Lords Sitting of 27 March 1871

MINUTES.
Took the Oath—The Earl of Strathmore and Kinghorn.
PUBLIC BILLS—First Reading—Judgments (Ireland)* (59); (£462,580 9s. 11 d.) Consolidated Fund*.
Second Reading—Marriage with a Deceased Wife's Sister (38), negatived.
Third Reading—Stamp Act (1870) Amendment* (45); Income Tax Assessment* (48), and passed.

MARRIAGE WITH A DECEASED WIFE'S SISTER BILL—(No. 38.)
(The Lord Penzance.)
MARRIAGE WITH A DECEASED WIFE'S SISTER BILL—(No. 38.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  LORD PENZANCE, in moving that the Bill be now read the second time, said—My Lords, the task I have before me is in some respects an unprofitable one, for so many discussions have taken place on this question, both in this and the other House of Parliament, that nothing new can be said upon it. At the same time, I take comfort in this—that it is not a question in which men act in bodies, but rather one respecting which they held their individual opinions; and therefore it may well be hoped that, in the progress of time, and as noble Lords perceive that the people have long since made up their minds upon the subject, and that the longer it is considered the more they desire a change of the law, they will—if not alter their own opinions, at least so far bow to that of the majority as to cease from that opposition to this measure which has hitherto, unfortunately, been only too successful. This is the sixth time that a Bill on this subject has been presented to your Lordships; but it is some comfort to be able to state that the majority against the proposed change has been steadily decreasing, so that whereas the majority against it in 1851 was 34, it was 19 in 1856, 24 in 1858, 10 in 1859, and only 4 last year. We were told, in the course of the debate last Session, that we were able to show no such evidences of public opinion on this question as would justify the passing of the Bill, and we were asked where were our public meetings, and other symptoms of popular sympathy with the Bill? I must be allowed to observe that this
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  measure occupies a peculiar position. I admit that the matter does not affect the community at large—that the restriction imposed by the present law is confined to a small number of persons. These persons, however, feel it to be a grievous burden, and are intensely opposed to it; but the large mass of the population, whose personal interest is not concerned, are indifferent whether the law be repealed or not. Large meetings, therefore, are not to be expected. At the same time, evidences are not wanting of the growth of a decided public opinion on the subject. Petitions are one of the constitutional channels of that opinion; and I find that this year the number of Petitions in favour of the Bill have enormously increased as compared with last year. Petitions, bearing 47,000 signatures, have been presented to the House of Commons, while last Session the number of signatures was only 26,000. Moreover, the Petitions this year to your Lordships' House have numbered 1,518, signed by 74,000 males and 44,258 females. Nearly 5,000 Dissenting ministers, and many clergymen of the Church of England, have petitioned in favour of a repeal of the present law, besides 39 corporations under their seal, and about 50 other corporations, whose members have signed individually, though not as a corporation. This day I have also laid on the Table a Petition signed by 4,000 Dissenting ministers in favour of the Bill. Another mode of ascertaining the current of public opinion is by the action of the representatives of the people in the House of Commons; and it is a fact that cannot be got rid of that both under the former and under the present suffrage the House of Commons have come to an affirmative conclusion respecting the Bill in no less than 40 Divisions. It has been said that these victories are the result of organization. Well, on this, as on all other questions in this country, people are not induced to petition without an organization of some kind; and it must be remembered that a society on the other side, to which the noble and learned Lord, on the Woolsack referred last year, has exerted its energies in the opposite direction; and the fact that, as the result of the efforts on both sides, the House of Commons have repeatedly affirmed the principle of the Bill, be-speaks for it dispassionate consideration

