HC Deb 14 May 1861 vol 162 cc2052-66

said, he rose to call attention to a subject which affected the social relations of a large number of the people of the sister country, and one upon which a strong feeling, as evidenced by the numerous petitions which had been presented to the House, prevailed—the marriage law of Ireland. He might at the outset usefully state what were the points which he did not propose to be considered by the Committee which he should ask the House to appoint. Questions had been raised at various times as to the jurisdiction of the Court of Divorce in England over domiciled Irish subjects, and some persons desired that the jurisdiction of the Divorce Court should be extended to Ireland. With that question he did not propose to deal upon that occasion, as he had been informed a Committee of the other House was already engaged in the consideration of it. He wished also to state that the Motion with which he should conclude did not originate from a recent trial in Ireland which had attracted much public attention, as he had intended to have brought forward this subject in the last Session of Parliament, but was prevented by accidental circumstances. The points raised by that trial were very important in themselves, but they were but a fragmentary portion of the subject which he should present to the House. He might, no doubt, be met by the argument that in proposing to deal with the marriage law of Ireland it would be useful to inquire into the marriage laws of the three countries, with a view to assimilate them. He would frankly state the view which he held on that question. He quite agreed that in the abstract nothing could be more desirable than a uniform marriage law for the three countries. But, on the other hand, in that case as in others, they ought not to sacrifice what was within our reach for something that was in the abstract plausible, but which, in fact, would be very difficult in execution. When the House remembered what had been the state of the marriage law in Scotland from time immemorial, what was the state of the common law of Scotland with regard to marriage, the regulations that have been added from time to time to that law, and remembered also the tenacity with which the people of Scotland had adhered to their own system of law, the House would see that an endeavour to conduct the inquiry with the view of assimilating the marriage law of the three countries would raise a strong hostility in Scotland against any measure founded upon the inquiry, and thus obstruct the wholesome regulations he proposed to introduce with respect to Ireland. He must also state that he had no suggestion to make as to any alteration of the law of marriage as applicable to the members of the Established Church in Ireland. It was essentially the same as that of the Church of England, requiring the publication of banns or a license; in that system he did not think any alteration could profitably be introduced. He believed that all the matters essential to a good system of marriage law were to be found in the system of the Established Church of England and Ireland. These essentials were—to guard against the existence of any legal impediment to the contract; that was gained by previous publicity or a system of licences. The second essential was to give such a reasonable delay, during the process of the contract, that there should be no danger of too hasty or precipitate celebration of the marriage. The third point to he aimed at was that while there should be no desire to force on parties who were content with a purely civil contract the obligation of performing a religious ceremony, yet to afford facilities for and if possible encourage the religious observance. And once the marriage had been celebrated, be the forms what they might, it should be perfectly certain in its effect, and it should not be left liable to be invalidated at a future time on the ground of the absence of some points of form. For that reason it was essential that the fact and the proof of the marriage should be preserved. The last element in a good marriage law was that the means of celebrating the marriage should be convenient. The marriage law of the Established Church included all these elements, and it had worked extremely well both for England and Ireland. But he now came to the real cause of his motion—the position with regard to the law of marriage of those in Ireland who were not members of the Established Church. What was the position in this respect of those who were called, though somewhat incorrectly, Protestant Dissenters? So long ago as 1781 a short and simple Act was passed by the Irish Parliament providing that a marriage between Protestant Dissenters, celebrated by a Dissenting Minister, should be valid to all intents and purposes. That was the law from 1781 to 1844. For sixty years the Protestant Dissenters in Ireland had acted on that statute. That Act, however, was defective in one respect—that it did not provide the means of publicity with respect to marriages intended to be solemnized. The House might ask how it happened that that statute was not now the law? The reason was somewhat singular. It came to pass that the Presbyterian Ministers of Ireland had been acting on the belief that the law enabled them to celebrate what were called mixed marriages, or marriages between persons who were not both Presbyterians. In 1842 an indictment was tried at an assizes in Ireland for bigamy. It turned out that the first marriage had been a mixed marriage and was celebrated by a Presbyterian clergyman. An objection was taken that that was not a marriage at all; and the Court decided that it was invalid. The case was carried by appeal to the House of Lords, and though their Lordships were divided in opinion the decision of the House was that the marriage was invalid, and they must consequently take the law to have been then settled—namely, that a mixed marriage could not be celebrated under the statute of 1787. No one had doubted