Sitting of 12 March 1862

MINUTES.
PUBLIC BILLS;—1o Whipping (No. 2); Small Houses Exemption (Scotland); Clergy Relief.
2o Marriages (Ireland); Consolidated Fund (£ 18,000,000).

MARRIAGES OF AFFINITY BILL.

  COMMITTEE.
  Order for Committee read.
  Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."
  MR. HUNTsaid, he rose to move that the Committee be deferred for six months. He did not think that the promoters of the Bill ought to expect any apology from him for again challenging the opinion of the House on its principles, when they remembered that the second reading had only been carried by a majority of eleven at an early period of the Session, in a thin House, and when many of the Scotch representatives were absent. He took a very strong view of the question, considering as he did that the Bill, if carried, would bring about a very great social revolution. At present they had this principle to guide them—that degrees of affinity were on a par with degrees of consanguinity; but if that principle were once broken in upon, where did the promoters of the measure propose to stop? No satisfactory reply to that question had as yet been given to the House. The Bill on the table was intituled "A Bill to render legal certain marriages of affinity;" but when hon. Members came to look at the clauses of the Bill, they found that all it sought to do was to legalize marriage with the sister of a deceased wife. Let the House once concede that, and on what ground could they then prevent a man from marrying the mother of his deceased wife? He challenged the promoters of the Bill to give an answer to that. If they were prepared to say, "Let us sweep away all the barriers to matrimony by reason of affinity," then the exact position of the case would be known; but he protested against being left at sea as to the principle upon which the law was based with regard to marriages. As to the grievances of those who had contracted marriage with a deceased wife's sister, there might be instances in which he felt compassion for such persons; but that was a very good saying in Westminster Hall—"Hard cases make bad law." He protested against altering the principle of our laws to meet hard cases. If a man deliberately and designedly chose to transgress the law of the country, he had no locus standi to come to that House for redress. No one could pretend that he was not aware of the law, for on every church door there

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  was a table of the degrees of affiinity within which marriage was forbidden by Scripture and by the laws of the country, Hon. Members who took another view of the question said that if no express declaration of Scripture against those marriages could be pointed out, it was not within the province of the Legislature to prohibit them. He entirely repudiated that doctrine. Marriage itself, in its present form, was altogether the creature of legislation. From the time when—
  "Wild in woods the naked savage ran,"
  and intercourse was promiscuous; through the time when polygamy was first unrestricted, and then restricted, up to the present age, there had been a gradual improvement; but the advocates of the Bill were endeavouring to turn back the tide of civilization. He had on former occasions declined to discuss the question on religious grounds, because he did not think that House was the place in which it should be debated; but the House ought not to lose sight of the broad fact that the religious feelings and opinions of the people were opposed to these marriages, and those feelings and opinions ought to be respected by the House. If that House were to sanction a law opposed to the religious feelings of the mass of the people, the power of the law over the minds and consciences of the people would thereby be weakened, and, perhaps, subsequent acts of the Legislature would be disregarded by them. Hon. Members had heard strong arguments in that House in favour of the Bill, founded on the assumption that it was a poor man's question. But was that the fact? Some years ago information had been collected relative to cases in which marriages with the sister of a deceased wife had been contracted or had been prevented in consequence of the law; and with what result? Why, that out of more than 1,600 of these cases only forty were among the lower classes. There was a large money-organization in favour of the proposed change. It was mentioned on a former occasion that two guineas had been offered for 400 signatures to a petition in favour of a Bill of that character. That did not seem as if it was a poor man's question. If it was a poor man's question, would two whole columns of the leading journal have been filled on the previous day by an advertisement, with a bit of Hebrew at the top of it, to serve as clap-trap? He would ask the House to consider some of the social
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  consequences that would arise from the Bill being carried. He would put the case of a wife on her death-bed, and an unmarried sister being summoned to her side. If the Bill were to pass; might not the sister reasonably hesitate to obey such a summons? Might she not by obeying it expose herself to the suspicion that it was not the dying person so much as the living upon whom she was going to attend? Suspicion would thus be engendered where now all was confidence; unhallowed feelings would be raised where now all was purity; an evil would be inflicted on the people of this country which the promoters of the measure had not considered, but which he trusted that House would never sanction. He begged to move that the House resolve itself into Committee on the Bill that day six months.
  MR. LYGONsaid, that he begged to second the Motion.
  Amendment proposed,
  "To leave out from the word 'That' to the end of the Question, in order to add the words 'this House will, upon this day six months, resolve itself into the said Committee'"
  —instead thereof:—
  MR. BALLsaid, that the question had been so much discussed that it was not likely anything new could be said on the subject; but in common with many other hon. Members, he thought the House ought to consider whether something could not be done to relieve the inconvenience and suffering of persons who had entered into this prohibited relationship. There was no authority which they could so well consult for right guidance on the question as the Word of God, which was not only silent, but, fairly construed, gave permission and sanction to marriage with a deceased wife's sister. Nay, more, it rather recommended and encouraged it. The Jews, who had received the Divine law on the subject, had from that time recognised the necessity of these marriages, and had given encouragement and sanction to their contraction. Such being the case, he thought that House had no right to restrict the opinions and inclinations of the people at large. The tendency of passing laws in opposition to the commonly received opinions of the people was to weaken respect for the law, especially amongst the lower classes. Whether it was or was not a poor man's