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  on the part of your Lordships. The object of this Bill is to undo what was done in 1835, by what is commonly known as Lord Lyndhurst's Act. I believe it to be the common impression that we desire to get rid of a legislative restriction that has existed for an almost indefinite period. That is not so. I do not mean to enter into any antiquarian dissertation on the subject; but briefly I will remind your Lordships that, up to 1835, the prohibition of these marriages was canonical only, not civil, and that marriage with a deceased wife's sister was recognized by the temporal or King's Courts of the kingdom. If a man married his deceased wife's sister, and had a child, it was legitimate, and had the power of inheriting property. The Ecclesiastical Courts, however, dealt with these marriages, pronouncing them to be null and void, notwithstanding one or both of the parties might be dead when the suit was commenced. But in the time of James I. the Courts of Common Law interfered, and prohibited the Spiritual Courts from proceeding to pronounce them null and void after the death of one of the parties. Hence all these marriages came to be called "voidable" marriages, in contradistinction to those that were absolutely "void"—they were not void ab initio, but voidable only by sentence of separation, and were valid for all civil purposes, unless the separation was actually made during the life-time of the parties. The law, therefore, stood in this way—that from the time when the marriage took place until a suit was instituted in the Ecclesiastical Court, and until the Ecclesiastical Court declared the marriage to be void these marriages were valid; and that after the Ecclesiastical Courts had delivered their decision, the temporal Courts would respect the decision; but if no such proceeding took place during the life-time of both parties in the Ecclesiastical Court the temporal Courts treated the marriage as valid, and the issue of the marriage as legitimate. A suit in the Ecclesiastical Court was, owing to the expense, a proceeding not within the reach of the mass of the people. Suits to set aside such marriages as these between persons in humble circumstances were therefore absolutely unknown; and even among persons of the higher classes of society such suits were infrequent. So that, practically, as re-
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  gards the mass of the people, these marriages took place and were as effectual and valid as other marriages, and the children that issued from them were legitimate. This is an important question, because when we are asked to consider the effect of the change we propose, we find that it is not a change from a state of things which existed from all time. We are asking only for the reversal of the law of 1835, which created then for the first time the practical grievance under which we now suffer. Now, how came that law of 1835 on the Statute Book? It is generally supposed that when Lord Lyndhurst introduced that Bill he introduced it for the purpose of rendering some of those marriages valid, and of rendering the rest invalid; but, on turning to his speech—the only one of which I can find on record—your Lordships will find that he did nothing of the kind. Lord Lyndhurst, after referring to the then existing state of the law with regard to "marriages voidable, but not void," said—
  "It was well worthy of consideration whether the law in that respect might not be altered with great advantage to the public. He should not presume to propose the alteration of the whole law, but should take a more humble course. His proposition was to legislate upon one of the points he had alluded to. At present, as he had before stated, if a suit was not brought calling in question the lawfulness of the marriage during the life-time of the parties, it could not afterwards be questioned. He proposed that if the marriage within the prohibited degrees was not, in marriages hereafter to be celebrated, called in question within two years after the marriage had taken place, or for marriages already performed within six months from the date of the Bill, the legitimacy of the children should never afterwards on that account be endangered."—[3 Hansard, xxviii. 203.]
  Lord Lyndhurst then proceeded to urge on their Lordships the hardships that might arise from the existing laws. He said—
  "Parties might marry and have children born to them; the eldest son might come to the age of 25, and on the supposition, as no proceedings had ever been taken, he was legitimate, he might marry; he might have children; and between 10 and 15 years afterwards there might be a suit in the Ecclesiastical Court; he might be bastardized, and his children deprived of the means and the hopes of that future which they had been accustomed to consider as their own—deprived of the estate and of all claims whatever upon it. It was for the purpose of obviating this evil that he should now propose to introduce a Bill."
  The Bill went down in this shape to the

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  House of Commons, and passed the second reading; but at a subsequent stage Mr. Poulter announced his intention of opposing the 2nd clause of the Bill—that which prohibited for the future all marriages of this kind, and declared them absolutely null and void; and, after discussion, the clause was struck out. But, in the course of the discussion, it was suggested that the Bill should be passed in its original shape (with the prohibitory clause), and that in the following Session a Bill should be introduced, in which the exceptional cases of affinity in which marriages should be permitted should be dealt with, and the whole law ascertained. On the Report, Sir William Follett strongly objected to the Amendment to which the Committee had agreed by striking out the clause; he pointed out the inconveniences which arose from the uncertain state in which the law was left by the Amendment, and he suggested that the prohibition should be made absolute, but that it should be considered whether it might not be advisable that the degrees of affinity should be revised—but he argued that it was at any rate desirable that the anomalous state of the law then existing, by which such marriages were one day legal and another declared void, should be put an end to; and that thereafter any hon. Member could make his proposition for making such exceptions as might seem desirable. Dr. Lushington also strongly opposed the leaving the law in uncertainty. The Amendment made by the Committee was negatived by a majority of 75 to 17, and the clause consequently remained part of the Bill. That was the history of the prohibitory clause of the Marriage Act. That Act, however, so far from putting an end to the troubles arising from these marriages, seemed to be but the commencement of new. Many curious and intricate questions arose, such as whether a marriage between persons thus connected celebrated abroad in a country where such marriages are lawful would be valid here?—whether a bonâ fide domicile would make any distinction?—or what would be the effect if one of the parties were the subject of a foreign State, and particularly of the State where the marriage was solemnized? In consequence of these difficulties a Royal Commission was issued, in 1847, to—
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  "Inquire into the state and operation of the Law of Marriages as relating to the prohibited degrees of affinity, and to marriages solemnized abroad or in the British Colonies."
  The Commissioners were men of great distinction and high character—Dr. Lonsdale, the then Bishop of Lichfield, Mr. Stuart Wortley, Dr. Stephen Lushington, Mr. Anthony Richard Blake, Sir Edward Vaughan Williams, and Mr. A. Rutherford. Their first Report, presented the following year, stated that, on a review of the subject in all its different bearings and effects, they were constrained, not only to express their belief that the Act of 1835 had failed to attain its object, but also to express their doubt whether any measure of a prohibitory character would be effectual. This fact should be borne in mind by those who fear that the passing of this Bill will be followed by agitation for further changes in the law. The Commissioners declare their opinion to be that the Statute of 1835 was a wise amendment of the former law, in so far as it abolished the distinction between void and voidable marriages—for nothing, they say, could be more opposed to all just principles of jurisprudence than the permitting of uncertainty to attend the marriage state. But with regard to the question how far the prospective effect of that statute had attained its object, the Commissioners thought it was open to doubt. They state that, in 1846, a limited inquiry had been instituted, at the instigation and expense of persons interested, but conducted by gentlemen of intelligence, station, and character, and with discretion, as well as with perfect integrity and good faith. The inquiry extended over a short period only, and over a comparatively small portion of England; and the summary of the information obtained was briefly this—Of the marriages which had taken place within the districts inquired into between parties within the prohibited degrees, 1,364 had been contracted since the passing of Lord Lyndhurst's Act, and upwards of nine-tenths of these were contracted with a deceased wife's sister. In 88 cases only, so far as could be discovered, had the Act prevented an intended marriage; and of these, 32 had resulted in open cohabitation, without the sanction of any form or ceremony. My Lords, I have heard this described

