§ MR. MONCKTON MILNESAlthough the House is not oppressed at the present moment with very much important business, yet, I think that some apology is due for bringing forward again a question which has been six times debated, and al- 843 though with great success in this House, has, nevertheless, not yet become the law of the country. There is, too, some apology, perhaps, due to the House for intruding on its attention a question which has no political interest, no claims on party affection, which offers nothing to interest us but the fact that it is a great question of public justice, and concerns the comfort of many thousands of our fellow-countrymen. On this occasion, as I have no reason to believe that any opposition will be made to the introduction of the Bill, it would be inconvenient for me to renew the discussion of those questions of historic and theological interest which have occasionally formed the staple of the previous debates in this House. Whatever may be necessary on those subjects will be much more fittingly introduced on the second reading of the Bill. The Bill which I propose is one which reduces the means of attaining my object to the narrowest limits. The House is perfectly aware of the state and condition in which this question was left by what is commonly called Lord Lyndhurst's Bill of 1835—a designation which is a great calumny on that great jurist and statesman. That Bill was not Lord Lyndhurst's Bill. Lord Lyndhurst, as the noble Lord himself has declared, said nothing in his Bill about annulling marriages. It was for the object of limiting the time during which these marriages might be disputed; and the clauses afterwards introduced were framed in a totally different spirit from that which Lord Lyndhurst had brought in. I may, perhaps, be deemed to have some right to bring forward this question, when it is considered that I presented to night a petition from the county of York—intimately acquainted as I am with the interests and habits prevailing there—signed by 55,534 persons, of whom 21,000 are of that sex that we are repeatedly told is to a woman opposed to the Bill. This petition, coming from a single county, presents a singular contrast to one presented in "another place" by an eminent prelate, the Bishop of Oxford, as from the women of England, which, on investigation, was found to contain only forty-two signatures, a considerable portion of them being apparently written in a male hand. It is impossible to deny that this is a question deeply interesting to many thousands of Englishmen and Englishwomen. The law of the country has been left in a state which, both in respect of justice and legality, is anomalous. There had been going on ever since the 844 time of Henry VIII. a condition of things in which these marriages occurred. They were only avoidable by suits in the Ecclesiastical Courts. But, while any other marriage of an incestuous nature would at once be met by a suit in the Ecclesiastical Court, these marriages occurred with great frequency, without scandal and without injury. Indeed, it appeared from the Commission of 1832 that there was hardly on record a single case in which any action had been brought against these marriages. It was felt that there was something special in these marriages, but nothing repugnant to the religion of a Christian people, and they were practised without any injury to society. It is impossible to determine what number of these marriages took place. We know from the words of that eminent Nonconformist, Dr. Adam Clarke, that largo numbers of preachers connected with the Wesleyan Methodist body contracted such marriages without scandal, so far as their congregations were concerned. We know from Miss Edgeworth that her father contracted such a marriage without any injury to his character, and without any disapprobation on her part. We know from all these circumstances, that these marriages were frequent, and that the state of the law was altogether unsatisfactory in regard to them. But there arose a case in which one noble family was most deeply concerned, which brought the matter prominently before the public, while hundreds and thousands of these marriages taking place in other ranks of life passed unnoticed and unregarded. The law was changed, and what is the effect of that change? Was it to the advantage of the general community? No, but to the advantage only of a few—to the noble family in question and to the detriment of the mass of society. This is a law which begins in illegality, in injustice, in that discrimination of classes which is repugnant to the sense of Englishmen, and can never be regarded as a sound basis of legislation in this country or any other. Starting from this invidious and unjust principle it produces nothing but injustice. It declares that up to a certain period the parties having contracted such marriages shall be considered lawfully married, and after that it declares the parties guilty of concubinage and their children bastards. Say, if you will, that such marriages are improper, and that they should be prevented altogether; but do not allow the flagrant injustice to continue by which, on the one hand, a man may sit in the House 845 of Lords in virtue of a law which bastardizes a large portion of our fellow-countrymen. We have, therefore, a primâ facie case for bringing this measure forward again and again. I propose to introduce it on the present occasion in the simplest form—in a form which, I trust, will not shock the most delicate conscience. The Bill simply provides that henceforth all such marriages celebrated by registrars in the purest civil form shall be legal marriages. I do not propose to touch upon the ecclesiastical question in any way whatever. I shall leave every man to judge of that matter according to his own conscience. What I contemplate is a purely civil contract. I have only to add that there is a clause which declares that there is nothing in the Bill which shall affect, in the slightest degree, any dignity, title, fortune, or other arrangement which may be dependent upon the present condition of the law. Probably I shall be met on a future occasion with arguments of a religious character. Now, we are not very competent in this House to deal with questions of theology, or questions touching the consciences of men. I believe, however, that in ancient times there was no doubt whatever on the subject. Dr. Adam Clark declares that the opinion of the Jewish rabbis