§ Order read for resuming Adjourned Debate on Amendment proposed to be made to Question [25th April], "That the Bill be now read a second time," and which Amendment was to leave out the word "now," and at the end of the Question to add the words "upon this day six months."
§ Question again proposed, "That the word 'now' stand part of the Question."
241§ Debate resumed.
§ SIR WILLIAM HEATHCOTEsaid, whatever might be the difficulties and doubts that surrounded this important subject, this much might at all events be said, that when those who were in favour of the Bill endeavoured to show that the presumptions of the case were in their favour, and insisted on laying the burden of proof on the opponents of the Bill, they made a claim which was unfair and which they had no right to ask the House to entertain. The opponents of the Bill were standing on the ground which had been occupied by the whole of Christendom from the earliest times to a comparatively modern period, and they were entitled to hold that ground till some strong reasons were shown why they should abandon it. And when they were told that the presumption was against them because the law as it now stood was a restriction on natural liberty, his reply was, that that argument would apply to every conceivable case, for we could frame no definition of a law which would not imply restraint against something or other which might be deemed a natural right—and, therefore, the presumption would always be against every law. On the first introduction of restrictions it is for those who introduce them to justify their proposed enactments by sufficient arguments, but, after centuries of prescription, the grounds of the original legislation are to be taken as good until the contrary is proved by those who assail them. He begged to give the most decided negative to the idea, that at any time there had been the slightest hesitation in the law of England on the subject. No doubt Lord Lyndhurst's Act got rid of facilities that existed for the evasion of the law, but at no time had there been any difference between the Ecclesiastical Courts and the common law courts on the point of law itself. These marriages had always been held to be against the law, as much before Lord Lyndhurst's Act, as since. Those who opposed the present Bill, therefore, had a right not to be put on their defence, but to demand that, in a matter wherein the evils of debate are themselves immense, no disturbance should be made, unless the assailants of the actual law were prepared to set up their own case by an overwhelming weight of argument. But, in fact, the arguments used have been chiefly such as have turned aside from the substance of the question to deal only with its outside, have passed by the grave consi- 242 derations of Divine prohibitions; of practical morality, and of social happiness, to enlarge upon topics which, though capable of being handled ad captandum, have nothing peculiar to this case belonging to them, and if pressed to their legitimate consequences, will soon destroy it by a reductio ad absurdum. The House was told, for example, that this law had been broken, and, therefore, it ought to be abrogated. This was an argument that did not profess to deal with the merits of the question, it proceeded on the suppressed premiss that every law that was broken ought to be repealed. If the meaning was, that the law had become practically obsolete—that it was opposed to the minds and understanding of mankind—that, in point of fact, widowers everywhere were anxious to be married to the sisters of their deceased wives—if this was meant, then the argument was capable of this short answer, that the allegations were at variance with the facts. But if it was contended that the law should be abolished because there were some infractions of that law, was not that a principle which would he applicable to all other cases? There were cases of bigamy and adultery; but was it to be implied from that that the great primeval law of marriage had failed and ought to be abrogated; if not absolutely, at least by the insidious means of almost unlimited facility of divorce?
No, men of this country are not yet prepared for this consequence, because their instincts and their moral sense are sounder than their logic in this matter, and they dare not follow to their legitimate conclusions the arguments which they use themselves. But those conclusions will be reached in time.
If we meant to enter upon the course which the Germans had taken, we should not be able to stop short at the point of disregarding some degrees of affinity, arbitrarily selected, but should advance, as Germany had, to the disregard of consanguinity, and, at last, to the relaxation of the marriage bond itself.
Then it was said to be a case of religious grievance, but, as to that he might ask whether any single sect or individual had ever made it a case of conscience or religious duty to contract these marriages?
They might hold that religion did not require their prohibition, just as the Mormonites held that religion did not require the prohibition of polygamy; but they could not conceive themselves required by 243 religion to contract them. So far from this was the fact, that in all Roman Catholic, and in some Protestant countries, where these marriages took place, they were nevertheless prohibited, except under dispensation in each case, and thus a perpetual protest against them was kept up; showing that it was impossible that any religious call to such marriages should be recognised in those countries, or any religious grievance if they were absolutely put an end to. It was no question of religious freedom, but simply the ordinary every-day question which occurs in every land, as to the extent to which individual action might reasonably be required to yield to the general sense.
That general sense in this country, and the prohibition which it had sustained were founded partly on social considerations, and partly on the Divine command. It had been asserted in the last debate on the subject that the highest part of the argument against the Bill—namely, that these marriages were prohibited by Divine command, had been abandoned, and that the opponents of the measure now urged against it arguments solely founded on social considerations and a merely sentimental nature. Now, he wished not to be misunderstood on this point, and he would rather omit all reference to the social question, or at any rate only briefly allude to it, than allow it to overlay the consideration that as a Christian Legislature they had no choice on this subject. Still he would suggest, in passing, a few reflections on the social part of the case, which, in his judgment, deserved some attention. He would ask whether, on this subject, the opinion of the women of England was to be altogether set aside and disregarded; whether, when they were told to take example from continental nations, it was certain that in this, their own country, they were so much behind other nations in the matter of domestic purity and the sanctity of marriage? whether, if they broke into the table of prohibitions which they now observed, and which was founded on clear, intelligible, and consistent principles, they had made up their mind where they would take their stand and what they would make their resting place? whether they would maintain the prohibitions which rest on consanguinity, and abandon those depending on affinity, none of which, in the opinion of an American advocate of the change proposed in this Bill, Mr. Justice Story, could be consistently maintained after such 244 a change; and thus legalise marriage with a wife's daughter, or a son's wife, or even a father's wife—that very union which St. Paul denounced as involving incest unknown even among the heathen—or whether they would break down the fence of consanguinity also, and follow the example of continental Europe to that marriage between an uncle and his own niece, which, tolerated as it was there, by Protestants and Roman Catholics was, nevertheless, of such a character that in the degenerate days of Imperial Rome, the Emperor Claudius hardly dared to contract it, and a reference to the indignant description by Tacitus of that transaction would show that his proposal was supported by precisely similar arguments to those now used in support of the present Bill.
These considerations he did not think were sentimental, nor unreal, nor such as could easily be disposed of in any way which should not be fatal to this example of short-sighted legislation.
But there still remained the most important topic.
Every speaker had admitted that if the Divine command be shown to be against the marriages proposed to be sanctioned by the present Bill, the question would be settled.
In the 18th chapter of Leviticus, and in some subsequent passages, was to be found a series of prohibitions of certain marriages, introduced and accompanied by such denunciations of the inhabitants of the countries where those marriages prevailed, and specifically on account thereof, as showed incontestably that those prohibitions were not part of their purely Jewish law, ceremonial, or municipal, of which there could have been no breach before they were promulgated, nor by nations to whom they had not been addressed; but were a republication of God's universal moral law.
It was also clear that they related to marriage strictly so called. The hon." Gentleman (Mr. Heywood) who introduced the Bill had laboured to prove that the prohibitions of forbidden degrees applied only to illicit concubinage. If that were so, it would follow that marriage would make the prohibited unions lawful—if in one case, then in all, and if in all, then among them, in the case of a mother or a sister—instances, the mere statement of which disposed of the argument.
The prohibitions were fifteen, of which seven were cases of consanguinity, and 245 eight of affinity. They were all alike introduced by a prohibition against the approach to any who were near of kin, a phrase often repeated in the cases of consanguinity; while to show how, and on what principle the cases of affinity were brought under the description of nearness of kin, a phrase was repeatedly applied to them which implied that there was so much of identification between husband and wife as was indeed conveyed when they were pronounced at the creation to be "one flesh."
It had been contended that this application of the words "one flesh" would prove too much, and throw doubt on half the marriages in the world, by implying that the relatives on each side were related to those on the other. But the inference was not legitimate—"one flesh" was not equivalent to one person; nor, although a man was brother to his wife's sister, could he be said to be in any sense one flesh with her, so as to carry on the chain.
All that could be intended was that the husband and wife, respectively, were so planted in the family of the other as that the relations of each, by consanguinity, were relations in the same degree of the other by affinity, that is to say, of him or her personally, and on this principle the doctrine of affinity would be clear and intelligible.
It was also clear that if the enumerated prohibitions were accepted, the cases precisely parallel, with only the sexes reversed, could not be rejected. When, in consanguinity, a son was forbidden to marry his mother, it must follow that a daughter could not be married to her father; and when, in affinity, a widow might not be married to her husband's brother, neither could a widower marry his wife's sister; and it would be found that every prohibited degree in our table was included in one of those classes, that is to say, either of prohibitions by name in Leviticus, or of prohibitions by necessary inferences from the cases exactly parallel.
So clear was it to every man's apprehension that the parallel cases were in principle identical, that the Attorney General, when it suited his purpose to depreciate the authority of Cranmer, and the other English Reformers, as to the prohibition to marry a wife's sister, contended that they adopted this prohibition in order to gratify King Henry the Eighth in his desire for a divorce. But in his case the affinity was not with a wife's sister, but 246 with a brother's widow; and the remark of the Attorney General was absolutely without point unless those degrees were identical. But the Attorney General was right in assuming that they were identical, and must stand together, and we could, therefore, claim his authority for saying that they would also fall together. It was idle to talk of the two cases named in this Bill as if they were exceptional. If it became law the total destruction of our whole table of prohibition was only a question of time.
Again, this doctrine of a necessary inference from the complete parallelism between the enumerated prohibitions, and others deduced from them, was admitted by the objection brought against us from the special provision in Deuteronomy xxv., for a brother marrying his brother's widow in certain cases. He accepted the admission of the identity of the degrees, but denied that liberty of marriage in either of those cases was sanctioned by the passage in question. The direction to contract that marriage, under certain circumstances, was exactly contemporaneous with a positive prohibition in general terms to contract any such. Therefore, the deviation was exceptional, and its precise conditions must be strictly observed. It was not in the nature of a concession or liberty, but of a positive command to perform a certain duty, addressed not to a brother only, but to the nearest kinsman, whoever he might be. It took effect not in every case of widowhood, but in those cases only which excluded the staple argument for this Bill—namely, cases in which there were no children. In no case was the marriage with the wife's sister commanded; and, lastly, the general prohibition was in a general law, of which the context showed that it was addressed to all mankind; while the special exception was in another book, having reference to the Jews alone—their rules of inheritance, and their expectations of the Messiah—in connection with which last feature in the case traces of this particular provision might be found in the Patriarchal Family before the time of Moses. And when we were told that this special enactment proved that the act commanded could have in itself nothing morally wrong, it would be well for those who use the argument to consider how far, on that principle, they could maintain the unlawfulness, in itself, of homicide, which was often commanded under special circum- 247 stances, or how, in this particular subject matter, they could maintain any natural immorality in marriage with a man's own sister, seeing that in the beginning of the world the Creator so ordered things that no other marriages were possible.
There was, indeed, one difficult and much-vexed verse, which, inasmuch as it had forbidden the marriage with a wife's sister while the wife was living, was said by the supporters of this Bill to imply that such marriage was lawful after her death. But there was no process by which men could use this verse to justify marriage with a wife's sister which would not make it equally available for the justification of polygamy.
If we told a man who desired to marry his deceased wife's sister that this verse was actually in his favour because the express prohibition to contract such a marriage during the life of the first, implied, by silence, the permission after her death; how could we answer another who desired to have at the same time two wives, not being sisters, and maintained that the express prohibition against so combining two sisters, implied, by silence, the permission so to combine two women not standing in that relation to each other?
