Sitting of 27 February 1850

MARRIAGES BILL.
Order for Second Reading read.
Motion made, and Question proposed, "That the Bill be now read a Second Time."
MR. J. S. WORTLEYsaid, it was painful to him to find himself upon this subject opposed to so many Gentlemen for whose opinions and capabilities he entertained so great a respect. Still, however, having at the outset duly considered the course which he was about to take, and having been favoured with the support of many men, eminent for their learning,
82
their piety, and their practical good sense, he felt that he was not at liberty to pursue any other course than steadfastly to press forward the Bill. The measure before them was in principle similar to the Bill of last year. It proposed to grant relief in respect to certain instances of marriage, the prohibition of which had proved productive of the greatest moral and national evils. He had tried from the first to bring the measure into the narrowest compass; but this year he had endeavoured to restrict the operation of the Bill to the one necessity which required amendment, and thus as far as possible to avert the opposition with which he was threatened. In the Bill of last year it was proposed to legalise not only marriage with the sister of the deceased wife, but also those marriages which in principle were, he believed, equally unforbidden by every law natural or divine—marriage with the niece of the deceased wife. Yielding, however, to the convictions and the feelings, rather than to the judgment of many of his supporters, and being sensible, moreover, that the class of marriages in question did not create so urgent a grievance as the prohibition with respect to the deceased wife's sister, he had thought it consistent with his duty to leave out that portion of last year's Bill referring to marriages between parties and the nieces of their deceased wives. In the Bill of last year, acting upon what he knew to be the convictions of a learned and pious minority in the Church, he had proposed that clergymen should be specially permitted, although not compelled, to solemnise the class of marriages now under consideration. To this part of his Bill, however, there was considerable opposition, and therefore in the measure before the House he had abandoned the provision in question, and inserted another for the purpose of preserving whole and entire the discipline of the Church of England—a provision, which, while it proceeded upon the legality of the marriages, undoubtedly did leave those clergymen who celebrated them open to ecclesiastical censure in case of their superiors in the Church entertaining views opposed to the unions in question. This was a point with respect to which the position of the clergymen of the Church of Scotland was more difficult and delicate than that of the clergymen of the Church of England, who were not called upon when ordained to sign the canon prohibiting these marriages. In Scotland, although

83
no provision was made against the celebration of such marriages in the Confession of Faith drawn up by John Knox, yet a prohibition had been afterwards inserted by the Westminster assembly of divines—a prohibition which was undoubtedly binding upon every Scotch clergyman who took the ordination vows. This was a point upon which he admitted that difficulties existed, and upon which it was desirable that discussion should take place. Now he had heard a great deal stated as to the character of the Bill before them—a subject on which very erroneous opinions had been entertained and expressed. It was simply a measure of relief. It attacked no man's conscience, it proposed to alter the rules of no Committee, to interfere with the discipline of no church. It simply allowed, on a subject of confessed difficulty, of immense rival controversy, to individuals and to communities, the right of full freedom of judgment. Each person would of course be to a certain degree bound by the rules or the opinion of the community of which he was a member. The Bill did not pretend to change the character of the marriage. It left that where it found it. The measure simply allowed the unions in question to take place. Under these circumstances the question came to be, whether there were any objections in religion, morality, or policy which would warrant the House in refusing to sanction such marriages, in refusing to say that, under no possible circumstances, should such marriages be solemnised. It was said that he was about to change an ancient law. He was about to do nothing of the kind. The statute which he proposed to amend was only fifteen years old. The law as it at present stood was never law until 1835. Up to that period—unless exceptions were taken to a marriage of the kind during the lifetime of the parties—the ceremony was of unquestionable validity, and the consequence was, that previously to the year in question these marriages were of common occurrence. Were this a question exclusively relating to the highest class of society he would not have brought it forward; but it concerned vitally all classes of society, and particularly the poorer, who were not influenced by that scrupulous and fastidious delicacy which existed in more elevated grades of social life. He repeated that in the middle and poorer classes these marriages were exceedingly common, and that instances of their being
84
annulled were very rare; such cases, when they did take place, having been founded upon proceedings undertaken for the collateral purpose of the recovery of property. Now, then, under what circumstances did the Act of 1835 pass? He held in his hand the form of the Bill brought in by Lord Lyndhurst. That Bill, so far from purporting to annul such marriages, was a Bill sanctioning marriages already contracted within certain degrees of affinity, and only extending in its prohibitive capacity to future and prospective marriages. The only grounds upon which he apprehended this Bill could be objected to were either some clear scriptural prohibition on the subject, or some general or national ground of expediency. He thought a wise course had been taken when this subject was last under discussion, in abstaining, with very few exceptions, from the Scriptural ground of objection. His opinion last year that the grounds relied on of Scriptural prohibition were untenable, had been confirmed by what had fallen from the hon. and learned Member for Plymouth, who, after applying a considerable amount of talent and ingenuity to the subject, stated that he thought, in "all probability," there was some Scriptural prohibition. But if there were only probability, he (Mr. S. Wortley) apprehended that that would not form a sufficient basis on which to proceed, because the probability applied two ways. He declared most conscientiously he could find no such prohibition in the holy Scriptures. The first text relied upon was that directed against the abominations of the Canaanites; but how could they insist that such a marriage was specifically included when they found the Almighty allowed one of the patriarchs, from whom our Saviour was descended, to contract it? The wife's sister was not so near of kin as the first cousin, with whom marriage was allowed. In the Greek church persons were forbidden to marry two sisters, and in our own those marriages were prohibited within the seventh degree of affinity. If the objection held good on the saying that husband and wife were of one flesh, two brothers could not marry two sisters, and yet that was a marriage contracted by common assent every day. He was happy now to be relieved from the necessity of discussing the question whether the authority of the Church was overruling on the subject. Last year, the question of the authority of the Church assumed such a form as to open

85
up a much larger question than now presented itself. It had then been put as if the Church was to regulate the proceedings of all communities in the country with respect to this subject. Now, if all communities were the same, the authority of the Church might not be called in question; but, as had been stated on the previous occasion by the right hon. Gentleman the Secretary of State for the Home Department, how could it be pretended, in a country divided into so many different sects, that as sincere members of the Church, they should seek to bind the consciences of the whole community? But even in the Church itself it was notorious that this question had long been a subject of controversy. In a work published by Dr. Pusey, it was stated that this prohibition had been a practice of the Church for 1,500 years; but it would have been nearer the truth to have said that it had been a matter of controversy during that time. For the first 300 years of Christianity there had been no authority on the subject. In the fourth century they found Basil differing in opinion from his tutor, Polydorus. In the fifth century the Council of Illberis treated these marriages as matters of discipline which were not to be encouraged, but regarded them as different from incest. Dr. Pusey stated that dispensations to effect them were not known till the sixteenth century, and, for the purpose of prejudicing the case, it was added that the practice of granting them began with Alexander VI.—the infamous Borgia. But he (Mr. S. Wortley) had discovered instances so far back as the fourteenth century, in the pontificate of Martin IV. He suspected the real practice had been, up to that period, to leave the power of dispensation in the hands of the bishops. The Council of Trent expressly authorised them—and they had been continually contracted since with more or less disapprobation, whilst the highest authority of the Roman Catholic Church in this kingdom declared those marriages were not forbidden—and that, though dispensations were granted, it was as a matter of discipline and freedom of conscience. In the Established Church similar differences had existed since the Reformation. Luther himself refused his sanction to a marriage with a wife's sister where an illicit intercourse had previously taken place, as a question of discipline; but he distinctly refused his assent to the dissolution of Henry VIII.'s marriage,
86
on the ground that he did not think the degree prohibited. In fact, the most learned men of the day differed on the question. The opinions of Archbishop Cranmer had been referred to, but on such a question he (Mr. S. Wortley) did not think Cranmer a very great authority, considering that at one period of his life he had rendered himself subservient to the wishes of Henry VIII., with regard to the dissolution of his marriage with Katharine of Arragon; that he had, on another occasion, connived at the King's passion for Anne Boleyn, and afterwards refused his sanction to that subsequent marriage. The opinion of Bishop Jewell, given to a friend, had also been quoted; but it was to be remarked that the bishop did not speak ex cathedrâ, nor decide very strongly, for he concluded with these lines:—
—"Si quid novisti rectius istis
Candidus imperti; si non, his utere mecum."
And Sir Thomas More, who had scaled his death by the expression of the opinion, had declared himself in favour of marriages within such degrees of affinity. But the controversy had continued down to our own time. John Wesley had declared that, to the best of his judgment, these marriages were not prohibited; and the best proof which could be adduced of the difference of opinion which prevailed upon the point might be gathered from the fact, that in petitions presented to that House, one thousand clergymen of the Church of England had petitioned in favour of the Bill. Such being the position with respect to our own Church, he asked how we could feel ourselves justified in putting fetters on the freedom of others? How could this authority be imposed upon the Dissenters? Formerly Dissenters and Roman Catholics had been excluded from all power by the Test Act and by the sacramental tests, but they had felt it right to admit them within the constitution at last. In 1836 the canon law was altered for them; and, whereas marriages could only be celebrated in facie ecclesiœ, and according to the rites of the Established Church, up to that year. Dissenters were now at liberty to marry according to their own forms, and the House treated marriage as a civil contract, independent of any religious ceremonial, though all good men must agree in wishing to obtain for marriage the solemn sanction of the church to which they belonged. But the best argument he could find was in the act of the Legislature itself. But a few years back they had passed an Act

