§ Order for Second Reading read.
§ Motion made, and Question proposed, "That the Bill be now read a second time."
§ MR. WALPOLE
Sir, in moving that this Bill be read a second time this day six months, I hope that, as the subject to which it relates is one which affects some of the nearest relations of social intercourse and domestic life, I may be permitted to trespass for a short time upon the patience of the House. The present House of Commons have never had this 1744 subject fairly submitted to them, and I therefore think it will not be unbecoming, nor, perhaps, unprofitable, if I call their attention more particularly to it. By this Bill it is proposed to introduce a law or custom with reference to marriage, different from any which has hitherto prevailed in this country, and as I know there is some confusion, if not inaccuracy, on this part of the subject, I am anxious to press upon the attention of the House how important it is for us to bear in mind that from the earliest times down to the present the prohibition with regard to marriages has been always the same, whether it has been a prohibition relating to marriages on the ground of consanguinity, or on the ground of affinity, both being contracted and both being dissolved by the same law; and, therefore, when any one proposes to make a change in a law of this description, it is incumbent upon those who propose the change to show some strong and urgent reason that would justify us in sanctioning it. In the year 1835, by an Act introduced by Lord Lyndhurst, an alteration, which in my opinion was wise and judicious, was made in the then existing law, and that, I believe, is the only change which has ever been made in the law of marriage from the earliest times. Down to that period all marriages, without exception, that lay within the prohibited degrees of consanguinity or affinity were simply voidable; that is to say, they might be set aside by a suit or proceeding in the lifetime of the parties, but could not be voided or set aside if either of the parties were dead. Since 1835 this difference has been made, that all marriages that were voidable before are ipso facto made void to all intents and purposes; but there is no difference in this respect with marriages with a deceased wife's sister or niece, and any other marriage within the prohibited degrees. The present law of marriage, then, having, with the alteration to which I have referred, existed for so long a period, I think that grounds stronger than mere clamour should be established before we agree to change it now. They were called upon now to declare that marriage with a deceased wife's sister or niece was to be lawful in future, but they were not asked to touch any other marriage which is equally prohibited, although they are exactly in pari naturâ to be the marriage of a woman with her husband's brother or her husband's uncle. What are the feelings of the people of this country with re- 1745 gard to the change now proposed? They are all of them adverse to it. With regard to Scotland, a late Lord Advocate stated to the Commissioners who were appointed to inquire into the subject that the people of that country looked with the greatest abhorrence upon those marriages which it is now proposed to legalise. With regard to Ireland, another witness bore similar testimony before the same Commission, observing with truth that the moral feeling of the people of that country, whether Roman Catholics or Protestants, was opposed to such marriages almost universally. Is it in England then that this change in the law is wished for? Why, the Commissioners in their Report have told you that a large majority of the people of England are equally opposed to those marriages; that the great bulk of the clergy think them wrong; and the House will recollect that the last time this question was raised no fewer than 11,000 of the women of England brought their petition to the foot of the Throne, praying Her Majesty most earnestly, by the feelings which actuate their common sex, not to sanction a change in the law which they firmly believed would be so detrimental to their safety, happiness, and peace. Now, what are the reasons supposed to be urged in favour of this change? The arguments urged in support of the Bill may, I believe, be classed under two heads. The first is that the present prohibition relating to these marriages is an undue restraint upon natural liberty, or, as I think it was called by the hon. Gentleman who introduced the measure, an undue restraint upon religious freedom. The other argument, which embraces almost all the social reasons for the change proposed, is that, by the continuance of the law as it at present stands, you deprive a widowed husband of the means and opportunity of providing for his orphan family the best guardian they can have to replace the mother whom death has deprived them of. In these two propositions I believe may be contained all the arguments ever adduced in favour of this measure; but I think I can satisfy the House that neither of them ought to be sufficient to induce us to make such a change as that proposed. The general answer to these arguments is obvious. In the first place, nothing can be considered an undue restraint upon religious liberty or upon natural liberty if that restraint can be shown to be consonant to the general feeling of moral purity, or if it can be shown 1746 to be consonant and agreeable to the general injunctions of religious truth. With reference to the social question, I am willing to concede that in many cases the aunt is the very best of guardians for an orphaned family, but it is for that very reason, and in order that she may he preserved to them as the best of guardians, that I would not turn her into a bad stepmother. These are general answers to the propositions laid down on the other side, but let me now grapple with them a little more closely. The religious part of the question, as far as it assists the change contended for, principally turns upon the construction of a certain disputed verse in the 18th chapter of Leviticus, which, according to our version, runs in these words—" Thou shalt not take a wife to her sister to vex her, in her lifetime." Now the hon. Gentleman opposite (Mr. Heywood) says that this amounts to an express permission, and that, therefore, in the revealed declaration of the will of God such marriages are not only allowed and sanctioned, but even, I believe he would say, encouraged. In reply to this, I should first observe, that the most you can make of such a verse as this is to draw from it an inference—for there is no express permission to contract such marriages either in this or in any other part of the sacred writings. But what is this inference, and what are the consequences which flow from it? The hon. Gentleman says, in effect, that because a man is forbidden to marry the sister of his wife during her lifetime he may, therefore, marry her after his wife is dead. But might no other inference be drawn from this passage? If you choose to conclude from it that a man is only forbidden to marry his wife's sister during the lifetime of his wife, may you not draw another inference equally sound—namely, that he may marry at the same time any other two women provided they were not sisters. The hon. Gentleman would thus, if his reasoning were carried out, involve himself in an enormous difficulty, and, with his philanthropic and benevolent feelings, might be called upon to bring in a Bill next year to enable a person to have any number of wives he pleased. In strict logical reasoning, I am sure the hon. Gentleman cannot get out of this difficulty. Yet as far as we know anything of the Divine will upon the subject of marriages, polygamy, though practised, was never allowed. The revelation of that will is either contained in the original command 1747 given to man at the time when marriage was first instituted, which command was ratified and purified by our Saviour's injunctions, or it is explained by the illustrations and examples, which limit our freedom in conformity with that command, within the rules in that chapter of Leviticus to which reference is so often made. Taking either the first or the second authority, I think you will find it is hardly possible to say that these marriages are sanctioned by the law of God. Go to the former, or the Divine command as originally given to man, and confirmed by our Saviour's injunctions afterwards, and then you will find that this command and these injunctions unquestionably determine that they have thrown around the marriage state so deep a mystery, they have given, as it were, so complete a oneness to the marriage union, that those who have vowed to live together as man and wife according to the terms of the Divine appointment must, if there be sense and meaning in words, have also contracted, by force of their union, all the duties, obligations, and sympathies which both of them owe to the themselves and each other, in all the relations and intercourse of life. Well, then, the moment you recognise the principle that a man and his wife are one with each other, the law of God and of nature too, which prohibits the intermarriage of a man with his own sister, must also prohibit the marriage of a man with his wife's sister also. Now, is there anything in the Levitical rules opposed to this view. Far from it. With the single exception of the disputed 18th verse, all the rest is in perfect harmony with the original command. There are altogether thirteen prohibitions enumerated, and out of this number no less than seven are of kindred by marriage, while only six refer to kindred by blood. It follows, therefore, that affinity is placed upon the same footing as consanguinity, and, being so put upon the same footing, the Levitical prohibitions and the original command with reference to marriage at the time of its institution correspond with each other; and consequently you must admit that if a man cannot marry his own sister he cannot marry his wife's sister either, and here it appears that even by the Levitical law, the effect of marriage is to make man and wife so completely one, that the kindred of the husband becomes the kindred of the wife, and vice versâ, the kindred of the wife becomes the kindred of the husband. Again, these thirteen enu- 1748 merated cases are all applied to the male sex only, but nobody will contend that the prohibition depends upon the sex of the parties. If it be incestuous for a man to make a particular marriage, the same kind of marriage under similar circumstances when made by the woman must be incestuous also. Now, follow up this reasoning. In that chapter of Leviticus it is distinctly said that for two brothers to marry the same woman, one after the other, is an abominable thing. Well, if that be so, I want to know why two sisters marrying the same man should not fall within the same condemnation. To that argument I confess I can see no answer, and this is the basis upon which the law of Christendom has been always founded. Jewel observes—and the observation is unanswerable—" When God commands that I shall not marry my brother's wife, it follows directly, by the same rule, that He forbids my marrying my wife's sister, for between one man and two sisters and one woman and two brothers is like analogy." Taking, then, the Levitical illustrations as illustrations of what you may do with reference to marriage, and not as a specific enumeration of the only cases in which you may marry, you must be driven to inference as to certain cases not mentioned in that chapter to see whether the marriage is prohibited or not. There are three rules which may be laid down for our guidance in this matter. The first is, that where you are prohibited in the remoter degree you must of necessity be prohibited in the nearer degree also; the second, that since you are prohibited in cases of consanguinity and affinity alike, you cannot apply the prohibition in the one case only; and the third is, that though these prohibitions are all addressed to one sex, you must transfer and apply them equally to the other as well. These are the reasons which have convinced me that these marriages, of which our sanction is now desired, are contrary to the Divine will. I do not wish, however, to rest my case exclusively upon religious considerations, with regard to which many good and pious men are divided in opinion, although where a doubt exists in a matter of this sort, the safest course is the wisest and the best, and unless there is some overwhelming reason on the other side, it ought to be the one