HC Deb 15 February 1871 vol 204 cc280-94

Order for Second Reading read.

Motion made, and Question proposed, "That the Bill be now read the second time."—(Mr. T. Chambers.)

SIR HENRY SELWIN-IBBETSON

, in moving that the Bill be read a second time upon this day six months, said, that, considering the frequent discussions which had taken place on the subject, and that every argument on either side of the question had been exhausted, he should not deem himself justified in detaining the House more than one or two minutes. He regretted that some hon. Gentleman who had taken a more prominent part in their discussions on this question had not given Notice of an Amendment to the Motion of the hon. and learned Member for Marylebone (Mr. T. Chambers). Feeling, however, strongly on the subject, and knowing that a great many hon. Members concurred in opinion with him, that a measure of this great importance should not be allowed to pass sub silentio, he no longer hesitated to place upon the Paper his Notice of Amendment. Having given this brief explanation, he felt that he should be studying the feelings of hon. Members on both sides of the House by simply moving the rejection of the measure.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Sir Henry Selwin-Ibbetson.)

MR. KNATCHBULL-HUGESSEN

said, that though he did not intend to take part in the discussion on this question, he considered that it would be not acting respectfully either to the supporters or opponents of the measure if the House were to come suddenly and unpreparedly to a division upon it. Inasmuch as an important meeting was announced for to-morrow on the subject, he was in hopes that the hon. Baronet would have been induced to take the wiser and more respectful course of deferring his opposition to the Bill, until, at all events, the result of such meeting was ascertained. Notwithstanding, however, the hasty opposition of the hon. Baronet, he (Mr. Knatchbull-Hugessen) was still not without hopes that, considering the frequent decisions of that House upon the question and its present aspect, those hon. Gentlemen who had hitherto opposed this relaxation of a vexatious restriction would come to the conclusion that they had fought long enough against a relaxation which had over and over again been carried in that House, and which had been carried by a larger majority than ever in a Parliament elected by household suffrage. Every argument for and against the Bill had frequently been adduced; but when he considered that the question was looked upon with great interest by a large body of hon. Members and a very large party in the country, he could not but feel that it would be wrong that the second reading of the Bill should be taken without even the slightest discussion. No doubt it was a very serious thing to alter the marriage laws of the country. He could quite appreciate and understand the feeling of those who urged that view; but the proposition before the House was not a hasty, sudden, or ill-considered alteration of those laws, but an alteration which had frequently been pressed upon their attention, which had the support of a very large number both of clergy and laity, and which was regarded with great anxiety by a considerable portion of the community. The Bill was not likely to be a subject for popular agitation. The sufferers under the present system were not so numerous or so influential as to command a popular agitation, and that which, under other circumstances, would have been deemed tyrannous, might still longer be endured without that agitation to which he had alluded. That there should have been wrong done to even one person in this country was, however, a subject worthy of the consideration of the House; but in this case wrong had been done to a large number of persons. Here were certain marriages, the contractors of which were received in society, and were not considered in any respect as having done anything unlawful, although they might be considered by certain religious communities to have offended against the laws of those communities. The question was whether, because a man did that which was legal in many other counties, and which was regarded as no offence against the social law of his country, there should remain upon the statute book a law which inflicted upon him as cruel a punishment as could be inflicted. He himself knew of individuals having gone abroad to other countries where these marriages were allowed to be contracted, and having contracted them in the belief that they would be held legal in this country. They were persons of good station in life, and above any suspicion of immorality; and although they had taken every precaution to fulfil the law by a decision given in the Courts of Law a few years ago, their issue had been bastardized and the marriage declared null. The burden did not rest upon persons in the upper and middle classes of society. Although he objected to the use of cant phrases in that House, yet it could not be denied that this was a "poor man's question," and one which, as such, ought to be dealt with carefully and tenderly. He had been told that the women of England were against the granting of this relaxation of the law of marriage, and no doubt where the influence of persons in Holy Orders had been brought to bear the feeling of the female population was against it. He did not believe, however, that the women were at all so unanimously opposed to the Bill as was generally imagined. It had been urged that if these marriages were allowed the unmarried sister of the wife would be placed at a great disadvantage, and under circumstances of suspicion, and that, in fact, she would not be asked to stay in the house of her married sister because there would be a suspicion around her, and that jealousy would arise, and the happiness of homes be interfered with. That was simply a libel upon the women of England. He believed