HC Deb 12 February 1873 vol 214 cc299-328

(Sir Thomas Chambers, Mr. Morley, Mr. Leith.)


Order for Second Reading read.


in moving that the Bill be now read a second time, said, he must express his regret that he should have occasion to trouble the House again in reference to a question which had been so frequently brought under their consideration. The measure had been before the House of Commons during the last 24 years, and during that time no fewer than 66 divisions had been taken at different stages of its progress. Of that number 63 were in its favour, and of the three which went against it one was taken upon a point which did not touch the substance of the Bill, but expressed—and properly expressed—the opinion of the House, that any change to be made in the existing marriage law ought to apply to all parts of the United Kingdom. Had he been a Member of the House at the time that division occurred in all probability he should have voted in the majority, notwithstanding that it had the effect of defeating the measure. The other two divisions went against the Bill, but each time by narrow majorities. The measure had been sent up to the House of Lords no less than six times, and had each time been rejected by that House. Still he was encouraged to persevere with a measure which those who supported it regarded as one of simple justice, and therefore at the earliest possible period of the Session he brought the subject again before the House. It was undoubtedly a question which it was desirable to settle, and that as speedily as possible. Hon. Members below the gangway at the other side of the House had one great advantage in their opposition to the Bill. They could not, it was true, obtain a majority; but owing to the extreme pressure of business, and to the limited time allotted for the legislation of private Members, they had an opportunity by a very conscientious but certainly strong exercise of their power in relation to the forms of the House, of defeating a measure by delay which it was impossible to defeat by the securing of a majority. There was not much that was new to be said on the subject of the Bill—the House and the public were familiar with the arguments in favour of the Bill, and the objections which had been urged against it. The supporters of the Bill did not seek, as had been stated more than once, to make any fundamental change in the marriage law of the kingdom—the fundamental principle of the marriage law was stated in the Statute of Henry VIII., which regulated marriages, and it was this—that all persons might lawfully be married whom God's law allowed to be married. What they desired to do by this Bill was to carry out that principle. There was no mistake in the enactment to which he had referred—there was no mistake in the principle on which it proceeded; the mistake was in a prohibition which was contrary to that principle. The first and chief objection taken to the Bill was what was called the religious objection. He had argued before and must argue again that so far as scholarship and criticism could meet an objection—so far as it was possible to decide a question which lay within the region of opinion—that objection must be treated as having been finally and conclusively disposed of; because, as the result of the most recent investigation, they had on the highest authority—namely, The Speaker's Commentary—a decisive expression of opinion that the passage of Scripture on which the controversy turned did not forbid, but, on the contrary, impliedly allowed the marriages in question. It was impossible to urge the religious objection after the unanimous testimony of those who were skilled in the language and antiquities of the Jews—in the face of Petitions in favour of the Bill signed by every Jewish Rabbi in the kingdom, and of the fact that, with the exception of a small fraction of foreign Jews—a mere sect—there was universal assent amongst the Jews on the subject, and that there had been no variation either of interpretation or of practice. Marriage with a deceased wife's sister was not only allowed, but allowed within a shorter period than in the case of marriage with any other person—a fact which showed the manner in which the Jews interpreted the Divine precept, and that it was one of which men might fairly and properly and honourably take advantage. Were the Jews wrong in not only permitting such marriages, but permitting them within a shorter period after the death of the wife than ordinary marriages? If they were, then they could arrive at no other conclusion than this—that the Divine precept had been misunderstood by the entire nation to whom it had been given. The argument against the Bill must go this length—that the Jews from the beginning misunderstood and misapplied the Divine precept. He (Sir Thomas Chambers), on the contrary, contended that they not only did not misunderstand it, but from the very first understood it and acted on it, and that a mistake was made in far more recent times which it was the business and duty of the House of Commons to rectify. A Bill was introduced into that House in the year 1849, but that was not the first time the question had been discussed or the House had expressed its opinion on the subject; because the mischief they sought to correct arose out of the Act of 1835. When the Bill came down from the House of Lords in that year there was considerable public agitation and discussion on the subject, and the House positively refused at first to make those marriages void in time to come. It was never the intention of Lord Lyndhurst, who prepared the Bill, to produce such a result; and until pressure had been put upon the House of Commons at the end of the Session, and the measure was represented as one which would afford relief to a large number of persons—until a pledge was given that at the earliest possible period the evil would be corrected—the House could not be induced to assent to the measure. But from that year, 1835, down to the present time, in spite of all that had been done to have that pledge redeemed, the law had remained unaltered and unimproved. It was, he thought, absolutely hopeless, with a large number of English and Scotch Protestants and Roman Catholics, Jews, and Christians—with the scholars of the Continent of Europe and of Great Britain—all unanimous on the question, to urge the religious objection any longer—and, indeed, he did not expect to hear it again pressed. And if that objection were not pressed, there was really no other on which the opponents of the Bill could rely. The foundation and principle of the marriage law was to be found in the Divine law—if an objection could be based on the Divine law it must be fatal if it could be established; but if no such objection should be discovered, then he denied the right of any Legislature to impose restrictions upon marriages which could be justified by the Divine precept. Nor did he urge that argument as his own merely. It followed from the declaration in the Act of Henry VIII., to which he had referred. There was to be no other restriction than this—that the marriage was contrary to God's law; and the statute spoke of the immense evils which accrued from forbidding marriages which were not forbidden by the Divine law. The Legislature had no right to impose restrictions upon marriage merely upon the ground of expediency. But it was said that there were social reasons why it would be inexpedient to sanction those marriages. Well, in the first place, all the arguments urged upon that ground were purely conjectural. They all assumed that certain consequences which it was desirable to prevent would follow if those marriages were permitted. But experience showed that all such prophecies were groundless; that the apprehensions expressed were altogether baseless. All the friends of the Bill could do, until the experiment was tried, was to declare their conviction that the predictions in question were entirely without foundation. But the answer did not rest there; for, as he had said, they had experience to point to. In every civilized country in the world, except the United Kingdom and a few of its colonies, those