§ The MARQUESS of LANSDOWNE
My Lords, I have a petition to present in favour of marriage with a deceased wife's sister from the inhabitants of the city of Bristol, signed by the mayor, 7 magistrates, 18 town councillors, 24 dissenting ministers, 55 solicitors, and 2,357 married women; also from the inhabitants of the towns of Kingswood and Littleton on Severn—in all 3 petitions, signed by 2,407 married women, and 7,640 male adults; making a total of 10,047 persons. My Lords, I ex- 996 press no opinion on the question raised in the petitions which I have presented, and which I feel to be an important one; and reserve to myself the right of dealing as I may think proper with any measure relating to this subject which may hereafter be submitted for the consideration of Parliament.
My Lords, I have similar petitions to present from the inhabitants of the city of Norwich, signed by the mayor, ex-mayor, ex-sheriff, 11 aldermen, 25 councillors, 3 clergymen, 12 magistrates, 1 baronet, 2 coroners, 29 guardians, the clerk of the peace, the town clerk, bankers, and 115 married women; also from the inhabitants of the town of Bury St. Edmunds, signed by the mayor, 2 clergymen, 5 magistrates, 5 professional men, and 37 married women; also from the inhabitants of the towns of Ipswich, Beccles, Long Melford, Clare, Framling-ham, and Wrentham; in all 8 petitions, signed by 585 married women, and 3,275 male adults; making a total of 3,860 persons. I consider the subject one of great importance, and earnestly hope the House will agree to the prayer of the petitioners.
My Lords, I also have several petitions to present on the same subject. The first is from the inhabitants of the city of Bath, signed by the sheriffs, 9 magistrates, 3 aldermen, 20 councillors, 2 dissenting ministers, 37 professional men, 328 married women, &c. The next is from the inhabitants of Southampton, signed by the mayor, 2 magistrates, 3 aldermen, 8 councillors, merchants, &c. I have also petitions from the towns of Avebury, Melksham, Mere, Salisbury, Charlton-Hordean, Christchurch, Cadnam, Gosport, Overton, and Petersfield—in all 12 petitions, signed by 891 married women, and 3,755 adult males—making a total of 4,646 persons. I own that I think both the complaint and prayer of the petitioners nothing but just, for I hold that no Government whatsoever has a right to restrain the liberty of its subjects by laws at once useless and unjust—in the present case I might add mischievous. I will only say further, that I hope and trust, whenever a remedial measure shall again be before you, reflection may procure it a reception very different to the last.
My Lords, I rise to present petitions from the city of Canterbury, signed by the mayor and others, from the city of Rochester, signed by the mayor and others; also from Ashford, 997 Bromley, Bexley, Deal, Dover, Elstead, Margate, Ramsgate, Walmer, and Woolwich; in all 12 petitions, signed by 2,914 persons. The prayer of the petitioners is one which I cordially support.
The EARL of MINTO
My Lords, I have similar petitions to present from the inhabitants of the city of York, signed by the lord mayor, recorder, city sheriff, city coroner, 4 magistrates, 23 councillors, 9 dissenting ministers, &c.; also from the inhabitants of the towns of Leeds, Billericay, Brill (2), Broadwindsor, Brotherton, Biggleswade, Bognor, Beaminster, Back-way, and Brackloy, in all 12 petitioners, signed by 165 married women, and 4,837 adult males, making a total of 5,002 persons.
§ LORD STANLEY OF ALDERLEY
My Lords, I have several petitions to present on the same subject, the prayer of which I most cordially support. The first is from the inhabitants of Liverpool, signed by the mayor, 6 ex-mayors, 11 clergymen, 16 dissenting ministers, 13 magistrates, 8 aldermen, 25 members of the town-council, 25 professional men, 15 merchants, bankers, barristers, &c.; from the inhabitants of the city of Chester, signed by one knight, 2 magistrates, I rector, gentlemen, solicitors, editors, merchants, tradesmen, &c.; also from the inhabitants of the towns of Congleton, Leftwich, Macclesfield, and Stockport; in all 6 petitions, signed by 341 married women, and 5,563 adult males, making in all 5,906 persons.
