§ Order for Second Reading read.
§ MR. MONK
, in moving that the Bill be now read the second time, said, that be regretted that the subject of the legal time for the publication of banns had not been brought under the consideration of the House by some more able and experienced Member than himself. It was with great reluctance and diffidence that he had asked leave to introduce this Bill. His hon. and learned Friend the Attorney General would, he was sure, bear him out in the statement that he had had no intention of moving further in the matter than by drawing the serious attention of the Government to the great danger and evils which might ensue from leaving the question in its present unsettled and unsatisfactory state. Indeed, from the reply given to him by his hon. and learned Friend, he had every reason to hope and believe that the Government would shortly after Easter have brought in a Bill to set at rest all doubts on the subject. It would be within the recollection of the House that the Attorney General stated that, although different views had been entertained by persons entitled to express an opinion on the subject, he had never entertained any doubts himself as to the proper time for the publication of banns. He (Mr. Monk) trusted that in the course of the debate the House and the country would have the advantage and the satisfaction of receiving an authoritative statement on that point from the Law Officers of the Crown, although for his part he did not believe that any hon. and learned Gentleman would rise in his place and affirm that publication of banns was legal at any other time than after the Second Lesson in the Morning or in the Evening Service. It was therefore with considerable regret that he learnt from the right hon. Gentleman the Member for the University of Cambridge that the question would probably be relegated to the Royal Commission on Ritualism — a proceeding which would necessarily entail considerable delay. One course only remained to him—namely, to bring in a Bill. He did so with reluctance, but without hesitation, on public 927 grounds and as a public duty. He felt that in so doing he was taking upon himself a duty appertaining to the Government rather than to a private Member; but he trusted that the great importance attaching to the law of marriage and to the validity of marriages solemnized in the face of the Church would be deemed a sufficient justification for him in endeavouring to set at rest all doubts upon the subject.
The object of the Bill was threefold:—First, to declare the legal time for the publication of banns, as fixed by the statute law of the realm. Secondly, to validate marriages which might be held to be null and void on the ground of the banns having been published at another time than that directed by the Marriage Act of Geo. IV. Thirdly, to relieve clergymen, who had knowingly solemnized marriages after such undue publication, from the serious penalties to which they would be liable of transportation or penal servitude under the 22nd section of the Marriage Act. At the outset he would remind the House that the mere interpretation of a statute was in no respect a question of Ritualism. It was purely a constitutional question. Per se it had nothing to do with Rubrical controversies, as he would presently explain to the House. All that was asked for was an authoritative declaration of the law in order that the clergy might know what the law was, and so be able to obey it. If, then, the Royal Commission should deem a change in the time of publication desirable, or if a large body of the clergy wished for an alteration in the law, a proper time and occasion would be found for proposing such change. He merely asked the House to place its own interpretation upon certain words in an Act of Parliament, which it had passed, and which regulated the law of marriage in this country. For his own part, he should studiously abstain from expressing any opinion whatsoever as to the best time for the publication of banns. He would now briefly refer to the law as it applied to marriage by banns. Marriages in Churches are now regulated by 4 Geo. IV. c. 76. Section 2 enacts that—All banns of matrimony shall be published in an audible manner in the parish church, or in some public chapel, in which chapel banns of matrimony may now or may hereafter be lawfully published, of or belonging to such parish or chapelry wherein the persons to be married shall dwell, according to the form of words prescribed by the Rubrick prefixed to the Office of Matrimony in the Book of Common Prayer, upon three Sundays preceding the solemnization of marriage, 928 during the time of Morning Service, or of Evening Service (if there shall be no Morning Service in such church or chapel upon the Sunday upon which such banns shall be so published), immediately after the Second Lesson. … And that all other the rules prescribed by the said Rubrick concerning the publication of banns and the solemnization of matrimony, and not hereby altered, shall be duly observed.These words were almost identical with those used in 26 Geo, II. c. 33. s. 1, which he might designate as the first Marriage Act.