marriages were allowed among Protestants and Roman Catholics, and he asked, What was the mischief which had arisen from such a state of things—what evil had this freedom occasioned anywhere? No trace of it was to be found in history—no mention was made of it in the literature of any country; it was nowhere referred to in the poetry of any nation; and it was but reasonable to assume that it would so appear if the evil which the opponents of the Bill predicted really existed or was likely to arise. Surely, then, if experiment were a fair test of the truth of prediction, the apprehensions expressed were not justified by the fact. The weight of testimony extending over so many centuries was, he submitted, a conclusive answer to the objection. And why, he asked, was England of all countries in the world to be the place where mischief was to flow from the exercise of freedom which in no other country was attended with such a result? Upon this part of the question it was fair to say that the history of England from the Reformation downwards, as far as it regarded the marriage laws, had been a history, not of restrictions imposed, but—with the exception of the Act of 1835—of restrictions removed—and yet what proof was there that the removal of such restrictions had led to licence or to social mischief, to profligacy or to wickedness? Had domestic honour or purity been in the least degree sullied by the removal of those restrictions so as to call for their re-imposition? He believed that no man could stand up in that House and say that such was the case. Those who opposed the removal of this restriction were, in truth, seeking to uphold a new restriction which had been imposed in 1835. ["No, no!"] Lord Campbell said in that House in 1835, previously to the passing of the Act of that year, that all these marriages were primâ facie lawful, and could only be set aside by a suit in the Ecclesiastical Courts; and yet who ever had heard previously to the passing of that Bill that the freedom of marriage in this degree had degenerated into licence? During that period no scandal had arisen in consequence of the removal of these restrictions, and it was a misfortune when the law imposed a stigma which society did not endorse. Then what had been the action of Her Majesty's Government in relation to this question? They sanctioned last year the Act legalizing these marriages which had been passed by an Australian Legislature. Would they have done so had they believed that by so doing they would have been sanctioning incestuous and wicked marriages? This was a conclusive proof that, in the opinion of Her Majesty's Government, there was not a tittle of foundation for the argument that these marriages were immoral, or that mischiefs were likely to arise from them. The general stream of public opinion out-of-doors was in favour of the removal of this restriction. It had been said that Scotland was opposed to its removal; but out of the 80 municipal bodies in Scotland 32 were in favour of this Bill, while only one had petitioned against it; and an immense number of Petitions signed by members of all parties and denominations had been presented from that country in its support, showing that the feeling in that part of Her Majesty's dominions was daily increasing that the existing restrictions upon these marriages should be removed. It might be said that it was very easy for an energetic organization to get up Petitions in favour of any proposition; but it was not so easy to induce representative corporations to present such Petitions. But what was the fact? Why, no less than 240 representative corporations had petitioned in favour of the removal of the restriction upon these marriages. In his opinion, that was an overwhelming argument to prove that in the opinion of those corporations, at all events, there was nothing wicked or likely to entail social mischief in these marriages, and that a real grievance did exist under the present law. The Corporation of London had petitioned four times, that of Dublin three times, and that of Edinburgh twice in favour of this Bill; and, further, similar Petitions had been presented over and over again by representative Church bodies in Scotland. The reason the law had not been altered up to the present time was, first, that the House of Lords had several times rejected measures passed by the House of Commons for the removal of the restriction complained of; and, secondly, that Bills had been defeated in that House by a policy of simple delay, and the employment without forbearance of the forms of the House. The majorities in the House of Lords which rejected the Bill had gradually dwindled to four; until on the last occasion—in 1871—by an extraordinary effort on the part of those opposing the Bill, it had been temporarily raised. It was worthy of note that the majority of the English temporal Peers had always been in favour of this measure, and that the Bill had been rejected practically by the Representative Peers of Ireland and Scotland and by the Bench of Bishops. The hon. Member for the University of Cambridge (Mr. Beresford Hope), who had had such personal and bitter political reason to remember this subject, and who was the centre of the opposition to this measure, claimed to represent the opinions of the clergy of the country on this question—and in their name stood in the way of a great social reform. But did he actually represent their opinions by opposing this Bill? When Bishop Blomfield endeavoured some years ago to get up a great demonstration among the metropolitan clergy against the proposal to remove the restriction on these marriages, the great body of the clergy refused to sign it—and, in fact, only one-tenth of that body signed it—and the attempt was abandoned. It was the opinion of those who had looked closely into the question that the great majority of the clergy of this kingdom were in favour of an alteration of the law. That was another strong proof that immorality was not likely to result from the removal of this restriction:—it was, in truth, known that in large populations the perpetuation of this restraint conduced to immorality, which was an existing evil far more serious than any of the conjectural mischiefs prophesied by the opponents of the Bill. Turning to the details of the measure, he conceived that unless it were to have a retrospective effect, saving vested interests, it would be absolutely worthless. Of course, where property or honours had passed into other hands in consequence of the operation of the present law, it was not intended that this Bill should have the effect of disturbing the present possessors—and he might remark that one of the mischiefs of such a mistake as this was that it was afterwards impossible to do complete justice to one without doing injustice to another-but, at the same time, the stigma at present resting upon the issue of these marriages should be removed. As people would never become indifferent to an evil of this kind, the agitation would never be abandoned; but, meanwhile, in every year of delay, wrong to innocent parties was continued. A similar measure had been rejected by the Upper House in New Zealand by a narrow majority; and it could not be doubted that this time next year all our Colonies would have rendered legal these marriages, which would then have received the moral support of the whole world with the exception of ourselves. The consequences which would flow from our law being different from that of our Colonies in this respect would be most unfortunate, and would lead to perilous questions with reference to property and reputation. Pains had been taken to get the highest opinions as to whether the issue of such a marriage, solemnized in one of our colonies where it was legal, would be legitimate in this country, and the opinions of Lord Campbell and Lord Cranworth had differed from those of Lord Wensleydale and Mr. Justice Cresswell on the subject. The only sure way of getting rid of these dangerous questions was to make the law on the subject uniform throughout the whole of the British Empire. He begged to conclude by moving the second reading of the Bill.

