HC Deb 23 March 1858 vol 149 cc603-25

said, he rose to move for leave to introduce a Bill to legalize marriage with a deceased wife's sister. He felt he ought to make an apology for attempting to handle a subject which had employed the talents of a distinguished Member of that House; but he believed that the best apology he could make would be the assurance that he had not ventured to rise for the purpose of addressing them without having given his best abilities to the consideration of this question. In his opinion there ought to be no ambiguity in the law on this subject; but its provisions and prohibitions should be clearly and distinctly declared. The law in its present state was, however, open to very considerable doubt. To prove this he might refer to the case of "Brook v. Brook," by which the question of the validity of these marriages between British subjects abroad had been raised. In the absence of any parallel case, Mr. Justice Creswell's opinion upon that trial must be regarded as the authoritative declaration of the existing law of England. That decision had not been arrived at without very laborious and minute examination, and it was therefore evident that the state of the law was by no means clear and satisfactory. Indeed he had been told that some of the most distinguished orna- ments of the legal profession had, upon precisely the same evidence, arrived at diametrically opposite conclusion. Upon any subject of importance, this state of dependance on the ipse dixit of a single Judge for the enunciation of the law was much to be deplored; but in this case it was above all things to be complained of, for no doubt could exist as to the feelings of the Legislature. That House had on three separate occasions expressed its deliberate opinion that the present law on this subject should be reversed, and that principle had been affirmed upon no less than thirty divisions. Upwards of 5,000 petitions, with hundreds of thousands of signatures, had been presented to both Houses of Parliament in favour of the change in the law which would be effected by the Bill he asked leave to introduce. The law as it stood was, he believed, at variance with the feelings of a large majority of the community, and it was therefore fitting to inquire how that law had been established. It was a remarkable fact that history showed them no civilized nation in which this question stood as it did in England. The Roman law, which coincided almost exactly with the Mosaic law in this respect, contained no prohibition of these marriages; and after the partition of the Roman Empire during the first three centuries of the Christian era, these marriages were lawful both in the East and in the West. There was no record of any collision between the civil and ecclesiastical authorities on the subject, and it must, therefore, be concluded that they were held lawful by the Church. In the early history of the Reformation also, they would seek in vain for any such prohibition. In the reign of Henry VIII., and his three successors, Scripture was constantly referred to as the ultimate court of appeal, upon whose decision all human legislation must turn. The question to be determined seemed, therefore, to be reduced to these narrow points — whether the alleged Scriptural prohibition really existed; and whether, failing such prohibition, these marriages were so inexpedient that it was necessary they should be forbidden upon other grounds. It could scarcely be supposed that the Almighty had left such an important subject unregulated, and the Scriptural argument seemed to he within a very narrow compass. Either these marriages were prohibited by Scripture or they were not. If they were so prohibited he called upon those who objected to them to point to the passages containing the prohibition. If they were not prohibited by Scripture he contended that the provisions of the statute law ought to he brought into conformity with that Divine Law upon which they professed to he founded. The 18th verso of the 18th chapter of Leviticus was the only passage in Scripture which referred directly to marriage with a deceased wife's sister; but this verse forbade such marriages only during the life of the wife. He believed, however, that the opponents of such marriages did not rest their Scriptural objections altogether upon that passage. They relied upon the 16th verse, in which a man was prohibited from marrying his brother's widow, and they argued that as the relationship was the same in both cases, the law which forbade one marriage equally forbade the other. he thought the answer to this argument was that all the prohibitions contained in Leviticus were amplifications of the prohibition in the sixth verse of the chapter, as to marriage with near kindred; but the sister of a man's wife was not near of kin to him. If the argument by analogy was to be insisted on, it appeared that, even by analogy, marriage with a deceased wife's sister was sanctioned, for although the 16th verso of Leviticus prohibited a man from marrying his brother's widow, and by the 18th verse he was forbidden to marry his wife's sister in her lifetime, in the 2.5th of Deuteronomy men were commanded, under circumstances which must often have occurred, to marry their brothers' widows. He could not admit the authority of any one who would say that God intended to prohibit marriages which He did not expressly prohibit, because if God had so intended He would have clone so. The Scripture must be taken literally as it stood. With regard to the argument drawn from the Canon law, that law was based on Scripture, and if the argument drawn from the Scripture itself failed, that educed from the law, which was based on Scripture, must necessarily fail with it. Moreover, the Church of England did not claim infallibility for its Canon law, and Lord Lyndhurst's Act, for instance, totally subverted a canon, by declaring absolutely void marriages which, according to the Canon law, were only voidable. It was true that marriages of this nature were prohibited by two of the early councils; but they were not œcumenical or general councils, and the prohibition extended only to the dioceses of the Bishop by whom the councils were attended. A similar prohibition was also contained in the Reformatio Legum, commenced in the reign of Henry VIII., and continued in that of Edward VI.; but as it never received the assent of Parliament, Burns, in his Ecclesiastical Law, declared that it could not he regarded as having the force of law. In 156.7, Queen Elizabeth, wishing to establish her legitimacy on more definite grounds, requested Archbishop Parker to draw up a table of degrees within which marriage was prohibited. In this table the prejudices of the Queen who employed him were naturally regarded. A brother's wife was declared to be one of prohibited degrees, because on the nullity of Henry the Eighth's marriage with Catherine of Arragon de-pended the legitimacy of Elizabeth. And it was said that a deceased wife's sister was also declared a prohibited degree, in order that Elizabeth might be enabled to say to Philip of Spain, who wished to propose for her, on the death of her sister Mary, that the feeling in England was so great and general against such a marriage that she dared not accept him. Be that as it might, Archbishop Parker only called his work "an admonition suited to the requirements of the times," and he was so careful not to assert for it an authority which it did not possess, that he noted on the fly-leaf the names of certain eminent divines who differed from him upon this point, he next came to the Statute law. Since the time of Henry VIII. eight statutes had passed, but all the laws of that monarch arose out of his capricious desires and anxiety to get rid of his successive wives. At last, having exhausted various statutory devices, this monarch returned to the Levitical prohibition, and the law was fixed as he believed it would be found to stand at the present moment. There was, in fact, no absolute statutable prohibition in this country on the subject of these marriages. Though the Judges had once or twice interpreted the law in another sense, their interpretation turning mainly on the sense to be put upon the words "prohibited degrees" in Lord Lyndhurst's Act. The present Bill would simply be an explanatory one, declaring that, whatever decisions might have been given in the Court of Queen's Bench or elsewhere, marriage with a deceased wife's sister should be no longer void or voidable, but should be just and honourable in every respect whatever. Indeed, from all that Parliament had done in the matter, they could only educe the one fact, that although the Legislature had, in despotic times, acted upon the caprice of the reigning monarch, it had never ceased to overlook the authority of the Bible as the basis of their legislation. There were some hon. Gentlemen, however, who did not found their objections, to these marriages either on the canonical or statute law, or on Scriptural grounds, but who urged the argument of social expediency. He was now merely asking leave to introduce a Bill, and this therefore was not the time to enter at length into this point. He could only answer such objections, vague and shadowy as they were, by asserting against them the broad principle, that every man should be free to do what seemed good in his own eyes, provided it did not interfere with the rights of his fellow men. He thought the advocates of these marriages might fairly claim that the scruples of their opponents should not he thrust upon them, seeing that they believed no Scriptural prohibition existed. If such a prohibition could be pointed out, they would at once give up their advocacy of this measure; but if that was not the case, the present law certainly abridged the liberty which belonged of right to Englishmen. He would frankly acknowledge that there were great, and good, and wise men, who disagreed with him upon that point, and he hoped he had said nothing, and that he should never say anything, which could shock their feelings. He believed that the Scriptural objection to the proposed alteration of the law was not well founded, that the canonical objections could be easily set aside, and that as the statutory prohibition had originally been framed in deference to the caprices of a wicked King, and had been adopted by a subservient Parliament, there was no reason why it should be respected and maintained. Reserving, then, for another occasion any reference to the argument of expediency, he should now simply ask leave to introduce this Bill, and he trusted that Parliament would not refuse their permission.