that a woman who would be jealous of the sister to whom her husband might be married after her decease would be equally jealous of her under existing circumstances. He did not believe that, in this respect, this alteration would make the slightest difference among the working classes, where these marriages were very frequent. He knew it to be the case that in many instances the wife on her death-bed asked her husband to marry her sister, and to take that sister as a stepmother to his children in preference to any other woman. It was not an unnatural conclusion that that stepmother would be more inclined to love the children than any other woman would. He had known many curious instances of hardship occurring from the existing state of the law. In once instance a yeoman, dying, left his farm to his three daughters jointly whilst unmarried. Two of the sisters married, and one of them dying, her husband married the third sister, who refused to give up the farm when called upon to do so, on the ground that although she was married the marriage was illegal. That, of course, was only one of the many ridiculous circumstances created by the present law. He looked upon this question as a Churchman, and he believed that it was an injury to the Church of England to have this restriction preserved. He felt that, living in a country where religious freedom was boasted of, the Church of England would act harshly and ill-advisedly in endeavouring to force its restrictions on those who were not members of her communion. The canon laws of the Church were talked of, but if a poor man who was asked by his wife on her death-bed to take her sister after her decease were talked to about the canon laws, he would reply that there was something far higher, and, unless he were shown something more valid than a relic of ecclesiastical tyranny, he would not be bound by the canon law. This relaxation of the law had been asked for by many thousands of the people, and it had been pressed upon the attention of the Legislature over and over again. He did not say that there might not be other restrictions which might be removed; but this was a great grievance, and minor grievances would not be prevented from being brought forward by refusing to redress that which was an undeniable grievance. By granting this relaxation the House would be granting a great boon to the country. It was a question of civil and religious liberty which was deeply infringed by imposing upon the people of England a restriction which was not justified by common sense, by reason, or by the will of the people, whilst it was not imposed by other countries, and was contrary to the convictions of many of the clergy and laity and against the unanimous feeling of all the Nonconformist bodies in the country. He would not touch upon the religious part of the question, for whatever opinions a man might hold on religious subjects he had no right to force them down the throats of other people. The Church of England existed by the good-will of the people, and that good-will would not be strengthened by the continuance of this restriction. It was a significant fact that it was by the votes of the Bishops that the Bill had previously been prevented from becoming law. The whole subject had been frequently argued, and the arguments appeared to be so overwhelming in favour of the Bill that he thought the House would sincerely and heartily vote for it.

MR. MONK

said, he did not rise for the purpose of prolonging any debate upon this well-worn subject. He had great doubts whether the hon. Member for West Essex (Sir Henry Selwin-Ibbetson) had adopted a wise and judicious course in moving the Amendment. The House having on several occasions, by large majorities, expressed its determination that this Bill should become law, he (Mr. Monk), for one, thought that any further opposition in that House was both useless and injudicious. Whilst saying that, he might observe that his sentiments upon the question had undergone no change. He believed, in unison with many hon. Members, that the removal of the restrictions asked for would tend to sap the foundations of society, and interrupt the social intercourse which now so happily existed in the most intimate family relations. He could not, however, shut his eyes to the fact that the measure was largely demanded out-of-doors. He had on different occasions strenuously opposed the Bill; but he had done so fairly, and on Motions for Adjournment he had generally voted with the hon. and learned Member for Marylebone (Mr. T. Chambers). The time had now come when it ought no longer to be opposed in the House of Commons, and if the battle was to be fought at all, as he hoped it would be, it should be in "another place." He, however, appealed to the Government to bring in a far more comprehensive Bill than that before the House; one embracing the whole law of marriage, so as to touch more than one degree of affinity, in accordance with the Report of the Royal Commission to which the hon. and learned Member for Richmond (Sir Roundell Palmer) drew attention as long ago as 1869, and at that time elicited a promise from the Secretary of State for the Home Department that the Report should receive the attention of the Government with the view to legislation at an early period. He was not surprised at the omission of the subject from the Royal Speech at the commencement of the Session of 1870, seeing the business it was proposed to dispose of; but he was surprised to find it was not mentioned in the Speech delivered at the commencement of the present Session. The measure under consideration was exceptional, whereas the Royal Commissioners recommended uniformity; and he earnestly urged the Government to use their influence to set this measure aside, and to pledge themselves to introduce a comprehensive measure on an early day to establish a general law of marriage for the three kingdoms.