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


Mr. Speaker—Sir, I do not think that, if the question had been so conclusively settled from the hon. and learned Gentleman's own point of view, as he assumes, that he would have brought forward so long and elaborate an argument. I look at that clock, and it tells me that the question is one which is still under hot debate, and it cannot be settled by positive assertions, whether they are made by the hon. and learned Gentleman or by myself. I shall, for my part, endeavour to limit myself to facts, and abstain from fancy statistics and inferential suppositions as to the number of the clergy, or of laymen, or of Dissenters who are or are not against the Bill. What figures I present shall be facts and not guesses. In the course of his speech the hon. and learned Gen- tleman talked of "personal and bitter" reminiscences on my part, and I thank him for bringing the incident to my recollection. My reminiscences are decidedly personal, but certainly not bitter. On the contrary, the incident to which he refers is one to which I shall never look back without satisfaction. It has direct relation to one of the points which the hon. and learned Gentleman thought most telling in his speech. He asked—"What are we to think when we find that 240 corporations in England have petitioned in favour of the Bill: is not that an argument against there being an organization in its behalf? My answer to that is, that I think it very strong evidence that there is an organization; that the organizers have gone to work meaning business, and have worked with good effect, which is easy to do, upon the feelings of the smaller borough corporations. The first seat that I had the honour to occupy in this House was for the borough of Maidstone; and in that borough was a gentleman, high in the councils of the party to which I then and still belong, who was a witness in his own name before the Commission over which the Bishop of Lichfield presided. So there was no secret about the matter; still, out of delicacy to the memory of that gentleman, who is now dead, I will not name him. He had unfortunately contracted an alliance of this kind, and the question was first raised in this House, not, as the hon. and learned Gentleman (Sir Thomas Chambers) stated, in the year 1849, but in 1842, when Lord Francis Egerton, afterwards Earl of Ellesmere, moved for leave to bring in a Bill, which leave was refused by 122 to 100. I opposed his Motion in 1842, as I have done since in similar cases. But let me here interrupt my narrative to repudiate for myself the honour which the hon. and learned Gentleman has thrust upon me of being the origin and centre of the opposition to this Bill. Ever since the year 1842 I have been its opponent; but not I, nor any others, could have been the opponents we have proved ourselves, if we had not been backed up by a strong, a respectable, and hitherto an overpowering public opinion on our side. But for my own share in the opposition I beg to state that I only take my part with others. There is my right hon. Friend (Mr. S. Walpole), whom I respect as my senior Colleague. He distinctly continues to oppose the Bill. Then there is the right hon. Gentleman the Member for the University of Oxford (Mr. G. Hardy); he also stands by us; so does the Attorney General and the late Chancellor of the Exchequer. Honoured names these are, and many more, both in and out of the House, and their faithful lieutenant and assistant I am proud to be in opposition to the Bill, claiming for myself no more credit than that of doing my duty to my country and my conscience. Well, I was one of the majority in 1842 who refused leave to Lord Francis Egerton to bring in his Bill. At the General Election in 1847 the question had become a little troublesome at Maidstone, on account of the private influence of that gentleman and of another person. It happened, however, that he was again mayor in 1847, having previously filled that office at the time of the preceding General Election. In 1817 I found myself again elected for the borough of Maidstone. The question was re-opened in that Parliament, and then, as now, I did what I could to throw out the Bill. As another General Election approached, it was represented to me that Mr. So-and-So was still more dissatisfied, and that some people feared that his opposition would be found sufficiently powerful to frustrate my chance, unless I gave some assurance that would be satisfactory to him on this subject. All I said was—"The only assurance that I can give you is that I do not care about coming in for Maidstone again, compared with defeating the measure, and that rather than not oppose it I will retire from its representation"—as I did. So that but for the opposition of this one gentleman on this particular question, I might have sat again for Maidstone in the Parliament of 1852. That, then, is an epitome of the history of the whole transaction. A few persons having contracted these alliances, or wished or determined to do so, have put the heaviest and sharpest screws upon their representatives, and have said to them—"Vote for marriage with a deceased wife's sister, or lose your seat." For this cause I lost my seat, whilst other persons who were more pliable, or their principles more elastic, retained theirs and swelled the Division List. I do not stand here to judge any man; but my experience at Maidstone is the answer I have to give to the hon. and learned Gentleman, and it supplies an explanation of the origin of the inflated and artificial agitation which has kept the question afloat so long. The scandal and gossip which we have all heard in private society and at the dinner-table it would be wrong for me to refer to in the House of Commons; but it all points to the same conclusion. I stood afterwards for a much larger borough—Stoke-upon-Trent—composed of several townships, with an aggregate population of above 100,000. In that borough, how many cases met me of such alliances? Two. Ono was that of a man in a humble station of life—a small basket-maker. He asked my opinion, and then said he could not vote for me, and I quite forget in which of the constituent towns I met him. This occurred when I was defeated for Stoke-upon-Trent, in 1862. In the second case, the person who had contracted an alliance of this sort was an influential member of the Conservative party in the borough. He, too, asked my opinion; and, on my reply, stated that though he agreed with me in politics, yet he could not support me. In the interval, during which I was not in Parliament, I still went on doing and saying what I could against the measure; and when I stood again, in 1865, this gentleman, out of respect for my not sacrificing my convictions to secure his support, became my warm supporter, was a member of my committee, canvassed for me, and helped to get me in; and yet one of the first things I did when I got back to the House of Commons was to give a vote that must have been exceedingly painful to him personally. These, then, are my "personal and bitter" recollections, and I make them a present to the hon. and learned Gentleman. I now come to his speech, and I own I was astonished to hear him—master of debate as he is—fall back upon that absurd arithmetical argument of 63 divisions for and 3 against the Bill. Of course, when a Bill has been carried a second time, and gets into Committee, and after it comes out of Committee, the subsidiary votes generally follow the bias of the great or principal vote. In fact, the division on the second reading, in nine cases out of ten, gives the colour to all the subsequent divisions on every Bill which raised without much detail some specific question. I hold in my hand an epitome of all the divisions that I cared to note down, for I decline to potter over all the 63. How a person who has the experience of this House that the hon. and learned Gentleman has, who respects himself, and looks upon us as men of common sense and understanding, could come down here with this clap-trap of 63 divisions, when we all know what that means, I am at a loss to imagine. It might do very well in combination with denunciations of the unconstitutional proceedings of the Lords and abuse of the Bishops at meetings in St. James's Hall, after a majority of lay Peers had defeated the Bill. There this sort of argument does very well. So it does at the end of papers signed "Joseph Stansbury, M.A.;" but for the representative of a great constituency, a learned and an honoured Judge, to stand up here, and with solemn face attempt to beguile us with these statistics, when he knows that all the divisions that the House will or ought to attend to are sonic six or seven on the second readings, or on stages equivalent to second readings, shows an amount of assurance on the part of the hon. and learned Gentleman for which I give him due credit. The assertion of the hon. and learned Gentleman is, that the House of Lords has repeatedly rejected the Bill, although the House of Commons has far oftener—namely, by 63 divisions—passed it. What does that come to? What are those figures, taken as they really are? Will it be credited by this House that, between the years 1859 and 1871, the House of Lords never had the opportunity given to it by the House of Commons, or by any of its own Members, of considering the Bill?