said, he had never heard a speech more conciliatory in its tone, or more calculated to win the favour of the audience to which it was addressed, than that which they had just heard from the noble Lord. But he (Mr. Divett) should add that he totally disapproved of the conclusion at which the noble Lord wished that the House should arrive. He confessed that he had great doubts in reference to the argument drawn from Scripture; but he entertained a strong conviction that the proposed change in the law was fraught with the most serious moral and social evils. The noble Lord had only recently become a Member of the House, of which he promised to be one of the greatest ornaments, and therefore scarcely knew the feeling of Parliament in reference to these marriages. But he (Mr. Divett) had been a Member of the House when the last Act upon the subject had been passed, and could remove the mistake under which the noble Lord laboured, that it was not a prohibitory statute. There were certainly at that time certain things connected with it which seemed to throw upon it a slur, but in legalizing those marriages, which had taken place prior to the enactment, it in no way sanctioned a compromise. He should, however, have hardly taken any part in the discussion of the question if he had not been a witness of the efforts made by an association called the Marriage Law Reform Association, to obtain the legalization of those marriages; and he wished to say a few words in reference to the proceedings of that body. Soon after the Act of 1835 was passed, by which these marriages were rendered illegal for the future, a gentleman of great wealth, a banker (whose name he would not mention, but which was well known in that House), wishing to marry his deceased wife's sister, engaged a firm of lawyers in the city to get up an agitation on the subject. By the machinery thus set in motion pamphlets were distributed, every constituency was canvassed, every man who did not know exactly what he was saying was induced to pledge himself in favour of the abrogation of the existing law. He himself had been canvassed—and, in common with other hon. Members, he had been inundated with pamphlets, and having nothing bettor to do, he had read them all. Having by these means been led to devote to the subject some time and attention, he had arrived at a settled conviction that all attempts at change ought to be earnestly resisted. The Association had further inserted advertisements constantly in The Times, informing the world generally that these marriages, although prohibited by the law of this country, were legal in Germany, Holstein, and many other countries. The consequence was, a great number of unfortunate women who, of course, were ignorant of the real state of the law, were induced to go across the Channel, and get married in those countries, though such marriages were, in point of fact, no more real than a broomstick marriage in a gypsy camp. Some of those women had since been abandoned by their husbands, and their children had been bastardized in consequence of a decision recently pronounced in a case in one of the courts of this country, to the effect that certain property had become forfeited to the Crown through the illegitimacy of the children of such a marriage as this Bill would legalize. The whole proceedings of the Marriage Reform Association were most demoralizing, and it was essential to the wellbeing, the sound morals, and social position of England, of which we were so proud, that a stop should be put to that most dangerous association. He had been asked not to divide against the introduction of the Bill, and, if he intended to persevere in his opposition to it, to postpone dividing the House against it till some further stage. That course might be very proper with respect to a Bill to whose principle he had no objection, but of whoso details he did not approve. This, however, was a Bill to the whole of which he was resolutely opposed; and, therefore, however small might be the support he should receive, he would insist on a division on the Motion for its introduction. he protested against any such Bill being laid upon the table; but if it should unhappily be introduced, he should oppose it at every stage. He had been favoured that morning—ho presumed by the Marriage Reform Association—with a pamphlet entitled, "Opinions and National Testimonies tending to prove the Scriptural Lawfulness and Social Expediency of Marriage with a Deceased Wife's Sister, and the Desirableness of Removing Doubts as to the Legal Validity of such Marriages." Now, if any doubts heretofore existed as to their illegality, he thought the decision of Mr. Justice Cresswell must have completely removed them from every reasonable mind at all events, He (Mr. Divett) had no doubt, and he believed that nobody except those who wished to abrogate the law in order that they might have the power of marrying their deceased wife's sister, and indulging their fancies in some other mode, had any doubt as to the illegality of these marriages. But the pamphlet proceeded to give an opinion of the noble Lord the late Prime Minister, which he certainly did not hear the noble Lord express during any of the previous discussions of this question; and he therefore thought it right to read that opinion in the hearing of the noble Lord, in order to ascertain whether he had really expressed such an opinion. The pamphlet attri- buted the following language to the noble Lord:— It seems to be established and admitted that the moral feeling of the community at large is not with this law—that the law, in fact, is not obeyed, and that a great number of persons, not considering themselves to commit any moral offence, do contract marriages which the law prohibits. That is not a state of things which ought to exist; and, not being of opinion that there is any moral objection to the contracting of these marriages, and believing that the law as it stands is the cause of a great deal of misery and social evil, especially among the middle and lower classes of the community, I shall with great pleasure give my vote for the Motion. That speech, according to the pamphlet, was delivered by Viscount Palmerston on the Motion made on March 13, 1856, for leave to introduce the Bill. The pamphlet then gave a great many opinions of eminent lawyers and divines. We all, of course, know that lawyers were not very scrupulous in giving their opinions, and that, in fact, for a certain consideration we might obtain from them any opinion we pleased. He therefore did not attach much. weight to lawyers' opinions. But the pamphlet ended with the following very extraordinary statement: — Marriage with a deceased wife's sister is not known to have been prohibited in any age or country before the fourth century of the Christian era, at which period the Churches had widely departed from the simplicity of earlier times. The most exaggerated notions were entertained respecting marriage and celibacy, and, influenced by the doctrines of the ascetic Basil, Bishop of New Cæsarea. the Greek Church, without Scriptural warrant, prohibited marriages of consanguinity, of affinity, and even of spiritual affinity, to the seventh degree. At the present clay these marriages may be lawfully celebrated in the following countries, each of which has an independent jurisdiction in (ho matter, and the united population of which amount to more than 700,000,000. Now, would it be believed that in this population of 700,000,000 were included the populations of Turkey, Morocco, China, as well as 400,000,000 Bhuddhists and idolaters? It was most extraordinary that the pamphlet omitted to add that these marriages were equally in accordance with the public opinion and law of 180,000,000 Hindoos. The pamphlet proceeded to give a list of all those countries to which the Marriage Reform Association had induced these poor unfortunate women to go and put themselves into a state of concubinage. Next, it quoted, as being in favour of the principle of this Bill, all the States of America, with one extraordinary exception—it did not quote a State which one might suppose to be almost a model nation in the opinion of those marriage law reformers— namely, the state of Utah, the territory of the Mormons. He would conclude by stating that he would oppose the Bill at every stage, because he firmly believed that it was fraught with danger to the well-being of England, and would produce the most melancholy moral and social evils in every English home.