Prior to March 25, 1754, the publication of banns was regulated by the Rubrics of the Book of Common Prayer, which had been adopted and subscribed by the clergy of both provinces, and of both Houses of Convocation, in December 1661, and was confirmed and ratified by Parliament in the following year by the 13 Car. II. c. 12., commonly called the Act of Uniformity. This Prayer Book was known by the name of the "Sealed Book." He (Mr. Monk) had had the advantage of examining a copy of the Prayer Book in the British Museum, which had been carefully collated with the "Sealed Book" in the Tower of London. From that Prayer Book he had copied the Rubrics relating to the publication of banns. The Rubric immediately following the Nicene Creed was—Then the Curate shall declare unto the people what holy=dayes or fasting=dayes are in the week following to be observed. And then also (if occasion be) shall notice be given of the Communion; and the banns of matrimony published; and briefs citations and excommunications read. …. Then shall follow the sermon or one of the homilies set forth, or hereafter to be set forth by authority. Then shall the Priest return to the Lord's Table and begin the offertory, saying one or more of these sentences following.Turning, then, to the Form of Solemnization of Matrimony, they would find in the Rubric preceding it—First the Banns of all that are to be married together must be published in the Church three several Sundaies or holy=daies in the time of Divine Service, immediately before the sentences for the offertory.He would call the attention of the House to the remarkable fact that the injunctions of these two Rubrics were wholly inconsistent one with another. That following the Nicene Creed directed banns to be published before the sermon or homily, while the Rubric prefixed to the Marriage Service, which, he would remind the House and particularly the hon. Gentleman the Member for Stoke, was the only Rubric referred to in the Marriage Acts, ordered publication to take place "immediately before the 929 sentences for the Offertory," and consequently after the sermon or homily. For nearly 100, or, to be accurate, for ninety-two years the clergy were left to determine for themselves which of these two Rubrics they should obey. They came then to the year 1753, when, in consequence of a cause relating to a clandestine marriage having been brought on appeal before the House of Lords, the evils arising from Fleet marriages, and from the vast number of clandestine marriages that were solemnized at Keith's Chapel in Curzon Street and elsewhere, were brought so forcibly to light that their Lordships directed the twelve Judges to prepare a Bill for the better prevention of clandestine marriages. This was accordingly done. The Bill was discussed for many days in both Houses of Parliament, and at length passed into law, as the 26 Geo. II. c. 33, and is commonly known as Lord Hardwicke's Act. The interpretation of that Act and of the present Marriage Act appeared to him to be so clear as to leave no reasonable doubt as to the meaning of the disputed words. He thought that "those that ran might read." It had, however, been objected that the intention of the Act was not to alter the time for publication during the Morning Service, but merely to provide for the case of Churches in which there was Evening Service only. Indeed, some persons had contended that the Acts of Geo. II. and of Geo. IV. did not affect the Rubrics in any way—nay more, that Convocation not having been consulted, and consequently not having consented thereto, the injunctions of those Acts with reference to the Rubrics were of none effect, and for this reason some few clergymen had, as he was informed, refused to be bound by them.
Before he came to the plain meaning of the words themselves, he would ask those objectors, how was it they assented to the omission of the words "or holidays" in the Rubric under the authority of these very Acts? Again, what interpretation did they place upon the Act of 1 Vict. c. 45, s. 4, which expressly repeals that portion of this same post-Nicene Rubric, which directs briefs and citations to be then read. It is in these words—And be it further enacted, That from and after the first day of January next no Decree relating to a Faculty, nor any other Decree, Citation, or Proceeding whatsoever in any Ecclesiastical Court, shall be read or published in any Church or Chapel during or immediately after Divine Service.930 And in lieu thereof it directs citations and proclamations to be reduced to writing and to be affixed to the Church door. He was able of his own knowledge to inform the House that, although Convocation was not consulted on the subject, that departure from the directions of the Rubric was readily acquiesced in by the same reverend gentlemen who disputed the alteration, made by the Marriage Acts. He was aware that a right rev. Prelate in "another place" some years ago denied that the 26 Geo. II. c. 33 made any alteration whatever in the Rubrics of the "Sealed Book." His words were so remarkable that he would read them to the House—The Marriage Act made no alteration in the Rubric: it cautiously abstained from doing so.The right rev. Prelate seemed to have overlooked the fact that an alteration was effected by making the publication of banns on holydays illegal. But he would further ask, if no alteration was intended to be made in the Rubric, what was the meaning of the words in sec. 1 of 26 Geo. II. c. 33—And all other the Rules prescribed by the said Act and not hereby altered shall be duly observed.In replying to the speech of the right rev. Prelate, Lord Brougham said—He held the high and paramount authority of Parliament in all matters which could be the subject of discussion, and he utterly protested against the doctrine—against acting on the opinion that there was anything, spiritual or temporal, from which the jurisdiction of Parliament was excluded."—[2 Hansard, lxxviii. 22.]It had been contended, then, that the Marriage Act did not affect the time of publication of banns during the Morning Service, which was to be regulated by the Rubrics of the Prayer Book of 1661, but merely provided for the case of Churches in which Evening Service only was held. That interpretation was said to derive authority from an obiter dictum, of a late learned Judge, and had been adopted—most unfortunately, as he (Mr. Monk) thought—by a few clergymen and dignitaries of the Church without the authority of a judicial decision.
