MINUTES OF EVIDENCE Taken before the COMMISSIONERS appointed to Inquire into the STATE and OPERATION of the LAW of MARRIAGE, as relating to the Prohibited Degrees of Affinity, and to Marriages solemnized Abroad, or in the British Colonies. 9th NOVEMBER, 1847. The Right Hon. STEPHEN LUSHINGTON, D.C.L., in the Chair. Thomas Campbell Foster, Esq. 1. You are a barrister-at-law ?--I am. 2. Have you had occasion to make inquiries and so become acquainted with the subject of marriages within the prohibited degrees of affinity?—I have. 3. Will you have the goodness to state the course you adopted in conducting the inquiry? -I was consulted at the latter end of 1846 by Messrs. Crowder and Maynard relative to the question of marriages within the prohibited degrees of affinity. It was thought by them, on behalf of their clients, that the understood prohibitions were not, in fact, strictly according to the letter of the law. It was also stated to me by them that very great hardship resulted to many parties in consequence of that understood state of the law. I advised them, first, to try the question legally, if it were possible to do so; and, secondly, to ascertain whether or no the infringements of the understood law, and the hardships inflicted by it, were so numerous as to warrant an application to Parliament, if the law should be found to be against them, to change that state of the law. On both those points my clients agreed with me. About this time a a. case arose at Liverpool assizes, in which a person named Chadwick, after the decease of his wife, married his wife's sister. A few months after that second marriage he thought fit to turn. her out of doors, and to marry another female. He was indicted for bigamy upon the third marriage, and that raised the whole question. I was prosecuting counsel in the case; that afforded an opportunity for trying the question legally. (See Q. 8 1, 22-5, p. 111, s. iv.) I then advised my clients to ascertain, as far as was practicable, the number of cases of infringement of the understood law which might exist throughout the country, in order to warrant them in making an application to Parliament, if the facts should be so numerous as to justify them in b. making such an application. I advised them, in making this inquiry, to take care that it should be a bona fide inquiry; that there should be no attempt whatever to get up a case, but that, as far as possible, a fair and proper statement of the existing facts should be arrived at. They adopted the plan which I suggested to them, which was to divide the country into districts, and to send into each district some gentleman of station and character to superintend the inquiries to be instituted in that district, whose duty it should be to be careful about the facts which he ascertained, to verify them as far as they could be verified, to take care that he was not deceived in his information, and that, as far as possible, he communicated to us the truth. In such districts as were too large for the active superintendence of any one gentleman, the gentleman appointed to such a district was to have under his own immediate supervision, such subordinates as were deemed necessary to ascertain facts in the towns, who should report to him; but that c. each gentleman should be responsible for the facts ascertained in his district. The gentlemen appointed were requested each day to report to me the facts thus ascertained. In all those cases the gentlemen appointed to a district were either barristers, or students-at-law studying for the bar. In many of the cases the subordinates were also barristers, or students-at-law studying for the bar. To Yorkshire and to Lancashire Mr. Aspinall was appointed, and he had under his supervision four or five agents in the large towns, such as Manchester and Leeds. In Manchester he had a gentleman of the name of Sleigh under him, who is here to-day, a barrister who, if the Commissioners wish, will be examined before them. For Leeds he had a gentleman assisting him, Mr. Charles Newton, also a barrister, who will, I expect, be here to-day. The statements of those gentlemen were forwarded to him; and a conjoint statement of the whole was each day or every other day forwarded to me. That was the machinery adopted for ascertaining facts. The letters of each gentleman, as they were received, were filed upon these files which are here (producing the same). 4. Those letters that you have now in your hand are the original letters which were forwarded to you by some of the gentlemen employed in this inquiry?-They are. The names thus collected in those letters, with the addresses of the parties, were then by me each day entered into this book (producing the same). 5. The book now in your hand is the original book in which you made the entries from the information you received?-It is. The first column contains the date of the letter, so as to be able to refer to it on the file if necessary; the second, the name and address of the party who has married within the prohibited degrees; the third states the degree within which he was married. Here is a mark, B. A., which signifies before the Act of 1835. 6. You have divided the book into two periods, the one before 1835, and the other succeeding 1835?—Yes, the cases before 1835 I have signified by the letters B. A.. so as to show at T. C. Foster, Esq. November 9, 1847. B T. C. Foster, Esq. November 9, 1847. a glance which marriages were before the statute of Wm. IV. Then here are other columns, 7. All the cases enumerated in this book are cases of actual marriage, with the exception of 88? With the exception of 88, which were marriages prevented by the existing law. 8. In all those cases did the parties cohabit together?