HC Deb 08 February 1825 vol 12 cc152-60
Dr. Lushington

rose to move for the copy of a committal of four persons to the gaol of Londonderry, on an alleged violation of the Irish Marriage Acts. It appeared, from the statement of the circumstances which had been given to him, and which he had every reason to believe correct in all the main facts, that two men, professing the Popish religion, were married by a Roman Catholic clergyman to two females of the Church of Scotland, Presbyterians. On that event taking place, it so happened, that an information had been laid before certain magistrates of the county of Londonderry. On the receipt of such information, they issued summonses to the four married persons, and called upon them to give evidence as to the Catholic clergyman who married them. They refused, and were committed to the common gaol, there to remain for three years without bail or mainprise. In that prison the husbands and wives were kept apart. That, at least, was no part of the statute. The only offence, it would be recollected, of which these husbands and wives were guilty, was, that they refused to give evidence of what the law called the illegality of the celebration of the marriage, and refused to betray the clergyman whom they solicited to perform a certain act. He held in his hand an abstract of the various statutes passed, from time to time, by the parliament of Ireland, to prevent the intermarriage of Protestants and Catholics, through the intervention of a clergyman of the latter persuasion. Such a catalogue was a melancholy illustration of the merciless spirit which actuated the legislature in that country. It shewed the object at which they aimed, and that they were actuated by no regard, whether or not the principles of justice and of law stood in their way. Such a violation they disregarded, as well as the feelings and natural disaffection of those persons on whom these laws were to operate. Though the severity of those very enactments was calculated to render them inoperative, the men who acted under such a spirit of legislation were never awakened to the real evil. Severity followed severity, and each succeeding act exceeded the other in the malignity of its provisions. The act of the 8th of Anne made the celebration of a marriage by a Catholic clergyman, between a Catholic and a Protestant, a capital felony; and in order to secure a conviction, it presumed, that the mere fact of one of the parties so married being a Protestant, was competent evidence against the Roman Catholic priest, that he knew it. In all our penal statutes—and every enlightened man regretted their numbers—he was. convinced it was impossible to adduce one where the first principles of justice were so violated, and where that great dictate of morals and law was so sacrificed; namely, that innocence was to be presumed until guilt was proved. Mark the preamble of the act of 12th Geo. 1st, which made the crime a capital felony. One would have supposed that some crying evil, called for such an enactment. No such thing. An act, that thus created a capital felony, satisfied itself with merely declaring, that it was necessary to prevent these clandestine marriages in consequence of the inconvenience which they produced to private families. Nay, more. The magistrates were empowered, if they but suspected that such a clandestine marriage was celebrated, to summon the parties before them, examine them on oath, and in the event of their refusal to give evidence against the clergyman, or to be bound in special recognizances, to commit them for three years to gaol, without bail or mainprize. The last act, that of 1793, voided the marriage thus celebrated, and imposed a fine on the clergyman of 500l. A difference of legal opinion existed in Ireland, whether by this act the former Marriage acts were repealed or not. If they were not repealed, there arose the anomaly, that the clergyman might be hanged by one act, and afterwards fined 500l. by another. It became the bounden duty of that House to prevent such odious and repugnant occurrences, as that to which his present motion referred. With that view, he had felt it his duty to bring forward the subject and to move for the production of a copy of the committal of the imprisoned parties. He was most glad to be the humble instrument of providing against the repetition of such enormities, and of taking care that the sacred institution of marriage, in which were involved the dearest blessings of humanity, was no longer perverted into a source of national disquietude and party exasperation. The learned gentleman concluded with moving for the "copy of the committal in November, 1824. of W. Quigley, J. Kyle, F. O. Kane; Anne and Martha Loudin, to the gaol of Londonderry."