He would briefly lay before the House some arguments which would, he trusted, be deemed conclusive, against the view taken by those clergymen who refused to publish banns after the Second Lesson during the time of Morning Service.
First—In no possible view of the case could the post-Nicene publication be right 931 and legal. The House would bear in mind that the only Rubric referred to and confirmed by the Marriage Act is that prefixed to the Office of Matrimony, which enjoined publication of banns "immediately before the sentences for the Offertory"—consequently after the sermon. If, then, the Act did not require banns to be published after the Second Lesson during the time of Morning Service, it followed that the legal time would be, not after the Nicene Creed, but immediately before the sentences for the Offertory.
Secondly, For more than a century the almost universal practice has been to publish banns after the Second Lesson.
Thirdly, The alteration in the time of publication in 1754 must have attracted general notice throughout the country, and the Prelates and others who had taken part in the lengthened discussions in Parliament upon Lord Hardwicke's Act would have adopted means to correct any error on the part of the clergy on the subject.
Fourthly, If the House would look at the grammatical construction of the sentence in dispute it would, he believed, come to the conclusion that the words "immediately after the Second Lesson" were in immediate relation with, and dependent upon, the Morning as well as the Evening Service. He would offer an illustration to the House. If a new Member were in doubt as to the proper time for presenting a petition, in consequence of the late change in the hours at which the House met, and were to apply to Mr. Speaker for information, it is not improbable that Mr. Speaker might reply in some such words as these—"Petitions must be presented during the time of the morning sitting, or of the evening sitting (if there shall be no morning sitting upon the day upon which such petition is to be presented), immediately after Notices of Motion." Could a doubt be entertained that the latter words applied as well to the morning as to the evening sitting? In short, if the words in the Act were limited to the Evening Service, some words of limitation would have been employed. But he (Mr. Monk) had the much higher authority of contemporaneous literature in favour of the change which took place in 1754. In the Gentleman's Magazine for September, 1753, two months after the passing of the Act, under the head of "Some Account of the Statute to Prevent Clandestine Marriages," vol. xxiii. p. 399, are these words—By this Statute it is enacted that Banns shall 932 be published in the church or chapel, where the parties dwell, three Sundays in the morning, except where Morning Service is not performed, immediately after the Second Lesson,Could anything be more conclusive? Evening Service was not even mentioned.
