§ MARRIAGE WITH A DECEASED WIFE'S SISTER OR A DECEASED WIFE'S NIECE.
§ MR. HEYWOOD
rose to move for leave to bring in a Bill to amend the law as to marriage with a deceased wife's sister or a deceased wife's niece. The hon. Member said that he had presented six petitions signed by clergymen of the Church of England, resident in and near the metropolis, who ought to be good judges on the subject, praying for an alteration in the law of marriage, which prohibited a widower from marrying his deceased wife's sister. He believed that if the statute of 32 Henry VIII., which dealt with the question of prohibited degrees, were to be recognised by the Judges as determining tile law, these marriages would be considered perfectly legal. In 1835, a great alteration was made in the law, when an Act passed the Legislature whereby it was declared that all such marriages as had up to that time taken place in the prohibited degrees of affinity should be deemed valid; but that all marriages contracted after the passing of that Act between persons standing in similar relationship, should be deem- 487 ed illegal and void. He believed that the origin of that Act was to meet the desire of the late Duke of Beaufort to have his marriage with his deceased wife's sister legally recognised. The circumstances of that case and others rendered it most urgent that such an Act should have been passed, and he was sure that no Member of the Legislature who assisted in passing that Act would have done so if he had believed he was sanctioning an immoral proceeding, whether it occurred before or after 1835. The only difficulty in the matter was, that the canons of the Church of England disapproved of such marriages, and the law was modified to meet the objections taken on this ground. But what bad been the practical effect of the passing of that Act? It had been found that so far from these marriages having ceased since 1835, they had rather steadily increased, and it had been ascertained that one in every thirty-three widowers who married again, married his deceased wife's sister. There had been no less than 12,000 of those marriages since 1835. Twenty years had elapsed since 1835, many of the children of such marriages had grown up, and there would be great difficulties in regard to family property, from the uncertainty of the law. The simplest way in which these difficulties could be overcome was to continue Lord Lyndhurst's Act of 1835, with reference to the two cases of a deceased wife's sister and a deceased wife's niece, and legalise all these marriages subsequently made against which no decision had been taken. He did not believe the legal prohibition had, or would have, the effect of stopping such marriages. He was convinced that the general feeling of the country was in favour of their being allowed; and he believed a large number of the ladies of this country were very much of opinion that men should be allowed to please themselves as to marriage with a deceased wife's sister. He knew, in his own neighbourhood, a lady of large property who had told him that, if she died, there was no person she would so much wish her husband to marry as her sister; because she was persuaded that no one would ever take so much care of her children. The evidence of Cardinal Wiseman, who was at the head of the Roman Catholic community in this country, showed, that he was continually granting dispensations for this particular kind of marriages, and he declared, as the reason for his doing so, that it was impossible to 488 hinder such marriages, and that if he did not grant the dispensations, the parties would simply cohabit without marriage. And he (Mr. Heywood) believed that was very largely the case, particularly among the working classes. It often happened in London and elsewhere that a family of working people inhabited only one room; and here, if the wife died, and her sister came to take care of the children, she and their father living in the same room, they did not consider themselves as brother and sister, and their natural feeling would arise without regard to the artificial prejudices that might prevail amongst persons of a higher class. Then with regard to those of the richer classes who might be desirous of such a connection, they had every facility for marrying on the Continent or in America. The laws of Germany and those of the United States did not hinder such marriages; and there was a place near Dusseldorf which was a kind of Gretna Green for persons who wished to marry their deceased wives' sisters; he believed the cost of such marriages was about 30l. a-piece. It had not yet been settled by the law courts whether such a German marriage was legal or not; but he believed that in the case of any English parties bonâ fide resident abroad, there was no doubt of its legality, although, if they had gone abroad merely for a day or two, some doubt might exist. It was a great anomaly that Great Britain should differ from almost all other civilised nations of the earth in this matter of marriage. Whether this were to be attributed to our insular position or to the influence of the clergy, he did not know. But amongst the clergy themselves, he believed, there was on this subject a great difference of opinion, and the clergymen of large and populous parishes, having seen the effect of the present law, were generally found to be in favour of its alteration. The enforcement of this prohibition on other religious communities against their own conviction was a downright act of tyranny. The Jews, for example, had from all times sanctioned marriage with a deceased wife's sister; and the authority of their ancient legislators indicated a near kinswoman as a person with whom marriage was most desirable. He need scarcely cite to the House the well-known instance of Ruth and her kinsman Boaz. The Convocation of the English clergy, who, in 1603, had declared all marriages made within the 489 degrees prohibited by Archbishop Parker's table, in 1563, to be incestuous, were mistaken in their interpretation of the laws in Leviticus, which were supposed to relate to marriage. Dr. Adler, the Chief Rabbi of the Jews in England, stated in 1848, that marriages with deceased wives' sisters were not opposed to the Jewish law. Dr. Adler said—In all the countries of civilised Europe, where the law of the land offers no impediment, marriages of widowers with their deceased wives' sisters very frequently take place. From the experience which I myself have had during the twenty years that I held the office of Chief Rabbi in Oldenburg and Hanover, I can affirm that the marriages in question were frequent, and that they have almost invariably proved happy. Even here in England, prior to the passing of the marriage Act of the 5&6 Will. IV., such marriages frequently occurred.He (Mr. Heywood) believed that, in keeping up this prohibition, they were going directly against the Book of Leviticus, and against the clear interpretation of the Pentateuch; he seriously considered that it was, in a way, fighting against God, to maintain this wicked and unholy law, forbidding the marriage of a man with his deceased wife's sister. He would next refer the House to the opinion of Dr. Schwartz. The Rev. Dr. Schwartz, Ecclesiastical Counsellor, Superintendent, and Chief Clerical Professor of the University of the Grand Duchy of Saxe-Weimar, writes—Public opinion in the country of Weimar, and in the whole of Thuringia, regards such a marriage as unobjectionable, and only aims at abolishing the necessity of asking permission for each individual case, and at the introduction of perfect liberty in reference to such matters. That the same may be obtained in England, the land of liberty and of order based upon a respect for the laws, is my sincere wish.In the United States of America there was only one State of the Union, Virginia, which did not allow these marriages; and when the Book of Common Prayer was revised after the establishment of American independence, there were two portions of the Liturgy which the American episcopalians wished to leave out—the Athanasian creed and the passage in the Apostles' creed about the descent into hell, upon which a correspondence took place with the Archbishops of Canterbury and York; but there was no dispute about the omission of the table of prohibited degrees, which was, in fact, no part of the Prayer Book whatever, and had no Parliamentary authority, and was not to be found in the 490 United States' Prayer Books. He would read to the House an extract from a letter written by Judge Story, of the Supreme Court of the United States, with respect to the state of public opinion in North America on the marriage law relating to the sister of a deceased wife—Cambridge, Massachusetts, United States, August 4, 1842.Dear Sir—There is not the slightest doubt, and never to my knowledge has been, in Massachusetts, that the marriage of a man with the sister of his deceased wife is perfectly lawful, and valid, and scriptural; indeed such marriages are very common among us, and among all sects of Christians.I recollect, at this moment, two between Episcopalians within the circle of my acquaintance, and I mention these only as it has been supposed to be against the canon law of the Church of England to allow such a marriage. By many persons connections of this sort are deemed the most desirable, especially where there are children of the first marriage. The same rule prevails (as I believe) in all the New England States, and in by far the greatest number of the other States of the Union. I do not now recollect but a single exception, that of Virginia.Many years ago, I had occasion to consider this very question, as one of professional curiosity and learning. I was then of opinion and still continue to be, that there is not the slightest foundation for any such prohibition in the Scriptures; and that wherever it exists it has its foundation in some positive municipal law, or in the canon law as promulgated by the Romish Church and thence transferred into the canon law the English Church.….. Many persons are of opinion that the whole doctrine had no better or higher origin than in the practice of the Romish Church to grant dispensations in such cases. Of the correctness of this opinion I do not pretend to judge; for I have never deemed it a matter of the slightest importance; so offensive would any such prohibition be deemed in Massachusetts, that I am satisfied that if our Legislature were to attempt to introduce it, it would be met with universal indignation, and, a fortiori, any attempt of any religious sect to make it a part of its own laws as unscriptural, would be deemed an usurpation of authority utterly unChristian and illegal.I well remember to have had a long conversation with my lamented friend Judge Livingston on his very subject near the close of his life, in which he maintained the same opinion with great earnestness and ability.