declared his intention to vote against the third reading of the Bill, unless the sanction which it gave to a marriage with a wife's niece should he struck out in the Committee. It was probably in order to satisfy the hon. and gallant Member's single scruple of conscience that the clause for legalising marriage with a wife's niece was omitted from the present Bill. The consequence would be, that the children, the fruit of such unions, would continue subject to the same injustice which in the case of other children was urged as a reason for adopting the measure. That was not the only exception; the Bill teemed with exceptions, and a remarkable one was to be found in the clause then under the consideration of the Committee. If, in addition to establishing a connexion with his wife's sister, under form of marriage, a man should be guilty of the further immorality of deserting that woman, and marrying another, the clause declared that the union with the wife's sister should not be a marriage. In this case no pity was shown for the offspring of the union. Exceptions and inconsistencies of a like nature were to be found in Clause 4, relative to property and honours. It was a matter of surprise that the right hon. and learned Member for Buteshire should have referred to the alteration in the Marriage Act relative to minors, as a precedent for the change now proposed to be made in the law. Marriage with a woman under age was, in itself, neither an immoral nor an irreligious act, although it might be attended with social inconvenience. Experience satisfied the Legislature that it would he less injurious to society to legalise such marriages, than to afford designing men an opportunity of entrapping girls into unions, and subsequently turning them adrift; therefore, the marriages were made valid, whilst parties contracting them were rendered liable to punishment. It was preposterous to pretend that the cases were parallel. If this Bill should pass, Parliament 132 would not be allowed to stop here. Step by step the Legislature would he drawn on to legalise marriages of blood relations.
§ MR. ROUNDELL PALMER
said, the question was whether they would or would not accede to the views of the hon. and learned Member for Southampton, namely, to recognise in a subject of the realm the right to say that the duty of obedience to statute law must be limited by the extent to which the consciences of individuals recognised the law as binding upon them by a higher direction than that of an Act of Parliament. In other words, was Parliament prepared to abdicate its right to legislate upon this subject? They were called upon to say that if a number of persons differed upon a theological point—if they prohibited any marriage upon the propriety of which there was a difference of opinion—he begged of the House to mind the steps in the argument, first, to eliminate a theological difference of opinion'—then it was set forth the divine law was not distinct, as there was such a difference—that being so, the moral obligation to obey the law of the land ceased—that the disobedience was innocent and even laudable, because it was according to conscience; and, finally, that Parliament was bound not merely to alter the law, but to give retrospective validity to illegal acts. Where was that principle to end? They might depend upon it that the relaxation would not end here—it went much further than this measure. Did not Parliament consider that marriages came fully under their consideration? Had they not enacted that bastardy arose from neglected formalities and arbitrary regulations? Take the difference between England and Scotland. In Scotland the marriage contract was performed without going to the registrar, if the parties were desirous of living together as man and wife, and recognised each other as such. A marriage was thereby constituted, and the children born before and after marriage were legitimate. In this country it was different; and who would say that the regulations we imposed were not salutary and useful? By the principle they were asked to sanction in this clause, they were, in truth, holding out a premium for disobedience—a positive inducement to disobey the law—nay, more, pointing out to the Queen's subjects the mode in which the law could he evaded. Sanction this clause, and all that would be considered necessary was, to get a sufficient amount of money—procure some agitation 133 —get some lawyers to travel over the country to collect what was called evidence—advertise well in the newspapers—let men disobey the law in the first instance, and the result would be that, the law having been disobeyed, Parliament would be called upon, upon expediency motives, to alter it, and those who had violated the law would reap the fruits of their disobedience. The hon. and learned Gentleman the Member for Southampton had stated that counsel had given opinions that such marriages were legal if solemnised in Scotland, or on the Continent; and he suggested that, because lawyers had given such opinions, there must be some doubts upon the construction of Lord Lyndhurst's Act. He (Mr. Palmer) denied that there was any doubt whatever about the law—there was no pretence for a doubt. He knew very well that in this country lawyers would be found to give any opinion they wished upon any question. He would tell them the way to obtain such opinions. Choose the man who you think will give the opinion you wish for, whose mind and inclinations are in that direction—or get the opinion of a man who had but little experience or practice in the law—or a man who went about the country to collect evidence, and whose; opinions were thereby warped—or place the case before an eminent man who from the press of business had not time to read up the matter—in any of those cases they might obtain a favourable opinion. But what was the fact? It did not appear that, with one exception, they had obtained an opinion favourable to such marriages from any eminent counsel but one, and that one who was now one of our most honest and upright Judges, when he reached the bench, agreed with his learned brethren, and thereby admitted that the opinion he had previously given was an erroneous one. Upon all these grounds, and believing the Bill bad in principle, he felt bound to support the Amendment of his hon. and learned Friend the Member for Abingdon.