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  as a rich man's question. I have also heard it declared to be a poor man's question. I believe it is a question that affects all classes pretty equally, according to their number; and I do not desire to attract your Lordships' attention by representing it as especially a question affecting the poorer classes of the community; but I believe it may be regarded in the latter light in this sense—that the larger part of the population is poor, and has not the same means as the rich of procuring assistance in their troubles. Be this as it may, the Commissioners report that—
  "Of the marriages thus ascertained to have been contracted, very few are between persons in the lower classes. For though they had reason to conclude that such marriages are at least as frequent in those classes as in any other, and perhaps even much more so, the conditions and circumstances of the parties render their affinity less observed, and consequently difficult to be traced without more elaborate investigation. On the other hand, among the parties contracting these marriages since as well as before the Act of 1835, there are to be found many persons of station and property, and of unimpeachable character and religious habits."
  For these, and other reasons, the Commissioners report—
  "We cannot avoid the conclusion that the Statute 5 & 6 Will. IV., c. 54, has failed to attain the object sought to be effected by its prospective enactments. It has not prevented marriage with the sister or niece of a deceased wife from taking place in numerous instances; whether more or less numerous than before the passing of the statute, we have not, as was before observed, sufficient data to enable us to form an opinion. But, without reference to any comparison of this description, the number of those marriages is so great as to justify us in saying that the provisions of the statute, rendering them null and void, have not generally deterred parties from forming such connections."
  Neither did it appear to the Commissioners, as the result of their inquiries, that persons who contracted these marriages were persons who neglected the observance of moral obligations. They say—
  "We do not find that the persons who contract these marriages, and the relations and friends who approve them, have a less strong sense than others of religious and moral obligations, or are marked by laxity of conduct. Among the poorer classes of society we believe that, in a great majority of cases, where the sister of the deceased wife becomes an inmate of the house, and the parties are not advanced in age, the end of such a state of things is marriage, or concubinage. The constant and familiar intercourse, the want of separate accommodation, and the entire privacy, give rise to feelings which, in the ordinary course of things, naturally will produce the consequences
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  which we have stated. When a poor man with a family has the misfortune to lose his wife, some assistance for his domestic concerns becomes indispensable; assistance, too, for which he cannot afford to pay, and which must be rendered immediately. All circumstances and all feelings point to the sister of the deceased wife; and when once she becomes a permanent inmate, the result, in this class, is almost inevitable—cohabitation with, or without, the form of marriage."
  And they sum up their conclusion in these words—
  "On a review of the subject, in all its different bearings and effects, we are constrained not only to express our belief that the Statute 5 & 6 Will. IV. has failed to attain its object, but also to express our doubt whether any measure of a prohibitory character would be effectual. These marriages will take place when a concurrence of circumstances give rise to mutual attachment; they are not dependent on legislation."
  Now, my Lords, I think this does lay a fair case for suggesting to your Lordships that this Act has not succeeded in repressing these marriages, if it is desirable that they should be repressed; and therefore we confine ourselves to asking for the legalizing of those marriages, and thus abolishing the punishment which at present rests on the children of those who commit the offence, if offence there be. I will venture now to ask what are the objections to those marriages? I shall be told, in the first place, that they are contrary to the Divine law. Now, I will relieve your Lordships at once by saying that I do not propose to discuss that point. There are many present in your Lordships' House fully competent to do that. I heard the question discussed last year by the right rev. Bench on the one side, and with great ability by many of your Lordships on the other. I do not propose to discuss that question on the present occasion, or to attempt to satisfy your Lordships that this is or is not contrary to the Divine law; but what I do propose to do is to quote the opinions of those of your Lordships who are more competent than myself to form a judgment on the matter; and I propose to show your Lordships that this much is clear—that men of the greatest piety, and men holding the highest position in our National Church, have expressed opinions not unfavourable to the Bill. The late Archbishop of York said he could not bring himself to believe that the Divine law prohibited marriage with a deceased wife's sister. Archbishop Whately, the late Archbishop of Dublin,