that Methodists, Baptists, Independents, and seceders of every kind had, before this decision, been entitled to the benefit of the Act. It had even been held that the Act enabled a Dissenting minister to celebrate marriages between a Dissenter and a person of the Jewish persuasion, though it was difficult to see how Jews could be considered Protestant Dissenters. After the decision of the House of Lords the Legislature was compelled to take some steps in the matter; and if the legislation of 1844 had merely dealt with the difficulty that had arisen with regard to mixed marriages, no one would have had cause to complain. But what was called the Irish Marriage Act of 1844 went further than this; it left almost exclusively to the Presbyterians a system that had worked satisfactorily enough for them alone. The Lord Lieutenant was empowered to appoint a clerical licenser for that body, and their ministers could marry Presbyterians either by banns or licence, and could celebrate mixed marriages if a licence were previously procured. That system worked well enough for the Presbyterian body, and they did not complain of it, with one exception. There was a section of the Presbyterians, supposed to be lineally descended from the Covenanters of Scotland, who held the opinion that it was not lawful to receive any authority in a matter of spiritual jurisdiction from the civil power. They objected, therefore, to the licensing clergyman holding his appointment from the civil authorities; and, as far as they were concerned, the Act did not provide any ecclesiastical means by which they could celebrate their marriages. With regard to some other Protestant Dissenters, when the Act of 1781 was repealed, no power corresponding to that which they possessed under it was conferred upon the ministers of these various denominations. Instead of the power which prevailed before as to the celebration of marriages among their own flock, there was introduced into Ireland for the first time a system, founded on one which had prevailed for a few years in England, which provided that the mar- riages of parties connected with these denominations should be celebrated as a civil contract at the registrar's office. Let him take the case, say of two parties belonging to the Methodist persuasion, and see how they would be affected by the law as it stood before, and as it stood after the Act of 1844. Before that Act all the parties had to do was to apply to the clergyman of their own denomination, informing him of their wish, and he had full power to perform the ceremony. But what was the case afterwards? The only means they had of celebrating marriage was to go before the registrar, and give him notice as if they desired to enter into a civil contract only. The registrar was then bound—though the House would hardly believe it—to transmit that notice to the clerk of the Poor Law Union, to be read in three successive weeks at the meeting of the Poor Law Guardians. Whatever the rank in life of the parties might be, however they might be independent of the Poor Laws, their only course was to go through this process. That was not all. After that they might, if they pleased, be married in their own place of worship, but only on condition that the registrar should be there and make himself the chief man in the ceremony. In a large district where there was but one registrar this was very inconvenient, besides which his presence entailed additional expense; but, worst of all, in the certificate which was afterwards given of that which the parties desired to consider a religious ceremony the registrar stated that he was the person who had married the parties. The result of the difficulties thus thrown by the Legislature in the way of those who wished to super add to a civil contract a religious ceremony was shown by a remarkable fact related to him by the minister of one of these denominations. He had under his charge 5,000 persons, and had been their minister two years, during which the full proportion of marriages took place among them, yet during the whole time he only celebrated two marriages. The fact was that the difficulties were so great in getting registrars to attend the place of worship and in going through the other formalities, that the parties in despair were driven to the simple process of entering into the registrar's office without any religious ceremony at all. He took it for granted that that was not a state of things which the House would desire to perpetuate, unless it was absolutely necessary to do 80. In moving for a Com- mittee on the subject it would not be proper for him to indicate any particular method by which this inconvenience should be remedied. It would be the business of the Committee to consider whether or not, as the Legislature in 1844 thought fit to adopt a different course with regard to Presbyterians, it might not by some analogous mode meet the natural objections of other bodies of Protestant Dissenters. He was very glad to find that the Presbyterians, who had a system with which they were satisfied, did not look in any selfish spirit on the movement originated by other Protestant Dissenters; but, on the contrary, were willing and even anxious that the facilities and privileges which they possessed should be granted to others. Another subject which the Committee might well inquire into would be whether it was absolutely necessary with regard to a clerical licenser that he should hold office at the will and pleasure of the Lord Lieutenant, there by depriving a large body of Protestant Dissenters of a privilege of which, otherwise, they would be extremely glad to avail themselves? As to marriages at the registrar's office, great complaint was made, not of the way in which the registrars performed their duties, but of the system. That system was introduced in order to relieve persons who objected to the religious ceremony from the necessity of undergoing the ceremony. The Legislature did not desire to do away with publicity, but what had