-Not in all. Out of the SS cases, 32 resulted in open cohabitation. The cases were thus reported to me with a double object. It was intended in preparing the pamphlet which is before the Commissioners, which I was then writing, in the first place, to make use of the facts which might arise in the progress of this enquiry, and those gentlemen were directed to report to me immediately, that I might have those facts before me; and in the second place, that the information might be classified and arranged to be laid before Parliament. The object of that pamphlet, I will state fairly, was this; to make the public acquainted with the facts and arguments in the question generally, in order to bring the case before Parliament. In Norfolk and Suffolk a gentleman, b. named Paterson, a barrister-at-law, who is also here, was appointed. Mr. Paterson took precisely the same course as that adopted by Mr. Aspinall, with one exception, which was, that his district not being so populous, and the towns in it not so numerous, nearly all the cases of infringement of the law in his district were ascertained by himself. In Warwickshire and in the Birmingham and Pottery districts, Mr. Brotherton, also a barrister-at-law, was appointed. He is a son of Mr. Brotherton, the member for Salford. He was in that district about six weeks; not so long as the other gentleman, from the fact of his being ill for some time. In that district, I think, the cases generally are different from the cases reported to me from other districts. He reported to me a far greater proportion amongst the lower class than any other gentleman. He is here to-day. I am now stating the result of his correspondence, which I have no doubt he will state as having fallen under his own observation, c. that amongst the lower classes such marriages are very common, from this fact chiefly that on the death of the wife of a labouring man he has no one whatever to take care of his house, and usually a sister of his wife is the first person called in to take charge of the children and to look after his household affairs. A few weeks' residence in the house of a poor man, where there are not those means of living apart which exist in larger houses, brings them into very intimate connexion. There are but, perhaps, two rooms in the house; they live together with great familiarity, and usually the parties have, at the expiration of a month or two, endeavoured to marry, and in many cases the marriage has been prevented by the fact becoming known in some way that they are related by affinity, and the clergyman upon that refusing to marry them. In many cases, where the parties are not known, the banns have been published and they have married. A great many marriages of this kind have taken place amongst the poorer classes. In almost all those cases which are reported to me, where parties in that station of life have been prevented from being married, they have afterwards lived d. together in open cohabitation. In Norfolk and Suffolk, which are agricultural districts, the reports of Mr. Paterson to me show very considerable hardship to have arisen amongst the farming class by this law. One case I remember, which Mr. Paterson stated to me, of a farmer in Lincolnshire, having gone to the expense of 100l. to be married in the United States, at New York, I believe. In many cases also it has occurred that parties in a respectable sphere of life would cross over from Lincolnshire to Hull, where they were not known, and be married there. There were one or two cases of that kind reported to me. I will read some of the observations in Mr. Paterson's district, which is an agricultural district, and which will show the general tone which pervaded some of the marriages which were prevented. A dissenting minister at a town in Suffolk, at the dying request of his first wife, married his deceased wife's sister. There is a shoemaker in the same town who cohabits with his deceased brother's wife, because he cannot marry her. There is another case where a gentleman, a surgeon in the same town, married his deceased wife's sister by the wish of his dying wife. Here is another case where the parties went to Altona to be married. Here e. is another case of a farmer in Essex, whose wife's sister took care of his house. She was pregnant by him and afterwards he married her. Here is another case which Mr. Paterson reported in Norfolk, where the husband of a deceased wife's sister, in order to leave her his property, was obliged to describe her in his Will as his reputed wife," and that was a respectable person. There is another case in Mr. Paterson's district also in Norfolk, where a widow was deprived of a maintenance out of the husband's estate, he being a lunatic, on the ground that the marriage was illegal. These are cases of hardship occurring amongst the more respectable class. There is another case in Norfolk, where the first wife on her deathbed, wished her husband to marry her sister for the sake of the childrən. The husband could not afford to keep two establishments and so he married her. That was the reason which the T. C. Foster, Esq. man gave to Mr. Paterson. Here is another case of a reverend gentleman, a Wesleyan minister, whose marriage with his deceased wife's sister was prevented by law, and who stated November 9, 1847. f. that he lived in considerable unhappiness for some time in consequence. Here is another case of a farmer in Norfolk, who at the request of his dying wife, married her sister, in order that the sister might take care of her children. It seems to be of very common occurrence that the wife, on her death-bed, so far from having any repugnance to such a marriage, makes it frequently a dying request if she has children, that the husband will marry her sister, she thinking that her sister will be a more careful mother of her children than any stranger. In the district of Bristol, Bath, and Cheltenham, Dr. Thorburne, a