said, the hon. Gentleman who had just sat down was in error with regard to the case which had recently been argued before one of the Courts, involving the question of the legality of marriage with a deceased wife's sister. No judgment had yet been pronounced in that case. The question involved in it arose thus:—A gentleman of the highest respectability, a magistrate and extensive manufacturer, had, after most mature consideration and with the full assent of his own family and his wife's family, married a sister of his deceased wife in Denmark— a country where, as it was well known, such marriages were lawful. A more admirable match he (Mr. Malins), from the facts which had been laid before him as counsel in the case, believed there could not have been. They were informed by counsel of the highest eminence that although they could not marry in England their marriage in any country where such marriages were lawful would be legal in this country also. Three children were born of that second marriage, and two of the first. The father had the greatest anxiety with regard to the legality of the second marriage, and he framed a will with the view of providing for the children thereof in the event of their being declared in this country to be illegitimate. Some time afterwards he fell suddenly ill in Germany, and at his request a clergyman, who superintended the hospital where he lay sick, drew a new will, which he executed, leaving the whole of his property among his five children absolutely. About a year after his death one of the children of the second marriage died, and no contest arose between the Crown and the surviving children as to the personal property of the father and mother. The alleged illegitimacy of the children of the second marriage however raised the question between them and the Crown, whether there was any legal heir or next of kin to the deceased child of the second marriage. The families of the deceased husband and wife were of the highest respectability, and the question of the legitimacy of the mar- riage had put them in a position of very great distress. On account of the great importance of the case the learned Vice Chancellor before whom he had the honour of practising—namely, Vice Chancellor Stuart, the Judge before whom it was brought, called in the assistance of Mr. Justice Cresswell, who at the end of about a month after the arguments were concluded, gave his opinion (which was not a judgment) that the marriage was invalid. The Vice Chancellor had not as yet given judgment, and the case, therefore, must be regarded as still remaining sub judice. There were, he might add, hundreds of other cases in which persons, not of an immoral character, but who were desirous to fulfil to the best of their ability all the duties of life, had been led to contract those marriages, and he must contend that if it were the intention of the Legislature to prohibit, such prohibition should be laid down in terms the most plain and distinct. Lord Hardwicke's Marriage Act declared that all marriages which were not solemnized in a particular way—such, for instance, as those which used to be celebrated in Scotland—should be void, yet the decisions of our Courts under the operation of that Act held such contracts to be not void but voidable. The present law with reference to marriage with a deceased wife's sister was liable to the same freedom of interpretation, and it was time, therefore, that some alteration should be made in it which would place the intention of the Legislature beyond all doubt. Nothing could, in his opinion, be more ridiculous than that a person not permitted to marry in this country should be enabled to do so beyond the seas. If the incapacity attaching to the contracting parties were of a personal character—such, for example, as was created by the Royal Marriage Act—then it could not be obviated by the mere fact of residence in a foreign country. It was, under these circumstances, perfectly clear that the existing law stood in need of amendment; and, although he had upon two previous occasions voted against any such amendment, yet he felt bound to say that, upon more mature consideration, great social evils appeared to him to result out of the present system. He also quite concurred with those who thought that the Scriptural argument against marriages with a deceased wife's sister was untenable. It was reduced, therefore, to a question of social expediency, of social propriety, of social advantages, and if it was found impossible to prohibit the desire to contract these marriages, he thought that if they could not prohibit attempts to evade the law, they had better alter the law. At present it appeared that in spite of Legislative prohibition these marriages continued to be solemnized; wives on their death-beds, expressed their desire that if their husbands married again it should be to their sisters; and under that state of things it behoved the House to consider whether they should continue to make illegal what they were incapable of prohibiting. At any rate, he (Mr. Malins) should vote in favour of the introduction of the Bill, in order that the whole subject might undergo re-consideration.