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  was not only of opinion that whatever scandal might arise from the sister-in-law keeping a widower's house was rather promoted than prevented by the prohibition, because "charitable" people would infer that if they could marry they would, and that as they could not they were exposed to the temptation of illicit intercourse; and he added—
  "I shall be ready to support the measure if brought forward when I am in Parliament; but I sit only alternate Sessions."
  The present Primate of all England has also expressed an opinion in favour of legalizing these marriages, and had signed a petition, which affirmed that, whether considered in a religious, moral, or social point of view, they were unobjectionable, while in many circumstances they contributed to the happiness of the parties, to the welfare of motherless children, and among the poor tended to prevent immorality. Dr. Chalmers, in his Commentary on Leviticus, gives it as his opinion that the law is not binding on Christians. Among the Dissenting body there is testimony of the same kind. Adam Clarke and Dr. Bunting expressed their opinion that the law of God did not clearly prohibit the marriage of the man with the sister of his deceased wife, and that it would have therefore been better if the prohibition of human law had never been introduced; and Dr. Bunting added that Mr. Wesley, the founder of his society, was of opinion that the enactments of the Levitical law, when applied to this case, had been entirely misinterpreted. There is also a resolution of the body of Dissenting ministers that such marriages are perfectly allowable, and strictly lawful, and that they ought not to be prohibited. The book I hold in my hand contains numerous statements of the same kind from men of religion and high morality. When I take a wider view, and look to the opinion of the world, and to the opinion of other Christian communities, the result is still more startling. I believe that I am correct in saying that, with the exception of some of the cantons of Switzerland, the whole Christian community in the world, except our own country, permits these marriages to take place. So that we have not only individuals of our own Church, not only the opinion of the Dissenting body in this country, but
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  the whole of the Christian community in favour. In Germany, the law depends upon whether it is in Protestant Germany or in Catholic Germany. The Roman Catholic is, of course, governed by the canons of his Church, still in force in the Catholic States, and any question relating to dispensations in the prohibited degrees of marriage must be referred to Rome; but in the Protestant States, since the middle of the 17th century, the marriage of a widower with the sister of his deceased wife has been permitted under dispensation from the Consistorial Courts, or other similar authorities. In Prussia, however, by the common law of the country, no dispensation is required for the solemnization of these marriages. The fact that these marriages are permitted in Catholic countries by dispensation does not militate against my proposition:—the question is, whether the thing is done, and the means by which it is accomplished is not material. So long as the marriage takes place and the children are not bastardized, that is what I contend for. The opinion of many political men of eminence is on the same side. The late Lord Palmerston, entertained a strong opinion that such, marriages were proper. Sir George Cornewall Lewis also gave his cordial assent to the second reading of the Bill. Lord Clarendon, in this House, spoke to a similar effect. I will further venture to quote from a letter which I did not see till last night. The writer is a gentleman well known—the Rev. Dr. Vaughan. He writes—
  "I am desirous of a change in the law regarding these marriages. They appear to me to be most unsatisfactory, both as a matter of justice and a matter of policy. We have no right to create sin; and this, if a sin, is a sin of man's creation, not of God's;"
  and he adds that the Scripture argument utterly broke down, and that his experience of social life among the poor in the northern district led him to lament this arbitrary hindrance to the legal union of two persons, whose illegal union was the certain alternative. Now, my Lords, when such a person as Dr. Vaughan can write such a letter as that, with respect to a law which represses the natural affections, what can be said in its defence? How long is it to be expected that in this country, where there is a free Press—where everything that is said and done in Parliament is