Sir G. Hill

did not rise to oppose the motion, nor yet to discuss the policy of those statutes, which made it highly penal for a Popish priest, to celebrate marriage between Protestants and Roman Catholics. They might be too severe; they might afford doubts respecting the extent of their legal operation; it would be for future discussion how far they ought to be altered or amended. Their object was to prevent the growth of Popery, and the learned doctor must be aware that the English as well as the Irish Statute Book was fully provided with enactments to that intent. He rose for the purpose of vindicating the characters, and justifying the proceedings of six magistrates of the county of Derry; and although they were treated by the learned doctor with delicacy, yet the very nature of his motion, that a copy of commitment signed by them against individuals, the proceedings against whom he reprobated, should be produced, unnecessarily called down some reproach upon them. He would satisfy the House that those persons were free from the slightest blame; that they had acted correctly as magistrates. They Were men of independent fortune, of independent minds, of education, intelligent, active in performance of all their duties as magistrates and resident country gentlemen. Yet all these qualifications did not protect them from being arraigned, tried, found guilty, and punished, before the Catholic Association. That omnipotent body took cognisance of their proceedings; and he would shew that it was one of the hundred instances where, in that nest of evils insufferable, interference with the constituted authorities had been exercised. They were arraigned each by name, by the leading director there. They were charged with unworthy motives towards the Roman Catholic population, menaced with their hostility, reprobated in the severest terms, and, finally, a decree was passed to apply sufficient means from that all-powerful engine, the Popish Exchequer, to bring actions against them. He would now state the circumstances which led to the displeasure of this disgusting assembly. A Mr. Neil O'Flaherty, a Roman Catholic clergyman, had, in the course of last summer, excited much uneasiness in Newtown-Limavady, in the county of Derry, amongst the Presbyterian congregation, by celebrating marriages between females of that persuasion and Roman Catholic men. The families and parents of the women applied to the presbytery of Derry for protection. Instead of immediately prosecuting Mr. O'Flaherty, the Presbytery adopted the milder method in the first instance, of remonstrance. He acquiesced at once to all appearance, and wrote an address to the Presbytery, in which he acknowledged his error, which arose from his supposition that the law meant only to apply to the people of the established church when it named Protestants; that he sincerely regretted what he had done; and concluded with giving an assurance that he would not ever again transgress in like manner. But Mr. O'Flaherty had a curate, whose name was O'Hagan, and in autumn last he went to work in a similar manner. This excited much agitation amongst the Presbyterians; and on the 4th or 5th of Nov. last the magistrates before-named were assembled in the town of Newtown at petty sessions for general purposes, when the parents and relations of two young women named Loudin, complained against priest O'Hagan for having celebrated a marriage between Anne Loudin, a Protestant, and John Kyle, a papist; and Martha Loudin a Protestant, and William Quigley, a papist. All the parties were summoned, and all appeared except the priest. They refused to be examined, and were committed to the county gaol for three years, or until they should submit to be examined. They did not remain in gaol, as the learned doctor had stated, for some weeks. After being confined for two or three days, they expressed a desire to be brought before a magistrate for the purpose of obeying the law; and he (sir G. Hill), with the mayor of Derry, waited upon them in the gaol on Sunday the 8th Nov., took their informations and recognisances, which they most cheerfully gave, and they were liberated. The magistrates had no discretion in this commitment. The complaining parties were before them, calling for the exercise of the law, which directs, that those suspected of being present at the celebration of the marriage shall, on refusing to be examined, be committed, as was done in this case. Although the learned doctor had for the most part quoted the statute with much correctness, he was mistaken if he supposed an idea was ever entertained, that the priest was liable to the penalty of the 12th of George 1st., by which his offence was made felony without benefit of clergy. The warrant for his apprehension was for having incurred the penalty of 500l. under the 33rd George 3rd. which was bailable. He would not argue that the law ought not to be amended; but, to what extent or with what policy, he would not now offer any opinion. He had risen merely for the purpose of vindicating his valuable friends from the unworthy imputation of mixing any other feeling than conscientious discharge of duty in their proceedings as magistrates, and to deprecate the mischievous interference of the Catholic Association with the constituted authorities of the land.

Mr. John Smith

begged leave to ask the right hon. baronet what he meant, when he charged the Catholic Association with an attempt to excite rebellion and hatred against the magistrates who acted in this affair? What language had they made use of, or what were those particular acts, which shewed any wish to excite the Catholic population to vengeance? He had read their speeches, and observed their conduct, and his memory did not supply him with any thing that could be construed into a threat of personal vengeance. It was true that they shewed a disposition to apply part of the funds they had collected to prosecute individuals where circumstances seemed to warrant it, against injustice. Such an object appeared to him not only right, but most excellent. He saw no better way in which their money could be disposed of, than in affording the means of protection against injustice and personal oppression.