is conclusive as to the correct interpretation of the much-disputed passage in Leviticus. Even that acute controversialist the Bishop of Exeter acknowledges that it ought to be construed simply as a permission of polygamy with certain limitations. Such, moreover, is the opinion, not only of the people of England generally, who interpret the passage according to the natural meaning of the version which they hear read from the pulpit, but of a large majority in this House. Many of the bishops have expressed the same view, though hitherto, at all events, they have opposed all Bills like the present upon ecclesiastical grounds. But it is not my intention to involve the House in a theological argument. In the other House, where the Church is adequately represented, such questions can be discussed with a completeness which is here impossible. All we can say as simple laymen, looking back upon the history of the Church, is that the question which my Bill is designed to set at rest every now and then crops up in theological controversy, in close connection with the celibacy of the clergy. There is not a single writer quoted by our opponents who does not at the same time declare that the clergy ought not to 846 be allowed to enter the marriage state. Moreover, the marriage of a man with the sister of his deceased wife is invariably connected in one condemnation with a number of other unions which are permitted in this country, such, for example, as the union of cousins german, a marriage which is absolutely prohibited by the Greek Church, and for which a dispensation is required in the Roman Catholic Church. But let us leave these thorny questions to be discussed in the other House. I know that reference will be made to the authority of the bench of Bishops; hut I know, at the same time, that many of our prelates before they attained their present high position were of opinion that the marriages which form the subject of my Bill ought to be permitted by law. Is it too much to expect from those prelates that they should publicly state that they do not believe such marriages are opposed to Scripture, but that, on the other hand, they are prevented in their representative capacity, as speaking on behalf of the general clergy, from taking an active part in promoting a change in the law? Upon the position taken up by the bishops, and upon the encouragement given to the other House by a strong manifestation of opinion on our part, depends the satisfactory settlement of this question. I know there is a social objection, resting upon the much-quoted passage in Leviticus. It is because many of the people of this country, particularly women, think it would "vex the wife in her life time" that they are averse to legalize the marriage of a man with the sister of his deceased wife. That, however, is a matter of opinion which every one will judge for himself. We may not think, with the poet Cowley, that if a man is to marry a second time the best person he can select is his wife's sister; but that is no reason why we should absolutely prohibit such marriages. Some hon. Gentlemen have argued as if the object of Bills like the present was to force every man to marry his wife's sister. That is a mistake. We simply want people to be allowed to please themselves. You may not think these marriages desirable, but you have no right to interfere with them on the part of others who entertain a contrary opinion. I find that among my own dependents, my own friends, my own constituents, such marriages are constantly taking place. They are not productive of evil consequences; on the contrary, they diffuse a large amount of happiness and 847 comfort throughout the community. The fact is, as stated by the Commission which was presided over by the Bishop of Lich-field, that legality has nothing to do with the matter. Either we must have these marriages, or we must suffer concubinage. The English people have settled the question for themselves. They know that their grandfathers were permitted to do this thing unchallenged by the law, and suffered no injury in consequence; they see their friends and neighbours doing it almost every day; and they find that all who enter into these unions are objects of sympathy. Surely we ought, under such circumstances, to endeavour to change the law so as to bring it into accordance with the habits and feelings of the people. It is because we do so in other cases that the law in England is so highly venerated. Let me mention one case which has come under my own observation. The leading surgeon in a small town in which I feel interested contracted one of these marriages. No objection was made to it, nor did it injure him in character or practice. His second wife died in childbed, and she died before she had an opportunity of leaving her property by will to her child. What was the consequence? The child was deprived of his mother's fortune, which went to a distant relative, and he was left without the means of subsistence. Similar cases are occurring all over England at this moment, and is it for us to say that, in order to consult the selfish convenience of a portion of the upper classes, we shall neglect a common want of the English people? Therefore, I trust, on these grounds, that you will continue not to oppose the measure. Above all, let me entreat you not to allow this question to become a party question. What on earth has it to do with political relations, or political parties? Surely, it is a great scandal to see the division list on this question, and to find one man going into this lobby and another into that, merely because they happen to sit on a certain side of this House. Let each man take this question to his individual conscience; let him consider whether he has a right to perpetuate a state of things which is so miserable for thousands of his fellow countrymen. If each one will do so I cannot but believe that the true spirit of Christianity will induce him to allow a measure of freedom and tolerance, and, though he might shrink from such a union himself, convince him that he ought not so cruelly 848 to forbid it to others. I do hope that the House will consent to put an end to the miserable anxieties and difficulties which, in consequence of the present state of the law, surround the devolution of property, to give peace to those susceptible minds which are now so disturbed and unhappy, and to reconcile the law of the land with the conscience of the British people.
