§ Order for Committee read.
§ House in Committee.
§ Clause (Repeal of Statutory Prohibition of Marriage with a deceased Wife's Sister or Niece).
§ SIR FREDERIC THESIGERsaid, it was his intention to move certain Amendments, the effect of which would be to do away with the retrospective operation of the Bill. From the date of the Act of 1835 until the present time, marriages of this description were positively prohibited by the law, and were declared to be null and void. He considered that nothing could be more dangerous than the principle which would be established by this Bill, which sought to legalise the marriages of those parties who had knowingly violated the law. In all cases in which parties had, through ignorance or inadvertence, violated the law the Legislature had interposed for their relief, but on no occasion had it legalised and sanctioned acts committed against the provisions of an Act of Parliament. Wilful transgressors of the law were not entitled to the protection of Parliament, but it was now sought to give this Bill a retrospective effect on behalf of parties who had wilfully violated the law. One person in speaking of this had said that he knew he was running counter to the Act of Parliament, but that if he had committed a religious or moral wrong he could not be absolved from it by the repealing of the Act. Another person denied that an Act of Parliament could either create or annul a moral obligation. In the present case they then had persons who by their own confessions had contracted marriages, well knowing them to be prohibited by law, coming before Parliament and saying, "though we have deliberately and knowingly violated the law, yet we ask you to interpose for our pro- 2275 tection, and make that legal which at the time it was done was perfectly illegal, and has continued so to the present time." The Bill which had recently passed the House of Commons to proctect one of its Members from the loss of his seat, because he had inadvertently and ignorantly taken the oaths when the Speaker was not in the Chair, could not be regarded as a precedent applicable to the present case. Whatever differences of opinion there might be as to the religious or moral obligation of abstaining from marriage with a deceased wife's sister, no man could deny that Parliament had authority to pass a law upon that matter, since it could not be pretended that such marriages were ordered or enjoined by the divine law. An Act of Parliament, then, which was not contrary to the divine law, did create a new moral obligation; and the persons who, by their own confession, had chosen to disregard that moral obligation, were not deserving of the protection which they sought by this Bill to obtain. It might be said that, on a former occasion, the Legislature did remedy the invalidity of marriages of this kind which previously existed; but that was not the fact. Before the Act of 1835, marriages within the prohibited degrees of affinity were void, but could only be declared void by sentence of the Ecclesiastical Court, which could only be obtained during the lifetime of both of the parties. After their death, the marriage could not be voided, and the children were legitimate. The children were thus in a most precarious situation. It was common to have a friendly suit carried on during the whole time of the joint lives of the parents, so as to prevent any person who might be entitled to the succession from taking steps to invalidate the marriage, which might have been done where that device was not resorted to. It might also happen that the married parties themselves, from some caprice or some feeling against each other, should annul the marriage. Of course such a state of things could not be allowed to continue, and the Legislature interposed in 1835, but in what manner? Parliament might either have declared all such existing marriages to be null and void, which would have been the greatest possible hardship on the children, who, if no suit had been instituted during their parent's lifetime, were entitled otherwise to the succession as legitimate. Parliament might, on the other hand, have rendered all those marriages valid which had pre- 2276 viously been contracted, but to do so would have been an acknowledgment by the Legislature that they were not prohibited by the divine law. The Legislature, therefore, adopted a middle course, and passed a Bill by which it was provided that, with respect to all marriages within the prohibited degrees which had already been contracted, no suit should be instituted in the Ecclesiastical Courts to annul them. But this did not amount to a recognition of their validity; and the Legislature moreover declared that all such marriages in future contracted within the prohibited degrees of affinity or consanguinity, from that time forth should be null and void. His argument was, first, that the Legislature had never passed a Bill for the protection of persons who had wilfully violated the law; and, secondly, that the Act of 1835 was one which it was competent to the Legislature to pass, and which, therefore, it was the duty of every subject to obey. It might be urged that the innocent offspring of such unions ought not to be left exposed to the consequences of illegitimacy. He (Sir F. Thesiger) felt pity for them, but he could not consent to remove, by protecting the children, that powerful motive to self-restraint which persons who were disposed to violate the law would find in the natural regard for the welfare of their offspring. And how far should that principle of compassion be carried? The inquiries made upon this