been the working of the provisions introduced in order to insure publicity? The registrar's notice was to be read at three successive meetings of the Poor Law Guardians. But the form of reading over a number of these notices just before or just after the business, especially if the notices were numerous, was a pure form, and conveyed no publicity either in respect to the guardians or the rest of the community. The absurdity of the case, however, did not rest there, because when there were no meetings of the guardians there was no notice, and publicity, therefore, depended on the accident of whether there were meetings or not. After the three weeks had expired the Act required that the marriage should celebrated in the registrar's office with open doors and before two witnesses. Practically speaking, these marriages were performed in the back room of a shop, and, though the door of the shop might he open, to say that the public knew anything of what was going on inside was a large de- mand on public credulity. The Committee would probably inqure whether some more effectual publicity could not be secured for rcgistrars'marriages—whether in the shape of publication in the newspapers he did not know—but, at all events, in some way. Another subject of complaint, and which might form a subject of inquiry, was that provision in the Act of 1844, which required that a licence given by the registrar to celebrate a marriage should be accepted by the clergman of the parish, or any other minister of the Established Church, and that not only he might, but he must, celebrate the marriage. Although the clergyman might be perfectly aware of some impediment which ought to prevent the marriage, he had no option in the case, he was obliged to accept the licence, although in the English Act it was only provided that the clergyman might accept it. His sketch of the marriage law of Ireland would be still more imperfect than it was if he omitted all reference to a large portion of the population, the Roman Catholics. The position of the Roman Catholics was somewhat peculiar. In some respects the Roman Catholics had much greater liberty as to marrying than any other classes in Ireland, while in other respects they were subjected to difficulties under which no other classes laboured. By the common law of the kingdom, as the House were aware, a marriage celebrated by a priest episcopally ordained was perfectly valid, and, therefore, in any case where an Act of Parliament had not stepped in and curtailed the power of the priest he might celebrate a perfectly valid marriage at any time or place he thought fit. In regard to marriages between two Roman Catholics there was no law which interfered with or curtailed in the least the power of a Roman. Catholic priest to celebrate. So that, putting aside the internal regulations of the Roman Catholic Church, a priest might choose his own hour, or day, or place; he did not require registrar, or banns, or witnesses, nor need he make any record of what he had done. In practice, however, he was happy to say there were not those irregularities which from the licence of the law might be expected, and in 99 cases out of 100 publicity and notice were required. He entertained, no doubt, therefore, that if reasonable regulations were presented to the heads of the Roman Catholic Church for securing due order and publicity, as well as the peculiar solemnity they attached to marriages, they would be willing to accede to them. As to mixed marriages between one person who was a Roman Catholic and another who was not, the Legislature had interfered with the common law right of the priest to celebrate these marriages. An Act of Parliament was passed more than 100 years ago which provided that any marriage celebrated by a Roman Catholic priest between parties, one of whom, at any period within twelve months before, should have professed himself or herself to be of the Protestant faith, should be a void marriage. He wished to speak with all respect of the Acts even of an Irish Parliament, but he thought that if the ingenuity of Parliament had been directed to attain the greatest maximum of absurdity they could not better have succeeded than in this Act. It was impossible that one of the parties should know whether at any time during the twelve months the other party had professed the Protestant religion, and thus the clement of certainty was done away with. Let them fix whatever formalities might be thought requisite, but when once a marriage was celebrated let it not be annulled and the children bastardized on account of circumstances not within the control or even knowledge of both the parties. He would suggest, and, perhaps, the Committee might think it right to act on the suggestion, that the Roman Catholic priests should be placed exactly an the same footing as ministers of other denominations, and be allowed to celebrate mixed marriages like other ministers, with due publicity and notice. The hon. and learned Member for Cork had given notice of an Amendment to his Motion, to the effect that a Royal Commission should be appointed to consider the marriage law of the three kingdoms. He hoped, however, that he would not persevere with it. The effect of that extensive inquiry would be that the marriage law of neither of the three kingdoms would be dealt with. It was impossible, too, that the same confidence could be felt by the different denominations in the Members of a Commission, which must necessarily be limited, as in the members of a Committee, which would be more numerous. A Commission, too, would be the most expensive mode of proceeding, and would prevent any legislation this Session. He hoped, therefore, that the hon. and learned Member for Cork would also on reflection withdraw his Amendment. There were several Bills coming before them, professing to deal with this subject, but he ventured to say that the House would not be likely to dispose of any of them satisfactorily till the matter was more fully inquired into.