—Believe me, with the highest respect, yours truly,JOSEPH STORY.Sir William Jones, the distinguished Orientalist, and one of the most accomplished Hebrew scholars of modern times, in a letter to John Alleyne, Esq., in 1774, thus expressed his opinion on the proper interpretation of the laws relating to the uncovering of nakedness in the 18th chapter of Leviticus, explaining, that in Hebrew, covering nakedness referred to marriage, 491 and uncovering nakedness to illicit intercourse between the sexes—I have read over the 18th chapter of Leviticus in Hebrew, with a view to discover the true meaning of the words which you desire me to interpret; and I have examined all the passages that I could find, in the historical and prophetical parts of Scripture, in which the same expression occurs. The phrase of 'uncovering the nakedness' is literally translated from the Hebrew. It is surprising that the chapter before us should ever have been taken for the law of marriage, since it is apparent that all the laws contained in that chapter relate only to the impure lusts and obscene rites of the Egyptians and Canaanites, to the abominable customs and ordinances, as they are called, of the idolatrous nations, who were extirpated by the chosen people. These doings are enumerated with a special law against each of them; and, lastly, the general command is resumed—' Defile not yourselves in these things, for in all these things are the nations defiled which I cast out before you.'Mr. Fry, the author of a pamphlet, which you justly commend, makes an observation, which I think decisive, that the phrase of 'concealing' the nakedness, not of 'exposing' it, is constantly used in Scripture for the nuptial rite. I turned to the passage in Ezekiel, where that vehement poet, or rather orator, is describing the covenant with the Jewish nation, which covenant is very often, we know, expressed by the allegory of a marriage. His words are—' Thy season was the season of love; I spread the border of my mantle over thee, and covered thy nakedness;' that is, I married thee. What is conclusive evidence, if this be not? And if this interpretation of Leviticus be just, what will become of the canons and rubrics on the Levitical degrees?He was aware that many persons would be startled by the assertion that one of the canons of the Church of England might be erroneous; but that was no reason why they should not inquire whether that canon had been drawn up in accordance with correct data or not; and if they found it was not, why they should not alter it. This was a practical question, in which the welfare of a large number of people was involved. Many couples were living in such a marriage, whose marriages were legally void. As he understood there was a great deal of prejudice on this subject in the northern part of this country, he was perfectly willing to leave Scotland out of the scope of this Bill. It was strange, however, that the people of Scotland, the disciples of John Knox, should adhere to this prohibition, which was a relic of Romanism, and one of the worst dogmas of the Middle Ages. If the origin of the prohibition were to be traced back, it would be discovered in the Greek Church of the fourth century after Christ, when Basil, Bishop of Cæsarea, made an order against such marriages, and seven years' penance 492 was ordained for every one who disobeyed it. The Roman Church had followed the Greek, and the English the Roman. But he would remind the House of the saying of Lord Denman, in the case of O'Connell and others v. the Queen, that no number of repetitions of erroneous opinions made that doctrine right which had been originally founded in error. Lord Denman said—I am tempted to take this opportunity of observing, that a large portion of that legal opinion which has passed current for law, falls within the description of 'law taken for granted.' If a statistical table of legal propositions should be drawn out, and the first column headed 'Law by Statute,' and the second' Law by Decision,' a third column, under the heading of 'Law taken for granted,' would comprise as much matter as both the others combined. But when, in the pursuit of truth, we are obliged to investigate the grounds of the law, it is plain, and has often been proved by recent experience, that the mere statement and restatement of a doctrine—the mere repetition of the 'cantilena' of lawyers—cannot make it law, unless it can be traced to some competent authority, and if it be irreconcilable to some clear legal principle.He (Mr. Heywood) contended that in the prohibited degrees of marriage, there ought to be a distinction drawn between consanguinity and affinity, and, that with regard to these collateral cases of a wife's sister, or a wife's niece, and, in his opinion, of a brother's widow also, it was open to us to alter the law. But the Bill he would now propose related merely to the subject of a wife's sister or niece. The first clause repealed so much of the Act of 1835 as rendered any such marriage void or voidable. The Bill was not to extend to Scotland, and there was to be perfect immunity given to all registrars and clergymen or others officially concerned, who might have any conscientious objections on the subject. No clergyman or registrar would be liable to any action or penalties for his refusal to perform such marriages. He trusted that the House would consent to the introduction of his Bill; for it was necessary that there should be a speedy decision of this question, as the present state of the law was a great injustice and cruelty to many persons thus connected with each other, and who were either married, or who were sincerely attached to each other, and desirous of being married. He now moved for leave to bring in the Bill.
§ MR. HANKEY
seconded the Motion.
Motion made, and Question proposed—That leave be given to bring in a Bill to amend the Law as to Marriage with a deceased wife's sister or a deceased wife's niece.
§ SIR F. THESIGER
said, he should oppose at the very threshold the introduction of this Bill. The question was not a new one; it had been fully discussed on several previous occasions, and the whole merits consisted in the principle involved. He was in hopes that the last experiment which was made in this direction would have discouraged any further attempt in favour of the alteration of the law now proposed. In 1851, a measure similar in its character to the present was brought forward in the House of Lords; and, notwithstanding that it was supported in a speech of great power and ability by Lord St. Germans, after considerable discussion, only sixteen Peers could be found to vote in its favour. He therefore was surprised and deeply regretted that the hon. Member should have thought fit again to agitate a matter which undoubtedly stirred the feelings and prejudices of a large class of Her Majesty's subjects, for he was satisfied that, even if he should succeed in obtaining for his proposal a temporary success, there was no chance of the measure being carried successfully through its further stages; and it was most undesirable to agitate a question of this kind when the only result of that agitation would be ultimate failure. The hon. Member had adduced no new argument on the question, and the matter remained precisely as it was when it was brought forward in that House in 1850. All the facts were to be found in the report of the Commission of 1848. The hon. Member had said there was now a general feeling in favour of the measure, and that he had presented petitions from several clergymen who were advocates for it. He had also stated that the great majority of Roman Catholic and Dissenting ministers did not oppose an alteration of the law in this respect, and that the ladies were advocates for it, and particularly anxious that the men should in this matter have the fullest opportunity of pleasing themselves. He fully admitted that this was a woman's question, and he thought that the opinions of the women of England ought not to be disregarded in legislation with respect to it; but his (Sir F. Thesiger's) experience certainly did not bear out the views of the hon. Gentleman; for so far as his experience went, he believed that the opinion of the women of England was directly opposite to that stated by the hon. Member, and wherever he had had an opportunity of testing their feelings upon the subject, 494 he had found them invariably opposed to an alteration of the law; and on the former occasion 11,000 women of England presented a petition to the Queen against the Bill. Disregarding for a moment any consideration of the question in a religious point of view, he would ask what was there to guide the House on the mere question of expediency? The whole question, as he said before, was involved in the report of the Commissioners of 1848, and he thought the hon. Member had come to very erroneous conclusions both with regard to the report itself and the evidence upon which that report was founded. The House would remember that seine time ago a number of persons interested in obtaining an alteration of the law, some of whom had violated it, and others, who were more scrupulous, but who desired such an alteration, had associated themselves together and endeavoured to impress on the public mind that a great grievance existed from the state of the law of marriage in this country; they engaged active and intelligent agents, who distributed themselves in the most populous districts of the country, and, by inserting letters in the newspapers and in other ways, produced an impression in the public mind that a multitude of persons were oppressed by the law. At all events, they succeeded in obtaining a Commission composed of persons extremely eminent in station, character, and ability; but it appeared to him (Sir F. Thesiger) that the members of that Commission permitted themselves in some degree to become the instruments of those persons who were desirous to change the law. Of course, it was natural that all persons who felt aggrieved should seize the opportunity to narrate their grievances to the Commissioners, while those who desired the continuance of the law, not feeling it to be their peculiar duty to oppose the alteration, verified the common saying that what was every man's business was no one's, and in consequence