physician, and now studying for the bar, was appointed. He reported a large number of cases occurring in those fashionable towns, generally amongst the superior classes. In the south, a district purely agricultural, a gentleman, named Macdonald, also a student for the bar, was appointed. He took Portsmouth, Southampton, Winchester, Dorchester, Plymouth, Devonshire, and Exeter, and there were upwards of 290 cases reported by him in that district, which, excepting the ports, is a purely agricultural district. In London we had, perhaps, our greatest difficulty. g. London was so vast, that it was extremely difficult to divide, to apportion, and to classify it in such a way as to obtain any result. That applies peculiarly to London, which is generally, I believe, said of most large towns, that no one knows the concerns of any one else but themselves. To London, two gentlemen, named Bayley and Dearsley, both barristers, were appointed; Mr. Dearsley became so convinced that it was a hopeless task to him to find out anything, that in a fortnight he gave it up and refused to proceed. Mr. Bayley continued for a few weeks, and I think he obtained about 120 cases, but the difficulties he met with in his enquiry were extremely great, chiefly from this circumstance, that such marriages were either celebrated by banns, and therefore passed unnoticed, or, perhaps, from this fact also, that no one conversed about them, that they did not become the subject of general conversation amongst the neighbours and were unknown, and therefore it was difficult to ascertain them. h. These gentlemen reported to me that almost all the clergy stated to them that they knew of many such marriages, but declined to give them any information. Several surgeons with whom they met also told them the same thing, that they knew of several such marriages in private families, but refused to give them any further information. The result in London was, in about four or five weeks, to obtain a knowledge of about 120 cases, and it was thought that it was better not to pursue the enquiry in London, because it was impossible by the means employed to obtain the result which we felt the truth of the case really deserved. It was within the knowledge of those gentlemen from their enquiries, that there were a great many such marriages, but what the marriages were, the names of the parties, and the facts respecting them, could not be obtained; it required better machinery than that which we had i. to ascertain them. I have now stated the districts apportioned to each gentleman. The total result was as stated in the paper before the Commissioners, that 1648 cases were ascertained of marriages within the prohibited degrees, less 88, which were cases prevented by the Marriage Act of the 5 and 6 Wm. IV. c. 54; 32 of which resulted in open cohabitation. The way in which these results were arrived at was by simply counting up the cases in each page of this book, and analysing them in those columns in each page, so that the analysis is easily seen, and it was a mere process of addition to ascertain the result. I may mention that, k. in consequence of my being known to be conducting this enquiry, several parties have consulted me professionally, respecting cases which they either knew or were concerned for. Several attorneys have called upon me and have consulted me professionally, respecting cases like these. Generally speaking, the object of their seeing me was to ascertain how best to avoid the existing law. Among others, a nobleman, about three months ago, consulted me upon the same subject, and he has since been married in Altona to the sister of his deceased wife. Having obtained these facts, it appeared to my client that such a strong case was made out as justified the belief that they were warranted in making an application to Parliament in order to obtain some change in the existing law, supposing that the law should be as it is 1. generally understood to be against such marriages. At the same time, a writ of error against the decision of Mr. Justice Wightman in the bigamy case, at Liverpool (Q. 22-5), has been going on before the Court of Queen's Bench, and in a fortnight it is expected to be argued by Sir Fitzroy Kelly. The decision in that case will be of course irrespective of this enquiry. The facts ascertained by the gentlemen engaged in this enquiry were placed in the hands of Mr. Stuart Wortley to lay before Parliament, and the result of his application to Parliament was the appointment of the present Commission. 9. Were any of those facts personally investigated by yourself?-None, except in those cases where I was professionally consulted. 10. In the rest of the cases you received your information from the gentlemen whom you have named?—I did. 11. You have stated that gentlemen were appointed for the particular districts you have enumerated; were those districts fairly and impartially selected for the purpose of ascertaining the real truth with respect to these cases of marriages?-They were; for instance, a manufacturing district was chosen and an agricultural district, a sea-port district and a midland district, and a miscellaneous district. It appeared to me to be a fair selection in different parts of England, so as to give as far as possible a correct general result from the whole of England. 12. Are you able to state to the Commissioners whether all those cases of marriages which are entered in that book have the addresses of the parties?—I believe, with perhaps a dozen exceptions, the whole of them have. 13. Is the following the true result of the information collected and transmitted to you, that 196 of those marriages were celebrated before the Act of 1835?—It is so. T. C. Foster, Esq. November 9, 1847. 14. That 1364 were had since the Act?-That is so, according to our information. 