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  question, he was quite sure that nine out of every ten poor men who read the; Bible, would say, that according to their understanding such marriages were justified by Scripture The same view was taken by the great body of Wesleyans, and all religious teachers amongst the Dissenters were unanimous in their opinion that it was a proper thing for a man to marry the sister of his deceased wife. It had been urged that those marriages would have a certain influence on society; that the wife's sister would not be admitted into the domestic circle, and would not he allowed to associate in that kindly intercourse which now took place. He was sure he might repudiate such an assertion and such suspicion on the part of the working classes. He thought it a great slander on the upper classes to suppose that the wife's sister would not be able to associate in the family circle without inspiring the husband with improper desires; while, as regarded the middle class, to which he belonged, such an idea supposed a degree of corruption which he entirety repudiated, disavowed, and did not believe to exist. If he understood human nature aright, he believed such a result much more likely to happen where a lady was admitted into the domestic circle who was unconnected with the wife; his conclusion, therefore; with regard to the presence of the wife's sister, was totally different to that which had been arrived at by other hon. Members. The law, as it at present existed, was totally disregarded by the lower classes, and as he thought the House had no right to legislate adversely to the consciences and opinions of the mass of the people on such a subject, he should support the measure.
  MR. MONSELLsaid, that he entirely agreed in the opinion that it was wrong to keep upon the statute book any law that was adverse to the general feeling of the people. With regard to Ireland and Scotland, there was, he believed, no difference of opinion in that House that in both these countries there existed the strongest and most earnest feeling against the passing of this Bill. He did not consider himself at liberty to mention all the instances that had come under his knowledge of the intensity of this feeling in Ireland; but when, unfortunately, marriages of the kind under consideration had been celebrated abroad between persons of high. position, when the parties in
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  question returned to Ireland the sentiments of the whole community had been very unequivocally expressed with reference to their conduct. In Scotland, he believed, a similar feeling existed; nor did he believe that any considerable portion of the people of England were in favour of the Bill. If any proof were wanting of the sentiments of the women of England, it might be found in the stress laid upon any petition in favour of the Bill, when any five or six married women could be got to, sign it. It was undeniable, then, that the great mass of the women of England were opposed to the Bill. The hon. Member (Mr. Monckton Milnes) would, he thought, treat the House with very scant courtesy if he did not say how far he intended to go, and whether he did or did not intend to carry out the principle of the present measure to its logical conclusion. It was bad enough to unsettle the mind of the people by bringing in such a Bill year after year; but if the measure were once adopted, the seeds, of future agitation for years to come would be sown, and repeated attempts would be made to lead the House down a sliding prepipice—one step of which had already been taken in founding the Divorce Court—and incalculable evil would be done to the morality of the community. As he wished to deal candidly with the House, he would state at once that he concurred with the hon. Member, for Cambridgeshire (Mr. Ball) in thinking that there was no, distinct prohibition of these marriages in Scripture. He agreed with Jeremy Taylor when, speaking of the discussions that arose with regard to the marriage of Henry VIII. with Queen Catherine, he said—
  "Before this time there was almost a general consent upon this proposition, that the Levitical Degrees do not by any law of God bind Christians to their observance."
  But did the hon. Member for Cambridgeshire believe that the Christian idea did nothing more than induce men to observe certain dry precepts? Take the question of slavery. There was no abstract law laid down in Holy Scripture against slavery. But when the Christian spirit truly interpenetrated society, it gradually extruded the idea of slavery. In the same manner, when the Christian idea took possession of the Roman empire, marriages of the kind now proposed became distasteful and abhorrent. Thus in the Theodosian Code, which was drawn