Motion made, and Question proposed, That a Select Committee be appointed, to inquire into the Law affecting the contracting and celebration of Marriage in Ireland.


said, there had never been any genuine law of marriage in Ireland. It had been his good or ill fortune to bear a part in the Irish Courts, in most of the cases to which his hon. and learned Friend had referred, and particularly in that case of bigamy. The question was raised as to what was the common law of marriage in England, and nothing gave him more satisfaction than to learn that the Scotch doctrine, which had got into the head of the accomplished Lord Stowell, was not the law of England. When they looked back to history, they found that marriage was always connected with Christianity, and the Saxons, besides the custom of having the priest to bless the union, took the precaution to have part of the ceremony at the church-door. It was Chaucer who wrote— A woman she was the most discrete alive, Husbondes at chirche-dore had she had five. It was done that the neighbours might see her face, that no pretender should be put forward afterwards, and that she should have dower if she outlived her husband. Every departure from the good old common law of England led them more or less into difficulties. He admitted that in the course of argument in Ireland it was asked what was to be done with Jews and Quakers? The only answer that could be given was that the common law was not made either for the one or the other. There was an elaborate judgment by Chief Justice Tindal, and all the Judges summoned to the Lords concurred in holding that Lord Stowell was in error. The first thing which Parliament did was to pass a short Act declaring those marriages valid which had been celebrated by the Presbyterians under a misapprehension of the law. The result of the matter was that Episcopalians married in church, as all sensible people ought to be, were all right, and that by the 7th and 8th Victoria provisions were made for the marriages of Presbyterians. Two other classes remained. First, the Dissenters, particularly the sturdy Covenanters, who would not yield to any civil authority in matters of this kind, and provision must be made to meet their conscientious scruples; and, secondly, the Methodists, who also objected to the 7th and 8th Victoria, required to have their scruples regarded also with tender care. The great question still remained—what was to be done with the marriages of Roman Catholics? Questions upon such marriages arose in every conceivable form. Judges would not receive the certificate of a priest, because no legal obligation was cast on him to preserve a register. The certificate might be considered by a jury as moral evidence of a marriage, and one of the advantages of trial by jury was that when juries found laws which they did not like they very soon impressed upon the Legislature their opinion of their unsoundness. The Roman Catholics were in a worse position, although they were the most numerous body of inhabitants in Ireland, than even the Jews, who were infinitesimally small, or the Quakers, who were getting fewer and fewer every day. He regretted to say that by an Act passed by the Irish Parliament, who made some good laws, and some very indifferent laws, though two people should be willing to marry and go before a priest intending to marry—yet if one of them had within a year before professed to be a Protestant the marriage was void. He had heard a lady asked whether the gentleman whose marriage with her was in question had professed himself to be a Roman Catholic, and she very properly replied, "If you mean by professing, did he declare himself to be a Roman Catholic, he did; but if you mean, did he believe the articles of the Roman Catholic religion, as I cannot read the heart of man, I cannot say whether he did or not." It was very easy to criticise a jury for their verdict, But it seemed to him to be a very sensible thing for a jury to say, "If in order to perfect a marriage you declare yourself a Roman Catholic you must be bound by what you represent yourself to be, and we are ready to believe you to be the person who you said you were." The clergy of the Church of Rome were the obstacles to an alteration of the law, They had now the power to marry at any hour of the day or night persons of any age. There was no protection against clandestinity, or in favour of infancy, and as our law did not recognize the Council of Trent, which required two witnesses at any marriage of Roman Catholics, a marriage without was as good as a marriage with witnesses. He could conceive no more easy solution of this very delicate and important question than to confer on the clergy of the Roman Catholic Church all the advantages and privileges which satisfied the clergy of the Church of Scotland; and if they had other demands within the bounds of reason, it was their duty to receive them with respect and deference. It would be for the right hon. Gentleman the Chief Secretary to consider whether they should adopt the suggestion of his right hon. Friend and deal at the same time with the question of registration. One word as to the alarming Amendment of the hon. and learned Member for Cork (Mr. Scully). He was afraid that that Amendment would open up the large question which would ultimately, it was true, have to be taken up, to determine whether a man, instead of being comforted by one wife, might have the advantage of having three wives—one in England, one in Ireland, and one in Scotland. Formerly the law of England did not recognize the jurisdiction of the courts of Scotland when they annulled a marriage on the ground of adultery. That state of things had been since altered, but the law as it now existed in England did not extend to Ireland, the consequence was that a man might possibly have three wives at one time. A sufficient penalty in itself it might be, but an anomalous state of the law. That, however, was a different question, which must be taken up at another time, together with the question of the law of divorce, and, therefore, he trusted that his hon. and learned Friend would not press for an inquiry into the whole of the marriage law of the three kingdoms on that occasion.