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  known to all the world—a law of this description can obtain its proper moral force after the expression of such an opinion? Here is a person whose opinion commands respect wherever it is spoken; and when such language as that is made public—when such persons utterly condemn this law—is it possible that such a law can be held as a moral injunction when it turns out to be contrary to the opinion of the mass of the people of this country? And I ask your Lordships whether, if a Bill such as this is sent up from the House of Commons, your Lordships will not give it your assent? The opinion of the mass of the people is always on the way to become the law of the country, and I hope your Lordships will not interpose a sixth impediment to the passing of this measure. This Act of Parliament was passed in 1835. It was based on the view at that time taken of the Divine law, and nothing more. It was based on the ecclesiastical law as it prevailed in this country. But there are many who do not think much of the objection that such marriages are contrary to Scripture, but who nevertheless regard these marriages as a social evil. I do not know that I have ever been able to appreciate the opinions which are formed on the social views of this question. It is urged that the relation of a man to his sister-in-law is, by common consent, one of a very agreeable character, and that it would be seriously altered if this Bill were to pass into a law. I am at a loss to know on what that opinion is founded. This I know—that inasmuch as these marriages take place all over the world, if there were any marked difference induced into the relationship of a man to his sister-in-law they ought to be observable. But I have never heard that the relation of sisters-in-law in countries where these marriages prevail is different from that of sisters-in-law in our own country. But confront that notion with the state of society in this country before 1835, when these marriages were frequent, and it will instantly appear to be without any actual foundation. With regard to the objection that the possibility of a man marrying his sister-in-law would produce some discomfort in the mind of his wife during her life, I am quite at a loss to comprehend the reasonableness of such an idea. In the other House, when reference was made
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  to this point, a letter was quoted from a lady, who said that she had several sisters, and that if this Bill passed she could not invite them to her husband's house, because she said she would be jealous of every one of them. That would be unfortunate; but I am afraid that lady has been a great sufferer through life from the same cause, and will be whether such a Bill as this passes or not. But it is probable that case is an exaggerated one, although the feeling obtains among some pesons that if the husband should have power to marry his sister-in-law, the wife would be jealous, more or less, of her husband on that account. For my part, I have never been able to understand how such a feeling could arise. I cannot understand why the presence of the sister-in-law should put into the husband's head the possibility of his marrying her in the event of his wife's death. Men do not speculate in that way on their wife's death and on a second union. It is also said that another great evil will be created—namely, that after the wife's death, her sister cannot live in the house of the widower. I may say that I have every respect for those persons who entertain this view of the question. I can well understand that when a sister comes and lives in the house, the question may properly arise whether the proceeding be right or wrong. Of course, much must depend upon the age and station of the parties, the kind of lives they lead, and upon other circumstances peculiar to each case; and I can therefore understand that, in some instances, scurrilous remarks would probably be made. But surely the competency of the parties to marry, instead of increasing the scandal or difficulty attending such a position ought to tend the other way; for if the two living in the house together happen to have an affection for each other, and they can marry, the difficulty simply comes to an end; while under the operation of the proposed law the fact that they may marry but do not choose to do so, shows that they have no attachment one to another. Under the existing law, however, no such conclusion can be drawn. So much for the objections against the Bill. I have tried to deal with them fairly, because I know how many of them are widely entertained. But I must now ask your Lordships to turn for a moment to the other side of

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  the question—what are the social advantages of the change which a measure of this kind will bring about? It is not necessary for me to enlarge upon the difficulty in which a man in humble circumstances is placed if his wife dies leaving children. It is obvious enough that in such a state of things some woman ought to be in the house to take care of the children if the household is to go on. The natural guardian of those children would appear to be the wife's sister; she is the person who would be the first to come to the house after the wife's death, as she would naturally have some degree of affection for the children that are left. In the humble dwelling of the poor, a woman taking up the position, and residing in the house, cohabitation with the widower is almost inevitable. That this practice commonly prevails is proved by daily experience; and the only question that remains is, whether the man should have the power to make the woman his lawful wife, or whether, after living with her a number of years and then coming to some disagreement, or some change of fancy supervening, he should have the power of casting her off? And, in any case, the issue of the union would be illegitimate. Surely, that is a cruel position in which to place a woman. There is yet another objection to which I may refer before passing to the social one. Suppose, it is objected, that the relationship between a man and his sister-in-law are not so agreeable after the passing of this Bill, and that it is not so convenient for persons to live with a deceased sister's husband, should a law of this kind be passed. In answer to that objection, I put it to your Lordships, is that to be a basis for legislation? Feelings of that character may, perhaps, be entertained by persons in the better class of society; but it is not for the upper class that we are legislating; it is for the whole community—for the poor as well as for the rich. With reference to the social part of the subject, it is contended that the Bill will infringe the guiding principle of the marriage law, that man and wife are one flesh, that the relations of the wife become the relations of the husband—that, in fact, the wife's sister is the husband's sister, and that she should be looked upon in the same light as if she were his own sister. My answer is, that such a rule cannot
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  possibly be carried out—as the present law does not carry it out—without creating the most absurd relationships. If the wife's sister is the husband's sister, the husband's brother should be the wife's brother, and the law ought to prohibit two brothers marrying two sisters. So also with the father and son. The law does not recognize this misty notion that the relations of the husband are the relations of the wife and vice versâ. If a man dies, and the nearest of kin succeeds to the property, the wife's relations are looked on as absolute strangers, and in a case of a legacy to a man from his deceased wife's sister, he is regarded as a stranger in blood, and is charged the higher duty. In no relation in life, indeed, is this principle recognized. A noble Duke opposite quoted last Session on the discussion of this Bill a paragraph from an American newspaper, stating, among other absurd results of a man in America having married the daughter of a widow who married his son, that that son became his own grandfather. That paragraph was quoted for the purpose of showing the effect of the lax notion in America with respect to marriage; but as the law now stands, there is nothing to prevent what is described in that paragraph from happening in England. The absurdity mentioned in that paragraph is an absurdity occasioned by considering husband and wife as one flesh. If your Lordships desire that the marriage law shall be rested upon a more sound foundation, it is far more important that the law should command the willing assent of the community than that it should be based upon any such abstract notion as that to which I have referred. I therefore venture to ask your Lordships not to be terrified by the idea that if marriage with a deceased wife's sister were legalized, the whole system upon which the marriage law of restriction was based would fall to the ground. Some people are afraid of this Bill, because they believe it to be the small end of the wedge. If anything at all, it is rather the whole wedge. The measure is not for the alteration of the marriage law excepting in regard to marriage with a deceased wife's sister; nor is there any desire on the part of the promoters of the Bill to get rid of the degrees of affinity, save in this particular case. I have to ask your Lordships to consider the quarters from