Again, in Wheatley's Rational Illustration of the Book of Common Prayer, in the edition published in 1759, after Wheatley's death, which occurred in 1742, the words "Banns of Matrimony are to be published," were omitted in the reference to the Rubric after the Nicene Creed, former editions having contained those words. In chap. vi. sec. 8. § 1 were the following words:—It is ordered by a late Act of Parliament that all Banns of Matrimony shall be published on three Sundays preceding the Solemnization of Marriage immediately after the Second Lesson.In 1806 Bishop Horsley, in a Charge delivered to the clergy of the diocese of St. Asaph, expressed his surprise at having heard banns published in a parish Church in a great town not very many miles from the metropolis at the altar after the Nicene Creed—The clergyman," said the Bishop, "I dare say, had no notion he was doing wrong; he followed the Rubric. But the direction of the Rubric in that particular has been altered by the Marriage Act, which directs that banns of marriage shall be published immediately after the Second Lesson; and it seems to me very doubtful whether a publication after the Nicene Creed be, as the law now stands, any publication at all; and whether a marriage had under such irregular publication be a good and valid marriage.Last, not least, he had in favour of that interpretation of the Act the high authority of Dr. Burn, whose great work was the text-book of ecclesiastical law in this country. In the 1st edition of Burn's Ecclesiastical Law, published in 1763, vol. ii. p. 37, were the following observations on the publication of banns:—In truth there was a great mistake in many persons supposing where an Act of Parliament inflicteth no special penalty for disobedience that they may transgress such Act without any danger of being called to account. …. Where clergyman shall presume to marry persons, neither of them being his own parishioner: as also where a minister shall take upon him to publish the banns, not immediately alter the Second Lesson, as this Act requireth; but after the Nicene Creed, as was before enjoined by the Rubric. For if a father should attend immediately after the Second Lesson, to forbid the banns, where his child is under age; and no publication being then made, should go away, and the publication afterwards proceed; the clergyman making such publication would not be in a desirable 933 situation. Indeed, it doth not appear, why the time, as it is now limited, immediately after the Second Lesson, is more proper than the other time was, after the Nicene Creed; or rather it seemeth to be less proper, because immediately after the Second Lesson the publication makes a manifest break and interruption in the service; but after the Nicene Creed there is a pause, that part of the service being completed. However, so the matter stands; and it is not in the discretion of any private person to judge of the propriety or impropriety; and therefore, this being the law, the Rubric after the Nicene Creed in this particular ought to be altered; and the rather, as it may prevent a mistake of some persons, who may think that the Rubric in this respect is still in force, not considering, that although the Rubric is confirmed by Act of Parliament (and is, indeed, itself part of an Act of Parliament), yet no maxim in the law is more established than that a subsequent contrary Act virtually repeals a preceding Act, so far forth as it is contrary; and may also prevent, perhaps, another mistake of those who may suppose, that the Rubric, together with the Book of Common Prayer, before it received the sanction of Parliament, having been drawn up by the Clergy in Convocation, received its whole force by ecclesiastical authority, and needed no Parliamentary confirmation, but, on the contrary, that the Parliament have nothing to do with it either to confirm or alter it. This was once the notion of ecclesiastics; but the foundation thereof was abolished, with the papal power, out of this realm, above 200 years ago. What now remains of it, if anything doth remain, is a shadow without any substance. An Empire within an Empire, two distinct Legislatures in one Kingdom independent of each other, and both of them pretending to be absolute, have been long since found to be absurd and incompatible.Well then, in 1754, the change in the time of publication took place. In 1822, it was acquiesced in by both Houses of Parliament, in Dr. Phillimore's short lived Act, 3 Geo. IV. c. 75. In 1823, the present Marriage Act was passed, when there were lengthy discussions in "another place," in which many right rev. Prelates took part, and in which no doubt was expressed as to the proper time for the publication of banns being immediately after the Second Lesson. In reply, however, to the inquiry which might very properly be addressed to him — why was the Rubric altered? (and here he might in all fairness ask, which of these two Rubrics?) his answer was—the object of the Act which came into operation in March, 1754, being for the better prevention of clandestine marriages, it was believed that a solemn publication in the midst of the Morning Prayer, and upon Sundays only (not on holydays as heretofore), would attract more attention, and be better heard from the reading desk, than from the chancel at the far end of the Church, in the midst of 934 brief, citations, excommunications, and other mandates from the Ordinary.