MR. CAMPBELL

said, it was not his intention to ask the House to listen to any lengthened remarks, because he agreed that the subject had been pretty well exhausted in the two last Sessions; but he wished to remove what he believed to be a misapprehension as to the state of feeling in Scotland on the question. There was a general impression in and out of the House that the Scotch people entertained a feeling of great repugnance to the change, and were entirely opposed to the Bill; and so strong was that feeling that Notices had been put on the Paper, on previous occasions, of Amendments to except Scotland from the operation of the measure. Now, he believed that that was an entirely mistaken notion. There was no doubt — and he allowed that at once—that many years ago there was a strong feeling of opposition to this reform of the law in Scotland, but every year that feeling had become weaker and weaker, and now it was confined—so far as he could make out—to ecclesiastical circles; and when they went beyond the atmosphere of Kirk Sessions and Presbyteries there was a general feeling—he did not say enthusiastic desire—on the part of the people of Scotland to accept that change. Of course that was not very easy to prove or disprove; but he would produce two facts to substantiate the statement he had made. His first was that there were several Members of Parliament who had supported the Bill consistently during the last two Sessions, and since doing so they had visited their constituencies, and he had not heard that there was any whisper against their conduct in connection with the matter. He himself was certainly not taken to task for it, and, so far as he could gather from the newspaper reports, neither were any of the others. Another fact was this—he had taken the trouble of going over the Petitions presented to that House with regard to the Bill. He did not mean the Petitions presented in favour of it, for they knew how such Petitions were sometimes got up, and he did not regard them as a very certain index of public opinion; but taking the Petitions presented against the Bill, he found that in 1869 there were 209—of which no fewer than 118 came from Scotland. Now, that was rather a startling fact; but when he came to analyse those Petitions, it appeared that no less than 116 out of the 118 came from Kirk Sessions, Presbyteries, Synods, General Assemblies, and other bodies of that kind, and there were only two Petitions which represented the general feeling of the people of Scotland. One of those Petitions came from Irvine, with 52 signatures, and the other under the somewhat pretentious title of "the Petition of Noblemen and others of Scotland," was signed by 115. Last year he found the total number of Petitions against the Bill was 56, of which 53 came from Scotland, and 49 out of these were from Kirk Sessions, Presbyteries, and so forth. Another came from a small parish, and had only 22 signatures. There was another from the Scottish Branch of the Marriage Law Defence Association. Then there was one from Rothesay, and another from the Town Council of Edinburgh. The Petition from the city of Edinburgh rather surprised him, but any conclusion founded upon that Petition might be modified when he said there was a counter-Petition sent from the numerical majority of the Town Council stating that the former Petition was smuggled through when there was only a small attendance. There was this further somewhat significant fact, that, out of a total of 171 Petitions from Scotland, 165 of which were ecclesiastical Petitions, 103 came from the Free Church of Scotland. He did not disparage the authority of those bodies, and did not wish to undervalue the weight of their influence in Scotland, or say one word against their raising their voice on any subject they thought fit; but the view they took of such a question—without speaking disrespectfully — was somewhat narrow, technical, and professional, and this was not the political view. The Scriptural argument was pretty generally given up, and it must be remembered they were not there as the governing body of a religious community, laying down rules for the guidance and discipline of its members, but as a civil Legislature, determining what was best and most expedient for society and for the State. That made all the difference. It would still be in the power of those bodies to restrain their followers from contracting those marriages, even should the Bill be passed; but he hoped the House would cease to interfere with the liberty of any man or woman to contract what marriage they pleased so long as they did nothing to disturb society. For those reasons, and acting as he believed consistently with his position as a Scotch Member, he should feel it his duty to support the Bill of the hon. and learned Gentleman.