said, that he was largely indebted to the hon. and learned Gentleman who had just sat down, not only for a clear exposition of the law as it was understood to exist by many persons, and the evils hearing upon that supposed state of the law, but for the testimony which he had borne to the character of the persons who were most affected by it. What did the agitation that prevailed upon this question show? Why, that there were persons who felt strongly on this matter—men of character, persons of probity, who year after year devoted time and property to bring this question under the consideration of the Legislature. The hon. Gentleman (Mr. Divett) had thrown a slur, which might or might not be deserved, upon the opinions of lawyers; was he prepared to throw the same doubt upon the opinions of divines? Because, in the pamphlet to which he alluded the speeches and opinions of divines were as numerous as those of lawyers, and it contained also those lawyers on both sides, men of very high character in the '. world. Whatever might be said with respect to the Scriptural prohibition alleged to be involved in the question, he thought it was a subject on which the utmost liberty of interpretation must be allowed. There were individuals, and there were Churches; who considered that these marriages were absolutely prohibited. But there were individuals who were equal in intellect, equal in character, equal in talent, in piety, and in the discharge of all the offices of religion, who took an opposite view. There were not only individuals, but there} wore Churches also who did so. The opinion of the Church of England might be considered ambiguous in the matter. A great number of clergymen of the Established Church had petitioned in favour of the Bill, and many of them were practical protesters against the existing law, by having become themselves obnoxious to its disqualifications. If they looked at the Nonconformist bodies in their free synods and assemblies; they would find that the Independent Union and the Baptist Association had declared their opinions in favour of an alteration of the law, and that particular alteration of it proposed by the noble Lord who introduced this Bill. That being so, he could not understand the justice of a proceeding by which one particular body should endeavour to force its own interpretation of the Scripture upon those who happened to entertain contrary opinions. He (Mr. Fox) had a great regard for tenderness of conscience, no man had a greater; but of all tenderness of conscience that which he was least disposed to regard was the disposition to force the convictions of one's own conscience upon the consciences of others. To his mind the passage of Leviticus, so much disputed, belonged to a set of others which applied to the state of polygamy that not only existed, but was tolerated and regulated, among the Jewish race. In that view he was fortified by the fact, that to this day the Arabian women who were not allowed to show themselves unveiled, except to certain of their near relations, as to a father or a brother; but a woman was allowed to show herself unveiled to the husband of her sister—a fact which was tantamount to expressing the possibility of a marriage at some future day. This rule was also permitted by the written laws of Mahomet, as contained in the Koran. The Mosaic prohibition might therefore, not unfairly, be considered as corresponding exactly with this Arabian custom, and should be interpreted by it. He felt, however, less disposed to place reliance upon the authority of the passage in Leviticus, even if it had been more distinct, because not far from it there occurred the passage declaring the punishment of witchcraft. Now, as it was about a century since we had removed all laws against witchcraft from our statute book, he thought that we had long since abrogated any authority which was to be derived from the Mosaic prohibition. Then there was the great fact of such marriages continuing to take place. They had survived every change in the law. They had first been ambiguously prohibited in foreign countries, whilst they were prohibited here under a doubtful interpretation of the law of marriage; but still such marriages had continued to multiply with consistent regularity throughout all classes of the community. It was clear, therefore, that such marriages could not be put down, and the question for the House to consider really was whether they would oppose the law of the country to a law of nature. The best guardian of the deceased wife's children would be her sister, and he could not see why the sanction of the law should be withheld from marriage within that degree. For these reasons he should cordially support the introduction of the Bill.