Before he concluded, he must briefly refer to the Report of a Committee of the Lower House of Convocation, which was presided over by his venerable friend, Archdeacon Sir George Prevost. That Report had lately been discussed in Convocation, and some of its suggestions had been there adopted. In one respect he entirely agreed with the Report, that the state of the law relating to marriage by banns was defective and unsatisfactory; that it encouraged evasion, deceit, and fraud, and that clandestine and unlawful marriages were frequently contracted. With some of the suggestions, however, adopted by the Lower House of Convocation, he could not in like manner agree. The first was, that in any alteration of the law the duly authorized Rubrics in the Book of Common Prayer relating to the publication of banns should remain unaltered. His (Mr. Monk's) objection in limine to this was that the two Rubrics in question were inconsistent with each other, so that, in order to carry out the second suggestion of Convocation—"That the banns be published in the Morning Service (whenever there is Morning Service) after the Nicene Creed"—the duly authorized Rubric in the "Sealed Book" prefixed to the Form of Solemnization of Matrimony, and which alone of these two Rubrics was referred to and confirmed by the Marriage Acts, except so far as it was thereby altered, must first be further altered or repealed. He would not refer further to the Report of the Committee of Convocation than to say that he entirely concurred in the propriety of a decision arrived at in the Lower House, repudiating the suggestion that it should be left to the discretion of the officiating clergyman to publish the banns either after the Second Lesson or after the Nicene Creed. That proposal was negatived by thirty votes to twenty-one. Such a proposal appeared to him to be utterly indefensible. Great confusion would arise from a difference of practice in neighbouring parishes. Perhaps even in the same church the incumbent might publish banns one Sunday at one time, and the curate the next Sunday at another. By such a course the sole object of publication—namely, publicity, would be defeated, and an opportunity afforded for clandestine marriages. Although the time of publication might be wholly immaterial in itself, it was most important that no doubt should be suffered to exist as to the legal time enjoined 935 by the statute. In his opinion uniformity of practice was absolutely necessary. In any case there had been undue publications of banns. Happily, however, the post-Nicene publications had been the exception, not the rule. He would ask the House to reflect for one moment how wide a door was now opened to fraud, where facilities were offered by clergymen to persons knowingly and wilfully to intermarry after a publication of banns, which they knew to be an undue publication. A man might commit bigamy with impunity. Let the House bear in mind that the marriage of persons knowingly and wilfully intermarrying without due publication of banns was not voidable merely, but wholly null and void. The children would be bastardized, and the property and titles which they believed to be their rightful heritage would pass into other hands. Some clergymen, he was informed, had published banns after the Nicene Creed for eighteen or twenty years. He had himself heard one clergyman publish banns after the Second Lesson one Sunday, and publish the same banns after the Nicene Creed on the following Sunday. Was that a due publication under the statute of Geo. IV.? He ventured to think that those clergymen had incurred a grave responsibility—one which, in his humble judgment, could not easily be justified. Section 21 of the Marriage Act enacts that any clergyman who shall knowingly and wilfully solemnize marriage without due publication of banns shall, being lawfully convicted thereof, be deemed and adjudged to be guilty of felony, and shall be transported for fourteen years—a punishment now commuted to penal servitude. And Section 22 enacts that if persons knowingly and wilfully intermarry without due publication of banns, the marriages of such persons shall be null and void to all intents and purposes whatsoever. And yet he was informed that a right rev. Prelate, for whom he entertained the highest regard and respect, had, in his episcopal charge delivered last autumn, recommended his clergy to publish banns at another time than that enjoined by the Marriage Act. It was only fair to the clergy themselves that no doubt should be suffered to exist on the subject.