The EARL of LANESBOROUGH
My Lords, I have a similar petition from the city of Gloucester, signed by the mayor, sheriff, aldermen, town councillors, dissenting ministers, professional men, gentlemen, 30 married women, ? also from the inhabitants of the city of Coventry, signed by the mayor, vicar, 3 clergymen, 5 magistrates, 4 dissenting ministers, 4 aldermen, 17 town councillors, ? also from the town of Warwick, signed by the mayor, the whole of the corporation, clerk of the peace, 5 magistrates, 2 clergymen, 3 dissenting ministers, 414 married women, &C.; also, from the inhabitants of the towns of Atherstone, Lutterworth, Loughborough, Godmanchester, Leicester, Nouent, St. Neots, and St. Ives; in all 13 petitions, signed by 674 married women, and 2,714 adult males, making together 3,388 persons. My Lords, I heartily concur in the prayer of these petitions, and trust that some remedial legislative measure will be passed on this subject.
§ The EARL of ST. GERMANS
* My Lords, I have undertaken, at the request of a very large, a very intelligent, and a very respectable body of persons, to present to your Lordships a number of petitions, praying that you will concur with the other House of Parliament in amending the Marriage Law of this country, so far as it relates to marriage with the sister of a deceased wife. My Lords, great pains have been taken to verify the signatures, and to ascertain the station in life of the persons who have signed these petitions. The number of signatures appended to the petitions which have been presented by other noble Lords, and which are about to be presented by myself, exceeds 98,000. Amongst them are the signatures of many clergymen of the Established Church, of many ministers of different persuasions, of magistrates, of bankers, of lawyers, of medical men, of tradesmen, and of mechanics; the petitions have also been signed by nearly 16,000 married women, a class whose opinions have been frequently represented as unfavourable to the proposed alteration of the Marriage Law. My Lords, I believe there is not the name of a single person attached to these petitions who is not competent to form a correct judgment on this question. I, therefore, say that these petitions speak the sentiments and express the wishes of a very-large, a very intelligent, and a very respectable body of persons. My Lords, I trust that the anticipation of a more exciting discussion will not prevent your Lordships from listening with patience to the statement which I think it my duty to make on their behalf; it shall be brief.
My Lords, an association of persons deeply interested in the proposed amendment of the law, has been formed for the purpose of procuring and of diffusing information on this subject. It has been thought advisable by that association to ascertain the law and the practice of other countries in this respect. It has accordingly addressed inquiries to the proper authorities in foreign countries; and it has received from them authentic information on these points. My Lords, it appears by these communications, that, with the exception of four cantons and a half canton of the Swiss confederation, and of one State in the North American Union, this is the only country in which these marriages are not permitted: and, my Lords, I must guard myself, when I say this country, against admitting the law of Scotland 999 to be the same as the law of England in that respect. Much doubt exists on that subject. Many lawyers, amongst others the late Lord Advocate Rutherfurd, now a Lord of Session, are of opinion that these marriages are not invalid according to the law of Scotland.
My Lords, in some Protestant States, as Prussia, Holstein, the United States of America, and some others, no impediment is thrown in the way of these marriages; they are wholly unrestricted. In others, as in Holland, in Hanover, and in many of the German Duchies, in all which the civil law is in force, these marriages are indeed nominally prohibited, but practically they are permitted; the power of granting dispensations being vested either in the sovereign or in the ecclesiastical authorities, who never withhold those dispensations unless in cases where there has been criminal intercourse between the parties in the lifetime of the deceased wife. In Roman Catholic countries, as your Lordships well know, dispensation is granted by the Pope, or by a prelate having power delegated by the Pope. The Jewish communities throughout the world, whose marriage code is the Levitical law, hold these marriages not only to be lawful, but to be laudable, so much so, that in the case of marriage with a deceased wife's sister, they abridge the interval which in other cases must intervene between the death of the wife and the contracting of a new marriage.