, in reference to what had been said as to Lord Hardwicke's Act and Lord Lyndhurst's Act, observed that his hon. and learned Friend the Member for Wallingford (Mr. Malins) had quoted rather from memory than from the accurate letter of the Acts of Parliament; for Lord Lyndhurst's Act recited that marriages within the prohibited degree were ipso facto void, not merely voidable; and enacted, in the first clause, not that such marriages should be hereafter void, but that they were null and void. So did Lord Hardwicke's Act; but its last clause but one made an express exemption from its operations of the marriages of Quakers, Jews, and those celebrated in Scotland or beyond the seas. This exemption did not occur in Lord Lyndhurst's Act. But, still, this was not a question that hinged on the interpretation of one or two Acts of Parliament, but one that agitated deeply and seriously all classes of society, the highest, the middle, and the poorest. Often as he had opposed this measure, both in and out of the House, he did not say that he should have been disposed to take the sense of the House at this stage of the discussion; but still he was not surprised that the hon. Member for Exeter (Mr. Divett) should fool so strongly upon it as to determine him to do so upon the introduction of the Bill, and he would himself follow him into the lobby. The question was one that interested the highest, the middle, and the lower classes; and why had it so interested them all? Because the question had been fostered by a paid and systematic agitation. A few persons, who had themselves broken this law, or who desired to break it, formed themselves into a league, and put their case into the hands of a lawyers' firm. These lawyers sent round their paid commissioners, and made an ex parte inquiry. In a House of Commons, as thin as the present one, a Royal Commission was ob- tained, and met, and laid on the table a Report, which was nothing more than the re-cooked fragments of that ex parte inquiry. The Report of this Commission ought to be read by every Member of the House, and they, in conjunction with the Noble Lord who introduced the Bill, would, he believed, come to the conclusion that all this had been brought about by a mere firm of solicitors, representing individuals who had either a personal interest in having the law altered, or in shielding themselves from its violation. Several witnesses were examined, and some of them belonged to or had been employed by this firm of solicitors; others were persons who had broken the law; and some few others were jurists and divines; but no care was taken to bring before the Commissioners persons to whom an alteration in the law would have been a destruction to their domestic happiness, the women of England, who were as interested in the inquiry as the men. They had no part in the Commission. Ireland was represented by one man, who made himself notorious by being put on his trial in the dock for a long course of systematic swindling in a Government office —the notorious Mr. Matthews, who had also some alias. Scotland, where a feeling on this subject was almost unanimous, was not represented by witnesses before this Commission. The case of the brothers' widows was not represented, and that of those who wished to marry the wife's niece was thrown overboard. At this stage of the Bill, he should best consult the feelings of the House by not entering on the theological discussion of the question, and, therefore, he should confine himself to a few remarks upon what had fallen from the hon. Member for Oldham (Mr. Fox). That hon. Gentleman had spoken of the natural affection existing between a widower and his sister-in-law, and between the latter and her deceased sister's children. That was a holy feeling, and long might it be preserved among us; but it was with a desire to maintain those sacred affections in all their purity that he resisted a change in the law. A woman who married her deceased sister's husband, and had children by him, would naturally prefer the interests of her own offspring to those of her sister, and thus the generous affection hitherto existing would be destroyed. He wanted the sister-in-law to he the sister of her deceased sister's husband and the mother of the children; but how could she be so if she was their stepmother, having, perhaps, been looking forward to that position while her sister was yet living? Let it be said that the temptation to cohabitation was great if the sister-in-law, who was the most natural female protector of the children, performed that duty. That might be an argument as regarded the widower and the sister; hut let not the helpless children be imported into the question, when they were really pandering to the unholy desires of the man and the woman. As for the case of the upper class of society, theirs was a case which he thought did not deserve five minutes' serious attention. They appeared in this question— With all the world before them where to choose. They existed with all the advantages of education, and the usual opportunities that the upper classes possessed, and he thought, as regarded them, the hardship that existed under the present law was one of a very slight and inconsequential character. Then they came to the lower and poorer classes, the people, who were huddled together in one or two miserable rooms—brothers and sisters, adults, male and female, pigging together in contempt of all decency. In these families, was it the wife's sister that generally became the inmate? Any one who had studied the condition of the working classes of this country knew that among the working classes the families were more completely broken up and scattered to the four winds than among the higher orders of society. The sons went out to labour, and the daughters went out to service, and the chances were that the man who married in that class of society might never have seen the family of his wife, or if so, very casually, and without there being about it those elegant refinements of social intercourse which belonged to the upper classes of society, and which created the feeling of relationship. So when the wife died, and he was looking out for a mother for her children, he (Mr. Hope) did not believe that he would appreciate these advantages of relationship as an inducement to an alliance which at present, under the law, he was forbidden to contract, when he had to choose another woman, honest, sober, and well conducted, to take charge of his widowed children. Then they heard it asserted that cohabitation took place among persons in this degree of relationship and of consanguinity one to another. Such might be the case; hut again he pointed to the miserable want of accommodation that existed among the poor as the inducing cause, of the deficiency of moral education, and of the miserable blunting, in too many cases, of the mind's moral feeling. Thence arose the cases of intercourse of other and nearer degrees, too terrible to mention, that were brought before our assizes and police courts, which went to prove the totally inadequate condition of our cottages, which were the hotbeds of all these criminal occurrences, which had hitherto failed to be arrested or rooted out by the attention of either our courts of judicature or our territorial classes. Then the experience of foreign countries was alluded to, and we were told that England was almost the only country in the world in which a man was not allowed to marry his wife's sister, and that only here and in Russia it was not permissible. That might be so; but England and Russia wore the only countries in Europe, nearly, in which a man might not, either by the law of the country or by a dispensation, marry his blood niece or his blood aunt. Then the question came, was the legislature prepared to relax the existing law to that extent, and to declare that marriage with a blood niece or a blood aunt, was not an abomination? If not, cadit qucestio, the system of relaxation which prevailed abroad and our system of prohibition run upon all fours. The attempt to establish an intermediate one would assuredly fail. Let them once alter the law; once introduce the firebrand into families; once make the wife upon her deathbed watch every look, every smile, every word that passed between her husband and her sister; once make it a matter of calculation with the fortune-hunter, where there were two heiresses in a family, how he should first win the affections of the one in delicate health, and then, when she was in articulo mortis, how he should bring the second sister within his attractive wiles, and see what a very happy change they would have effected in the social condition of the people! But they were told that this was a question of religious freedom. If there were an hon. Gentleman in that House who was devoted to the cause of religious freedom, it was the hon. and learned Member for Sheffield. Yet they must remember how in 1850 that hon. and learned Gentleman had denounced in withering terms the whine of those who pretended to advocate this measure on the ground of religious freedom, characterizing their argument as a "hypocritical pretence." That was the language of the hon. and learned Member for Sheffield, and with that language he should now conclude.