15. Of those marriages, 1501 were with the sister of the deceased wife?-That is so. 16. That 147 of them were with the deceased wife's niece and other relatives by affinity?—Yes. 17. Are there any other instances of marriages included here, save those with the deceased wife's sister and the deceased wife's niece, or cases of two brothers marrying the same woman? -I think there are about six instances of marriages of the parties' own nieces, not deceased wives' nieces. 18. How many cases are included in this list of marriages, illegal by reason of their being within the prohibited degrees of consanguinity?-There are about six. There were one or two cases out of the six where a man had married the mother and the daughter; but I think six is the outside of those cases. 19. Did those marriages take place in England or where else?-Much the greater part in England, with the exception of 38, which were solemnized in Scotland or on the Con tinent. 20. Have you carefully examined the information you have received, so as to be able to classify the persons who have been married under the circumstances already stated?—I have. I have found that, by classifying them according to their station in society as nearly as I could, there are five mayors of towns, 70 magistrates and persons of the upper classes, naval and military officers, barristers and physicians; 30 of those marriages were amongst clergymen and ministers of the Gospel. 21. When you say " clergymen and ministers of the Gospel," do you mean clergymen of the Church of England?-Clergymen of the Church of England and Wesleyan ministers, and Dissenting ministers. The great bulk of those marriages, namely, 1503, were amongst the middle classes, including merchants, manufacturers, professional men, and tradesmen. Very few of the total number ascertained by us were of the class of labourers and mechanics; only 40. It was found by the gentlemen engaged impossible to ascertain the cases amongst the lower classes, they are not so well known; they reported to me generally that they could not ascertain them. 22. You stated that there is pending a writ of error, have the goodness to state what is the point of law precisely which is to be tried by that writ of error?-In the trial of Chadwick for bigamy at Liverpool, it was objected by the counsel for the defence that the marriage of the prisoner with the sister of his first wife was an illegal marriage, and that, consequently, the subsequent third marriage of the prisoner in the life-time of the second sister was no bigamy. Upon the relationship of the two sisters being proved, the judge who tried the case, Mr. Justice Wightman, directed the jury to find a special verdict, stating the facts, and upon that special verdict he directed an acquittal, it being his opinion that, in point of law, the marriage with a second sister was an illegal marriage, and that, consequently, the third marrage in the life-time of that second sister was no bigamy. 23. Can you state to the Commissioners what was the distinction endeavoured to be taken in order to show that the Act of 1835 was not operative in rendering such a marriage illegal? -The second section of the Act of the 5th William IV., chapter 54, is, "That all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity, shall be absolutely null and void." It was contended by me, on the part of the prosecution in the bigamy case, that the marriage of two sisters was not within the prohibited degrees; that the prohibited degrees must be sought for in the statutes of Henry VIII., and, by reference from those statutes, in the 18th and 20th chapters of Leviticus; that those chapters of Leviticus nowhere expressly prohibit the marriage of two sisters, but, on the contrary, it appeared to me that, by implication, they sanctioned such a marriage. 24. So that you contended that those marriages were not prohibited either by the law of God or by the statute or the common law of the land?-Exactly. 25. And that is the question now sub judice ?-That is the question now sub judice, upon the ruling of Mr. Justice Wightman. I should say that the same point has arisen in a case in which I was also counsel at Westminster Hall, in an appeal by the parish of St. Giles's-in-theFields against an order of removal from the parish of Lambeth. The question in that case was as to the legality of a marriage with two sisters, and the legitimacy of a child the issue of such second marriage. Supposing the second marriage to be legal, and the child to be legitimate, the parish of St. Giles was liable to maintain him; that was the place of the husband and father's settlement. Supposing such a marriage to be illegal, and that the child was a bastard in law, the parish of Lambeth was liable; the child followed the venter of the mother, and Lambeth was the place of settlement of the mother. I have also seen a case reported in one of the Courts of Chancery, as to the distribution of a testator's effects, in which the decision at law is waited for, to determine the judgment of Vice-Chancellor Wigram. (Q. 238.) 26. It appears from this statement, that the number of marriages of this description which were discovered by the gentlemen who were in search of such information before the Act of 1835, amounted only to 196, whereas the marriages since the Act are 1364; do you apprehend that the number of such marriages has increased since the Act in a greater proportion than those which existed before ?-No; so far as the information was given to me, the Act seems to have been, or nearly, a dead letter; to have been almost wholly inoperative; but 11 years have transpired since the Act passed; and with respect to many of the marriages anterior to that period, the parties have died since that, and the number, perhaps, appears less on that account. 