Mr. Dawson

said, that if the hon. gentleman had paid sufficient attention to this particular case, to the events that were passing last summer in Ireland, and the effects produced by the speeches and conduct of the Association, he would not have found it necessary to put such a question to his right hon. friend. He would tell the hon. gentleman that the Association did excite the people to feelings of hatred and hostility against their Protestant fellow-subjects, and those worthy magistrates in particular. In their debates the names of these gentlemen were held up to reproach, by one of the most furious of their demagogues. The reports of his speeches were published and sent down to that part of the country in which these gentlemen resided. They were read by the Roman Catholics; and the consequence was, that they who before were held in the highest estimation and respect, and were on the best footing with their Roman Catholic neighbours, could not stir from their houses without being assailed with expressions of hatred, and menaces of violence from the Catholic population. Previous to this time they were so much respected among all classes, that they had no reason to apprehend any thing of the kind; but, the moment the furious language of reproach and hatred uttered by Mr. O'Connell, Mr. Shiel, and other demagogues, became known, from that moment these worthy magistrates were placed in a state of terror and alarm. This he thought was a pretty fair answer, and it was a true answer, to the question of the hon. gentleman. In every part of the country, the speeches and proceedings of this infamous, unconstitutional, and most mischievous body, had gone forth to sow discontent. In the north, the Catholic mind was thus alienated from their Protestant fellow-subjects, and they were taught to look upon them as their worst enemies. Many of the gentlemen of that part of the country were, it was true, from principle, opposed to any further extension of privileges to Roman Catholics; but, in all other respects, they were their friends. The Association was the cause of this. They were chargeable with the whole of the evils; with having scattered distrust through all the relations of life. He thanked the learned doctor for the manner in which he had brought forward this question. He had confined himself to the statement of the law upon the subject, and to the view he took of it. The Catholic Association did not act in this manner; but endeavoured to turn it into a source of bitterness and hatred. He concurred in opinion with the learned doctor, that the law required alteration. So far as he was informed, it was the opinion of every lawyer in Ireland, that the 33rd Geo. 3rd. repealed the penal part of the previous statute, which made it felony without benefit of clergy for a Catholic priest to marry two Protestants or a Catholic and a Protestant. By 33 Geo. 3rd. the penalty of 500l. was substituted in place of the punishment provided by the other statute. This was now the generally received opinion. If, however, any doubt remained on the subject, the law ought to be altered. At all events, whatever the state of the law might be, the conduct of the magistrates was completely free from blame. His right hon. friend had detailed the facts of the case very correctly. He had omitted, however, a few circumstances. He had stated, that the name of the priest who celebrated the marriage was O'Flaherty, and that the Presbyterian clergyman, when the fact became known to him, threatened a prosecution. The priest wrote ft letter ac- knowledging his error, and promising that he would in future abstain from offending in the same way. Now, Mr. O'Hagan was aware of the promise that had been thus made, and yet he married these two young women, having previously bound them and the other parties by an oath of secrecy not to appear as witnesses. In consequence of refusing to give evidence they were sent to prison. When relieved from the apprehensions of incurring the censure of the priest if they should give evidence against him, they were very ready to appear. Mr. O'Hagan, however, had thought proper to fly the country.

Mr. North

said, that happening to know the state of the case, he would take upon himself to declare that few offences were of more serious consequence than the transactions in question. For as, by the law, all such marriages were invalid, the children by them were of course illegitimate, and in nine cases out of ten the women were abandoned, and left to destitution. The joke of the learned doctor, that a man might be hanged first, and fined 500l. afterwards, was a very stale one in Ireland; although, perhaps, it might still amuse Doctors' Commons in this country. As to the fact, no lawyer doubted that the 33rd of the late king repealed the former act, by which the offence in question was constituted a felony. He by no means, however, meant to give an opinion on the merits of the acts under consideration; nor, on the other hand, was he desirous that his silence should be construed into hostility against them. It was a serious question whether such marriages should be invalidated or not. Still less was he disposed, on the present occasion, to say any thing of the Catholic Association, except that the steps which they took in the instance alluded to, were of a piece with the whole of their conduct.

Mr. Grattan

was so far from considering that the conduct of the Catholic Association had been injurious in Ireland, that he was persuaded the country was never quieter than at present. He was acquainted with facts which proved, that if any disturbance had occurred, it was attributable to that party to which the hon. under-secretary was attached. He put it to the hon. gentleman, whether it was quite fair to attack, as he had done, individuals who were not present to defend themselves. Those individuals were men of high character. With respect to the subject before the House, he felt grateful to his learned friend for having brought it forward, as it was one of considerable importance.

Dr. Lushington

said, that notwithstanding what had fallen from a learned gentleman opposite, considerable doubts existed whether or not the penal statutes that had been alluded to were absolutely repealed. No one could deny, that to compel the parties to give evidence against those whom they had induced to commit the offence, was a gross violation of the laws of God and man. The right hon. baronet opposite had pronounced a splendid panegyric on the magistrates in question. He (Dr. L.) had never attacked them. But, so it always was. Let the slightest imputation be thrown out against an individual, and immediately they were overwhelmed with the praises of the whole body to which he belonged. It was singular enough, that in this case, where the magistrates were represented to be popular with the Catholics before this act, they became the reverse afterwards; which was a conclusive proof of the impolicy of the statute that could lead to such a spirit of animosity.

The motion was agreed to.