said, he could assure the hon. Member for Maidstone (Mr. B. Hope) that his arguments would not find acceptance of the poorer classes in whose interest he himself would support the Bill. He was exceedingly unwilling to argue the question upon any isolated texts of Scripture, which no doubt might be produced upon both sides of the case; hut he wished to remind the House that some 3,000 or 4,000 years ago no great blame was excited by a man's marrying two sisters during the lifetime of them both. The arguments of the hon. and learned Member opposite might do very well for those rich persons who were able to consult lawyers upon the subject; but if he were to address them to a poor man in the manufacturing districts he would probably be told, "Sir, while my wife was alive I loved and had every reason to respect her. Now that she is removed from me, Providence has in His goodness seen fit to allow to my helpless children a guardian as kind and as good. I see her moving about my cottage engaged in all the offices of a mother to my children. I love her for my former wife's sake, and she is willing to marry me for my children's sake. We have studied the Bible; we see no prohibition, and we have no qualms on the matter." What right had Parliament to interfere, and to say that in such a case such a marriage should not take place? There might, no doubt, be some who would be ready to transfer their worthless affection from the wife to the sister-in-law; but with such persons would the intimacy of the sister-in-law be safe now? They were told that the whole fabric of society and the very existence of the people were built upon the purity of the marriage institution, and the close knitting of family ties. He believed that; but he hoped that they rested upon something a little clearer to every intelligence, and a little more comprehensible to the conscience, than the prohibition which was the subject of consideration. He did not give his vote in favour of the rich few, but of the many, upon whom the existing state of the law operated as a real grievance, and on behalf of whom he claimed, not a favour, but a right.


said, he considered that on all grounds, legal as well as social, it was desirable that the law as it stood should be investigated, so as to ascertain whether or not it ought to be altered. He was led to this conclusion from a belief in the fact, that notwithstanding the present state of the law these marriages were very constant and common among the lower classes, and this condition of the law, from its not rendering these marriages valid, caused them not unfrequently to be contracted across the border, or in some foreign country, in order to give a status to their legitimacy. He supported the introduction of the Bill on the ground that it deeply affected the interests of the lower classes, among whom these marriages, in spite of the laws of prohibition, prevailed and were contracted.


said, that the hon. Gentleman who talked of the newness of this agitation (Mr. B. Hope) might be surprised to hear that 100 years ago these marriages had been advocated by the Rev. Mr. Robinson, of Cambridge, the predecessor of Robert Hall, in a tract of great ability, so that after all the movement was a century old. He disliked as much as any one the introduction of theological questions into the discussions of Parliament; but he knew of no question with which theology had less to do than this. The law of Leviticus had no connection whatever with the question whether a man in England in the nineteenth century should be permitted to marry a deceased wife's sister. Such attempts to twist the meaning of particular texts ought to be looked on with great jealousy. But if the theological point were relied on, opinions of the greatest weight might be cited in favour of this measure; for instance, Robert Southey asked— But has it never occurred to you that this law is an abominable relic of ecclesiastical tyranny? Of all second marriages I have no hesitation in saying that these are the most suitable, and likely to be the most frequent, if the law did not sometimes prevent them. It is quite monstrous, judges and lawyers speaking as they have done of late upon the subject. Luther said— The union of husband and wife is of divine right, which is binding, however contrary it may be to human laws, and the laws of men ought to yield to it without reserve. For if a man leaves father and mother to cleave to his wife, how much rather shall he trample under foot the contemptible and unjust laws of men, and cleave to his wife? Archbishop Whately said— You are at liberty to refer to me as approving of the abolition of the restriction on marriage to which you allude. The opinion of the present Bishop of Carlisle was given in these words— I cannot say that such marriages are forbidden in the word of God; on the contrary, the limitation in Leviticus seems to sanction marriage with the sister of the wife after the death of the latter. Dr. Chalmers, too, thought that the prohibition in Leviticus was only against marrying a wife's sister during the life of the former. There were other ministers—such as Dr. Eadie, of Glasgow, and Dr. Bunting —who held the same opinion. He had read these opinions as being sufficient, and more than sufficient, to prove the case as a. question of theology. He was convinced that unnecessary legislation was a mischief, and that a law which did not recommend itself to those who had to obey it was an evil and not a good law. He hoped, therefore, that the House would allow the Bill to be introduced, that they would carry it, and that it would receive the sanction of the other House, for he was convinced it was in accordance with the feelings and wishes of the people.