87
the title of which was "An Act to render certain Marriages valid;" and was he to be told the House could deliberately render valid marriages which they knew to be prohibited by the law of God? Could it he supposed such an Act would have been made law, and that not merely in the presence of the heads of the Church, but by contract and communication with the Bishops, who had in effect given their sanction to the declaration that these marriages were not prohibited by the divine law? But he now came to the only other ground upon which this question could be considered; he meant the social ground. He had before stated that if the question were confined to the higher classes he should have been willing to have left it undisturbed. Admitting the possibility, that by persons accustomed to the refinements of high life—persons of refined education, manners and habits—some inconvenience might be felt by the discussion of this question, he thought that such feelings would not be of long continuance. Although some delicate feelings might be alarmed at the first sight of this question, and difficulties might be suggested, he believed that all that would pass away. When he was told that this was a woman's question, and that under the proposed altered circumstances no mother would allow her daughter to live with her married sister, or to administer to her on her death-bed, he wished to ask the ladies of the country, with every feeling of respect, what had been their conduct in this respect before the year 1835? Why, the thing had occurred frequently. Sisters often went to live in the houses of their brothers-in-law, and, as he heard an hon. Member say, in high life too. He was convinced when the discussion was at an end the subject would cease to occupy the mind of society, and would produce no more evil than on the Continent. If it were not that he shrank from alluding to the disgusting cases of immorality which had occurred under the present law, he might cite many to show them how inadequate it had been to secure its professed object. He could show them evils produced by the false protection it was supposed to confer, where a wife's sister, unconscious of danger, fell a victim to her fancied security. He did not wish to cite the morality of Germany, where these marriages were frequent, as higher than our own; but Dr. Helwig, of Berlin, gave it in evidence that there was no instance of divorce on record from a mar-
88
riage of this description, showing the moral nature of those marriages, which were perhaps less liable than others to be contracted from passion. No writer or authority that he had ever heard of ventured to say that the people of America were inferior to, or were not at least equal to ourselves, if not superior, in their regard to the morality of the married state. He had been talking lately to one of the most distinguished men in the United States, and in reply to the question whether marriages with a wife's sister disturbed the relations of the social state, the latter said—
"The only answer I can give you is this—that my wife's sister was the first visitor who came to us after I was married, and lived with us for months;"
which showed that none of the feeling which had been alluded to existed in the higher classes of that country. With respect to the poorer classes, the presence of this near relative in the house was not a matter of choice. The poorer classes could not afford the presence of a governess, nor could they conform to those rules of etiquette which guided the rich; and he held that it was only exposing the morals and religion of the poorer classes to assault to allow them so to remain without the sanction of marriage. In his opinion, the inefficiency of the law supplied sufficient reason why it should be amended. It was contended, on the other hand, that relief was about to be given to men after they had broken the law; but he thought that where it could be proved that the law had generally been disregarded, that was a reason why it should be altered. The principal use he made of such marriages was to show that notwithstanding their numbers they did not shock public opinion, and that parties who had contracted them suffered no reproach from their relatives or comrades. He had been ridiculed for estimating the number of these marriages since 1835 at thirty thousand. Perhaps that statement was exaggerated. His right hon. Friend the Member for the University of Cambridge, who had attempted to demonstrate the error of the assertion by the reductio ad absurdum, when he stated that, if so, one marriage in every four must he with a wife's sister, forgot that his (Mr. S. Wortley's) calculations extended to the whole kingdom and to the colonies, while the right hon. Gentleman confined himself to England and Wales alone. But the cared not what the exact number might be. It was admitted that

89
3,000 or 4,000 such marriages had been solemnised; and therefore, averaging the number of children from each of these marriages at three, no fewer than 8,000 men and women, and 12,000 children, in all 20,000 persons, were personally injured by the existing law. During the recess, a society, called the London Union Society, had circulated a series of queries to clergymen to ascertain the number of marriages, celebrated in London and elsewhere, which could be called offensive marriages. According to the Guardian newspaper it appeared that, by the answers returned, only 262 cases of such marriages could be adduced, and that of these 169 were marriages with the sister of a deceased wife.[Mr. A. J. B. HOPE: There were only eight or ten cases in London.] He (Mr. S. Wortley) was not aware that the statement had passed through the hands of the hon. Member for Maidstone. With respect to these marriages, however, it had been given in evidence by clergymen examined before the Commission, that great numbers of them had been performed by the Church in ignorance of the degrees of affinity subsisting between the parties. It might be said that bigamy was common also; but bigamy met with public scorn, indignation and punishment, while these marriages were not regarded as in any way offensive, but rather as praiseworthy and proper. He would now road to the House the testimony borne by several clergymen to the impolicy of continuing the present state of the law on this subject. The Rev. Thomas Dale, now rector of St. Pancras, and who had also had great experience in the parish of St. Bride's, Fleet-street, observed—
"So far as my parochial experience extends, the prohibition of marriage with a deceased wife's sister operates far more to the promotion than to the prevention of crime. Among the lower classes cohabitation without marriage is almost invariably the result, while the few conscientious persons who are deterred by the law from forming such a connexion are precisely those to whom it would be a benefit. Were the prohibitions founded on Scripture, we ought, at whatever sacrifice, to obey God rather than man; but I cannot see the expediency of a law which, having no such sanction, is observed only by the scrupulous, evaded by the wealthy, and defied or disregarded by the poor."
The Rev. J. H. Gurney, rector of St. Mary's, Marylebone, remarked—
"On the other hand, looking at the poor, and the size of their houses generally, it is quite clear that if it be desirable for the aunt to be the trainer, then it is equally clear that she should
90
be the stepmother. A common dwelling in their case implies and necessitates cohabitation. Very often two chambers are not to be had; and, at any rate, there is such a want of privacy, and so much of compulsory contiguity, that delicacy will be shocked and outraged while the two persons live apart, or a closer union will take place, with permission of the law or in defiance of it. Now, as it is quite clear the Legislature cannot make one law for the rich and another for the poor, and the policy of such a measure is essentially different with reference to the two classes, it seems to me almost a self-evident proposition that it must just let the matter alone. It does not concern Parliament, nor fall within their province. Many persons have a strong feeling against such unions, but they have no right to impose a yoke upon their neighbours; and the attempt to do so, it seems, is resented as a wrong, which men's natural sense of justice revolts against. In our rank of life, I think it an invasion of our liberty which we have a fair right to complain of. You and I can settle such matters for ourselves, at least as well as Lord Lyndhurst and they who voted with him, very blindly, after little thought and no inquiry. But the grievance to you and me is nothing as compared to the poor man's grievance. We can get nurses and governesses for our children. A kind sister-in-law perhaps will come and live with us, and we can give her such accommodation as she wants. He has not room in his house for any female but a wife: none but an aunt can be expected to take charge of the children without pay, and the law says peremptorily and arbitrarily that the aunt must not be the wife.…I must say, I think it has a great deal to answer for already, and the sooner it takes to repentance and confession the bettor. This hardship on the poor, I think, wants pressing particularly. Almost everybody to whom you talk on the subject in society, has in his mind the case which may be his own. The habits and feelings of gentlemen and ladies are the things referred to. The number of persons probably affected in a whole generation among the upper classes is comparatively inconsiderable—the number of persons, I mean, who would marry a sister-in-law but for a prohibiting law. But lower down, it affects tens of thousands of widowers. It is almost always desirable that the man left with a young family, there, should marry again. Very often he must have a female in the house before his wife is buried, to take charge of the youngest children. Upon whom can he reckon often but a sister-in-law, in an hour like that? What so fit as that she should stay on with him, if there be no impediment? When she has got almost a mother's place in the affections of her children, it seems cruel to turn her away. Yet she cannot stay with comfort and propriety, when things have resumed their usual course, except as the second wife. 'That she must not be,' says the law; 'she must turn out, and a chance stranger must take her place.'"
The Hon. and Rev. Mr. Villiers observed—
"I cannot perceive that it is forbidden in the word of God; on the contrary, the limitation of Leviticus xviii. 18, seems to be a sanctioning to marrying a sister of a wife when deceased. The question appears to me to be one purely of expediency. The alteration of the law will not probably diminish the happiness of social intercourse