the evidence was to some extent partial and incomplete. Notwithstanding that, it appeared to him that the statements in the report were entirely at variance with the statements of the hon. Member for North Lancashire (Mr. Heywood). The tone of the Commissioners was extremely mitigated and moderate, but they admitted that great diversity of opinion existed. As tar as Ireland was concerned, he was prepared to show that not only was the preposition contrary to the reasonable and moral con- 495 victions of the Roman Catholic clergy, but most revolting to their feelings; and with respect to Scotland, the opinion of the clergy was decidedly against it; while the Commissioners admitted that in the United Kingdom divers opinions were maintained, but that the prevalent feeling of the laity was against marriages of this description, which, however, was attributed to their not having fully entered into the consideration of the merits of the question. The hon. Gentleman had adverted to the condition of the poor in this respect, and had argued the question as though it were a poor man's question; but, considering the way in which this agitation commenced, and the parties who instigated it, he (Sir F. Thesiger) felt convinced the House would never have heard anything about it if it had been only a poor man's question. The very report which had been referred to was opposed to such a statement. The Commissioners said, that from 1835 down to the time when evidence was given before them, there had been 1,634 of these marriages in the five populous districts in the north and west to which the instigators of this agitation had recourse, and out of these only forty were found to have taken place among the lower classes. It was true, they added, that they had reason to conclude that such marriages were at least as frequent in that class as in any other, and perhaps much more so, as the affinity was less observed and more difficult to be traced; but what right had the Commissioners to draw that conclusion? They had no evidence to that effect; on the contrary, the evidence before them would have warranted them in saying that such marriages among the lower classes were uncommon. But then it was said that there were in the whole kingdom about 12,000 of these marriages, and probably 60,000 innocent persons who were petitioners to the House for an alteration in the law by which they were now affected. The hon. Member had arrived at these numbers by a calculation of a very extraordinary kind, for he had taken the reported result of the five districts referred to by the Commissioners, and by applying that proportion to the whole of the country he in that way arrived at the conclusion he had stated. But several incumbents of the most populous parishes had declared that very few marriages of this description took place in their parishes—in some not one for years. Therefore he (Sir F. Thesiger) did not think this calculation a 496 very sound one, and did not believe these violations of the law had been so frequent as the hon. Gentleman had suggested. But could the House be called upon to interpose for the protection of persons who had deliberately offended against the law, and who, by so offending, had necessarily involved innocent persons in the consequences? It had been alleged that these persons had erred ignorantly; but this he utterly denied. The persons who appeared from the blue book to have married in this manner were well educated, and knew what the law was; seine of them had gone abroad for the purpose, as they supposed, of evading the law, while others acted in open defiance of it; all, however, it was clear had their misgivings and scruples about the morality of such marriages. He thought, then, the House ought not to have any compassion for persons who had deliberately violated the law in this way, and that it would afford the worst possible example if they passed an Act retrospectively affecting their condition, even for the sake, as was observed, of the innocent persons who stood affected by the present law. The hon. Member had referred to two or three points which required some answer. In considering this subject, the first and most important point was the religious question involved in it; and here he did deeply deplore that there should be such a distressing diversity of opinion. It was alleged that no prohibition was contained in the Levitical law against these marriages, but his opinion was entirely opposed to that statement. His own impression, after careful consideration, was, that the precepts upon the subject of marriage contained in the 18th chapter of Leviticus formed part of the moral and not the ceremonial law of the Jews, and were binding at all times and upon all persons. The hon. Member had, however, adopted the argument, and pressed the authority of Sir William Jones, that this chapter did not refer to incestuous marriages at all—that it was, in point of fact, a warning and prohibition against illicit intercourse; but, if so, the hon. Member must be of opinion that a licence was given to the Jews to indulge their passions as they pleased, provided they kept clear of the limit of the degrees of consanguinity contained in this chapter; and in that opinion he did not think many would be found to unite. Those who opposed the alteration of the law had never contended that any prohibition of the marriage with a wife's sister 497 was contained in the 18th verse, but the prohibition was found in the previous prohibition with respect to a brother's wife. However difficult the 18th verse might be of interpretation, it was never rested upon as any ground for saying that the marriage with a wife's sister was expressly prohibited. Various interpretations had been given of the prohibition contained in that verse, but in his (Sir F. Thesiger's) opinion, whether any or none of those interpretations were correct, no fair conclusion could be drawn from the words of that verse, so contrary to the spirit of all the preceding ones as to lead to the supposition that a permission was intended to be given to the marriage with a wife's sister. He apprehended that there would be little difficulty in showing that the marriage law of the Jews was binding upon Christians. The mode of teaching under the Gospel dispensation was entirely different to that under the Jewish; the law of marriage was placed upon a higher and holier footing, and a more important and sacred interpretation was given to it than under the Jewish dispensation. He had no doubt in his own mind that the whole of the prohibitions contained in the 18th chapter of Leviticus were binding upon Christians, and, if possible, in a higher degree than they were upon Jews. Without resorting to tradition, he was desirous of considering what had been the opinion of persons anxious to obtain the meaning of Scripture and its binding force upon their consciences as to the divine law upon this subject; and he found beyond question that in the early ages of the Church and down to the sixth century the uniform opinion entertained was that the law contained in the 18th chapter of Leviticus was the divine law upon the matter, and that that law was not to be confined to the express prohibition contained within it. At a later period corruptions crept in, and prohibitions were introduced which were not to be found in the Scriptures; nevertheless, this particular prohibition was uniformly maintained from the earliest period down to the end of the fifteenth century, when for the first time an unfortunate departure from the rule of the Church took place, a dispensation having been granted by Alexander VI. to Emanual, King of Portugal, to marry the daughter of Ferdinand, King of Spain, Emanual having previously been married to her sister. Down to that time there had been dispensations granted by the Church with respect to marriages, but they related 498 only to marriages prohibited by the ecclesiastical law, but this was the first time the divine law had been departed from. The departure was subsequently followed by a dispensation, granted by Julius II. to Henry VIII., to marry his brother's widow, in which case the dispensation was undoubtedly a dispensation against the positive law of God. And what were the consequences? Clement VII. refused to decide against that dispensation, and the Roman Church was placed in the difficulty of being called upon to decide that the Levitical law of marriage was not binding upon the Christian, or that one of their Popes had dispensed with the law of God. They took the course of deciding that the Levitical law, was not binding, but they did so in a hesitating manner, the language used at the Council of Trent sufficiently showing how extremely guarded was the expression of opinion upon the subject. It was merely insisted that the Pope possessed the right of granting dispensations in certain cases; but no law whatever was laid down with regard to a wife's sister, though it was stated with regard to an inferior degree of affinity that dispensations might be granted. Thus matters stood at the time of the Reformation, and he believed he was correct in saying that the Reformers, who professed to be guided by Scripture only, were unanimously in favour of the Levitical law including the prohibition of marriage with a deceased wife's sister, being applied to the Christian Church. When, therefore, the hon. Member said a complaisant Parliament made the law accord with the inclinations of Henry VIII., it should be remembered that Parliament only adopted the opinions and conclusions of the Reformers. He quite admitted that the canons were not binding on the laity, but they were binding on the clergy; and the hon. Member endeavoured to meet that objection by proposing to exempt the clergy from any consequences for refusing to celebrate marriages which they believed to be contrary to the divine law. The law continued in this state down to the year 1835, before which time many persons, undoubtedly with a full knowledge that they were committing a breach of the law, had contracted marriages of this description. The law of Henry VIII. declared such marriages invalid if they were pronounced so by an ecclesiastical judge, but not else. To evade the law, a friendly suit was sometimes kept alive during the existence of the parties; when one of the 499 parties died, the marriage could not be dissolved by the Ecclesiastical Court, because it was already dissolved by death, and so the children were rendered legitimate. That was not a state of things which could be permitted to continue, and the Legislature was induced to pass the Act of 1835. He very much