27. Then your conviction is, that the Act of 1835 has not worked its intended effect, by interposing any effectual obstacle to the celebration of many of those marriages?-I should say, in the great bulk of the cases, certainly not. In 88 cases out of the 1648 ascertained, it has had that effect; and out of those 88, in 32 cases the parties have openly cohabited toge ther without marriage. It is a matter of deduction whether or no these marriages have been T. C. Foster, Esq. more numerous before or since the Act, but, generally speaking, marriages before the Act, inasmuch as they were legal, were more readily communicated to the gentlemen making November 9, 1847. inquiries. John Bridge Aspinall, Esq. 28. You are a barrister-at-law?—I am. 29. Were you not, in the latter end of last year and the beginning of this year, employed in order to collect information with respect to the subject of marriages had between persons standing towards each other within the prohibited degrees of affinity?—I was. 30. In what district ?—In the north of England, principally in Lancashire and Yorkshire. 31. Can you state more particularly the parts of Lancashire and Yorkshire?—I myself was in Liverpool, Manchester, Lancaster, Preston, and York. I was also at Sheffield, but not solely. 32. Did you personally conduct the enquiries at those places ?—I did. 33. Did you communicate the result of such your inquiries to any person?—I did, to Messrs. Crowder and Maynard, through Mr. Foster. 34. Did you find any difficulty in prosecuting those inquiries?-Considerable difficulty, because I had no means of getting evidence, except from making personal enquiry. I had no means of bringing persons before me. 35. In those cases in which you reported that marriages of this description had taken place, had you good reason to be satisfied, from the result of your investigation into those cases, that those marriages truly had occurred?-In very much the larger proportion of them I saw the parties myself, and was perfectly satisfied by their own information. I did not report any case in which I had not some information upon which I could perfectly rely. 36. So that in fact you have no reasonable doubt that your reports are correct as to the facts?-None whatever. 37. The paper which you hold in your hand is one of the papers containing the information which you transmitted from time to time to Messrs. Crowder and Maynard through Mr. Campbell Foster ?- It is. 38. Did you find any disinclination to give you information in any district in which you made inquiries?-Very little. I found a disinclination to volunteer it, but when questions were asked I found very seldom any disinclination at all. I did not find the parties ready to volunteer it. 39. Did the parties in any way complain of hardship, or supposed hardship, to which they might be subjected in consequence of the state of the law?-Very much, indeed. 40. As related to their children ?-Very much so; that was very frequently a subject of complaint. 41. Have you reason to think that the inquiry which you made through Lancashire and Yorkshire, and the results of that inquiry, may be taken as a fair specimen of the state of things in the rest of that extensive district?—I have no doubt about it. At the same time I think that, in most of the places to which I have been, my collection of cases must have been a very imperfect one, because there was no place in which I did not continue to receive information of additional cases up to the very moment of my leaving it; and once or twice, when I went back, from some cause or other, after having done all that I thought could be done, I got considerably more information. 42. Then it is your belief that there are many cases still existing, in the towns in which you conducted your investigation, which did not come to your knowledge?—I have no doubt about that, especially among the lower classes. Cases among the higher classes of society are well known among their friends, and one gets to hear them with comparative ease; but among the lower classes it is not so, and it would be almost impossible to collect them perfectly. 43. In the town of Manchester were you able to investigate the state of this question, as it regards the operatives, with any effect?-Not with much effect, from the reason which I have just assigned. I think it would be very difficult to get any mass of information, as regards operatives, in so large a place as Manchester. In a small town it would be much more possible. 44. In fact, do you apprehend the truth to be, that the higher the situation of the parties the more easy it is to obtain information as to the existence of such marriages?-Decidedly; the parties are better known and their family circumstances. 45. Did you find any strong objection prevailing against these marriages in any of the districts in which you conducted your inquiry?-Not in any large proportion of society. I found individuals who entertained a strong objection, but I should say that those were quite the exception. 46. Have you anything further to state to the Commissioners?-There is one remark which occurs to me, which was made by several persons who are in this position themselves, and that is, that the objection which one sometimes hears made, that the opportunity of marrying the wife's sister, if afforded by law, wonld induce persons to look upon their wife's sisters with different views from what they do now, is unfounded, for this reason, that in the present state of society it is not impossible to marry a wife's sister: as society regards it, it is not an impossibility, but on the contrary, a very common thing; and, therefore, though it is possible that persons in a very high state of feeling might be restrained from doing so, persons who could, under any circumstances, look with improper feelings upon a person in that position, would be J. B. Aspinall, Esq. |