91
in the upper classes, but it may make a change in those brotherly and sisterly familiarities which have hitherto existed, and existed with advantage. But I conceive the great gain will really be to the poorer classes, who, I am convinced, with very few exceptions, never trouble themselves about the legality of the question at all. If they are aware of the illegality, they escape from the difficulty by dispensing with the marriage ceremony; and if they are ignorant of the illegality they violate the law, and the object of the Legislature is equally defeated. In short, I am decidedly of opinion that the repeal of the present law, while it may partially, and very partially, affect the habits of society among the upper classes, will remove a barrier to marriage which now exists, but which I do not believe God ever set up. It will prevent much immorality among the poor, relieve many a burdened conscience, and tend to the increase of happiness amongst large numbers of our fellow-countrymen."
Dr. Hook remarked—
"People in general do not consider such marriages improper. They cannot be proved to be improper by Scripture. The question is, therefore, one of expediency, and my experience as a parochial minister induces me to think the measure expedient. Yet when a poor man has lost his wife, whatever may be his feelings, he is almost compelled to replace her as soon as he can. To him the wife is not only the companion but the nurse of his children, and the servant-of-all-work in the house. If a stepmother is thus necessary, where are the children so likely to find one who will regard them with affection, and treat them with kindness, as in the sister of their mother, whom from early years they have known and loved? On these grounds, if ever a convocation be called, and I be elected one of the proctors, I shall move for an alteration, in this regard, in the table of kindred and affinity. Until this be case, I shall be glad to see such marriages legalised by the civil rite."
Another gentleman, a rector in one of our largest manufacturing towns, observed—
"Believing that Scripture contains no positive prohibition against a man marrying two sisters, and believing also, that were an alteration made in the law upon this point, much sin would be avoided; these considerations have induced me to be of opinion that a change in the law would operate beneficially upon the morality of the nation."
Another clergyman of a populous parish said—
"My own judgment is, that it is unwise to go beyond Scripture rule unless a strong case be made out; that the implication evidently contained in Leviticus xviii. 18, is, that the concubinage with a living wife's sister was unlawful, but that marriage with a deceased wife's sister was not forbidden; and that it would promote the cause of morality, especially among the lower orders, to abrogate the existing law."
Another clergyman, a rector in the immediate vicinity of London, remarked—
"I believe, most sincerely, from my knowledge of the poor, that much evil would be prevented
92
amongst them, if the measure you have brought forward be carried."
Another clergyman, the rector of a metropolitan parish, remarked—
"My own experience as pastor of more than one populous parish leads me to believe that the present law presses heavily both upon rich and poor. I have been compelled, as a surrogate, to refuse to grant licence, as well as to solemnise marriage, in the former class; and to prohibit the publication of banns in the latter. In one instance that I can call to mind, I happened to know that marriage between the parties was afterward solemnised at another church; and I have good reason to believe that many marriages are prevented so as to cause unhappiness among the scrupulous, and immorality among the reckless, under the present state of the law. If this experience—which I believe to be the experience of every parish priest who has large numbers entrusted to his spiritual cure—be really as extensive as I suppose, it must be weighed as a question of expediency against that supposed inconvenience which it is said will arise from destroying the confidence that now subsists between brothers and sisters-in-law. If the object of law be to promote the general good, care must be taken lest in the attempt to effect that end a correlative evil be not originated. My own experience leads me to believe that this error has been committed by the somewhat inconsistent Act which has legalised marriages for the past, while its operation forbids the possibility of legalising any such for the future."
Another clergyman, writing from one of our great metropolitan towns, observed—
"With respect to the poor, as far as my ministerial experience goes, after a residence of more than one and thirty years in a dense population of the humblest classes, I cannot but regard it of the utmost importance to encourage the respect of the poor 'for the holy estate of matrimony,' and for the law of the land; as also to diminish their temptations, to promote their self-esteem, to confirm their cottage comforts, and to facilitate their obtaining for children bereaved of a mother the nearest substitute for maternal care; and, to my mind, it seems clear, that one means of effecting this would be to remove the stigma which now attaches to marriage with a wife's sister, and to render lawful and honourable (about which the poor are very sensitive), that so fitting and proper and often needful a relation."
He next begged to call the attention of the House to the following passage in a letter written by the curate of St. Pancras, the Rev. Mr. Stainforth. He says—
"Nor is it possible for a person in my situation to overlook the practical consequences of the present state of things. Few people ought to know these consequences better than myself, for nearly a thousand couples pass yearly through my hands, and I find that I have frequently, though unknowingly, joined together those whose union is still forbidden, while among the lower classes the ceremony is too often dispensed with altogether. I should not think much of this argument if the language of the Bible were explicitly against the practice, or if such evils resulted from it as

93
from the union of persons who are too nearly allied by blood. But as I conscientiously believe that neither of the objections can be made good, I think it a great evil to insist upon a rule in which no sacred principle is involved, and which is found to be at variance with the feelings of a large class of society."
He had also before him the opinion of the Bishop of Sodor and Man, who had been for many years incumbent of the living of Battersea. He says—
"Having had for many years the charge of a large suburban parish, I became acquainted with several persons who had married their deceased wife's sister. The sister-in-law, in these cases, was the person upon whom the care of the children devolved: she was the best and nearest substitute for the mother. In these cases it was greatly to the advantage of the children that the second marriage took place. Without marriage the sister-in-law could not have resided in the house, the labourer's house affording no spare room. The parties I have in view married without the knowledge that their marriage was illegal; they were possibly led to form this opinion from the fact that many such marriages had taken place amongst the more educated portion of the community, before the repeal of that Act which rendered such marriages voidable but not void. So far as the poor are concerned, I believe that an alteration in the present law is much to be desired."
[Sir R. H. INGLIS: What is the date of the letter?] The date of that letter was so far back as the year 1842. He had other letters from other clergymen, but he thought he had read enough to sustain his proposition. There was one other consideration which he begged the House to recollect, and that was that the parties to the marriages were not the only persons interested—there were the children. And he had no hesitation in saying that, although the majority of women in the highest class might be against those marriages, if they went amongst the middle and lower classes they would find the opinion of the majority was in favour of them. As he was going to observe, the children of the parties were also interested in the question. They were born from year to year, some of them without a knowledge of the position of their parents—others with a painful sense of their position—and that was a matter which he begged of the House to take into consideration. He would read a letter, in the next place, from the Rev. Mr. Drummond, a most esteemed clergyman; that letter exemplified the position of the families in which such marriages occurred. He says—
"I this day, through Admiral Dundas, sent a petition to the House of Commons, signed most cheerfully by every householder, nearly, in what
94
is called Old Charlton, in favour of your Bill for an alteration in the present Marriage Act. Most heartily do I wish you success. I have carefully considered the matter, and, in my humble judgment, I feel certain your Bill, if passed, will check much immorality among the poorer classes: their circumstances more especially lead them into temptation which those in larger houses, and better educated, can more easily avoid. I cannot believe, as has been sometimes said, that it is un-scriptural that a man should marry his wife's sister. The law of man has made it sin, but you cannot make the poor man believe the law of God does. I have an instance in this place of one who, with the exception of this infringement of the law, as it now stands, is as correct and good a Christian as can be named in any situation of life, and I cannot tell you the pain I felt in registering his child after baptism as illegitimate; but, as the law stands, I could not do otherwise, cruel as I believe it to be."
Then there was also the question to be considered, whether with respect to the parties who had so married contrary to the existing law, the clergyman couldgive them the benefits of his sacred office. He could refer to a correspondence between the clergyman of a parish and one of his principal parishioners, for whom he had for years entertained the greatest respect, in illustration of the difficulties arising on that part of the case. The clergyman in writing to him says—
"I know not that I differ with you much in opinion, but while this law exists the marriage is not legal; you are, therefore, living in fornication, and I cannot admit you to the sacrament."
There was no choice left to the clergyman. It was not a legal marriage, and, however respectable the man might be, or however regular in his attendance at church, the clergyman says he could not encourage him to go to communion. That was a consequence of the present law; and he believed there might be many instances cited to show that while the present law was inconsistent with the feelings of the people, and while they could violate it with the consent of their friends, and were not reproached by society, they on the other hand felt as a painful consequence of the operation of the law, that they were denied the sacrament. Persons so circumstanced were left without any choice; the clergy had no choice; and they were prohibited from presenting themselves at the altar, though otherwise they would have been most frequent in their attendance. Such persons and their children naturally felt that they were injured in their dearest rights, and that they were entitled to claim an alteration in the condition of the law. In a multitude of instances marriages of

95
this description were contracted with the full advice and approbation of friends, and it was most painful to all parties that they should be condemned by the law of the land.
SIR F. THESIGER, in opposing the Motion, said, he was anxious to place before the House, as briefly as possible, but with perfect frankness and absence of reserve, the reasons which had induced him to come to a conclusion the opposite of that at which his right hon. and learned Friend had arrived—a conclusion which rendered it impossible for him to avoid saying that he thought it would be most inexpedient and mischievous to pass any such measure as the Bill then before the House into a law. No doubt, any proposition proceeding from his right hon. and learned Friend was entitled to respect, and he himself deserved great praise for the earnest attention which he had devoted to the subject, and for the distinguished ability with which he had brought it forward. It was scarcely necessary for him to remind the House that the Bill before them was one of the very highest importance; the relation with which it proposed to deal was one which was the foundation of the whole fabric of society; the happiness and morality of thousands was dependent upon it, and all must naturally be anxious to form a correct judgment on the subject. He (Sir F. Thesiger) had done all in his power to master its difficulties. He had read, and that was no small matter, the greater part, if not nearly the whole, of the pamphlets that had been published on the subject; he had attended closely to the debates regarding it that had taken place in that House; and the result of his feelings and his judgment, or a combination of both, led him to think that the passing of the Bill would be both inexpedient and improper. Looking carefully and attentively at the whole question, he had thought it right to do all in his power in the outset to ascertain the real state of public feeling on the measure before them. He was ready to concede that where anything depended upon mere human will or human legislation, public opinion was much to be regarded; and where a law coming within such a description was opposed to the general sentiment and feeling of the majority of the people, such a law ought not to be permitted to continue. But he must distinctly state, that in the attempt to discover the condition of public opinion upon this subject, he encountered great diffi-
96
culty; and he certainly found that this case afforded an extraordinary illustration of what a small number of persons might accomplish, and how by combination they might attain ends opposed to the opinions of the great mass of the community, which, generally speaking, was too inert to set itself against the active exertions of a small but energetic minority. In coming to a decision on this question, the House would find that the history of the proceedings taken with regard to it were not immaterial. About ten years ago, a number of persons of considerable station and wealth, some of whom had violated the law by contracting marriages which it prohibited, and others who were scrupulous on the subject, but desired an alteration of the law, associated themselves together; and as a first step towards the accomplishment of their object, they employed a firm of attorneys of great respectability and high character for the purpose of taking such steps as might be necessary for the accomplishment of their object. The House had now before them some proofs of what had been effected by the perseverance, skill, address, and sustained energy with which those gentlemen devoted themselves to the prosecution of the object with which they had been intrusted. They commenced their operations in the year 1840 by the publication of several pamphlets, written with great ability, in which the question of the prohibition of marriage with a deceased wife's sister was fully discussed, both upon the divine and upon human law, and conclusions were insisted upon in unison with the Bill now before the House. Then circulars were addressed to the archbishops and bishops, asking for their opinions, which however were not attended with any great success. Petitions were solicited from various parishes. Cases were laid before several leading members of the bar for their opinions: even the criminal law and the law of settlement were taken advantage of to raise the question, and keep it alive in the public mind; and at last nine different persons were retained to resort to allotted districts for the purpose of collecting evidence to support them in their endeavours to attain the object which they had in view. He did not mean to say that any of those professional gentlemen had been selected on account of their known opinions respecting the question now before the House; neither did he mean in the least to insinuate that they were not gentlemen of high character and

