HC Deb 11 May 1836 vol 33 cc826-31

Mr. Lynch moved the third reading of this Bill.

Mr. Lefroy

rose to oppose the third reading, and objected to the House being called upon to pass a Bill for Ireland, which conferred a power on Roman Catholic clergymen which was not possessed by Roman Catholic clergymen in England, nor by Dissenting clergymen in either England or Ireland. He (Mr. Lefroy) had no objection to support a general Marriage Act for Ireland; but he could not give his sanction to a partial measure like that then under consideration, which professed to remedy one evil, whilst at the same time it introduced others of greater magnitude. The Bill then before the House went to repeal the only security which the Protestants of Ireland had for preventing clandestine marriages. The Marriage Act known in England as Lord Hardwicke's Act, did not extend to Ireland. The objects of that Act were, 1st, to prevent clandestine marriages, and, 2dly, to preserve the evidence of marriage with a view to civil rights. These objects were obtained in Ireland (though imperfectly), 1st, by the law of the Church, and, 2dly, by the provisions of the very Act of Parliament which it was now sought to repeal. The protection which the law of the Church afforded was as follows:—In the first place, no clergyman of the Established Church can celebrate a marriage without banns having been published, or a licence obtained; secondly, he can only celebrate marriage during certain hours; thirdly, he is precluded from celebrating marriage anywhere but in a place of public worship; and in the fourth place, he cannot celebrate a marriage between infants, or an adult and an infant, without the consent of the parents or guardian. These were the protections which the law of the Church afforded; and whilst this protection was afforded to the members of the Establishment by the law of the Church, it was of the utmost importance that a body of clergy not subject to the canons or authority of one church should not be invested with the power proposed to be given by this Bill. In order to give further protection against clandestine marriages, several Acts of Parliament were passed in Ireland. There was one class of statutes rendering it penal for a Roman Catholic priest to marry a Protestant and Roman Catholic, and there was the Act now sought to be repealed, invalidating such marriages, and this Act was grounded, as the recital states, upon the insufficiency of the others to prevent the mischief. Bills had been brought in of late years, either by the hon. and learned Member, or those with whom he acted, to repeal the first class of statutes, namely—all those which imposed a penalty for celebrating such marriages; and these Bills were passed into a law, so that the only remaining security left to the Protestants of Ireland was, the Act declaring the marriage invalid, and this it was now sought to repeal; and what was the argument for altering the law and putting it upon a different footing from that which it vested in England? The argument was this—that an Act of Parliament invalidating a marriage is inhuman, inasmuch as it leaves the really guilty party free, while the innocent offspring is visited with so severe a penalty. But did not this argument apply equally to the Marriage Act of England as well as to the law as it now existed in Ireland? Nay, did it not apply more strongly to the Marriage Act in England, which rendered void the marriage for mere informalities, of which the parties might not be aware. The object of this Bill was to introduce a state of law in Ireland, not only contrary to that which existed in England, but which it never entered into the mind of any man to propose to introduce into England; for neither the Bill for a new marriage law brought in by the present Government, nor that introduced by his right hon. Friend, the Member for Tamworth (whilst in office), ever contemplated allowing the clergy of any Dissenters, Roman Catholics or others, to celebrate marriages between members of the Establishment and others. He had lately heard a great deal of the importance of equal laws and equal justice for Ireland; and he, therefore, hoped his Majesty's Government would oppose this Bill as a violation of that principle. The right hon. Gentleman concluded by moving that the Bill be read a third time that day six months.

Colonel Perceval

seconded the amendment.

Mr. Lynch

said, the object of the Bill was to remove a defect in the marriage law in Ireland, which was productive of the most unfortunate consequences. As the law now stood a marriage between a Romanist and a Protestant, if celebrated by a clergyman of the former persuasion, was invalid. It frequently happened that villains took advantage of this law in order to gratify their base passions, and then abandoned their victims, who had supposed that they were legally married, to a life of shame, and bastardized their offspring. The marriage law in Ireland at the present time was in the same barbarous state in which the marriage law of England was previously to the introduction of Lord Hardwicke's Act. In Scotland, marriages between a Protestant and Roman Catholic were valid although celebrated by a Roman Catholic clergyman. Why should not that be the case in Ireland also? He called upon the House to pass the Bill, not for the sake of Roman Catholics alone, but of Protestants also, for both classes were equally interested in the question. What was the ground upon which the House was called upon to maintain the existing law? It was said that the alteration proposed by the Bill would, if carried into effect, give rise to clandestine marriages. Were those who urged that objection to the Bill aware what was the existing state of the marriage law in Ireland? Under the existing law, marriages could at present be celebrated during any hour of the day or night, and at any place whatever. If a man and woman should go before a Protestant clergyman in Ireland, at any hour of the day or night, and declare themselves to be man and wife, that was a valid marriage; but if the same declaration were made before a Roman Catholic clergyman the marriage was invalid. Now should this difference be allowed to continue? Did it not open a door for fraud and cruelty? No objection was made to clandestine marriages as long as the Protestant clergyman was engaged in celebrating them; but the moment the services of the Roman Catholic priest were placed in requisition, they became evils of great magnitude. In conclusion, he beseeched the House to pass the present Bill, by which a remnant of the barbarous penal code which had been applied to Ireland would be abolished, and all parties would be placed upon an equal footing.