subject had unhappily revealed the fact, that marriages of a much more revolting character often took place. There were innocent offspring of those marriages too; but was the Legislature to interpose for their protection? He ventured to say there were many more illegitimate children, the fruit of illicit intercourse, throughout the country, than there were children of these prohibited marriages; but although we must feel compassion for those who had been brought into the world in a degraded state, by the sins of their parents, it was impossible to save those victims of the guilty act of shame which gave them life. The children of the poor would have nothing to lose, and those of the wealthy might have given to them, by will, as much as the bounty of their parents designed for them. Such would be their condition as to property; but as to their social position, those who thought these marriages immoral would regard them in the same way, whether legalised by this Bill or not. There were many estates en- 2277 tailed, in which the persons who were first in the line of entail had contracted marriages of this description; and of course their offspring could not succeed. It would be unjust in those cases to interfere with the rights of the parties next in succession, by making the children legitimate. The Legislature on previous occasions always took care of the interests even of common informers who had actually sued for penalties incurred by any breach of the law, and ought not now to deprive the next successors of the property which belonged to them in consequence of the illegality of these marriages during the last eighteen or twenty years. He warned the House against furnishing for the first time the mischievous precedent of sanctioning a wilful violation of the law by rewarding the offenders with the fruits of their offence, and he hoped they would assent to his Amendment, the effect of which would be to prevent the retrospective operation of the Act.
§ Amendment proposed, page 1, line 9, to leave out the words "is hereby," and insert the words "shall from and after the passing of this Act be."
§ MR. HEYWOODsaid, he could not, of course, agree to the Amendments proposed by the hon. and learned Gentleman. There was a direct precedent for the retrospective operation of this Bill. In the reign of Henry VIII. the marriage of priests was absolutely forbidden by Act of Parliament, and made punishable with death. The Protestant religion, however, was gaining ground at that time; and in the reign of his son Edward VI. the Act 2nd and 3rd Edward VI., c. 21, empowered priests to marry, and also went back and legalised all the marriages of priests then living, which had taken place up to that time. The fact was that while the Protestant religion was increasing the priests had been marrying, although it was illegal to do so; and the Act provided "that all manner of forfeitures, pains and penalties, crimes and actions, heretofore incurred, shall be utterly frustrate and of none effect. The Act was confirmed by a subsequent one, the 5th and 6th of Edward VI., which declared that "the matrimony of every priest heretofore celebrated and made shall be adjudged legal, and all the children shall be deemed legitimate and inherit." This was a case directly in point. The Act of 1835 had been in operation twenty years, and public opinion so completely favoured these mar- 2278 riages, that not a single lawsuit of any kind had been begun with reference to them; there was no such suit pending, as the hon. and learned Gentleman assumed; and he believed no person who wished to stand well with his fellow-countrymen would venture to institute such a suit, and if any one obtained an estate by such means, his neighbours would not visit him, and he would be regarded as having done a most wicked thing in dispossessing his near relative upon such ground.
§ LORD ROBERT CECILsaid, the Committee would be insane to look for guidance to the precedents of such an era as that to which the hon. Gentleman had referred, when Parliament acted at the bidding of a bloody and capricious despot—[Mr. HEYWOOD: Edward VI.?]—then, of a Council of bloody and capricious despots. They might just as well act upon the precedent of that gigantic invasion of private rights, the seizure of the property of monasteries. But the precedent adduced by the hon. Gentleman (Mr. Heywood) did not answer his purpose, for it was no reply to the argument of his (Lord R. Cecil's) hon. and learned Friend (Sir F. Thesiger) that the rights of parties would be prejudiced by retrospective legislation. A man who, being next in succession to an entailed estate, and relying upon the consistency of Parliament, had looked forward to the enjoyment of that estate, ought not, without warning, to be deprived of his just hopes. This Bill was regarded by many persons as a private Bill introduced for the benefit of a few. That view might be unfounded, but what a handle would be given to the scandal if its enactments were made retrospective? Those who had violated the law had done so wilfully, they belonged to the educated and wealthy classes, and it was, therefore, just that their children should be bastardised. They had of late heard much about the influence of the aristocratic and the wealthy classes in the Government of this country, and although he did not believe the charges which had been made against those classes, how strongly would they be corroborated, if Parliament, in a matter the most sacred with which legislation could deal, did that for the wealthy violators of the law which they would never think of doing for the poor?