regretted that that course should have been adopted, for he thought it was a compromise which ought never to have been tolerated—it was calculated to beg an important question. But certainly it fixed the law in future, and so far it was a considerable advantage. From that time it was declared that marriages within the prohibited degree of affinity and consanguinity should be null and void. No person could thenceforward have been mistaken on the point, and there were no longer any means of evading the law upon any contrivance. He assumed that it was after careful consideration that the Legislature had come to that conclusion. But the hon. Member now wished to repeal a portion of that Act; for he was not yet bold enough to say that with respect to all the degrees of affinity an alteration should be made. The removal of the prohibition to marry a deceased wife's sister was the real question, the wife's niece being introduced merely because it was unreasonable to admit the nearer degree and exclude the more distant. But if the hon. Member was convinced there ought to be perfect freedom of marriage, why did he confine his measure to a deceased wife's sister and a deceased wife's niece? They were referred to the state of the law in Protestant Germany and in America, and told to imitate the example of those States with respect to the law of marriage. In his (Sir F. Thesiger's) opinion, infinitely more moral feeling was induced by adhering to the strict law than by adopting the liberal and enlarged notions which prevailed in America and in Germany. In many of the States in Germany marriage between an uncle and a niece was not prohibited; on the contrary, marriages in which semipaternal relationship existed between the parties were by no means uncommon. He did not understand that the hon. Member was prepared to go that length; but where would it end? If they once extended the limits, the only rational termination was to do away with all degrees of affinity, and leave only those of consanguinity. The hon. Gentleman said, he would not extend his new law of marriage to Scotland. Why not? If it was a question of principle, 500 why should Scotland be excluded? Were there no sisters-in-law in Scotland? The reason of the hon. Gentleman could be easily understood. He was desirous to carry his measure, and he knew that the feeling in Scotland was so unanimous, and so strong against having those restrictions which were imposed on marriage in that country relaxed, or the marriage law enlarged, that if he had included Scotland in his measure it would certainly be rejected. He (Sir F. Thesiger) trusted the Members for Scotland would not be deceived by this, because, if the hon. Gentleman carried his Bill, he did not see how it was possible to refuse extending it to Scotland. The hon. Member proposed to introduce into his Bill a provision which should exempt clergymen from any penal consequences upon their refusal to celebrate marriages of this description. Could anything more strongly indicate the feeling of the hon. Gentleman, that clergymen of the Church of England might conscientiously entertain the notion that these marriages were prohibited by the divine law? But if the hon. Gentleman really and sincerely entertained the opinion that there was nothing in the divine law to prohibit a human law of this description, let the hon. Gentleman be consistent, and enforce his law upon all persons indifferently—because every man was bound to obey the law. The hon. Gentleman, therefore, showed his weakness, and a distrust on the subject of these marriages not being prohibited by the divine law, when he proposed a clause of this nature. The hon. Gentleman had entered very little into the moral and social bearings of the question, or as to what the effect of such a law would be upon the purity and happiness of the people. A wife's sister was probably the best guardian that could be chosen for the infant children of her deceased sister; and therefore, for the security of the happiness of the family, it was necessary that there should be an opportunity afforded to the brother-in-law of making the sister of his deceased wife the guardian of her children. But how was this guardianship to be secured? The hon. Gentleman had not ventured to enter upon this most important part of the subject, neither would he (Sir F. Thesiger) trouble the House with any remarks upon it. The whole matter was one of so delicate a character that he would gladly avoid the discussion altogether. His objection to the measure was upon the ground that it would be contrary to the divine law; that it would 501 deeply affect the happiness and the comfort of numerous families throughout the kingdom; and that for one instance in which it would be gratifying to the feelings of individuals, it would introduce domestic discord and discomfort into thousands of families, and would be completely destructive of all those finer feelings of affection which at present existed in the relationship of a man and his children with his wife's nearest kin. He did, therefore, most earnestly hope that the hon. Member would feel there could be no use in further agitating this question. He had himself entered into this discussion with extreme reluctance. It was almost impossible fairly and fully to discuss the subject without entering into questions of such delicacy as every one must be anxious to avoid. He had, however, endeavoured to present his views to the House without approaching any such topics; and, having done so, he felt that it was absolutely necessary to resist the introduction of the Bill.
§ MR. BOWYER
said, that it might be useful for the full consideration of this important question to revert to what was the law on the subject at, and before, the time of the Reformation. It was quite clear that these marriages with the wife's sister were not void, and never were void, at common law. They were only voidable as contrary to the ecclesiastical law, and in the ecclesiastical courts, and not in the temporal courts. If the question of the legitimacy of a person, the issue of one of these marriages had been raised in a temporal court—in an action of ejectment for instance, the temporal court would have affirmed the validity of the marriage. Before the Reformation the ecclesiastical law allowed such marriages to take place by dispensation of the ecclesiastical authorities; but at the Reformation the authority of the Holy See was put an end to, and with the exception of a power reserved to the Archbishop of Canterbury, to grant certain dispensations, the power of dispensation was wholly abolished. The result was, that the lawful celebration of these marriages came to an end; they were, however, allowed by the Church of Rome, and their lawfulness was admitted, even by the Anglican Church, for they had been discontinued, simply because the dispensing power had ceased. It was quite clear, then, that there was no authority in law in favour of this absolute prohibition, because the practice of the Church from the earliest time showed that though the Church did 502 not allow these marriages to take place without dispensation, the Church did not hold the marriage to be contrary to the law of God. Our Church never dispensed with the divine law, and by granting dispensations for these marriages, the Church declared that they were not contrary to God's law. Then came Lord Lyndhurst's Act, which was a species of compromise intended to meet the particular case of a noble family, in which a marriage of this sort had taken place; but the law, as it existed, after the passing of that Act, operated as a great hardship upon the Roman Catholic population of this country, because, while marriages with a deceased wife's sister were practically allowed by their religion, the State stepped in and prohibited them. He (Mr. Bowyer) was of opinion that the argument that these marriages were contrary to the Levitical law, was given up in substance on the present occasion. The hon. and learned Gentleman (Sir F. Thesiger) had certainly added nothing to what had been said before on that portion of the subject, and had, indeed, rather weakened what had been previously urged in support of it. The hon. and learned Gentleman argued that the Levitical law was part of the moral law, and that, therefore, it was binding now; but this position was contrary to the common law of England. For the common law, before the statute of Henry VIII., allowed marriage dispensations within the Levitical degrees. Suppose that the hon. and learned Gentleman were right in his view, that the Levitical law prohibited these marriages, and that it was binding as part of the moral law, he must go further, and must accept another portion of the Levitical law—that which said that if a man left a widow without children his brother should marry her and raise up seed to him. The hon. and learned Gentleman had ingeniously endeavoured to convince the House that these marriages were contrary to the Levitical law; but, in reality, he had not insisted upon the argument, but had left the question open as a matter of opinion. By the law of the Roman Catholic Church and of the Anglican Church, these marriages were valid, with a dispensation, because they were regarded as being prohibited only by an ecclesiastical law, and not by the law of God. There was little authority for maintaining the prohibition, and there was no doubt that restriction upon marriage was, as a general principle, unsound. In England, a large body 503 of Dissenters considered that these marriages were not contrary to the law of God, and the prohibition was a hardship on those people unless it was shown that such prohibitions were necessary, and they ought to be allowed perfect freedom to contract them. In the Roman Catholic Church, marriage with the wife's sister was forbidden by the ecclesiastical law, but it was not a prohibition of the divine law, and they, therefore, permitted them to be contracted by dispensation, leaving it to the ecclesiastical authorities to decide in each case, whether they should be allowed or not. The Church of Rome never assumed the power to dispense with the divine law; it could only dispense with the ecclesiastical law; and the Church of Rome had always exercised the power of dispensing with the prohibition of marriages of this sort. As to the social and moral part of the question, he (Mr. Bowyer) was not satisfied with the arguments that had been used to show that the welfare and purity of society required that in every instance these marriages should be made void, and he would, therefore, vote for the first reading of this Bill.