Mr. Shaw

said, the marriage law in Ireland, generally, and the opposition made to that Bill, were both much misunderstood; he and his friends did not contend that the present condition of the law should continue; on the contrary, they were anxious for its improvement, and pressed on the law-officers of the Crown to introduce a general and impartial measure for that purpose; but the Bill then under consideration would render a bad law much worse, by removing the only practical check to that species of clandestine marriages the most likely to occur in Ireland, namely, those performed by Roman Catholic clergymen between Protestants and Roman Catholics; besides, it was a measure of very partial legislation, professedly, to relieve the Roman Catholics, and to leave all other classes as they were. The 12th George 1st had imposed the penalty of death both on the Roman Catholic priests and the degraded clergymen, for celebrating marriages between two Protestants, or a Protestant and Roman Catholic. The 19th George 2nd annulled the marriage, and the 33d George 3rd. inflicted a penalty of 500l. upon the Roman Catholic priest in case of his celebrating such a marriage. This pecuniary and capital punishment were held to conflict, and, at all events, to be unnecessarily severe; and Mr. Justice Perrin introduced an Act to relieve the Roman Catholic priest from the penalty; but that Act left the degraded clergyman subject still, in point of law, to the capital punishment, and, in fact, sentence of death had recently been recorded against a degraded clergyman under the statute of George 1st. Mr. Perrin expressly retained the law it was now sought to repeal, annulling the marriage, and the present Bill left all that was objectionable in that law still to operate against Protestants. Mr. Crampton, when Solicitor-General, had introduced a Bill, rendering the offence equally a misdemeanour in all clergymen, and he supported that Bill; but it did not satisfy hon. Gentlemen opposite, and it was lost. He then protested against the present Bill both on account of its partiality, and because it repealed a law which in practice operated to prevent clandestine marriages. It was no answer to him to say, that there might be clandestine marriages without any religious ceremony, because the feelings, the prejudices, and the habits of the people afforded great protection in that respect; and the argument, that it was the innocent offspring who suffered, went too far, for it would equally apply against any marriage law, and, indeed, did apply to other restrictions in this very Bill—he meant those which rendered any marriage invalid, unless celebrated between the hours of eight and twelve in the morning, and in a church or chapel which had been used for one year as a public place for Divine worship. Suppose, then, a marriage celebrated at half-past twelve o'clock, or in a chapel that had been open but for eleven months, the children would be equally innocent, and equally sufferers. Under all these circumstances, while he anxiously desired a revision and amendment of the whole marriage law in Ireland, he hoped the House would reject that Bill.

The Attorney-General

said, that he would briefly state the grounds upon which he gave his support to the Bill. He thought that Roman Catholic priests should be put upon the same footing as clergymen of other persuasions. His only objection to the measure was, that it did not go far enough; but because, from respect to the feelings, or, speaking more correctly, the prejudices of hon. Members opposite, the framer of the Bill had not carried its enactments far enough; but that was no reason why he should not support the measure as far as it did go. The marriage law in Ireland was nearly the same as that which existed in England previously to the passing of Lord Hardwicke's Act, when a contract per verba de praesenti was a marriage, as also was a contract per verba de futuro if executed. In Ireland a clergyman of the Presbyterian, Baptist, or any other persuasion, could celebrate marriage, not only between two of his own flock, but between one of his own flock and one of another persuasion, or between two strangers who did not belong to his flock at all. Roman Catholic priests ought at least to be placed upon the same footing as other Clergymen. According to the law in Ireland, any man and woman who declared themselves to be legally married before a Protestant clergyman, ipse facto became so; but if they (being each of a different persuasion), called upon a Roman Catholic priest to perform the ceremony according to the rites of his religion, it was no marriage at all, and the parties were held to be living in a state of concubinage. He would rejoice to see a general marriage law passed for England, Scotland, and Ireland; but, in the mean time, he could not object to apply a remedy to a specific evil. Upon that principle he gave the present Bill his support. He hoped that it would be carried into a law, and that it would be the precussor of a general law which would remove all the evils connected with the subject.

The House divided on the original question; Ayes 100; Noes 92.—Majority 8.

Bill read a third time.