MR. BECKETT DENISONsaid, the Act of 1835 had been a failure, and ought to be got rid of, for it inflicted great injustice on large numbers of persons not only among the wealthy, but the poor. 2279 The poor could not get married as they were not rich enough to go abroad; but they did worse, and in the manufacturing districts many of them lived in immorality in consequence of that Act of 1835. As to the religious objection to these marriages, he believed that the clergy were by no means agreed as to it. The Archbishop of Dublin, the Bishop of Durham, the Bishop of St. David's, the Bishops of Norwich, Manchester, Llandaff, Limerick, Meath, and others of the bishops, were against the law, with such clergymen as Canon Dale, Dr. Hook, Dr. M'Caul, of King's College, Mr. Champneys, &c. As to the rich, they went abroad and were married, and were not one whit worse received in society on the account of such marriages. When a widower lived in the same house with his sister-in-law no act of Parliament could prevent the respect with which they would at first regard each other from changing to a feeling of another character, and they ought not to be prohibited from contracting marriage. He was sorry that the law should be violated, but he was still more sorry that the law should have existed. The Act of 1835 was decidedly wrong, and ought to be repealed. That very Act confirmed these marriages up to the time of its passing. Before that Act there was no Statute Law against them; and they could only be annulled in the Ecclesiastical Courts; and that Act declared that they should not be annulled unless in then existing suits so far as regarded marriages before the Act. He should, therefore, support the clause as proposed, and vote against the Amendment of the hon. and learned Member for Stamford (Sir F. Thesiger).
§ MR. COLLIERsaid he should oppose the Amendment, which would have the effect of invalidating only those marriages which had taken place between 1835 and 1855. After all, it would not affect the parents, because they might be legally married the day after the Bill was passed; but it might make the elder children of a family illegitimate, while the younger children were legitimate. The Act of 1835 was retrospective, because it prevented ecclesiastical suits from being instituted to invalidate the marriages contracted up to the time of its passing. This question was not, however, a question of precedent, but principle. If marriages of this kind were improper, they ought to be altogether prohibited; if they were proper, let Parliament legalise them—but let them not 2280 make the miserable compromise of bastardising only the children born within a certain period.
§ MR. NAPIERsaid, he quite agreed that this was a question of principle, but he could not help expressing his astonishment at hearing the Bishop of St. David's quoted as an authority in favour of the Bill, when, during a debate upon a similar measure in another place, that right rev. prelate had said that, although it might afford accommodation to a number of individuals, it would introduce distrust, jealousy, and alarm into many families, and he could not therefore accept the responsibility of agreeing to it. The Bishop of Cork, too, was set down as favourable to this Bill, when his name appeared in the list of Non-Contents against the previous measure. An excellent friend of his, who supported a former Bill, did not know at the time that the Reformed Churches had pronounced against these marriages. These were specimens of the misconceptions that prevailed in consequence of the statements put forth by the supporters of the Bill. The law of England had been stated by Mr. Baron Parke before 1835, when delivering the unanimous opinion of the Judicial Committee of Privy Council to be that these marriages were null and void, and incestuous and illegal by Divine and human law. The Act of 1835 did not make these marriages valid in future, but only said that those which had been contracted should not be annulled, and in so far as they had before been incestuous and illegal by the law of the land so they remained. Lord Campbell stated that there were more cases of bigamy than of these marriages. Bigamy was a felony; it was committed in spite of the law; but should Parliament therefore repeal the Statute against parties who contracted bigamy? Both Lord Campbell and Lord Brougham stated that Lord Lyndhurst's Act had produced no new law whatever, and when he was asked to consent to repeal the Act of 1835, as a premium to those who had violated the law, he must declare that he would not be a party to any such legislation.