said, he should support the measure. He had presented a petition from upwards of 100 of his constituents, praying the House to reconsider the question. As an acting magistrate in a large manufacturing population his views, gathered from his own experience, were diametrically opposite to those of the hon. Member for Exeter (Mr. Divett) as regarded the effect of the prohibition on the morality of the people, and he hoped that no impediment would be thrown in the way of a Bill which a considerable number of people believed to be necessary, not only for their liberty, but their happiness.


said, that the hon. Member for Northampton (Mr. Gilpin) had complained of being dragged within the shadow of ancient, while he had himself brought them within the shadow of much more modern, authorities. He (Mr. Lygon) agreed, however, that theological discussion ought to be avoided in that House, for he had never observed that when they had indulged in discussions of that character they had ever risen from them cither better or wiser. For his part he could not see any difference between the mother or the daughter by a former marriage of a man's wife and her sister, yet nature revolted from the idea of his marrying either of the two former, and by what process, then, could the sister be eliminated from the category in which those two stood? It was not enough to say that the instincts of mankind were sufficient to justify such marriages. The instincts of mankind had not res trained men from committing the most horrible crimes; yet that was no reason for generalizing the infractions of the law into a code for the future guidance of men. Which instincts of human nature were to be consulted, the higher or the lower? In a discussion which took place last Session it was admitted that polygamy was one of the instincts of human nature, ought that instinct to be legislated for? He believed it to be the duty of Parliament to legislate for the higher instincts of our nature; and being convinced that this question, if argued on purely rational grounds and with reference to the higher instincts of our nature, would be found altogether repugnant to those higher instincts and to that law of nature which was synonymous with the law of God, he felt they could not agree to the proposition before them without impairing the stability of our institutions and the happiness of the people who lived under them.


said, he had not intended to take any part in this debate, but he trusted the House would permit him to say a few words in reply to the speech of the hon. Gentleman who had last addressed them. The hon. Gentleman, in discussing this question, rightly refrained from entering into the theological argument. He agreed with the hon. Gentleman in thinking that that House did not rise from a debate on a theological question with any advantage; but the hon. Member had certainly not abstained from throwing aspersions on those who might differ from him on the subject, which must have been greatly tinctured by his theological opinions. He told the House that those who entered into the marriages his noble Friend sought to legalise had been guilty —at least that was the conclusion—of a grave offence against morality, and were to be placed in the same category with those who practised polygamy. He (Viscount Goderich) must distinctly protest against that opinion. Again, the hon. Gentleman said he considered it would be a perfectly parallel case if it were proposed to legalize marriage with the mother of a deceased wife, or with the daughter of the deceased wife by a former marriage. But on that point he (Viscount Goderich) would be content to appeal from the individual opinion of the hon. Gentleman to public opinion; and he would emphatically say that the hon. Member was not justified in maintaining that in the eyes of the public, at this time, the cases he had put were regarded as at all parallel. It seemed to him (Viscount Goderich) that this was an eminently social question. It might be true, as had been more than once said, that with regard to the rich, social difficulties might arise if a Bill for legalizing the marriages in question were passed. He did not agree with that opinion, though he could understand it. But he could not understand how any man acquainted with the feelings of the great body of the people of this country could argue that if such a Bill were passed it would tend to injure their social condition or to lower their morality. The House ought to look at this question practically; and, so looking at it, he believed if they said to the working classes that these marriages should be legalized, instead of weakening or injuring their social relations in this respect, or of lowering the tone of their morals, the result would be, in the course of time, that the morality of the great mass of them would be considerably raised. After all, it was surely true that social laws required the sanction of the age, and he was convinced there were few among our social laws less sanctioned by the judgment and feeling of the great body of the people of this country than the prohibition which his noble Friend the Member for Norwich (Viscount Bury) now Bought to abolish. This was a question on which a very strong opinion existed among his own constituents, and in the manufacturing districts generally. It might be said that we ought not to give way to what was after all an improper desire on the part of those who sought an alteration in the law, but if once they abandoned the theological argument, they could not rest anywhere on such a question, except on the feeling of the country in reference to its being a question of morality. If the theological considerations were laid aside, and the other part of the question was looked at, nothing could be more dangerous, because nothing could be more futile, than legislation which had not the sanction of, but which was constantly disregarded by the people of this country.


said, he felt, with the noble Lord who had preceded him, the difficulty of dealing with this question in a satisfactory manner, from the little hope there was of treating any theological argument in that House in a way commensurate with its importance. If that difficulty was felt in an ordinary case involving theological considerations, it would be obvious at once that it must be experienced in a tenfold greater degree in a question like the present, in which the true solution of the theological argument required not only a logical mind, but a knowledge of the Hebrew language. He entirely agreed with the noble Lord who introduced this Bill when he said that if the scriptural argument was against him there was an end of the question. That was exactly the ground taken by Luther in the passage quoted by the hon. Member for Northampton (Mr. Gilpin), in which Luther said that he could not be bidden by any human mandate to do away with a marriage which wa3 according to the law of God. That was the view of the question taken by the law of England as early as the time of Henry VIII., for the statute of that King laid it down as a principle that those marriages were to be considered prohibited which were contrary to God's law. The law of England, then, in this respect professed to be based on the Divine law; and the House would bear in mind that the construction of that law was established at a time when theological scholarship was much more profound, and when the Hebrew language was more extensively studied than at the present day. He submitted, therefore, that it was not enough for any noble Lord or any, hon. Gentleman to come down to that House and say simply that he had looked into the English version—"the received version," quoted as it was called—and had satisfied himself, without any study of Hebrew or of the opinions of theologians, that on this very difficult question the right construction of a very difficult passage in Scripture was so and so, and, therefore, that the law of England, which had given satisfaction for three or four hundred years, ought to be changed, and that, too, to suit the convenience of parties who, from interested motives—and he (Mr. Puller) could not blame them under the circumstances— sought to bring about such a change, and who had, with that view, raised up a certain amount of agitation in the country. So far from adopting the conclusion that the general opinion of this country was in favour of a change in the law, he confessed he was surprised that, after all the pains that had been taken, and the expense that had been incurred to influence the popular mind in the direction of such a change, so small an amount of general feeling had been produced, knowing as he did how very easy it was to get up an agitation on a subject so closely and nearly affecting our dearest and strongest feelings. He declined to enter into any consideration of the Scriptural argument bearing on this question—first, because that was not the proper place to do so; and, secondly, because he felt he was incompetent to do justice to it. He entertained a very decided opinion that the chapter of Leviticus did prohibit these marriages, and unless he heard stronger reasons in their favour than had yet been urged he should support the existing law.