My Lords, in looking over the documents submitted to my inspection, I have found several passages which are well worthy your Lordships' attention; a very few I will now read. In all the communications from foreign States, I find a general concurrence of opinion in favour of these marriages. I speak of public opinion as well as that of the authorities. Experience has shown that these marriages have not been productive of the evils anticipated by the opponents of the proposed change. I will, with your Lordships' permission, quote, as a specimen, the following extract of a letter from M. Haberman, of the Ducal Consistory of Saxe Coburg:—Having regard to the moral grounds which so particularly recommend marriages between a widower and the sister of his deceased wife, when orphan children demand the care of a second mother, and that the importance attached to the relation of brother-in-law has no foundation in Scripture, such marriages have become common, 1000 and there exists only the form of asking for a dispensation from this existing law.In like manner, M. Wydenberg, of the Grand Ducal Council for Ecclesiastical Affairs in Saxe Weimar, says—Such marriages are certainly according to the laws of the Grand Duchy among the prohibited ones, but dispensation is granted on demand, and on payment of a fee, according to the circumstances of the parties. For the poor, the highest ecclesiastical authorities approve them without reserve.Such is the state of the law in those Duchies. I will now read an extract of a letter from that very distinguished jurist, Judge Story. Speaking of the law and practice in the New England States—States, be it remembered, which are peopled by the descendants of the Pilgrim Fathers, men who regarded all the Mosaic precepts and all the Mosaic ordinances with great, I had almost said with superstitious, veneration, Judge Story says—There is not the slightest doubt, and never to my knowledge has been, in Massachusetts, that the marriage of a man and the sister of his deceased wife, is perfectly lawful, and valid, and scriptural. Indeed such marriages are very common among us, and among all sects of Christians. I recollect at this moment two between Episcopalians, within the circle of my acquaintance, and I mention them only as it has been supposed to be against the Canonical Law of the Church of England to allow such a marriage. By many persons connections of this sort are deemed the most desirable, especially when there are children of the first marriage. The same rule prevails (as I believe) in all the other New England States, and in by far the greater number of the other States in the Union. I recollect but a single exception—Virginia. Many years ago I had to consider this very question, as one of professional curiosity and learning. I was then of opinion, and still continue to be, that there is not the slightest foundation for any such prohibition in the Scriptures, and that wherever it exists, it has its foundation in some positive Municipal Law, or in the Canon Law as promulgated by the Romish Church, and thence transferred into the Canon Law of the English Church. It has been for more than a century and a half a matter of dispute in England, whether any such prohibition existed in the Canon Law of the Church of England; and Parliament a few years ago passed a Statute which created the prohibition, or recognised it. That Statute has given rise to new controversies on the subject, and has partly excited opposition in that country. I have several pamphlets in my possession, recently written, which discuss the subject at large, and with very great learning and ability, and all of them deny the scriptural foundation of the objection, and also that the Common Law deems such marriages prohibited. If I had ever entertained any doubts on the subject, these learned disquisitions would have perfectly dissipated them. But, in point of fact, everything that I have read upon the subject for the last twenty years, has satisfied me that the objection is per- 1001 fectly unscriptural and unfounded. The subject is incidentally touched in my own work on the Conflict of Laws, § 115, note 1, page 105. Many persons are of opinion that the whole doctrine had no better or higher origin than in the practice of the Romish Church to grant dispensations in such cases. Of the correctness of this opinion, I do not pretend to judge; for I have never deemed it a matter of the slightest importance. So offensive would any such prohibition be deemed in Massachusetts, that I am satisfied, that if our legislature were to attempt to introduce it, it would be met with universal indignation, and, á fortiori, any attempt of any religious sect to make it a part of its own laws, as unscriptural, would be deemed a usurpation of authority utterly unchristian and illegal. I well remember to have had a long conversation with my lamented friend, Judge Livingstone, on this very subject, near the close of his life, in which he maintained the same opinion with great earnestness and ability, and referred me to the pamphlet which he had written on the subject.My Lords, I have a letter to the same effect from Chancellor Kent, another great authority. I hold also in my hand, a letter from a Protestant Bishop of the Episcopal Church, Bishop M'llvaine, the Protestant Bishop of Cincinnati, to the Secretary of the Marriage Law Reform Association. The Bishop, in answer to the inquiries addressed to him, says—A clergyman married to his deceased wife's sister, and not under ecclesiastical process therefore in England, coming to this country, would not be prevented by such marriage from being received as a minister of the Protestant Episcopal Church here, or from exercising his ministry. I should have no objection, nor would any Episcopal clergyman that I am acquainted with in these parts, have any objection, to celebrate the marriage referred to on the presentation of suitable testimonials.My Lords, such is the law, such the practice, and such the opinion of foreign countries. I am very far from saying that we are hound or concluded by the law, by the practice, or by the opinion of any foreign country. But I do think, that when we find Christian and Protestant States, who have the same opportunity of judging of the question as we have, and the same means of arriving at a proper conclusion; I say, when we find in all these States, the law, the practice, and the opinion on this question at variance with our own—I will not say with our own opinion, or our own practice, but with our own—law, it becomes us well to examine the ground on which our law rests.