The hon. and learned Gentleman has dwelt on the continually rankling wrong and on the strength of public opinion on his side, and says that, of late, the grievance has reached an intolerable height. Granting all that, how does he account for that most extraordinary problem of his friends and backers being either unwilling or unable to bring the matter before the Upper House from 1859 to 1871? The reason is that, within those 12 years, the Bill came four times before this House, and, by a curious coincidence—if we are to believe the hon. and learned Gentleman, who made such turgid appeals to public opinion—the House of Commons threw it out three times. So that whilst he bestows upon the House the product of his rich fancy, I confine myself to plain fact and figure; and the fact and figure here is that between the years 1859 and 1871 the House of Lords was freed from the trouble of having to deal with the question at all, because in the rare and fitful intervals, when it was raised in this House, this House on three occasions out of four sent the Bill to the limbo of rejected measures. In the year 1859 the House of Lords rejected it by a majority of 10, and had peace for a dozen years, for in the year 1861 this House threw it out by 177 to 172. In 1862 it slipped through a second reading by a narrow majority; but another division on the Main Question being taken at the stage that the Speaker do leave the Chair, the Bill was defeated by 148 to 116. And in the year 1866 it was again thrown out by 174 to 154. That was the time when the hon. and learned Gentleman first made himself sponsor for the Bill; and be had then to mourn over the premature decease of his cherished offspring. Since that the hon. and learned Gentleman has been sailing down the stream of time at the head of decreasing majorities. True, there was a slight increase last year; but having in 1869 succeeded in getting a majority of 99, in the following year he found himself with a majority of 70 only, which, in 1871, he succeeded in bringing down to 41. The majority of 99 having collapsed to 70, and the 70 having collapsed, first, to 41, and then on the retrospective clause to 35, in 1872 the majority shot up again to near 50; but at present all he can credit himself with is the brilliant success of having, since the Bill has been under his patronage, sunk his majority from 99 to 50. That, then, is the history of this Bill in the present Parliament. Now, with regard to the House of Lords, the hon. and learned Gentleman says that that House shows signs of giving in; and that the feeling against the Bill in the House of Lords is getting weaker and weaker every year. What is the fact? The last time that the Bill was before the House of Lords was in the Session of 1871, and the majority against it was 26; the largest majority against the measure which that House has ever recorded. So much for the argument founded upon the divisions in the House of Lords. I am sorry to have detained the House so long upon it; but when I see such barefaced assertions and such juggling with figures—to throw dust in the popular eye—as this reference to 63 divisions in this House, I am bound to let the country know what is the true value of such representations.

The hon. and learned Gentleman dwelt for some time on the Statute of Henry VIII., and argued that his proposal involved no fundamental change in the principles of that Act, inasmuch as it declared that the only prohibited degrees should be those which were prohibited by God's law, and that he asserted that his Bill was based upon the same principle. But he must be aware, as a lawyer, that that is only fencing with the question. Is God's law, so to speak, codified? We know that it is not. We know that God's law is distributed through the various books of the Old and New Testaments, and that Christian men in different ages have gathered God's laws from these books; but that a distinct revealed code of God's law, in a systematic shape, upon which we can put our hands as on an Act of Parliament, unmixed with history, unmixed with poetry, unmixed with argument, unmixed with devotional utterance, does not exist. It was not God's purpose to give his law in the shape of a distinct and a naked code. It is scattered through the various books of Holy Scripture, and has been thence deduced in all its completeness by the wisdom, the instinct, and the learning of first the Jews, and then the Christians. So this Act of Henry VIII., when it declared that all marriages, and no other, were to be held legal that were made according to God's law, not only uttered what the hon. and learned Gentleman would make us believe was a pompous platitude, but gave a definite and restrictive legal meaning to that phrase by adopting the table of degrees of prohibition which now exists. Alter that list, and you make a fundamental change in the Statute law of the land; because those degrees which are according to God's law, in the terms of the Statute of Henry VIII., will no longer be the statutable expression of God's law, for something else will have been substituted for them, and to that something else will hereafter be referred the description of accordance with God's law, unless, indeed, that condition be altogether dropped. So much for that argument, which I was sorry to hear proceed from lips from which I expected legal accuracy. Then the hon. and learned Gentleman thought he had made a great point when he referred to The Speaker's Commentary. He said that the question was now conclusively settled by the interpretation given of the 18th chapter of Leviticus, in The Speaker's Commentary. Perhaps the hon. and learned Gentleman is not aware that, although such an interpretation occurs in The Speaker's Commentary, it is only the expression of the opinion of the individual divine who happened to write that portion of the book; and it is no betrayal of confidence when I say that the eminent Prelate and learned Hebraist, who is the editor in chief of that Commentary—the Bishop of Ely—was much disappointed and distressed at the appearance of that passage in the work. I have corresponded with him on the subject, and the House will believe me when I say that his letters to me express that disappointment and disapproval. I am sorry, for the sake of The Speaker's Commentary; but I care much more about the maintenance of the marriage law of the land. The learned Prelate's expression of displeasure proves that a portion of The Speaker's Commentary was published without carrying with it the weight of authority which the book seemed to possess in all its parts, from the names that were published in connection with it. I trust, therefore, that we shall hear no more on the subject of The Speaker's Commentary. Then the hon. and learned Member tried to make a great point about the feeling of the Jews; and he tells us that the Jews are unanimous in reading Leviticus in his sense. I thought that Holy Scripture was to be read, not as the Jews read it, but as the disciples of Christ read it. I thought that, when our Lord came upon earth, He came to give a higher marriage law than that which had existed among the chosen people of the old Covenant. I remember a passage in one of the Gospels in which, dealing with this very question of marriage, the Saviour himself charges Moses with imperfection—imperfection which was allowed under the providential order of the world, still imperfection. I think I have read that Moses, "for the hardness of their hearts," permitted a lax law of divorce which, under the Christian dispensation, is no longer to be tolerated. Under the Mosaic economy, too, there is a toleration for polygamy, which does not and cannot exist under the Christian dispensation; and these things were allowed "for the hardness of their hearts." In every respect, then, where the Mosaic law is prohibitory, the prohibition, of course, attaches more forcibly under the Christian dispensation; and where the law of Moses is lax, the question is whether that laxity is a laxity which is allowed merely for the imperfect and transitory condition of the Jewish people, or whether it is to be leave and license for those who live under the higher law and obligations of the Christian dispensation. Therefore, when I find that the Christian dispensation, for 1,500 years without a doubt—for the last 300 years by a strong majority of opinion—has prohibited these marriages, I am driven to the conviction that the Jewish law, as interpreted by the higher law of Christianity, concludes against these marriages among the people of Christ, and I am content to accept this chapter of Leviticus as it stands. It is not for me to attempt to dissect that most obscure 18th verse of the chapter, on which Commentators of equal powers of mind and of equal knowledge of the Hebrew tongue are still debating; I do not argue whether "in her life time" refers to the time of taking the other consort, or to the anticipated vexation of the wife, which would endure so long as she lived, at the prospect of a sister successor; I do not argue whether the word "sister" there means literally the child of the same parent, or whether, by a figure of speech common in all languages, most common in those of the East, it simply implies another woman, and so reduces the passage to a prohibition of polygamy. These and other questions on the same point are under debate and learnedly argued. On that ground, therefore, I decline to bring forward any particular interpretation to back up my argument; and for the same reason those who think with the hon. and learned Gentleman ought equally to refuse to adduce as a conclusive argument any interpretation of the text which seems to make in their favour. If you attempt to interpret this Levitical law by its hard, dry words, see in what preposterous conclusions you may be landed! You will be landed in the conclusion that a man may not marry his mother, but may marry his daughter, for all through that particular chapter, out of each pair of similar relationships only one is expressed—son and mother, brother and brother's widow, and so on. You cannot get out of that difficulty, and there I leave it. Then, as to the practice of the Jews now; looking at what the Hebrew nationality now is; looking at that blindness of intellect which all who believe in salvation by Christ must think prevents the Hebrew people from realizing the one great meaning of all their inspired Scriptures; looking at all this, I cannot attach excessive value to any particular interpretation put upon Scripture by a people who have, as Christians must consider, so fatally mistaken the whole scope and bearing of the Old Testament.