He would not trouble the House at any greater length; but would only, in conclusion, entreat them to pause before they accepted this Bill. He had himself no doubt, but even if it were a case of doubt, the House would do well to reflect that where the principles of morals were involved, and awful penalties denounced, a false step was a matter of heavy responsibility; of the weight of which he, for one, would endeavour to relieve himself by voting against the second reading of this Bill.
§ MR. PHINNsaid, it appeared to him that the hon. Member for Oxford University had, in his fair and temperate speech, sought to dispose of the question before the House by shifting the onus of proof from one side to the other. The hon. Baronet in fact argued that the existing law was fixed and settled, and that we ought to accept it, unless some good grounds for disturbing it could be shown, rather than call on those who advocated the existing law to defend their position by asserting that no change was necessary. Now, he (Mr. Phinn) thought, that in the former discussion the Attorney General had clearly established that the existing law was not quite so fixed and settled a matter, and that the 248 passing of the present law was the result of a compromise in one sense, and of a surprise in another. There was no doubt that the Act on which the existing law rested was brought in to accomplish a practical purpose—namely, the purpose of legalising certain marriages then existing; and the promoters of the Act, finding it impossible to attain that object, simply admitted into it, as the sole means of carrying the measure, a general injunction against all similar marriages in future; and the Bill passed through the House without its provisions being fairly discussed, it having been brought in at a period of the Session when little attention was paid to legislation. Therefore, he dissented from the hon. Member's opinion, that the supporters of the present Bill were in the position of those who advocated a change of settled legislation, and, in submitting the case to the House, were, therefore, bound to prove a positive affirmative rather than show that, from the various circumstances surrounding this particular case, great doubt and division of opinion existed on the subject, and that, in accordance with the preponderance of feeling, the law should be altered. It was a good and sound principle of legislation that no restriction should be imposed on natural liberty without a powerful reason: and, as there was no such reason, according to his judgment, in the present case the restriction ought not to be maintained. If a Divine injunction against these marriages could not be proved, and if the propriety of forbidding them was doubtful, then they had no right to impose a restriction against them except in conformity with the prevailing sentiment of the country. Now, those who petitioned in favour of the Bill, at least a large portion of them, distinctly declared that the existing law inflicted a great grievance on themselves and their children. On the other hand, those who petitioned against the repeal of the existing Act were not the persons who would feel any grievance if the repeal were accomplished. It might be a matter of feeling with them that such marriages should not be allowed to take place, but they were no sufferers under one or other state of the law; and consequently, since no one could aver that these marriages would prove injurious to the community at large, or were at variance with the Word of God, those parties who felt the existing law to be a grievance were entitled to some consideration at the hands of that 249 House. Then, again, with regard to the Word of God, there was not that agreement on the subject that any person could point to the Bible and say this sort of marriage was absolutely prohibited. If that were so, there would be at once a conclusion of all argument. If the prohibition were applicable to the Jewish nation for temporary purposes, it would not then be binding on a Christian Legislature, and did not the hon. Member for Oxford University suppose that if this prohibition were founded on moral Law there would not have been implanted in the breasts of the majority of mankind the same horror at entering into these marriages as existed in reference to marriages of close consanguinity? He thought the passage in Leviticus to which the hon. Member for Oxford University had referred, would, by implication, give a very strong sanction to the conviction that marriage with a deceased wife's sister was I not opposed to the Divine law. They must bear in mind that at the time that law was promulgated princes and other persons were living in a state of polygamy; and then, the passage in Leviticus, accepting that practice as an established one, but not sanctioning it, merely declared; to those who practised polygamy, that that particular kind of polygamy,—namely, with a wife's sister, during the life-time of I the wife—was denounced. That was, however, no injunction against a marriage with a wife's sister after the decease of the wife. The hon. and learned Member for Enniskillen (Mr. Whiteside) had, on a former occasion, argued that the Jews interpreted the passage in Leviticus as absolutely prohibiting marriage with a deceased wife's sister, and in confirmation of his view read a passage from an author, with whom he presumed very few in that house were acquainted—namely, Philo-Judæus; and, on the principle of omne ignotum pro magnifico, the House might probably have been induced to give more weight to the authority than it really deserved, and it was therefore desirable to show that the hon. and learned Gentleman had had a garbled passage from that writer placed in his hands. The hon. and learned Gentleman said that by the testimony of the Jewish expositors before the Christian era he would show what was the state of the law under the old dispensation; and the hon. and learned Gentleman proceeded to quote certain words from Philo-Judæus, showing, as he said, that 250 the Jews understood their scripture, as "not permitting the same man to marry two sisters, neither at the same time nor at different periods." Now, he (Mr. Phinn) would quote a translation from the Greek passage in question, of the accuracy of which the House would be assured, when he stated it was made by Mr. C. D. Yonge. The hon. and learned Member here read the following translation of the sentence referred to—
Again, he does not permit the same man to marry two sisters, neither at the same time, nor at different periods, even if he have put away the one whom he previously married; for while she is living—whether she be cohabiting with him, or whether she be put away, or if she be living as a widow, or if she be married to another man—still he did not consider it holy for her sister to enter upon the portion of her who had been unfortunate. By this injunction teaching sisters not to violate the requirements of justice towards their relations, nor to make a stepping-stone of the disasters of one so united to themselves by blood, nor to acquiesce in, or to pride themselves in receiving attentions from those who have shown themselves enemies to their relations or to reciprocate any kind offices received from them.Thus it appeared that that interpretation of the law related to marriage with a wife's sister during the lifetime of the wife. He would now pass from the consideration of the scriptural injunction with the observation, that no man could find in the Bible certain ground on which to rest a prohibition against these marriages; but the matter was left open to be dealt with by the dictates of individual consciences. He left that part of the subject all the more readily, as he felt that the discussion of theological matters in that House seldom led to any profit or any increased reverence for Holy Writ. The hon. Member for Oxfordshire said that the prohibition against these marriages had existed in all ages down to the year 1500; but it should be remembered that during that time the Church usurped jurisdiction in all matters of marriage and divorce. The law of the Church became the law of the land, and whatever interpretation the Church put on Scripture or moral law, or thought necessary for political or social objects, became the law of the land. At present, however, they lived under a different state of things and under a different rule. Since this question was first agitated an important alteration had been made in the law of the country. Up to a recent period it had been a question agitated by lawyers, whether marriage was not a religious contract, 251 requiring the sanction of the Church. That question had been settled by the Legislature, and marriage was now a civil contract. Christians followed the dictates of their own creed, and sought to confirm their marriages by ecclesiastical authority; but in law it was now recognised as only a civil contract, the law recognising no sect or Church whatever in the completion of the contract; and, seeing that no injunction could be found in Scripture against these marriages, and that no moral sentiment was to any great extent felt to be shocked by contracting them, he asked whether the House was prepared to maintain the existing law in opposition to the general feeling of the great body of the people? It had been said that the attempt to repeal the present law was made only for the sake of a few rich men, and for the members of the upper classes of society, who, having disregarded the existing law, wished their violation of it to be sanctioned by that House. He could find no ground for such a statement; but it was a fortunate thing, when a large portion of the community were suffering from any grievance, if they found that that grievance affected them, in common with some members of the upper classes, who had greater political influence and better means of advocating their claims. From all the inquiries he could make, he believed that the existing law affected much more injuriously the lower classes than the upper; and they might conclude from the petitions presented to the House that it was felt as a real and substantial grievance. An hon. Gentleman opposite had expressed a hope that the Government would oppose the measure, and so finally put an end to the agitation on this subject. Now he did not think the present position of the question encouraging to those who took that view of the subject. Seeing that there have been majorities in that House in favour of such a Bill as the present, and seeing that the measure was in accordance with the feelings of a large mass of the Dissenting bodies, and that with respect to it the Established Church was nearly equally divided, it was not likely that those who were earnest and unremitting in their endeavours to get the Bill passed would desist from their efforts, though they might now prove unsuccessful. He hoped this Bill would be sent up to the other House by such a majority as would demonstrate that the sense of the country was unequivocally in its favour.
§ MR. ROUNDELL PALMERsaid, the supporters of this measure based their demand for a change of the law on two grounds—first, that there was no prohibition of these marriages in the book of Leviticus; and next that, if there were, it ought not to be maintained. [Cries of "No, no !"] He certainly had understood the hon. and learned Gentleman who had preceded him to express an opinion that the Levitical law placed no obligation upon us.
§ MR. PHINNI beg the hon. and learned Gentleman's pardon. What I said was, that if there had been any positive prohibition it would have been binding.