Now, my Lords, what are the foundations of that law? The statutes of Henry the Eighth, and the 99th Canon, to which so much importance is attached, are based on the assumption that such marriages are 1002 contrary to the word of God. My Lords, the people of England are a moral and re-ligious people; and if you can satisfy them that these marriages are forbidden by Scripture, no man would seek to alter the law in this respect. But what is the case? Not only do many of the most eminent scholars and divines hold that there is no such prohibition, but the right rev. Bench is itself by no means unanimous as to the existence of such a prohibition. Indeed, I doubt whether a majority of that Bench are not of a contrary opinion. Several right rev. Prelates have declared, both in this House and out of it, that these marriages are not forbidden in Scripture. Two made a statement to that effect in the debates which took place last Session on this question. It is true they opposed the Bill for legalising these marriages, but they did so on the ground of social expediency, and distinctly admitted that there is no warrant in Scripture for this prohibition. I am not prepared to say that in this country, where every man has access to the Scriptures, and where the right of private judgment is claimed and acknowledged, all would defer to the decision of the right rev. Prelates, even if it were unanimous, but I cannot doubt that very many would be influenced by it. Such a decision has not been and will not be pronounced. I say then that the assumption on which our law is based—the assumption that these marriages are forbidden in Scripture, is a gratuitous assumption, unsupported by proof.
Before the passing of the Acts 5 & 6 Will. IV., c. 54, the law was certainly in an anomalous and inconvenient state. Marriages within the prohibited degrees were voidable, not void; that is to say, they could only be set aside while both parties were living. No proceedings for this purpose could be taken after the death of either of the parties. The status of the children of such a marriage was then a matter of uncertainty. Accident or caprice might determine whether they should or should not be legitimate and capable of inheriting. This was, as I have said, an anomalous and inconvenient state of the law, and the noble and learned Lord opposite (Lord Lyndhurst) did well in bringing in a Bill to amend it.
The noble and learned Lord introduced a Bill, having for its object the limitation of the period within which such suits could be instituted. That Bill, in its progress through your Lordships' House, underwent 1003 a considerable change. A provision of a very different character was engrafted upon it. The effect of that was very nearly fatal to the Bill when it arrived in the other House of Parliament; and had it not been for the late period of the Session, and the expectation which was held out, that the subject would be again brought under the consideration of Parliament in the ensuing Session, I believe the Bill would not have received the sanction of the other House. But it did become law. Now, although that Bill was materially altered for the worse, it still recognised one most important principle. It recognised in the clearest and most express manner the difference between marriages within the prohibited degrees of consanguinity, and marriages within the prohibited degrees of affinity. The reason why the distinction was made was this—that the one description of marriage is contrary to the law of God, and the other is not. There is no disposition in the people of this country to contract marriages of the former description. Those who, regardless of the instinct of nature and the dictates of religion, contract such marriages, are looked on as guilty of a great crime. Legislation is scarcely needed to prevent their occurrence. There has been no desire on the part of any section of the people to alter the law with regard to marriages within prohibited degrees of consanguinity. How different the feeling with regard to the law respecting affinity!