97
that they performed their duty with fidelity; but considering the circumstances under which they were employed, and the object of their inquiry, it was impossible that they could take an impartial view of the question which the House of Commons was now called upon to decide. In proceeding to different parts of the country for the purpose of procuring evidence, it was natural to suppose that they would, in the first place, be introduced to persons who were interested in the success of their object, and from such persons they would learn little that did not make for their preconceived opinions; and from them they would be brought into communication with other parties who were as much interested in procuring an alteration of the law, and, being so passed from one to another, it was not to be expected that the information which they obtained could be regarded as anything but partial and unsatisfactory. Now, the whole of the evidence so collected constituted the staple of the report, and that report reflected nothing more than the materials collected under the circumstances that he had described. In looking at the report, he found that forty-one witnesses had been examined, of whom ten had been professionally employed, fifteen had been married contrary to the existing state of the law, or were otherwise interested in the success of the proposed alteration; two were lawyers, of which number one was the Lord Advocate of Scotland, and the other a Gorman lawyer; fourteen clergymen, and ministers of different denominations who differed in their opinions; and then, with such evidence before them, he was anxious to sec what view the Commissioners themselves took, and for that the House might refer to the report. It admits that the opinion of the mass of the community was opposed to the proposed alteration of the law. That the majority of the clergy of the Established Church objected to these marriages. That in Ireland the great majority of the clergy of the Established Church disapproved of these connexions, which were also generally disapproved of by the Presbyterian ministers in that country. That in Scotland the opinion of the clergy is decidedly against these marriages; and that among the laity of the united kingdom the prevalent feeling is against them. With this concurrence of public opinion against the change proposed in the law, he was anxious to ascertain what were the reasons which influenced the Commission-
98
ers to incline, as they obviously did, to the Bill of his right hon. Friend. They were to be found scattered up and down in the report, and were to be extracted from various parts of it. As far as he collected them, they were "because families of a religious and moral character have, in several instances, when such connexions have taken place among themselves or their friends, been perfectly satisfied upon a consideration of the whole subject, that such marriages were not objectionable cither in a religious or a moral point of view; because such marriages will take place when circumstances occur which are calculated to bring them about; because they spring out of a peculiar combination of circumstances—called in another place 'a concurrence of circumstances giving rise to mutual attachments'—which, when they do occur, give rise to feelings naturally leading to marriage; and because it is not the state of the law, prohibitory or permissive, which has governed, or ever will effectually govern them." With all respect for the distinguished persons who drew up this report, he must confess he was not satisfied with these reasons. He did not wish to take any advantage of unguarded expressions, but it was quite obvious that the same course of reasoning might be adopted to justify any violation of a law, where the passions, the desires, or the convenience of men, accompanied by "a concurrence of circumstances" instigated them to disregard it. On the whole, then, it did really appear to him that the reasons placed upon the face of that report as grounds for making this important change in the law of marriage, were such as ought by no means to carry conviction to any unprejudiced mind. He believed it was admitted on all hands that if marriage with a deceased wife's sister were against the law of God, it would be most presumptuous in any human legislature to give its sanction to it. This was peculiarly one of those cases in which every man must judge for himself whether or not the divine law was opposed to the change intended to be brought about. For his part he should have been glad to have obtained the opinion of the Church upon the question by an assembly of divines, in convocation, or some other manner. It would probably be said, that to look to the decisions of such an assembly with implicit deference, would be a weak abandonment of the rights of private judgment, and the suggestion would pro-

99
bably find no favour in that House; he believed it would not, and he felt, therefore, that he must endeavour, as well as he could, to come to such conclusion as the varied evidence laid before them would enable him to arrive at, and to form the most correct judgment that, under the circumstances, he could of the matter then before the House. After all, it was a very painful subject to discuss before such an assembly as the House of Commons; but it would be the less necessary for him to enter into very minute details, as the speech of his hon. and learned Friend the Member for Plymouth, and that of his right hon. Friend the Member for the University of Oxford, had on former occasions almost exhausted the subject, and he felt that if he were to take up the ground which they had most ably occupied, he should only weaken the effect of their admirable arguments. Considering, however, the question to be one of the highest importance, he could not permit it to be disposed of without, to some extent, laying before the House the views which suggested themselves to his mind. In the first place, he believed that the prohibitions contained in the Levitical law were part, not of the political, but of the moral law of the Jews, and that those prohibitions were of universal application. These laws were in his judgment in full operation under the Christian dispensation, where they are enforced by a higher sanction and a purer morality. The close and mystical union between husband and wife which is so often inculcated, and so strikingly enforced in the Gospel, leads irresistibly to the conclusion that a marriage with the near relations of the wife would be abhorrent to the more refined and higher principles of Christianity. Much might have been permitted under the looser morality of the ancient Jews, which was excluded under the purer rule of the Christian dispensation, for the union of man and wife, under the law of Christ, was far holier and more intimate than under the older law; and what was allowed under the one, might very well be made sinful by a higher and holier law. Looking, then, at the old law and at the Gospel, he conceived that he was enabled to sustain the opinions which he entertained, not only from parity of reasoning, but from positive injunction. The prohibition contained in one of the verses of Leviticus, on which so much of this case was supposed to rest, could only be construed in the way contended for by supposing it con-
100
tained a divine sanction for polygamy, which—though indulgences were permitted to the Jews on account of the hardness of their hearts—will hardly he asserted by anyone, was ever sanctioned by the Divine will. Still, many persons stumbled at that text in a state of doubt and perplexity, finding it impossible to come to any satisfactory conclusion. Now, to those who entertained such doubts he should venture to address this interrogatory. What, under such circumstances, did wisdom require of them? He did not mean a narrow, selfish, worldly, prudence—but what did a high and enlarged wisdom require of them? It required this, that they should not concur in an act which, for anything they could tell, might be opposed to the Divine law, and so as was said on a more honourable occasion, "they should haply he found fighting against God." His right hon. and learned Friend had not dealt fairly with the councils. He stated it was not until the fourth century that any trace of the prohibition of these marriages was to be found in them, and that the origin of it was lost in obscurity. But if such prohibition is found in councils of this early date, it was reasonable to suppose that their decisions were only declaratory of what was and had been the general opinion of the Christian world at and antecedent to the period at which such councils sat. These councils had also been disparaged, because many of their injunctions had been in more recent times entirely disregarded. But the distinction must always be borne in mind between matters of order and discipline, which were of temporary, and matters of faith and morals, which were of perpetual, obligation. Let them show him any instance in which upon those higher points there had been a fluctuation of opinion or practice, and the argument might then be worth something; otherwise, it were no more than if a man were to say that the constitution of England was founded on Magna Charta, and he were to be answered by pointing to some of its provisions which were disregarded and had become obsolete. The state of public feeling, then, being as he hoped he had truly described it, he begged the House now for a moment to consider the first effects which the legislation which they were called on to adopt must necessarily produce. Those effects would be to legalize marriages contracted with a full knowledge that they were violations of the law of the land; and in no-