§ MR. BUXTONsaid, he begged to second the Motion.
§ Motion made, and Question proposed,— "That leave be given to bring in a Bill to legalize marriage with a deceased wife's sister."
§ MR. WALPOLEMy hon. Friend has certainly made a very able speech in defence of the proposition which he has submitted to the House. He said at the beginning of his speech that he understood there was to be no opposition to the introduction of the measure. I believe, Sir, that, with the exception of one single instance, no opposition was ever made to the introduction of this Bill, because, when what is represented to be a large number of people send a measure to be considered, it is only respectful to them that it should be laid on the table of the House, and that the fullest attention should be given to it. For that reason, then, if for no other, I should certainly not rise to oppose the introduction of the Bill; nor, indeed, should I rise to make any objection upon the speech of my hon. Friend, did I not think it right to guard myself, as well as the House generally, against one or two of the propositions which he advanced, but which I do not think he intended to enforce in the latitude and to the extent which his words suggested. My hon. Friend adverted to the Act of that great jurist and statesman, Lord Lyndhurst, which he informed us was not Lord Lyndhurst's Act. Whether it was or not I will not now stop to inquire, but I cannot admit that the scope of that Act and its effect upon the people of this country were fairly represented by my hon. Friend. Down to the time when that Act was passed a marriage with a deceased wife's sister stood in the category of what were called voidable marriages—that is to say, that within a certain period after such an union was contracted, it was in the power of any interested party to apply to the Court to set aside the marriage, and get it declared void, notwithstanding that the parties had cohabited, and that children had been born; but if within the prescribed time no one 849 attempted to set it aside, then the marriage was not void. Lord Lyndhurst's Act made this change in the law—it provided a remedy for those cases where such marriages had been contracted previous to its passing, but instead of leaving the law in an uncertain state, which in the case of marriages of any kind, is the worst state in which the law can he, it laid down the rule, conformably with what had been the precept of the Christian Church, that such marriages, in point of fact, were not sanctioned by the law of God, and would in future be deemed illegal. My hon. Friend seemed to me to represent to the House, by the argumentum ad invidiam, that the law to which I have adverted drew a distinction between the rich and the poor— that it was a law in favour of a great duke and not of the people. ["Hear, hear!"] I presume from that cheer that hon. Gentlemen think that the distinction does exist. Is it so? The Act decided retrospectively that none of these marriages could he set aside down to that period, no matter whether they were contracted by a duke or any great peer, or by any person whatever. Well, did the Act make any distinction between rich and poor prospectively as to these marriages? Certainly not; it placed all on precisely the same footing. Whether the law be good or not is not the point with which I am dealing; but I venture to say, and no one can contradict me, that the law did not make a distinction between the rich and the poor as my hon. Friend, I think, inadvertently and with too great latitude, endeavoured to represent. There is one other point on which I think my hon. Friend was not so guarded as he should have been, and it is a very important one. My hon. Friend used such a latitude of expression in describing his measure, that I am at a loss at this moment to understand the exact nature of it; and that is another reason why I should be curious to see it. I understood my hon. Friend to say that his Bill was simply to enable persons to contract marriages before a registrar without interfering with any ecclesiastical rule; but he spoke so loosely that I do not know whether he intended that any person might contract a marriage with any other person, and that provided it was done before a registrar it should be legal.