The judicial decision in the case of the Queen v. Chadwick, set at rest any doubts that might be entertained as to the effect and operation of the existing law. In adverting to the case of the Queen v. Chadwick, I cannot refrain from reading an extract from a letter from a noble and learned Member of your Lordships' House, whose opinion will on this, as on every other occasion, be listened to with great deference and respect—I allude to Lord Denman; and I regret that he is not present to give effect to his opinions by a speech. The letter is dated "Parsloes, May 3rd, 1852," and is as follows:—I should hardly be justified in undertaking the petition you mention under present circumstances, though I am really anxious publicly to disclaim the imputation of having expressed any opinion upon the expediency or justice of the law you seek to repeal, in deciding the case of the Queen v. Chadwick.' On the contrary, I, in common with the other Judges of the Court of Queen's Bench, took pains to rest our decision on the mere wording of the Act of Parliament, and avoided all 1004 discussion as to whether it was founded either on Scripture or reason. I am quite convinced, after a most careful examination, that those bishops are right who have expressed their opinion that there is no scriptural prohibition of marriage with a deceased's wife's sister; and that it is, in fact, as the Bishop of St. David's declared, permitted by the Mosaic code. Considering who was the lawgiver, we cannot possibly impute inadvertence or mistake; and it follows, if this opinion be right, that the permission was purposely given. Upon the second branch of the question, as to the moral quality and social consequences of permitting such marriages, I cannot help thinking that the remark I have already made, if well founded, ought to have considerable, if not decisive, weight, and more particularly as these marriages were held in honour by the Jews, to whom the law was given, and who must be supposed most competent to understand it.The assumption of evil consequences is entirely unsustained by evidence; and, among all the irregularities and crimes which have often revolted the public mind as polluting married life among us, I am not aware of a single instance in which marriage with a deceased wife's sister has been even suspected as the cause. With regard to the third question, that of' expediency,' that is, the prevention of uncertainty by nullifying all such marriages, it appears to me that, as that experiment has wholly failed in point of fact, and such marriages are still contracted, notwithstanding the legal prohibition, by some of the most respectable members of the community, the only justification of the enactment, very doubtful in point of justice, is completely exploded by the result. A law which is universally felt to be more honoured in the breach than in the observance, cannot too soon, in my opinion, cease to be a law. I have not time to enter fully into the argument, and perhaps shall never be able to do so; but, as you inform me that some value is attached to my opinion, I cannot feel myself justified in withholding that which I have deliberately formed.My Lords, in the case to which I have referred, it was held that a man who, having married the sister of his deceased wife, contracted another marriage in her lifetime, was not guilty of bigamy. Of the invalidity of marriages of this description, if contracted in this country, there is, therefore, no doubt; but the case is very different with regard to marriages contracted according to the lex loci in a country where they are legal.
My Lords, marriages which are good and lawful in the country in which they are contracted, are good and lawful everywhere; and the only question which arises in this particular case is, whether any personal disqualification or disability is created by the 5 & 6 Will. IV., c. 54. I believe it is the opinion of the best and soundest lawyers, that it creates no such disqualification. On this point I should be glad to hear the opinion of the noble and learned Lord opposite. Be that as it may, 1005 many such marriages are contracted under the belief that they are perfectly valid and legal marriages. If these marriages be really valid, then I say that you have one law for the rich, and another for the poor; for the rich man, who can afford to pay the expense, may go to Berlin, or Frankfort, or Copenhagen, or any other place abroad where such marriages are legal, and marry his sister-in-law; but the poor man, who must go to the parish church or the registrar's office, cannot contract such a marriage.
My Lords, I think that you have done either too much or too little in this matter. If these marriages are criminal, if they are forbidden by Scripture, you ought not to satisfy yourselves with rendering them null and void, and thus punishing only the innocent offspring. You ought to follow it up by a penal enactment inflicting penalties on the parties contracting such marriages, and separating them. I am not disposed to create artificial offences, that is, to make an act, innocent in itself, illegal; but if you think fit to do so, you should vindicate the authority of the law and enforce its observance. You can only do this by punishing those who transgress it.
My Lords, it has been said in this House, that the Act of 5 & 6 Will. IV., c. 54, did not legalise any marriage within the prohibited decrees, and that such marriages are still liable to ecclesiastical censure. This may be the law; but I know that no proceedings against the parties have ever been taken, and I believe that none ever will be taken; at any rate, I am sure that if such proceedings were taken, Parliament would interpose and protect those whose marriages it had declared should not he annulled.
It was said, at the same time, that Parliament sanctioned these changes in the law only for the sake of the innocent offspring of these marriages. My Lords, will it be contended that the offspring of a marriage within the prohibited degrees of consanguinity are less innocent than the offspring of a marriage within the prohibited degrees of affinity? No, my Lords, as I have observed, Parliament legalised marriages within the degrees of affinity because they are not contrary to the laws of God, or the law of nature: it did not legalise marriages within the degrees of consanguinity because they are contrary to both.
My Lords, I am bound to respect the 1006 conscientious conviction of those who, having fully and dispassionately considered the question, are of opinion that God has interdicted marriage with the sister of a deceased wife. I do not appeal to them, but I appeal to those who have not so considered the question; I call on them to examine the grounds on which their opinion rests, and not to be satisfied with a vague and general notion that such a marriage is wrong. More especially, my Lords, would I appeal to those who believe that these marriages are not contrary to the law of God, but who refuse to legalise them because they think that they would be productive of social evils.