said, he proposed his Amendment in order to give to the inquiry a more extended bearing and practical character. He understood from the reply which he received from the right hon. Gentleman the Chief Secretary for Ireland some time back that there was no prospect of legislating on the subject during the present Session. No time would, therefore, be lost in remitting the inquiry to a Commission instead of a Committee. The whole of the Irish business of the Session was now before Select Committees, and if another Committee were to be added to the number, Irish Members could only manage to attend by dividing themselves into half a dozen halves. It would be better at once to establish a little Irish Parliament by consolidating the various Committees into one, with leave to all Irish Members to sit upon it. The Amendment of the law as to mixed marriages in Ireland ought certainly to he dealt with before the registration of births, deaths, and marriages, and he believed that that was the view of the right hon. and learned Gentleman opposite, as well as of the Statistical Society of Dublin and other authorities. If the right hon. Gentleman the Chief Secretary for Ireland would give an assurance that the labours of the Select Committee now proposed should be concluded and legislation on the subject undertaken before the close of the Session there might be some argument in favour of the Motion of the hon. and learned Member for Belfast; but if such an assurance was withheld it was desirable that a Commission should be appointed to inquire into the Marriage Laws of the three parts of the kingdom. It was no less important that they should learn exactly what the law of Scotland was on that subject than the law of Ireland. He certainly should not like a son of his, at a marriageable ago, to visit Scotland without being thoroughly aware of the law of marriage in that part of the kingdom. Indeed, be believed the risk of his getting into difficulties through the peculiarities of the Scotch law was so great that he would rather not have him go there at all. A Commission could conduct the investigation, as was now commonly done, by means of printed interrogatories and written replies, quite as cheaply and more effectively than a Committee, and its Report would carry more weight with it.

Amendment proposed, To leave out from the word 'That' to the end of the Question, in order to add the words 'an humble Address he presented to Her Majesty, praying, that She will be graciously pleased to issue a Royal Commission, to inquire into the Marriage Law of England, of Ireland, and of Scotland respectively,'"—instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."