Then the hon. and learned Member appealed to the history of Europe, and to the fact that all changes which have taken place in the marriage law during the last 300 years have, in his opinion, been changes on the side of relaxation and not on the side of restriction, with the single exception of Lord Lyndhurst's Act of 1835. So far he was travelling on easy ground; but he went on to assert that the series of relaxations had in no case produced a state of license of which any one need be ashamed; in short, that the world had become better and more pious for it. The hon. and learned Gentleman referred to the history and the poetry of his favourite Continental nations—France, for instance—as specimens of pure and austere virtue. I traverse his argument on these several points, and call upon the House to consider what is the state of the marriage law in those Continental nations where alliance with the sister of a deceased wife is tolerated. It is now nearly 400 years since the relaxation of this particular degree began, and the man who first made the relaxation was Rodrigo Borgia, Pope Alexander VI.—father, and something more, of Lucretia Borgia. That is the man out of whose system of dispensations the hon. and learned Member looks for the growth of virtue! I do not see the hon. and learned Member in his place at this moment; but he is represented by the hon. and learned Member for Aberdeen (Mr. Leith), whose name is also on the back of the Bill, and who has still to "win his spurs" in this debate. I call upon him, therefore, to answer the question which I have put in former debates to the hon. and learned Member, but which he has never yet answered. How can you account for this coincidence, that there is not a country in Europe in which marriage with the sister of a wife is tolerated, in which also marriage with a brother's widow is not tolerated? In which marriage with your own niece is not tolerated? In which marriage with your own aunt is not tolerated, and all tolerated under identical regulations? It is quite true, as the hon. and learned Gentleman has told us, that in many of the countries of Continental Europe, not in all, marriage with a deceased wife's sister is allowed, either as a rule or as an exception, in every one of those countries, a marriage with your aunt or your niece is similarly allowed. That, I think, is a coincidence which demands some explanation. We are told that altering the law will not alter the standard of morality; and appeal is made to the traditional belief in a higher conjugal morality as existing in this country. In that traditional belief I myself share. I believe that we may claim a higher standard of such morality than the Continental nations; because our institutions respond to, back up, support, and make possible that higher moral feeling. I do not believe, therefore, that, if with our eyes open, we shall be induced to lower our institutions to the Continental level, we shall be able to keep up that moral feeling after we have ostentatiously knocked down the bulwark which the wisdom of our institutions has raised for its protection. In some Roman Catholic countries, and in some Protestant, too, marriage within these degrees, with the wife's sister, the niece, or the aunt, is only permitted by dispensation. In others, such alliances may be contracted without dispensation. What does the House suppose is the principal country in Europe where a man may take his wife's sister, his own niece, or aunt to wife without having to seek the leave of any dispensing power. It is the great and growing kingdom of Prussia—Prussia as distinct from Germany. Throughout the kingdom of Prussia marriage with an aunt or niece or a deceased wife's sister is tolerated, and all through that kingdom there is a legalization of divorce, under which, when married people become tired of each other, they may pair off, and pair on again, with ab- solutely no difficulty. Will the hon. and learned Gentleman have the effrontery to tell us that the moral law of Prussia is not vitiated, when even Germans say that it is enough to make them blush? He is an Englishman, and I believe that he has an Englishman's feelings on the moral law, and that he cannot, as an Englishman, say that the moral law of the Prussian kingdom is not such as to make Christian men blush and shudder. But he cannot pull out the main beam of a house, and yet expect the house to stand by its own gravity, though the support is gone. Alter this law, and what evidence can you give us that the other prohibited degrees will not be imperilled? The advent of the hon. and learned Member for Aberdeen to this House means the strengthening of the legal ability with which our debates should be conducted; and as he has placed his name on the back of the Bill, I think he is bound to give us the reason why. The hon. and learned Gentleman (Sir Thomas Chambers) appealed to the poetry and history of Continental nations. I, too, appeal to the example of France, whose literature can hardly be regarded as of the purest or most moral type. By the Code Napoleon, marriages with a wife's sister, with a brother's widow, or with an aunt or a niece, were prohibited; and so stood the French law until the year 1832. In that year a law was passed, equally legalizing all those marriages, with the dispensation of the Sovereign, and that has now been the law of France for 41 years. In Holland, too, these marriages are allowable by dispensation. So, too, in non-Prussian States of Germany. We know well, also, that in Spain and Portugal marriages of the most repulsive kind are tolerated by dispensation. We know how that unhappy house of Braganza, now extinct as a reigning family in the male line, during the time that it sat upon the Throne of Portugal, was absolutely gangrened by these disgusting and unnatural alliances between persons in the position of uncles and nieces and aunts and nephews. In Italy the same laxity is found. The history of society in Austria tells the like tale. There are distinguished names in the history of modern Austria, in whose family annals niece became wife. In Austria these marriages have taken place in the highest ranks of political and military life. Do you wish to see such spectacles at the honoured Court of Queen Victoria? I have pointed out, on former occasions, that, in making a private investigation, it was ascertained that out of 178 marriages within the prohibited degrees, one-third were other degrees of relationship—some of them the nearest—of which those with a brother's widow were the most numerous class. I pass over the contemptible anomaly of the wife's niece being cut out; reasoning fails before such absurdity. We have had plenty of gushing assertions upon this subject; but no reason has been shown why the brother's widow should be excepted from the Bill, while the wife's sister is included. The weeping, broken-down widow, who wishes to lean on the stronger arm of her husband's affectionate brother, presents a much more sentimental picture than the widower, unable to go through the world alone, and longing to cling to the side of his wife's sister. In fact, every argument on behalf of marriage with a wife's sister tells with double force in favour of marriage with a brother's widow. I call upon the hon. and learned Gentleman, then, to say why the brother's widow is excepted. What I believe to be the reason is, that Mr. Joseph Stansbury's clients are those whose inclinations lead them to the wife's sister and not to the brother's widow; and until he can give us some better argument—some argument founded on reason, on common sense, or on law—for drawing this distinction, he must allow us to retain our opinion; and allow us in doing so to draw our own inferences as to the personal, selfish, and artificial character of the agitation by which it is sought to make this change in the law.