§ MR. E. BALL
supported the introduction of the measure, on the ground that what was not expressly prohibited in God's Word must be taken to be permitted, and in no case did he find any prohibition with respect to the marriage of a man with his deceased wife's sister. His hon. and learned Friend below him (Sir F. Thesiger) had entirely failed to show any such prohibition; and, looking at the question in a moral and religious view, he (Mr. Ball) saw no objection to the introduction of the present measure. Indeed, to justify the principle affirmed by this Motion, he could cite a mass of the highest authorities in the Church of England, persons whose lives corresponded with the doctrines they taught, and whose views on this question were in accordance with the views of those who advocated the removal of the present restrictions. Among those names were those of Archbishop Whately, the Bishop of Norwich, the Bishop of St. David's, the Bishop of Lincoln, the late Bishop of Landaff, and he might go on naming a long list of illustrious divines and holy men who had concurred in those views. Then, again, among those who were revered by the great body of Dissenters, and who were favourable to the adoption of a measure like the present, the name of Dr. Chalmers stood pre-eminently forward. 504 True, Scotland had been named as gene rally unfavourable to the adoption of such a measure; but why was it so? Because the Scottish Church was opposed to it, and the doctrines of that Church being inculcated into the minds of the children of the nation rendered them unfavourable to marriages of this description. But no such doctrine was inculcated by the catechism of the Church of England, and, therefore, the children of this nation did not grow up imbibing the like prejudices; therefore he could well conceive that the measure, although advantageous to this country, might not be suitable to Scotland. Another name he would cite in its favour was that of Dr. Adam Clarke, a man of profound learning, of immense ecclesiastical research, and whose admirable commentaries upon the Holy Scriptures had rendered his name celebrated throughout the empire. He, too, was favourable to the abolition of the present restrictions; and he (Mr. Ball) would complete the list of illustrious men whose opinions were favourable to a change of the law in this respect by adding that of a man who was held in veneration by hundreds of thousands, nay, perhaps, millions of his fellow countrymen—the great Wesley, a man than whom no one led a purer or more pious life; and also the name of Professor Lee. He believed it was a mistake to suppose that the people of England generally were not favourable to the proposed change in the law, for it was no argument in support of that view to say that only 1,634 marriages of this kind had taken place in eleven years after 1835 in the five populous districts of the north. The House must recollect that the hon. and learned Gentleman himself answered that argument by stating that those marriages were in violation of the law, which was quite sufficient to account for the smallness of the number. Neither were they to estimate the importance or value of a measure by the circumstance that on its first introduction but few had supported it, and that when the question was before the House of Lords not more than sixteen Peers could be found to support it; for if that had been the principle upon which the House had always acted many of those great laws which were the boast of this country, and had contributed so much to the advancement and happiness of the people, never would have passed the Legislature. Let them look at the mode in which the question was viewed by the vast proportion of the human race. 505 He did not believe he was saying too much when he asserted that four-fifths of the population of the whole civilised world were permitted to marry the sisters of their deceased wives. Another reason in favour of such marriages was to be found in the fact that at present, in some instances, the children of the first wife were very badly treated by the second wife; but it was repugnant to the dictates of human nature to suppose that the sister of a deceased wife would do otherwise than treat her own sister's children with affection. So far from the removal of the present restriction being unfavourable to morals, he believed it would have a tendency to advance them, and believing that such marriages were not only not repugnant to, but were in strict accordance with, the law of God, he had no hesitation in giving the Motion his support.
§ MR. M. MILNES
said, he did not certainly expect, when he heard his hon. and learned Friend opposite (Sir F. Thesiger) give so large and interesting a discourse upon this matter, to hear him complain of its having been brought forward on a previous occasion. He (Mr. Milnes) was of opinion, that if the House required information on the subject, his hon. Friend behind him had done well in bringing forward this Motion. He looked upon this question as one of vital importance to a large proportion of the British people. The greater number of the marriages which had been contracted in spite of the restrictions of the law occurred in the north, and the evils consequent thereupon were gradually on the increase. The frequency of those marriages had been in no degree lessened by the refusal of the Legislature to legalise them, and it really seemed as if the people in favour of these marriages were determined to say to the Legislature, "If you choose to go on imposing this cruel restriction upon us, we will go on breaking the law until you alter it." He entreated hon. Members who opposed this Bill, to ask themselves whether it was not a grave event, when they saw the law deliberately violated, not by men of reckless habits or wild dispositions, but by men of grave and sober thought and deep religious feelings, belonging not to the lower orders of society alone, but to the most respectable and intelligent of the middle and higher classes. Surely it was not wise in the Legislature to allow such a state of the law to continue. The House could not, it was clear, stop these marriages by any 506 refusal to recognise them, because the parties to these marriages believed that hon. Members belonged to a class of society which might be disagreeably affected by the abolition of this limitation, while to the class who required the repeal of this law it was almost a matter of life and death, involving as it did the happiness of themselves and their children. It was, therefore, the duty of statesmen to deal with this question as a practical difficulty, and not to consider it merely in a theoretical point of view—and the only way to deal with it practically, was to revise the law altogether. The advocates of this change in the law had no wish to interfere with the religious convictions of the hon. and learned Member and those who thought with him; but on the other hand, the hon. and learned Gentleman had no right to say to those who wished to see the law altered, that they were wrong and he only was right, and so deprive them of the right of private judgment, which the freedom of our constitution conceded to all classes whether high or low. He regarded the present Bill as another step in the religious liberty of the people of England, and as such he trusted it would be confirmed by the House.
§ MR. R. PHILLIMORE
said, he had no wish to enter upon the religions or theological part of the question; but he rose simply to protest against the doctrine which had been laid down by the hon. and learned Member for Dundalk (Mr. Bowyer) that, previous to the Reformation and the reign of Henry VIII., the common law of England knew nothing of the illegality of these marriages. He said, indeed, that they were only dealt with by the ecclesiastical courts; but nobody knew better than the hon. and learned Gentleman, that the answer to his argument was this, that the common law of the land fully recognised the authority of the ecclesiastical courts, and left such matters to their judgment and authority. The hon. and learned Member might as well have argued that the common law of this country knew nothing of equity, because there was a separate jurisdiction to take cognizance of equity cases. The hon. and learned Member also pressed the question on the House as a Roman Catholic grievance, and said it was a hard case to prohibit these marriages, because the Pope could grant a dispensation to enable a man to marry his brother's wife, while Parliament stepped in and declared such a marriage illegal. 507 But let the House look to the consequences, if such an argument were allowed to prevail—they had heard of such things in the Roman Catholic Church as a Papal dispensation, permitting a man to marry his own niece; and if the hon. and learned Gentleman's argument were maintainable, it might be said that the law of the land prohibiting such marriages was a grievous restriction upon the ecclesiastical liberty of Roman Catholics, since here was a marriage which the Church of Rome would allow its members to solemnise, while their hands would be tied by an Act of Parliament—that they were restricting them by an Act of Parliament from doing that which was sanctioned by their own ecclesiastical authorities. With regard to the measure itself, if he wanted any argument against its introduction, he should find it in the limitations which the hon. Member (Mr. Heywood) had himself introduced. The hon. Member excepted half the kingdom from the operation of the Bill; so that, if the Bill passed, that which would be a valid and proper marriage in England would be invalid on the ground of incest in Scotland. What prospect could there be of harmony between the two countries when a journey of twenty-four hours by railway would make a marriage valid if solemnised in one country, and invalid if celebrated in the other? Why should a marriage lawfully celebrated at one terminus of a railway have no force or legality at the other? Then the hon. Member laid down another still more objectionable exception, and proposed that all clergymen, Dissenting ministers, and registrars who objected to these marriages, should not be obliged to marry parties under this law. There could be no stronger argument against the expediency of the law than these exceptions. Hon. Members talked of the cruelty of our legislation towards those who had broken the law, but they ought also to have some consideration for those who had kept the law. What misery, jealousy, and wretchedness, would not be carried into the hearths and homes of the greater number of families in the kingdom if this law were carried out, and inflicted, too, because a few persons had violated the law. They were told that parties went to Dusseldorf, as they used to go to Gretna Green, to solemnise these marriages; but every lawyer in the kingdom whose opinion was worth anything knew that these marriages were invalid. He challenged any lawyer 508 in that House to express a doubt as to the status of the children who were the issue of these marriages. He did not wish to see that assembly turned into a religious convocation, and no case had, in his opinion, been made out for disturbing the present relations of families. Without referring to scriptural or theological grounds, he thought that the House, on grounds of expediency and policy, and even of justice, ought not to sanction the further progress of a measure originally excited by the reprehensible agency of the rich canvassing the poor. Such an attempt to disturb the marriage law of the land was, he thought, unhallowed; and the House would exercise a wise and judicious discretion in not assenting to the introduction of the present measure.