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  which this demand has come. The agitation does not represent any hostility to the Church of England, nor is it a political agitation, asking for less at the outset than it hopes to obtain at the end. It is an agitation which represents the struggle of a certain number of persons who feel the present law to be a heavy burden and a crying shame; and the measure is supported by those who feel that free liberty of action in all things just and reasonable is the first of political blessings. On that ground I look to the House to give a ready support to the Bill; for I cannot believe that your Lordships will be willing, in regard to the choice of a partner for life, any longer to say that a man shall not freely exercise the right of that choice.
  Moved, "That the Bill be now read 2a."—(The Lord Penzance.)
  THE DUKE OF NORTHUMBERLAND: My Lords, in rising to move the rejection of this measure, I am extremely loath to occupy your Lordships' attention in discussing a subject which has been already so often and so fully argued. The noble and learned Lord, indeed, though he has stated that he could not introduce any fresh considerations in favour of the measure, has, I must say, succeeded in bringing forward a most startling novelty—namely, the assertion, for the first time, that the solemn declaration on the first institution of marriage, that man and wife should thenceforward become one flesh—a declaration reiterated by Him whom we profess to believe to be God Himself—is a fiction. Now, my Lords, I am not going to trouble your Lordships with quotations from the Jewish rabbis, or from learned German commentators, of whom A, B, and C are sure to be contradicted by D, E, and F, leaving their arguments to be decided on according to the bias of the reader. I shall only say that the intimate nature of the matrimonial union originally declared in the earliest records of Scripture—in the authority of which I, at least, am not ashamed to profess my belief—partially understood in the patriarchal times, receiving its further comment from the Jewish Lawgiver, and its final warrant from Christ Himself, has been asserted and believed by the whole Christian Church from its birth to the present hour; and in concurrence with, and as
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  a corollary to, this belief, the marriages to which this Bill refer, have for 18 centuries been condemned by that Church. There is one portion of this House on whose support I am sure I may reckon—I mean its Roman Catholic Members. They, at least, know that these marriages have always been condemned by their Church as a mortal sin. I am convinced that their charity will never consent to allow such a stumbling block as this Bill will create, to be placed in the path of their Protestant fellow-Christians, and that they will never permit that the law of the State should be in direct contradiction to the law of the Church. The noble and learned Lord, in his comment on the past and present state of the law, has not, I think, put the practice of the ancient Courts in its proper light; his words rather leading one to believe that these marriages, within the prohibited degrees, were permitted in the secular Courts of old. Now, in the olden times the jurisdiction of the secular Courts was limited to ascertaining the fact of a marriage having taken place; but they took no cognizance of the validity of the marriage, which was a question the Ecclesiastical Courts reserved to themselves. The social part of this subject the noble Lord has treated with a levity which one would hardly have expected from one who holds the position he occupies. He spoke lightly of the danger of a sister taking the place of the wife in her husband's affections. He made no allusion to the opposite side of the question; to the protection of which this measure will deprive the wife. He never mentioned that which must often have been brought to his notice—the sufferings of the woman who has been deprived by sickness and sorrow of the charms which formerly attracted her husband, and who has now to endure the mental torture of seeing his affections transferred to the sister, who ought to have been her consolation and support, with the additional agony of knowing that every pang which is inflicted on her is a step bringing the guilty parties nearer the consummation of their desires. He has ignored the fact that the present state of the law is a great protection to the unmarried woman. Yet, as some proof of the feeling existing with regard to it, I may mention that I have been lately informed by a medical man that he knew, in his