101
ticing that probable effect of the measure he must be permitted to say that the law of 1835 gave them no great encouragement to proceed in a course of retrospective legislation. That law was passed to meet a particular case. It was said that the bishops would not have supported it unless they believed it to be in consonance with the law of God. It was not for him to question the grounds upon which the bishops gave their votes; but of this there could be no doubt, that that law had the character of a species of compromise, and was evidently stamped with inconsistency. But it expressly enacted that all such marriages contracted after 1835 should be null and void. An appeal was now made to Parliament on behalf of persons who, with the full knowledge of the law, had chosen to contract these marriages. Now, consider what they must have done preliminary to it. Either upon the obtaining a licence, or before the publication of banns, there must have been a false declaration, and at the time of the ceremony they must have disregarded the solemn warning addressed to them in these words:—
"I require and charge you both, as ye will answer at the dreadful day of judgment, when the secrets of all hearts shall be disclosed, that, if either of you know any impediment why ye may not be joined together in matrimony, ye do now confess it."
His right hon. Friend the Member for the University of Cambridge suggested to him that this only appllied to marriages by the clergyman, and not to those before the registrar, and he was perfectly right. But before a marriage in either way, the previous declaration was required, which is, "that there is no lawful," not as suggested, no scriptural impediment after "effect." One cannot too strongly condemn those who, in England, have contracted such marriages subsequently to the passing of the Act of William IV., for they have deliberately entered into alliances which that Act rendered absolutely void—nothing can justify or extenuate such conduct. But the impediment which these parties were enjoined to declare was "lawful impediment," and not "scriptural impediment." In page 143 of the Appendix, a person who had contracted one of these illegal marriages writes—
"When I took that important step I had fully satisfied my mind that it was thoroughly justifiable on the grounds of good morals and sound religion, and in accordance with the written word of God. I knew, of course, that I was running coun-
102
ter to the Act of Parliament. If I did either religious or moral wrong, repealing the Act cannot now make me right, any more than if I did right the Act as it now stands made me wrong."
Now, that was a very loose method of viewing the infringement of the law, but it was a good deal countenanced by the report of the Commissioners to that House, There would be no difficulty in showing that whore parties contravened a mere human law, which was not in opposition to the divine, such an act was little consonant cither with morality or religion. The right hon. and learned Gentleman said that the House had to consider the case not merely of the parties to these marriages, but the case also of the innocent children born under them, 20,000 or 30,000 of whom his right hon. and learned Friend said were in the predicament of being rendered illegitimate by their legislation, Well, if parties were disposed wilfully to violate the law, it was not too much to ask that they should have a little regard to the consequences. If the House were called upon on the present occasion to legislate to prevent the evil consequences of evil actions from extending to innocent persons, they might erase all their criminal code, because the consequences of crime were never, and could not be, confined to the guilty, but necessarily extended to every person connected with them. But it was said that the repeal of the law was peculiarly called for for the sake of the poor, and they were told that, owing to the scanty accommodation of their houses, the convenience of having a relation at hand at once to enter upon the duties of the household when the wife died, and the inability of the poor to provide pecuniary remuneration to any one else—that on all these accounts such marriages were likely to take place on the part of the poor. But when this question was first agitated in 1840 by the wealthy persons who associated themselves together, the case of the poor was not one that was then very prominent in their minds. It was now a very important and very useful adjunct; it was now put more prominently forward than the case of the wealthy. The right hon. and learned Gentleman even told them that if this were a question between persons in the higher stations of life he should not think it worth his while to interfere; but that it was a question intimately affecting the middle classes and the poor. Now, this allegation, that the case was one affecting the poor, was very little understood, and very

103
much exaggerated. He (Sir F. Thesiger) believed that these marriages were not common among the poor. The sister-in-law-was most usually otherwise employed in that class of life, and was not able in the majority of cases to be present in the house on the death of her sister. Every particle of the evidence at present before the House showed that the statements made regarding the poor had been grossly exaggerated. He would take the return of the number of marriages of this kind contracted since the year 1835. They knew that the poor unfortunately constituted the mass of the comnunity. But, out of the 1,503 marriages contracted since 1835, how many appeared to have been contracted by mechanics and labourers? Why, forty. His right hon. and learned Friend told him to read the reasons given in the report why the number of these marriages in the returns was not greater. Well, what the Commissioners really stated in the report was, that they did not know anything about these marriages; that the parties were so obscure, that they could not detect or discover them.["No, no!"] There was the evidence of the Rev. Mr. Denham, of St. Mary-le-Strand, who knew of one such marriage among the poor. The Rev. Mr. Hatchard, clergyman of a parish containing 25,000 persons, could only speak of his own knowledge of one such case. The Rev. Mr. Owen, of Bilston, with a parish of 20,000 souls, and surrogate of a district containing 780,000 persons, did not think that one case had occurred within his district; and all the clergymen who had given this evidence were in favour of an alteration in the law. [Mr. S. WORTLEY: They all believe there are a great number that they do not know of.] Yes, they "believed" it. And was the House to legislate on such grounds? Other witnesses said they believed these marriages were not frequent among the poor; and the rector of a parish, who stated that he had not read the evidence, said, he "understood" parties were living in a state of concubinage on account of the state of the law. But what ought Parliament to legislate upon—known and admitted facts, or the "belief" of these parties? Whether he took the statistics or the positive evidence, the case of the poor entirely failed, and the right hon. and learned Gentleman had called upon the House to act upon credulity, and legislate without known facts. The parties who were promoting this question for their own advantage, had no right to press for-
104
ward the case of the poor on such insufficient grounds. It would be conceded, that some urgent necessity must he shown to justify ex post facto legislation. This urgent necessity, the right hon. and learned Gentleman said, was to be found in the case of the poor; but he (Sir F. Thesiger) had proved that no case for urgency had been made out on the part of that class, whose hardships, if they existed, he admitted would be entitled to the deepest sympathy of the House. They were next left to inquire whether there was a large number of persons entertaining scruples on this subject, who yet had not infringed the law, but who desired to effect an alteration in the law from the peculiar circumstances in which they were placed, and who pressed their arguments upon the attention of the House for their own advantage. He thought it would be better if the letters of some of these parties had not been introduced for the purpose of showing the hardships of the existing law. He adverted to one statement which appeared in page 143 in the Appendix of the Commissioners' report, in the form of a letter to Mr. Crowder:—
"In August, 1836, it pleased God to remove from me a wife with whom I had lived nearly thirty-six years in as much happiness as falls to the lot of most men. I was thus loft a widower with six daughters, three of whom are married. Two are at the head of a respectable boarding establishment for the education of young ladies. The youngest is living with me. Having been thus deprived of my helpmate, and left with an establishment by no means small, which in the opinion of the whole of my family could not with propriety be intrusted to so young a person as the only branch of my family remaining with me, it was therefore, with her entire concurrence, and that of every other member of the family, that my late wife's sister, who had resided with us as one of the family upwards of twenty years, kindly undertook the care of the household, the duties of which she has assiduously fulfilled, and, having no connexions or sympathies out of my family, we are now to all appearance destined by Providence to spend the remainder of our lives together. I am sure I need not use any argument to show how much it would add both to her comfort and my own, could we be lawfully placed in the situation of man and wife, and this we had determined to do, but And the law of consanguinity as it now stands to be a bar, and unless this obstacle is likely to be speedily removed, we shall be induced to adopt some mode to evade or seek redress in a foreign country. I view the prohibition as unjust, my conscience bearing me witness. I see no law, neither in morals nor religion, that imposes such a prohibition, and in this I am borne out by my own family and connexions, including my brother's family and the minister with which it is my happiness to be connected, nor do I know of any reason, either private or public,

105
which can be urged against it, except this which I am induced to call an iniquitous statute. We are both above sixty years of age, and may not, therefore, be charged with the frivolities of youth."
Now, when a case of this kind was brought forward to show the hardship of the law, where the parties were upwards of sixty years of age, and, consequently, might have lived together respectably without incurring the censure of the world, the promoters of this Bill must have been hard pressed for instances to show the hardships of the present law. The right hon. and learned Gentleman and the Commissioners said they did not expect, if the present Bill passed, there would be many more of these marriages contracted than had been contracted under the existing state of the law. Well, then, the House was clearly asked to legislate for a comparatively small number of cases that were likely to occur, and they were also asked to legislate without reference to the great majority of instances in which the care and attention of the sister-in-law might be of the greatest importance to the husband, and which he might now enjoy, but which, if this Bill should pass, it would be impossible for him to receive. The opponents of this Bill admitted that the sister-in-law might be the best guardian of the orphan children; but they also felt that the natural affections arising from the near relation in which she stood to them might be perfectly sufficient for their protection without imposing upon the husband and his sister-in-law the necessity of contracting a marriage. The opponents of this Bill also said, that if the parties contracting such a marriage were young, it was probable that a family might be born to them—that the natural affection of the mother springing up in the breast of the aunt might pre-dominate over other ties—and that she would then have the same feelings towards the children of her sister which were ordinarily attributed to the stepmother. If the parties were old, they might live together without the censure of the world, and the care and attention of the sister-in-law might be bestowed by her just as efficiently and affectionately as if she had contracted a marriage with the husband of her deceased sister. But when was it that this care and these attentions were most required? It was at the moment when the grave had closed upon the wife—when the bereaved and distracted husband looked around him, and wondered who
106
would accept the charge for which he was then utterly unfit—it was at that moment that the affectionate solicitude of the sister-in-law provided for the occasion; she took her natural position silently in the house; she administered the kind offices which the bereaved condition of the husband and children required; she did it purely and efficiently, and without the slightest suspicion attaching to her motives. But, take away the prohibition of these marriages, and what was then her condition? She would shrink from appearing in the house of her brother-in-law at the very time when she was most needed there; whatever her feelings might be, she knew that the censorious would attribute her presence to a desire of supplying her sister's place in the affections of the husband. Thus she would avoid giving her aid at that particular moment when it was most requisite; and by the law now proposed they would deprive these children of, instead of supplying them with, the guardian which nature had given them. Nor was this all. How entirely did the promoters of this measure propose to change the relation between the sister-in-law and her sister's husband! She was now received in the family on the footing of a sister. Her intercourse was pure and affectionate, and free from suspicion. But, allow the husband to marry his wife's sister, and what would be her condition then? From that moment they would make her a stranger in the family. In the purest sunshine of domestic life, clouds would occasionally intervene; suppose at such a moment the attentions of the husband were directed to his sister-in-law: at present she might interpose her gentle offices to effect a reconciliation; but, change her relation to the husband by this Bill, and all her kindness during this transient estrangement might be turned to suspicion; let distrust once enter the mind of the wife, every trifling circumstance would increase it, until it grew into the madness of jealousy, and all domestic happiness would be destroyed. They were about to legislate by this Bill professedly for a small number of parties, while they utterly disregarded the vast majority of persons who had no desire to contract these marriages, and who wished to retain for their families what they might at present enjoy—the assistance and protection of the sister-in-law. For the sake of legislating for a few, they were about to sow the seeds of unhappiness, alienation, and suspicion in many a family in the