These are some of the principal arguments that I have to urge against the Bill and speech of the hon. and learned Member for Marylebone. The hon. and learned Member did make one admission, and I was glad to hear it, though he himself did not see its force. He said that, prior to Lord Lyndhurst's Act, anybody could marry anybody, and that all wrong marriages were not void, but voidable. But that disposes at once of any value for his cause in the argument that the state of the law was one before Lord Lyndhurst's Act, and another after. Marriage with a deceased wife's sister was voidable before; now it is void; the condition of illegality is unchanged, it is only the process of reaching it which has been altered. The table of prohibited degrees has been kept the same, only a simple and strong method of enforcing it has been substituted for a cumbrous and weak one; and so long as that table is kept the same, the argument which is drawn from Lord Lyndhurst's Act is mere rhetorical embroidery, of which I think we have had quite enough. I believe that the agitation against this law is purely artificial and fictitious, that it proceeds from a few interested persons—persons who are so deeply and personally interested that they have never dared to publish their names; but have always masqueraded and ambuscaded behind a brass plate and a secretary somewhere in Parliament Street. They have never yet dared to meet the challenge and proclaim themselves. I have now pointed out to you how flimsy are the assertions of the hon. and learned Member, that the religious argument cannot hold water, and must be given up. I have pointed out the artificial nature of those appeals to the Petitions from corporate towns, and by a little chapter of autobiography, I have supplied a key to the manner in which gentlemen are induced to give their support to this Bill. I have also pointed out the fragmentary nature of this Bill, in simply attempting to deal with the case of the wife's sister, and in dismissing the more distant relationship of the wife's niece, while utterly ignoring the parallel case of the brother's widow. Above all—and it is the strongest argument—I have shown that the case cannot stand where it is; that in no country in modern Europe where the restriction on these marriages has been removed has it stopped short there, but that in all it has gone to the blood degrees of aunt and niece. My contention is that if we take the step now proposed to us we shall not be able to arrest our progress downwards. I appeal to hon. Members, then, not to pass this mere fragmentary piece of legislation; for I warn them that, if from thoughtlessness, or good nature, or from a desire to keep well with the corporations who have petitioned in favour of the Bill, they give it their sanction and support, they cannot stop until they leave the marriage law and the social life of England where they find it now in France and Prussia. Upon these grounds, and with the unabated confidence that the moral and religious feeling and the good sense of the people of England will be too strong for the hon. and learned Gentleman, for Mr. Stansbury and his anonymous association, and for the anonymous persons who stand behind that association, I beg to move, as an Amendment, that the Bill be read a second time this day six months.