MR. BECKETT DENISONsaid, he had alluded to the Bishop of St. David's and other prelates for the purpose of showing that they did not recognise the religious objections to this measure, and not to prove that they were in favour of the particular measure before them. The Bishop of St. David's, he was informed, 2281 argued in the other House that such marriages were not prohibited, but were tacitly permitted in the chapter so often quoted, and he protested against the notion that there had been a Divine prohibition of these marriages.
§ MR. NAPIERsaid, that some persons thought that these marriages were prohibited by the Divine law, while others objected to them on social grounds. The Bishop of St. David's, at all events, voted against a Bill on this subject in 1851.
§ VISCOUNT EBRINGTONsaid he had repeatedly voted in favour of the repeal of the Act of 1835, as desirable for the sake of religion and morality. He should have much pleasure in supporting the mover of the Bill in maintaining this part of it, as well as in carrying through the general principle of the measure.
§ MR. FRESHFIELDsaid, the hon. and learned Member for Plymouth (Mr. Collier) had erroneously characterised the Act of 1835 as a retrospective Act. It was in no sense a retrospective Act, for it simply had for its object to put an end to a doubtful state of things as to whether a marriage of the kind in question was a marriage or not. The course of legislation hitherto on this subject was to refuse to interfere with marriages with a deceased wife's sister, and to leave them to be interpreted according to the ecclesiastical law; and the present Bill was a departure from that course, which he thought was uncalled for, inasmuch as the feeling of society, as he contended, was undeniably opposed to marriages of this sort.
LORD SEYMOURsaid, he should vote against the Amendment, for he thought that, if the Bill were carried at all, it ought to contain the retrospective clause, otherwise great confusion would be created; for, take the case of a gentleman who had married his wife's sister since the Act of 1835, the Amendment would not legalise that marriage, and, if the gentleman wished to continue his connection with the family, he might leave this lady and marry another sister, his marriage with whom, after the passing of this Act, would be perfectly legal. This was was the way in which the hon. and learned Gentleman (Sir F. Thesiger) proposed to legislate for the peace of families.
§ SIR FREDERIC THESIGERsaid, the argument used by the noble Lord went to show more strongly than anything he had heard that they should abstain from legislating on this question altogether. 2282 Parties were bound to obey the laws. It had been contended that statutes did not create a moral obligation. Certainly they did, if the subject was within the scope of legislation. Was it denied that this subject was within the scope of legislation? He would observe that there were no precedents whatever for legalising an act which had been committed contrary to law. With respect to the marriages of priests, they were never contrary to law. By the common law, the marriages of priests were valid. They rendered the parties, it was true, liable to ecclesiastical censure; but over and over again it had been decided in the courts of common law that the marriages of priests were legal. He contended, in opposition to the hon. and learned Member for Plymouth (Mr. Collier), that the Act of 1835 had no retrospective operation whatever. It merely confirmed the condition of the children by putting them in a position in which they could not be prejudiced by any suit instituted to set the marriage of their parents aside.
THE ATTORNEY GENERALsaid, when the Act of 1835 was brought into the House of Lords it did not contain a clause declaring marriages with a deceased wife's sister illegal in future, and in the debate which afterwards took place upon it a clause to that effect was inserted as an afterthought. That Act had a retrospective operation in respect to marriages which had already taken place, and so the present Bill ought to have. It was in fact the ex post facto legislation on this question which had led to the necessity for the present Bill. The Amendment before the Committee would have the effect of punishing those who were entirely innocent. The parents themselves would obtain all they were asking, and those marriages would become legitimate; but this Bill, thus amended, would fix on the children the brand of illegitimacy, which had resulted from the act of their parents. If ever there was a case in the world in which retrospective legislation was legitimate and proper, this was that case of all others.