107
country. Last year the Bill of the right hon. and learned Gentleman proposed to remove the prohibition against marriage with a wife's niece. His right hon. and learned Friend had now remodelled the Bill, and confined himself to allowing marriages between the husband and the wife's sister. Now, he should like to know on what principle, when this Bill had passed, the right hon. and learned Gentleman could refuse his concurrence and approbation to a measure for legalizing marriages with a wife's niece, if any hon. Member should bring in such a Bill? The right hon. and learned Gentleman allowed of marriage in the nearer degree, and loft the more distant degree under a prohibition. He wondered, too, why the right hon. and learned Gentleman refused to allow the brother to marry his brother's widow. These parties stood in the same analogous position as the parties for whom the right hon. and learned Gentleman now proposed to legislate, and the marriage of a brother's widow ought to be equally lawful. The Bill, in fact, was only an introduction to successive alterations in the law that would allow of marriages within almost all the degrees of affinity. Parliament could not stop short if they agreed to this commencement of evils, and then they must soon come to what was represented to be the object of a petition presented by the Secretary of the Admiralty in the earlier part of the day, which the hon. Gentleman had inadvertently described as a petition for the repeal of the law with regard to all marriages. But there was another strong objection which he entertained to the Bill, which had been furnished by its proposed provisions. The Legislature either had the power, or it had not, of dealing with this subject. If it had not the power, it could only be because there was a Divine prohibition against marriages of this description; but if there were no Divine prohibition, the authority of the Legislature was paramount, and should be enforced, and every person should be bound to obey that law. Yet upon the very face of the Act the misgivings of the promoters with respect to the validity of the law were clearly stamped. It was provided—
"That nothing in this Act contained shall be deemed or construed in any civil or ecclesiastical court of this realm to alter or in anywise affect any doctrine, canon, or law ecclesiastical of the United Church of England and Ireland, or of the Church of Scotland."
But if the canon law was not based upon
108
the divine law, the Legislature had clearly a power over the canon law. It was admitted by the promoters that these marriages were not divinely prohibited, and the Legislature was therefore to allow persons who entertained different opinions on the subject to act upon their own canons and doctrines, without being compelled to obey that which was superior to their canon law. He objected to the Bill because it had a tendency to set one party in the Church against another. It was deeply to be regretted that the Church should be rent in twain, but he was afraid that if this Bill should pass there would be no difficulty in drawing a line of demarcation, and of stating on which side would be found those clergymen who would solemnise these marriages and those who would not. The breach between these two parties in the Church was wide enough already; but the present Bill would have the strongest tendency to widen it, because it would place an additional badge upon the two sections of the Church by which they would be known. This was a reason which ought to weigh with the House before they passed this Bill. It was clear that there were a great number of clergymen who would refuse to solemnise marriages of this kind. But what was the poor man to do if his clergyman refused to solemnise such a marriage?" Oh," it was said, "he will have nothing to do, if he can't obtain the sanction of his own clergyman, but to go to a neighbouring parish where the minister holds different notions." But the poor man could not leave his home; he was tied to his occupation, and he could not afford the residence necessary to enable him to solemnise a marriage in another parish. But suppose he did, and suppose him married to his wife's sister. He returned to his parish; his clergyman thought he had been guilty of the infringement of a divine law, and refused him the sacrament. It was a painful denial, and the facts mentioned by his right hon. and learned Friend at the close of his speech were very distressing; but it was clear that the minister had only done his duty, where parties had transgressed the law of the Church, to refuse this sacred ordinance. What was the consequence? Either the poor man would be driven into the ranks of Dissent, or he would be compelled to remain without the comfort which he would derive from the sacrament as long as he remained in the parish. It was said that parties desirous of contracting these mar-

109
riages might go before the registrar. But he believed that the feeling was very strong among all classes against having their marriages contracted in the presence of the registrar, and the worst thing that could take place under the law would be that they would be driven to the registrar. But, when these parties had contracted marriages before the registrar, they would not be in a better position in their parish with regard to their minister. They would be left in the same unhappy and melancholy position, and in every respect his right hon. and learned Friend's Act would be most mischievous and highly detrimental to the best interests and feelings of society. Under all these circumstances, he (Sir F. Thesiger) felt it to be his incumbent duty to resist the passing of this law. He had endeavoured feebly and imperfectly to state the grounds on which he most deeply felt the necessity of resisting. It was probable that many of the grounds of his opposition were not founded in reason, and were capable of being answered; but he entertained them deeply; upon them he ventured to act; and should, therefore, move that this Bill be read a second time that day six months.
Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."
COLONEL THOMPSONsaid, he thought he could make a correction of one statement or inference which was advanced by the hon. and learned Gentleman who had last addressed the House. In all cases of theological dispute, and this was one, it was always very desirable to know what might come next. Nobody ought to acquiesce too lightly, or presume where an adversary was likely to stop. He had, therefore, consulted the copy of the form for the solemnising of marriages, and he found, that after the question to persons why they may not be lawfully joined together in matrimony, the words which followed were, that "so many as are coupled together otherwise than God's word doth allow, are not joined together by God; neither is their matrimony lawful. "Now he submitted that to the most scrupulous man these words, taken together, were sufficient to authorise him to give his answer in accordance with his own opinion, whether the marriage was forbidden by the law of God or not. There was one point so prominent that he would add a few words on it. The hon. and
110
learned Mover had been asked what reason he could give for not introducing a Bill for legalising marriage with a wife's niece. He (Colonel Thompson) submitted that the question was not what the hon. and learned Gentleman might do, but how many hon. Members would be found to support it. Let the case be tried, and see what would come of it. Whore would be found the numerous petitioners for marriage with a wife's niece? Where would be found the clergymen of the Church of England, and other denominations, to state their belief that such a permission would be conducive to the morality of the public? Where would be the multitude of complaints from those who had so married already, and incurred the unpleasant consequences arising from flying in the face of what they thought an unjust prohibition? He submitted that there would be none of these. Therefore, without danger, the case might be left to find its own conclusion when the question was brought before them.
MR. HEADLAMsaid, that his hon. and learned Friend the Member for Abingdon had made an elaborate argument against the Bill, founded upon the manner in which it was brought before the House, and the class of persons who agitated in favour of it. In answer to this argument he contended that the grievance was one which, from its nature, could not be universally felt, and that those who looked upon it only as an abstract question could not be expected to take very lively interest in it, or to exert great activity in bringing it forward. It was natural that the particular persons who suffered from the grievance should endeavour to obtain redress, and an alteration of the law, on their own behalf, and he did not see any reason to complain of their conduct in so doing. He thought it the duty of the House to consider the case with the utmost impartiality, and not to allow itself to be biassed by any observations upon the conduct of those who sought an alteration in the existing law. Of course, if Scripture did prohibit these marriages, there was an end of the question. It is our duty to act upon the Divine mandate, and all responsibility is taken away from us in so doing; but, if Scripture does not prohibit such marriages, then we have no right to invoke its authority for the purpose of sanctifying our sentiments, feelings, or prejudices. He (Mr. Headlam) denied that Scripture did prohibit them. Indeed, latterly, no one had contended that it did so directly, but ela-