in seconding the Amendment, expressed his surprise that the hon. and learned Member for Marylebone (Sir Thomas Chambers) had not in any way met the arguments which were so strongly urged against the Bill in that House last year, and had not attempted to show that they were unfounded in fact and did not represent the feelings of a large portion of the people of this country. Last year it was contended that the women of England generally were decidedly adverse to the measure; and an hon. Member from the sister country (Mr. Maguire), whose loss they all deplored, then earnestly and ably maintained that the feeling against it in Ireland was almost universal. Those statements had not been answered by the hon. and learned Member that day. He (Sir Henry Selwin-Ibbetson) had himself that day presented a Petition signed by a number of ladies who professed to represent the sentiments of a large section of the women of this country, and who took a very strong and decided view in opposition to the Bill of the hon. and learned Member. He had received a letter from a lady who spoke on behalf of a large circle, in which she said that she had been surprised at the intensity of the aversion which had been expressed by some of her female friends, and said she could scarcely conceive that any woman could approve the measure. They had it from a high authority on the Ministerial side that the proposed change would be seriously inimical to the best interests of domestic life. In 1870 the Lord Chancellor (Lord Hatherley) said that by such legislation they would drive out 99 sisters-in-law out of a hundred from bereaved families, and give a step-mother to the children in the hundreth instance, and that he did not think that much would have been gained for the benefit of the children. It had been said that that was a poor man's question; so far from it, the evidence brought before a Royal Commission by those whose interest it was clearly to show that those marriages had been largely entered into among the people, and especially among the poor, entirely failed to establish that proposition. It appeared, indeed, that out of a limited number of marriages, 1,600 had been contracted by parties above the class of poor, and only 40 cases were produced where the contracting parties were poor people. On this argument of its being a poor man's question, Lord Hatherley's language was exceedingly strong. He said that of all the hypocrisy in connection with the subject of which he had ever heard nothing was so monstrous as to speak of the question as mainly affecting the poor man; he knew, he added, something about the poor, and there was no class in the community who would be less affected by such a Bill as the present. That was a very decided statement, and the hon. and learned Member for Marylebone had, he was bound to say, brought forward no facts to contradict it. But what he objected to as much as anything was that the Bill dealt with only one part of the subject. If the marriage law in as far as it related to degrees of affinity was wrong, then it was wrong on more points than that under discussion, and the hon. and learned Gentleman ought to have moved for a Committee or a Commission to inquire into the whole matter. The measure proposed to the House had not always been in the form it now assumed. In 1849 the Bill that was brought in for the purpose legalized marriage not only with a deceased wife's sister, but, going a step further, with a man's niece. That fact furnished an indication that, if the "hard-and-fast line" which was now established were relaxed there was no knowing where to stop; they must go on relaxing until they broke down every restriction. Looking back on the debate on the measure of 1849, he found that several hon. Members of great weight and authority took part in the discussion; and the present Prime Minister, speaking in opposition to it, pronounced the question to be one of the greatest importance—adding that if the Bill were to pass, the consequence would be that the whole religious belief of the subject would be brought under the action of a vote of Parliament, and that it must, therefore, be regarded as most dangerous to our conscientious freedom. The right hon. Gentleman proceeded to ask where such legislation was to stop when it passed the definite line which had for many centuries been observed by the uniform practice of Christendom? Such were the opinions expressed in 1849 by the right hon. Gentleman. He had, it seemed, now changed his opinion, and he (Sir Henry Selwin-Ibbetson) was curious to know on what grounds. He hoped, however, the House would act upon the opinions the right hon. Gentleman expressed before he was Prime Minister, and would remember the words he used upon that occasion, that— The House of Commons would do all that in them lay to maintain the strictness of the obligations of marriage, and the purity of the hallowed sphere of domestic life."—[3 Hansard, cvi. 632.]

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Beresford Hope.)


When this question came before the House four years ago I made a few observations upon it for the purpose of contradicting assertions that had been made, that public opinion in Scotland was much opposed to this Bill. Since then I have always abstained from taking any part in the debate, for I thought it unnecessary for any great number of Members to speak, and that there was nothing new to say. A great deal has been said to-day about various countries in which this law exists. These were Continental countries; but nothing has been said about one great nation kindred to our own in many respects, kindred in feeling, kindred in religion, in which these marriages are considered not only unobjectionable, but are considered the most proper marriages any man can make if his deceased wife happens to have left a family. When I went to America not long ago, an interesting book called "Hannah," by the author of "John Halifax," had been published in the United States. The story of that book hinges on the iniquities of our present law, and I was asked by many ladies, whether in the old country such barbarous laws were still in existence. They thought these laws had been repealed many years ago. When I told them that these laws were in existence, that in vain we had attempted for many years to get rid of them, I was met simply with ridicule at our having such preposterous restrictions on the marriage law. I happened to visit one of the cities of the West, and found living there a gentleman and a young lady, the sister of his deceased wife, who was taking charge of the children. That young lady had not the slightest idea that she was doing anything wrong, nor had anyone else such an idea, and she was visited by everybody. Under that arrangement, therefore, there was no wide change in the social position of a deceased wife's sister. In America there was no such feeling against a deceased wife's sister occupying that position in her brother-in-law's house. Since that time these two had been married, and they now occupy a leading position in the city where they lived, without the slightest slur upon them. The hon. Member for Cambridge University (Mr. Beresford Hope) made a strong point of the fact, as he asserted, that in all Continental countries where this law exists there is likewise the latitude for a niece to marry her uncle. Why did the hon. Member confine himself to Continental countries in using the argument? Merely because he thought there was a lower tone in those Continental countries, and that might help his argument a little. Why did he not go to the Colonies or to America, where the people are of kindred race and religion, and see what exists there? From that we might form some judgment of what would be likely to take place here, better than we could from the example of Continental countries. Well, in America, where it has long been considered the most proper marriage a man can make, nobody ever heard of a man wanting to marry his niece, or a woman her uncle. I was surprised to hear the hon. Baronet the Member for Essex refer to the arguments in 1849. Does the hon. Baronet suppose that the world stands still? He might as well suppose that the sun would stand still for 20 hours as public opinion for 20 years. Public opinion on this question has been changed in a shorter time than that. In Scotland, no doubt, 20 years ago there was a strong feeling against this change, but there is no such feeling now. I believe that the Scotch Church has entirely abandoned opposition to the question, and has given up the religious ground; it is regarded solely on the grounds of expediency now, and nothing else. Public opinion is growing very much in favour of the Bill. I have known a Presbytery of the Scotch Established Church, both clergy and elders, passing resolutions in favour of the Bill; and the hon. and learned Gentleman (Sir Thomas Chambers) has also told us of many Churches petitioning in its favour; but the Churches do not altogether represent the state of public feeling. The Churches may give a negative support, but will not take the trouble to express it. I can only say that public opinion in Scotland, so far as I can interpret it, is entirely in favour of this Bill.


said, he must protest against seeking arguments in America in favour of an alteration of our marriage law—he hoped that it would be long before we adopted a system which there led to so much confusion in its social and religious relations. He rose, however, chiefly to address himself to the retrospective action of the Bill, and the manner in which it would affect the rights of property. The Bill proposed not only to legalize future marriages of this description, but it proposed that all past marriages should be legalized, and the issue placed in the same position, as regards social status, as if the marriage of the parents had been legal from the beginning. Further on it was sought by Clause 3 to provide for the difficulty which arose in connection with the rights of property, which had taken effect under the existing law, and which the Bill, if it passed, would, of course, seriously compromise. It was accordingly proposed that so far as the Bill related to any marriage with a deceased wife's sister which had already been contracted, it should not invalidate any right, dignity, or title of honour, or any estate, legal or equitable in land, chattels, or effects, which might have been vested in any persons before the passing of the Act, or any bonâ fide instrument which might have been executed. By that means it was sought to get rid of the difficulty to which he was adverting. But ex post facto legislation should only be resorted to on the strongest grounds of justice, and upon such grounds the present mea- sure failed to entitle itself to support. If the grounds for the provision which he had mentioned were just and substantial, why should they be made applicable merely to the social status of the parties concerned? If they were just in the one case, they were equally just in the other. When children now illegitimate saw themselves restored by the Legislature to the rights of legitimacy, would they regard it as fair that persons having previously only a contingent interest in the property of their parents should deprive them of that property? Again, in reference to property held by women in their own right, as a consequence of the validity or invalidity of these marriages, the right of the husband's creditors would be seriously affected, and many difficulties would arise. It was clear that the framers of the measure found themselves driven into contradictions and anomalies from which they found it impossible to escape.