adhered to. Sure I am there is enough to make us pause before we run the risk of doing or sanctioning anything which may, by possibility, be 1749 an express violation of the law of God. Leaving, however, the religious part of the question, which has always made a deep impression on my own mind, I will pass now to the social advantages which it is said will be derived by the adoption of this Bill. These advantages may all be included in the one proposition I have before alluded to—that you are giving to a man after the death of his wife an opportunity of providing a good guardian for his motherless children. Will that argument only apply to one side of the question? Does it not equally hold good of the other side? I have shown you already that there are only a few persons in this country, comparatively speaking, who are desirous of this change in the law. May I not ask you to pause, and consider whether there is anything more deceptive (though I believe there is nothing more common) than to draw a general conclusion, which you are now doing, merely from the partial and narrow view of particular instances? It may be true that there are some persons so influenced, either by interest or by passion, as to have broken the law. But is that a reason why the law should be altered, when the great weight of authority and of opinion is against this alteration, and when you learn that multitudes of individuals are healthfully restrained from the commission of that which may be detrimental to other portions of the community? It may be true that some 1,560 cases of marriages of this description were ascertained after a searching and diligent inquiry for eight or nine years throughout the country. But I ask you to consider, if the same search were made in another direction, whether even a larger number of bigamy cases might not be discovered in the United Kingdom, and would you then say, because you found some 1,500 or 2,000 cases of that kind, that therefore it was necessary to alter the law of marriage and allow any man to have two wives? Again, it may be perfectly true that some few persons have gained the advantage of excellent guardians and protectors to their motherless family by intermarrying with their late wives' sisters; but I ask you to consider whether, for every case of that description which can be discovered, you might not find twenty other cases where the widower would prefer that the aunt should be the guardian of the orphan children in the character of an aunt, instead of constraining her by this change in the law either to give up the guardianship altoge- 1750 ther, or to become their stepmother. This, to my mind, is a most important consideration, and one of which you ought not to lose sight. Remember the state of society in which we live. By what may be called an instinctive sense of propriety and delicacy of feeling, no single woman can ever live in the house or under the roof of a man she may eventually marry. The wife's sister may do so now, because the wife and the husband know there is no possibility of their future union. Repeal the law, however, and when the wife dies the wife's sister can no longer undertake the guardianship of her orphaned nieces, can no longer by any possibility live on the same terms of intimacy with the widowed husband, and cannot continue to render those services to the children which are attended with such great advantage to the motherless family. Now, I ask you this—will you for the sake of a few exceptional cases change the law, and say that on account of such exceptions you will deprive large numbers of persons of the advantage they now enjoy in obtaining for their family the guardianship of the aunt, which the deceased wife would probably herself desire, and which, after all, is the best substitute—I agree with my hon. Friend there—for a mother's love and a mother's care? My belief is, that you seriously diminish the chances of such guardianship, instead of securing them as you profess to desire. But this reasoning applies only to the death of the wife. I wish you now to consider whether a more serious evil will not arise to the state of society while the wife is living. Here is a question which more nearly affects the other sex than our own. We cannot appreciate so well as the other sex can the inestimable value of our present laws as regards the familiarity with which the wife, the wife's sister, and the husband can now live; but I hold in my hand a short letter on the subject, one of the most beautiful and touching letters which ever was penned—a letter published when this question was last before the House—purporting to be addressed by a lady to my most excellent and much valued Friend, Sir Robert Harry Inglis. I defy anybody to read this letter without feeling they are incurring a heavy responsibility if they make this change. The writer, describing herself as an Englishwoman, and a widow, has pointed out the fearful effect which any such alteration in the law will have upon society, and especially upon 1751 the female sex. She tells us distinctly that the reason why everything is pure now is because it is safe; that continued restraint is, in her own language, "removed temptation;" that removed temptation is woman's security; and that, by means of this security, the sister becomes, not in name only, but in fact, the sister to the husband as well as to the wife. She goes on to point out that thus, by means of marriage, the sphere of all our domestic relations and affections is extended and enlarged, but that, if you alter the law, this sphere will be narrowed and confined; that familiarity is uninterrupted because it is innocent; that there is no fear because there is no danger, and no jealousy because there is no suspicion. Now, I appeal to those who support this Bill to answer these arguments if they can, though, for my own part, it baffles my comprehension to understand by what reasoning they can be answered. But the lady writer of this letter does not end here. She goes on to say, in effect:—Remove these restrictions—change the law—and what a change you will introduce at once into the state of society! Restraint will become the rule between us, and the husband must put a check even upon the exhibition of his own brotherly feelings. The sister must stand aloof or keep at a comparative distance from the house in which she can now reside as a sister; the wife will lose to a great extent her sister's affection, and the holiest affections will thus be checked and driven back for fear they should be suspected of finding an outlet in the polluted streams of unsanctified desire, or (what is as bad for our social happiness) in the bitter waters of contention and strife. I almost wish I could read the whole of this beautiful letter; but this is a summary of the arguments contained in it. Well, Sir, I have already pointed out that, after the wife's death, you will lose the advantage of the sister's guardianship—that great advantage which you now enjoy owing to the state of the law, and to the restriction which puts a check upon criminal desire, because it declares that it can never be gratified. My hon. Friend (Mr. Spooner) will probably reply, "All this reasoning is very well as applicable to the higher classes of society, but you have to legislate in this matter for the lower orders; it is their requirements you have to attend to; and they live together in such crowded towns and with such miserable accommodation that you cannot prevent these mar- 1752 riages without driving them into a state of concubinage." Now, there would be great force in this argument if it were founded on fact; but what appears from the statistics got up by the supporters of this measure? The 1,560 cases of marriage of this description have been carefully analysed, and it has been found that 100 came from the higher ranks, upwards of 1,400 from the middle classes; and how many does the House suppose from among the lower orders? Only about fifty. And then I am told that this is a poor man's Bill? Why, it is just the reverse. It is a Bill encouraged and promoted by those who ought to be studying to raise the standard of morality, instead of lowering it. It is a Bill promoted and encouraged by those who ought to set an example of obedience to the laws, instead of instigating others to violate them. That argument, therefore, I think, will not hold, and if not, what are the grounds upon which we are to be called on to pass this measure? I wish some Members of the Government were present to whom I could appeal. [The Attorney General was the only occupant of the Ministerial bench.] I am aware that the hon. and learned Gentleman is in favour of this measure; but, though I should like better to address his chief, I will ask even the hon. and learned Gentleman if he thinks it wise to continue an agitation on this question unless there is a chance of carrying it? Are you not, by adopting this course, leaving society in a miserable state and encouraging people to violate the law by the hope that the law will be altered in their favour? And if you do alter it and allow these marriages, remember that they may have a dangerous effect not only upon domestic society and upon private virtue, but, I fear in the end, upon public morality also—Fœcunda culpæ sæcula nuptiasPrimùm inquinavere, et genus, et demos.But it does not rest there.Hoc fonte derivata cladesIn patriam populumque fluxit.Pause, I entreat you, before it is too late. Remove no landmark and take away no fence unless you can see distinctly beyond them a landmark and a fence as strong as those you have now got, and which will prevent all future inroads in a similar direction. This Bill takes away the present landmarks, but what prospect does it give you for the future? If you pass the present measure, what, by logical conse- 1753 quence, will follow? Supposing this privilege is given to the man, I utterly deny that you can withhold it from the woman also. Then, if you adopt the rule followed in foreign countries, as some wish to do—as though the morality of foreign countries was better than our own!—see what it will lead you to. You will go to Germany, to Prussia, to some other of the Protestant States, and you will then have to admit that a man may marry his wife's daughter, or even his own niece. I do not stop here. If you take the line of argument which I see constantly adopted, and draw a distinction between consanguinity and affinity, what will be the consequence? In the table of prohibited degrees you have thirty degrees enumerated, twenty of which are cases of affinity and ten of consanguinity. Are you going to remove them all? I say, if you adopt this line of argument you must remove them all; nor will you be able to stop there; for, if you adopt the rule of taking the Levitical prohibitions, and of abiding by what marriages are laid down and what are not laid down there, the consequence will be that a man may marry his own daughter. [Mr. SPOONER: No, no!] My hon. Friend says, "No, no!" but will he turn to his Bible? and, if he does that, he will see that such a marriage is nowhere distinctly prohibited. The fact is, you have only one safe rule to abide by, and that is to take the original command, ratified and purified by our Saviour's injunction, and to say at once, as you have always said, that the marriage of a man with a woman carries with it such a complete union that the kindred of the one from that time forward becomes the kindred of the other. I have thought much upon this question, and I am free to declare that, after the utmost deliberation and consideration I can give it, I can find out no plain, no clear, no definite rule for our guidance but that. Strongly impressed as I am, therefore, with the necessity of adhering to some safe and intelligible course, I adopt that rule because I believe it to be consonant with the law of God, because I am sure that Christendom for 1,500 years has so considered it, and because this country has never recognised any other. I beg the House, therefore, to reject a measure which will sacrifice the interests of the many to gratify the pleasure of a few, which can only be done at the expense of scandalising the consciences and offending the principles of a large majority of the inhabitants of this realm, which 1754 is detrimental alike to private virtue and to public morals, and which will lead the promoters of the measure, if they are consistent with themselves, by the recourse to further and other restraints, to ulterior consequences, so strange and so alarming that they would tremble at the prospect of realising them.
Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."
Question proposed, "That the word 'now' stand part of the Question."
THE ATTORNEY GENERAL
said, he had listened with great attention and interest to the arguments of his right hon. Friend, but he was bound to say that the reasoning he had heard had not in any way shaken his deep conviction that the law which the House was now asked to repeal was an unnecessary, a tyrannical, a mischievous law, and one which it was discreditable to them to allow to remain any longer upon the Statute Book. It was fully admitted that it imposed a restraint on the natural feelings of mankind, and therefore ought to be repealed. The arguments used in support of the existing law were of a twofold character. It was said that social and domestic evils of very great magnitude would result from promoting marriage with a deceased wife's sister. Before discussing the defects of the existing law, he would briefly refer to an argument derived from a different source. It was said the question was already settled, the law of God having forbidden these marriages and declared them incestuous. Of course, if such a law were really in existence, they were bound at once to submit to it, and there would be an end to the question; but when he turned to the text in which the prohibitory law was said to be contained, he found that, so far from containing a prohibition against the marriage of a deceased wife's sister, it conveyed the very opposite meaning. The prohibition contained in the text was for the avowed purpose of preventing pain and vexation to the wife; and the conclusion to be drawn from the words used was, that they applied to a time when the wife was living and subject to annoyance and pain, and not to a time when death had relieved her from all pain and annoyance. When he found that the law was addressed to a people amongst whom polygamy, though not expressly sanctioned, was undoubtedly occasionally practised, and that 1755 the ground of the prohibition was, that the man should not marry the wife's sister, in order that he might not be tempted to put away his wife and take her instead, he was confirmed in supposing that the prohibition must refer to a period when the wife was living. With the exception of a small ascetic sect, the Hebrew people, to whom the law was addressed, always considered that the marriage with a deceased wife's sister was permitted and not prohibited, and in all ages such marriages had been sanctioned. It might be said, possibly, that the people of this country were not living under a Hebrew dispensation, but under a Christian dispensation, and that they were, therefore, to look to the laws enjoined by the Christian Church. If they looked to the practice of the first ages of the Christian Church, he granted that they must consider these marriages unlawful. But let it be recollected that Christianity took root under the shadow of the Roman law—by a fiction of which a person marrying became as closely related to the kin of the person married, as that very person was. Consequently, by that law a person could not marry his wife's sister, and this prohibition was congenial to the ascetic habits commonly prevailing in the early ages of the Christian Church, and subsequently practised. Second marriages were looked upon as heterodox, and third marriages were totally prohibited as abominations; the marriages of bishops and priests with widows, and their second marriages were also prohibited. It was not to be said that ages in which such principles were established should furnish our rule of conduct. In the Roman Catholic Church these marriages were considered as marriages which could not be entered into without the express sanction of the Church, but they were never rendered void; they were simply matters of dispensation, and the Roman Catholic Church never took upon itself to grant dispensations in marriages which were considered incestuous and prohibited by the law of God. At the present time there was not a single country in Europe, with the exception of England, in which the marriage with a deceased wife's sister was not celebrated and held to be legal when a dispensation had been obtained. Throughout all Protestant countries it had been permitted as not contrary to the law of God, and how was it that in this country it was prohibited? The dispensation which Henry VIII. sought to obtain with regard 1756 to his first wife must not be overlooked. Failing to obtain that dispensation, Harry obtained from one of the most servile Parliaments that ever existed, an Act which had reference to this particular class of marriages. He (the Attorney General) urged these arguments, not for the purpose of asserting that the doctrine of the English Church was not entitled to the highest authority, but to show that this was a matter in which every man ought to be left to the free exercise of his own conscience and opinion. When Protestant Europe was divided in opinion as to the construction to be placed upon the Levitical law, what right had the Parliament of this country to impose upon those who conscientiously differed from them their particular views upon the subject? The large majority of Dissenters were of opinion that the marriage with a deceased wife's sister was not contrary to the law of God, and what right had Parliament to put their construction upon a doubtful text and dogmatically enforce that construction? It was said that very serious evils would result from a change in the law in a social respect; that, looking to the unreserved intercourse which took place between a husband and his wife's sister, if they removed the artificial barrier which at this moment prevented the possibility of an undue intimacy existing between them, they would expose the husband to a temptation to which at present he was a perfect stranger, and would create a state of domestic immorality fatal to the morals of the people generally. It was also said that a change in the law would be to the wife a source of perpetual unhappiness and misery, and that with regard to the wife's sister, the consciousness that she might become an object of desire to the husband of her sister—that at a future time she might be capable of forming a conjugal union with him—would prevent the existence of that unreserved intercourse which now existed and would drive the sister from the home of the wife. These were most serious considerations, and, if it could be shown that such consequences were likely to ensue, he admitted that it would be most unwise to alter the law. But the whole of the arguments adduced in favour of the law were purely speculative, and not one particle of fact had been brought forward in their support. He entirely denied that any evil consequences would result from the alteration of the law, and he held that the advocates of the 1757 existing law unjustly defamed the morality of the English husband. The anticipations of evil were purely theoretical and speculative, for what had been the result where the experiment had been tried? The right hon. Gentleman who had just addressed the House discussed the question as though it had never been tried upon a great scale, and not as though the Legislature of this country were the only persons in the Christian world who prohibited these marriages. In Roman Catholic countries the marriage with a deceased wife's sister was not prohibited, in the case of an ecclesiastical dispensation being obtained; and who ever heard of domestic immorality between the husband and the wife's sister being the result in those countries? In Denmark, Sweden, Holland, and the United States, countries where the state of domestic morals was certainly as high as in this country, these marriages were permitted; but would they have been tolerated if the monstrous evils urged against them had been realised? Turning to the reverse of the picture, were there no evils upon the opposite side of the question? In the first place, the law had been openly violated or covertly evaded. They were told that from 500 to 600 of these marriages took place every year, and that in the course of the last twenty years no less than 12,000 marriages of this description had taken place. This might be an exaggeration, but no doubt many marriages had taken place, and the time would come when the consequences would be most disastrous. It was not those, however, who had contracted the marriage who would suffer. They satisfied their inclinations, and in their consciences believed that they had not violated the law of God. If they made laws against which human instincts and affections revolted, it was not to be supposed that human nature would not seek to liberate itself from their tyranny. The ill consequences of maintaining the present law would fall on those who might hereafter find themselves deprived of their just rights and legitimate expectations, and who might curse the day that had reduced then to misery. Nor was it only amongst the affluent class that the wish to contract these marriages prevailed. It was in vain to say that these cases were limited to a small number of instances. He believed that it was in the experience of all who were acquainted with the rural population, that these cases were common; and it was a cruel thing 1758 to drive these poor people into a kind of connection which might be a moral one, if the law did not drive them into one which was worse. That man took a mistaken view of the business of legislation who thought it was not the duty of the Legislature to deal with human nature as it found it. The business of law was to direct human action into a right course, and not to drive it into wrong; but, by preventing the marriage with a deceased's wife's sister, a gross state of immorality was engendered. Even supposing that the evils on both sides were balanced, was there no positive good prevented by the operation of the existing law? It was said that it was a woman's question, but, to his mind, it was a question of motherless children. Take the case of young children deprived at an early period of that most estimable of all God's blessings on earth—the fostering care of a mother's hand. Was it desirable to commit their young and tender years to the charge of a stranger, or to place them in the hands of one whom they had already learnt to look up to and love as a mother? But it was said that the Bill would prevent the wife's sister living with the father of her sister's children. But if the husband were young enough to marry again he might marry a stranger, and then the children would lose the protection of their aunt. He believed that the fears which had been expressed with respect to the repeal of the present law were wholly imaginary, while the evils which that law created were real and substantial. The present law prevented the positive good inherent in these marriages, and therefore the time was come when it ought to be expunged from the Statute Book. To those who thought these marriages wrong, the present law was unnecessary, while to those who thought them right it was an intolerable tyranny. It was, indeed, said that, after all, the Act of 1835 effected no such very great change in the law, for that these marriages were previously voidable. But any attempt to void them was looked upon with so much disfavour that it was rarely made; and besides that, if they were not voided during the lifetime of the parties they were thenceforth not voidable. But, before expunging the law from the Statute Book, let them consider how it got there. Twenty years ago the law stood upon a very different footing, the marriage between a man and his deceased wife's sister being not void, but voidable. Some years ago, however, 1759 a noble and learned Lord introduced a Bill, which, in deference to a distinguished person who had contracted one of these marriages, legalised all marriages which had been previously contracted, but rendered them illegal in future. Thus it was, that the mild dominion of the old law was exchanged for the tyranny of the present. The absence of the noble Lord at the head of the Government had been regretted, on the ground that he would have interposed to endeavour to stop the agitation on this subject. He (the Attorney General) believed, however, that until they could make all mankind admit the policy of the existing law, and until they could remove the impression that that law was tyrannical and capricious, they would never be able to prevent the agitation of this question. He considered that the existing law was mischievous, uncalled for, and tyrannical; he, for one, would be no party to its maintenance; and he would, therefore, give his cordial assent to the second reading of this Bill.