§ MR. BOUVERIE
said, he was not going to make a speech on the subject again. He had already expressed his opinions and given his vote against going into Committee on the Bill, He, however, now considered that the question as to the principle of the measure was settled, and that they might, therefore, take it for granted that it would pass and become an Act of Parliament. The simple question was, whether the proposition of the right hon. and learned 134 Member for Bute was correct; and, upon the whole, he (Mr. Bouverie) felt he ought to support the Bill. It would certainly inflict an injustice upon the offspring of those marriages. There was no question about punishing parents; the only question was as to the punishment inflicted on the children. It was the duty of the Legislature to see that the children of those marriages were not prejudiced or injured, as they were the fruits of connexions now declared to be legitimate and proper. Although he had voted against the principle of the Bill, he now felt he ought to support the proposition of the right hon. and learned Member for Bute.
thought the Committee had involved itself in considerable difficulty by not discriminating the religious from the social part of the question. He did not understand how it was possible, if the Bill were passed, because hon. Members believed it to be according to the law of God, that they should declare the children of those who had formed these connexions illegitimate. He did not understand how they could say that such connexions were according to the law of God at one time, and not at another time. He would not; admit that the Bill was to pass and become the law of the land. If no one else did so, he should divide the House against the third reading, and take every advantage that he could to destroy the Bill in Committee. But he could not see on what; ground they could refuse to legitimiatise the children, if from this moment they sanctioned these connexions; that, he agreed, was a mere act of justice to all those who were innocent. But hon. Members had taken ground considerably too high, and when they said the religious part of the question was given up, he begged to inform them that he wholly disputed their power, right, authority, and capacity, to interpret the word of God. The will of God would remain what it was, whether they voted one way or another. They said the Church was divided on the subject. So long as the Church could express unity, her voice was unanimous in condemning those marriages. If they wanted to know what was the opinion when the law was first given, they must look to the interpretation of those who lived nearest to the time; and from that hour down to the Reformation there never was a question on the subject. Seeing the whole people of Scotland were so violently opposed to this measure as he knew them to be—looking to the similar 135 opinion of the great majority in this country, for he had never met, out of that House, one person in favour of the Bill—["Hear!"]—others might live in different society—when he was told that the great majority of the Dissenters in this country were in favour of the Bill, though their opinions were ordinarily much more in harmony with the opinions of the Church of Scotland than with those of the Church of England, he must confess his belief to be that the popularity of the measure in that House arose from its being thought another stab would by this means be given to the authority of that Church; and that more on that ground than on any other the measure had received any sanction.
§ MR. HEALD
bore personal testimony to the fact, though the hon. Member for West Surrey might not be aware of it, that marriages of this kind had taken place for years past to a very great extent; and he also expressed a conviction that a petition which he had presented from Stockport, in favour of the Bill, signed by the mayor and 500 of the principal inhabitants of the town, correctly represented the feeling of that borough. He should therefore vote in favour of the innocent persons specially contemplated by the clause under discussion.
§ MR. C. ANSTEY
denied that the concurrent judgment of recognised Christian churches was against marriages with a deceased wife's sister. Unless the Church of Scotland, which was divided into two sections, had declared itself against them, no recognised church had expressed an opinion. The Church of England, according to the statement of the hon. Member for Surrey, had no organ by which she could express an opinion, or determine any question with respect to discipline or doctrine whatsoever. The opinion of the Roman Catholic was explicit. In Ireland, where the genius of the people did not favour such marriages, whether the people were Protestant or Catholic, they did not take place; but elsewhere they were as common as among persons who were not of the Roman Catholic faith. Dr. Wiseman declared, that as Vicar-Apostolic of the Pope, he had to grant, for such marriages, hundreds and hundreds of dispensations. [Mr. DRUMMOND: Hear, hear!] So profound a canonist and theologian as the hon. Member for West Surrey knew that a dispensation could give no relief from the prohibitions of the law of God, but only from the prohibitions of the 136 Church. The prohibition was imposed for wise social ends, and for equally wise ends the power of dispensation was reserved to the Church. A dispensation was equally needed in the case of first and second cousins. The Roman Catholic conscience in this country had not had time to conform itself to the morality of their recent legislation. But was the law of the country in antagonism to the law of God on these marriages before the 5th year of William IV.? Did the country first become Christian, making its laws conformable to the law of God, in 1836? With respect to the social consequences, he knew a case which had occurred since that time, of a man who by the first wife had no children, by the second a large family. Those children were bastards, not by common law, but by the statute of William IV., that sacred Act, the proposal to alter which was held to argue infidelity and blasphemy. In consistency the opponents of the Bill ought to take away the power of defeating the present absurd and oppressive law by testamentary deeds. The parties in the case he had mentioned celebrated the marriage according, not only to their conscience, but the law of their Church—a tolerated, and therefore, according to Lord Mansfield, an established Church—the Church of Rome. He should vote against the Amendment.
§ MR. MULLINGS
called attention to the operation of the clause in cases where an estate had been left to an elder son with succession to his children, and similarly to a younger son. If the elder brother married his wife's sister, were the children of the younger son, not being born of such a marriage, to be affected by the retrospective operation of the clause?