rose to urge upon the House the facts that marriages of this kind were approved of in the Church to which he belonged, and that this, the largest body of Christians, was in favour of the Bill—and he had been urged by many Roman Catholic divines of eminence to support it. The hon. Member having referred to instances of great hardship to individuals caused by the present state of the law, concluded by pressing the House not, by preserving an unjust law, which was disobeyed by many most respectable persons, when from social motives they felt such marriages were desirable for them, to induce in the people a tendency to treat with laxity the institution of marriage, one of the bulwarks of the social state.


thought the Bill, while it settled nothing, would unsettle everything, and fixed no logical standpoint for the future; and it dealt with only one out of several prohibitions against marriage. All were agreed, he believed, that it was expedient there should be a law declaring that within certain degrees of kindred marriages should not be permitted; but it was desirable to have some principle laid down on the subject which should be intelligible to the common sense of the country. That was the principle on which the marriage law now rested. We had two principles of prohibition— prohibitions of consanguinity and prohibitions of affinity. With respect to consanguinity there was one simple rule on which all the prohibitions were founded—that a man might not marry the descendants of his father and mother, or a woman the descendants of her father or mother. Then, as to prohibitions of affinity, the law laid down that a man and woman by marrying assumed each other's relationships, the wife's sister becoming the husband's sister, and the husband's brother the wife's brother, and marriages were not permitted within nearer degrees of affinity than those of consanguinity. It might be difficult to convince an objector of the reason for any particular prohibition; but the law, as a whole, rested on an intelligible principle, and to tamper with it in one point might undermine the whole. He was surprised the advocates of women's rights did not insist on the wife being able to marry her husband's brother; and though the supporters of the Bill disclaimed any desire for further relaxation, it was a fact that in Australia marriage with a wife's niece was permitted. If they infringed upon the principles now acted upon, they would quickly go on until they unsettled the whole marriage law. The Westminster Confession disapproved these unions; and a statement signed by leading members of all the Presbyterian bodies in Scotland went to show that the people of that country were opposed to the Bill. As to the Roman Catholics, the late Mr. Maguire, whose loss was so much deplored, stated that outside a lunatic asylum he did not believe 500 women in Ireland favoured the measure; and in the Church of England the same feeling notoriously prevailed. It was quite misleading to represent the Act of 1835 as the first prohibition of these marriages, for they were previously voidable, and that Act simply made them ipso facto void. The difficulty experienced to-day in forming a House, the scanty attendance, and the fiasco in which the attempted indignation meeting in St. James's Hall resulted, showed the absence of any strong feeling on this question out-of-doors; and before such a change was sanctioned its advocates were bound to point out a logical stand-point for resistance to further relaxations. Horace—as much a philosopher as a poet—had told us— Fœcunda culpæ sæcula nuptias Primùm inquinavere, et genus, et domos. Hoc fonte derivata clades In patriam populumque fluxit; and as then, so now, to tamper with the marriage law would have disastrous results.


said, he should not have risen to address the House on this question, had it not been for the statement made by the hon. Member for Glasgow (Mr. Anderson) as to the Scotch feeling on this matter. No doubt when a Member spoke of the feeling of Scotland on a question of this kind, he spoke only from his own knowledge. Now, he (Mr. Miller) did not know what the feeling might be in Glasgow, but he did know that generally over Scotland the feeling, as he understood it, had been very decidedly against this change. As to the statement that the Established Church had given up this point, he did not know how to believe it; but, for himself, he was connected with one of the large Presbyterian bodies there, and he knew they were out-and-out against this change. The other large Presbyterian bodies—the United Church, the Presbyterian Church, and the Reformed Church—he believed that all these bodies were distinctly against the change. He had been largely connected with the labouring classes, and certainly he had never heard from them that they were in favour of the change, and he believed if Scotland was polled from one end to the other the large majority of the people would be found decidedly against it. He should look upon the passing of the Bill with great alarm. It would alter the whole family relations of the country. The sisters of the wife were now admitted freely into the house, and they were looked upon as the sisters of the husband, and there was no difficulty in the matter; but if the law were changed disturbance would be carried into families where there was now nothing but peace.


said, he supported the proposal of this Bill, but he had done so chiefly in the interest of persons in the lower ranks. He had not sympathy with those of the upper ranks who deliberately violated the law; but the position of the lower classes was different. To them marriages of this description were almost a necessity, and the connection already existed in nume- rous cases without the sanction of any marriage at all. The experience of eminent clergymen like Dr. Hook and Dr. Vaughan among large working class communities had led them to advocate the change, Dr. Vaughan affirming that an arbitrary hindrance to the legal union of persons so related resulted as a certain alternative in their illegal union. He should without the slightest hesitation support the Bill.


in opposing the Bill, lamented the loss which those with whom he acted on the present occasion had sustained in the death of Mr. Maguire. The absence of Petitions from the women of England showed how this Bill was viewed amongst those who were most deeply interested in it. He opposed the Bill upon the Divine law, as laid down in Leviticus and in the Epistle to Timothy. He objected also to the Bill as being a retrospective one, and legalizing that which when done was contary to law. He should decidedly vote against it.


in reply, said, he had been challenged to show that the women of England were in favour of the Bill; he would therefore remind the House that numerous Petitions—one from Birmingham signed by upwards of 2,000 women—had been presented in its favour. He denied that it would lower the general tone of morals, and the prevalence of objectionable unions in countries where marriages of this kind were allowed was not attributable to such allowance, but to a low tone of morals.

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

The House divided:—Ayes 126; Noes 87: Majority 39.

Main Question put, and agreed to.

Bill read a second time, and committed for Monday next.

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