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  own narrow circle, no less than six unmarried women, now residing in happiness and honour in their widowed brothers-in-laws' houses who would, on the day this Bill passed, be homeless and helpless. Of course it may be said that Parliament cannot legislate for individual cases, but in the interest of the whole nation. But the Bill itself was brought forward avowedly for the benefit of a few individuals, who for their own purposes desire the abolition of the existing law. Supposing that a certain number of people, as was said by the noble and learned Lord, annually violated this law, and this constituted a valid reason for altering it, there is not one in the whole Criminal Code which ought not for the same reason to be abolished. But, in fact, the great majority of the people are not in favour of this measure. It is perfectly well known how the agitation for it was got up, and the history of its progress is very instructive. This Bill was originally introduced into the House of Commons more than 20 years ago; it was carried at one time by a considerable majority; but the majority dwindled away until it became a minority, and the Bill was consequently lost. After the slumber of many years the Bill was revived, with a success which, I believe, will be equally temporary; the same signs are apparent of a diminishing support, for the majorities have been continually decreasing. The noble and learned Lord quotes in its favour the practice of other countries. I answer that our manners, our habits, and our ideas of morality are so entirely different from theirs that they are no guides to us in this matter. Look at the law of divorce in some of those countries. Does he wish us to adopt that also? One has heard of a man playing a rubber at whist with three wives he has divorced, whilst their present husbands were looking on. Is that the condition of morals which he thinks it desirable this country should imitate? Really, one would like to know, if this measure passes, where the question of marriages within the prohibited degrees would stop. If you are to abolish the law founded on the precepts of the Scriptures, you are at least bound to setup some other standard. Now, what is that to be? If you reject that law, why is not a man, for instance, to marry his grandmother—an idea which,
  652
  by the way, however ridiculous it sounds, is by no means impossible—or his daughter, or his sister? Do you intend to trust to the law of nature on this point? No one knows better than the learned Lord, from the dark and frightful facts which the experience of his Court must have made known to him, that the Tempter can assume every shape, from that of an angel of light to the form of the foulest denizen of the lower world, and find votaries in all of them. Before I sit down I am bound to state that there is one part of this Bill that I cannot conceive how a person holding the high office of the noble and learned Lord—a Judge of an English Court of Law—could have brought himself to introduce. I mean the retrospective clause. It is a bonus—an invitation held out to offend against the law of this country by the temptation it affords to persons to defy it; in the prospect, at some future time, of being rewarded for the offence by being replaced in the possession and enjoyment of all the advantages and privileges conferred by the law, which they, for the gratification of their own wills and appetites, have deliberately, and with their eyes open, renounced. My Lords, I am extremely sorry that I should have occupied your time so long. I wish most heartily that the duty which has been imposed upon me, of moving the rejection of this measure, had devolved on some person better fitted to command your attention. As a duty, however, I accepted it, and in accordance with that duty, I now move that the Bill be read a second time this day six months.
  An Amendment moved, to leave out ("now") and insert ("this day six months.")—(The Duke of Northumberland.)
  VISCOUNT LIFFORDsaid, he would oppose the Bill if he believed that marriages with the sister of a deceased wife were forbidden by the law of God. But there was nothing in these marriages contrary to the Jewish laws or traditions. They were not prohibited in the time of our Lord; they existed at that time, but He never spoke of them as incestuous, and did not complain of them. The fact was that they were prohibited for the first time by a Council of the 4th century. The Church prohibited them for the purpose of obtaining money, and

  653
  they also prohibited marriage of two persons who had acted as sponsors for a child. This being the case he held that their Lordships were quite free to consider the social arguments in favour of or against these unions; and he had no hesitation in saying that the former greatly preponderated. These marriages were frequently contracted, and in most cases from the purest and holiest of motives, because there was a general desire on the part of a wife that after her death her sister should take her place. This was the only country in the world where these marriages were forbidden, and their Lordships' House was the only House of Legislature opposed to it.
  LORD DENMANsaid, it was necessary for him to explain why he intended to vote against the opinion of his noble Relative, whose authority with the House was far greater than his own; but as the noble Viscount who had just sat down had voted in two different ways on this question, he felt at liberty to re-consider his vote of 1856. He must observe that he did not believe the Act of 1835 had in any degree altered the position of a noble Duke for whom it was alleged to have been passed. A letter had been published by his late noble Relative on the subject of these marriages, addressed to Lord Brougham, in 1852, and he (Lord Denman) was prepared to write, and, if required, to publish a letter on the subjects to the present holder of that title. He had been most unusually canvassed to vote for this Bill, and he believed that some persons might wish to make this question a reason for displacing the Spiritual Peers from this House; but as a member of the Church of England, he would endeavour strongly to support their opinion on this question. The noble Lord also quoted a passage from the "Memoir of Bishop Bloomfield."
  On Question that ("now") stand part of the Motion? Their Lordships divided:—Contents 71; Not-Contents 97: Majority 26.
  Resolved in the Negative; and Bill to be read 2a on this day six months.

  CONTENTS.

  Beaufort, D.

  Abingdon, E.

  Cleveland, D.

  Camperdown, E.

  Saint Albans, D.

  Cawdor, E.

  Clarendon, E.

  Cowper, E.

  Lansdowne, M.

  De La Warr, E.

  Normanby, M.

  Derby, E.

