HC Deb 04 August 1862 vol 168 cc1199-204

said, he wished to ask a Question of the noble Lord upon a matter which he brought under the attention of the House at the same period last year. He believed that upon the last day of the last Session he asked whether the Government intended to take any steps to remedy the extraordinary contradictions in the marriage law of different parts of the kingdom. A recent case exhibited not only a different state of the law, but a different mode of judicature. He referred, of course, to the recent decision by the Lord Ordinary in the Yelverton Marriage Case. The Lord Ordinary of Scotland gave a decision at variance with the direct verdict of an Irish jury, composed one half of Protestants, and the other half of Catholics. The Lord Ordinary did not examine witnesses; but, having before him a mass of depositions, he ventured, upon that written evidence, to give an opinion upon a question of fact directly opposite to that at which twelve Irish gentlemen had previously arrived. He might also add, that the witnesses at the trial were examined and cross examined before the jury, and that such was the effect of the cross-examination of some of the witnesses, that the counsel who called them refrained from adverting to their evidence, so completely had it been destroyed; yet the same evidence was referred to by Lord Ardmillan, who did not see the witnesses. It was an extremely unfortunate state of the law, that in any part of the United Kingdom two adult persons—not children—should be able to come into a place of public worship, kneel down at the altar of God, make solemn vows upon such a solemn subject as matrimony (the man placing a ring upon her finger, and declaring that he would take the woman to be his lawful wife, and the woman declaring that she would take the man to be her lawful husband), and that such a ceremony should be called in question—not set aside—by the decision of a Scotch judge. He maintained that the law was eminently defective, and that the system of jurisprudence was likewise defective, and he asked the Government what steps they would take with regard to such a state of things. He saw present a right hon. and learned Gentleman who was well acquainted with Irish law, and also with this particular case, and he would like to know what was his opinion upon a case in which the majority of his country men took a most lively interest.


said, he thought the subject to which the hon. and learned Gentleman had called attention one of great interest. It was said by lawyers, perhaps ironically, that a man might have a wife in each of the three kingdoms, although polygamy was not permitted. The difference between the law in England and Ireland might be remedied, and there was a measure before the House which, with certain limitations and provisions, might have got rid of the difficulties which an old statute in reference to Ireland occasioned. But the decision to which the hon. and learned Gentleman adverted placed the law of marriage in a peculiar position. It was said that severe cases and great practical abuses sometimes led to an amendment of the law. What had happened in this case might happen again. A gentleman might be bound by the decision of a jury to support a lady as his wife in Ireland. The question might be submitted to the Court for its decision, and the Court be so divided as to make the verdict stand, which was exactly this case; yet in Scotland, in that same case, it might be decided that there was no valid marriage. The decision of the jury in the case mentioned, involved two questions, one of which might be said to be unnecessary—Was there a marriage by the law of Scotland, and was there a marriage by the law of Ireland? The question of a marriage in a foreign country when tried here became a question of fact; and upon that question the jury, having heard the evidence of Scotch lawyers as to what was the law of Scotland, were asked, did the parties consent and agree to be husband and wife, and was that consent followed by cohabitation? Upon the evidence the jury came to the conclusion that consent was given and followed by cohabitation, and they found therefore that by the Scotch law as explained to them there was, in fact, a Scotch marriage. With reference to the Irish marriage a different question was raised—whether the gentleman had sufficiently long professed the Catholic religion to make a mixed marriage between a Protestant and Catholic by a Roman Catholic priest a valid marriage. One question of great consequence was determined by the Scotch Judge. He had always understood that consent especially followed by cohabitation constituted a marriage by the law of Scotland. He did not know whether it was attributable to the metaphysical genius of the Scotch nation, or to the law of the country, that any doubt should be raised; but he could not understand how consent was less consent because the parties knelt down at the altar, and, in the presence of a priest, declared that each took the other to be husband and wife. How was that consent to be got rid of? Was it by the singular interpretation that grown people did not intend to mean what they said?—because if it was held that they meant what they said, and it was followed by cohabitation in Scotland as married persons, one would suppose that there was a Scotch marriage. A very important point arose for the consideration of the Government in reference to the decision of the Scotch Court. In Ireland the witnesses in the Yelverton case were examined vivâ voce in open court. It was a very long trial, and it lasted six days. In England, owing to improvements introduced of late years, evidence was now taken vivâ voce in the Probate Court and in the Divorce Court, and all the abuses of written evidence were put an end to. But Scotch gentlemen proceeded in this way:—They issued commissions, and under those commissions in England, in Ireland, and in Scotland a vast number of witnesses were examined and a mass of paper evidence obtained. But those witnesses were never seen by the Judge, and yet he came to the opposite conclusion at which the jury arrived who did see the witnesses, namely, that cohabitation in Ireland preceded the ceremony of marriage instead of following. Would they for a moment tolerate that a man should be tried for murder upon paper evidence? He would like to know what chance any man would have in Ireland if tried on paper evidence. Men would in writing state things which, when face to face with counsel in court, turned out to be very different indeed. Letters were criticised by the learned Judge in the absence of all explanations by the writer. In Ireland the writer was produced, and had an opportunity of giving explanations. That person bore an examination of two days without varying her testimony: but it was a melancholy and painful fact, that this test of truth was omitted in Scotland, and letters were quoted by the Judge which, unexplained by the writer, might change the whole aspect of the case. It was a case of great hardship to the unfortunate subject of this anomalous jurisprudence. In Ireland she was entitled to support as the wife of this gentleman, and in Scotland she was not a wife at all. Irrespective of all sympathy for this unfortunate lady, it was a matter for the consideration of the Law Officers of the Crown whether they could apply a remedy which might prevent such anomalies in the future. He agreed in the observation that it was a strange thing to find in any country a system of adjudicating on paper testimony, which could explain away the force and effect of facts deliberately affirmed by the jury to whom they were submitted. The imputations cast on those who tried the case were most unfounded and unjust; for no jury in the empire would have come to a different decision.