Motion made and Question put, "That leave be given to bring in a Bill to legalize Marriage with a deceased Wife's Sister.

The House divided: — Ayes, 105; Noes, 62: Majority 43.

List of the AYES.
Adeane, H. J. Hutt, W.
Agnew, Sir A. Ingram, R.
Alcock, T. Jackson, W.
Ayrton, A. S. Jervoise, Sir J. C.
Bagwell, J. King, hon. P. J. L.
Baines, Rt. Hon. M. T. Kinglake, A. W.
Baring, rt. hon. Sir F. T. Knatchbull-Hugessen,
Biggs, J. E.
Black, A. Lindsay, W. S.
Bonham-Carter, J. Locke, Jno.
Bright, J. Luce, T.
Briscoe, J. I. Malins, R.
Brocklehurst, J. Mangles, R. D.
Browne, Lord J. T. Mangles, C. E.
Bruce, H. A. Mellor, J.
Butler, C. S. Mills, T.
Caird, J. Milnes, R. M.
Campbell, R. J. R. Morris, D.
Cheetham, J. Napier, Sir C.
Clay, J. Nicoll, D.
Collier, R. P. Paget) C.
Conningham, W. Palmerston, Visct.
Coote, Sir C. H. Pease, H.
Crook, J. Philips, R. N.
Crossley, F. Potter, Sir J.
Dalglish, R. Ramsden, Sir J. W.
Davey, R. Raynham, Visct.
Dillwyn, L. L. Ricardo, J. L.
Duncan, Viscount Ricardo, O,
Elphinstone, Sir J. Robartes, T. J. A.
Evans, T. W. Robertson, P. F.
Fenwick, H. Roupell, W.
Ferguson, Sir R. Shelley, Sir J. V.
FitzGerald, W. R. S. Slaney, R. A.
Forster, C. Smith, J. B.
Fox, W. J. Smith, A.
Gard, R. S. Spooner, R.
Gibson, Rt. hon. T. M. Stapleton, J.
Gilpin, C. Thompson, General
Glyn, G. G. Thornely, T.
Goderich, Viscount Townsend, J.
Greene, J. Trelawney, Sir J. S.
Grosvenor, Earl Trueman, C.
Gurney, J. H. Turner, J. A.
Hamilton, Lord C. Vivian, hon. J. C. W.
Hanbury, R. Weguelin, T. M.
Harcourt, G. G. Westhead, J. P. B.
Harris, J. D. Whitbread, S.
Headlam, T. E. White, J.
Holland, E. Wickham, H. W.
Willcox, B. M'G. Young, A. W.
Williams, W.
Wilson, J. TELLERS.
Wood, Rt. hon. Sir C. Bury, Visct.
Wood, W. Schneider, W. H.
List of the NOES.
Adams, W. H. Lyall, G.
Adderley, rt. hon. C. B. Lygon, hon. F.
Bernard, T. T. Lytton, Sir G. E. L. B.
Barrow, W. H. Mackie, J.
Beecroft, G. S. M'Clintock, J.
Bouverie, rt. hon. E P. Mainwaring, T.
Bramley-Moore, J. Manners, Lord J.
Bridges, Sir B. W. Monsell, rt. hon. W.
Cecil, Lord R. Mowbray, J. R.
Clark, J. J. Naas, Lord
Collins, T. Newport, Visct.
Cox, W. North, Colonel
De Vere, S. E. Ogilvy, Sir J.
Disraeli, rt. hon. B. Packe, C. W.
Dunbar, Sir W. Pugh, D.
Esmonde, J. Puller, C. W.
Estcourt, rt. hn. T. H. S. Rushout, G.
Fellowes, E. Smith, Sir F.
Finlay, A. S. Stuart, Col.
Garnett, W. J. Sullivan, M.
Gladstone, rt. hon. W. Tottenham, C.
Greenall, G. Trefusis, hon. C. H. R.
Hamilton, J. A. Walcott, Adm.
Hanmer, Sir J. Waldron, L.
Hardy, G. Walpole, rt. hon. S. H.
Hatchell, J. Whiteside, rt. hon. J.
Henley, rt. hon. J. W. Whitmore, H.
Hotham, Lord Wigram, L. T.
Kendall, N. Wynne, W. W. E.
King, J. K.
Kinnaird, hon. A. F. TELLERS.
Langton, W. G. Divett, E.
Lennox, Lord H. G. Hope, A. J. B.

Leave given.

Bill ordered to be brought in by Viscount BURY, Mr. SCHNEIDER, and Mr. MONCKTON MILNES.

Bill presented, and read 1°