§ MR. WIGRAM
said, that the hon. and learned Attorney General had contended that the eighteenth verse of the eighteenth chapter of Leviticus did not prohibit these marriages. But those who opposed these marriages never had said that it did; they contended that that verse did not expressly admit them or remove the prohibition placed on them by the earlier verses of that chapter. For the first thirteen or fourteen centuries after the Christian era the universal Church had acted upon the principle of the present law, and he thought they should not disturb it on light grounds. The law was now settled and well understood; but if this Bill were passed it would be left in an undefined and unsettled state, and constant efforts would be made to disturb and to trench still further upon it. The maintenance of the present law was a matter of the greatest importance to the morality of society in this country, and if the law were invaded in the manner proposed by this Bill a licence and liberty would be indulged in with respect to marriage which would be attended with unhappy results. Whatever opinions might be entertained on this subject by different members of that House, there were very few of them who could approve of the present Bill. If there was any law which ought to stand upon a sound, consistent, and intelligible basis, it was the law of marriage; but he could not understand the proposition that a man should be 1760 allowed to marry two sisters in succession, but that a woman should not be allowed to marry two brothers. He thought that if Parliament interposed to vary the law of marriage, the change should be by a measure framed upon a comprehensive view of the subject, and adapted to place the law upon a consistent basis, regulated by some reasonable and intelligible rule. The last clause of the Bill proposed that the measure should not extend to Scotland, and why? Because it was perfectly well known that the feeling of the people of Scotland was so strongly opposed to marriages of this kind that the measure, if it should become law, would be scouted in that country. How ever, such an exemption in such a law was most objectionable, because it was a matter of the utmost importance that the law of marriage should be uniform throughout the United Kingdom. He considered that there were solid objections to the proposed alteration of the law founded upon the divine prohibition, and upon the social considerations suggested by the right hon. Member for Midhurst (Mr. Walpole); and he conceived that, if any change were made, it ought to be at least one which could place the law upon some sound footing. He should vote against the second reading of the Bill.
§ MR. COLLIER
said, he thought that the nature of the objections urged against this Bill had very materially changed within the last few years. When a measure of this kind was first submitted to that House, the objections to it were founded upon the high ground, that marriage with the sister of a deceased wife was prohibited by the law of God, and was contrary to the law of nature. That high ground had latterly been evacuated by the opponents of the Bill, and the right hon. Member for Midhurst (Mr. Walpole) now wished to throw the burden of proof upon those who supported the legality of these marriages. He (Mr. Collier) considered, however, that when the question was whether a man and woman could lawfully marry, those who objected to such marriage were bound to prove, if they could, that it was prohibited by the law of God; and he denied that any but the most paramount social considerations could justify them in putting asunder those who were joined together without any contravention of the divine law. The foundation and basis of the Act of Henry VIII., and of subsequent legislation on this subject, were the law of God, but that 1761 argument seemed to have been virtually abandoned, for the right hon. Member for Midhurst admitted that it was doubtful whether such marriages were prohibited by the divine law, and that the question was one upon which the bench of bishops could not agree. The main objections to this Bill rested entirely upon social grounds, or he would rather describe them as sentimental grounds. With respect to the supposed scriptural prohibition, there was not a text which bore directly upon the subject, and the verse which had been quoted from the 18th chapter of Leviticus, though prohibiting marriage with the sister of a wife during her lifetime, inferred a permission to contract such a marriage after the wife's death. One of the arguments against this Bill had been founded on the fact, that the Scriptures prohibited the marriage of a man with the widow of his brother. It was, however, utterly impossible to maintain that a man was prohibited from marrying the widow of his brother on the ground of incest, because, in Deuteronomy, a man was commanded and enjoined to marry his brother's widow if she had no children. The hon. Member for West Surrey (Mr. Drummond) had the other night taunted the hon. Member for North Lancashire (Mr. Heywood) with wishing to remove all prohibitions with respect to marriage, and had called upon him to carry out his principle by marrying his grandmother like a man. He (Mr. Collier) hoped the hon. Member for West Surrey would act consistently, and that if his brother should die, leaving a widow childless, he would, in conformity with the scriptural injunction, marry his brother's widow, and raise up seed to his brother like a man. If these marriages were prohibited by the Scriptures, it might naturally be supposed that the Jews, having contracted such marriages, would have been rebuked for their transgression of the law; but all the enumerations by the prophets of the backslidings of the Jewish people contained no mention of this sin; nor was there in the New Testament one word disapproving of these marriages, or of the interpretation which the Jews in this respect had put upon the law. A great deal had been said about marriages of this description being prohibited by the law of nature; but he would venture to express his utter disbelief in a universal law of nature, which, so far as he could ascertain, had been revealed only to the Scotch. Such a law of nature was certainly not writ- 1762 ten on the hearts of continental nations, whether Protestant or Catholic; nor was it written on the heart of the Pope—nor was it written on the heart of the Parliament of Great Britain, which had passed measures sanctioning marriages of this description. It had been said that these marriages were prohibited by the canons of the Church, but he contended that it was doubtful whether what were called the Apostolic canons, upon which this argument rested, had emanated from the Apostles, and that, at all events, they ought not to influence the legislation of the British Parliament in the nineteenth century. Their origin, probably, did not date earlier than the end of the fourth century; and amongst these canons were also to be found provisions forbidding men to marry widows, actresses, and servant-maids; and yet five of the present bishops had married widows. Then the canons of another obscure council held in Spain had been relied upon. But those canons also forbade candles to be lighted in cemeteries during the day, for fear of disturbing the rest of the saints. He thought it was clear, therefore, that the canon law could not be relied upon as a safe basis for modern legislation. He now came to the statute law. The Act of Henry VIII. was in fact really passed to gratify the lusts and caprice of that Prince; while the Legislature, in fact, agreed to the Act of 1835, with the view of legalising certain unions of persons in a high position in society which were then voidable. Then, with regard to the social question. The real fact was, that the existing law sought to accomplish what could not be attained by legislation. It was impossible to make a man regard his wife's sister in the same light as he did his own! Equally fruitless, he believed, was the attempt to make the deceased wife's sister an affectionate aunt, by preventing her becoming the step-mother of her nephews and nieces. The House, likewise, must not forget that marriages of this nature were legal in foreign countries, and that those who were disposed to contract such marriages had only to cross the Channel, where they might form matrimonial connections which were perfectly legal abroad, and the validity of which was not likely to be questioned in this country. The existing law had been violated—it would be violated, it must be violated, because it interfered with the proper and natural course of one of the strongest passions of humanity. Upon these grounds, he would vote for the second reading of the Bill.