§ MR. BOWYER
explained that he had not asserted that the question of the validity of these marriages came within the jurisdiction of a temporal court. He was aware that such matters were exclusively confined to the spiritual courts; but what he did say was, the question of the legality of the marriage might come before a temporal court in trying the question of the legitimacy of the issue.
§ MR. SPOONER
said, he confessed he rose on this occasion with considerable difficulty to address the House, because he felt himself compelled to differ from many of his friends around him, whose opinions he held in great respect, and to whose judgment he was always willing to submit when he conscientiously could do so. But he had always supported an alteration of this law—not exactly such as was proposed by the hon. Member for North Lancashire, nor upon all the grounds urged by that hon. Member—but such as had been proposed in 1850. He should certainly vote for the first reading of the Bill, without pledging himself to all its details. He was not going to enter into the legal arguments used by the hon. and learned Member who had just addressed the House, but merely to allude to an observation that was made by that hon. and learned Gentleman. It was assumed by that hon. and learned Member—an assumption which he was sure the Member for North Lancashire would not admit—that the great majority of the country was against him, and that he was merely advocating the cause of the minority. The hon. and learned Gentleman said, what misery would they inflict upon families—what social intercourse would be broken up by effecting such a 509 change in the law as was proposed; and the hon. and learned Gentleman drew a doleful picture of what might by the consequences to the higher and more civilised grades of society. Now, he (Mr. Spooner) admitted that there was a feeling amongst the higher classes against this Bill, and it was with pain and difficulty he felt himself constrained to act against those opinions. He could not, however, but yield to what he thought was his conscientious duty. He believed that the law as it stands has a most demoralising influence upon the middle and lower classes of society. He admitted that this was not a proper place to enter upon a theological argument. He was never willing to enter upon such unless he was forced to it; but if a law exists which is alleged to be against the law of God, which he believed this to be, the strongest reasons that could be given for the repeal of such law must be drawn from a consideration of theological subjects. He believed that the law as it now stands is decidedly against the law of God, and he had certainly very high authority on the subject. He would take the verse in Leviticus, which the hon. and learned Member for Dundalk seemed to think had nothing to do with the question, as one ground upon which he formed his opinion that the restriction now imposed by law is against the law of God. Now, what is the verse to which allusion was made? "Neither shalt thou take a wife to her sister to vex her.…. during her life." Now, what is the only construction that could he put upon that? Why, that after she was gone the husband had a perfect right to marry a sister of his deceased wife. It was a matter beyond all doubt, and he could not conceive any other conclusion at which they could arrive. He knew that some nice distinctions had been taken upon this question, and they were told that it was not meant to apply to a marriage between a man and his deceased wife's sister, but intended to prohibit polygamy. Why, polygamy was not forbidden at that time; on the contrary, it was allowed.
§ MR. SPOONER
said, he was sorry that his right hon. Friend had not turned his attention to the subject. and informed himself upon the point. Our Saviour says— "It was not so from the beginning, but Moses, from the hardness of your hearts, suffered it to be."
§ MR. SPOONER
denied that it applied only to divorce. In the Book of Deuteronomy there were instructions to the husband who had married two wives as to how he was to conduct himself towards them—that he was not to show favour to the one and neglect to the other. And it goes further to show how the inheritance was to be disposed of between the families arising from the two marriages. In the face of such facts, to tell him (Mr. Spooner) that polygamy was not allowed, proved that his right hon. Friend bail not looked well into the subject. The House could not, therefore, put the construction upon the text—that it was directed against polygamy. He contended that no other construction could be put upon it than that after the decease of the wife the husband might take in marriage her sister. What did Archbishop Whately say upon the point? He said this—As no real and strong case has been made out of the important advantage to the public arising from such restriction, I take my stand upon the broad ground, and the general principle, that every restriction of the kind is an evil in itself, The proof lay with the advocates for restriction to show its necessity.He (Mr. Spooner) agreed in that doctrine; that unless they could prove that this restriction in respect to marriage was commanded by the Holy Word of God, they had no business to legislate in favour of such restriction. There was, no doubt, a great prejudice against the proposed change amongst the higher classes; but he thought that their fears on the subject were greatly exaggerated. He thought that if the restriction were removed their prejudices would be very soon removed also. But he knew the effect of the law upon the labouring classes of this country. He did not hesitate to say that there was no more fertile cause of demoralisation than the existing law amongst the middle and lower classes of society. They had been told that after all there were very few of such marriages. There were, in fact, more than they were aware of. In large parishes persons went to the clergyman, who had not the means of inquiring whether the parties were within the prohibited degrees of relationship, and were married. In the registry there was nothing whatever to show that they were guilty of a breach of the law. Dr. Hook, a rev. clergyman who was held in great respect, was at one time of his life averse to this alteration in the law, but having seen how badly it worked amongst the labouring population, he was 511 now an advocate for the change. The petition presented that night by the hon. Member for North Lancashire was signed by the rectors and incumbents of the largest parishes, because they were witnesses of the demoralising effects of the law. In the manufacturing districts how did it operate? A man, for example, was set up in trade and lived comfortably, with a small business; he had his house well furnished, and one or two children. Well, then, it pleased Providence to remove his wife, and he had not the means of paying for a governess or other person to take care of his children. Whom does he naturally look to but to the sister of his deceased wife as the best guardian of his children? Did the House think it probable that those parties could continue to live together, joining in all their meals, and in the care and education of the children, without either contracting such a hatred as to cause a separation, or such an affection for each other as to induce them to seek for marriage? Parties were married in the way he had stated, and many of them knew not that they were really violating the law. Well, what misery might be the result? The parties perhaps in a short time quarrelled, and the husband finding it out that they were illegally married, he deserts the wife, leaving her to take care of herself; and the children become illegitimate. Now there were many such cases to be found as he had just described. He submitted that they were not justified in keeping up such a restriction unless it could be proved that it was in accordance with the law of God. What had Parliament done in 1835? Not merely a Resolution of this House, but an Act was passed, many of the Bishops assenting, which declared that all such marriages as had taken place should be considered legal. Now would the bench of Bishops have been a party to such a Resolution if they thought it was contrary to the Word of God? He warned the House not to reject this measure, but rather to enter into a full investigation of the subject. He believed that they would be doing more mischief by rejecting this Bill than by any other step they could possibly devise. It is said the law is settled, but let them consider the doubt that was hanging over such marriage, if even solemnised in a country where it was legal. Let one who was able go abroad and contract a marriage of that kind, and come back, and then try to escape the doubt which hung over such a marriage—a marriage that was open to 512 be questioned on the ground that they had gone abroad to avoid the law of this country, and had returned without ever obtaining a domicile in the foreign country. Then followed disputes about the property. The law was not settled, and never would be settled until they put an end to this restriction, which he believed to be contrary to the law of God. The question of the clergy and of our canons was alluded to. The clergy were not bound to subscribe at ordination to any canons which had reference to this subject of marriage, but as many of them might entertain conscientious scruples as to solemnising marriages between parties within the prohibited degrees—which, when they were ordained, the law did not permit them to do, but if the law was altered, as contemplated by the Bill, they might be compelled to do—such clergy ought to be protected and left to the conscientious discharge of their duties, and should not be subjected to pains and penalties in respect to the celebration of such marriages. With regard to the marriage of the niece of the deceased wife, he wished to guard himself against being supposed to have consented to that alteration. He grounded his claim for the removal of the restrictions against the marriage with a deceased wife's sister on the fact of there being an express permission given in the Book of Exodus to such a marriage. He differed also as to exempting Scotland from the operation of the Bill. If they had no right to impose such a restriction in England, neither had they a right to impose it in Scotland. He hoped that the House would allow the Bill to be read a first time, with a view to giving the whole subject a fair consideration.