List of the AYES.
Acheson, Viscount Macleod, R.
Aglionby, H. A. Macnamara, Major
Angerstein, John Mangles, J.
Baines, Edward Marsland, Henry
Baring, Francis T. Maule, hon. Fox
Barnard, E. G. Morpeth, Lord
Benett, J. Mosley, Sir O., bart.
Berkeley, hon. F. Musgrave, Sir R. bart.
Bernal, Ralph O'Brien, Cornelius
Bewes, T. O'Brien, W. S.
Biddulph, Robert O'Connell, D.
Bowring, Dr. O'Connell, J.
Bridgman, H. O'Connell, M. J.
Brotherton, J. O'Connell, Morgan
Byng, G. S. O'Conor, Don
Cave, R. O. O'Ferrall, M.
Chalmers, P. O'Loghlen, M.
Clive, Edward, Bolton Pechell, Capt. R.
Codrington, Sir E. Pendarves, E. W.
Collier, John Philips, G. R.
Crawford, W. S. Potter, R.
D'Eyncourt, C. T. Poulter, John Sayer
Dundas, J. D. Power, James
Ebrington, Lord Price, Sir R.
Ewart, W. Pryme, George
Fazakerley, N. Pusey, Philip
Fergusson, rt. hon. C. Rolfe, Sir R. M.
Fielden, J. Rooper, J. Bonfoy
Gillon, W. D. Rundle, J.
Harcourt, G. Russell, Lord John
Hawes, Benjamin Russell, Lord Charles
Hay, Sir A. L. Ruthven, E.
Hector, C. J. Scott, Sir E. D.
Hindley, C. Scott, James W.
Hodges, T. L. Scrope, George P.
Horsman, E. Seymour, Lord
Howard, P. H. Sharpe, General
Hume, J. Stanley, E. J.
Hutt, W. Steuart, R.
Lee, John Lee Strutt, Edward
Lefevre, C. S. Stuart, V.
Lemon, Sir C. Talbot, J. Hyacinth
Lennox, Lord G. Thompson, Col.
Lennox, Lord A. Thorneley, T.
Troubridge, Sir E. T. Wilbraham, G.
Tulk, C. A. Williams, W.
Villiers, C. P. Wrightson, W.
Wakley, T. Wyse, Thomas
Warburton, H.
Wason, R. TELLERS.
Westenra, H. R. Campbell, Sir J.
White, Samuel Lynch, A. H.
List of the NOES.
Alsager, Captain Hawkes, Thos.
Ashley, Lord Hayes, Sir E. S. bart.
Bagot, hon. W. Jackson, Sergeant
Bailey, J. Jones, Theobald
Baillie, H. D. Irton, Samuel
Baring, F. Kearsley, J. H.
Barneby, John Kerrison, Sir Edwd.
Bateson, Sir R. Lawson, Andrew
Becket, Sir J. Lefroy Anthony
Bell, Matthew Lefroy, Thomas
Bonham, R. Francis Lewis, Wyndham
Bramston, T. W. Lincoln, Earl of
Bruce, Lord E. Longfield, R.
Bruce, G. L. C. Lygon, Hn. Col. H. B.
Calcraft, J. H. Manners, Lord C.
Chandos, Marq. of Maunsell, T. P.
Chaplin, Col. Miles, Philip J.
Clive, hon. R. H. Mordaunt, Sir J. bart.
Compton, H. C. Nicholl, Dr.
Conolly, E. M. Packe, C. W.
Corry, hon. H. T. L. Palmer, Robert
Dalbiac, Sir C. Parker, M.
Dottin, Abel Rous Patten, John Wilson
Duffield, Thomas Peel, Colonel J.
Dunbar, George Plunkett, R.
Duncombe, hon. A. Pollen, Sir J. bart.
Eastnor, Viscount Praed, James B.
Egerton, Wm. Tatton Praed, W. M.
Elley, Sir J. Pringle, A.
Elwes, J. Richards, J.
Entwistle, John Ross, Charles
Estcourt, Thos. G. B. Rushbrooke, Col.
Fleming, John Sanderson, R.
Forbes, Wm. Sheppard, T.
Freshfield, James W. Smyth, Sir G. H., bart.
Gaskell, J. M. Somerset, Lord G.
Gladstone, Thomas Stanley, Edward
Gladstone, Wm. E. Thomas, Colonel
Goodricke, Sir F. Trevor, hon. G. R.
Goulburn, Sergeant Tyrrell, Sir J.
Greville, Sir C. J. Vivian, John Ennis
Hale, Robert B. Vyvyan, Sir R. R.
Halford, H. Wilbraham, hon. B.
Halse, James Young, J.
Hamilton, Lord C. TELLERS.
Hardinge, Sir H. Shaw, Frederick
Hardy, J. Perceval, Col.
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