111
borate arguments were adduced to show that it did so indirectly. These arguments took for their foundation the proposition "that man and wife are one flesh"—a proposition expressive, undoubtedly, of much of truth, but a proposition which would lead to all kinds of absurdities, if taken literally, and carried out to remote consequences. His hon. Friend, feeling the weakness of this argument, said, that if Scripture were doubtful on the subject, then we ought to prohibit these marriages. He told the House that it is the highest wisdom not to permit that which might possibly be opposed to the Divine law. Now, he (Mr. Headlam) differed in some respects from this view. He thought it the duty of the House not to strain the language of Scripture in one direction more than the other. It is true that the language of Scripture, prohibiting things evil in themselves, may be extended beyond the literal meaning. Thus, the commandment "Thou shalt do no murder," is often construed to forbid all deeds of violence. So we are taught that the words "Thou shalt not steal," extend to prohibit all acts of dishonesty. There can be no objection to such an interpretation of passages in Scripture of this description, where the thing prohibited is evil in all its forms; but marriage is a good and lawful thing in itself—a prohibition of marriage is an exception, and we have no right to extend the exception—that is to say, the prohibition of a good thing—further than the language of Scripture, construed strictly, authorises us. Assuming that the authority of the Divine law does not decide the case, then the arguments against the Bill are of a social kind. The first of these arguments is derived from the effect which a repeal of the existing law would have upon the relation of husband and wife during the wife's lifetime. The second argument is founded upon its effect on the relation of a man to his wife's sister after the death of the wife. With respect to the first of these arguments, it is said that if a man may by possibility ever marry his wife's sister, there will be an end of freedom of social intercourse, and jealousy and suspicion will be engendered. He (Mr. Headlam) doubted the truth of this in any case; but the argument is founded upon sentiments and fancies, and is not strong enough to justify us in enacting a prohibition of such a thing as marriage. The argument is utterly unintelligible to the great mass for whom the House is legislating.
112
Conceive a clergyman telling a labouring man desirous of marrying his deceased wife's sister, that he could not do so, not because Scripture prohibited such marriages, but because if human laws permitted them, then the fellow-labourers of the man applying would not be able to treat the sisters of their existing wives with the graceful familiarity now practised. Depend upon it it is no light matter for this House to legislate upon so delicate a subject, on reasons confined to one class, on reasons unintelligible to the great majority. If, then, the House is not justified in such legislation by anything which takes place during the continuance of the marriage relation, what reason was afforded by the circumstances which occurred after that tie had ceased? The advocates of the existing law contended that it was safe and proper now for a wife's sister to come and live with her brother-in-law after the marriage tie had been dissolved by death, but that it would not be safe or proper if the law should be altered. Were hon. Members quite sure that it is safe or proper as the law now stands? He begged to refer to a letter which would be found at page 153 of the Appendix to the report of the Commissioners on the Law of Marriage, which had made a great impression upon his (Mr. Headlam's) mind, and the whole of which deserved attentive perusal. It stated the case of a brother-in-law who had taken his deceased wife's sister to live with him. One passage of the letter was as follows:—
"What I wish especially to impress upon your mind is this, that the fact of my taking my wife's sister to live under my roof was exclusively owing to the law, which, by forbidding our marriage, alone rendered such co-residence possible. And yet from this fact has followed, by natural sequence, all the rest which has made the wretchedness of the last five or six years of my life, and must make the misery of the residue, if this law remains unchanged. The law invites a man little more than thirty to take his wife's sister to his homo, to soothe his sorrow, to watch over his children, and then, when the natural result of this intimate society and sympathy follows, it turns round upon him and tells him he must be content to live a life of torture, or that he must deprive his children of that benefit which the law professes to secure them."
Parties were exposed to live in this manner for years and years, suffering the torture of blighted affections, or to do that which must degrade them in the opinion of society. With such examples brought before them, he had no hesitation in saying that no brother-in-law could be advised to

113
take his deceased wife's sister to live with him. The danger under the existing law is even greater than it would be under the proposed change. If the law were repealed there would be a violation of the customs and nice feelings of society in the case of a brother-in-law living with the sister of his deceased wife, but there would not be a danger of those direful evils hinted at in the letter he had read. Hon. Members might say that this was an exceptional case; but they should recollect that every man who was influenced by such feelings was disposed to hide them in the innermost recesses of his own breast, and therefore it was impossible to say how many cases of this kind might exist. No man could say how many of such cases existed. It may be that the very instances which hon. Members think are proofs of the good effects of the existing law, are, in reality, cases similar to that of the writer of this letter, where, under a smooth surface to the world, thoughts and passions the most bitter are concealed. Every hour this discussion continued, the greater difficulty would they find in securing obedience to this law, because additional arguments would be furnished for violating it. When the law relative to marriage is based upon Scriptural authority, and in conformity with the feelings of mankind, it will be strong to promote redation and morality, but without such foundations a law restraining marriage will be weak as cobwebs to control the strong passions of mankind.
MR. W. P. WOODsaid, that it was not without some degree of difficulty that he had brought himself to address the House upon this subject. On a former occasion he had felt overwhelmed by the extreme delicacy and difficulty of this inquiry, involving questions on which it was most embarrassing to enter, relating to the male and female portion of the community, independently of the question of Divine authority, the solution of which was complicated by the difficulty of dealing in that House with the real interpretation of portions of Scripture. The difficulty of the question had, however, been removed in a great measure by the tone and temper in which it had been treated by the right hon. and learned Gentleman who had brought forward the measure. And the right hon. and learned Gentleman bad, by the frame of his Bill, further removed some portion, though not the whole, of his objections, and on that account also
114
he had the less embarrassment in approaching the discussion of the subject. It had been rightly said, that every Christian and every Member of that House must form in his own mind the conclusion whether it was contrary to the divine law that a measure of the kind introduced by the right hon. and learned Gentleman should be adopted by the Legislature. He admitted that it was a matter for every hon. Member's individual conscience; but at the same time it was a matter so serious that he was persuaded it was impossible for any one to come to a conclusion on the subject until it was settled, not whether the matter was doubtful, but whether the divine law was so clear that he was at liberty to vote for an alteration of the law now standing on the Statute-book. However, although he might think individually that there was a direct prohibition against a marriage of this description, that did not prevent him from arguing the question upon general principles, He wished, therefore, in the first instance, to argue it as if there were not the slightest indication of the revealed will of God on the subject. For he did not think that because he might entertain clear opinions of the truth of Revelation, for instance, that he was therefore incompetent to admire the arguments produced by Paley in his Natural Theology, or that the still more striking treatise of Butler's Analogy between Divine and Natural Religion; and so he was not disqualified from entering into a consideration of those moral argument which he thought ought to have their weight with the House in reference to this question, wholly independent of any question of divine prohibition whatsoever. He had heard a very strange argument brought forward, that the whole onus of proving from Scripture the necessity of continuing the existing prohibition, rested on those who supported the law. It was said that marriage was in itself lawful, and therefore it was necessary to show that the marriage of a deceased wife's sister with her brother-in-law was prohibited by the law of God, and that, if it could not be shown to be so prohibited, it ought to be allowed. If that argument were correct, what were they to say of the ancient nations of antiquity, who had their own views of the propriety of certain marriages, and yet had no revealed law of God to guide them? Did any man mean to contend that when they said that a man should not marry his daughter, or a son his mother, that there

115
was any abridgment of natural liberty? He thought there was a common feeling which carried along the nations of antiquity, who had no such light to guide them as we have, to the conclusion that there were some marriages which were proper to be prohibited by the civil law and institutions of the country, even without a direct revelation of the will of the Creator on the subject. They all knew that such laws did exist in every nation of antiquity, and they found that just in proportion as any one of those nations was distinguished for its morality, in the same proportion were these prohibitive laws the more stringent and decided. This was the case with the most remarkable of the heathen nations of which history had given us any record. The Eastern nations were always less strict on this subject than those of Western Europe. In ancient Persia, sisters were allowed to marry. The Athenians allowed half sisters to do so. But the Romans were distinguished by their sturdy morals no less than by their sturdy valour, and were peculiarly strict both as to the marriages they permitted, and as to the law of divorce, which was a kindred subject. Even to this day we found in the Asiatic nations that wherever the law regulating the intercourse between man and woman was of a low description, the morals of the people were proportionately low. According to the law of the Romans, it was doubtful at one time whether even the marriage of first cousins was lawful. A most remarkable case on the subject, which was related by Tacitus, occurred in the instance of the Emperor Claudius, who was desirous of marrying his own niece—a kind of marriage for which permission is accorded, by dispensation, by one of those Churches which the Protestant Church of England was now called upon to imitate, he meant the Church of Rome. The stern moralist who was the historian of this matter, Tacitus, told us, that for a long time before the Emperor had desired to bring forward this proposition, but that he was afraid of the feelings which it would occasion among the people. The parasites, however, who were about him, told him that this kind of marriage was only opposed by antiquated prejudices, and Claudius accordingly went to the Senate, and addressed to that body much the same arguments as those which had been used by the right hon. and learned Gentleman who introduced the Bill. The report given by the historian of the Em-
116
peror's speech was couched in the following terms:—
"Atenim nova nobis in fratrum filias conjugia, sed aliis gentibus solemnia, neque lege ullâ prohibita. Et sobrinarum diu ignorata, tempore addito percrebuisse; morem accomodari prout conducat; et fore hoc quoque in his, quæ mox usurpentur."
The Emperor's argument was, in substance, that the ancestors of the Romans disliked such a marriage as he contemplated, just as the right hon. Gentleman admits that certain ancient councils had a decided objection to the marriage of a widower with his deceased wife's sister; but then it was to be borne in mind that their prejudices extended to the marriage of first cousins; and he suggested that it would be expedient, in a social point of view, to shake off the trammels of these old customs, and to do like other people, as the right hon. Gentleman asks us to adopt the practice sanctioned by other nations, such as Germany, for instance. The Senate assented to this reasoning, and the Emperor accordingly made a marriage which proved most disastrous, for the lady poisoned him. But to be serious—for he thought that the House had entered into a very grave and serious matter—he had never heard in his lifetime, nor read in history, of any matter of deeper interest. Questions concerning political power and pecuniary wealth had been brought before the House, but there was now before it a question which proposed to vary the social and moral position of every home in England. He said social and moral, and not religious, advisedly, for the House would not alter our religious position. No—a unanimous vote would not alter one jot or one title of the Divine law, the tremendous responsibility as to which must still be undertaken by those who will contract such marriages. Had hon. Members considered the social and moral position of persons abroad? He did not think that nations, any more than individuals, should dwell upon their own excellencies, or the faults of their neighbours; but when the example of foreign nations was held out to us for imitation, we were driven to the comparison; and he would ask hon. Gentlemen what peculiar advantages they saw in the social or moral position of foreign countries as compared with our own? He confessed that in those which it had been his fortune to visit, there seemed to him to be a singular superiority on our side, which was marked, in

