HC Deb 06 August 1869 vol 198 cc1395-407

Sir, I rise to call the attention of the House to the Report of the Marriage Law Commissioners, and to inquire whether it is the intention of Her Majesty's Government, in the next Session of Parliament, to introduce a Bill for the purpose of establishing a Marriage Law as nearly as possible uniform for all parts of the United Kingdom, upon principles of equality as between all Churches and religious denominations. At an earlier period I have been unwilling to press on Her Majesty's Government the question of the marriage laws of the United Kingdom, because I was well aware that the business they had in hand was of so great magnitude as to make it unreasonable to expect that they should undertake another subject of great magnitude and importance in the present Session. But when I remember that among the subjects intimately connected with the Irish Church question now settled was this one, which was distinctly promised to be made the subject of legislation in the very next Session of Parliament— the relation borne by the Church now disestablished to the marriage law of that part of the United Kingdom—the effect of what has been done being to produce, as soon as that Act comes into operation, an absolute dead-lock with regard to the marriage law affecting a very large class of Her Majesty's subjects in that part of the United Kingdom, and not only affecting those belonging to the Church of England in Ireland, but also in a great measure the marriage law affecting all classes of Her Majesty's subjects in that part of the United Kingdom who were expected by law to take advantage of the arrangement made, with reference more especially to the position of the Established Church, it is impossible, in these circumstances, that legislation on the subject of the marriage laws can be deferred to a later period than the very next Session of Parliament, and I am most anxious in that state of things to take advantage of the opportunity so offered to impress on the Government the importance of at once dealing with the entire question, and now making a uniform and consistent marriage law on principles of religious equality for every part of the United Kingdom. The House will permit me to remind them both of the circumstances under which the Commission of 1865 was appointed on the subject and the nature of the Report made by the Commission. There had been several Bills introduced in order to mitigate the inequalities and inconveniences of the extraordinary state of law as to marriage now prevailing in Ire- land. There had also been brought very prominently before the attention of the public a succession of cases of a very singular description from Scotland, illustrating what are there called irregular marriages. One of these cases — the Yelverton case— attained very great notoriety, in which, first of all, a lady took advantage of an action by a tradesman against her alleged husband, to raise the question of her being married in Ireland. She had been married there by a Roman Catholic priest, but the husband was a Protestant. She persuaded an Irish jury that she was married. The question was afterwards raised in Scotland. There was a great difference of opinion on the Bench, and it was ultimately decided by the House of Lords that she was not married. That and other remarkable trials called attention to the singular law prevailing in Scotland, and to the great scandal of there being in this highly civilized United Kingdom such a great mass and variety of marriage laws which no Government had yet attempted to reduce to consistent and uniform principles. Under these circumstances a Royal Com- mission was appointed to inquire into the laws in force in different parts of the United Kingdom with respect to the constitution and proof of the contract of marriage and registration and other means of preserving evidence thereof, and also into the state and operation of the laws of the United Kingdom in | relation to the marriages of European British subjects in India and the colonies—a much less important, but not un- important subject. The Commission was composed of many persons of very considerable eminence in the law, and of representatives well selected, I think, from all parts of the United Kingdom. Its Report received the entire concurrence of three Noblemen, who now, or formerly filled the Office of Lord Chan-cellor—Lord Chelmsford, Lord Cairns, and Lord Hatherley; and the mention of those three names as entirely and without qualification concurring in the Report must go along way to recommend to the favourable consideration of the House the propositions which have their united sanction. Besides these eminent men there were on the Commission the Judge of the Divorce Court, Lord Penzance, who entirely concurred in their recommendation; the Queen's Ad- vocate, Sir Travers Twiss, who, with some trifling modifications, concurred in the Report; Mr. Walpole, the right hon. Member for the University of Cambridge; Lord Lyveden; Mr. Monsell, the Under Secretary for the Colonies, and the Lord Chancellor of Ireland— both able and worthy representatives of of the Roman Catholic portion of the community. From