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  up at the very era marked by Gibbon as that when Christian supplanted Pagan principles, it was laid down, "That although it was formerly thought that it was lawful to marry a sister-in-law after death or divorce, yet let all abstain from such marriages." A similar change occurred in France at the end of the fifth century, after the invasion of the Visigoths. When peace was restored and Christian doctrines began to leaven society, a Council in France, A. D. 519, after enumerating among those guilty of incest a man marrying his wife's sister, said, "Let such marriages be null for the time to come." In England, from the time St. Augustine first planted the cross in Kent, these marriages had, without special dispensation for cause shown, been unlawful. If, then, the general spirit of Christianity had been always opposed to these marriages, on what principle was that Christian feeling founded? As Christianity raised the idea of the married state, and gave an indissolubility to marriage that it did not before possess, it made the husband and wife so entirely one that the brothers and sisters of the wife stood in the same relation to the husband as his own brothers and sisters, and vice versâ. This relationship had been well described by a poet, with whose works the hon. Member (Mr. Monckton Milnes) was well acquainted—
  "Wedded love with loyal Christians,
  Lady, is a mystery rare;
  Body, heart, and soul in union,
  Make one being of a pair."
  The example of Continental countries had been quoted in favour of these marriages. In 1791, the era when the ideas of the French revolution prevailed, a law more logical than that of the hon. Gentleman was introduced into Prussia, abolishing the restrictions on these and other marriages. What was the state of feeling in Prussia now with regard to marriage? An instance had occurred in which a gentleman sat down to play a game at whist with his wife and two ladies from both of whom he had been divorced. It was in countries where the sanctity of marriage was least respected that such marriages were encouraged. For these reasons he should oppose the present measure in every way in his power. He should certainly move, if the Bill went into Committee, that Ireland be exempt from its operations. He should, however, prefer to unite with
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  those who clung to the Christian idea of marriage in procuring the rejection of the Bill at its then stage. He wished that the law which had been in existence for 1,200 years should still be maintained, and he believed that those who agreed with him in that wish would be able to defeat that most objectionable Bill.
  SIR WILLIAM JOLLIFFEsaid, it was with great reluctance that he differed from so many of his hon. Friends on the question. He could not, however, avoid the conclusion that the theological argument against the Bill rested on very faint and inefficient grounds. He wanted to know whether the law on the subject was not in a very unsatisfactory state; whether, in fact, the law since 1836 had not been a blot on the statute-book, and almost a discredit to Parliamentary Legislation. Could anything be more anomalous or illogical than a law that condoned all former offences, and yet inflicted the most cruel and unchristian injury on those who should hereafter contract similar marriages? Christian duty and Christian feeling alike pointed out that the natural protector of a deceased sister's children would be the sister, who would occupy not only the position of a stepmother, but also that of an aunt; nor could he understand that any of the happiness or purity which now prevailed in families would be overthrown by the liberty to contract such marriages. The privilege of living with one's relations was the privilege of the higher, and not of the lower classes. Those who had to seek their living were compelled to go into service or engage in trade, and it was their constant fate seldom to see their relatives. But it was a monstrous proposition to suppose, that if the Bill passed, a man was never to see in his own house or to live on intimate terms with a person whom he might marry after the decease of his wife. A man could marry his own or his wife's cousins, yet it was never alleged that he could not enjoy their society. He believed it to be a poor man's question, and, viewed in that light, he could not conceive any law more repugnant to Christian motives and principle than that which it was now sought to repeal. He would mention the case of a poor man in Sussex, whose wife died, leaving six children, who were brought up by a younger sister, who ultimately took her sister's place. She saved the children

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  from the Workhouse; she discharged her duties to the family, the neighbourhood, and the State; and yet the law inflicted upon her the most dire disgrace, besides making her own children illegitimate. He had never joined any of the societies formed to agitate this question, nor was he actuated by any other motive than a desire to make the law more just and equitable. Since the year 1836 he had constantly urged the repeal of the law prohibiting marriage with a deceased wife's sister, and he should continue to do so.
  MR. GREGSONsaid, that the great preponderance of petitions and signatures since 1857 had been in favour of the present Bill. While the signatures to petitions in favour of the Bill exceeded 1,000,000, there were only 140,000 signatures to the petitions against it.
  Question put, "That the words proposed to be left out stand part of the Question."
  The House divided: —Ayes 116; Noes, 148: Majority 32.
  Words added.
  Main Question, as amended put, and agreed to.
  Bill put off for six months,

CLERGY RELIEF BILL.