117
the first place, by the confiding frankness and innocent liberty allowed to unmarried women, and the deep devotion to domestic duties exhibited by the married women of this country. As the English were a more stay-at-home people than their continental neighbours, a greater intimacy took place among the members of the family circle; and if that was so, he thought that when combined with the frankness he had referred to, such familiarity would decidedly tend to a relaxation of morals if the barrier was removed which at present prevented the marriage of a widower with his sister-in-law. He regretted to find it stated in the evidence that in one case parties thus connected by affinity, finding that they could not legally marry, lived in a state of concubinage; and it was added that they were persons of respectability, keeping their carriage, and that their friends did not think the worse of them for what they had done. The test of respectability applied in one very well-known case was "keeping a gig;" here the parties were advanced rather higher in the scale, and "kept their carriage." Then, as to the question about the poor. He had never heard of a single case of this kind among the poor, though he had lived in a parish where there was a good deal of district visiting. In fact, the poor married at so early an age that it was next to impossible for a poor widower to find a sister-in-law unmarried. They had distinct evidence that it was not common amongst the poor. He referred to statistical evidence, and not to that of a private nature. It was in evidence before the Commission that of the 1,500 cases scraped together, not above forty were among the poor. Many gentlemen had written letters to say that the poor wished to contract such marriages; but what was the value of such a declaration without statistical evidence to support it? He had appealed to some of those gentlemen to furnish him with some evidence in support of the assertion, but they could give him no statistical facts in support of these views. He would state a sample of opinion which was not founded on statistics. A medical friend of his wished to make, for a purpose connected with his professional pursuits, a statistical return on an extensive scale. He wished to find out the proportionate number of persons with white hair and blue eyes to others not so marked, as he thought that it would afford him an illustration connected with some peculiar disease. For
118
this purpose he visited several schools throughout the country, as well as those in London, and he found the number was very different in some districts from others, and the proportion varied very much throughout the whole of the country. He found by experience he could go into a London school, and could tell to a fraction out of the number of scholars how many had white hair and blue eyes, but on investigation he found how erroneous the calculations of others were without statistics. He asked the master of one school, in which there were 800 scholars, what was the proportion of children in it with white hair and blue eyes. The reply was, "He could tell in a moment: he thought about one-half." His friend said that he believed there was about one-seventh, but he could not tell the number before he had counted them. On their proceeding to count them they found that there was not one-tenth. This, he thought, was a valuable instance of opinion as contrasted with statistical evidence. Now, he believed there were very few instances of marriage with a deceased wife's sister among the poor. He had taken some trouble to ascertain the fact in that parish (St. Margaret's, Westminster), in which there were 20,000 inhabitants. He had not relied on his own knowledge of the poor, but had requested two persons, who were employed by the clergy and by lay persons connected with charitable institutions in the district, to go round and make inquiries on the subject. He believed these persons had had considerable experience in investigations connected with the poor; and the result of their inquiry was, that they found one case of a man married to his deceased wife's sister; and that man was looked down upon by all his neighbours. They also found two instances of men living with their deceased wives' sisters. Such was the result of the inquiry in a metropolitan parish containing upwards of 20,000 inhabitants. They had been told that the proportion of such marriages was forty in 20,000 persons, but the result of inquiry showed that it was only one. The fact is, the poor are very tenacious of impressions generated by long habit and a settled state of law. The impression which appeared to be made on the minds of the poor was, that such a marriage was incestuous: he did not wish to use an offensive expression, but such, he believed, was the view in which they regarded it, and more espe-

119
cially in Scotland. Marriages of this kind were more common among the higher than the lower classes; for, as regarded the former, luxury in a certain degree led to this relaxation of morals. He had asked what evidence they had as to the extent of such marriages, and the only evidence he had seen showed that such marriages were, in the great extent, confined to the middle classes, who were sufficiently well off to induce them to adopt this relaxation of morals. But allowing the number of cases which had been alleged, still it was a small number to justify them in making such an alteration in all the homes of those who did not wish to have this change carried into effect. They had also left out of view the opinion of the large body of the women of England. They had heard of petitions from men in favour of the change, but they had forgotten the memorial which had been most numerously signed by women, and which had been presented to Her Majesty, praying Her to withhold Her sanction from such a change in the law, and they had never heard of a counter memorial having been got up on the subject. Men did not need protection for their virtue, but females did require that protection should be cast round them. Sisters-in-law required protection in the situation in which they were so peculiarly circumstanced; therefore, they should continue to them that protection which they had enjoyed ever since this Christian country existed. He had hitherto been induced to deal with this subject altogether distinct from the religious question, but he felt bound to make a few observations on it. His hon. and learned Friend the Member for Abingdon had said that it would be desirable to have some expression of the opinion of the Church, by convocation, or by some general assembly, on this subject, if it could be obtained. But how would they bind Dissenters by any expression of feeling on the part of the Church? He thought, however, a most unfair view had been taken of this question by some of the supporters of it. It had been said that it was opposed by one party, and only one party, in the Church; and, by assigning a nickname to them, an attempt was made to cast obloquy on them, and it was said they were inclined to the Church of Rome. Now, if ever there was anything opposed to the Church of Rome, it was the doctrine opposed to such marriages. It was peculiarly a Protestant interpretation of the matter. Such marriages were introduced as an innovation of the Church
120
of Rome. Reference had also been made to the interpretation which a certain Rabbi had put upon the text in Leviticus, and much reliance had been placed upon the declaration of the Talmudists, that a man might marry with his deceased wife's sister. Now, they never heard the opinion of the Talmudists quoted on any other subject, and he did not know why it should be in this instance. The opinion of Bishop Wiseman—a Roman Catholic bishop, be it observed—had also been referred to, to which the same observation might apply. The Sermon on the Mount gave a wide interpretation of every commandment, and it was to the spirit of that, not to the Talmud, that they should look for the interpretation of the passages in Leviticus. He did not think that it was a light matter, on such authority, to make such a change. Such a thing never was allowed in the Christian Church until the Church of Rome became dominant. The right hon. and learned Gentleman the Member for Bute said he could not find any earlier prohibition of such marriages than the fourth century; but he (Mr. Wood) would ask whether it was in the slightest degree probable that such marriages were attempted in the early period of Christianity? St. Austin and St. Athanasius declared such marriages were forbidden. Some of the most noted dispensations on record for this description of marriage were granted in 1495 by Alexander VI, who was one of the greatest monsters that was ever at the head of the Roman Church, and who had been guilty of incest with his own daughter. The Gallican Church, which was more free from the influence of the Church of Rome than the other portions of the Catholic Church, as long as it stood on its privileges, refused to receive and rejected the authority of all such dispensations from Rome in favour of such marriages. In 1683 the case of a marriage of this kind by a person of the name of Le Vaillant was brought before the Parliament of Paris, and the question was again revived, in the case of the Marquess de Sailby, before the same tribunal in another case in 1721; and the Parliament of Paris, after much deliberation on the subject, determined that the dispensation of the Pope for such marriages could not be allowed, and declared such marriages to be illegal. Look, again, at the Church of Scotland; would any one tell him that it was at all inclined to Puseyism, or had any affection for the Church of Rome? and that

121
church was unanimous in adhering to their opposition to the legalising such marriages. Grotius, Basnage, and many others of the most learned jurists, had declared that the doctrine of the legality of marriages within such degrees of affinity could not be authorised by any sanction. It had also been said that a great number of the clergymen of the Church of England were in favour of this measure. It was stated that 700 clergymen had expressed themselves as being favourable to the Bill; but it should be recollected that there were 15,000 clergymen in the Church of England. He had observed one provision made in the Bill which was not in the previous measure, namely, that the Church should not be interfered with in any way by this Bill. But was it fair to leave their sisters and daughters in such a situation that they might be liable to contract dubious marriages, and that they could not be sure that it was one that the religion they professed would sanction? He trusted for these reasons the House would pause before it made a stop downward from the high moral position which this country had so long enjoyed, for this measure must be followed by another to sanction marriages between a man and his deceased wife's niece or his own niece, and, indeed, in all other degrees of kindred and affinity for which dispensations were now granted by the Church of Rome.
MR. A. HOPEmoved the adjournment of the debate.
MR. J. S. WORTLEYsaid, that as he understood the right hon. Gentleman the Speaker had duties to attend to elsewhere, he should at once accede to the Motion of his hon. Friend for an adjournment. He did so the more readily, as it was clear they could not get through the discussion on that day; but he trusted that he should be able to bring it forward next Wednesday. The Bill of the hon. Member for Oxford respecting affirmations stood for that day, but he believed there would be no objection to agree to the second reading, and to take the discussion on the principle at a future stage.
MR. W. P. WOODhad no objection to agree to the arrangement.
Debate adjourned till Wednesday, the 6th of March.
The House adjourned at a quarter after Four o'clock.