He trusted that he had made out a sufficient case for legislation, and that he had clearly shown what was the intention of the Legislature in framing the Acts that regulated the publication of banns in parish Churches in England. With a view there- 936 fore to declare the law of the case, and to prevent the evils which must ensue from marriages being declared invalid by reason of undue publication, he had ventured to introduce this short declaratory Bill; and in submitting it to the consideration and judgment of the House, he appealed with confidence to the House to read the Bill the second time.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Monk)
§ MR. BERESFORD HOPE
admitted the facts stated by the hon. and learned Member, but drew an entirely different inference from them. Up to 1753 the publication of banns was exclusively regulated by the Act of Uniformity of 1662, of which the appended Prayer Book, commonly called the "Sealed Book," was an integral part, in which was an integral portion of the law, being, in fact, a Schedule to that Act. In this Prayer Book, beyond the shadow of a doubt, the time for publishing the banns was after the Nicene Creed, as it had been in the Church of England for all time before and after the Reformation. Marriages, however, could also, at that period, be solemnized without banns in certain privileged Chapels — a system productive of great social evil, for boys of fourteen were sometimes entrapped into marriage by designing women. Legislative interference, therefore, became necessary for the protection of social life. The legislators of that time had to provide for the future enforcement of banns in general, but they had also to face another bad condition which they had not the means of remedying. Pluralities were, in those days, abundant, a clergyman being able to hold as many benefices as his conscience or his patron allowed, many of which parishes were left to be served by an over-worked hack of a curate. There were consequently numerous Churches in the country where the Nicene Creed was only heard at rare intervals from their inhabitants being, as a rule, only indulged with Afternoon Service. Under these circumstances the Act of 1753 was passed, and if the banns clause had stopped at the words "Morning Service," no ambiguity would have arisen. It would have been an Act substantially re-enacting the old Rubrical system with only the prohibition of holydays. It added, however,or of Evening Service (if there be no Morning Service in such church or chapel upon any of 937 those Sundays) immediately after the Second Lesson.The Act of 1823 was substantially identical in its terms, the only difference being the insertion of the word "shall," before "be," Now, stops were, of course, of no legal force, but they were secondary evidence of how the Act was understood at the time; taking then the comma after "Morning Service" and the use of the parenthesis with respect to cases where there was no Morning Service, he interpreted the clause as re-enacting the Rubric with the judicious omission of holydays, on which there would be a very scanty congregation, only in addition directing publication after the Second Lesson in the too numerous Churches where there was no Morning Service. The Evening Second Lesson, followed as it was by the Creed, was apparently selected as being as nearly as possible analogous to the Gospel in the Morning itself precedent to another Creed. As to the discrepancy which the hon. and learned Member found between the two Rubrics which occur in our present prayer, the first ordering the publication of banns, &c., and the other prescribing the sermon, he found that in the Prayer Books prior to 1662 the position of the nearly identical Rubrics which represented them was different. As it was, no doubt the real Rubric at the commencement of the Marriage Service (not the King's printer's substitution) seemed to be rather discrepant; but if the original order were reverted to there would be no ambiguity as to the proper time. The inversion of this order was, he believed, a simple clerical blunder. He admitted that the Marriage Acts were ill-drawn, raid that the doubt which they had created ought to be set at rest; it was inexpedient, however, to declare a particular interpretation correct by a hurried Act of Parliament when a careful consideration might lead to a different conclusion. The Royal Commission on Rubrics had been solemnly appointed, and was at that time in active session. The difficulty which had led to this Bill would come directly within its scope, and it had full authority to consider the matter; so why should not the House, which had plenty of other work in hand, show a little patience, and a little consideration for the terms of the Commissioners' appointment, and allow them to complete their investigations? If there was any apprehension of marriages being invalidated, or of clergymen incurring penalties, the Bill might be remodeled 938 with the omission of the first clause, so as for the present to ratify marriages whether the banns had been published after the Second Lesson or after the Creed. He hoped the hon. and learned Member would assent to this course; but unless he did so he should feel bound to press his Amendment, that the Bill be read a second time this day three months.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. Beresford Hope.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ SIR GEORGE GREY
said, he hoped that at all events the House would read the Bill a second time. The matter lay in the smallest possible compass, and he rather regretted that his hon. and learned Friend (Mr. Monk) should have mixed it up with questions of ecclesiastical law and discussions in Convocation. As he understood the question it was that Parliament had passed an Act to alter the Law with respect to the Solemnization of Marriages, and a clause of that Act prescribed the time at which the banns were to be published. He confessed he could not see any ambiguity in that clause; but if, as was alleged, there were any ambiguity, Parliament could, and ought to clear it up, Some—he believed a small minority—of the clergy, seeing a difference between the wording of the Statute und the directions of the Rubric, from which the alleged ambiguity resulted, thought it their duty to follow the Rubric. If, in consequence of this diversity of opinion—a conscientious one, no doubt—the clergy were liable to penalties, or the validity of marriages were questioned, it was both in the interest of the Church and of the public that Parliament should at the earliest possible moment remove all doubt without reference to any ecclesiastical question whatever. The Act of Parliament was paramount. No lawyer would deny that if Rubrics differed from an Act of Parliament it was the former which must give way. As to the Commission, he could not see why legislation for any useful purpose should be suspended while their inquiries were going on. If it were the opinion of the Royal Commission that the Rubric was not in conformity with the Act of Parliament it should be brought into conformity with the Act. For himself, he had no doubt as to the meaning of the Act of Parliament; but if doubt existed 939 language should be adopted to make it clear.