§ MR. WALPOLEsaid, he hoped that the Committee would not pass a retrospective law to enable parties who had violated an Act of Parliament to take advantage of their disobedience of the law. The Act of 1835 was, in the true sense of the word, anything but a retrospective law. The key to the meaning of the Act of 2283 1835, and to the intentions of its authors, was, not what had passed in debate in the House of Lords, but in the preamble of the Act, which stated that marriages between these parties were in future to be ipso facto void, and not voidable. These marriages were not legal before 1835, and were just as bad then as now. The noble Lord (Lord Seymour) had put the case of a gentleman who might have married the sister of a deceased wife since the passing of the Act, but who, not being able to live with her, might marry another sister, which marriage would be legal. Now, he should like to have an answer to these questions:—Supposing a man who had married his wife's sister, thinking that marriage null, married his wife's niece, which marriage was to be good after the passing of this Bill? Or, supposing a man who had married his wife's sister, and had six children by her, married another person and had children by that marriage, which marriage was to take effect—which set of children were to be legitimate? He submitted these questions to show the Committee that the moment they passed a retrospective law they would involve themselves in endless confusion.
§ MR. HEYWOODsaid, in his opinion, in the first case the first marriage ought to be valid, and in the second case the second marriage.
§ MR. HENLEYbelieved that in an assemblage of women this Bill would have no chance, and that in an assemblage of men a Bill to legalise the marriage of a woman with two brothers would not meet with approval. He thought the argument, that Parliament should consider the position of the innocent children of these marriages was equally applicable to the children of persons who had been guilty of bigamy, and he would venture to say, for one person born of these marriages there were twenty born of marriages where there were either more wives or more husbands than one. He believed it would be most mischievous to give the Bill a retrospective operation, and should, therefore, support the Amendment.
§ MR. WALPOLEsaid, the question he had put had not been answered.
THE ATTORNEY GENERALconcurred in the opinion of the hon. Member for North Lancaster (Mr. Heywood), that in the one case the first marriage, and in the other case the second marriage, ought to stand.
§ MR. WALPOLEsaid, that there was 2284 not one word in the Bill to say so. Did the hon. and learned Gentleman propose to bring up a clause to that effect?
§ Question put, "That the words 'is hereby' stand part of the Clause."
§ The Committee divided:—Ayes 130; Noes 83: Majority 47.
§ Clause agreed to.
§ Clause 2 (Such Marriages before the passing of this Act, not to be void or voidable).
§ SIR FREDERIC THESIGERsaid, his object, as he had previously stated, was to prevent the retrospective operation of the Bill; he should now move the second Amendment of which he had given notice. He entreated some one to give satisfactory information as to what would be the effect of the clause under the circumstances suggested by his right hon. Friend (Mr. Walpole). They ought not to legislate in the dark. They ought to understand, and at present he did not understand, what would be the effect of a marriage which had taken place with a deceased wife's sister, and a subsequent marriage either with a deceased wife's niece, or with another sister, or with any other person. He wanted to know what would be the effect of this clause upon those marriages; whether the first was to be the lawful marriage and the children legitimate, or the second was to be the lawful marriage and the children legitimate? Until some explanation was given as to the condition of such parties he thought the Committee were hardly in a position to legislate at all in this matter.
§ Amendment proposed, to leave out the words "which has been or shall be celebrated at any time or place whatever."
§ MR. HEYWOODsaid, cases had occurred of some persons among the poorer classes who had married the wife's sister, became tired of her, repudiated her and her children, and married some other person. In those cases, whether the second marriage was with the wife's niece or another sister, or whom they pleased, he thought the first marriage ought to be valid.
§ MR. WALPOLEsaid, he wanted to know what became of the second marriage?
§ MR. HEYWOODsaid, he supposed it was precisely the same as bigamy.
§ MR. WALPOLEsaid, that they would 2285 then, by a retrospective law, make illegal marriages valid, and declare the offspring of legal marriages to be bastards.
§ MR. ROBERT PHILLIMOREsaid, he was perfectly certain no Court in England would voluntarily commit an act of such gross injustice as would virtually be committed if the views of the hon. Member (Mr. Heywood) were adopted.
§ MR. HENLEYsaid, he considered it important that the Committee should have the opinion of the Attorney General, whether the intention of the Bill was really such as the right hon. Member (Mr. Walpole) had stated, to legalise marriages which, being illegal, had been repudiated, and bastardise the issue of persons lawfully married. The case was how fairly before them, and he should like to hear from the Attorney General if it were intended that a woman, married upon the faith of the law of the land, making a previous marriage of her husband null and void, was, by this prospective enactment, to be declared a prostitute and her children bastards?