§ MR. NAPIER
said, it appeared to him that the onus was cast upon those who sought to change the law, and not upon the other party, to give satisfactory reasons for making this tremendous experiment. The present law, he contended, was sacred in its foundation and salutary in its results. The hon. and learned Gentleman who had last addressed them was under a misapprehension when he said that the religious ground had been abandoned by the opponents of the proposed Bill. He certainly did not understand his right hon. Friend (Mr. Walpole) to do so. On the contrary, his right on. Friend had put that point forward prominently and primarily. He, however, apprehended that it did not weaken the Scriptural foundation of the law if they found by experience that it was attended with salutary and beneficial results. On the contrary, if he found that the law which they supposed to be in conformity with Scripture had produced satisfactory results, that fact would rather tend to corroborate the truth of its Divine origin than otherwise. The hon. and learned Gentleman the Attorney General had complained of the tyranny of the present law. But what was the fact as regarded Ireland? He would venture to say that all classes in that country, high and low, rich and poor, viewed the proposed change in the law with abhorrence and disgust. When he (Mr. Napier) hoard the accommodation of the poor alluded to, he looked to the lowly cabins of Ireland, and among them—the poorest and the humblest—he was bound to say of all persuasions—where, with all the miserable accommodation possessed by the poor, they would nevertheless find in general as large an amount of domestic propriety as the world could exhibit. Among the poorest and humblest in Ireland there was a deep religious sentiment of domestic propriety, and he could truly say he never heard of a case of incest in that country. The people of Ireland were utterly opposed to this measure, so were the people of Scotland; and the hon. Gentleman opposite, knowing that they were so, had not attempted to extend it to that country. Why, then, did ho seek to force it on Ireland? There was in the history of the Church and of Christianity one continuous stream of testimony against such marriages. It was his deliberate and solemn conviction that the present law was based upon the law of God, as well as included in the social expansion of Christianity. In 1764 this view he was borne out by the testimony of all the reformed Churches, who were unanimous upon the subject; so, likewise, was the conclusion of some of the great lights of the Reformation, and of the ablest and best commentators upon the Holy Scriptures. The presumption, therefore, was all on the side of him who took his stand upon this testimony against the doctrine propounded by the other side. The present law harmonised with the opinions of the people of Scotland, the people of Ireland, and a large proportion of the people of England. Who, then, was the presumptuous man referred to by the Attorney General, as forcing his own opinion on others in this matter? In all the changes which had been made, and all the experiments that had been tried, there was not enough to cause him (Mr. Napier) to give up the comforts of English family life for the customs of America, of Germany, or of Denmark, or of other nations on the Continent. Believing that the present law was founded on the basis of religious and social principles of the best nature, he was not prepared to peril the blessings of an English home, or to incur the awful responsibility of enacting with a law of man which he believed would run counter to the law of God. A great deal had been said of the law of nature. What was the law of nature in this case? Who could venture to define it? Lord Stowell said that marriage was the parent of civil society; it should be held as of Divine origin. If the Word of God was looked to, it would be found that the chapter in question was founded on a general principle, and that it laid down certain restrictions. The Jewish law, however, was to be read with the full light of Christianity. Christianity brought back the marriage system of the Jew to one of purity and principle. The Jews themselves, according to the testimony of the Rev. Mr. Jacobs, held that their traditional law excluded the marriage of two sisters in succession;" and in the light of Christianity we could say no less. Marriage symbolized that mysterious unity which was set forth in Christianity, and it was just by adhering to this unity that the marriage law could be kept in accordance with the will of God. Therefore it was that the wife's relations became the husband's relations. In marriage the parties were described as "one flesh," and our Lord said, "Whom God hath joined let no man put asunder." It was the duty of Christians to bring this unity closer and closer, where- 1765 as the effect of the present Bill was to relax the marriage unity. We were called on to recede from the point to which society had advanced under the light of Christianity—to go back behind the position to which the Jews had attained. We were called on to bring down our marriage arrangements to meet the requirements of the passions or the lusts of a few persons who were unable to bear the restraints of law. Looking for a moment at the authorities on this question, he found from an able work published by Mr. Gibson, of Glasgow, which contained much valuable information, that we had in opposition to these marriages the Jewish Church, the early Christian Church, the Church of the Waldenses, the Reformed Church of France, and such men as Calvin, Beza, Poole, the celebrated annotator; the learned Hammond, Scott, Henry, and other commentators; that great light of the Reformation, Bishop Jewell, and a host of others whose opinions no man need be ashamed to follow. That was his (Mr. Napier's) answer to the hon. and learned Member for Plymouth (Mr. Collier.) Was the House prepared to repeal that part of the table of degrees which was based upon affinity? The supporters of the Bill relied on the passage in Deuteronomy, in which, by the way, the word was always "wife," not "widow." Why, however, should the prohibition to marry a husband's brother be maintained, if that for marrying a wife's sister was to be removed? This chapter included the cases of affinity as well as of consanguinity. If parallel cases were to be supplied, on what ground was the present case excluded? The Reformation founded its prohibitions in the cases derived from the word of God; and, accordingly, the marriage law in this country had come down to us associated with the great and inestimable blessings of the Reformation. If the tendency of the marriage of a woman with her husband's brother was to lead to impurity of life, so much more would be that of a man's marriage with his wife's sister. The hon. and learned Attorney General spoke of the hardship that would be inflicted on the children of a woman on her death; but the Bill went to deprive a wife during her lifetime of the affection and protection of her husband by sowing jealousy in her mind. Was, however, that House at liberty to set aside the great and mysterious law of marriage unity for these superficial reasons?—to discard the au- 1766 thority of the Established Church, which had this great advantage over continental reformed churches, that it did not coerce, but did not permit private opinion to run loose in every way it liked, without restraint or guidance. Christianity elevated the position of the female sex, it removed all ideas of impurity, and it set up a moral standard for our fallen nature. The institution of marriage as it now existed was Christianity applied to the forms of social life, consequently it was based on the Word of God. The early canons of the old Irish Church, in the time of St. Patrick, perhaps the purest of all the Christian Churches at that period, were opposed to marriages of the nature contemplated by the Bill. St. Patrick himself subjoined his reasons to those canons, which were that a brother should not marry his brother's wife because she was his sister. He said, chap. 25—" De thoro fratris defuncti." "Audi decreta synodi, superstes frater thorum defuncti non ascendat, Domino dicente. 'Erunt duo in carne unâ' —Ergo uxor fratris tui sorar tua est." Was a wife's sister less so than a brother's wife? If the affinity was removed as a bar, it would be putting asunder those whom God had joined together, and permitting all the passions of the ignorant poor, or the carnal and sensual rich, to have full range. The agitation that had been excited on this subject was one of passion, not of principle. No expense had been spared to rake up cases, under the pretence that it was for the interests of the poor. He denied that it was for the interest of the poor that society should recede from the point to which it had been advanced by the Reformed Churches; and he asserted that there was nothing to which the Church stood more distinctly pledged than prohibition in such cases. There was another canon of the Church of Ireland, said to be of the eighth century, but probably of century later, which was equally explicit on the point. It said, if any man married two sisters, or any woman married two brothers, he or she should be excommunicated usque ad mortem. The 47th canon of the Irish Reformed Church, constructed in 1634 by that great and learned man, Archbishop Ussher, said that no persons could marry Within the prohibited degrees set forth in the English table of affinities of 1563, and speaks of such marriages as incestuous and against God's law. In 1561 Bishop Jewell wrote as follows— 1767Albeit I be not forbidden by plain words to marry my wife's sister, yet am I forbidden so to do by other words which by exposition are plain enough. For when God commands me I shall not marry my brother's wife, it follows directly by the same that he forbids me to marry my wife's sister. For between one man and two sisters, and one woman and two brothers, is like analogy or proportion, which is my judgment in this case.But he (Mr. Napier) would also take the opinions of enlightened laymen on the subject. Chief Baron Gilbert, as reported, said—It is necessary, to perfect the union of marriage, that the husband should take the wife's relatives in the same degree to be the same as his own without distinction, and so vice versâ; for if they are to be the same person, as was intended by the law of God, they can have no difference in relations, and by consequence the prohibition touching affinity must be carried as far as the prohibition touching consanguinity.The 18th chapter of Leviticus, v. 6, he adds, is expounded by the examples which authorise the table of degrees, which is plainly the decision of this reformed Church. Blackstone says, the canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deducible from them. The early Church and our own reformers took the same view of marriage as our Lord, when He corrected the error of the Jew by going back to the original marriage arrangement, "They twain shall be one flesh." By the present Bill they were relaxing this unity of marriage, putting asunder those whom "God had joined together." In discussing this question, it had been said that there was no distinct prohibition of these marriages on the face of God's word. In endeavouring to ascertain what the mind of God was on this subject, we were not so much to go by a selected text as by the general tenour of the Scriptures. We were to "search the Scriptures," in order to discover God's will and our own duty. We were first to look at the institution of the marriage where it was described as making the two "one flesh;" then, at the special provisions made for the Jews; and in the light of Christianity we were to form our judgment, drawing closer the unity of the marriage tie rather than unloosing it. Just let the House consider the position in which an affectionate woman would be placed if, with this proposed law in force, she appeared at the bedside of a dying married sister. The very affection she exhibited for her sister and her sister's children would subject her to suspicion and the tongue of scandal. 