§ The Committee divided:—Ayes 111; Noes 68: Majority 43.
|List of the NOES.|
|Acland, Sir T. D.||Duff, J.|
|Arbuthnot hon. H.||Duncan, G.|
|Arkwrightt, G.||Dundas, G.|
|Beresford, W.||Du Pre, C. G.|
|Boyle, hon. Col.||Farrer, J.|
|Broadley, H.||Fordyce, A. D.|
|Butler, P. S.||Gladstone, rt. hn. W. E.|
|Chatterton, Col.||Goulburn, rt. hon. H.|
|Clerk, rt. hon. Sir G.||Grace, O. D. J.|
|Cotton, hon. W. H. S.||Greene, T.|
|Cowan, C.||Hamilton, G. A.|
|Cubitt, W.||Heneage, G. H. W.|
|Currie, H.||Herbert, rt. hon. S.|
|Dick, Q.||Hildyard, R. C.|
|Drummond, H. H.||Hildyard, T. B. T.|
|Duff, G. S.||Hood, Sir A.|
|Hope, A.||Peel, rt. hon. Sir R.|
|Hornby, J.||Peel, Col.|
|Hotham, Lord||Portal, M.|
|Hughes, W. B.||Pusey, P.|
|Inglis, Sir R. H.||Reid, Col.|
|Jones, Capt.||Richards, R.|
|Law, hon. C. E.||Seymour, H. K.|
|Lennox, Lord A. G.||Simeon, J.|
|Lowther, hon. Col.||Smollett, A.|
|Lygon, hon. Gen.||Stanley, E.|
|Manners, Lord C. S.||Stanton, W. H.|
|Maule, rt. hon. F.||Turner, G. J.|
|Moore, G. H.||Tyrell, Sir J. T.|
|Mullings, J. R.||Vivian, J. E.|
|Mundy, W.||Walpole, S. H.|
|Mure, Col.||Wegg-Prosser, F. R.|
|Oswald, A.||Thesiger, Sir F.|
|Palmer, R.||Wood, W. P.|
§ SIR F. THESIGER
said, that this Amendment having been lost, he would not press the others of which he had given notice.
§ MR. ROUNDELL PALMER moved the insertion of words limiting the validity of such marriages to all "civil and temporal" intents and purposes.
§ MR. ROUNDELL PALMER
said, that although he had given no notice of any Amendment to the remainder of the clause—not seeing how it could be usefully done—yet he could not allow so important a point to pass altogether sub silentio. The clause professed to affect the validity of all such marriages where by "verdict, judgment, decree, or sentence in sonic action, suit, or proceeding, civil or criminal, either in the ecclesiastical courts, or any of Her Majesty's superior courts, the husband shall, in the lifetime of his said deceased wife, have been found or pronounced guilty of adultery with the other party to such marriage." Now he thought that this qualification, while it was a confession of the weakness of the whole case, afforded no remedial power whatever with respect to the mischief in view, because it was well known that, with reference to the poor and labouring classes, there was hardly an instance of a conviction for adultery—the law of divorce in their case being practically a dead letter—and hence it was absurd to insert a qualification, saying that something must be done which in 99 cases out of 100 could not be done. Even in cases where it might be done, the chances were that it would not, and therefore the clause afforded no real practical security whatever against the danger in 138 question. It was clear in the great multitude of cases, where a man had adulterous connexion with his wife's sister, it was not at all probable that they would be prosecuted to a judgment in the courts, and, above all, where the parties belonged to the lower classes. Since the Bill was last before the House, a case had come before the public of a man and a woman having been executed at Cambridge for the murder of the wife of the first, and the sister of the latter criminal, between whom, it appeared, an adulterous intercourse had for some time been carried on. Such a case as that would not be mot by this proviso.