THE ATTORNEY GENERALsaid, he must refer to his previous answer: as he understood the question then put to him, it was this—Supposing a man contracted a marriage with a wife's sister, which under the existing law was invalid, and then contracted a marriage with a wife's niece, which was also invalid, which marriage ought to stand? And, in that case, he said the first marriage ought to hold good. But, supposing a man had contracted a marriage which under the existing law was invalid, and subsequently another marriage—which was valid? Then he said the second marriage ought to hold good.
§ SIR FREDERIC THESIGERsaid, if that was the intention of the framers of the Bill, it was not expressed in its provisions. It appeared to him it was impossible to have more striking illustrations of the evil of giving to the law a retrospective operation than in the variety of opinions which had been expressed during the debate, and the inextricable difficulties which would evidently arise. It was proposed by the Bill to render lawful marriages with a deceased wife's sister which had taken place since 1835; and, of course, if those marriages were rendered lawful, the children of them were all legitimate. Various instances had occurred of persons who, having married their deceased wife's sister, had subsequently married some other per- 2286 son; and, according to the existing law, the first marriage being void, the second was a valid marriage and the children legitimate. The question arose, what effect would the retrospective operation of the Bill have upon those marriages? In either case enormous difficulties would arise in reconciling the rights of parties, and that was a strong reason why the Committee should not violate all precedent by giving a retrospective effect to the Bill.
§ MR. H. S. KEATINGsaid, he thought the difficulties suggested by the hon. and learned Gentleman would be obviated by the introduction of the word "lawfully" before the word "intermarry" in the third clause. He considered the argument that because all such acts could not be legitimised none should was a bad one, and to get rid of any doubts which might exist, he could suggest some such plan as he proposed.
§ MR. NAPIERsaid, he could instance an actual Case of a man who had married in succession three sisters, in which it would appear from the present Bill the third was alone to be valid. It appeared to him that the Bill in this respect proceeded upon no principle at all.
§ MR. HEYWOODsaid, he felt bound to defer to the legal opinion of the hon. and learned Member for Reading (Mr. Keating), and, therefore, would introduce the words "lawfully intermarried" into the third clause.
§ MR. WALPOLEsaid, he wished to know in case where a man had married his wife's sister, and then her niece, which of the children should be deemed legitimate? The Attorney General had given an opinion that the children of the first marriage would be legitimate, but the second not; and upon that point some further information would be desirable, for, if that were so, where were the arguments of the supporters of the Bill about the hardships upon innocent children? Unless some better explanation were given he thought Parliament would be involving itself in endless confusion by such legislation.
§ MR. COLLIERsaid, the cases supposed might be possible, but certainly were not probable cases. With respect to the marriage with a deceased wife's sister, and subsequently with her niece, he would say, the second marriage not being one which could be lawfully contracted before this Act, the first would be the valid one. As to hardships to possible children of pos- 2287 sible marriages, those possibilities could not compare with the enormous inconvenience of continuing the present state of things.
§ MR. WALPOLEsaid, that what the hon. and learned Gentleman called "possible cases" were the very cases which the Bill was intended to meet.
§ MR. ROBERT PHILLIMOREsaid, he thought the Committee ought not to proceed to deal with a clause of such immense moral importance without better information. The hon. Gentleman who introduced the measure had placed a different interpretation upon the clause to that enunciated by the hon. and learned Attorney General. He (Mr. Phillimore) should move that the Chairman do Report progress.
§ SIR FREDERIC THESIGERsaid, he wished to point out to the Committee the difficulty in which it was placed. He found by the second clause of the Bill that no marriage which had been or should be celebrated at any place between a man and his deceased wife's sister or her niece should hereafter be voidable or void. Now cases had occurred where a man had married after the decease of his wife, first, her sister, and then her niece; and supposing that by the first marriage of the latter marriages a man had six daughters, all coparceners to the estate; but by the second, that with the niece, a son and heir-at-law—would they tell him which of those marriages was to be declared valid?