said, he would not follow the right hon. and learned Gentleman either in discussing the merits of the Irish trial, or the judgment in the Scotch Courts, arising out of the same transaction, inasmuch as the Scotch proceedings might be brought under review of the highest tribunal in the land, and nothing could be more improper than to discuss in that House whether this or that judgment was right or wrong. Apart from the circumstances of this particular case, which were very peculiar, and such as they might hope would not happen again, no person of candid and dispassionate mind could fail to see two things—first, the extreme desirableness of such a change as should, if possible, assimilate the laws of the three parts of the United Kingdom; and, on the other hand, the absolute necessity of consulting and considering upon such a subject the feelings and habits of the people in every portion of the kingdom. For his own part, he thought that the law of England on this subject was very satisfactory, and he should be well content to see it adopted throughout the United Kingdom; but to attempt to force it on Scotland or Ireland without regard to the feelings and habits of the people would certainly be impracticable. It would not, therefore, he thought, be advisable on the part of the Government to say more than that they were alive to the importance of the subject and the desirableness of taking such steps as might lead to the attainment of a wise assimilation of the laws of the three countries. The House was aware that a Member well able to deal with such a question—his hon. and learned Friend the Member for Belfast (Sir H. Cairns)—had brought in a Bill having reference to Ireland, and the Government were most anxious to give him all the assistance in their power; but the character of the measure introduced, no doubt after communications with various parties in Ireland, did not excite in him very sanguine hopes that we were extremely near to a complete identity of law in all the three kingdoms. It was necessary to proceed with great caution and care on the subject. All he could say was that the Government were most anxious to undertake the matter; and if they could not see their way to propose a measure themselves, they would certainly be ready to give all the assistance in their power to any Member who should frame and introduce a Bill on the subject.


also hoped the Government would take this important subject into consideration before the House met again; and he begged to suggest, that if a Bill were brought forward at all, the heads of the Church should be consulted as to its provisions; for they had reason to know that the late most rev. Primate of all Ireland felt some objection to the Bill of the hon. and learned Gentleman the Member for Belfast. He hoped Her Majesty's Government would bring in a Bill next Session, and that it would go as much as possible on the principle of regarding marriage in the light of a civil contract.