1768 Once the step was taken, the happiness of English homes was at an end, and there was, moreover, no redress. In fact, if once the step was taken, who could say where it would stop? The Bill said those who should celebrate such marriages were not to be liable to censure or punishment. That, however, was a direct interference with the discipline of the Church. The Bill did not seek simply to repeal the Act of 1835, but in effect to abolish the bar of affinity altogether. But if affinity was abolished, what would be the result; only then see what inextricable confusion would be created. Chancellor Kent said on this point—and his doctrine is worthy of all attention—Under the influence of Christianity a purer taste and stricter doctrine have been inculcated, and an incestuous connection between an uncle and niece has been recently adjudged by a great master of public and municipal law to be a nuisance extremely offensive to the laws and manners of society, leading to endless confusion, and the pollution of the sanctity of private life.Yet this is not expressly prohibited in Scripture, and when the Bill was first introduced the noble Lord at the head of the Government said he did not consider it contrary to the law of God. Sir Herbert Jenner, however, in reference to the Act 5 & 6 Will. IV., said, "The Legislature has expressed as strongly as it could do that these marriages are still illegal, and contrary to the law of God." The noble Lord the Member for London (Lord John Russell) said, alluding to the observation of the hon. Member for Edinburgh, "Hold by your Christianity, and the country is secure." So said he (Mr. Napier). In a recent case, upon an appeal to the Judicial Committee of the Privy Council, Baron Parke delivered the unanimous judgment, and declared the marriage to be null and void, as incestuous and "illegal by divine and human law." Thus, there was one continued testimony of the objection of the Church and of the State to these marriages as unhallowed and illegal down to the most recent period, and yet, now they were called upon in the nineteenth century to go back to the practice of remote ages, and to adapt our laws to meet the case of those who bad defied and violated the law of God, and the law of the land, so repeatedly and explicitly enacted. Looking at the subject as a matter of social policy, it was competent for the Legislature to restrict marriages on that ground; and it could not pass such a law as that now proposed without, taking on itself a 1769 tremendous responsibility. Supposing the question to be doubtful in a religious point of view, still the Legislature would be safe in allowing the law to remain as it stood at present, whereas Parliament, if it said that a particular kind of marriage should be valid, which a great amount of continuous testimony affirmed to be against the word of God, might incur a very great responsibility by introducing this new element into the social system. Admitting that in some parts of the country the people might be so impure as to desire such marriages, still Christianity did not stoop to gratify our passions, and the remedy was to educate the people up to the great principles of Christianity. Christianity undoubtedly made allowances for human infirmity, but it made no compromise with sin. Dr. Chalmers had been mentioned as having, in a passing observation, intimated an opinion in favour of these marriages; but Principal Lee, of Edinburgh, stated that he knew Dr. Chalmers' deliberately expressed judgment to be the very opposite, and that Dr. Chalmers considered that parties marrying within these forbidden degrees should not be allowed to be in Communion with the Church. Were the proposers of the Bill prepared to take all the marriage laws of those foreign countries whose example they quoted? Were they prepared to take their multiplied facilities for divorce? The Bill menaced the whole social scheme in this country, which was based upon lawful marriage. It threatened to degrade Christianity, upon which our institutions were founded, by degrading the marriage law. The 18th verse of the chapter of Leviticus, so much relied on, interpreted by the light of Christianity, forbade, by inference, such marriages. Polygamy and slavery were not so expressly prohibited in words in Scripture; they were prohibited by inference; and yet, who doubted their criminality? More plainly prohibited is marriage within certain degrees of affinity. He (Mr. Napier), fortified by the high authority of Scripture, and the identity of view on the part of the lights of the Reformation with those he so weakly expressed, prayed the House to pause before it agreed to the Bill. He would not worship authority, but he would not despise what he was bound to use in forming his own convictions and to bring all to the test and standard of the Divine Word. He would support the Amendment of his right hon. and learned Friend.
§ MR. MONCKTON MILNES
said, that 1770 if the arguments used by the right hon. and learned gentleman were addressed by one man to another for the purpose of dissuading him from contracting a marriage of this kind, they would certainly deserve the most serious consideration and carry with them very great weight; but he must protest against the argument of the right hon. and learned Gentleman to force on other Members of the community obedience, not only to the clear precepts of the Word of God, but to his deductions from the Holy Scriptures. Such a principle was the origin of all hierarchical tyranny, and had been the foundation of much persecution on the part of the Church, and of much misery on the part of mankind. What business had the right hon. and learned Gentleman to stand forward and denounce a man who felt his Christain obligations and responsibilities as strongly as the right hon. and learned Gentleman himself, of being actuated by an ill-regulated sensuality if he arrived at the conclusion that he could contract such a marriage as was now under discussion without infringing the law of God? If the right hon. and learned Gentleman's statement were true, that these marriages were only contracted from the motives he had imputed, he (Mr. M. Milnes) firmly believed they would never in that case have become the subject of discussion in that House. It was only because these marriages had been contracted by men otherwise irreproachable in their conduct and respected by their fellow-citizens that that House was called upon to discuss the question. He asked the right hon. and learned Gentleman whether, if these marriages were to be regarded as properly incestuous, the people of this country would have allowed the law on the subject to have remained for so many years in the uncertain and unsatisfactory state described by the hon. and learned Gentleman the Attorney General? It was because he (Mr. M. Milnes) believed that the moral sense of the people demanded the alteration of the present law that he felt bound to support the Bill, and not on theoretical grounds; for his life had been passed among a large community of people deeply interested in the question. He denied that there was any foundation for the right hon. and learned gentleman's insinuation, that the population among which these marriages took place were either ill-educated or corrupted in their social and religious condition. On the contrary, 1771 the practice existed among the most intelligent and best educated classes in this country. Surely, the right hon. and learned Gentleman would hardly call the people of Leeds, among whom a feeling in favour of these marriages prevailed, sanctioned by the opinion of Dr. Hook, an ignorant population living without spiritual guidance? When, then, he found clergymen, as well as a large majority of the people among whom he lived, in favour of the present Bill, and when he knew that the idea of such marriages being legal before a certain day, and not legal afterwards, was repulsive to their sense of justice, he felt that he could not with propriety do otherwise than support the proposition before the House. What the advocates of the present measure maintained was that marriages of consanguinity were contrary to the law of God; but that marriages of affinity were modified in different countries to a certain extent, according to circumstances of a social and political nature; and at all times the Roman Catholic Church had assumed the right of dispensing with any regulations with regard to marriages of the latter description, In Portugal the permission to marry with a wife's sister could hardly be procured by any influence whatever, whereas a dispensation for a marriage between an uncle and a niece was easy to be obtained, thus showing that dispensations with respect to affinity marriages were not regulated by any absolute law, but by the judgment of the Church as to what was best suited to the habits and temper of a people, He did not say that these marriages were in any degree to be encouraged, but he drew a distinction between the advisability of them and the right of the House to prevent them. He was aware of the terrible consequences which the present law entailed on the children of those persons who contracted these marriages, and he felt that that number was growing larger every day. From his own experience in the neighbourhood where he lived he knew that the frequency of these marriages daily increased, and, before long, the right to an immense mass of property among the middle classes would be hanging on the decision of that House with respect to the present question. There was a large number of persons in a state which the law declared to be illegitimate, but which public opinion, and especially the opinion of the society among whom they lived, declared to be 1772 legitimate. The present condition of the law must necessarily create great discontent, and he entreated the House not to inflict on an innocent progeny the injurious consequences of an enactment which many persons as wise as any to be found in that assembly believed to be unjust.
