HC Deb 15 April 1836 vol 32 cc1093-101

Lord John Russell moved the second reading of the Dissenters Marriages Bill.

Mr. Goulburn

was anxious to offer a few observations on the Bill. So far as the noble Lord had stated that this Bill was framed with the desire of relieving Dissenters from the necessity of being married by the clergymen of the Church of England, he had no hesitation to say that he was willing to go that length. So far as the Bill had that object, and proposed to effect it in an unobjectionable way, he was quite willing to give it his most cheerful support. But he besought the noble Lord to take care lest, in giving relief to the Dissenters on the one hand, he was not placing a burthen on the clergy of the Established Church on the other. Whilst the noble Lord consulted the religious and conscientious scruples of the Dissenters, let him not disregard or offend the scruples of the members of the Established Church. He would, when the fitting occasion came, be prepared to satisfy the House that this Bill interfered with the conscientious scruples of the members of the Church of England. He would, however, on the present occasion, deal with another part of the question, to which he felt that he could point out an objection so clear and distinct as to entitle him to the support of every hon. Gentleman in the House. He proposed to confine himself to the question whether the Bill now before the House did not afford increased facilities to clandestine marriages, and did not open a door in this respect to every man, whether Dissenter or member of the Church of England, and on a point, too, in which the interests of families were most seriously concerned. It was for the House to consider how far protection against clandestine marriages was afforded by this Bill. He should, he trusted, be able to show how perfectly inadequate this Bill was to prevent the performance of clandestine marriages amongst all classes of his Majesty's subjects, no matter to what sect they belonged. By the existing law of England there were certain guards against clandestine marriages. In the first instance there was the necessary publication of banns. There was the necessity that these banns should be published three times in the parish in which each of the parties must have lived for a limited period. This publication of course took place in the presence of many who must be acquainted with the parties about to be married, and so far all the advantages of the fullest publicity were obtained. The banns were a publication of the intention of the parties to engage in marriage, and in the rural parishes they afforded a certain security against clandestine marriages, and in other parishes a tolerable security against secret or improper marriages. They afforded an assurance that persons acquainted with the parties would hear of their intentions, and that it would become known in the parish where they resided, and if any objection existed there was a reasonable assurance that it would be made public. The next security afforded by the existing law was, that it required that the marriage should be celebrated in the church of the parish, in the customary and recognized place for such celebration. It was also required that all marriages should be celebrated within the hours of eight and twelve o'clock, the very time in which the public would be most likely to have their attention awake, and when any clandestine marriage would be the least likely to be celebrated. The next protection was, that it was required that the marriage must be celebrated within three months after the publication of the banns. It was no small security that the marriage was required to be celebrated under these circumstances in the church of the parish where the parties reside, and in the presence of the parochial clergyman, to whom the parties must be more or less known, and who, being a person of education and respectability, if there were any suspicion of a clandestine marriage, would interpose to prevent it. But there was still more. That which he considered one of the greatest protections was, that marriage was celebrated with all the solemnities of religion, and in the presence of God, and under the most solemn sanctions. By the Bill before the House all these protections were withdrawn. The party was not bound to have banns published in any instance. The marriage might take place not only in the parish where the parties resided, but in any parish in the kingdom which they chose to select—not in the church or recognised building, but in any place which the parties might choose, and where no person could anticipate that such a marriage would be performed. The noble Lord stated, that he intended to withdraw the exemption with respect to hours, and to limit the houses of celebration, as at pre- sent; but he withdrew the protection of compelling the marriage to be celebrated within three months after the publication of the banns. The Bill withdrew the protection arising from the celebration of marriage by the authorised minister of religion, and permitted marriage to be celebrated, not by the authorised minister, but by any person who chose to undertake the office. He contended, that this Bill opened the door to clandestine marriages, not only of Dissenters, but to every class of the community. After this Bill passed, there would be nothing to prevent any member of the Church of England from being married in any place he chose, or by any person he chose, or without the necessity of having the marriage performed in any place of religious worship. He thought it right to state those objections now, that the noble Lord might have the opportunity of making such alterations as would satisfy the public mind. His first objection was, that notice was not required to be served upon the registrar of the particular district in which the parties resided, so that two parties residing in Middlesex might, if they so chose, serve their notice in Yorkshire. Again, there was no penalty inflicted by the Bill for a false notice. Then, with regard to caveats, there was this anomaly, that no person except a parent or guardian could enter a caveat without subjecting himself to heavy damages. So that if a man were to marry a second wife during the lifetime of the first, the first wife could not enter a caveat, nor any other person except a parent or guardian. Again, with regard to the place where marriages might be celebrated by the present Bill, a building which had once been licensed for the purpose, no matter to what use it might thereafter be converted, would still continue to enjoy the same privilege, and what was still more strange, the ceremony might be performed by any person whatsoever. He would repent that, under the proposed measure, there was no protection against clandestine marriages. Under the present system the very solemnity of the rite formed a strong protection. He would feel it his duty, as the Bill proceeded, to show, to the satisfaction of the House, that it was eminently calculated to open a wide way for those clandestine alliances. He would wish to know whether the Bill intended to prohibit the publication of banns? [Lord John Russell: No.] He was glad it was not so intended, as it would, in some degree, do away with the established form of the Church of England; but there was this to complain of, that, besides the publication of the banns, the members of the Church of England were obliged also to give notice at the registrar's office. Why, in a measure purporting to be for the relief of Dissenters, introduce a clause which imposed a double burthen and a double obligation on members of the Church of England? Why compel members of that Church to pay twice for that ceremony? Why, greater evils were likely to ensue under this Bill than under the present Marriage Act.