§ MR. ROUNDELL PALMERhad certainly heard the hon. and learned Gentleman say that he did not consider this as a part of the law which was binding on Christians. [Mr. PHINN: Not necessarily.] Exactly so; not necessarily binding. With regard, then, to the first of these two grounds, he thought those who opposed this innovation had considerable reason to complain of the manner in which their arguments had been misrepresented or misunderstood by their opponents. They were charged on that occasion, as they had often been charged before, with having retired from their religious grounds of opposition—a charge for which there was not the slightest foundation. On the contrary, what the supporters of the present state of the law said was, that if they entered into the argument on the religious question at all it was under protest, and not feeling it incumbent upon them to do so; and, further, not presuming to rest that question upon their own powers of argument, nor supposing that their individual views as to the proper mode of stating and discussing it ought to govern those of others. They advanced their religious arguments with the modesty with which all individual opinions ought to be advanced, but they did not the more give up their conviction that the conclusion, which those arguments were advanced to prove, was true, more especially as it rested on the doctrine of all Christendom, and on the solemn decision of the Church from the earliest ages. The hon. and learned Member for Bath, in his endeavour to cast the onus probandi on his opponents, had somewhat misstated the real question before the House. The hon. and learned Member said he did not feel that, in supporting this Bill, it was at all cast upon him to show that Lord Lynd- 253 hurst's Act ought to be retained. But it was not Lord Lyndhurst's Act that the House was now dealing with. What was asked from the Legislature was, that it should repeal a law which had been the law of Christendom from time immemorial, and which had received the sanction of every authority, ecclesiastical and civil, from the beginning of Christian history up to the present time. Lord Lyndhurst's Act did not prohibit these marriages—all that Lord Lyndhurst's Act did, was to make that law self-executing which formerly could only be executed through the sentence of a court, and it ought not to be represented as though the question were merely the repeal of Lord Lyndhurst's Act. It was a grave social question; and from its gravity and importance ought not to be represented as if they were dealing with a law of yesterday. He begged the House to follow up the foundation of this law to its proper source—to investigate its origin and principle—and not to treat it according to the superficial notion that had been put forward in these debates—as if Lord Lyndhurst's Act, or even the verbal criticism of one particular verse in Scripture were its foundation. The true origin of the law was to be found in the solemn determination of all Christendom, based on a general, comprehensive, and liberal interpretation of Scripture. The verbal and textual criticisms had been introduced into the discussion, and were relied on not by the upholders, but by the opponents of the present law. But he would bring the authors of the present ecclesiastical law of this country to speak for themselves, and the House should hear from them on what principle this law was founded, and what meaning they attached to those parts of Scripture which bore upon the question. As it happened, this particular case which the House was now discussing was the very one ease which, for the sake of recording to all times that it had not been overlooked by them, but that they had given to it their most deliberate consideration, Archbishop Parker and the Convocation of 1571 (which framed the Thirty-nine Articles and gave its sanction to the table of prohibited degrees) had placed in the front of their canon, in order to show that it was not by accident, but by a direct decision, that they adopted that part of the table. The English translation of the canon was in these words:—
All marriages which have anywhere been contracted within the degrees of consanguinity or 254 affinity prohibited in the 18th chapter of Leviticus shall be dissolved by the authority of the bishop; but especially if any one, after the death of his first wife, shall have married her sister; for this degree, by the common consent and judgment of all learned men, is held to be prohibited in Leviticus.And, that there might be no mistake, he would read the Latin words of the latter part of the canon:—Maximèverò, si quis, priore uxore demortuâ, ejus sororem uxorem duxerit: hie enim gradus, communi omnium doctorum virorum consensu et judicio, putatur in Levitico prohiberi.The canon then went on to forbid in general terms marriages within any of the degrees set forth in the table published by Archbishop Parker. The House, therefore, would see that it was now called on to reverse a judgment as solemn and deliberate, so far as ecclesiastical authority was concerned, as could well be pronounced upon such a subject as this. The comment of Bishop Gibson on this table of prohibited degrees was the more valuable, inasmuch as it dealt with the question of the Jewish authorities which had been so much relied on in the discussions on this question. It was as follows:—This is a prohibition not only of the marriages mentioned within Leviticus xviii., but also of marriages within the degrees there mentioned; which, though not forbidden in terms, are forbidden by parity of degree, and the plain reason of the precept. And this difference as to the interpretation of the Levitical prohibition, in point of extent, was remarkable among the Jewish doctors, some of whom—namely, the Talmudists—confined it to the letter of the law; others—namely, the Koraites—extended it to all marriages of the same degree with those that are prohibited by name. Which latter opinion, as most agreeable to Scripture and reason, was followed by the primitive Christians, as appears from the apostolical canons, which forbid the marrying of two sisters, and of a brother's or sister's daughter.The traditions of the Talmudists, he might remark, were not particularly recommended either to our belief or affection by the highest authority to which Christians looked up. The principle on which this canon proceeded was very well set forth in the Reformatio Legum, thus—In these chapters, however, of Leviticus this is carefully to be observed, that they do not by any means contain an explicit mention by name of all the persons with whom union is unlawful. For the Holy Spirit has there brought forward distinctly and expressly those persons from which the like intervals and relative differences of the other degrees may with ease be discovered and inferred. As, for example, a son being forbidden to marry his mother, it is a just consequence that a daughter also cannot be her father's wife. And if 255 a man may not marry his father's brother's wife, it follows equally that a marriage with a mother's brother's wife cannot be allowed.The following two rules were then added—1. That we are always to understand the same places which are assigned to men to be equally attributable to women; the degrees of proportion and propinquity being the same. 2. That the man and his wife are to be regarded as having between them one and the same flesh; so that whatever may be the degree of consanguinity in which one person stands related to another, he will be related to his wife in the same degree of affinity, which rule is also of the same force and upon the same principle in the converse case.These two rules were plainly founded on the principle of the chapter in Leviticus; which, as it was directed generally against all marriages with near of kin, must, when it mentioned an extreme limit, be held to include all degrees within that limit. This principle had been sanctioned and adopted by the whole Christian world from the earliest ages; whatever else might be thought of it, it was at least a general principle, an intelligible principle, consistent with itself and with common sense; and it was not competent for the supporters of this measure now to call upon Parliament to legislate in defiance of it on any such loose and unsatisfactory ground as the supposition that they—the supporters of the Bill—so clearly understood the meaning of that 18th verse in the 18th chapter of Leviticus as to be able to say that it not only did not mean a prohibition, but actually conveyed a sanction of these marriages. The hon. Baronet the Member for the Oxford University had completely answered the attempt which had been made to weaken the authority of Archbishop Cranmer, by pointing out that the marriage with a brother's widow, which Henry VIII. was anxious to dissolve, was actually prohibited in Leviticus. But the House must not forget that Archbishop Cranmer's sincerity in this matter had been tried, for he afterwards refused to sanction a man's marriage with his wife's niece, even though it was pressed upon him by Lord Cromwell in the height of his power. The fact was thus narrated in Gibson's Codex—This was the very point in which, presently after the making of the Act—25 Henry VIII.—Cromwell desired a dispensation for one Massey, who was contracted to his sister's daughter of his late wife; but the Archbishop (Cranmer) denied it as contrary to the law of God; and gave for reason, 'That as several persons are prohibited which are not expressed or understood by like prohibition in equal degree, so, in this case, 256 it being expressed that the nephew shall not marry his uncle's wife, it is implied that the niece shall not be married to her aunt's husband.'The hon. and learned Member for Bath (Mr. Phinn) had made great use of the documents which the industrious agitators on this question had circulated that morning among the Members of the House. In one of these the correctness of a quotation made from Philo-Judæus by the hon. and learned Member for Enniskillen in the former debate had been impugned; and though he had no intention to discuss a question of Greek in that House, he must say that the translation given of the passage in that document was certainly not one in the correctness of which he was disposed to acquiesce. These documents, however, gave a very striking illustration of the manner in which authorities were got up by those who managed the agitation on this question. In the former debate it was stated that Bishop Jewell had given a very strong opinion against these marriages. This was the language which he held on the subject, in a private letter, dated 1561—Albeit I be not forbidden by plain words to marry my wife's sister, yet am I forbidden to do so by other words which by exposition are plain enough. For when God commands me I shall not marry my brother's wife, it follows directly by the same that He also forbids me to marry my wife's sister. For between one man and two sisters, and one woman and two brothers is like analogy or proportion.It was now sought, however, to show that Bishop Jewell had altered his opinion on this subject, and a very sudden alteration it must have been, certainly; for, in 1563, he was represented as having written thus to Archbishop Parker—Chafin, that hath married two sisters, upon his appeal from your Grace and me, hangeth still before the delegates; and, as much as I can perceive, is not likely to take any great hurt at their hands. I would they would decree it were lawful to marry two sisters: so should the world be out of doubt; as now, it is passed away in a mockery.Why, if this were to be construed into an expression of approval of these marriages, some three or four years hence, when what had taken place in these debates was forgotten, the hon. Member for East Surrey (Mr. H. Drummond), who on a former occasion had jestingly recommended the hon. Member for North Warwickshire (Mr. Spooner), to "marry his grandmother like a man," would be quoted as an authority in favour of unions within that particular degree. It was plain that Bishop Jewell 257 was speaking in language of disgust and indignation at the temporising conduct of the secular authorities in reference to this matter. In the former debate the hon. and learned Gentleman the Attorney General was represented as having said—though he did not think it could be so—"that these marriages were simply matters of dispensation in the Roman Catholic Church, and that the Roman Catholic Church never took upon itself to grant dispensations for marriages considered to be incestuous and prohibited by the law of God." Now, if by that passage was meant that the Church of Rome did not, at the same time that she granted dispensations for prohibited marriages, admit that she was doing something contrary to the law of God, he could understand it; but if the hon. and learned Gentleman meant to say that the Roman Catholic Church did not take upon herself to grant dispensations for marriages within the Levitical degrees, certainly a more unfounded assertion was never made. It was a matter of history that it had been no unfrequent thing for the Church of Rome to grant a dispensation for the marriage of an uncle with his niece, which was a marriage unequivocally prohibited by Leviticus, and a marriage which we were bound to treat as incestuous. There were scarcely any limits to the pretensions of the Church of Rome in this respect, and these pretensions were arrogated for her and defended by many Roman Catholic writers. On the Continent of Europe, no doubt, there was considerable laxity in this practice of dispensation, both within and without the Roman Catholic Church, not confined, however, to this particular category of marriages; but this laxity was coexistent with the recognition of the fact that they were unlawful marriages, that they were within the prohibitory law, though it was assumed that it was competent to dispense with that law in the particular cases. Now, with respect to the argument of the hon. and learned Member for Bath (Mr. Phinn), that the prohibitions in marriage in this chapter of Leviticus were not generally binding, he would answer, that the prohibitions of Leviticus were of universal application, and not confined merely to the Jews, was evident from the fact that the things prohibited were described as being those for which the Canaanites were so abominable that they were cast out of the land—"For all these abominations have the men of the 258 land done, which were before you, and the land is defiled; that the land spue not you out also, when ye defile it, as it spue out the nations that were before you." Evidently, therefore, these were no mere Mosaic laws; they were laws of general morality binding even upon heathen nations before the coming in of the Jews, for the neglect of which they had been punished. There remained now the consideration whether any moral distinction could be satisfactorily drawn in favour of the particular marriages mentioned in this Bill. He looked with great alarm upon any attempt to question, and, perhaps, reverse the decisions of ages and the decrees of Christianity, and to investigate and verify anew the principles on which our moral institutions were based. The House of Commons was certainly not a fit assembly for any such discussion and investigation. If demonstration, if argument that admitted of no answer in a popular assembly, was to be required for the justification and the maintenance of the principles on which our moral institutions were founded, there was hardly one of them which, if sufficient agitation were raised in the country, might not be assailed, and with regard to which it might not be said, as it was in this case, "the argument is all on the side of the supporters of a change." The argument in this case was—"We question the institution; we throw upon you the burden of proving your principles; we reject the opinion of ages; a number of people are suffering from your prohibition; they want licence; you meet them by law; we want some incontrovertible reason for your law;" and there were very few institutions resting on morality which might not be attacked by the same arguments were once this principle admitted. There was scarcely one prohibition, at all events, which could then be secure. Take this very subject of marriage. Most persons were under the impression that marriages within the forbidden degrees of consanguinity were repugnant to nature, and that there was no fear of men contracting them, even if there had been no prohibition of them. Experience, however, and the history of the human race afforded no warrant for any such argument. He had already referred to the occasional permission of marriages between uncle and niece under the Papal system. In the beginning of the human race a man and his sister might lawfully marry—nay, at the very 259 earliest period no other marriage was possible. There was a time, then, when such marriages were not unlawful or unnatural; but, as the world advanced, social morality, which was founded on principles known to divine wisdom and divinely expounded for the benefit of man, underwent such modifications as were demanded by the interests of a different, but equally providential, state of society. The absolute prohibitions afterwards imposed did not come all at once, for the patriarch Jacob, the founder of the Israelite nation, actually contracted that marriage which was admitted to be forbidden in terms in the 18th verse of Leviticus—a marriage with two sisters at the same time; but whether that was done under a special dispensation of Providence, or whether the human race had not then arrived at that point of development which required, for the sake of morality and society in general, that further restrictions should be imposed on marriage, the advocates of the Bill could not explain or account for that fact any more than the advocates of the existing law. The morality of the world advanced as the world advanced; and it rested in its improved state, upon a progressive moral sense, formed mainly upon the principles and the spirit of the precepts of revealed religion. There were very few marriages, if any, out of the direct ascending and descending lines, against which a universal moral feeling could be proved to exist, independently of all aid from Revelation. It was the same with regard to polygamy. As the world advanced the state of public opinion advanced on that subject also. We held now that the prohibition against polygamy rested on higher grounds than the state of public opinion—[Mr. SPOONER: Hear, hear!]