I might refer to the experience of other countries, and, so far as it goes, to the experience of this country, as showing that no such evils are to be apprehended; and that in fact marriage with a deceased wife's sister is the best that a widower with children can make. But I will only say that if these imaginary evils were real, they would sink into insignificance when compared with those which are caused by the existing law. Much unhappiness, much sin, are caused by this law. Look at the evidence given by clergymen, resident in the metropolis and in the populous towns of this Empire. Almost all those clergymen wish for an alteration of the law. Many have signed these petitions: more would have signed them, had they not been restrained by the fear of giving offence to their Bishop.
But, my Lords, it is no part of our duty to inquire whether these marriages are or are not expedient. As the Archbishop of Dublin has well observed, many circumstances may make a marriage inexpedient, which no legislature ever dreamed of rendering illegal. Disparity of age, incompatibility of temper, bad health, had character, are strong objections to a marriage, but have never constituted legal impediments in its way.
The real question is, are these marriages contrary to the law of God? and if not, have we a right to forbid those to marry whom God has not forbidden to marry?
My Lords, if you will take these things into your consideration, you will, I think, be convinced that the restriction of which the petitioners complain is unjust, and that they are entitled to the relief which they seek at your Lordships' hands.
I must, in conclusion, express an car-nest hope that when a Bill for the modification of the law comes up from the other 1007 House of Parliament (and that such a Bill will come up in the course of the next Session, I have no douht) your Lordships will be prepared to give it your sanction.
I would now move that the petition, which is well deserving of your attention, be printed; but as that Motion would be inconsistent with the practice of this House, I must content myself with moving that it be read by the clerk at the table.
§ LORD LYNDHURST
My Lords, I do not rise for the purpose of entering into the general question which has been brought under your Lordships' consideration by the noble Lord who has presented this petition, which question I admit to be of very great importance. But, as my noble Friend has connected my name with a Bill which has received the sanction of the Legislature, and as considerable misrepresentation and misapprehension has existed with regard to that Bill, I am desirous of being allowed to enter into a short explanation with regard to it. That Bill makes no alteration whatsoever with respect to what cases come within the prohibited degrees of consanguinity or affinity. Whatever were the degrees of prohibition existing before that Act, they are the same now. If a marriage with a deceased wife's sister was unlawful before the passing of that Act, it is equally unlawful now. The Act was passed with entirely a different view, and did not pretend to enter upon that subject. Several cases had come under my notice where extreme hardship had been inflicted by voidable marriages. They appeared to me cases of extreme difficulty; and after a little reflection I came to the conclusion that the whole system of voidable marriages was cruel and unjust, and that the Legislature ought to interpose in some way to remedy the evil. It happened, in some cases, that the offspring of parents continued year after year to consider themselves as legitimate, as heirs of the property of their respective parents, or as entitled to succeed through their parents to property that might be settled by other persons, and, after having long enjoyed this expectation, some person interested might commence a suit in the Ecclesiastical Court for the purpose of voiding the marriage of their parents, when the children became bastardised and deprived of all the expectations they considered themselves entitled to. I considered that system to be so manifestly cruel and unjust, that I thought it my duty to endeavour to provide some remedy. And what was the remedy I proposed? By the 1008 law as it stood, after the death of one of the parents the marriage became binding: no proceeding could be instituted for the purpose of voiding it. There was a sort of statutory limitation; but it was uncertain, and therefore I thought the better course would be to abridge the period, and enact that, if proceedings were not taken to void the marriage within two or three years after the solemnization, from that period it should be considered as binding between the parties. I therefore brought in a Bill providing that if proceedings were not taken to void the manage within two or three years, after that period no such proceedings should be taken. When I stated the case to your Lordships, the proposition appeared to me at first to meet with universal concurrence; but, after some time, I found an opposition growing up to the measure principally arising from the right rev Bench, for which I always entertained so profound a respect; and after a great deal of discussion I found the Bill would be inevitably lost unless I adopted the suggestions which emanated from that quarter. That voidable marriages were attended with great inconvenience was admitted to the fullest extent; but then it was said you are remedying it by declaring such marriages void, and if parties chose to live contrary to law, and unlawfully cohabit, they must take the consequences of a violation of the law. Your Lordships were pleased to approve of that alteration, and the Bill was passed, and that enactment has continued in force to the present day. That, my Lords, is the short history of the Bill. It became material to consider what should be done with respect to past voidable marriages, and I proposed that the limitation should be a period of one year from the passing of the Act. Your Lordships were not disposed to accede to that proposition. On the contrary, your Lordships considered the