Dr. Lushington

declared, he was not one inclined to oppose any provisions that could prevent clandestine marriages. He participated in the anxiety of the right hon. Gentleman, that every measure should be introduced into that House which should so far as possible protect the public against the occurrence of a mischief fraught with misery to families, and destructive of their domestic peace. Such were his feelings upon this subject; but he had long since come to this conclusion, that this was a matter of compromise. They could not invent a system that would be at the same time satisfactory, and prevent the recurrence of fraud. If they attempted to restrict that which ought to be free, which ought to be easy to every one of his Majesty's subjects, and, so far as was consistent, in which there should be a freedom and facility for forming the contract, they could not do that, and have every safeguard that might be desired. The right hon. Gentleman had declared, that there were safeguards under the present law, and compared them with the provisions of this Bill; and the conclusion to which the right hon. Gentleman had come was, that instead of this Bill giving securities, it fell far short of the securities at present existing. He was under the necessity of differing in opinion with the right hon. Gentleman. Under the existing state of the law the door was thrown open to clandestine marriages, and a person had only to desire a clandestine marriage, and nothing was more easily effected. The very statute which prescribed all the conditions upon which the right hon. Gentleman relied, contained a clause declaring, that if you disobey its provisions, still the marriage is equally good and valid, it having once taken place. At the present hour the banns were to be published on three suc- cessive Sundays, in both parishes in which the parties resided, if they were the residents of two separate parishes. Let them look at the consequence; a man went to the next parish, that was a populous one—if he lived in the neighbourhood, the facility of travelling brought him some seven or eight miles in a short time—it was easy for them to meet a friend, no difficulty interposed, he went to the clerk, he gave in the name to that clerk of the person who intended to many, the banns were published, and no living soul could say anything as to the marriage. The marriage took place, and it was held good in law, and it was incapable of being set aside. What then was the protection that had been so much relied upon? It was a protection in name, a security in words, and it afforded not the slightest degree of safety. So much, then, for the marriage banns. Let them look, then, to the state of the law at the time of Lord Hardwicke's Marriage Act. It was competent for any two persons, by a written contract, or simply by a promise before witnesses, followed by cohabitation, to contract marriage. That was the state of the law up to 1723. Lord Hardwicke's Marriage Act left banns very nearly as they were at the present moment. It was declared, that if one or two persons under age, and by whom licence was taken out were married, the marriage was to be null and void. What was the consequence? The matter went on until the complaints were so loud that the attention of the House was called to it. The House had to interpose, and by one of the strongest legislative measures ever passed, it rendered valid retrospectively the marriages that had taken place; it not merely rendered those marriages valid, but deprived of their vested rights, those whose interests arose in consequence of such marriages. These steps demonstrated that neither the Legislature nor the country could endure the restrictions imposed—that they were intolerable to the people, as the melancholy consequences he had stated originated in them. Lord Redesdale, with a laudable anxiety for preventing clandestine marriages, annexed conditions to the Act as it passed the House of Commons. When the Bill came down again to that House, he remembered that he strongly opposed those conditions, and he remembered that Mr. Canning said, that he would take the Act as it was, as he did not know that the Lords would pass another, and that the defects in the Act might be amended in the next Session. Now what was the consequence? Why, in the next Session, at the very commencement of it, he believed, a Bill was introduced to repeal these provisions, because they prevented the facilities to the solemnization of marriage. A Select Committee then sat on the subject of marriage for many months, and they were compelled to go back to the old law. But then again, as to marriages by licence, a person might go to any of the authorities who were empowered to grant licences—he might falsely swear he was of age—he might give false names in the case of himself and of the woman whom he intended to marry, and thus every facility was given for the promotion of clandestine marriages. For where was the protection of an affidavit in these cases? But it never could be intended to shackle the marriage ceremony. By the Bill now proposed, the parties would have to go before the Registrar. The Registrars, it was to be presumed, would be respectable men. [An Hon. Member observed, that the Registrars might abuse the power reposed in them.] It was to be presumed, that they would be well-conducted men. He believed that under the Registration Act, the guardians of unions would perform the duties intrusted to their care with accuracy and integrity. The right hon. Gentleman must be aware that this measure was intended to apply not only to members of the Established Church, but it was proposed to be extended to persons of all religious distinctions. They had endeavoured by one Act to meet the views and wants of all parties, and in so doing they had totally failed. It was impossible, by the agency of the publication of banns, to prevent clandestine marriages. He would admit, that in some cases the clergyman had objected to the solemnization of the marriage. Now he spoke from experience when he said, that the clergymen of the Church of England did not consider themselves authorized to defer a marriage if the banns had been published, or a licence were produced, unless there was something so extraordinary or conspicuous in the conduct or appearance of the parties as to induce them to pause—and such a case as this did not occur once in five years. From clergymen of the Church of England, who had applied to him, he knew that their impression was that it was their duty to proceed with the solemnization of the marriage. He had to observe, that it would be the duty of the Registrars under this Bill, and there were provisions expressly to punish them for neglect, to lake care that all the enactments were strictly carried into effect; and he believed it would be found that if the directions contained in this Act were strictly complied with, the consequence of the notice so given by the Registrar would be of equal force and effect as the present impediments thrown in the way of clandestine marriages by the existing law. It had been said, that this would be onerous upon the members of the Church of England. It was entirely at the discretion of the party whether the banns were published or not. One of the clauses of the Bill provided, that no person, vicar or curate, should be obliged to publish the banns for any persons whatsoever. He thought that the system of keeping open the books of registration would be found very efficient as a preventive of clandestine marriages. At the same time he cordially agreed with the right hon. Gentleman in a most earnest wish to provide every possible means of security towards that end, but if the Bill, as it stood, were defective in such particulars, the House would have every opportunity, when they got into Committee upon it, of supplying all that might be required.