MR. ORR EWING

said, had it not been for the remarks that had just fallen from the hon. Member for the Stirling Burghs (Mr. Campbell), he should have given a silent vote against the Bill; but, as it was, he must trouble the House with one or two observations. He was very much afraid that since that hon. Gentleman had ceased to live north of the Tweed he had lost some of those good Scotch opinions which he used to entertain in his youth. He was afraid, also, that he was rather ignorant of the real state of feeling among his countrymen upon the question. He ventured to call the attention of the House to one fact in vindication of his contradiction of the assertion the hon. Gentleman had made with reference to the feeling of the Scotch people. They all knew that the people of Scotland were divided in religious matters into several sects; but they knew also that by far the greater portion were Presbyterians, belonging either to the Church of Scotland or to the Free Church of Scotland; and that they might be said truly to represent the feeling of the Scotch people. They had found that Petitions had been numerously and unanimously passed in the General Assemblies of both those Churches over and over again. The hon. Member for the Stirling Burghs had referred to the Petitions from Scotland, which constituted by far the larger number of Petitions that had been sent in against the Bill, as being of no significance, because they had been agreed to by Kirk Sessions and Presbyteries. He would, on the other hand, remind the House of what was the constitution of those bodies. It ought to be remembered that the Kirk Sessions were composed almost entirely of laymen. In every Kirk Session there were 12 laymen to one clergyman; and he thought that a stronger proof of the feeling of Scotchmen on the question could not be given than the fact that those Kirk Sessions had petitioned against the Bill. The real fact was that the people of Scotland trusted to those matters being looked after by the Kirk Sessions and the Presbyteries. Consequently, upon this question they had been satisfied by having those Petitions presented by those bodies, knowing very well that they fully represented the feeling of Scotland generally. He had merely said that for the purpose of contradicting the statement made by his hon. Friend—a statement which he considered to be totally at variance with the real facts of the case as regarded the Bill.

COLONEL SYKES

said, he had hitherto abstained from speaking on the subject. His objection to the Bill was not based on religious but on social grounds, because during a long life he had had unfortunate opportunities of seeing the results of such a law as that which was now proposed to be sanctioned. He could confirm the statement of the hon. Gentleman who had just spoken, that the Kirk Sessions of Scotland were not absolutely ecclesiastical, but were composed of leaders from the people, and nine-tenths of them were laymen. Therefore, those 165 Petitions were the expression of the people, and not merely of the clergy. The clergy were not the majority in any Church, whether Episcopalian, Presbyterian, or Free. The people of Scotland generally were opposed to the Bill, and therefore he should not support it.

MR. MORLEY

said, that all the supporters of the Bill claimed was freedom for those who believed that marriage with a deceased wife's sister was not repugnant to religion or morality. In thousands of cases it was the most natural marriage a man could contract. He was quite in a condition to say, from his knowledge of the working classes, that in consequence of the restriction imposed by the existing law, concubinage was extending amongst them, and that they were losing their regard for the sacredness of the law of marriage. Some mode of settling the question should be discovered, for the present law led to bad results. The ecclesiastical authorities had given up the Bible argument against the proposed change. A large number of Bishops, the clergy of the Established Church, the Roman hierarchy, and the Jewish Rabbis had given expression to their conviction that these marriages were not contrary to the law of God, and it was a fact that they were sanctioned in every country in the world except Great Britain and two or three of the Colonies. The House of Commons had repeatedly passed the Bill, and he trusted it would now give its usual imprimatur in favour of an alteration of the law. He should, at all events, join the hon. and learned Gentleman in sending the Bill to "another place," in the hope that it would at last receive there the only treatment it ought to receive.