—but he should like to hear the hon. Member for North Warwickshire prove from Scripture the absolute immorality of polygamy. If they accepted the arguments of the supporters of the Bill they would prove that, as soon as any similar demand for change in that direction could be got up, the prohibitions against polygamy ought also to be removed. If an association could be formed to agitate up and down the country for petitions against the law which prevented bigamy, to produce 2,000 or 3,000 persons who had married a second time, without waiting for the deaths of their former wives, and who desired to be released from a law for which they professed to find no warrant either in 260 their own consciences or in the divine commandment, it certainly would be a difficult thing to show from the letter of Scripture that polygamy was prohibited. It would not exactly do to quote to them the text in which it was laid down, that a bishop should be "the husband of one wife," for, of course, the immediate inference would be, that anybody who was not a bishop might be the husband of more than one wife. Was not polygamy sanctioned, or permitted at all events, throughout the whole of the Old Testament? and he should like to see how it would be attempted to be proved from the New Testament that it was there positively prohibited. He believed that whenever the foundations of morality with respect to the law of marriage were attacked there would always be great danger with respect to polygamy. At the period of the Reformation the minds of as great men as Luther and Melancthon were unsettled on this question of polygamy; and Luther, when pressed for an opinion by an eminent political personage who desired to have liberty to marry a second wife, wrote to him thus:—"If your Highness he minded to take to yourself another wife, let the thing be done in secret, that there be no scandal." In times when men's principles were unsettled, when they were required to go over again and to verify them all, their minds were necessarily apt to get bewildered. The Rev. Mr. Binney, one of the witnesses produced by the supporters of this Bill, was an eminent instance of this. In one of the answers given by the rev. gentleman before the Commission, the following passage occurred—"It is impossible to determine in most cases, if not in all, what original dictates of nature are, or may be, as distinct from those superinduced sentiments and feelings which are engendered by habit or created by feeling;" an observation which, though made with reference to the prohibited degrees of marriage, was of a very much more extended application. Coming nearer to our own times than Luther, as great a man as he among our own countrymen, Milton, had written in defence of polygamy; he thought all our received morality on that subject was a mistake, and he argued in favour of polygamy on scriptural grounds with all the fervour of a man conscientiously convinced of the truth of his opinions. A most plausible practicable argument might be made out for permitting bigamy if the returns of the number of prosecutions for that 261 offence were compared with the number of marriages which had been contracted with a deceased wife's sister. Polygamy was not forbidden merely, but severely punished by the law of the land, yet, on going over the criminal returns for the period over which the inquiries of the Commission extended, he found that the number of cases of bigamy which had occurred during that period was about half of that which the Commissioners stated to be the number of these marriages with a deceased wife's sister—the prosecutions would not represent anything like the number of actual cases, and in all probability, therefore, there were just as many cases of polygamy occurring in this country as there were of these particular marriages. The House would easily imagine the consequence of such an argument. It must not be forgotten, too, that there had grown up in our time a very numerous body of people who called themselves the Church of the Latter-day Saints, but who were generally known as Mormons, among whom polygamy was openly practised and professed. A short time ago a very remarkable letter, dated from the Salt Lake City, had appeared in The Times, quoted from The Chicago Tribune, which gave so interesting an account of the manner of life among these people, vindicating polygamy on scriptural and natural grounds, and setting forth the practical results from it as being just as satisfactory as those which they were told would spring from this Bill, that he would, with the permission of the House, read an extract from it—Polygamy! Polygamy! Polygamy! That is the word which you call it; and one would think, from the holy horror with which your editors, preachers, and politicians utter it, that it is a crime of magnitude surpassing all others. My dear friend, I do not doubt many of you think so; but it is all the result of education, nothing else. I assure you I speak from experience; as do thousands of others hereabout, who once thought as you do. But you must know that the Church of Latter-day Saints discards all sectarian dogmas, and comes to the plain simple truths of the Bible; the whole Bible, not a part of it. It looks to the lives of the patriarchs and prophets, the men of 'pure religion and undefiled,' for principles, as well as to those who came after them. It sees no higher or more heavenly state of society than that which existed under the authority and direction of Jehovah anterior to the Christian era. Not that it opposes any doctrine of Christ, or of those authorised to speak for him, for it would leave every one free. No, it gives the highest sanction it can give to every principle elaborated in the New Testament, while it makes the Old and the New entirely harmonise. The doctrine is founded on the Bible, the eternal rock 262 of truth. … But about the practical operation of polygamy, as you call it. That is what you most probably want to know; and I shall enlighten you from my observations and experience. When I came to Deseret there were not many who were in the enjoyment of more than one wife; and many, or most, of the new comers were opposed to it. But, as they saw how beautifully and harmoniously those families lived where there were two or more wives, their prejudices gradually gave way; and among no class was this change more apparent than the women. At the present time, if a vote were taken on the subject, I venture to say that nine out of every ten women who have lived here two years would sustain our present social system in this particular.He set this against similar arguments which had been used in favour of this Bill. There was this difference between them certainly; on this question there was an agitation, on that of polygamy there was none, though how soon there might be, if the foundations of our moral law were unsettled, he knew not. The supporters of this Bill insisted strongly on the argument that a considerable body of the community were denied their proper liberty of acting according to their convictions under the law as it at present stood. That, no doubt, was a consideration deserving of attention; but he denied entirely that the House of Commons was at all bound to shape its legislation in accordance with every opinion, which might happen to be held by a large number of persons. No doubt individual liberty should be allowed so long as we were not called on to relax in its favour those principles of morality which the good order of society required us to maintain; but to legislate upon the principle he had referred to would have for its result, that there would be no legislation on any principle of morality at all. In this case, however, there was no infraction whatever of the liberty of any class. It was, indeed, said that the Dissenters generally took a different view of the scriptural argument from that taken by the Established Church; but surely the Dissenters did not make it a point of conscience to marry their wives sisters, and nobody pretended that they had a greater desire to contract these marriages than any other class. The truth was, that it happened here and there to be the case of individuals—though not in greater number than might be expected—and they were asked to alter their present law because several thousand persons, in a series of years, had violated it. But if they sanctioned any such ground as that for the change, they must be pre- 263 pared, in consistency, to put an end to all prohibitory laws whatever; for there was scarcely a law which had not been violated by many more persons than this one. Again, it was a great fallacy to argue that, if the Legislature acceded to this demand, it would inflict no injury upon any one. That large class of the community who did not desire to marry their deceased wives' sisters still wished to have the benefit of that relationship of sisterhood which existed under the present law; and for every man who wanted to make his wife's sister his own wife, there were at least a thousand women who looked forward with comfort to the hope that as long as they lived their sisters should be received in their husbands' houses on the same footing as if they were the husbands' own sisters. They were asked, also, to pass a Bill which was self-condemned on the very face of it, because it would declare that which was incestuous in Scotland to be lawful and right in England. No language could be too strong for expressing the indignation which all right-minded persons ought to feel at a measure that would legalise these marriages in this country, but would leave them prohibited as incestuous in Scotland—the sole ground for making this exception being that it would afford a better chance for the carrying of the Bill. To legislate upon such a subject at all, was dangerous and mischievous enough; but to legislate upon such a subject with the levity, the undisguised indifference to all consistency of principle, which characterised this Bill, would be a course unworthy, not only of Christian, but of rational men.
§ MR. LOWEapprehended that, whatever inconsistency there might be in declaring the same thing to be incest in Scotland which was made lawful in England, that inconsistency was not greater than the one involved in the Act of which the hon. and learned Gentleman (Mr. R. Palmer) had himself been the virtual defender and apologist, and which affirmed that all marriages of the very same description as those they were now considering, which were contracted before a certain year, were to be regarded as to all intents and purposes lawful and valid, while all those that were contracted subsequently to that date should be held to be unlawful and invalid. No doubt the hon. and learned Gentleman, in his very able address, had adduced arguments of a cogent character against polygamy; but, with all due de- 264 ference to his undoubted zeal and sincerity, his desire to discredit the reasoning of the advocates of this change had certainly led him somewhat wide of the question, and induced him rather unnecessarily to broach topics that were dangerous in themselves, and which it would be far better to leave undiscussed. On subjects of that kind care should be taken that men's passions were not stirred where it could be avoided; and the more especially was the observance of this caution incumbent on them when they remembered that their legislation must, in the minds of many, rely for its sanction and support, not alone on ecclesiastical authorities and canons, but upon that instinctive sense of right and wrong which Bishop Butler recognised in the natural conscience of all men. Yet this essential element the hon. and learned Gentleman seemed wholly to omit from his enumeration of the grounds of our marriage law—an element, indeed, without which all the other grounds of that law must become futile and treacherous. If, however, they treated this question as one upon which men were to be reasoned with as having a conscience to guide them and the faculty of distinguishing between right and wrong, they might well afford to dispense, in that House at least, with those theological disquisitions which occupied—and occupied so fruitlessly—a large portion of their debates on this subject. Now, stripped of all the technicalities with which it had been unnecessarily incumbered, the question before them resolved itself into this—"Shall or shall not a man be prohibited from marrying his deceased wife's sister?" The controversy as to whether the onus probandi in regard to this prohibition rested with those who would maintain it, or with those who advocated its repeal, was a controversy more of mere words than of substance; it might, therefore, be summarily dismissed, because, although the hon. and learned Gentleman denied that the burden of proof lay on his side, still, in his very next sentence, he proceeded to furnish that proof; therefore, if the proofs he adduced were good, he had made out his case, and there was an end of the question; but if, on the contrary, they were not good, his case entirely broke down, and he could not then escape from that burden of proof which, before his failure in argument, he denied to be incumbent on him. The House, then, was perfectly free to deal with, this matter as if the question now came before them for the first time, and they were asked to 265 abridge men's natural liberty. The difference of opinion which prevailed on this question went much deeper than the hon. and learned Gentleman supposed. It amounted to this—"Upon what kind of argument, conviction, or persuasion ought the House to enact this prohibitive law?" If the hon. and learned Gentleman had been arguing with a layman about to contract one of these marriages, and who, like himself, was a member of the Church of England and deferred to her authority and her canons, it might be sufficient to quote to him the opinion of Bishop Gibson, laying down the rule for interpreting disputed texts of Scripture, in order to make him pause and seriously reflect before he formed such a connection. But that was not the question before the House. It did not merely depend on what was his hon. and learned Friend's individual conviction, nor even on what was the individual conviction of the majority of that House; but it really came to this—should that House, because they had a strong opinion on this subject, which was not shared by many other persons in this country, erect their own personal conviction, by virtue of an Act of Parliament, into the rule of those other people's lives, and, because they disapproved of a particular course of action, absolutely prohibit them from following that rule of action which, in their own opinion, seemed to them both lawful and desirable? Now, to deal with this matter upon any other ground than that of the original dictates of morality—which no honourable or good man would deny—and to force their own individual interpretation of controverted texts upon others who did not take the same view of them, was nothing more nor less—however little it might be intended as such—than inflicting persecution on those who differed from them in opinion. In former times that House had been called upon, because certain persons regarded such and such a thing as contrary to the canons of the Church or to the injunctions of the Book of Leviticus, to impose pains and penalties on those who transgressed in matters of opinion in order to bring them back to the knowledge of the truth. Those days were, happily, gone by; but when a law denied a man, upon no religious ground that he himself acknowledged, upon no principle of morality and not upon grounds coextensive with the scope of the legislation of the House, but simply upon the ground of an authoritative interpretation of Scripture 266 peculiar to certain phases of religious belief, the right of doing what he believed to be permissible and expedient for him, it infringed his natural liberty, and subjected him to a persecution wholly alien to the spirit of our age and of modern legislation. The question, therefore, was not whether or not these marriages were prohibited by the Book of Leviticus, or whether or not this prohibition was coextensive with the Christian religion, so that no Christian could consistently object to it—but really whether a large class of our fellow countrymen who, wisely or unwisely, considered these marriages to be unobjectionable, should be forbidden by law from contracting them, merely in deference to the religious opinions of others? The question had been argued as if this were not a permissive but a compulsory