Scotland, entirely concurring in the recommendation of the Report, were the Solicitor General for Scotland (Mr. G. Young), and Mr. Murray Dunlop, formerly M.P. for Greenock, and who, I believe, I am not wrong in saying is connected with the Free Church. These gentlemen—entirely and without qualification, except in the case of one of their number, an immaterial qualification on a small point of detail, the rest without any qualification—concurred in the Report to which I shall now invite the attention of the House. There was one other Commissioner—the head of the Court of Session, Lord President Inglis—who did not concur in the recommendations affecting Scotland. With that exception we have the Scotch Commissioners representing the feeling of the Presbyterians; the Irish Commissioners representing the Roman Catholics; and the English Commissioners representing the legal science, as well as, to a great degree, the general intelligence of the country. The state of the law which the Commission had to examine and report upon exhibits probably as extraordinary a condition of the law as it is possible to imagine in a country so highly civilized as ours. I will take, in the first place, the marriage law of England, which, perhaps, of the three presents the smallest amount of anomaly. The law of England draws a very sharp line at the outset between members of the Established Church and all the other members of the community. As regards members of the Established Church, in its desire to guard against clandestine marriages the law recognizes two modes of doing so. One, the process of marriage by banns, appears by the evidence to be perfectly useless in the only cases in which, at first sight, it would appear to be of importance. Persons who are desirous of evading the law go to populous places where they are not known, and where the long bead-roll of names is called over in such a way as not only to constitute in itself a somewhat indecorous interruption of Divine service, but to defeat altogether the object of publicity. I really believe that if any hon. Member of this House had a member of his family desirous of being married without his knowledge the most effectual method of accomplishing this would be by having the banns published either in London or in Manchester in the very church attended by the other members of the family. The names would probably not be heard at all, or, if heard, would not be recognized; and, accordingly, the publication of banns has been found to be a useless formality. In some small rural parishes, it is true, the publication of banns may be useful, but then the same object would be accomplished by the mere personal knowledge of the clergyman. As to the license a very small sum—a sum small to us, at least, though, perhaps, not small to everybody—will procure what is practically a dispensation from all precautions whatever. A person may get the license and be married the same day. The inquiries made are purely formal, and if everything that is said in answer is absolutely false it will make no difference whatever in the ultimate results. In the Established Church marriages no civil registrar is required to be present, or to have any notice given to him. On the other hand with regard to all bodies of Nonconformists the presence of a civil registrar is required, and notice has to be given in his office. In many respects the particulars required are well conceived; but the difficulty is to explain why, whatever is good for one class as far as notice is concerned is not equally good for the other. The House, generally speaking, would probably be disposed to agree that if we could provide a uniform law applicable on the same principle to all it would be a great improvement. The Jews and the Quakers have also separate laws for themselves; I do not know that any great inconveniences arises from this, but it is possible that there may be questions of a theological character which would invalidate marriages. In all those forms of English marriages the law may be invalidated by a non-compliance with any of the requirements of the law, although these, in themselves, for the most part do not seem so important as that a marriage once solemnized should be voided on the mere ground of error or accident. For instance, if the place where the marriage is celebrated is not properly consecrated or set apart, or if the marriage is effected in some other locality than where the banns have been called, or if any other error affecting time or place is made by the parties, that entirely invalidates the marriage, although, upon other grounds, there may be no objection whatever to it. These are criticisms which, in Scotland, are thought to be solid and sound against the English marriage law. The Commissioners thought them well deserving of attention; and while it would be a great thing to get a uniform system for all parts of the United Kingdom, they considered that this was to be gained by applying principles of amendment to every part of the United Kingdom, and not by endeavouring to force the law of England upon Scotland or Ireland, or the law of either of these countries upon England. Then I come to Ireland, where the state of