evil of voidable marriages so strong, that it was declared that all marriages solemnised before the passing of the Act should henceforth be declared lawful. That is the whole history of the Act. Now, my Lords, there are several important questions to which my noble Friend alluded, arising out of this state of the law. What are we to do, and to what conclusion are we to come, in regard to marriages celebrated abroad, in countries where marriages with a deceased's wife's sister are lawful? The first question relates to cases where the parties are domiciled abroad. But another question arises in consequence of a practice 1009 to which his noble Friend had alluded, namely, the case where parties who are not domiciled go abroad for the purpose of evading the law which prevails here, and after getting the marriage solemnised return to this country. What is the state of marriages so solemnised? My Lords, this applies to an immense class of persons in this country, and the Legislature ought to come to a conclusion on this subject, for I am told that at this moment there is a clergyman at Hamburgh who acts a part very similar to that of a celebrated person at Gretna Green, who for a small sum solemnises marriages between parties coming from this country and being in the relation described, in the hope that these persons may be considered, when they return to this country, as lawful husband and wife. Whether that question may come before a court of justice, it is not for me to anticipate. As a member of a tribunal which may have to decide on such a question, I do not feel that I should be justified in giving an opinion; but, considering the large number of persons placed in this situation, I must say it is a question of the utmost importance, and deserving the most serious consideration of your Lordships.
My Lords, I exceedingly rejoice to hear the statement of my noble and learned Friend, for there has been gross misunderstanding and misresentation upon this subject, not only in your Lordships' House, but out of doors, for the agitators have been very unscrupulous. They first asserted, that according to the law of England as it now stands, the marriage of a widower with the sister of a deceased wife is lawful. They induced a great number of marriages to take place between parties in that relation; and these marriages are now brought forward as an argument for legitimatising such marriages. There was a solemn and unanimous decision, by the Court of Queen's Bench, that such marriages are void. What was the state of the law? It was boldly asserted that they were void merely by Lord Lyndhurst's Act; and petitions have been presented, praying your Lordships to do away with the effect of Lord Lyndhurst's Act, and restore the legality of these marriages. My noble and learned Friend has shown truly that his Act did not make any alteration whatever in the law of England. These marriages were illegal before the Act was passed—they are illegal still—they stand on the same footing with marriages which were illegal by reason of consanguinity. The 1010 marriage between a widower and his deceased wife's sister stood on the same footing as a marriage between father and daughter and mother and son. Those marriages were not void, but only voidable. That was a most lamentable state of the law of England; and therefore the country was indebted to my noble and learned Friend for bringing in a Bill which made such marriages actually void. My Lords, I hope that the law will remain unaltered. There is another point to which my noble and learned Friend has alluded, on which I will venture to give an opinion, namely, with respect to a widower going to a foreign country and there marrying the sister of his deceased wife. I caution all men against such marriages. If they are English subjects the Legislature of England has a right to legislate upon their acts all over the world. We never can do what has lately been done in France—seek to legislate upon the acts of foreigners out of our territory; but we may legislate upon the acts of foreigners within our territory, and upon the acts of our own subjects all over the globe—and the law which exists here against incestuous marriages will in the case of British subjects render those marriages void wherever they are contracted. We had a memorable instance of this in the case of the Sussex Peerage. That marriage was contracted according to certain forms prevailing where it took place, and would have been a valid marriage but for a particular Act of Parliament, by which the descendants of George the Third were disqualified from contracting marriage except on certain conditions. That question was solemnly and unanimously determined by your Lordships; and on the principle of that decision I would caution all persons that they ought not to place any confidence in going to a foreign country with the idea of evading the law of England on that important subject. I was in hopes, that after the overwhelming majority in this House on the question of marriages with a deceased wife's sister, the agitation would have ceased; but it goes on with great activity, and no pains, no money, no waste or expenditure of money, is spared for the purpose of continuing it. It has been said that these petitions contain 90,000 signatures; but what is that number in a country containing 20,000,000 inhabitants? The argument of my noble Friend amounts to this:—"You should follow the example of other nations." But if you follow the example of other nations, you will allow a 1011 marriage between the uncle and the niece. That is a marriage allowed not only in Roman Catholic countries by dispensation, but in the Protestant countries of Germany, and I believe in some of the States of America, Are we to follow the example of other nations in allowing divorcer at pleasure? Such, to the honour of the Roman Catholic Church, they did not permit; but such, to the discredit of the Protestant Churches of Germany, they do permit. Instead of following such examples, your Lordships should rather desire to become a model to the rest of the world.