§ MR. F. MAULE
rose to move a proviso at the end of the clause, of which he had given notice, namely, that nothing in this Act contained should be considered to apply to Scotland. His original intention was to put this provision exactly in the same words as it stood in the Act of 1835, from the effects of which Scotland was entirely exempted; and he could not understand upon what ground a country, which was not only opposed to marriages of this description, but in which the marriages were stated not to exist, should be included in this Bill, or why a law should be forced on Scotland to which the whole people were repugnant. He trusted that the House, especially those who had a regard for the opinion of the people, would not stand by and see their opinions entirely set at nought. Let him point out what had happened, not only as to Scotland, but with respect to the whole Presbyterian persuasion. Look at the evidence taken by the commission, Whilst there were witnesses from the Church of England, from dissenting communities, and priests from the Church of Rome, not one clergyman of the Presbyterian denomination had been found to give evidence before the Committee; because it was well known that no Presbyterian minister would be found who would have the slightest doubt on the subject. A public meeting had been held in Edinburgh, and a committee had been constituted to oppose this Bill. An intrusion of a very extraordinary character was made by the paid agents of the supporters of the Bill. The meeting was not a whit the less public because the agents were not allowed to move resolutions. He hold in his hand a list of 262 persons, at the head of whom he found the name of the Lord Provost of the city of Edinburgh, and also the Principal of the University, and the representatives of the 139 Episcopal Church in Scotland. It was signed by the ministers of the Church of Scotland, and by ministers of every persuasion all mingled together; by the sheriffs of Fife and Edinburgh; by numberless magistrates of the city, by professors of law and others. He understood by the petition which was presented from Edinburgh, that the vast body of the community was entirely opposed to the principle of the Bill. He would now refer shortly to the petition presented that day from 6,000 of the most respectable females in Edinburgh, all of whom expressed themselves diametrically opposed to the principle of the Bill, and stated that they looked upon it as one the effect of which would be to destroy the whole fabric of society. He would now call their attention to the feelings of the people of Glasgow, in which place a public meeting was held, at which certain resolutions were adopted in opposition to the Bill. His right hon. and learned Friend the Member for Bute had presented a large petition from Glasgow that night in favour of the Bill. He (Mr. F. Maule) was informed on good authority that some paid agent of the promoters of this Bill had tried to get up a meeting at Glasgow in its favour, and had utterly failed, inasmuch as he was unable to get one single respectable man to preside at it. That being so, this petition had been got up, and he held in his hand a paper stating the manner in which it had been got up. It stated in the first place that a meeting was held for the purpose of opposing this Bill, that Sir James Campbell occupied the chair, and that resolutions in opposition to it were passed without a dissentient voice. It then stated that immediately after a gentleman of the name of Sleigh, an itinerant barrister-at-law in the pay of the promoters of the Bill, appeared at Glasgow, and attempted to get up a meeting; that he could not accomplish his object, nor could he even get one respectable citizen to become a member of a committee to take steps to promote the Bill. It then appeared from this statement that Sleigh employed and paid a sheriff's officer to get up a petition, and hired porters to stand at the corners of the streets, and others to go from door to door soliciting signatures. It was also represented to be a petition on the Marriage Bill; and the placards which were posted about Glasgow in reference to it had the words which conveyed its real tendency so indistinctly printed, that it was almost impossible to tell what its real object was. 140 If that were the fact, it was a confirming proof of the opposition of the people of Glasgow to the Bill, when it was found that not a single shopkeeper there allowed the petition to stand on his counter for signatures. The only public place where it was allowed to stand for signatures was at the Exchange, where no petition could be refused to be received, and even there it got but very few signatures. Such, however, being the way in which the petition was got up, it could not be expected that it in any way expressed the feelings of the people of Glasgow, as a great many had signed it under a false impression, and it could only be held as representing the feelings of a very small minority of the people. With reference to the application of the principle of this Bill to Scotland, he would ask the House what necessity there could be for it in that country? Those marriages had never existed there at any time, and the reason why they had never existed stood upon two grounds. In the first place, they were repugnant generally to the feelings of the people; and in the next place they were contrary to, and directly in the face of, the Confession of Faith in the Scotch Church. He might also add, that whatever might have been the differences between the Dissenters in Scotland on other matters, they always had maintained, and he hoped they always would maintain, their deep-rooted attachment to the Confession of Faith. Not only were these marriages repugnant to the feelings of the people, and not only were they forbidden by the Confession of Faith, but he was informed that there was not one instance among the few that had taken place in Scotland of that kind, whore the parties who had contracted it had ever been able to maintain their position in the neighbourhood in which they had previously lived. They were always obliged to go to some distant land where the character of their marriage was unknown, and where they were enabled to live in comfort and peace as far as regarded the interference of other individuals. The Confession of Faith in Scotland was not only part of the law of the Church, but it was engrafted in and amalgamated with the law of the land. The 24th chapter of the Confession of Faith, which related to marriage and divorce, laid down that a man may not marry any of his wife's kindred nearer than those whom be may marry of his own kindred; and that a woman may not marry any of her husband's kindred nearer than 141 she may marry of her own. That was the distinct law which this Act was now introduced to set aside. He did not give up one iota of the grounds on which that law stood; and he would take that opportunity of expressing his confidence in the originators of the Confession of Faith, and his belief in the truth of their interpretation of the religious part of the question. He would now remind the House of the sad disasters which must arise in Scotland if this Bill were passed. The hon. and learned Member for Southampton had stated that it was the law in Scotland that in cases where a man lived in a long state of concubinage with a woman, he may at length, at the moment of dying, enter into the bonds of wedlock, and so make the children legitimate. He would ask the hon. and learned Gentleman if he would agree to have the same law extended to England? Would he like to see that system of law established in England which he so condemned in Scotland? He (Mr. F. Maule) did not approve of the continuance of such a law, and he had done all in his power to get rid of it. If the introduction of such a law would be objectionable in England, why should it be insisted upon that for the purpose of assimilating the law, they should extend this Bill to Scotland, and give it the same force there as in England. He had no doubt that the hon. and learned Member for Southampton would refer to the Scotch law; but he (Mr. F. Maule) would call the attention of the House to the evidence of the hon. and learned Lord Advocate, which stated, that so far as the civil courts were concerned, no case of the kind had ever, within his knowledge, been brought before the civil courts in Scotland. He felt that if this law was extended to Scotland, they would hold out to the people additional inducements to stray from the paths of virtue. God knew they had enough of means of that kind in that and all other countries. It might be said, that if this Bill went against the genius of the people of Scotland, they would not act on it; but that was not a sufficient reason to excuse them for giving a plausible pretence for straying from the paths of virtue. In deference to the moral and religious feelings of his fellow-countrymen, he would entreat the House to aid him in rescuing Scotland from such a law as this being inflicted upon it. He held that Bill as obnoxious in a religious point of view; and if be could not succeed in destroying it as a 142 measure in general, he hoped that the House would see the justice of not enforcing it on a people to whom it would cause such a vast amount of pain and misery.