§ SIR WILLIAM HEATHCOTE
said, he did not consider this a case of setting up a Rubric against an Act of Parliament, but of conflict between two Acts, the Rubric in question, which governed the publication of banns before Lord Hardwicke's Act, being as much an Act of Parliament as the Statute of 1753. The real question at issue was whether Lord Hardwicke's Act repealed by implication the enactment of the Rubric, or whether, notwithstanding that Act, the Rubric retained its original force. The doubt was not an unreasonable one, and it was right it should be cleared up. But, under existing circumstances, the question was no longer one of law, it had become one of expediency, and the question was how best to deal with it. Lawyers of eminence had so understood Lord Hardwicke's Act as to hold that while the Act imposed the necessity of publishing the banns at some time, and specified the time at which they should be published at Evening Service, it did not alter the original intention of the Act of Parliament, as embodied in the Rubric, that banns should be published at Morning Service at a different time. There was a great advantage, he thought, in the examination of this subject by the Commission on Ritualism, and he could not concur in the objection taken by the right hon. Gentleman (Sir George Grey) that to leave it to them would be setting up the authority of the Commission against that of Parliament. It seemed to him that by remitting this subject to a body of men, in every way competent to advise, a difficulty would be solved which required to be set at rest.
§ MR. P. WYKEHAM MARTIN
said, it was admitted that very serious doubts had arisen which it was desirable to solve. It was quite indifferent to him at what time it was required that the banns should be published — whether after the Second Lesson or after the Nicene Creed. He resided on the borders of two parishes. At one parish Church the banns were published after the Second Lesson, at another the clergyman read them at another part of the Service. As the Services were now sometimes split up with an interval between each, it might happen that persons going to forbid the banns might attend the wrong Service, and a case of this kind had occurred within his knowledge. It was therefore important that the practice of 940 the Church should be accurately defined and made uniform. If the Bill were read a second time the hon. Member for Stoke-upon-Trent (Mr. Beresford Hope) would still be in a position to move an Amendment. His hon. and learned Friend who had charge of the Bill did not want to alter the law, but to have it better defined.
said, that the very fact of that debate showed that there was plenty of ambiguity in this matter; but what were the plain facts? The hon. Member for Stoke-upon-Trent had told them that about the middle of the last century there was a great social scandal, and Lord Hardwicke's Act was passed. As long as he could recollect the banns were read after the Second Lesson; lately, however, some persons had taken something in their heads, and eminent lawyers had been found whose opinions contradicted each other point blank. He would here observe that there never was a time when eminent lawyers did not directly contradict each other upon the matter referred to them. This Bill gave an interpretation upon a matter on which great ambiguity existed, and which he thought it was the duty of Parliament to make plain. The hon. Member for Stoke-upon-Trent argued that Parliament need not clear up this matter, because a Commission on Ritualism was sitting, which, at some indefinite time, might recommend Parliament to do something, and then the ambiguity could be cleared up. But what would happen in the meantime. There would be a difference of practice in a very serious matter. Lord Hardwicke's Act was passed to secure a notice by banns; but there was nothing so uncertain as such a notice, if it were left to the will of an individual to give that notice at one time or the other as he pleased. It did not matter a halfpenny at what time the banns were published; but it was only due to the public to clear up the ambiguity and to say what time the banns ought to be published. He would only remark, in conclusion, that if Church people went squabbling about such matters, and if difficulties of this kind were set up by crotchetty persons, people who were indifferent would find another mode of getting "tied," and would go to the Registrar's office to be married. He, for one, should regret such a result, and he would vote for the second reading.
§ MR. WHALLEY
said, he did not entertain the slightest hope that anything good would come of the Commission on Ritualism, nor did he know any person 941 who expected from them anything but a foregone conclusion.
§ Amendment, by leave, withdrawn.
§ Main Question put, and agreed to.
§ Bill read a second time, and committed for Friday.