§ On the first clause being read,
§ Mr. Shaw
objected to the Bill—not because it removed penalties which he allowed were severe in the extreme, and which he desired to see mitigated—but because it did not substitute any more mild and adequate ones in their stead. It would give impunity to the Roman Catholic priest who might solemnize a clandestine marriage, while it left the minister of the Established Church liable to punishment. The 6th Anne, ch. 16, for the protection of minors, made it highly penal, both in the clergy of the Established Church, and in Roman Catholic priests, to celebrate marriages in the cases there specified; but this Bill was to relieve the Roman Catholic priest, while it would allow the Established clergy to remain subject to the penalty: for the 12th George 1st extended it, in its utmost severity, to a degraded clergyman of the establishment—and, if he was not degraded, the canons and rules of his church were a sufficient control over him; but that statute, also, was only to be repealed so far as it regarded the Roman Catholic priest. He felt that the whole marriage law called loudly for revision, and he hoped that would soon be undertaken; but, in the mean time, he objected to the penalties being removed for performing clandestine marriages by Roman Catholic priests. He thought that the offence should be made a misdemeanor, as proposed by the Solicitor General for Ireland last year; otherwise he was persuaded that clandestine marriages would be greatly multiplied, and all the mischief and confusion arise to which they inevitably lead.
§ Mr. Sergeant Perrin
said, that his hon. 412 friend (Mr. Shaw) principally confined his objections to the 6th Anne—but this Bill left that Act as it stood at present. The clause in that Act subjected Protestant clergymen solemnising a clandestine marriage to degradation, and all other persons, and those assisting at same, to transportation. It was another clause that this respected.
said, the objections of the hon. and learned Gentleman (Mr. Shaw) were quite inapplicable to the present stage of the Bill. His objections were to the principle of the Bill; and there was no one recital in it to which his observations applied. The hon. and learned Gentleman complained, that the Bill placed Protestant and Roman Catholic clergymen on a different footing. Its object certainly was to place them on precisely the same footing, and if any clause in it affected a Protestant, or a dissenting clergyman, let the hon. Gentleman point it out and amend it. The law, as it at present stood, was cruel in the extreme. How was a Roman Catholic priest to know who was a Roman Catholic, or who was not? And yet the law inflicted the penalty, not merely in the case of the person being a Protestant at the time, but if he happened to have been one twelve months before. In Galway a priest married a couple—the man was a soldier, and both parties declared that they were Roman Catholics. A serjeant of the regiment corroborated the man's statement, and it turned out afterwards that the man was a Protestant. As the case stood, the priest, nevertheless, was subject to the penalty.
§ Sir Robert Inglis
said, that his great objection to the Bill as it stood was, that while it remitted all penalty with respect to the priest celebrating the marriage, it admitted that the marriage itself must he null. It inflicted the severest possible penalty on the parties contracting the marriage—it stamped the female as a concubine, and bastardized the children, while it inflicted no penalty whatsoever upon the clergyman. Now he would ask was that a Bill which the Committee was prepared to sanction? Should the Bill pass, it would give the greatest possible encouragement to seduction of the worst description—namely, that perpetrated under the form of marriage. A few years since a Protestant clergyman was tried at Maryborough (he believed) for improperly solemnizing a marriage. He was tried for the offence—was convicted, imprisoned, and deprived of 413 his benefice. It was, therefore, not correct, as stated in the preamble of the Bill, that no clergyman but Roman Catholic clergymen were subject to penalties. In the case of Mr. Macarry, who had been prosecuted at Deny, the form of the certificate that he required to be signed by the parties was as follows:—"We, the undersigned, profess ourselves members of the Irish Roman Catholic Church in all its purity." If the parties signed this, a licensed seduction could be perpetrated by this Bill.
§ The Solicitor General
said, that the country owed much to his hon. and learned friend (Mr. Perrin) for bringing forward a measure to repeal laws which were a disgrace to the Statute-book. Would the House believe, that as the law now stood, a Roman Catholic priest found guilty of marrying a Roman Catholic and a Protestant, might suffer the penalty of death. There was some doubt as to whether or no the Act of 1792 repealed that statute, but in his opinion it did not; and if any one were so ill advised as to frame an indictment upon it, a conviction might be had, and the penalty of death be incurred. Be this as it might, however, there was no doubt that another Act was in existence, which inflicted a penalty of 500l. upon the priest. It reflected little credit upon the Parliament which had passed these statutes, a Parliament which the hon. and learned member for Dublin was anxious to revive. He considered them as the last existing remnant of the infamous penal code, and the sooner they were expunged from the Statute-book the better. The hon. and learned Gentleman concluded by stating, that the Bill then before the Committee had his entire approbation.
§ Mr. Shaw
was surprised, that the learned Solicitor General wasted the time of the Committee in so vehemently declaiming against penalties which he (Mr. Shaw) had not defended; on the contrary, he had last year supported the Bill which the Irish Solicitor General brought in, abolishing those penalties, but making the offence a misdemeanour. That was all he (Mr. Shaw) desired now. It was the Government and their supporters who had changed, not him, (Mr. Shaw). With respect to the 6th of Anne, he relied not only on his own opinion—for he had communicated on the subject with some of the highest legal authorities in Ireland, and they were of opinion, that the present Bill would repeal the provisions of that Act which were remedial, as well as those which were protective.
§ Dr. Lushington
said, that if any proof were wanting of the necessity that existed of revising the law of marriage, it had been afforded in the course of the discussion that evening. When he found, that the validity of a marriage might depend upon the religion of one of the parties twenty-five years before, he owned he considered a case was made out to demand the interference of the Legislature. His objection to the present Bill was, that it did not go far enough. He knew of no statute inflicting penalties on clergymen of the established religion. [Mr. Shaw: The 6th of Anne.] If the hon. and learned Gentleman says, that the Bill would relieve the priest from a penalty, and leave the Protestant clergyman subject to one, let him bring up a clause in the Report to place them on an equality, and the hon. Member should have his support. The only extent to which this Bill went, was to relieve the priest from the penalty of 500l,. and from that penalty he ought to be relieved. He hoped another Session would not pass over their heads without taking the whole marriage law into consideration.
§ Mr. O'Reilly
said, no exemption was required in favour of the Roman Catholic priest that was not equally shared by the Protestant clergyman.
§ Mr. Shaw
said, he would adopt the suggestion of the hon. and learned Gentleman (Dr. Lushington) respecting the 6th of Anne, and, on the Report, bring up a clause declaring, that the Bill should not affect the fifth section of that Act. He would also, to save the time of the Committee, defer till the Report proposing his other clause, which should be in the words of the Solicitor General for Ireland last year, simply making the offence a misdemeanour in all cases.
§ Clauses agreed to.
§ The House resumed—the Report tobe received.