The BISHOP of ST. ASAPH
My Lords, the arguments by which the noble Earl advocated the case which he has brought forward so strongly, were chiefly founded on the number of petitions. Now I will answer for it, that with one-tenth part of the agitation, ten times the number of signatures might have been obtained against the measure with the greatest facility. He next urged the law and custom of other countries, and on this point I agree with the noble and learned Lord who has just spoken, and who has expressed what must be the prevailing feeling of your Lordships, that this country ought to be an example to the whole world. Let us do what is right. I believe myself that the question is a question which is settled by the Bible. I believe that the alteration which took place in our Saviour's time with regard to marriages was this—that he put the sexes on an equality; that before, under the Jewish law, they were not upon an equality; that the law of which we are talking was a law which allowed polygamy; and that when the Saviour made man and woman entirely equal, be put us upon a new constitution as far as marriage is concerned. Now let me ask any Englishman this question. Will any Englishman venture to say that he may marry the widow of his brother? Will any Englishman venture to say that he wishes he might be allowed to marry the widow of his brother? With regard to these marriages being voidable and not void, there appears to be some mistake; they were always void, but the jurisdiction was only in the Ecclesiastical Court, and that court only adjudicated by way of remedy, and could only punish a person for the sake of his own soul. [A laugh.] I don't know whether I am clearly understood. It does not punish him for the sake of society. It punishes him in order that it may do good to him. Now when the parties are dead, there can be no 1012 remedy, and then the civil law is allowed to touch the children. I entirely agree with the noble and learned Lord in the hope he has expressed that this question would have been set at rest by the last decision of your Lordships. Depend upon it, it is set at rest in the opinions of the people of England; and they may go on agitating, and agitating, and agitating, and paying for their agitation—they care nothing about paying, they are paying enormously all over the country—but they will never succeed in carrying their point. Let them take the votes of the women of England, and if they do not find them ten to one against the proposed alteration, I am very much mistaken.
The BISHOP of SALISBURY
My Lords, I am not desirous of entering into this subject, and I rise merely to make one remark. I can only say with reference to the general arguments which the noble Earl has addressed to your Lordships, that they do not appear to me to add anything to those which he brought forward on a previous occasion with such great earnestness and ability, and which were replied to by other arguments which appeared to the great majority of this House to possess much greater weight; and I have no doubt, if the occasion should again arise, that your Lordships will come to a similar decision. My only object in rising on the present occasion is to express the great astonishment with which I listened to the statement made by the noble Earl, that he believes the opinion of a great majority of the bench on which I have the honour of sitting to be that there is no foundation in Scripture for an opinion contrary to that which he entertains on this subject. It would ill become me, and I will not presume, to state what are the opinions of the majority of my right reverend Brethren. But I will say this, that I never in my life heard a statement to which I listened with more unfeigned astonishment. I recollect on the last occasion the rejection of the Bill was moved by my most reverend Brother the Archbishop of Canterbury, whose argument was founded altogether on the ground of Scripture. A most learned and elaborate argument was addressed to the House by my right rev. Brother the Bishop of Exeter, founded mainly on the Scriptural view of the subject. One of my right rev. Brethren, indeed, strongly opposing the Bill on other grounds, expressed a doubtful opinion, or perhaps a positive 1013 opinion, that the Scriptural ground was not maintainable; but how the noble Earl has been able to infer that the great majority of my right rev. Brethren are of his opinion, I cannot conceive. I confess, however, that my astonishment was somewhat abated, when the noble Earl said that the opinion of clergymen was almost unanimous on the question.
The BISHOP of SALISBURY
The astounding nature of that assertion took away in some degree the surprise with which I listened to the former one. The names of four or five incumbents of populous parishes—gentlemen to he spoken of with great respect—were on the last occasion paraded in reference to this subject; but their authority would have been greater if it had not been coupled with arguments so thoroughly untenable. But I should have thought that nothing could be clearer than that the vast majority of the parochial clergy, whether in populous parishes or not, are opposed to the alteration that is proposed. I must apologise to the House for occupying your Lordships' time, but I thought it not desirable that so strong an assertion should go forth without at least something being said in mitigation of its character.
§ The Petitions were then ordered to lie on the table.