§ MR. LOWEsaid, he thought the principle upon which the majority of the Committee wished to legislate was perfectly plain, and the only difficulty arose from hon. Gentlemen opposite wishing to discuss another object than that intended by the Bill. The object of the Bill was one of indulgence, and intended to make legal and valid certain marriages which now were void. The cases supposed by hon. Gentlemen opposite might be provided for by a clause which could be proposed upon the bringing up the Report, but he could see no reason for adjourning the Committee upon that account. The question of priority might be settled at a future stage. There must be individual hardships in all cases, but there was no reason why the progress of the measure should be now stayed.
§ MR. HENLEYsaid, it was all very well for the hon. Member to advise them to go on, but he (Mr. Henley) wanted to know where he was going to. It was said this 2288 Bill was introduced for the benefit of the humbler classes, although, if the humbler classes alone were interested in the matter, he doubted much whether the House would ever have heard of the measure. There were plenty of cases where men had married three sisters, and all of them were still alive. Was the Bill intended to allow such men to have two legitimate wives? He thought it would be far better to strike out the words giving a retrospective action to the Bill.
§ MR. HEYWORTHsaid, he could see no obscurity at all in the Bill.
MR. HEADLAMsaid, he thought the case of a man marrying two sisters, both of them being still living, was provided for by the words in the second clause applying only to such marriages "as shall be void or voidable by reason only of the affinity of the parties thereto."
§ Motion made and Question put, "That the Chairman do report progress, and ask leave to sit again."
§ The Committee divided:—Ayes 100; Noes 124: Majority 24.
§ Question put, "That the words proposed to be left out stand part of the Clause."
§ The Committee divided:—Ayes 123; Noes 97: Majority 26.
§ On the question that the Clause, as amended, be agreed to,
THE ATTORNEY GENERALsaid, as some doubt seemed to exist as to the interpretation of the clause, he was anxious that his opinion should be clearly understood. He would suppose two cases. In the first, a man marries the sister of his deceased wife, but subsequently, taking advantage of the state of the law, he repudiates her, and marries her niece. Well, with regard to that case, he had no hesitation in saying that the first of the two marriages ought to stand, both parties being in an equally false position—the wife's sister and the wife's niece. In the second case, a man marries the sister of his deceased wife, and then, laying her aside, he contracts a marriage with a person whom by law he could marry. Well, there he had equally no hesitation in saying that it was the second marriage that was the valid one, for the wife had acquired rights under the existing law.
§ MR. WALPOLEsaid, that he understood his hon. and learned Friend to repeat precisely what he said before. It was, however, right that the Committee should know exactly the intention of the Bill, and 2289 then consider whether it ought to pass. It appeared to him that, as the Bill was drawn, it would, in point of fact, make the marriage with a deceased wife's sister and a deceased wife's niece valid, and great difficulty would consequently occasionally occur with reference to the status of the children of such marriages, unless that matter was made more clear.
§ MR. G. BUTTsaid, that as he understood the Bill, it would give validity to marriages which had hitherto taken place, which by the existing law were illegal, and therefore legitimatise the offspring of those marriages. Let the Committee consider for a moment how much mischief that might give rise to. Under the existing law many persons entitled to real property as tenants in tail might have disposed of their rights; but if the offspring of these marriages were legitimatised, it would dispossess purchasers of those rights, the fourth clause only securing them to the persons who were actually in possession of the estate. So also with respect to personal property, and interest of every kind. He could not but look upon the retrospective clauses as extremely objectionable, and by their adoption they would probably do more injustice to innocent parties than they would by their rejection to those for whose benefit the Bill was ostensibly framed. He therefore felt it his duty to vote for every Motion which would have the effect of retarding the measure.
§ MR. HILDYARDsaid that, according to the hon. and learned Attorney General's statement, if a man married his deceased wife's sister, and afterwards his deceased wife's niece, the operation of the law would be to make the former marriage valid. They were therefore going by a retrospective enactment to marry a man against his will, and, to aggravate the injury, they were going to marry him to the old woman and take him away from the young one. Assuming that a man had married his deceased wife's sister, that they had no children, and that, living unhappily together, they had said, "This marriage is not valid in law, we cannot live comfortably together, and, therefore, let us separate"—assuming, too, that after their separation the man married his deceased wife's niece, with whom he lived happily and by whom he had children, what would be the operation of the law as interpreted by the hon. and learned Attorney General? Why, that they would separate 2290 him from the woman with whom he was living happily, would bastardise his children, and marry him again to the old woman from whom he had separated with her own consent. He therefore asked would the Committee sanction such a principle as that.