§ MR. KER SEYMER
said, that the hon. and learned Attorney General had presented himself to the House that day in a new capacity. The chief law officer of the Crown had appeared as the advocate of those who had deliberately broken the law, by means, in some instances, no doubt, of perjury; for many of these marriages could not have taken place except through the aid of a false oath. He had hoped that the House would not again have been called on to discuss this question, and that the existing law would have been acquiesced in; but that seemed now to have been only a pleasing delusion, and when he saw advertisements of a society for procuring en amendment of the law of marriage, with a treasurer, secretary, and clerks, he began to be aware of what must follow. A greater sham was never attempted to be imposed on Parliament than that it was the poor who were agitating for the present Bill. If the poor wore the only parties concerned they might depend upon it the House would never have heard of the measure. It was not the poor who sent lawyers' clerks through the country at great expense to obtain signatures to petitions. He did not wish to argue this question on scriptural grounds, though he thought the argument against the Bill, founded on them, to be perfectly maintainable, but he conceived that the House of Commons was the least adapted place for the discussion of strictly religious questions. He could not, however, entirely pass over what might be called the ecclesiastical view of the case. The House was now for the first time called on to place the law of the land in direct opposition to the law of the Church. He could conceive a case when it might be necessary to do that; but it must be, he maintained, a case of great necessity, and, he asked, did that great necessity exist in the present instance? There was no doubt that the 99th Canon was binding on the clergy, and in connection with the law had hitherto been a guide to the conduct of the laity. Look, then, at the position in which the present Bill, if passed, would place the clergy, declaring, as it would, that they might break the law of the Church with 1773 impunity, if they pleased, or they might refuse to do so. This was a most unfair position in which to place the clergy. The great objection, however, which he entertained against abandoning the law of the Church was, that it would be impossible, then, to tell where to draw the line. The modern Nonconformists were not safe guides on this subject, for Dr. Cox, a Baptist minister, who was examined before the Commission, stated that he had no objection to any marriages where there was no consanguinity, for he considered that marriages within the degrees of affinity ought to be tolerated. The clergy, too, of the Established Church, who had abandoned the rule of their Church on this question, had got into the greatest confusion with reference to this particular point, and one of them, who was examined before the Commission, actually did not know the difference between degrees of consanguinity and of affinity. The old Nonconformists were not so lax as their descendants, for Matthew Henry, in commenting on the chapter which had been so often referred to, thus expressed himself—It has been generally laid down as a rule, that what relations of a man's own he is bound not to marry with, the same relations of his wife's he is likewise forbidden to marry, for they two are one.The practice of Protestant Germany with regard to the law of divorce must completely prevent us from taking her as a guide in these matters, as was suggested. The law of divorce there was plainly opposed to the law of Christianity; for, while that law only admitted of divorce a vinculo matrimonii for one cause only, the law of Germany granted it for various reasons. Many thoughtful and religious men in Germany deeply lamented this state of things, but the perversity of human nature was such, and the license probably so agreeable, that all efforts for a change in the law had been unavailing. They had been also told to look to America, and to the opinion of Mr. Justice Story; but Mr. Justice Story stated that though marriages between brother and sister were incestuous, it was impossible to extend the principle beyond that limitation. Such opinions were very dangerous, and it was the prevalence of such laxity of opinion regarding the marriage state that had given rise to Mormonism and the Mormon republic. With reference to Roman Catholics, Dr. Pusey and Dr. Wiseman had 1774 given evidence—the first, straightforward and clear, the other, as it appeared to him, with a view to mystify the question. With regard to the practice of the Roman Catholic Church on this point, hon. Members were probably not aware that the very first dispensation which was granted for a marriage with a wife's sister was granted by the infamous Borgia, who also granted a dispensation for the marriage of an uncle with a niece. The dispensations of the Roman Catholic Church, therefore, could not add any great force to the arguments in favour of these marriages. It was rather a singular thing, considering that the Roman Catholic priests were in favour of the alteration of the law, that the whole of the Irish people, instead of going along with their priests, as usual, were universally opposed to these marriages. Female purity was one of the most distinguished virtues of the Irish character, and the relations between the sexes there were on a high footing; and very naturally, therefore, marriages of this description were disliked and condemned by the Irish people. It was said that we ought to trust to nature to draw the line; but it was not said what sort of a nature it was that was to be trusted to. What we read with regard to the habits and customs of nations in a state of uncultivated nature would scarcely lead us to suppose that there was any great restraint practised among them in those matters, while, as for civilised nature, at ancient Athens—the most civilised community, perhaps, the world ever saw—marriages with the half-blood were legal, and the law of Rome, after the time of Claudius, allowed the marriage of an uncle with his niece. It had been stated by an hon. Member that this was an interference with domestic and natural rights. He did not understand this kind of argument. We did not interfere with natural rights in several instances, when such a power of interfering was proper and for the good of society. He contended that it was for the good of society that natural rights on the question of marriages should give way to the advantage of the community. Much had been said of the wealth and respectability of the persons who were affected by this prohibition, and who had broken through it. Wealthy no doubt they might be, but with respect to their respectability he demurred. It was not a very respectable thing to marry in opposition to the law—sometimes, if not always, by means of perjury—and to be- 1775 come the father of a family of illegitimate children. Neither was there any force in the argument, that such persons had been well received in society after contracting such marriages. He was afraid that many men were better received in society than they ought to be who had broken the Seventh Commandment, and he had never heard of any gentleman who, having obtained a seat in that House by corrupt means, and having been afterwards unseated on petition for bribery, found that his friends and acquaintances turned their backs on him in consequence. But though that was the case, it was not thought any less necessary to increase the stringency of the law with regard to bribery. The evidence before the Commission was, in his opinion, very one-sided, for the promoters of this change were of course well organised, and took every possible pains to bring forward witnesses to support their own view of the question, while, on the contrary, the opposition, being unorganised, was left very much to take its own chance. The evidence produced, however, by the supporters of the alteration was so redundant that it actually proved too much, and the Commissioners, being conscious of that, were obliged, in some instances, to fall back on their own knowledge, and reported in the teeth of the evidence laid before them. It was urged that the House ought to legislate for the working classes who had contracted marriages of this description; but, with all respect for the labouring classes, he was not inclined to take their conduct and their habits as a guide for the legislation of that House. He very much doubted, however, the frequency of these marriages among those classes, and, even if it were as was represented, the proper policy to adopt was to educate them up to the law, and not to lower the law to the state of degradation in which they might unfortunately be. To the argument that the widower, if he married again, would marry a stranger, he would say that might be so, but there could be no hardship in that, as the sister might still exercise those duties towards the children quite as freely as if she married her brother-in-law. All moral arguments were against this alteration of the law, and it was to the credit of the women of England that they were generally against the change. He could not understand why hon. Members who took up this question did not go the whole length, and sanction, according to Scripture, the marriage of one woman 1776 with two men. The supporters of the measure had asserted that the opinion of almost every country in the world was favourable to the measure, but that it was not their intention to extend the Bill to Scotland, because the Scotch Members, in that case, would vote against it. No people cared so little for the canon law as the Scotch did; but bringing to the study of the Bible that intelligence and education for which they were distinguished, they had arrived at the conclusion that these marriages were against the law of God. He warned the Scotch Members that, if this Bill passed, their turn would come next. The late Lord Rutherfurd, when Lord Advocate, in the evidence which he gave before the Commission, stated that he thought any alteration of the law of marriage in England ought to apply also to Scotland, for that the worst consequences would result from having a different marriage law in each country, and from declaring a marriage within certain degrees to be incestuous on one side of the Tweed and legal on the other. Some disappointment might be felt at the rejection of this measure by persons who had built their hopes on its becoming law; but he was convinced that the great body of the people of England, Scotland, and Ireland would support the House in showing a bold front against any change of the law. He believed that the throwing out of this Bill might prevent other Bills of a similar kind being brought forward, and that on this important subject the law of the land, the law of the Church, and the law of public opinion would be, that "a man may not marry his wife's sister."