Bill; and the objections taken to it almost assumed that it sought to force people to form these connections, whether they wished to do so or not. It was said that the women of England were opposed to these marriages—then, surely, in that case, the remedy lay in the sex's own hands. They need not consent to marry a deceased sister's husband if such a union was repugnant to them; and why, therefore, should they ask that House to fetter the liberty of other women who might not have the same scruples? The hon. Baronet (Sir W. Heathcote) said that this was a matter which was involved in doubt. Well, then, why pass a prohibitive law upon a doubtful subject? If the House took on themselves to restrain these marriages, they should at least be sure that the principle they proceeded upon was so certain, wise, and generally admitted, that it ought to be made universally binding; otherwise, they would be laying the weakest and most sandy foundation possible for such a law. The House of Commons was not an ecclesiastical conclave or Sorbonne, and could not, like schoolmen and commentators, undertake the settlement of theological disputes. Hon. Gentlemen did not come there to form opinions on religious matters, but to legislate for their country; and, unless it could be shown that any prohibitive law was based upon the moral obligations of men, and demanded by the sense of right in the human conscience, it ought not to be adopted or enforced. Nothing of this kind, however, had been proved in the present instance. True, the hon. and learned Gentleman said that if they left such matters to be 267 determined by individual feeling and man's intuitive sense of right and wrong, there would be no adequate check upon incest. This, however, was an idle fear. Both the reason and the principle of the thing drew a wide line of demarkation between relationships of affinity and of consanguinity; and, without going into all the nice points of casuistry that had been raised in reference to this question, it was clear that nature herself pointed out, and the history of mankind exemplified, that marriages between persons within near degrees of consanguinity were not intended for man, and that wherever they prevailed they were followed by the degeneracy of the species. Therefore the House should not be deterred from discussing this question by mere groundless apprehensions that the subversion of the very basis of morality was now threatened. The whole of the passage quoted from Bishop Gibson proceeded on the assumption that relationships of affinity and consanguinity stood upon precisely the same footing in regard to marriage—a proposition which was in manifest conflict with the moral sense, and which tended to the swamping of all morality, by mixing and confusing together cases which, on the ground of nature and conscience, were so essentially dissimilar. It was contended that we were bound by the Mosaic law in this matter, because this prohibition formed part of the moral precepts. But who was to determine whether it was a moral precept or not, seeing that the Articles of the Church declared that we were not bound by the ceremonial part of the Levitical law? Whether it was moral or not could not be gathered from the Bible itself, nor be sought after by the aid of the rules prescribed by learned theologians and subtle casuists for the right interpretation of the Sacred Scriptures. When a man appealed to the principles of morality, he appealed to human nature and to human conscience in relation to any subject. Therefore, to ascertain what was moral or what was positive and absolute in the Mosaic law, we must appeal to the human conscience; and when brought to this test it would be found that the prohibition they were now considering was not identified with, or confirmed by, any clear dictate of man's moral instincts. The matter consequently could not be carried a single step further by an appeal to disputed texts of the Bible. Now, if this prohibition could not be maintained on the ground of morality, seeing 268 that it manifestly arose from the Roman doctrine of affinity, which was extended in the corrupt ages of the Christian Church from the desire to obtain money by granting dispensations, was there any support for it from reasons of expediency? One argument that had been urged on this branch of the subject was, that there was a desire on the part of many persons to enjoy the relation of sisterhood which now subsisted under this prohibitive law. That expression, if it had any real meaning, amounted to this—that a woman might, in the existing state of the law, reside in the house of her married sister under circumstances in which she could not do so if the present law were repealed—that, in fact, the law threw a protection around her virtue and her character which enabled her, without rendering herself liable either to the reality or the suspicion of offence, to be a member of her sister's husband's household. This, however, he entirely denied. It was monstrous to place persons in such a position of temptation, and to draw a line between modesty and immodesty so narrow as that; and, even if they maintained this law, it would be impossible for a young man and a young woman to reside together in the same house, where there were no other persons, without giving rise to scandal and suspicion; and, indeed, no woman with any regard for her own character would do such a thing. A painful case that came within his own knowledge confirmed this opinion. With that desire for sisterhood which had been referred to in that discussion, a sister did reside in her sister's husband's house, not after the death, but during the illness of the wife, and, unfortunately, the result was, not that she was invested with the sacred character of sisterhood, but a lamentable scandal ensued, and irretrievable ruin fell upon persons who, until that period, had been reputed to be irreproachable and amiable in their conduct. Now, if temptations existed it was not the part of wise legislators to increase them. In this matter it was their business to treat human nature as they found it, and not seek to regulate by positive law what must depend on the power of a man to resist temptation, and upon the different shades of character, some of which were influenced by one set of circumstances and others by another. It was said by the opponents of this Bill that people violated this prohibition, as they violated other laws. Yes, but there was a wide differ- 269 ence between the violation of this and that of other laws. When a man violated other laws he did it with the full consciousness of his guilt, and his conscience anticipated the condign sentence of a court of justice on his crime; whereas, in this case, where they had chosen, on the strength of ecclesiastical canons, glosses, and learned interpretations, to force on the consciences of men a law with which their own instincts did not agree, men violated it with the acquittal of their own consciences, which also upheld them in braving the stigma and censures of society; and, in fact, the constant discussion and agitation of a law which they saw to be so often set at nought, and which had so many Members of the Legislature in favour of it and so many against it, led men to think it an unjust and unfair restriction, and drove them into resistance to it and into a course of action the results of which wore frequently most lamentable. Seeing, therefore, that the people of this country were far from unanimous on this question, and that it would be unjust upon religious grounds to force a rule of action on men who did not themselves recognise it as binding upon them—seeing that there was nothing to support the present law, either in the conscience or moral instincts of men or upon the principles of expediency—and seeing, also, that the Legislature within the last thirty years had given validity and sanction to these very marriages which it was now sought to legalise—under these circumstances he felt that there was nothing left for them to do but to repeal the existing prohibition, and to remove from the necks of their fellow-subjects a yoke which they had found to be intolerable, and to leave every man in the enjoyment of that liberty which, under the Word of God and the dictates of his own conscience, he believed himself to possess, without seeking to fetter that liberty by imposing upon him their own peculiar convictions.
MR. GLADSTONESir, my hon. Friend concluded his speech with the enunciation of a principle in which I for one am disposed cordially to agree—namely, that we ought to be on our guard against making our own peculiar convictions a compulsory basis of action for others. But the whole, or at least a large part, of the question at issue in this debate is this:—Whether those who support this Bill are justified in stamping the principles embodied in our marriage law which is now sought to be shaken, with the name 270 of "peculiar convictions." I ask, are those principles mere individual opinions—mere constructions of the Divine law which have been left to be debated as open questions, with no clear and determining evidence to guide us to the path in which we should walk, and which this House is competent to set aside? My hon. and learned Friend the Member for Plymouth (Mr. R. Palmer) in his admirable—I might almost say incomparable—speech laboured to show, and did show, with a success which my hon. Friend who has just sat down did not attempt to deny, that the principles advanced, and the arguments used in support of this Bill, if they are good for anything, are good for infinitely more than the purpose for which they are urged. My hon. and learned Friend proved, most conclusively, I think, that every word that can be said against the application of the Divine law to the prohibition now proposed to be removed, and against the construction which by the almost universal consent of Christendom has been put upon that Divine law, might with equal justice be urged in support of polygamy; and I would appeal to the hon. Member for North Warwickshire (Mr. Spooner), and ask him to point out in what particular the arguments against polygamy were one bit more conclusive than those which could be urged against the marriages which the measure before them had for its object to legalise? The only answer which the hon. Gentleman the Member for Kidderminster had given to the argument on that point of his hon. and learned Friend the Member for Plymouth was this—that my hon. and learned Friend in dealing with the subject of polygamy as he had done, had ventured upon dangerous ground, and opened up topics which had much better be avoided. But why does he not see that this is the very objection taken to the whole of this movement and to the Bill now before us—namely, that by assenting to this measure we should open a floodgate which no earthly power can shut, and introduce principles of which we cannot limit the application. My hon. and learned Friend asked the hon. Member for North Warwickshire (Mr. Spooner) what Scripture argument against polygamy can be adduced that is more conclusive than those that have been used in this case; and the hon. Gentleman cannot answer that question. No more distinct testimony on any one question relating to the law of marriage can be cited from Divine revelation than that which 271 applies to the subject under discussion. I am sure that my right hon. Friend and colleague (Sir W. Heathcote) was entirely misunderstood when he was represented as having spoken of this as a doubtful question, whether or not these marriages are prohibited by the law of God. What the House will, I hope, recollect is this, that in discussing this question, relating to laws lying at the very foundation of society, manners, and morals, and which have received the universal assent of Christendom, we are not reduced to such slender means of ascertaining the truth as the mere exercise of our own private understandings, divested even of the assistance which they would have derived from a knowledge of the original language of Scripture. I confess that it causes me little less than astonishment to find hon. Gentlemen say that they have opened the Bible and read the 18th chapter of Leviticus, or, as my hon. and learned Friend the Attorney General has said, not that he has read the entire chapter, but carefully read and considered the 18th verse of the 18th section of Leviticus, and on the basis of that extended study not reaching beyond the translation placed in his hands, and therefore in which he is entirely at the mercy of the translators, and consequently at the mercy of authorities—he asserts that he has arrived at a state of comfortable conviction that that verse in question does not prohibit, but rather seems by implication to permit marriage with a deceased wife's sister. I hope it is not necessary to mention to the House that it is not in the 18th verse of the 18th chapter of Leviticus that any argument can be founded; I warn those who use that verse, believing that it gives sanction to these marriages, that in quoting that passage they will find themselves bound and nailed to sanction polygamy. It is not possible for any man to draw a conclusion in favour of marriage with a wife's sister after her decease without being open to reply that it precisely and to the same extent justifies polygamy, with the exception of the case of marrying the wife's sister. But the ease of the 18th verse of the 18th chapter of Leviticus is clear. It does not rest on mere inference or analogy. It is a universal prohibition, contained in an early verse of the chapter, which forbids marriage with those who are near of kin, and the only question we are entitled to raise is, what is the meaning of the words "near of kin?" Where are you to seek for their meaning? In the chap- 272 ter itself; and I defy any man to give them a construction which does not make the case of marriage with a wife's sister come within the scope of the prohibition "near of kin." But my hon. Friend who has just sat down (Mr. Lowe) protests against the use of this language to bind the consciences of men as part of a permanent revelation, and says that he considers the question before the House to be one with respect to which each individual is entitled to be guided solely by the dictates of his own conscience. Now let it be recollected that it is not open to hon. Gentlemen to deal with these prohibitions as part of a narrow ceremonial law, intended for the exclusive constraint of the Jews; because the chapter itself bears distinct evidence against that supposition, and shows that because the Canaanites had broken these precepts, God drove them out of the land. The Jews, too, were warned that if they broke them they would be visited with similar judgments. Am I, then, to be told that this was a law merely for the Jews; or that, upon the moral ground, it is not binding on Christians? Can it be possible for a moment to deny that a moral law, which the heathens were punished for violating, was meant by the Almighty to be universally applicable, and by no means to be restrained in its operation within the narrow circle of the Jewish law? My hon. Friend says, however, that conscience is a sufficient guide. Does he mean by "conscience" the general and collective conscience of mankind, or the private conscience of each individual? If the latter be the sense in which the hon. Gentleman uses the word, does he not see that his argument, if it be of any value, might be urged with equal force for the overthrow of our whole ecclesiastical legislation, as of the limited portion of that legislation with which the Bill proposes to deal? Why are we to legislate at all in matters ecclesiastical? Why should we have any rules on such subjects if every man carries in his own breast a monitor so perfect as to be a safe guide for him to follow, and safe also for his neighbours that he should follow. On the other hand, if he used the words in the former sense—if he means the collective conscience of mankind, I answer that that is a part of my case, and contend that the; law as it stands is the embodiment of the collective conscience of mankind, and represents what may be fairly called, not only the general, but almost the universal 273 voice and judgment of Christendom. In the whole of the eastern nations of Christendom which, in consequence of the absence of all great political changes, adhered more closely to primitive usages than the western countries, the prohibition contained in the 18th chapter of Leviticus was in force with a generality and a vigour which admitted of no violation or evasion of the command. And what, may I ask, was the case with the countries under the authority of the Holy See? Was the marriage of the husband with the deceased wife's sister permitted in those countries? No. For 1,500 years after the Christian era, you will not find a case in which these marriages were dispensed, and I believe in the infamous period of Alexander VI. the first case of a dispensation in this degree of affinity occurred. And what has happened within the last 100 years? I have seen with astonishment in the papers circulated among us to-day that in no other country in the world, excepting in three cantons and one half-canton in Switzerland, are these marriages prohibited. It is impossible for any statement to be further from the truth. It overlooks the fact that in the whole of that portion of Christendom which represents more nearly by far than the West the primitive practice of the Church, having been less influenced by political motives for