Same Clause, at the end of the Clause proposed to add the following Proviso, "And provided also, that nothing in this Act contained shall be construed to apply to Scotland."
§ Question put, "That the Proviso be there added."
§ MR. OSWALD
seconded the Motion; and he did so under the firm conviction that it embodied the wishes of nearly the whole people of Scotland. When the number of petitions that had been presented against the Bill, amounting to 183, with 14,000 signatures, and the other manifestations of public opinion, were considered, no doubt could remain as to the real feeling of Scotland in the matter. It had been said that it was nearly new legislation that was to be repealed; but he did not believe that was the case even in England, and it certainly was not in Scotland. Not a single judgment in a case of the kind could be found in the records of any court in Scotland, for in truth the people never thought of contracting such marriages.
§ MR. S. WORTLEY
, as the Member responsible for the Bill, and as the representative of a Scottish county, felt called upon to state why he could not consent to exempt Scotland from its operation. He was quite ready to admit that the opinion of a large proportion of the Scottish people was opposed to the measure, and; therefore, as a matter of personal feeling, he should have been very glad at once to have assented to the proposition of the right hon. Gentleman; but he had included Scotland in the measure as the result of strong conviction on the subject, derived alike from his own judgment and from that of others in whom he confided; and were he now to sanction the exemption required, it would be at the sacrifice of his own self-esteem, and of the esteem, moreover, of those who, however differing from him, would, he believed, do him the justice to admit that he was acting wholly from a sense of duty. The right hon. Gentleman complained that no Presbyterian ministers from Scotland had been called before the Commission. Such was quite the case; and, moreover, no evidence whatever from Scotland had been taken, and for this simple reason—that the 143 Lord Advocate and himself, members of the Commission, already knew quite well that the proposed measure was objected to by a large proportion of the Scottish people, and themselves made the Commission distinctly aware of the fact, thus rendering evidence upon the matter unnecessary. The right hon. Gentleman, however, was incorrect in giving the House to understand that the Scotch people were unanimous, or anything like unanimous, on the subject. It did not suit the dignity of the subject to talk about paid agents; but this fact was certain, that petitions, numerous in signatures, and of unquestionable character, had come up from Scotland in favour of the Bill. It would seem from the right hon. Gentleman that there had been no public meeting at Edinburgh in favour of the measure, but only one against it; whereas the fact was, that the meeting assembled against it was so little of a public meeting at all, that Mr. Russell and another gentleman, who sought to address the meeting for the Bill, were summarily ejected by order of the Lord Provost; a circumstance at once producing so decided a reaction, that in two or three days afterwards a public meeting was held in Edinburgh, at which resolutions decidedly in favour of the Bill were passed: that very day, again, there had been presented a petition from Edinburgh in its favour, signed by no fewer than 5,600 persons; and similar petitions from Ayr, Linlithgow, and other places, the character of which was beyond all controversy. He was of the clear conviction that it was better to pass the measure, with all its sins and imperfections, as an imperial measure, than to have one law on the subject for one part of the kingdom, and another for another—to have the same person held a wife in England and a concubine in Scotland—a legitimate child south of the Tweed, a bastard on its northern bank. He quite admitted that marriages of the kind under discussion had not been frequent in Scotland, but it was altogether a mistake to say they were un-known there; there were examples of people absolutely going to Scotland for the very purpose of celebrating them there. There was no trace even of the prohibition in Scotland until that country came under the rule of the Church of Rome. The Confession of Faith of John Knox did not contain one word about any such prohibition; but there was a contemporary Act of Parliament which imposed the punishment for incest upon persons who should 144 marry within the degrees "expressly prohibited by the word of God." In 1840, the learned procurator of the Scottish Church gave a distinct opinion in favour of the legality of these marriages. The present measure differing, however, from that of last year, reserved the Confession of Faith of the Scottish Church, and preserved intact the doctrine and discipline of that church. He could only say that if he thought this measure would tend to demoralise the people of Scotland, or to lower the tone of religious feeling in that country, he would rather have his right hand cut off than press the House to give it its sanction.