§ MR. LOWEsaid, he was prepared to answer the question which had been put by the hon. Gentleman. The man in the case he had put had chosen to contract a marriage with his deceased wife's sister, and he held it to be the duty of the Committee to say that such marriage should be valid. They did not want to marry a man against his will, but merely that he should be estopped from saying that such marriage was not legal. In the case of the young and interesting lady alluded to by the hon. aud learned Member, his answer was that the law would leave her in precisely the same situation in which she was now placed, neither better nor worse. Such a person was not a legal wife now, and would not be then. They did not do her tardy justice, but all the justice which she could expect.
§ MR. HILDYARDsaid, that the hon. Gentleman who had just sat down had advanced another principle for the adoption of the Committee, which was just as objectionable as the one which he (Mr. Hildyard) had protested against. A man who, by contracting a particular marriage, had acted in direct defiance of the law of the land was to be told that such marriage was valid. He did not wish to speak rashly or with asperity, but he must say that he was astonished that lawyers should rise up in that House and base an argument upon such a supposition.
§ MR. LOWEsaid, he must beg to explain that what he said was not that it was a valid contract, but that those who had entered into it should be estopped from pleading its invalidity for their own purposes.
§ MR. HENLEYsaid, he wished to inquire the effect of the words in the clause "by reason only of the affinity of the parties." The clause enacted that no marriage which had been or should be celebrated between a man and his deceased wife's sister or niece should be void or voidable by reason of the affinity of the parties, or on account of any canonical or other objection or impediment founded only on such affinity. He did not know whether that would not have the effect of setting up a marriage contracted informally. There 2291 was great doubt as to the effect of the words, which it was desirable should be cleared up.
THE ATTORNEY GENERAL,in reply, said, that the effect was that no marriage should be void or voidable on account of affinity alone, but that this clause would not protect a marriage which was in other respects informal. The clause related only to objections founded on affinity.
§ SIR FREDERIC THESIGERsaid, that the difficulty was whether those words, "founded only on affinity," would apply only to the two particular cases.
§ Question put, "That Clause 2 stand part of the Bill."
§ The Committee divided:—Ayes 126; Noes 97; Majority 29.
§ Clause agreed to.
§ Clause 3, relating to "excepted cases."
§ MR. BAILLIEsaid, that by the last clause the Bill was not to apply to Scotland, in consequence of which many Scotch Members had given their support to the measure. He wished to inquire of the hon. and learned Gentleman (the Attorney General) whether the marriage of a Scotchman in England with an Englishwoman would not bring the case within the operation of the retrospective clauses.
THE ATTORNEY GENERALsaid, he thought that all cases involving the solemnisation of the rites of matrimony would do so; but on that point a question Might arise with respect to the very marriages that might now be celebrated on the Continent—namely, whether a marriage between English subjects, contracted and celebrated in Denmark, according to the laws of that country, could be brought within the operation of the retrospective clauses of this Bill. Supposing the law of Scotland, whereby such marriages were illegal, to remain unaltered, if two persons so related, coming from Scotland, solemnised a marriage in England, it would be legal here, but whether, if they returned, it would be legal in Scotland, was a question that remained to be decided.
§ SIR FREDERIC THESIGERsaid, the nature of the whole of his Amendments was to prevent the retrospective action of the Bill, to which he certainly felt very strong and conscientious objections, considering it to be a violation of a very important principle. He was therefore desirous of preventing the passing of the Bill by using every fair and legitimate means, but he did not deem it becoming in him, after the determination of the 2292 Committee, as expressed in the divisions, to persevere in bringing forward Amendments the objects of which were identical. He would therefore withdraw the other Amendments which he had placed on the paper.
THE ATTORNEY GENERALsaid, that they had now entered on a clause in respect to which a great many difficulties had been suggested, which difficulties should have his best attention. He should now move that the Chairman report progress.
§ House resumed.
§ Committee report progress.