the law is very much worse. To reduce it to a minimum, there are at least five different methods of marriage. First of all, in the Established Church, or what was lately the Established Church, there is no material difference from the system prevailing in England, though there are some differences of detail — with which I will not trouble the House — which seem to exist only for the purpose of increasing the anomalies. Then we come to the Roman Catholics. As to them, there is absolutely no marriage law at all; it is left under the old canon law — and nothing but the presence of a priest is necessary in order to make a complete and good marriage between Roman Catholics in Ireland. But if a Roman Catholic priest should presume to celebrate a marriage between a Roman Catholic and Protestant, or even between a Roman Catholic and a person who had been a Protestant within a year of the marriage, till comparatively a recent time, that was a capital offence; and, even now, it is a criminal offence of a very high order, and the marriage is absolutely void. That has not been so in England. A Roman Catholic priest, in a place duly registered, might solemnize a marriage, even between two Protestants; and so might a Dissenting minister. But in Ireland, the marriage law is denominational to a most extraordinary degree. There is one law for the Episcopalian Anglicans; another —and the loosest of all, except that of Scotland—for the Roman Catholics; a third law for the Presbyterians, who have a special system of their own, rather like that of the lately Established Church, but not the same; and for all the other bodies a fourth system. Lastly, there is the system of civil registry. I do not fatigue the House by going into all the diversities of forms and ceremonies, differing in each case; it is enough to say that there has been a most ingenious system of inventing differences and distinctions, where the object ought to have been to get rid of them — these differences and distinctions turning almost entirely on sectarian and denominational grounds. Them, in Scotland, we have a state of things entirely different from both the other countries. Till 1834, this state of things existed; there were several laws in force, and there were also irregular marriages, subjecting the parties to fine. I do not know whether they were subject to imprisonment also; at all events, they were subject to punishment at the hands of the civil magistrate, but the marriages themselves were recognized as valid. The regular marriages were those in which banns were asked, and marriages celebrated by a minister of religion; but the regular marriages were only permitted to be celebrated by ministers of the Established Church. The consequence was that a very considerable proportion of the marriages in Scotland were solemnized irregularly, and parties used to go before the magistrates and get themselves convicted of the crime of an irregular marriage, and so procure — if not a marriage license in another form — at all events, some legal recognition of the fact. In 1834, Lord Russell, then in this House, introduced a measure to do away with these religious distinctions, enabling ministers of other religious denominations to solemnize marriages in all respects as lawful as those of the Established Church. He left—I do not know whether by accident or not—-one single remnant of the old system — namely, a requirement that the banns should be in all cases called in the Established Church; and a very odd operation that regulation is attended with. Strictly speaking, the banns should be called on three successive Sundays, so that a long time ought to elapse before the mar- riage can be effected; but, practically, on the payment of a fee, the session clerk will call over the three sets of banns altogether. That is a remnant of the old system, and I suppose the small fee has operated very mildly, for it has not been got rid of; but the effect of the change has been that irregular marriages have disappeared very largely from the general social system of the country. Irregular marriages still occur here and there; but all the witnesses from Scotland say that the enormously preponderating proportion of marriages in Scotland are solemnized in the presence of a minister of religion, and therefore the wants and habits of the people no longer oppose themselves, as they formerly did, to such an assimilation of the law of the countries as would get rid of irregular marriages altogether. I may mention that a material step towards that end was taken by Lord Brougham, fourteen or fifteen years ago, when he introduced an Act to abolish Gretna Green marriages — a system of irregular marriages, of which advantage was taken by people in England, for the most part living just over the Border. But that Act abolished these marriages by requiring fourteen days' residence in Scotland.' No public excitement followed. From that time Gretna Green marriages have ceased, and the time has now become ripe for dealing with the subject of the marriage law of Scotland in a manner consistent with preponderance of opinion not only of those who bring ecclesiastical minds to bear upon the question, but those who