§ MR. COWAN
said, he had felt much difficulty as to the course he ought to pursue on this question. Last year he had felt strongly inclined to vote for the Bill of the right hon. and learned Member for Bute; but after more mature consideration, he deemed it his duty to offer to this measure his most strenuous opposition. He had come to this conclusion, because he thought that the 18th chapter of Leviticus established the fact that these marriages were contrary to the word of God, and consequently ought not to be legalised. His right hon. and learned Friend had proposed, in his Bill of last year, to give men permission to marry their wives' nieces; but he had omitted that provision from the present Bill, no doubt from a conviction of the social evils such a permission would entail. The feeling of the people of Scotland, of every religious denomination, was nearly unanimous in opposition to this Bill. He regretted that the right hon. and learned Gentleman had, on a former occasion, spoken of the Confession of Faith as the offspring of rebellion and fanaticism. [Mr. WORTLEY intimated his dissent.] He (Mr. Cowan) was glad, then, that he had afforded the right hon. and learned Gentleman an opportunity of disclaiming such an opinion; for he was represented to have said that the second Confession of Faith was adopted "in the heat of rebellion, and in the heat, he must say, of fanaticism." He was sure such an opinion would be repudiated by the right hon. and learned Gentleman's constituency. He (Mr. Cowan) considered that Profession of Faith one of the most noble monuments to the piety, patriotism, and talent of those men of whom he felt the world was not worthy. It was a profession of the faith under which, with the catechisms then also framed, a people had 145 been trained up to fear God and honour I the Queen. They were not so thankful as they ought to be for the happy homes enjoyed by the people of this country. One; of the greatest blessings God had bestowed upon them was that of congregating them in families, and that their homos; were adorned and blessed by the fairer portion of creation, who stirred them up to deeds of charity and benevolence. He hoped this measure would not be forced upon Scotland against the opinion of the people of that country.
§ MR. S. WORTLEY
had never used any such expression as that the Confession of Faith was the offspring of rebellion and fanaticism. The utmost he had meant to say, was that the Confession of Faith was adopted by the Westminster Assembly during the Rebellion, when, no doubt, fanaticism ran high. He regarded that confession as a noble monument of piety, for which he entertained the greatest respect.
§ SIR F. THESIGER
wished to call attention to a statement made in a work referred to by his right hon. and learned Friend the Member for Bute, in which it appeared to him that very great misrepresentations had been made as to the law of Scotland. A letter had appeared in the Times newspaper, headed with the significant word "Advertisement," showing that it had been paid for out of the funds provided for promoting this Bill, and signed "A Lover of Consistency," which contained these passages:—It is stated, in an article on collateral affinity in the last number of the Law Review, just published, and which I am informed is from the pen of no less learned a person than the Queen's ancient Serjeant (Manning), 'That in Scotland a bastard is allowed, in total disregard of the well-merited rebuke of St. Paul to the Corinthian converts, to marry the widow of his own father; nay, the illegitimate Scotchman is at liberty to marry his own whole sister, the child of his own natural father and of his own natural mother.' Perhaps some of your readers will tell us whether this information may be relied on; for, if so, the Scotch, who are said to evince such horror at the bare idea of rendering it lawful for them to marry their deceased wives' sisters, are indeed straining at a gnat while they complacently swallow a camel, and a dromedary or two into the bargain.He wished to ask the right hon. and learned Lord Advocate whether there was any ground for this assertion of Serjeant Manning; for a work of high authority, Bankton's Institutes of the Law of Scotland, which had been revised by Lord Hardwicke, represented the law as directly opposed to the proposition of the learned 146 Serjeant? He wished to ask whether, in respect of marriage, illegitimate relations did not stand upon precisely the same footing as legitimate relations, though, with regard to succession, there was necessarily a great difference?
§ The LORD ADVOCATE
said, it was not usual to be addressed in the way in which the hon. and learned Gentleman had appealed to him for a professional opinion upon various points of considerable difficulty. The hon. and learned Gentleman could not be so little read in the law of his own country, nor in the law of Scotland, nor in the larger law of Europe, out of which the law of Scotland had principally originated, as not to know it had always been a question of very great difficulty to determine whether a bastard relation constituted any relation whatever. With regard to the authority of Bankton, he would inform the hon. and learned Gentleman that he was not a very high authority; and he (the Lord Advocate) had always held that when such marriages as were now the subject of discussion came to be investigated, either in the civil or criminal courts, it would turn out that the marriage contemplated in this Bill was in Scotland a lawful marriage; and he had good reason for saying that that was the opinion of an hon. baronet, than whom no person ever stood higher in the Church of Scotland—Sir H. Moncrieff. The question had not boon tried in the civil courts; and, with regard to the criminal courts, there were two statutes, which were passed in the year 1567, which affected the question. One of these statutes said that marriage should be as free as the law of God had made it; and the other, that every person who married within the degrees forbidden in the 18th chapter of Leviticus should be deemed to commit incest, and suffer death. The 18th chapter of Leviticus was therefore adopted into the law of Scotland, and the criminal courts would put their own construction upon it; on the other hand, the law of Scotland said marriage should be as free as the law of God had made it. He could only say that, after having used all diligence in the inquiry, he had come to a deliberate opinion, that these marriages were not forbidden by the law of Scotland. With regard to the particular question of exempting Scotland from the operation of the measure, if it were possible, in a case involving a question of such a crime as incest—and he could bring himself to say that what was incest upon one 147 side of the Tweed would not be incest upon the other—he would at once say, let Scotland be exempted from the operation of the Bill. If the measure were for the general interest of the empire, then he could not consent to exempt Scotland from its provisions. He could not consent to a state of things so monstrous as to allow that in England to be free, which in Scotland he would condemn as incestuous. He should say, with all deference to the opinion of his right hon. Friend the Secretary at War, that of all the propositions which he had heard maintained during the discussion, the present appeared to him the most utterly indefensible, as it declared that what was good for England was not to be good for Scotland.