  LEAVE. FIRST READING.
  Order for Committee read.
  MR. E. P. BOUVERIEsaid, he had placed on the paper a notice of his intention to Move in Committee of the Whole House for leave to bring in a Bill for the relief of persons in Holy Orders of the United Church of England and Ireland declaring their dissent therefrom, and he therefore begged leave to move that Mr. Speaker do leave the chair.
  SIR WILLIAM HEATHCOTEasked whether the right hon. Gentleman ought not first to explain his Bill, so as to show some ground for going into Committee.
  MR. E. P. BOUVERIEsaid, that no Bill relating to religion or trade could be introduced except in Committee of the whole House. It would be more regular, therefore, that he should make his statement in Committee.
  House in Committee.
  MR. E. P. BOUVERIEsaid, it would be in the recollection of some hon. Members, that about thirteen years ago a gentleman, who had been a clergyman of the Church of England, but who had dissented from
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  the Church, established a chapel in the West of England and conducted the service as a Dissenter. That gentleman's name was Shore. The bishop of the diocese proceeded against him for a breach of canonical discipline. Mr. Shore attempted to screen himself from the proceedings by making a declaration under the Toleration Act, which exempted Dissenters from the penalties otherwise imposed on Nonconformists. The bishop contended, on the other hand, that as Mr. Shore had once taken holy orders he could not relieve himself from the obligation of canonical obedience. The case was tried in the Court of Queen's Bench, which decided in favour of the bishop. Mr. Shore was thrown into prison, and the House allowed him (Mr. Bouverie) to bring in a Bill in 1849 to alter the law so as to prevent a recurrence of the grievance. The Bill was read a second time, and referred to a Select Committee containing some of the most eminent Members of the House, by whom the measure was produced in such a shape that it was passed by the House, although it failed in that Session to obtain the Royal Assent. Such was the Bill which he hoped he should be permitted to introduce with the view of meeting a practical grievance which had arisen. A clergyman of the Church of England could by no act of his own divest himself of the obligation of canonical obedience to his bishop; he could not engage in any course of life as a layman, or, if he did, he was liable to be proceeded against in the Ecclesiastical Court and to be thrown into prison. The House would agree with him in thinking that they should not endeavour to retain by force in the ministry of the Church those who from conscientious conviction avowed their disinclination to remain. He could mention cases of one or two gentlemen actually suffering under this particular hardship. There was a gentleman, a member of one of the Universities, who once had held an important living in a northern town; but having formed during his ministration certain conscientious opinions, he resigned his preferment. As he was a young man, he wished to go to the bar; but having been in Holy Orders, he was precluded from so doing. The canon by which a clergyman was bound said that he should do nothing in the course of life as a layman; and if he had not an independent fortune, he was shut out from the means of subsistence. That was a state of things which the

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  friends of the Church of England could not wish to retain. He proposed, therefore, by the present Bill, to provide that a clergyman might make a solemn declaration of his conscientious dissent from the doctrines of the Church of England; that that declaration should be registered, and notice of it given to the bishop, and that he should then be permitted to engage in any other course of life.
  MR. HUBBARDsaid, that in the declaration required of a minister he would have to state his conscientious dissent from the doctrine of the Church of England. That implied that he was going to leave the communion of the Church. He thought it important that the House should be informed whether the right hon. Gentleman proposed to provide relief for those who, without leaving the Church of England, were anxious to divest themselves of their clerical character.
  MR. E. P. BOUVERIEreplied that the Bill would not deal with cases of that kind. There was a third class, however, who might make the declaration under the Bill—namely, those who entertained conscientious scruples with respect to subscription to the Thirty-nine Articles and other formulas of the Church of England, but who wished to remain as lay members of her Communion.
  MR. DARBY GRIFFITHsaid, if the House were to allow a person to liberate himself from trammels which were distasteful to him, they would offer a decided premium to his going further and professing himself a Dissenter.
  SIR WILLIAM HEATHCOTEsaid, it would be very ungracious, after what his right hon. Friend had stated, to refuse leave to introduce the Bill; but the few remarks that had been just made would show that the ease was not after all so very clear.
  MR. HENLEYsaid, he hoped it would not be thought unreasonable to ask that a considerable time should be allowed before the second reading of the Bill. It was only on the previous night that notice of the matter was given, and no one could judge from such notice what the scope of the measure might be.
  MR. LEFROYsaid, that as the Bill was to extend to Ireland, he hoped as much time as possible would be given for the consideration of its provisions.
  Resolved,
  "That the Chairman be directed to move the House, 'That leave be given to bring in a Bill
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  for the Relief of Persons in Holy Orders of the United Church of England and Ireland declaring their dissent therefrom.' "
  House resumed.
  Resolution reported.
  Bill ordered to be brought in by Mr. BOUVERIE and Mr. EDWARD ELLICE.
  Bill presented and read 1o; to be read 2o on Wednesday next, and to be printed [40].
  House adjourned at a quarter before Two o'clock.