Sir Robert Inglis

was glad to see that the present discussion had been conducted throughout without the occurrence of any observations inconsistent with the importance of the subject; and he trusted that nothing would fall from him which could be construed as irrelevant to the matter before the House. He begged, however, in limine, to make a solemn objection to the principle proposed to be recognised by this Bill that marriages could be celebrated by any other mode than as a religious act. He claimed on the part of the members of the Established Church, that they should enjoy the same privileges and ceremonies in respect to marriage as they did at present, and that new burdens should not be imposed upon them, for the sake of affording relief to the Dissenters. He thought a Bill might be framed for affording relief to Dissenters without the necessity of imposing any new burdens upon those who adhered to the doctrines of the Church of England. It was the duty of that House at the same time that they proceeded to inquire into and to redress the grievance complained of by the Dissenters from the Church of England, to remember that the latter were especially under the protection of the Legislature, and not to oppress them with a Bill of pains and penalties, such as the present would prove to be against them. The hon. and learned Gentleman who had just sat down had amply described the defects of the present system of marriages, but he had not replied to the objections of his right hon. Friend (Mr. Goulburn) to the defects in the present Bill, particularly that relating to the difficulty of entering caveats against marriages under the regulations proposed. He trusted, if the hon. and learned Member should rise again on the subject, he would take notice of his right hon. Friend's objections.

Bill read a second time.

On the motion that it be committed,

Sir Robert Peel

said, that whilst he was perfectly ready to concur in any measure which seemed likely to give satisfactory relief to the conscientious scruples of Dissenters, and whilst he fully concurred in the remarks of the hon. and learned Member for the Tower Hamlets as to the importance of guarding against imposition and clandestine marriages, at the same time he thought, that in giving relief to the conscientious scruples of Dissenters, the House should take especial care not to wound the feelings or offend the conscientious scruples of the members of the Church of England. He premised that it was proposed by the present Bill, speaking here apart from any consideration of the particular case of the Dissenters, to give the members of the Church of England, who, be it recollected, made no complaint of the present system of marriages, a new method of entering into the state of matrimony without the necessity for any religious ceremony. That was a provision which appeared to him perfectly unnecessary towards the main object of the Bill, namely, that of affording relief to the conscientious scruples of Dissenters. He should therefore give notice, that in the Committee on the Bill, he should call attention to that particular feature in its provisions, and take the sense of the House upon it.

Mr. Wilks

said, that the right hon. Gentleman had candidly made the declaration of kindly disposition towards the Dissenters of England, and he in return begged to disclaim any intention on the part of the Dissenters of imposing a Bill of pains and penalties upon the members of the Established Church. He conscientiously believed that the present measure would prove as beneficial to the interests and convenience of the members of the Established Church as to the Dissenters themselves.

Bill to be committed.