§ SIR F. THESIGER
hoped the learned Lord would not think he had been called upon improperly. Certainly the Committee must feel obliged by the learned Lord's remarks having been elicited. He (Sir F. Thesiger) had not intended to offer an opinion of his own on a question of Scotch law. All he had done was to cite the opinion of another (Serjeant Manning), whose authority was admitted to stand very high.
§ MR. ROEBUCK
said, he admitted all the strength of the arguments that had been used by the learned Lord Advocate, with respect to the propriety of extending to Scotland, as far as it might be practicable to do so, the legislation which was applied to England. He entirely concurred with the learned Lord that it was highly inexpedient that there should be one law for Scotland and another for England upon a subject on which it was but natural to suppose that the populations of each country, being in an equal state of civilisation, should think alike, and in respect of which it was likely that they should feel an equal degree of interest. But had they taken into consideration the feelings of the people of Scotland on this measure? That the people of Scotland were almost unanimous in their hostility to it, was a proposition from which few would have the hardihood to dissent. Why, then, should such an obnoxious enactment be thrust upon the Scottish people? Why was the House asked to make this alteration in the law? Who called for it? What was the pressing necessity which rendered it imperative on the Legislature to change the law of marriage? Was there anybody there who would press that necessity and explain 148 it? The fact was that certain persons had contracted marriages against the law—they had broken the law; and what was the House asked to do? Why, to alter the law in order to meet the case of those who had deliberately violated it. Mark how all the feelings that ought to govern us had been perverted and turned from their righteous purpose, in order to advance this singular project. Some men, under the influence of ungovernable desire, had broken the laws of the country—others contemplated doing so. There was no mitigation in their offence, it admitted of none—there was no reason or palliation for it, and yet the men who had thus audaciously offended, had the presumption to come to that House and talk about invasions on the rights of conscience. They would have the House to believe that this sister who was so anxious to become a wife, was a person who was entitled to their sympathy, and had the strongest claim on their friendly consideration. He denied it entirely. He was of opinion that such a woman was precisely the kind of person who had less claim on the favourable consideration of that House than, perhaps, anybody else in the community. There was no sufficient cause to alter the law. Who were they who were desirous that it should not be altered? A whole nation—a large portion of the male inhabitants of this country, and almost without an exception the whole of its female population. Again, he asked, why were they called upon to change the law? Was there any public demand for it—was there any pressing necessity which would justify the House in attempting an unexampled invasion on the present state of the law? He denied it. They who called for the innovation were persons who felt that their unlawful desires were checked and coerced by the Act at present in operation, and who longed for such a modification of the law as would enable them to gratify their unholy propensities. Those who protested against the measure were called enemies of religious freedom; but he confessed he was at a loss to understand what connexion could possibly exist between religious liberty and the objection which, upon a ground of ordinary policy, he conscientiously entertained against allowing a man to marry his deceased wife's sister. He could not understand such logic; but this he saw clearly, that by the change they were about to introduce, they would sow dissensions and heartburnings among many families which 149 now lived together in amity and affection. He believed that, under the pretext of doing a benefit, they were about to inflict a serious mischief—he believed that, under the pretext of securing an effective guardianship to orphan children, they would deprive them of the tender solicitude of the most affectionate of guardians—the sister of their dead mother. They would transform her from a kind and beneficent aunt into a callous and heartless stepmother, who would look upon her own children with feelings very different from those with which she would regard the offspring of her deceased sister. They would excite conflicting feelings in bosoms which, until now, had not known a contest; and they might take his word for it, that, however well intended their legislation might be, jealousy, disunion, and rancour would follow in its train.
§ MR. COCKBURN
would not follow the hon. and learned Gentleman into a disquisition on the general merits of the question; but he was prepared to contend, in reference to the proposition at present under consideration, that the principle of the measure having been affirmed, it ought to be extended to Scotland as well as to England. The reason why he thought so was, that it was highly inexpedient, impolitic, and inconvenient that there should be any discrepancy between the laws of both countries on such subjects. As these marriages were unknown in Scotland, there was no practical necessity why the measure should be extended to that country; but there was the strongest possible necessity why the general principle of having the laws of both countries uniform should be recognised. It was impossible to exaggerate the amount of misery and distress which had been occasioned in numerous families by the difference at present existing between the laws of divorce in England and in Scotland. He knew an instance himself, where a man who was married in England, and went to reside in Scotland, was divorced from his wife in the Scotch court upon the plea of adultery. He came hack to England and married a second wife, and, being tried in England for bigamy, was sentenced to transportation, and sent to the hulks. The sentence was approved by the twelve Judges, and yet there was no question that, according to the law of Scotland, the judgment of divorce which had been passed upon him was in that country, at all events, a complete liberation e vinculo matrimoniœ. It 150 was of great importance that, upon questions such as this, the law should be identical in two countries which were divided by what was little better than an imaginary border. If it was true that the repugnance against such marriages in Scotland was absolutely unanimous, there need be no apprehension that the passing of such a measure as the present would occasion such alliances; and if, on the other hand, there were some persons in Scotland who were desirous to contract such marriages, the House might rest assured that they would not be deterred from doing so by the proposed exemption. They would cross the border, and contract the marriage where it would be legal by the lex loci.