look at it from an Imperial point of view, of whom there are many in Scot- land as well as elsewhere. The system of irregular marriage in Scotland is a very startling thing to those whose minds are not thoroughly accustomed to it. Those marriages are contracted in two different ways. Suppose any Gentleman in this House visited a house in Scotland where a young lady happened to be staying, and that he and the young lady took a walk together, and in the course of the walk he took a piece of paper out of his pocket on which they wrote down a mutual promise to marry; though the piece of paper might be simply put back again into his pocket, though nothing might be said to anybody about the writing, and though nobody else might be there at the time, if the persons after- wards lived in a certain way together, that would be a valid marriage, although nobody might know of the fact of the marriage for years afterwards. No mere promise will constitute a marriage unless it be in writing, and unless subsequente copulâ. A promise so given and so followed constitutes a good marriage, however long it may be kept secret. There is another even more extraordinary mode, in which no writing at all is necessary, and that is where the promise is made not de futuro but de presenti— where the woman says—"I take you, John, for my husband," and where the man says—"I take you, Mary, for my wife," before witnesses. A promise of that kind being brought up at any future period, even although the people have never lived together, will hold good, and will be sufficient to overturn any perfectly honourable and reputable marriage that either of the parties may have subsequently entered into, and this actually occurred in the celebrated Dalrymple case. I think that, after all, it is only right that we should endeavour to have a just and uniform marriage law, founded upon unsectarian and reasonable principles. Having already overturned, a material portion of the marriage law of Ireland, I venture to suggest that the Report of the Commission to which I have referred is entitled to the favourable consideration of Her Majesty's Government. I do not ask them to pledge themselves to all the recommendations of that Report, some of which, referring to the preliminaries of marriages, and others to the notice to be given, may admit of a difference of opinion, and improvement; but most of them will, I think, be approved by the House generally. I will state the most important of the recommendations which I think may be adopted with advantage. The Commissioners think that our object should be to secure uniformity of the marriage laws, if possible, throughout the United Kingdom; to secure, as far as possible, without throwing needless impediments in the way of marriage, the authentication of the fact of the marriage having occurred, so that a man and woman may know with certainty whether they are married or not, and other people may have the same certainty on the point; and, while taking precautions against hasty and precipitate marriages, to endeavour to secure the greatest freedom in the matter of marriage. How do the Commissioners propose to effect those objects? Of course the Commissioners had to consider whether it was desirable to adopt the Continental system, under which the parties merely enter into a civil contract before civil officers. While admitting the simplicity of that system the Commissioners did not recommend its adoption for two reasons; the first being that it would be impossible to reconcile the public mind of these kingdoms to a purely secular system of marriage; and the second being that they could attain their object by making every religious minister, of whatever denomination, a civil officer, for the purpose of seeing that the requirements of the law are satisfied, and of reporting to the registrar that the marriage has been solemnized. This latter system they have embodied in their recommendations, under which all religious denominations are to be placed upon an equal footing—all ministers of religion of every Church and denomination, and the civil registrars also, being recognized as competent legal official witnesses of marriage in all parts of the United Kingdom; all persons to have the option of being married by either of these classes, while in each case substantially the same notice and preliminaries are to be adopted. Of course, they propose to sweep away all incapacity of persons on account of their religion to be married by a Roman Catholic or any other minister. The Commission was appointed in March, 1865, and they did not make their Report until July, 1868; and therefore it is evident that they have not drawn up these recommendations without having carefully considered the subject. I will not further occupy the time of the House, but will conclude by asking the right hon. Gentleman the Secretary of State for the Home Department, Whether it is the intention of Her Majesty's Government, in the next Session of Parliament, to introduce a Bill for the purpose of establishing a Marriage Law as nearly as possible uniform for all parts of the United Kingdom, upon principles of equality as between all Churches and religious denominations?