MR. T. CHAMBERS

stated that, having withdrawn the Bill in 1869 late in July, he had introduced it again in 1870, and at the earnest request of the Opposition he had postponed the second reading until after Easter to allow of full discussion. At the close of that full discussion a large majority, for the fortieth time, sanctioned the provisions of the Bill. This year he had introduced the measure at the earliest possible moment, and, fortunately, for those who desired discussion he had secured the first place on the first Wednesday of the Session for the second reading. Thinking it unnecessary to weary the House with arguments which had been repeated until there were none to reply to them, he had simply moved the second reading; but surely something more was expected of the hon. Baronet (Sir Henry Selwin-Ibbetson), who had succeded to the post assumed by a long line of hon. Members, beginning with Mr. Goulburn and Sir Robert Inglis, and coming down to the representatives of Cambridge University (Mr. Beresford Hope and Mr. S. Walpole). His predecessors had thought it due to the House to offer some reasons for the opposition they made; but the hon. Baronet thought it becoming to move the rejection of the Bill in half-a-dozen sentences. Of course, the hon. Baronet hoped to snatch a division that would have enabled an aristocratic assembly at Willis's Rooms to-morrow, presided over by the young heir to an old dukedom, to flatter themselves and blind the public by an apparent shifting of opinion in the House of Commons. Accordingly, the hon. Baronet had refrained from delivering the speech he had taken weeks to prepare, in the hopes of procuring a reduced majority at half-past 12. But he could assure the hon. Baronet that a trick never answered but for a short time; and he had no doubt that, notwithstanding the self-denial of the hon. Baronet in keeping his speech in his pocket, the speakers at Willis's Rooms would not be able to grow eloquent on a reduced majority, a vacillating House of Commons, and a change in public opinion. It was difficult to speak in support of a measure against which no arguments had been urged; if the hon. Baronet would but let him have the notes of his speech he promised to answer every argument contained in them. The religious argument was wholly abandoned, and, indeed, he could not understand how it could have ever been brought forward after the passing of the Act of 1835. The social argument against it had also been abandoned. What Parliamentary precedent was there for such pertinacious opposition to the measure? [A laugh.] The hon. Baronet laughed; but there was no argument in a laugh, and not much courtesy in a laugh. For 20 years the House had passed this Bill; more than 40 divisions had been taken upon it, and five times it had gone up to the House of Lords. Surely this was a lesson to the House of Commons not to do in haste that which they might afterwards desire to undo. The Act of 1835 was a fraud upon the House, and it was only passed on the understanding that the mischief would be remedied early in the ensuing Session. That had never been done, and it was a lesson to the House never again to assent to a Bill to be remedied in the following Session, if, as experience showed them, it required 36 years to achieve that object. Every conceivable form of opposition had been adopted in that House to defeat the Bill, but hitherto without success, and he hoped the one adopted on that occasion would fail also. As regarded the argument that the law should not be made to differ in different parts of the Empire, he might remark that in some Colonies such marriages were allowed, in others void, and in others again voidable, while in several where they were not legal they would have been made so but for the Home Government, which interposed in order to prevent confusion in such matters. Five times over the Legislature of South Australia had sought Imperial sanction for the change in the law now proposed. In Western Australia and Canada the feeling was the same. The question affected the whole Empire, and he (Mr. T. Chambers) desired the establishment of uniformity in the law, which could only be secured by making the change which he proposed. In favour of that change there was, even in the House of Lords, an absolute majority of the hereditary Peers, and the whole kingdom was now waiting for the pleasure of four Bishops, who must stand entirely on the social objection, in which they were opposed by parochial clergymen of the greatest experience. From the time of Bishop Jewell down to the present day this question had been fought and argued out, and everything showed that the House of Commons was in the right. Moreover, he had a deep conviction that public feeling in Scotland was growing in favour of the Bill. On these grounds he contended that the Bill ought without delay to pass into law.