  654

  Fitzwilliam, E.

  Carew, L.

  Fortescue, E.

  De Tabley, L.

  Granville, E.

  Ebury, L.

  Grey, E.

  Houghton, L. [Teller.]

  Ilchester, E.

  Hylton, L.

  Innes, E. (D. Roxburghe.)

  Keane, L.

  Kimberley, E.

  Lawrence, L.

  Lichfield, E.

  Leigh, L.

  Lovelace, E.

  Lurgan, L.

  Minto, E.

  Monson, L.

  Morley, E.

  Mont Eagle, L. (M. Sligo.)

  Verulam, E.

  Mostyn, L.

  Westmoreland, E.

  Northbrook, L.

  Overstone, L.

  Gough, V.

  Penzance, L. [Teller.]

  Halifax, V.

  Ponsonby, L. (E. Bessborough.)

  Lifford, V.

  Sydney, V.

  Rivers, L.

  Romilly, L.

  Ripon, Bp.

  Rosebery, L. (E. Rosebery.)

  Abercromby, L.

  Abinger, L.

  Sandys, L.

  Acton, L.

  Seaton, L.

  Ashburton, L.

  Sheffield, L. (E. Sheffield.)

  Auckland, L.

  Balinhard, L. (E. Southesk.)

  Somerhill, L. (M. Clanricarde.)

  Barrogill, L. (E. Caithness.)

  Stanley of Alderley, L.

  Truro, L.

  Belper, L.

  Vernon, L.

  Boyle, L. (E. Cork and Orrery.)

  Vivian, L.

  Wentworth, L.

  Calthorpe, L.

  Westbury, L.

  Camoys, L.

  Wharncliffe, L.

  NOT-CONTENTS.

  Hatherley, L. (L. Chancellor.)

  Nelson, E.

  Powis, E.

  Romney, E.

  Marlborough, D.

  Selkirk, E.

  Northumberland, D. [Teller.]

  Shrewsbury, E.

  Strathmore and Kinghorn, E.

  Richmond, D.

  Rutland, D.

  Tankerville, E.

  Somerset, D.

  Vane, E.

  Bristol, M.

  Hardinge, V.

  Exeter, M.

  Hawarden, V.

  Hertford, M.

  Strathallan, V.

  Salisbury, M.

  Torrington, V.

  Winchester, M.

  Bath and Wells, Bp.

  Chester, Bp.

  Amherst, E.

  Chichester, Bp.

  Beauchamp, E.

  Ely, Bp.

  Brooke and Warwick, E.

  Gloucester and Bristol, Bp.

  Cadogan, E.

  Carnarvon, E.

  Hereford, Bp.

  Dartmouth, E.

  Lichfield, Bp.

  Devon, E.

  Lincoln, Bp.

  Doncaster, E. (D. Buccleuch and Queensberry.)

  Llandaff, Bp.

  London, Bp.

  Oxford, Bp.

  Erne, E.

  Rochester, Bp.

  Graham, E. (D. Montrose.)

  Salisbury, Bp.

  Harewood, E.

  Bagot, L.

  Harrowby, E. [Teller.]

  Bateman, L.

  Howe, E.

  Boston, L.

  Jersey, E.

  Braybrooke, L.

  Kellie, E.

  Brodrick, L. (V. Midleton.)

  Lanesborough, E.

  Lauderdale, E.

  Brougham and Vaux, L.

  Manvers, E.

  Buckhurst, L.

  655

  Cairns, L.

  Lyttelton, L.

  Chelmsford, L.

  Lyveden, L.

  Clinton, L.

  Northwick, L.

  Colchester, L.

  O'Hagan, L.

  Colonsay, L.

  Panmure, L. (E. Dalhousie.)

  Colville of Culross, L.

  Congleton, L.

  Penrhyn, L.

  Crewe, L.

  Petre, L.

  Delamere, L.

  Ross, L. (E. Glasgow.)

  Denman, L.

  Sherborne, L.

  De Saumarez, L.

  Sinclair, L.

  Dinevor, L.

  Sondes, L.

  Eliot, L.

  Stewart of Garlies, L. (E. Galloway.)

  Fitzwalter, L.

  Foxford, L. (E. Limerick.)

  Stratheden, L.

  Sundridge, L. (D. Argyll.)

  Grantley, L.

  Hawke, L.

  Wigan, L. (E. Crawford and Balcarres.)

  Headley, L.

  Heytesbury, L.

  Wynford, L.

  Kesteven, L.

  JUDGMENTS (IRELAND) BILL [H.L.]
  A Bill for the further protection of Purchasers against Crown Debts, and for amending the Laws relating to the Office of the Registrar of Judgments and other Offices of the Court of Chancery (Ireland)—Was presented by The Lord O'HAGAN; read 1a. (No. 59.)
  House adjourned at a quarter past Seven o'clock, till To-morrow, half past Ten o'clock.