said, that he did not intend to object to the proposal which had been made by his hon. and learned Friend the Member for Belfast (Sir Hugh Cairns), and, therefore, he hoped that his hon. Friend the Member for Cork (Mr. Vincent Scully) would not press his Amendment to a division. All that be bad previously stated with regard to this matter was that he did not think it advisable to intro- duce into the measure establishing a registration of births, deaths, and marriages, a provision for the repeal of the Act of George II., prohibiting mixed marriages, and that if it were proposed to repeal that Act the House would find that it could not deal with that question entirely by itself. He thought that that statement had been fully justified by what was then occurring. The question for consideration was what was it most expedient for the Mouse to do with a view to early and practical legislation in the course of the present Session? The Motion of his hon. and learned Friend limited inquiry to the law of marriage in Ireland, and surely such a proposal had, primâ facie, an advantage over one which would involve an inquiry into the law of England, with which no one was dissatisfied, and into that of Scotland, any interference with which would excite much jealousy and alarm in that country. If, then, they wished to accomplish anything practical with respest to Ireland, they should decline to embark in the more extensive inquiry. The history of the marriage law in Ireland was mostly this:—Up to the year 1844 marriages in Ireland were, with two exceptions, as to which there existed statutory regulations, entirely subject to the common law. One of these exceptions was the legislation which for reasons now happily condemned on all sides was intended to prevent the celebration of marriage between a Roman Catholic and a Protestant; and the other the Act of 1781, which, dealing with all Protestant Dissenters as a single body, legalized all marriages among them which were celebrated by their own clergyman. In other words, all marriages celebrated by a clergyman in holy orders of our own or of the Roman Catholic Church were valid, and all others invalid. Under these circumstances the wisdom of the Legislature intervened, and the Act of 1844 was passed which substantially extended to Ireland, as regarded Protestants, the law which was in existence in England. There was, however, this distinction, that it intended to give to the Presbyterians, who formed the great bulk of the Protestant Dissenting population of Ireland, by the creation of licensing ministers or surrogates, the same advantages which were enjoyed by the Church. He understood that the Motion of his hon. and learned Friend had for its object to ascertain whether these advantages might not be extended as so as to include other religious bodies; and thus, by various de- tailed arrangements, which might properly be considered by a Committee, to enlarge the policy and extend the utility of the Act of 1844. That was the ground on which he cordially concurred in the Motion for a Committee to ascertain whether it was necessary to continue to exclude from the benefits of that Act certain persons who desired to have those benefits, and whose conscientious feelings were entitled to every attention. The hon. and learned Member for Belfast was also willing that the Committee should consider how the disability under which the Roman Catholic clergy laboured in respect to the celebration of mixed marriages could best be removed. There was, however, no reason for embarking in that larger investigation into which the hon. Member for Cork's Amendment would carry them. Then came the question whether there was any prospect of useful legislation on that subject this Session. There could not be a greater evil to a community than the absence of an efficient system of recording all the domestic facts of life, and it was to furnish an uniform mode of registration that the Bill now under the consideration of a Committee had been introduced. Another measure had also been brought into the House of Lords to render it no longer impossible for the majority of the people of Ireland to celebrate mixed marriages. It was most desirable that that measure, when it came down to that House, and the kindred questions connected with it, should receive a calm and dispassionate consideration; and that object was most likely to be secured by the Bill being referred to the proposed Committee, on which all parties would be fairly represented. By that means be hoped to see the remaining portion of the penal laws, which both sides desired to see amended, no longer disfiguring the statute book.


said, the announcement of the right hon. Gentleman the Chief Secretary for Ireland would give great satisfaction in the north of Ireland, and he thought a Select Committee was the proper tribunal to deal with the question, which was one of the greatest importance.


said, that the great difficulty which existed in the way of the mixed marriages was, that in the present state of the law, a marriage by the Roman Catholic clergymen between persons professing the Catholic religion was valid if celebrated at any time, and any place, and without the presence of witnesses. If mixed marriages were to be placed on the same footing, then the same amount of uncertainty and confusion would exist as at present in the existing marriage law of Ireland.


said, he approved of the appointment of the Committee, as he believed it to be calculated to put an end to a grievance which has existed for many years in Ireland, in connection with the marriage laws of that country.


expressed his readiness to withdraw the Amendment.


said, that he hoped no attempt would be made to inquire into the religious professions of persons about to be married, as among the Nonconformists no questions of the sort were asked of persons desirous of having the marriage ceremony performed.


said, that on the part of the Roman Catholic bishops and the clergy of Ireland, he must protest against the appointment of the Committee, and stated that the proposition had created great alarm and anxiety throughout the country.

Amendment, by leave, withdrawn,

Main Question put, and agreed to

Ordered, That a Select Committee be appointed, to inquire into the Law affecting the contracting and celebration of Marriage in Ireland.