MR. HINDE PALMER

, in supporting the Motion, said, that was a subject on which there existed, no doubt, throughout the country a great diversity of opinion. His own conviction was that an overwhelming majority of the thinking portion of the community were in favour of that Bill, although that was no reason why those who were conscientiously opposed to it should be reproached for seeking on all legitimate occasions, if they chose, to have their views confirmed by the House. Uniformity was most desirable in the marriage law, and he trusted that before long the Government, acting on the Report of the Royal Commission on the subject, would bring in some measure for placing all the marriage law of this country upon one clear, definite, and certain basis. In any such measure he thought it would be well to incorporate the present Bill. He saw the prospect of "the religious difficulty" cropping up before them on various occasions; but it was satisfactory at least to feel that that difficulty had been got rid of in connection with that discussion. With regard to the moral and social aspects of the question—and these were the only grounds upon which the Bill was now opposed—he had the strongest conviction that the moral and social considerations were on the side of his hon. and learned Friend. It was a great mistake to suppose that the restriction now sought to be removed affected the better-off classes of society merely; it had a most pernicious operation on the working classes, and it was mainly on their account that he supported its removal. Our richer countrymen desirous of marrying their deceased wives' sisters could easily go to parts of Germany, where such marriages were perfectly legal, and satisfy their own consciences by having them duly solemnized; but poor men could not afford to go abroad for such a purpose, and, therefore, if they wished to contract a marriage of that kind, they were obliged to go on living in a state which our law stamped as concubinage. In this sense, therefore, the existing law operated unfairly as between class and class. It was urged that if they passed that Bill they would alter the whole social habits of families, and no wife's unmarried sister could, live in free and familiar intercourse under the same roof with the husband and wife. That supposed effect of the measure was, he thought, enormously exaggerated; and the same objection might logically be pushed almost to the length of saying that they could have no unmarried young lady whatever living on familiar terms in the same house with a husband and wife. The objection was one of a conventional and overstrained character, and founded on the feelings of classes of society that were much more sensitive on such points than the working population generally. He maintained that the social and moral evils arising from the present state of the law far outweighed any likely to be created by the proposed change; and on every ground of policy, justice, domestic happiness and virtue he hoped the House would re-affirm the principle of that Bill. He fully admitted the right of the opponents of the measure to challenge the decision of the House upon it; but it was neither fair nor decent on so important a matter that a division should be taken in any way by surprise.

MR. DENMAN

said, that he did not suppose there had been any intention to take the House by surprise. According to the view entertained by certain hon. Gentlemen who had strong conscientious objections, they felt it to be their duty to take the sense of the House, in order to put upon record their dissent from the principle of the Bill; but undoubtedly had the hon. Member's Motion been put to the Chair at once, the result at so early a period of the day, when the House was thin, might have encouraged those who objected to the Bill, in "another place," to misunderstand the true feeling of the House in reference to the question. While admitting that the opponents of the measure had a perfect right to take a division at this stage without further discussion, he, and hon. Members in favour of the Bill, were, by the very silence of its opponents, entitled to say that the subject had now been thoroughly exhausted; and if proof were demanded of thin fact, he had only to remind the House that, until the arrival of the right hon. Gentleman the Member for the University of Oxford (Mr. G. Hardy), who at that moment had become visible to his eyes, the front Opposition Bench was vacant. He would only add that if, as he supposed to be the case, it now appeared to be the feeling of hon. Members opposing the measure that this question must soon be finally settled by legalizing these marriages, it would be cruel to keep the question open longer, and to bastardize many children year after year.

Question put, "That the word 'now' stand part of the Question."

The House divided:—Ayes 125; Noes 84: Majority 41.

Main Question put, and agreed to.

Bill read a second time, and committed for Friday.