said, that both the House and the Government were alike deeply indebted to the hon. and learned Member for Richmond (Sir Roundell Palmer) for calling their attention, by his able, in- teresting, and exhaustive speech, to this subject, even on an occasion like the present, when it could not be discussed at the length its importance demanded. The Report of the Commissioners had now been in the hands of Members for eight or nine months, and he thought the Session should not be allowed to pass away without the opinion of the Government upon it being elicited. He must join the hon. and learned Member in expressing a hope that during the Recess Her Majesty's Government would feel it incumbent upon them to prepare a measure based upon the recommendations contained in the Report, which was signed by the present Lord Chancellor and by his two immediate predecessors. That Report recommended that the law of marriage in the three Kingdoms should be rendered uniform, and he believed that that proposal would be approved by all sects and religious communities in the country. He rose chiefly for the purpose of adverting to two of the recommendations of the Commissioners, the first of which related to the presence of the civil registrar at the solemnization of marriages in places of worship other than those belonging to the Church of England — a regulation that had occasioned painful feelings among those who were subject to it. He was glad to find that the Commissioners recommended that that cause of irritation should be removed, and he trusted that under any future measure which might be introduced on this subject, ministers of all denominations would be placed on an equal footing, and that they would be allowed to register marriages without the presence of a civil registrar. The other recommendation to which he wished to refer was that which related to the publication of the banns, which, by the Marriage Act of Lord Hardwicke, was directed to be made after the Second Lesson, whereas some clergymen, ignoring the statute law as running counter to one of the Rubrics, thought fit to publish them after reading the Nicene Creed, according to the law as it stood before the passing of Lord Hardwicke's Act. Upon this point he wished to remark that the proper time for the publication of the banns should be clearly fixed by law. The only other point to which he desired to call the attention of the Government was with reference to marriage licenses, and he would call attention to the suggestion made by the learned Queen's Advocate General, Sir Travers Twiss, that the license should not be granted by the same spiritual person who was subsequently to celebrate the marriage. By extending the power of granting marriage licenses to every incumbent of a parish—who would be the same person that had to solemnize the marriage—you would take away the greatest check against irregular marriages which the present system of licenses provided; you would abolish the power of entering a caveat, which has been the means of preventing many a clandestine and bigamous marriage, and you would bring back some of the worst evils of the old system of Fleet marriages, which were put a stop to by Lord Hardwicke's Act.


Sir, even at this advanced period of the Session, when exhausted nature finds it difficult to arouse itself to an interest in anything, I must express the pleasure and admiration with which I heard the statement of my hon. and learned Friend the Member for Richmond (Sir Roundell Palmer) on this tangled subject. I think he has clearly made out that it is a great scandal to have our marriage laws in their present position, while he has also shown that the remedy for the evil is clear and simple, and based on the strictest principles of religious equality. My hon. and learned Friend has shown that by either of two different systems you might bring about the same result. One is the Continental system of having in the first instance a civil marriage in all cases, leaving it to the parties themselves to have a religious ceremony performed afterwards. The other is, that of having recourse in the first place to a religious ceremony, making it incumbent on the minister who performs the ceremony to register the marriage, or, at all events, in some way to furnish legal proof of it. I may say at once that this subject has not been overlooked by Her Majesty's Government. Indeed, it has engaged the especial attention of the Lord Chancellor, who sat on the same Commission with my hon. and learned Friend the Member for Richmond. During the present Session, however, we have not only not been able to bring forward a measure on the subject of the marriage laws, but even to mature our views as to the precise mode of dealing with the question. My hon. and learned Friend said it will be impossible for this or any other Government to avoid bringing forward next Session a measure to meet the change in the law created by the disestablishment, of the Irish. Church, and he very truly added that, as some legislation was necessary on the subject, there would manifestly be a great advantage in dealing with the question as a whole, and upon principles which would equally apply to the three Kingdoms. In those opinions it is impossible for any reasonable man not to concur; but I cannot absolutely undertake to pledge the Government, already deeply pledged, to the introduction of a general measure in the course of the next Session. In the course of the present Session we have found it necessary to postpone legislation on the three pressing questions of international law, —namely, the law of naturalization, the law of extradition, and the law of foreign enlistment. All these subjects—subjects of great difficulty—are awaiting legislative solution. Then the Government are pledged to bring in an Irish Land Bill and a Bill on the subject of Education, not to mention minor, but still important, subjects. It would, therefore, be impossible for me to give an absolute pledge that this question of the marriage laws will be dealt with in its entirety next Session; but I can honestly assure my hon. and learned Friend that it is the desire of the Government to deal with the question at the earliest possible moment, and deal with it once and for all, and to deal with it on the broad and liberal principles laid down in the Re-port of the Commissioners. Without binding myself as to details I may say that the measure will be not less broad and comprehensive than the scheme which my hon. and learned Friend, as the organ of the Commission, has recommended in his speech this evening. I hope that under the circumstances of the case my hon. and learned Friend will be satisfied with that assurance.


said, he hoped that when dealing with the marriage laws the Government would consider the subject of marriage with a deceased wife's sister, with the view of arriving at a settlement on that much disputed question.