§ MR. MONCKTON MILNES— The scope of my Bill is solely confined to marriage with a deceased wife's sister.
§ MR. WALPOLEI am glad that my 850 hon. Friend has explained this point, for his speech suggested the idea that the measure applied to marriages generally. He used the remarkable phrase that persons ought to be at liberty in this matter, and that all he wanted to do was, in the exercise of that freedom, to make that a marriage which would now be concubinage. If that argument is sound I wish to know whether my hon. Friend is prepared to say that a similar freedom is to be given to all persons who are now living with women whom they cannot at present marry, as well as to those who wish to marry their deceased wives' sisters. Is the law to be partial in this respect or general? Do not argue the question on the ground of general freedom unless you are ready to give a general power. If you are going to make a special exception in favour of a particular class, found your proposal on reason and morality, and then you will substantiate your case; but if you proceed on the popular notion that there is to be no restriction on personal liberty in such matters, and that, provided the contract is a civil one, a man is to be at liberty to marry whom he pleases, with the condition, I presume, that there is no consanguinity between the parties to prevent a marriage, see upon what a flood of immorality you will immediately launch the people of this country. I entreat my hon. Friend to consider the consequences of this measure before he is so sanguine, as he seems to be, of altering the law of marriage in this country to the extent he proposes, without exposing himself to the argument that, on the same grounds as those he now urges in favour of this kind of marriage, he will be bound to admit as legal other unions from which he now revolts, and which he knows the Legislature would never tolerate. I will not enter further into the discussion of the measure at this stage, nor do I intend on any future occasion to argue this question upon what my hon. Friend conceives the opponents of the Bill will be likely to argue it, on theological, still less on ecclesiastical grounds. I found my arguments on this, and I believe I am right, that the last thing a nation ought to do is to alter its law of marriage, especially when a moral, religious, and therefore the best of all sanctions has been given to it by the usages of the country, by the feelings of the people, and by the high moral tone which the nation has derived from it. I deprecate any alteration of the law of marriage, which has been sanctioned 851 by the usage of so many centuries; but I still more deprecate any alteration of that law unless you are satisfied that you can take your stand upon some intelligible principle, which will prevent the alteration being extended still further hereafter. My firm belief is that you cannot do that. My firm belief also is, that if the people of this country were fairly canvassed with reference to this question, the great majority of them would say, as they have said hitherto, "Leave the law as it is." Give the greatest freedom you can to the people to marriage provided they do not break through those obligations which have contributed more than anything to raise this country to the high position as to morality which it now occupies, but do not peril this upon any imaginary notion of general freedom, unless you can prove upon grounds of morality that that freedom will not deteriorate, as I believe this measure will deteriorate, "the moral condition of the people of this country."
§ MR. MONCKTON MILNESsaid, he wished to explain that he had strictly confined his remarks to the case of marriage with a deceased wife's sister. That was the subject to which, following the usage of the House, he had endeavoured to restrict himself, and he had no apprehension that the provisions of the Bill would be extended to any other relation of life. He wished for no change whatever that was not required by some large body of public opinion in the country.
§ MR. VINCENT SCULLYsaid, he thought the question was eminently a question for the consideration of the hon. Member's countrymen, and still more of his countrywomen. The House ought to be guided exclusively in the matter by the feelings of the women of the country. He had done all that lay in his power to ascertain what were the feelings of his own countrywomen on the subject. They were unrepresented in that House, and he entirely surrendered his judgment to what he might consider to be their feelings and instincts, for, of course, whenever a measure was passed in England it was likely to be extended to Ireland, and he had always found that they revolted against such a law. He had descended amongst the lowest classes of his countrywomen and found that such a men-sure was as repugnant to them as it was to the higher classes, and he would, therefore, vote against it.
§ Motion agreed to.
852§ Bill to legalise Marriage with a Deceased Wife's Sister, ordered to be brought in by Mr. MONCKTON MILNES, and Mr. BUXTON.
§ Bill presented and read 1°.