change, these prohibitions were in force without exception, and with such rigour that there is no escape from them; that in Western Christendom, in that portion which is in obedience to the Roman see, they are permitted as exceptions to the general law, so that even their very permission witnesses to the general prohibition. Why have the Roman Catholic Members of this House been uniformly opposed to any measure of the character of that under discussion? Because motives of policy have never induced the Pope to afford any facility in Ireland for such marriages as are now sought to be legalised; and if a course less strict in that respect has been adopted by the Holy See in England, it has been in order to obviate the evils which would arise from mixed marriages, the natural consequence of the smallness of the Roman Catholic population in this country. Besides, though thus permitted, it is in conjunction with other exceptions, which we ourselves admit to be cases of consanguinity and incest. Therefore the law of the Roman Catholic Church is against these marriages, and if you tell 274 me that the Pope has authority to dispense with them, I say what is that authority good for that you should assume it to be a principle of action? Then, with respect to Divine law, I must show the House that there is something better for us to proceed upon than our own individual convictions as to the construction of any particular text in a chapter translated from the Hebrew, however strong those convictions may be. Nothing can be more conclusive to my mind than that the interpretation of the Bible in this matter cannot be fairly questioned. When we are told it is a matter of doubt, it appears to me to be so only in the sense that everything is a matter of doubt to those who may have an interest in disputing it, or who may desire to do so. Any man has a right to say, "It is a matter of doubt because I doubt; and as I doubt it, I am entitled to call it a doubtful matter;" but the great principles of Christianity embodied in the common law are principles which may be called in question by the licentiousness of individual minds. Here I speak, of course, of intellectual licence. I do not desire to cast any reproach which may not be just on those who differ from me on this subject, or on those who have contracted these marriages. Private opinion may question the authority of the universal voice of Christians on this subject, but it will question it exactly on the same grounds that it may question the whole results that Christianity has brought to mankind, and everything that Christianity has elevated out of the region of private opinion, and made part of the common property and intelligence of mankind, as well as everything that is embodied in our institutions and embodied in our laws. All this you may have called in question, and may be summoned to surrender in deference to the supposed rights of individual opinion. My hon. Friend evidently regards it as a matter of religious liberty that these marriages, which he admits it may be improper, or at least inexpedient to contract, should be legalised, and he says you are not entitled to erect your own convictions into a law for other people. Now, I ask, is this really a question of religious liberty? And if it be so alleged, is it not time we should come to some understanding as to what religious liberty means? I venture to give an instance of what I conceive to be religious liberty. I will take, for example, the case of a highly estimable and esteemed body of men, who do not deem 275 it necessary to conform to the sacrament of baptism. Nothing can be more distinct than our conviction as to this; but we do not compel those who differ from us to be baptised, but we say to them that, before they are admitted as members of the Church of England, they must be baptised, or they cannot participate in its benefits and privileges. In the present instance, it is not merely that there is a distinct body of men asking that the law, may be made applicable to their case, but this is a proposition, so far as the Bill is concerned, for the establishment of an anarchy in the Church of England and the country at large. When it is said, that there shall be in the Church of England a law with respect to these marriages, then I am told that this is a question of religious liberty. By applying this fully, what would he its result? Why, that every principle and ordinance of the Church of England may be modified and absolutely done away with under the pretence of religious liberty. To illustrate what I mean, I may cite a passage from a letter of Lady Wortley Montague, in which, speaking of the lax state of religion in her time, both among the clergy and the laity, she says—"It is generally considered that they have taken the word 'not' out of the Commandments, and inserted it in the Creed." I will suppose that my hon. Friend had a proposition not to take the word "not" out of the Commandments, but that it should be inserted in some part of the Creed, or that the' Creed should or should not be read as might be thought fit—am I to be told that this is a question of religious liberty? and should I, on this principle, be authorised to say to the clergy, that whether they did or did not read the Creed, that they should go equally unquestioned? Why do we require that the Creed shall be read? Because we believe it to express the truths of Christianity, and we maintain this law because we believe it to be a part of the Divine immutable law. If the hon. Member assumes that he has a right to introduce into the Church of England an anarchy, or a principle of indifference for that which is strictly commanded as the basis of Divine law, I say the principle on which he proceeds is good for abolishing every restrictive law applicable to the creed or discipline of the Church of England. The demand here made is not for persons wishing I to be relieved, but for the alteration of I Church and State, and in deference to the scruples of a small minority we are asked 276 to change a position which has been clearly maintained by the voice of Christendom through all time. The Attorney General, in the early part of the debate on this Bill, delivered one of the most effective speeches that have been made on it. He spoke of the social character of English women, and feeling that he laboured under the disadvantage of having to contend against the admitted fact, that the women of England were opposed to the contemplated alteration in the law, he did his utmost to do away with the impression which that fact was calculated to make. My hon. and learned Friend expressed in language the most glowing his belief, that although the women of England might be opposed to the measure, looking upon it as wives, yet that, when they regarded it as mothers, desirous that their orphan children should, in the event of their deaths, he committed to the charge of tender and careful hands, they could not fail to alter the opinions which, with reference to the Bill, they now entertained. I will confess that I was led by the pathos and fervour of my hon. and learned Friend's eloquence to concur for a moment in that view of the question. When, however, I recovered from the delusion in which he leaves us when we listen to him, and came to ask myself in cold blood what was the meaning and value of a lecture from the Attorney General to English wives and mothers—they who have hitherto so well discharged the duties that devolve upon them—on the view which they ought to take of their position, I must confess, that which originally appeared beautiful and touching, entirely changed its character, and even wore the semblance of the ludicrous. For the House of Commons, though led by the Attorney General, to instruct the women of England on their duties as mothers and wives, which they have not sufficiently considered, or to teach them their maternal obligations, which they have so incompetently filled, appears to me to be about as conformable to prudence and good sense as if the women of England were to send messages to us when we were engaged in discussing bills of exchange or a tax on bankers' checks, to tell us that we had not sufficiently estimated the circumstances of the case on which we were about to legislate, and to point out to us the mode in which our duties ought to be performed. For my own part, I must say, that to the feelings of the wives and mothers of England upon the subject under our consideration, 277 I thought it expedient that no small importance should be attached. So much, however, has been said on this part of the question that I will not now trouble the House with any further discussion on it. There is, however, one demand which I feel authorised to make on the hon. Member for North Lancashire, the hon. Member for Kidderminster, and on all who are prepared to vote with them. They come and ask us for this Bill; they speak of the expediency of altering this law, of the advantages that will attend the contraction of these marriages, and they contest the construction of the Divine laws on principles which would make everything doubtful; but there is one thing which not a man among them has attempted to do, and that is, to state a clear, definite, and intelligent principle on which they proceed—a principle which they can state in language which we can understand, and from which we may be able to know, not why they ask for this Bill—for we know they do so because some persons are galled by the present state of the law—but what we desire to know is, when that which is now asked for is granted, how are we to stand with regard to that which remains? I know that when there are demands on justice, which are not inextricably mixed up with others, I have no right to say how far, when this begins, will it go?—but, supposing that it were proposed to be provided, that no Earl should sit in the House of Peers, we should be justified in asking what you intended to do with Viscounts, Dukes, and Marquesses; and, supposing that in 1829 you had sought to emancipate the Roman Catholics of Leinster and Ulster, we should have been justified in asking what you intended to do with the Roman Catholics of Munster and Connaught? And I think that I am now justified in asking why does the hon. Member propose this Bill and no other, and what is to be the Bill of next year? At present we have a law which goes up to a certain point, and stops; the prohibitions of which are intelligible; affinity is considered the same as consanguinity for the purpose of these prohibitions, which are carried up to the third degree; we have an answer to those who complain of these prohibitions, by showing that the rule proceeds on general grounds and is uniform in its application. But what does the hon. Member now propose? He makes an arbitrary selection of two out of thirty cases, and leaves them—having satisfied, for the moment, the appetite for 278 change—until he finds it convenient to return to the charge. Is there anything in these two cases which will leave the remaining twenty-eight safe? We are entitled to know something on this subject, for this is not merely a question of raising the income tax to 6, 7, or 8 per cent, or even probably some higher point than that; but this Bill affects our social arrangements—and there is nothing that has cost mankind a greater struggle—and the best social result of Christianity is the perfect equality of man and woman as to the; facility of contracting marriage. This Bill meddles for the first time with that equality. The hon. Member proposes to authorise the marriage of a man with his deceased wife's sister, and therefore with his wife's niece; he legislates for the man, but he does not propose, on the other hand, that the aunt may marry her husband's nephew. Is this a small change? When was woman first elevated to an equality with her stronger companion? Never, till the Gospel came into the world. It was the slow but certain, and, I thank God, hitherto unshaken result of Christianity, not considered as a system of dogmas, but as one of social influence, to establish a perfect equality between man and woman as far as the marriage tie is concerned. The hon. Member now proposes to change this fundamental law and principle, and I have a right to ask him how far he intends to proceed, and whether he intends to have one marriage code for men and another for women? He proposes to legalise marriage with a wife's sister, which is in the second degree, and with the niece, which is in the third degree—he is going to legalise marriages in the second degree, but still leaves in full operation the prohibitions in the third degree; but on what principle, I ask, are you to prohibit those who stand in the third degree of affinity from marrying after having legalised a marriage in the second degree? The hon. Member for Kidderminster had an answer for this which I think involves him in still greater difficulties; for he did not scruple to say that he draws a distinction between affinity and consanguinity, and that, if it were needed, he was ready to throw over affinity altogether. Sometimes hon. Gentlemen tell us that they consider affinity one thing and consanguinity another, but this points to a vague succession of indeterminate changes dependent on nothing but agitation, and I will not say passion, but licence of opinion, which 279 threatens to subvert the system of restraints in marriages—which I have stated to be the result of the proclamation of the Gospel among men. This Bill does not stand on popularity, and nothing could be more wretched if, while we were pulling down this fabric, which it has taken so many ages to construct, and mutilating its proportions, we should be told that, because statistics have been looked into from which it appears that there were not so many marriages of this kind as there were of another, therefore we will legalise the marriages of which there have been 100, hut prohibit those of which there have been only eighty; and I do not think that such a course would be satisfactory to the country. But the hon. Member does not proceed even on this principle, for, while he legalises marriage with a wife's sister—of which I grant there appears from statistics to have been more than of the other kinds—he also legalises marriage with a wife's niece. I have seen the result of an inquiry which I believe to be trustworthy, and which has been made in a most approved manner over a number of parishes, embracing all classes in various circumstances, and including 1,000,000 persons. From this inquiry it appears that there were 326 marriages of an irregular kind; of these there were marriages with a deceased wife's sister 144. But next came the bigamists and polygamists; of these there were seventy-five. Next came marriages with a brother's wife, of which there were forty-six; and most singularly there came, next to these, marriages with a niece in blood, twenty-four, but with a wife's niece there were only seventeen marriages. I want to know, then, on what principle the hon. Gentleman has selected the case of a wife's niece? He has not done so with reference to the principle of affinity, he has not done so on the ground of public opinion, for there were only seventeen of these cases in this inquiry, while the instances were more numerous of those kinds of marriages which the hon. Member does not propose to legalize. I am persuaded that my hon. Friend, from all I have perceived of him in this House, is too honourable and ingenuous a man to come with a covert scheme, which he is not prepared to avow. I have stated that we have a definite system on the subject which requires it, if any subject does—and I ask him, what is his view with reference to this, and where are we to stop—and I am certain he will 280 not shrink from answering me, but will declare the principle on which he intends to proceed, and the basis on which he thinks the law ought to rest. The hon. Member for Kidderminster speaks of the collective conscience of mankind—I interpret him in the best sense, though I think that he meant the conscience of each individual—and he maintains that this would be a proper and sufficient guide from age to age for the course of legislation on this question. God forbid that I should say a word lightly of conscience, which remains an index of the will of God even among those who have not felt as we have the fuller and blessed light of revelation. But are we who have realised the results of Christianity to go back from Christianity to conscience? This, which is sometimes called the light of conscience, sometimes the law of nature, and which there are no two ages or countries in which it has ever been alike, has been of gradual growth and training from the infancy of mankind until it has reached the highest I level on which Christianity has been placed; and, if we are asked to go back from that I level, I ask, where are we to stop? And I say that, while I have a superior, I should not be content to adopt an inferior standard. The law of the land, not in an arbitrary manner, but on principles based on Divine revelation, has adopted our present prohibitions in marriage; and I oppose the present measure because I see that it is part of a system which, I do not say is intended to be so, but which in its working is certain to be most pernicious to those results which the Christian religion has wrought out for mankind; and I must say, whatever reluctance I may feel in denying any claims brought forward on the ground of religious liberty, that I will most emphatically say "no" to the measure now before the House.