§ MR. DRUMMOND
said, that the object of the hon. Member who had just sat down was, as he (Mr. Drummond) heard him, to inculcate and promote private morality; and he set about his task by advising the House to set the law of God at defiance. The hon. Gentleman went on to say that there was a vast majority of the people in favour of his views. So that the question of settling an important principle was to be decided by counting noses. This was not an argument usually employed; for every single sect, however small, was in the habit of saying to itself, "Fear not, little flock; it is thy Father's good pleasure to give thee the kingdom;" and except from the hon. Gentleman, he had never heard that the multitude of those who agreed to it was to be taken as the 513 test of a theological proposition. But it was not to answer the arguments of the hon. Member for Warwickshire that he rose. The hon. Member who opened the discussion stated the true history of this question. There never was a doubt on the mind of the Church as to the true meaning of the passages upon the subject which had been quoted from Scripture. So said an hon. Member. It was very true that from the third to the fifth century for the first time the question of dispensation began to be raised, and the Pope prohibited as much as he could. In so doing the Pope had acted most wisely, for the more be prohibited the more grist was brought to his mill in the shape of money for dispensations. "But," said an hon. and learned Gentleman, who ought to know better, "the Church," by which he meant the Papacy, "never dared to say a word against that which it believed to be the Word of God." The hon. and learned Gentleman must, however, know that the law of his Church, as described by a great authority, was papa potest legem Dei mutare. The hon. and learned Gentleman should also recollect that there was another passage from the same writings, in which it was clearly stated that the Pope could make vitia those things which other people supposed to be virtutes—and virtutes what other people supposed to be vitia. It was notorious that the prohibition against these marriages had been set aside in every direction. had they never read the history of Spain? Had they never read of the Kings of Spain marrying their own nieces? Why, almost the whole of their history, especially after the arrival of the Bourbons in the country, had been one continued history of incest, for which they had paid enormous sums to obtain dispensations. The reason that permission was given to the Jew to marry his brother's wife was, that under the Mosaic economy the land was divided into twelve portions, and no person who belonged to one tribe could acquire laud that belonged to another tribe. They were obliged to keep the land in the possession of the tribe to which it pertained; and it was to preserve the succession in that tribe that a man was bound to marry his deceased brother's wife. The hon. Member who had last addressed the House, instead of arguing as he had done—why did he not get rid of the prohibited degrees, and marry his grandmother like a man?—or his niece, for perhaps his niece would be 514 much better worth marrying than his grandmother; that is, if you mean to set aside the Word of God as a thing that is utterly unworthy and contemptible in your new code of morality. Then let him act like a man, and not stand snivelling there between the canting Methodist on the one hand and the honest old infidel on the other.
§ MR. J. BALL
begged to remind the hon. Member (Mr. Drummond) that the quotation he had made in support of the power of the Pope came from that eminent writer Cardinal Bellarmine, and that when it was sought to canonise that individual the very test which the hon. Member quoted was produced against him as erroneous doctrine, and on the ground of that text the canonisation was refused.
§ MR. DRUMMOND
That is all perfectly true, and the very next year it was altered in this way—papa non potest legem Dei mutare nisi cum causa.
§ ADMIRAL WALCOTT
said, he viewed with regret the renewal of the Motion now brought upon the attention of the House. To pass the measure into law would, in his opinion, unhinge society. He was well aware of the deductions drawn by its supporters from the practice, law, and opinions of other countries, but he could not believe that the introduction of the code of morality of other countries would conduce to the happiness, the sweet confidence, and the sanctity of that which we in England called by the word "home." He held that this Bill, if carried, would produce the greatest social miseries. He believed the Word of God was against such marriages, and that with the abolition of polygamy, the new system of equality was established between the sexes. He should therefore oppose the Bill.
§ VISCOUNT PALMERSTON
Sir, I wish to state that, having paid great attention to this debate, I shall certainly give my vote in favour of the introduction of the measure. I think that this is not a question of the law of God. I hold that Parliament settled that question by the Act of 1835; for of course it can never be supposed that Parliament would have legalised all marriages which up to that period had been proscribed, if Parliament had been of opinion that there was such a fundamental objection to those marriages. It certainly appears to me that this case is one to which you may apply the quotation, Nil prosunt leges sine moribus—that is to say, that laws are of no avail if the moral feeling of the country does not go in unison with 515 the law. Now, it seems to be established and admitted that the moral feeling of the community at large is not with this law—that the law, in fact, is not obeyed, and that a great number of persons, not conceiving themselves to commit any moral offence, do contract these marriages, although they are prohibited by law. That is not a state of things which ought to exist, and, not being of opinion that there is any moral objection to the contracting of these marriages, and, believing that the law as it stands is the cause of a great deal of misery and social evil, especially among the middle and lower classes of the community, I shall with great pleasure give my vote for the Motion.
§ MR. WALPOLE
I protest against the assertion of the noble Lord—this is the first time that I ever heard of a person—especially of a person in the noble Viscount's position—express the opinion that an Act of Parliament can determine what is the law of God,
§ VISCOUNT PALMERSTON
I did not say that an Act of Parliament can determine what is the law of God. What I said was, that it was clear that Parliament did not conceive it to be a question of the law of God.
§ MR. WALPOLE
Then, understanding now what the noble Viscount says, will he allow me to set him right on the second point—with reference to what the Act of Parliament intended to do? The Act of Parliament made no declaration of the kind. It simply said that the marriages that had been contracted should not be avoided in the parties' lifetime; in other words, all it said was, that such marriages should be placed on the same footing that marriages celebrated before that Act were placed on, if either of the parties were dead. That is exactly what the Act did, and it did it for this purpose—conceiving that there had, up to that time, been a difference of opinion as to the execution of the law, it said that children should not be illegitimatised in consequence of those marriages, when the Legislature itself was, for the first time, dealing with the question in that particular point of view. It had been always considered and stated by the highest authorities of the law in the other House of Parliament that, instead of the Act recognising what the law of God was in this particular, it left it open to the ecclesiastical courts of this country to punish the parties by ecclesiastical censures with reference to such marriages, although it legitimatised the 516 children; and it did not go one inch, I believe, beyond that point. Then the noble Viscount gives as the second reason for which he supports the introduction of the Bill—I hope he will not support it in its further stages—the old maxim, Nil prosunt leges sine moribus; that the law is disobeyed, and you cannot enforce it, and that, therefore, being inconsistent with the feeling of the country, you can no longer maintain the law. Will the noble Viscount consider the consequences of such an argument as that? Will he bear in mind that, according to the Report of the Commissioners upon this subject, there were marriages on marriages consummated contrary to the law, marriages between brothers and brothers' widows, marriages with a mother and daughter in succession, and marriages, I am sorry to say, which led to even more incestuous intercourse than these? If once we admit the doctrine that persons having violated the law of the land—which I believe in this instance, also, to be the law of God—is a sufficient reason for altering the law, I see nothing whatever that is to keep the bonds of society together. I could not refrain from entering my protest against such a doctrine; and I would urge upon the noble Viscount not to pursue this subject further. I would implore him to consider what effect it will have upon the country if this question of marriage—a most solemn, a most sacred, a most interesting question to the whole community—should be constantly ventilated in Parliament and agitated out of doors—contrary to the feelings, as is admitted by the hon. Member who brings forward this Bill, of the people of Scotland; so much so, indeed, that he will not venture to include that part of the country within its provisions—contrary, as was shown by my hon. and learned Friend (Sir F. Thesiger), to the general feeling of the people in Ireland; and contrary, I am convinced, to the feelings of a large, if not by far the largest, portion of the people of this country. By such a change you are introducing a state of society totally different from that which we now enjoy, where the sister of the wife can live with the husband of her sister in perfect innocence, and with all that familiarity which constitutes the charm of domestic life; and you are imposing upon the husband restraints which are not now necessary, because there is a moral barrier which prevents the rising of a criminal thought within his breast. And when you talk of the guardianship which the children are afterwards to enjoy—when 517 you say that the sister in a married state would be the best guardian for the children, just consider for a moment whether the married woman may not become an infinitely worse guardian than the unmarried aunt who now protects the children of her sister as against claims of the children of a subsequent marriage who might interfere with their interests. All this may be destroyed in an unlucky moment—yes, I say in an unlucky moment, merely because the inclinations of a certain set of people have unfortunately inclined them to violate the law; and I must also add, because paid emissaries have been sent up and down the country to collect partial, imperfect, inaccurate information, by means of which the law of the land and the law of God are both at the same time to be violated.