§ MR. T. CHAMBERS
said, he was somewhat indifferent to the supposed evils on either side, but he was anxious to see the question argued as a religious one. The law could have no justification, except upon a religious ground, and the alteration would have had no justification except upon the same ground. He did not think that the law of marriage ought to be tampered with, but would it be said that the Act of 1835 did not tamper with the law of marriage? He heartily re-echoed the assertion that the law of marriage ought not to be tampered with except the law of God sanctioned the alteration. Ought not the House, however, to remove the disgrace to the statute-book made by the law of 1835? The right hon. and learned gentleman the member for Dublin University 1777 (Mr. Napier), though he had commenced by disclaiming any wish to attribute a conclusive effect to the authorities which he quoted, had yet based the whole force of his argument upon them; but, for his part, there was no point on which he should be less disposed to defer to the authority of the Church than on this of marriage, for on none other had she been so long and so completely and so obstinately wrong. Every prohibited degree must stand or fall by the Divine law, as set forth in Scripture; and a careful examination of the 18th chapter of Leviticus, to which so much reference had been made, convinced him that there was scarcely the semblance of an argument for this prohibition to be extracted from that source. Indeed, it was obvious that that chapter was not a complete code of marriage law, and it inferentially implied the previous existence of a natural law which was binding on the heathen nations as well as on the Jews, because the abominations of the Canaanites in relation to marriage were there denounced as sin, and where there was no law there plainly could be no sin. Again, one of the first conditions essential to a law was, that it should be so given as to be understood by those to whom it was addressed. Now, the interpretation that had been put upon their law by the highest authorities among the Jews in all ages was, that these marriages were not forbidden, but, on the contrary, were rather encouraged; and the Chief Rabbi of that persuasion stated in his evidence that in all their books of rabbinical learning there was not a single opinion to be found in support of their prohibition. Would it, however, be contended that there was such a prohibition in the Divine law, which, although not binding on the Jews in past times, on account of their ignorance and darkened understandings, was nevertheless of imperative obligation on the Christian? Let those who might seriously think of urging such an argument weigh for a moment all the dangerous consequences which it involved. The whole history of the Christian church for many successive centuries proved that the promulgation of no doctrine had been more fruitful in mischief than that which aimed at creating a fictitious and over-strained purity in regard to marriage. The present law of England on this subject did not secure greater morality than would result from the sanction and allowance of 1778 marriage with a deceased wife's sister; and experience showed it was impossible to educate the people up to the sentiment which kept alive this prohibition. There being, then, no disallowance of these marriages in the law of God, the next question was as to their desirability in a social point of view, and that was a matter which men should be left to decide for themselves, according to the varying circumstances of each case. The feeling of the people in other parts of the United Kingdom might, as was alleged by the opponents of the Bill, be inimical to the legalization of these marriages; but why was a man in England, who wished to contract one, and saw nothing inconsistent with the Word of God in doing so, to be fettered by the scruples of a Scotch or an Irish conscience? For these reasons, then, and looking at the grievous evils which had befallen civilized society in all times from unwise tamperings with the right of marriage, he would give his vote in favour of the removal of the restrictions dealt with by this Bill.
§ MR. WHITESIDE
said, that the hon. and learned Gentleman who had just sat down had argued that there was no traditional proof that the Jews from the earliest times objected to a man marrying two sisters. Now, if he had referred to a paper which was handed in by the Rev. R. C. Jenkins to the Commissioners, he would have found this passage—It appears, however, that the traditional law of the Jews did exclude the marriage of two sisters in succession, but whether upon the ground of this passage (in Leviticus), or upon some more general law, does not clearly appear.An eminent authority on the same point was the work of one of the most learned, profound, and respected authors of antiquity—namely, Philo-Judæus, who lived before the commencement of the Christian era. Philo-Judæus having described this command not to espouse two sisters as an injunction of great excellence, and one which contributed greatly to temperance and good order, and having also commented on the bad laws of other States, permitting incestuous marriages, proceeded as follows—On which account our lawgiver (Moses) has also forbidden other matrimonial connections, commanding that no man shall marry his granddaughter, whether she be his son's or his daughter's child; nor his niece; nor his aunt; nor his grandmother, by either father or mother; nor any woman who has been the wife of his uncle, or of his son, or of his brother; nor, again, any step- 1779 daughter, whether virgin or widow, whether his own wife be alive, or even after her death. For, in principle, a stepfather is the same as a father, and, therefore, he ought to look upon his wife's daughter in the same light as his own. Again, he does not permit the same man to marry two sisters, neither at the same time, nor at different periods.Further on, the same writer said—And sisters are like limbs, which, although they are separated from one another, are nevertheless all adapted to one another by nature and natural relationship. And jealousy, which is the most grievous of all passions, is continually producing new, and terrible, and incurable mischiefs.The hon. and learned Attorney General denounced the existing law on this subject as tyranny—a strange argument, assuredly, from one who ought to be the luminous expositor of the common law of the country! His allusion, no doubt, was to what was called Lord Lyndhurst's Act; but Lord Lyndhurst introduced no new law. Lord Chief Justice Campbell, in his profound and lucid speech on this subject, said—The agitators went about the country, asserting in the most positive terms that until Lord Lyndhurst's Bill passed, these marriages were sanctioned by the law of England. Now, the fact was, that Lord Lyndhurst's Act had made no alteration in the law; it had only altered the mode of procedure by which these unlawful marriages were to be set aside. There had been previously a great defect in the law of England on this point. Marriages, however censurable on the ground of incest, were not void. Even if a man married his own sister or his mother, he (Lord Campbell) was ashamed to say that that was not a void marriage; it stood good until it had been set aside by the decrees of a competent judge. Lord Lyndhurst's Act properly provided that those marriages which heretofore had only been voidable should be void, as they had been before the Reformation, and as they were in Scotland at this time. Lord Lyndhurst introduced no new law, but only improved the mode of procedure—the manner in which the law was to be in future enforced.From the second century downwards these marriages were not allowed in this country, and although the Act of 1835, operating retrospectively, prevented them from being annulled, it still left the persons who had contracted them responsible for their incestuous conduct to the Ecclesiastical Courts. Lord Campbell said it was natural and reasonable enough, where ignorance and confusion as to the law existed in the country, to secure the marriages contracted in such a state of things from being annulled; but there was no instance on record of men 1780 who knew the law, and yet with their eyes open wilfully violating it, appealing successfully to Parliament to induce it to accommodate the law to their wishes, and thus making their deliberate infraction of it an argument for the change. Again, there was the authority of Lord Brougham, whose enlightened mind was not fettered by technicalities, but always took a comprehensive view of every question to which it applied itself. That noble and learned Lord said—The truth was, those marriages were void ab initio;; but, as it required the sentence of a court of law to declare them void, the expression came to be used, that they were voidable. All that the sentence did was to declare the invalidity that already existed.Lord Brougham's opinion, therefore, was in conformity with that of the head of the common law of this country. One of the concluding clauses of this Bill declared that the Act should not extend to Scotland, but it would be absolutely impossible to pronounce marriages incestuous in Scotland which would be perfectly legal in England. And on this point one of the petitions against the Bill, presented within the last few days from Scotland, very justly observed—Your petitioners believe that if such a Bill become law, it will be Contrary to the Word of God, destructive of the peace and privity of families, and an outrage on the best feelings of the great majority of the inhabitants of this country. Your petitioners are aware that the present Bill is not intended to apply to Scotland; but this does not remove their objections to it. Besides, they deem it impossible that the law on such a subject can remain different in the several parts of the kingdom for any length of time.They were constantly approximating towards an assimilation of the commercial law of different parts of the kingdom, and yet, on a much more important and even a sacred question, they were now asked to establish one law for England and another for Ireland and Scotland. It was earnestly to be hoped that the House would discourage all such attempts, and, following the advice of the Lord Chief Justice, and deferring to the most learned and pious authorities of all antiquity, put an end once for all by a decisive majority to the further discussion of this subject; and let them not for a moment be deterred from rejecting the Bill by the threat of the hon. and learned Member for Plymouth, which he must have borrowed from certain orators of the sister country—namely, that 1781 if the House threw out this measure, his cry would be, "Agitate, agitate, agitate!"
§ SIR WILLIAM HEATHCOTE
moved the adjournment of the debate.
Debate adjourned till Wednesday, 9th May.
§ The House adjourned at ten minutes before Six o'clock.