§ MR. SPOONERsaid, that, as he had been directly appealed to by the right hon. Gentleman who had just resumed his seat, and by the hon. and learned Member for Plymouth, he felt called upon to trespass for a short time upon the attention of the House. The right hon. Gentleman had asked upon what principle the supporters of the Bill were proceeding, and at what point in carrying out their views with respect to the subject of marriage they proposed to stop. His answer to the latter question was, that he, for one, was prepared to go in the direction of the contemplated legislation only so far as, ac- 281 cording to his own conscientious belief, the Bible commanded him to go. He knew the hon. and learned Member would desire him to surrender his judgment to the canon law; but he (Mr. Spooner) claimed for himself and for every Christian the right of private judgment. In reply to the former question, he could only say that he had searched the chapter of Leviticus to which, in the course of that debate, such frequent allusion had been made; that he had consulted with respect to its interpretation men in whose judgment he placed the utmost confidence; and that he had arrived at the conclusion that the marriage of a husband with a deceased wife's sister was not only not prohibited, but was even sanctioned by the law of God. His right hon. Friend asked him whether he would deal differently with men and with women, and establish two marriage codes; and his answer was, that he would establish no such general distinction, but that he found that this particular case had been dealt with separately in Leviticus, and that a special exception had been made in favour of a marriage with a deceased wife's sister. He admitted that marriages within certain degrees of affinity and consanguinity were prohibited; but in the midst of these they find an exception as to the wife's sister. "To vex her, in her lifetime," were the words, and on this he could place no other construction than that a man was permitted to marry his deceased wife's sister. His right hon. Friend challenged him to produce any scriptural proof against polygamy, if the texts by which polygamy was generally supposed to be prohibited were construed in the same way as it was purposed by the supporters of the measure to construe the text bearing on the subject then under the consideration of the House. But it should be remembered that at the time Leviticus was written polygamy was permitted and practised, as was evident from a passage in Deuteronomy, in which a man having two wives was directed to treat them both with equal favour, and to divide his goods equally among their children. No text in Leviticus, therefore, could have any reference to a prohibition of polygamy, which was at the time allowed. If he were asked where he found that polygamy was prohibited, he would answer that his arguments against polygamy were taken from the tenor of various passages in the Gospels, and more especially from that passage in which it was said of the marriage tie, that "a man 282 must leave his father and his mother, and that they twain shall be as one flesh." His right hon. Friend the Member for the University of Dublin (Mr. Napier) had told them that all Ireland was opposed to that measure; but he (Mr. Spooner) had seen not less than 250 letters from Irish clergymen, in all of which the writers stated it as their opinion that those marriages were not prohibited in Scripture, and that it was advisable to alter the present law upon the subject. And then he would ask whether there had been a single petition presented from Ireland against the Bill? The people of Scotland were also stated to be decidedly opposed to the proposed change. But no Scotchman could be considered a higher authority upon such a subject than Dr. Chalmers, who had given his opinion in favour of that change. His right hon. Friend had alluded to the case of a marriage with a deceased wife's niece; and he (Mr. Spooner) should say that he objected to such a marriage, because he believed such marriages to be included in the prohibition of marriages within the degrees of affinity, and not to be excepted as the marriage of the deceased wife's sister clearly is. It was proposed that Scotland should be exempted from the operation of the Bill; but he confessed that he would extend it to that country, because he thought that if it was good for England it must be good for Scotland also. He denied that that question could be decided by an appeal to the canons of the Church. Many of those canons were completely obsolete; the clergy were only bound by those canons which they signed; and none of the canons which they signed had any reference to that subject. Not less than 360 clergymen of the metropolis and its vicinity had expressed themselves favourable to the proposed alteration of the law on the same grounds on which he (Mr. Spooner) supported it—namely, that it was not forbidden by the law of God, and that the present state of our legislation upon the subject was productive of great immorality, and more particularly among the smaller tradesmen of this country.
§ MR. COBDENsaid, that on entering the House that day it had not been his intention to have said a word upon that question; but the majority of those hon. Members who were in favour of the Bill must have found their logical good sense so outraged by the splendid fallacies of the right hon. Gentleman the Member for the Uni- 283 versity of Oxford (Mr. Gladstone), that he could not, for their Bakes, abstain from offering a few observations to the House in reply to the right hon. Gentleman. They had heard from the right hon. Gentleman what was certainly the very novel argument, that if the number of violations of the law was to be taken as a reason for its repeal, they might as well remove the prohibition against bigamy as the prohibition against a marriage with a deceased wife's sister, because statistics might be produced to show that the law against bigamy was violated in this country as much as this particular prohibition. But the right hon. Gentleman, in that passage of his splendid and declamatory speech, had not done justice to those who argued in favour of a repeal of the existing marriage law; for the argument they used with reference to this question of the non-observance of the law was not founded on the fact that there were parties in this country who evaded or broke the law, but that that violation was not visited with the censure of public opinion. When the right hon. Gentleman stated that seventeen individuals had been convicted of bigamy, did he mean to tell the House that the neighbours of those individuals approved of that violation of the criminal law? They had been guilty of a felony; but would the right hon. Gentleman undertake to bring in a Bill which would visit with the penalties of felony any Englishman or Englishwoman who had contracted one of these marriages in Germany, where they were allowed by the law? The right hon. Gentleman knew that public opinion would revolt against any such measure. The noble Lord at the head of the Government had been called to account for having stated, on a former occasion, that the law upon that subject was at present evaded, and that public opinion sanctioned the evasion. Since the noble Lord had made that statement, he (Mr. Cobden) had received the most conclusive proof of the tolerance with which public opinion regarded that evasion. A gentleman largely engaged in manufactures in the neighbourhood of Leeds had called on him after that debate and told him that he had, for the sake of his young children, married his deceased wife's sister in Germany; that when he returned home, the clergyman of his parish, who was of the High Church school, had refused to visit him, or to allow him to partake of the sacrament; and that the consequence had been that he had been called 284 upon and visited by neighbours of his for many miles around who had never visited him before, and that he had left the church in his immediate neighbourhood and gone to another, where he was treated in the same way as the other members of the congregation. He (Mr. Cobden) had received a letter from Mr. Arrowsmith—he mentioned the name with that gentleman's permission—who was at present, for the second time, mayor of Bolton, and who had informed him that he had married his wife's sister without having suffered in the estimation of his friends. He knew a Member of that House, whose name he had not obtained leave to mention, who had contracted a similar marriage, and who had, nevertheless, been returned by his neighbours as their representative in Parliament. Could any fair man adduce the case of a bigamist as an argument against a change like that which was then under the consideration of the House, and which was so largely sanctioned by public opinion? The right hon. Gentleman had said that the collective conscience of the world was opposed to those marriages, and would not allow the right of individual judgment upon the question. But the hon. and learned Gentleman the Attorney General, in his masterly speech upon the subject—a speech which ought to have for ever settled the question, if it were to be decided on fair argument, and not with any reference to mere sectarian prejudices—the hon. and learned Gentleman had shown that in the United States of America, and in nearly every country on the Continent of Europe, the civil law tolerated those marriages. To meet that argument the right hon. Gentleman went back to the canon law of three or four centuries ago, as if the ecclesiastical law of that period was to be binding on Europe at the present day. Why, when he (Mr. Cobden) considered the state of public opinion out of doors at the present moment, and found that the House was spending whole days in the attempt at splitting hairs in this ecclesiastical casuistry, worthy of the dark ages, he declared he thought they might be held to be almost rivalling the conduct of the inhabitants of Constantinople, who wasted their time in similar disputes, when the Turks were thundering at their gates, and the Byzantine Empire was tottering to its fall. The right hon. Gentleman had assumed that by passing that measure they would introduce anarchy into the Church of England, in whose 285 name he had undertaken to speak. But what were the facts of the case? He (Mr. Cobden) believed that one-half of the clergymen of the Church of England in this metropolis were in favour of the Bill; and he knew that it received the approval of a large portion of the clergy in the north of England and in the manufacturing districts, not exclusively belonging to the Low Church party. What right, then, had the right hon. Gentleman to assume that he was speaking in behalf of the whole Church? Did he suppose that the eminent men who were in favour of this Bill wished to bring anarchy into the Church of England, and to produce all those dire results which he asserted to be the object of those who supported it? The right hon. Gentleman had also assumed, moreover, that the women of England disapproved of the Bill. Now, he (Mr. Cobden) admitted that if it could be shown that the instincts of the women of this country were opposed to the measure, that would form a very cogent argument against the propriety of its adoption. But he denied the fact in question; and he would remind the House that one of the reasons why the Bill was wanted was, that so many of the women of England had effected those unions, and that many were desirous of effecting them; so that it was, in reality, as much in the interest of the women as of the men of England, that the measure was brought forward. The right hon. Gentleman had, in the course of his address, put on the passage in the 18th chapter of Leviticus the interpretation that it was the foundation of the present law, as if that argument had not been refuted over and over again. He (Mr. Cobden) would appeal to the common sense of the House whether, in attempting to place the proper construction upon the Jewish law, they could take a better course than to ascertain what was the view taken of it by the Jews themselves? He found that Dr, Adler, the Chief Rabbi in London, when asked by the Commissioners who had inquired into that subject, what interpretation the Jews put on the law of Moses on this subject, replied that the Jews were so far from having ever considered the passage in Leviticus to be a bar to these marriages, that they had always regarded them as meritorious, and that in countries in which the law did not prohibit them they had allowed them to take place earlier than any other marriages after the decease of a wife. Was it likely that the 286 Jews, for the last 3,000 years, had been in ignorance of the meaning of their law? He (Mr. Cobden) should observe that he supported that measure chiefly in the interest, not of the men and women, but of the children. He had known instances in which wives themselves on their deathbeds expressed their desire that their husbands, if they married again, should marry their sisters, and should thus give their children the best, if not the only, chance of having tender and affectionate stepmothers; and the preamble of the Bill by which they were prohibited ought to run thus—"Whereas it is expedient to prevent, as far as the law can do it, the possibility of orphan children having an affectionate and loving stepmother, be it enacted that a widower shall not be allowed to marry his deceased wife's sister."