§ MR. ROEBUCK
explained. He had not argued against extending the Bill to Scotland, but that the strong feeling of the Scotch people against it called on us to consider before we passed it at all.
§ SIR G. CLERK
rose to bear his testimony to the feeling with which the Bill was regarded in the country with which he was connected. It was indeed almost unnecessary for him to do so, for the Lord Advocate admitted that it was with great pain he felt himself bound to vote for a measure so distasteful to Scotland. He must ask the House of Commons on what ground they were going to force on the people of Scotland a Bill so abhorrent to their feelings? He acknowledged the great inconvenience of differences between the laws of the two countries, and would desire to assimilate them, were it not that he was met by a principle infinitely greater than any temporal or civil inconvenience. The Scotch people were convinced such marriages were forbidden by the law of God; and, divided as they were on religious, political, and ecclesiastical questions, in that opinion they exhibited the greatest unanimity. When the people presented petitions in favour of the Bill, they were led to believe that it was merely to repeal Lord Lyndhurst's Act, and to replace the law on the same footing as before 1835. It was held in England, that though these marriages were voidable before the ecclesiastical courts, they were valid if one of the parties died before the action was brought. That never was the case in Scotland; and over since the Reformation these marriages had been expressly forbidden both by the Coufession of Faith, and by the Acts relating to it. The right hon. and learned Lord Advocate stated there were very 151 grave doubts if these marriages were contrary to the law of Scotland, and had quoted the opinions of the Scotch bar, that marriages should be as free as they were allowed to be by the word of God. But the extension of the degrees within which marriages could be contracted after the Reformation took place, in order to remove the great restrictions which had existed under the Roman Catholic law, and the Confession of Faith, left no doubt as to the intention to limit all marriages within the true doctrine of the word of God. He would give his opposition to the proposed extension of a Bill to Scotland which was regarded by the Scotch people with the greatest repugnance.
said, it was from recollections of the many Scotch and Irish friends with whom be had been associated, that he heard with pain the constant demands for excepting first Scotland and then Ireland from Bills evincing the advancement of the age. As an Englishman he was proud to believe, that history and facts proved that England kept the lead; though he was ready to avow she owed it only to the chance of Agricola having established his normal schools in that portion of the empire. As regarded the present Motion, he would entreat English Members not to go to the division with the impression on their minds that the whole of Scotland was opposed to the Bill, and in favour of the present Motion. The people of Scotland were under strong ecclesiastical influence. He never had met with a Scotchman abroad, who did not avow that in that country the people were under an overbearing ecclesiastical power. It happened to him to have been at Edinburgh on a Sunday, and, having no other day, be visited a friend in Princes-street. They had knotty points to settle, connected with dry questions of mathematics started by Pythagoras. For the elucidation of these, it was desirable to put down some keys on the pianoforte. They were not going to play Cosi fan Tutti, nor La ci darem, but only to put down a key or two for demonstration. His friend, however, reminded him they were in Edinburgh, and he should feel the consequences of music being heard in his house, though the other culprit might be going away. Now both of them believed that the sabbatical observance in question was not only not in the scriptural rule, but that it was entirely unscriptural and anti-Christian; and they would either of them have gone to the stake upon the 152 question, as readily as on any other, if they had lived in the burning days, though he would not undertake to say how much that readiness would be. But was not this persecution? Was it not the tyranny of a majority over a minority? He mentioned the occurrence as a proof of the power exercised over the mind of Scotland. But, did any one believe that there was not in that country a strong and struggling minority against such power? He would unhesitatingly assert that there was a strong and struggling minority which looked to English Members to support the present Bill.
§ MR. F. SCOTT moved that the Chairman report progress, and ask leave to sit again.
§ MR. F. MAULE
hoped the hon. Gentleman would not persist in his Motion. He (Mr. F. Maule) had seen no reasons why this clause should be agreed to. The Bill was altogether obnoxious to the people of Scotland, and no sister-in-law could live in the house of her deceased sister's husband if it were known that she was at liberty to marry him. The children of the widower would be thus deprived of that protection which they at present enjoyed under the conviction that any marriage between the sister-in-law and the widower would be an incestuous connexion, not only by the law of God, but also by the natural feelings of man.
§ The Committee divided:—Ayes 137; Noes 144: Majority 7.
§ Clause, as amended, agreed to.
§ House resumed.
§ Committee report progress; to sit again on Thursday, 13th June.