LEAVE. FIRST READING. (Hansard, 11 February 1862)

MR. MONCKTONMILNES
The subject which I have the honour to bring before the House is one which does not require any lengthened introduction, and I believe I shall be likely to conciliate the good will of hon. Members on both sides by saying as little as possible upon it. Last year, when a similar measure was brought forward for a second reading an hon. Member opposite moved an amendment to the effect that it was impolitic to do anything which should increase the dissimilarity of the law of marriage in the three kingdoms. That amendment was carried by a majority of five, and, on consulting my friends as to whether it was desirable in the face of that decision to proceed with the Bill, I found it was generally thought, although the amendment was not strictly germane to the Bill, and although its adoption had not in any way defeated the second reading, that it would be better, in deference to the opinion of the House and in order to save time, not to press the Bill further. I acted upon that advice, and therefore, in bringing forward the Bill now I beg it to be clearly understood that last year it was not defeated upon the second reading, and that if the House should permit it to proceed to a Beyond reading this year that will be the first decision upon the question which has taken place in the present Parliament. It will be found that, in obedience to the decision of the House, I have made no difference in 164 the present Bill between England and the other parts of the United Kingdom. The Bill will extend to Scotland and Ireland, and, therefore, the object of the amendment which the House adopted last Session will be fully accomplished. I am fortified in the opinion that it is wise to include Scotland and Ireland by the good will with which the measure has been received in those parts of the United Kingdom. Since it has been known that it is intended to include Ireland in the Bill I have received numerous promises of support from that country. I shall soon have the honour of presenting to the House a petition from Dublin, signed by a large majority of the Protestant clergy, and by almost all the principal inhabitants of that city. It is no secret, indeed, that at least half the Protestant bench in Ireland as well as a large proportion of the higher clergy are in favour of the measure. The evidence of Cardinal Wiseman may be considered as decisive as to the opinion of the Roman Catholics. Indeed I cannot conceive how any Roman Catholic prelate, or priest, or even layman can oppose a measure which will place in a fair legal position those of their co-religionists who, under the dispensation of their own Church, have contracted the marriages dealt with in this Bill. With respect to Scotland, I shall take care that nothing is done to wound the feelings of any of the Scottish clergy, or to interfere in any way with the ecclesiastical part of the question. The Bill will refer exclusively to the civil rite of marriage; and here I may say that it is the civil question alone which I wish the House to discuss. Of the theological aspect of the case we have already had more than enough. Upon that point a great deal of acrimony has been displayed on both sides which we may well be spared on this occasion. Men of the highest estimation for piety and virtue have been loaded with opprobrium by persons who, at least, are not their superiors in those qualities, and who have merely given another unhappy example of the effects of the odium theologicum. It is peculiarly important that this Bill should be introduced this Session, because a great legal decision has been given since the question was agitated in this House, which places that large body of persons who have contracted these marriages on the continent in a totally new legal position. The decision in the case of Brookes v.Brookes" has carried misery to thousands of English homes. I appeal to you to 165 rectify that injustice, and to place the persons whom it affects in the legal position which they believed themselves to occupy when they entered into these marriages. The injurious consequences of that decision do not end here. Our colonies are placed in this anomalous and absurd position, that while marriages with a deceased wife's sister are valid in all colonies established before 1835, they are void in those established since that year. In the colonics established before 1835 there exists the English law which prevailed at that time. By that law marriages with a deceased wife's sister are voidable, but as there are no courts in those countries by which they can be voided the practical effect is that they are to all intents and purposes valid. While, therefore, in our older colonies these marriages are permitted, in such important colonies as New South Wales and Queensland they are not valid, because, although the Colonial Legislatures have passed Acts to legalize them, those Acts are now disallowed by the Colonial Office on account of the decision in "Brookes v. Brookes." The present state of things is most unhappy for our countrymen who have contracted marriages which—though you may say the law of England did not permit, it at least connived at—when they see persons of the highest respectability who contracted them before 1835, and, above all, when they see a most respected ducal family of this country enjoying all their privileges founded on the validity of such marriages. These things are an affront to the law of the country, and I trust, therefore, the House will approach the discussion of this question in a becoming-spirit. I beg to move for leave to bring in a Bill to render legal certain Marriages of Affinity.

§ MR. WALPOLE
—Sir, I am glad to learn one thing from the hon. Gentleman's statement, that whatever alteration he pro poses to make in the law of marriage he intends it shall apply to all parts of the kingdom. Nothing can be more inconvenient than that a marriage shall be legal in one part of the kingdom which is not so in another. I so far agree with the hon. Gentleman, therefore, that if any alteration is to be made in the law, that alteration should apply to the whole kingdom. At the same time I must tell him that this can by no means do away with the fundamental objection I entertain to the change which he proposes. Indeed, I cannot see that he has done anything whatever to 166 remove it. He has not attempted to explain what is the degree of affinity within which marriages are to be allowed in future which are not permitted now. He says there ought to be one law for the whole kingdom. In that I agree; but is it not equally important that there should be one line which should include all, and beyond which all should be excluded? How, then, does he mean to proceed?

§ MR. MONCKTON MILNES:
With the single exception of extending to Scotland and Ireland, the Bill will be the same as last year.

§ MR. WALPOLE
—The Bill will relax the law within the nearer degrees of affinity, but not where they are more remote. It will enable a person to marry his wife's sister, but not his wife's niece. Why is a man to be privileged to marry two sisters if a woman is not to be privileged to marry two brothers? Until that question is fairly answered, and while you are really making a different law for the two sexes, it is not enough to say that you are making the law uniform throughout the kingdom. I do not oppose the introduction of the Bill; but the objections I entertained to the former remain as strong to this measure. I hope the House will never sanction an alteration of the law like this, which I believe, not merely on political and religious grounds, but on moral and social grounds also, will tend very much to unsettle and deteriorate the moral feelings and the social habits or the people of this country.