§ MR. J. G. PHILLIMORE,who rose amidst loud cries for a division, said, that after the speeches of the hon. and learned Gentleman the Member for Plymouth, and the right hon. Gentleman the Member for the University of Oxford, he could have no hesitation in voting in favour of the Bill, because he felt that their arguments went to the destruction of the right of private judgment, and to the establishment of the doctrine of an infallible Church.
§ MR. HEYWOOD,in reply, said, he was quite willing to tell the right hon. Gentleman the principle upon which the Bill was founded. It was founded upon the principle of expediency, and was introduced to accommodate the prevailing public opinion of the day. A case had been brought under his notice which induced him to wish for the retention of the clause relating to a wife's niece. A clergyman of Buckinghamshire married twenty-five years ago, and lost his wife at the end of a year. He remained a widower for twenty years, and then married his deceased wife's niece, upon which he was suspended by the Bishop of Oxford. He thought this was a case of hardship and of ecclesiastical tyranny.
§ Question put.
§ The House divided:—The numbers reported by the Tellers were, Ayes 165; Noes 157: Majority 8.
§ The House being informed by Stephen Edward De Vere, esquire (who voted with the Majority), that he was not in the House when the Question was put;
§ Resolved—That the Vote of Stephen Edward De Vere, esquire, be disallowed.
§ Ayes 164; Noes 157: Majority 7.
| List of the AYES. | |
| Acton, J. | Hamilton, Lord C. |
| Adair, H. E. | Hankey, T. |
| Antrobus, E. | Harcourt, G. G. |
| Archdall, Capt. M. | Headlam, T. E. |
| Atherton, W. | Heathcote, Sir G. J. |
| Bagshaw, J. | Heathcote, G. H. |
| Bailey, C. | Heneage, G. F. |
| Baines, rt. hon. M. T. | Herbert, H. A. |
| Ball, E. | Heyworth, L. |
| Barnes, T. | Howard, hon. C. W. G. |
| Bass, M. T. | Hudson, G. |
| Bell, J. | Hutchins, E. J. |
| Biggs, W. | Ingham, R. |
| Bland, L. H. | Jackson, W. |
| Bonham-Carter, J. | Johnstone, Sir J. |
| Bright, J. | Keating, H. S. |
| Brocklehurst, J. | Kershaw, J. |
| Brotherton, J. | King, hon. P. J. L. |
| Brown, H. | Kirk, W. |
| Brown, W. | Langston, J. H. |
| Buckley, Gen. | Lascelles, hon. E. |
| Burke, Sir T. J. | Lee, W. |
| Butler, C. S. | Lemon, Sir C. |
| Butt, I. | Locke, J. |
| Byng, hon. G. H. C. | Lowe, R. |
| Caulfield, Col. J. M. | Mackinnon, W. A. |
| Chambers, T. | MacGregor, Jas. |
| Chaplin, W. J. | Marjoribanks, D. C. |
| Cheetham, J. | Martin, J. |
| Cobden, R. | Milligan, R. |
| Cockburn, Sir A. J. E. | Milnes, R. M. |
| Collier, R. P. | Michell, W. |
| Colvile, C. R. | Mitchell, T. A. |
| Coote, Sir C. H. | Morris, D. |
| Cotton, hon. W. H. S. | Mulgrave, Earl of |
| Crossley, F. | Oliveira, B. |
| Davies, D. A. S. | Owen, Sir J. |
| Davies, J. L. | Peacocke, G. M. W. |
| Denison, E. | Pechell, Sir G. B. |
| Dillwyn, L. L. | Pellatt, A. |
| Duncombe, T. | Phillimore, J. G. |
| Dungarvan, Visct. | Phinn, T. |
| Ebrington, Visct. | Pollard-Urquhart, W. |
| Ellice, rt. hon. E. | Power, N. |
| Elliot, hon. J. E. | Price, Sir R. |
| Ewart, J. C. | Price, W. P. |
| Feilden, M. J. | Pugh, D. |
| Fenwick, H. | Ramsden, Sir J. W. |
| Ferguson, Sir R. | Reed, J. H. |
| Ferguson, J. | Repton, G. W. J. |
| Filmer, Sir E. | Ricardo, O. |
| Fitzgerald, W. R. S. | Rice, E. R. |
| Foley, J. H. H. | Robartes, T. J. A. |
| Forster, C. | Robertson, P. F. |
| Forster, J. | Rolt, P. |
| Fox, W. J. | Rumbold, C. E. |
| French, F. | Russell, F. C. H. |
| Galway, Visct. | Scholefield, W. |
| Glyn, G. C. | Scobell, Capt. |
| Goddard, A. L. | Seymour, W. D. |
| Goderich, Vict. | Shafto, R. D. |
| Goodman, Sir G. | Shee, W. |
| Greene, J. | Shelburne, Earl of |
| Gregson, S. | Shelley, Sir J. V. |
| Grenfell, C. W. | Smith, J. B. |
| Grey, R. W. | Smith, M. T. |
| Grosvenor, Lord R. | Smith, A. |
| Grosvenor, Earl | Smyth, J. G. |
| Gurney, J. H. | Somerville, rt. hn. Sir W. |
| Hadfield, G. | Stanley, Lord |
| Hall, Gen. | Strickland, Sir G. |
| Strutt, rt. hon. E. | Wilkinson, W. A. |
| Talbot, C. R. M. | Willcox, B. M'G. |
| Thornely, T. | Williams, W. |
| Tollemache, J. | Wilson, J. |
| Vane, Lord H. | Woodd, B. T. |
| Villiers, rt. hon. C. P. | Wrightson, W. B. |
| Vivian, H. H. | Wyndham, W. |
| Walmsley, Sir J. | Wynn, Sir W. W. |
| Waterpark, Lord | Wyvill, M. |
| M. Watkins, Col. L. | |
| Watson, W. H. | TELLERS. |
| Whitbread, S. | Heywood, J. |
| Wickham, H. W. | Spooner, R. |
| List of the NOES. | |
| Acland, Sir T. D. | Follett, B. S. |
| Adderley, C. B. | Forester, rt. hon. Col. |
| Annesley, Earl of | Freestun, Col. |
| Bailey, Sir J. | Fuller, A. E. |
| Baird, J. | George, J. |
| Barrow, W. H. | Gladstone, rt. hon. W. |
| Bateson, T. | Gladstone, Capt. |
| Beckett, W. | Gooch, Sir E. S. |
| Bentinck, G. W. P. | Gordon, hon. A. |
| Bernard, Visct. | Graham, Lord M. W. |
| Blackburn, P. | Greaves, E. |
| Blandford, Marq. of | Greenall, G. |
| Boldero, Col. | Greene, T. |
| Booth, Sir R. G. | Greville, Col. F. |
| Bouverie, rt. hon. E. P. | Grogan, E. |
| Bramston, T. W. | Guinness, R. S. |
| Bruce, C. L. C. | Gwyn, H. |
| Buck, L. W. | Hale, R. B. |
| Buck, G. S. | Hall, Sir B. |
| Bunbury, W. B. M'C. | Hanbury, hon. C. S. B. |
| Burrell, Sir C. M. | Hastie, Arch. |
| Butt, G. M. | Hayes, Sir E. |
| Cairns, H. M'C. | Henchy, D. O'C. |
| Cecil, Lord R. | Henley, rt. hon. J. W. |
| Christopher, rt. hn. R. A. | Higgins, G. G. O. |
| Cocks, T. S. | Holford, R. S. |
| Cole, hon. H. A. | Hotham, Lord |
| Coles, H. B. | Hughes, W. B. |
| Conolly, T. | Irton, S. |
| Cowan, C. | Jones, Capt. |
| Dalkeith, Earl of | Kendall, N. |
| Dalrymple, Visct. | King, J. K. |
| Davie, Sir H. R. F. | Kinnaird, hon. A. F. |
| Deedes, W. | Knatchbull, W. F. |
| Divett, E. | Langton, W. G. |
| Duckworth, Sir J. T. B. | Langton, H. G. |
| Duff, G. S. | Laslett, W. |
| Duncan, Visct. | Lennox, Lord H. G. |
| Duncan, G. | Liddell, H. G. |
| Duncombe, hon. A. | Lindsay, hon. Col. |
| Duncombe, hon. O. | Lisburne, Earl of |
| Dundas, G, | Lovaine, Lord |
| Dundas, F. | Lushington, C. M. |
| Dunlop, A. M. | Macartney, G. |
| Dunne, Col. | Malins, R. |
| Du Pre, C. G. | Manners, Lord J. |
| East, Sir J. B. | Matheson, Sir J. |
| Egerton, Sir P. | Miles, W. |
| Egerton, W. T. | Monsell, W. |
| Egerton, E. C. | Montgomery, Sir G. |
| Emlyn, Visct. | Morgan, O. |
| Esmonde, J. | Mowbray, J. R. |
| Farrer, J. | Muilings, J. R. |
| Fellowes, E. | Mundy, W. |
| Fergus, J. | Napier, rt. hon. J. |
| FitzRoy, rt. hon. H. | Neeld, John |
| Floyer, J. | North, Col. |
| Northcote, Sir S. H. | Starkey, Le G. N. |
| Oakes, J. H. P. | Stuart, W. |
| O'Brien, P. | Taylor, Col. |
| O'Brien, Sir T. | Thesiger, Sir F. |
| O'Brien, J. | Trollope, rt. hon. Sir J. |
| O'Connell, J. | Tyler, Sir G. |
| Packe, C. W. | Verner, Sir W. |
| Pakenham, T. H. | Vernon, L. V. |
| Palmer, R. | Walcott, Adm. |
| Parker, R. T. | Walter, J. |
| Patten, J. W. | Warner, E. |
| Phillips, J. H. | Welby, Sir G. E. |
| Phillimore, R. J. | West, F. R. |
| Portal, M. | Whatman, J. |
| Pritchard, J. | Wigram, L. T. |
| Russell, F. W. | Willoughby, Sir H. |
| Sawle, C. B. G. | Wise, A. |
| Seymer. H. K. | Wyndham, Gen. |
| Shirley, E. P. | Wyndham, H. |
| Smollett, A. | Wynne, W. W. E. |
| Sotheron, T. H. S. | TELLERS. |
| Stafford, A. | Heathcote, Sir W. |
| Stanhope, J. B. | Walpole, S. H. |
§ Main Question put, and agreed to.
§ Bill read 2o, and committed for Wednesday, 20th June.
§ The House adjourned at Six o'clock.