§ MR. G. H. MOORE
said, the hon. and learned Member for Dundalk (Mr. Bowyer) had observed that this was a Catholic question and a Catholic grievance. Now, he begged to state, in the name of his Catholic fellow-countrymen, that throughout Ireland there existed among the whole Catholic population, high and low, rich and poor, clergy and laity, the deepest horror and scorn for the proposition made to the House to-night.
§ MR. COBDEN
said, he had heard this subject discussed very often in the House, and it appeared to him that the weight of argument was conclusively, and almost exclusively, on one side. But to-night he thought that the opponents of the measure had allowed their case to go by default altogether, because the hon. and learned Gentleman opposite (Sir F. Thesiger) gave up the only strong ground on which the law had been defended on former occasions —namely, the 18th of Leviticus. But in 1850 the hon. and learned Gentleman and others relied almost exclusively on that authority, and in abandoning it, therefore, the opposition to this Bill had lost ground to-night immeasurably. He did not understand the noble Lord (Viscount Palmerston) to say, as the right hon. Gentleman seemed to understand him, that because this law was disregarded out of doors, it ought to be repealed. What he understood the noble Lord to mean was that public opinion did not support the law, because those who infringed it retained their status in society. Public opinion sanctioned the evasion—for it was not the violation—of the law, and therefore it must be inferred that they considered there was nothing immoral in these marriages. He 518 knew of his own personal knowledge individuals who held a respectable position in society, and who from the purest motives went to Germany to be married to their deceased wives' sister, and they returned to this country without suffering in the estimation of their friends and neighbours. But it must not, therefore, be implied that public opinion would sanction the evasion or violation of other laws respecting marriage. Could it be said that if persons had married their niece by blood, or their still nearer relatives, they could return without losing cast in respectable society? The right hon. Gentleman therefore begged the whole question when he imported cases of incestuous marriage into it. Let them deal with the case as it stood. The argument of the right hon. Gentleman, that such an Act as was now proposed to be brought forward would affect the innocent intimacy at present existing between the husband and his wife's sister, quite failed; for it argued a want of purity in domestic life, if it required any such law to prevent dissolute practices in connection with a wife's sister. The argument of the right hon. Gentleman would go to this length, that the wife was to have no female acquaintance at all because at a future time she might become the wife of her husband. He believed that such a view of things was a slander on domestic life in England.
§ After a few words from MR. HEYWOOD in reply,
§ Question put, "That leave be given to bring in a Bill to amend the Law as to Marriage with a deceased wife's sister or a deceased wife's niece,"
§ The House divided:—Ayes 87; Noes 53: Majority 34.
|List of the AYES.|
|Acton, J.||Dillwyn, L. L.|
|Adair, H. E.||Drumlanrig, Visct.|
|Bailey, C.||Duke, Sir J.|
|Baines, rt. hon. M. T.||Evelyn, W. J.|
|Ball, J.||Fagan, W.|
|Barnes, T.||Fenwick, H.|
|Bell, J.||Ferguson, Sir R.|
|Biggs, W.||Filmer, Sir E.|
|Bland, L. H.||FitzGerald, J. D.|
|Bonham-Carter, J.||Forster, C.|
|Booker, T. W.||Forster, J.|
|Bright, J.||Frewen, C. H.|
|Brother, J.||Grosvenor, Earl|
|Brown, W.||Hayter, rt. hon. W.G.|
|Butler, C. S.||Heathcoat, J.|
|Chambers, T.||Heyworth, L.|
|Cobden, R.||Horsman, rt. hon. E.|
|Cockburn, Sir A. J. E.||Hudson, G.|
|Craufurd, E. H. J.||Ingham, R.|
|Crossley, F.||Jackson, W.|
|Davies, J. L.||Johnstone, J.|
|Kirk, W.||Robertson, P. F.|
|Layard, A. H.||Sandars, G.|
|Lee, W.||Scholefield, W.|
|Lindsay, W. S.||Scobell, Capt.|
|MacGregor, J.||Scully, F.|
|Mangles, R. D.||Seymour, H. D.|
|Massey, W. N.||Seymour, W. D.|
|Milligan, R.||Smith, J. B.|
|Mills, T.||Spooner, R.|
|Michell, W.||Stanley, Lord|
|Molesworth,rt.hn.Sir W.||Steel, J.|
|Mowatt, F.||Strickland, Sir G.|
|Mulgrave, Earl of||Thornely, T.|
|Muntz, G. F.||Tollemache, J.|
|Oliveira, B.||Villiers, rt. hon. C. P.|
|Palmerston, Visct.||Walmsley, Sir J.|
|Peacocke, G. M. W.||Wilkinson, W. A.|
|Pellatt, A.||Willcox, B. M.|
|Percy, hon. J. W.||Williams, W.|
|Phillimore, J. G.||Wrightson, W. B.|
|Reed, J. H.||Heywood, J.|
|Rice, E. R.||Ball, E.|
|List of the NOES.|
|Acland, Sir T. D.||Kinnaird, hon. A. F.|
|Baillie, H. J.||Laffan, R. M.|
|Berkeley, C. L. G.||Langton, H. G.|
|Blackburn, P.||Lockhart, A. E.|
|Blandford, Marq. of||Lockhart, W.|
|Bramley-Moore, J.||Macartney, G.|
|Cubitt, Ald.||Malins, R.|
|Disraeli, rt. hon. B.||Malins, R.|
|Duckworth, Sir J. T. B.||Montgomery, Sir G.|
|Duncan, G.||Moore, G. H.|
|Dunlop, A. M.||Mowbray, J. R.|
|Dunne, Col.||Norreys, Sir D. J.|
|East, Sir J. B.||O'Brien, P.|
|Fergus, J.||Packe, C. W.|
|Freestun, Col.||Phillips, J. H.|
|Fuller, A. E.||Portal, M.|
|Gladstone, rt. hon. W.||Shirley, E. P.|
|Gordon, hon. A.||Smith, W. M.|
|Goulburn, rt. hon. H.||Taylor, Col.|
|Greville, Col. F.||Vansittart, G. H.|
|Guinness, R. S.||Walcott, Adm.|
|Hanmer, Sir J.||Walpole, rt. hon. S. H.|
|Hastie, Arch.||Wigram, L. T.|
|Heathcote, Sir W.||Wise, A.|
|Heneage, G. H. W.||Wynne, W. W. E.|
|Hildyard, R. C.||TELLERS|
|Hotham, Lord||Thesiger, Sir F.|
|Irton, S.||Drummond, H.|
§ Bill ordered to be brought in by Mr. HEYWOOD and Mr. HEADLAM.