§ Considered in Committee.
§ (In the Committee.)
§ Clause 1.
§ *(12.35.) COLONEL MAKINS (Essex, S.W.)
I beg to move, in line 7, after the word "marriage," to insert—Duly performed at the office of any registrar of births, deaths, and marriages.The House has affirmed the principle that these marriages ought to be legalised, and, therefore, it only remains to see that the provisions of the Bill are made to carry out the decision of the House with as little friction as possible. It will not be denied that there are strongly-felt objections to this measure 96 of more than one kind. I may divide the objections into two classes—first, the religious difficulty, on which in common with others I feel very strongly, and which my Amendment is intended to meet; and, next, the social objections. In regard to the social objections, it is impossible to put any Amendment upon the Paper which would deal with them. After all, it is a matter of taste. The social objection will remain in the minds of those who entertain it, notwithstanding the passing of the Bill. But in regard to the religious objection, it is tenfold stronger, and I am sure that those who are in charge of the Bill, if they are prepared to consult the interests of the clients they represent, and desire to facilitate the progress of the Bill, will do anything to minimise the feeling of objection which is strongly, but honestly, entertained. The conscientious objection to these marriages is based on the fact that the doctrines, rubrics, and canons of the Church, lay down distinctly that they are unlawful. The clergy of the Church of England in their ordination vows have bound themselves to observe the laws of the Church and no Act of Parliament can absolve them from their ordination vows. Therefore, if the Bill were passed in its present form, there would be a great amount of awkwardness in carrying out its provisions. A great deal of religious feeling has been stirred up, and these marriages, if made legal, would not be any the more acceptable to the Church. On the contrary, there is a great possibility that there would be a crusade against them, and denunciations from the pulpit would probably be multiplied to a very considerable extent. There is also among the laity a very strong feeling against these marriages, and the intrusion of a foreign clergyman to perform a ceremony which the clergyman of the parish refused to perform would be resented. It is, therefore, highly desirable that these causes of friction should, if possible, be done away with, and I think that if my Amendment were accepted, it would to a great extent have that result. It would certainly minimise my objections to the Bill. I feel that there is something 97 to be said for what is known as the colonial argument. It may be felt to be a great hardship that those who have contracted these marriages in the colonies, possibly with the consent of Religious Bodies there, should come here and find themselves ostracised and their children bastardised. If the proposal I make is accepted, I should be glad to consider any method by which these colonial marriages could be retrospectively acknowledged, registered, and legalised. We ought not to visit what we may regard as the faults of parents upon their children; and I have put on the Paper Consequential Amendments to give effect to this view if the present Amendment is carried. It may perhaps be objected that the Amendment would cast a slur upon these marriages by making them a kind of second-class marriage; but there is very little in that objection, because vast numbers of marriages are now performed at the Registrar's office, and no stigma is considered to attach to them on that account. Even if it were so, it appears to me to be only one of two evils. If the Bill passes as it stands, these marriages will still occupy a second, third, or fourth place in the eyes of those who conscientiously object to them. Therefore, much would be gained by getting rid of the friction and the opposition that are based upon conscientious objection, while greater facilities would be afforded for contracting these marriages. Conceive the condition of a diocese, the Bishop of which takes strong views with regard to the necessity of enforcing Church law; he would request, perhaps command, the clergy not to perform these marriages. He could not order them to refuse admittance to any other clergy; but it would be an unpleasant thing to have black sheep brought out of another diocese to invade the sanctity of a diocese where these marriages are held in such strong detestation. Other Religious Bodies may approve or disapprove of the Bill, and it would be perfectly open to them, if they thought there was nothing inconsistent with their tenets in civil marriages, to sanctify them by any service they chose to perform after the civil contract had been ratified at the Registrar's office. I would go further than the Bill, and 98 would say that the State ought to be the custodian of the evidence of all marriages, and ought to regulate the manner of contracting them. In the present state of things there is a great deal of laxity in the publishing of banns of marriage, and many marriages are performed without the knowledge of the friends of the parties from want of due publication. The notices are placed behind the door in the Registrar's office, and unless a friend happens to go there on business the notice is seldom seen by anyone concerned. The whole question ought to be taken in hand by the Government, and put upon a sound basis. At any rate, with regard to marriages in which awkward circumstances exist it is of the utmost importance that the State should take charge of them and have them duly registered and legalised. It is equally important that the Churches and Religious Bodies should be freed from performing such marriages as are not in accordance with their tenets. By accepting the Amendment, the promoters of the Bill are likely to minimise the opposition of the Bishops; and, even apart from opposition in another place, there is every reason why they should consider it. While relieving the feelings of those who have broken the law, or who wish to do so, there is no need to wound the feelings of a majority of the members of the Church of England. No Act of Parliament could convert a civil marriage into holy matrimony in the religious sense. What is wanted is that people who contract these forbidden marriages should not be socially ostracised, but it is not necessary to relieve them at the expense of the consciences of other people. I hope that at the eleventh hour those in charge of the Bill will accept a fair proposition, and so avoid friction in the working of the Bill.
§ Amendment proposed,
§ In page 1, line 7, after the word, "marriage," to insert the words "duly performed at the office of any registrar of births, deaths, and marriages."—(Colonel Makins.)
§ Question proposed, "That those words be there inserted."
§ *(12.46.) MR. HENEAGE (Great Grimsby)
I fully recognise the scruples 99 of the hon. Member opposite, and I am glad to hear that he has arrived at the conclusion that the matter is one which ought to be settled and not allowed to drag on from year to year. In that opinion the hon. Member is in general harmony with those who have introduced the Bill. At the same time, I cannot help regarding the Amendment in any other light than a trap-door, and I am surprised that it should have come from the hon. Member, because its adoption would really be one of the greatest blows which the Church of England has ever received; and if anything were wanted to bring about Disestablishment I do not know of anything more calculated to bring it about more quickly than to differentiate between marriages contracted legally under the Statute Law of the land. It would simply be to substitute one injustice for another. We are told that it would be a slur upon the Church to allow a strange clergyman to go into the church of another clergyman and perform the marriage ceremony. But such things occur every day.
§ *MR. HENEAGE
No doubt; but it does occur. We are not dealing now, however, with the clergyman, but with the question whether these marriages are, if performed at all, to be placed in a lower grade than those which are now the law of the land. The question was very much discussed in the House of Lords in 1883; and not only those who are in favour of this Bill objected to the measure being restricted to civil marriages, or to the establishment of two classes of marriages, one of which would be of a lower grade than the other, but those who objected to the Bill also opposed the proposition on the ground that it would simply constitute a second-class marriage. Dr. Vaughan, the Dean of Llandaff, stated in Convocation "that he was unwilling to establish an inferior class or order of marriage," and I think that Dr. Vaughan may be allowed to represent the clergy as well 100 as any layman. We have also the opinion of the late Earl Cairns, a distinguished lawyer and an able statesman, who said in the House of Lords on the 11th of June, 1883, that—He knew that some persons supported this Bill because it did not interfere with the religious question—that it was a civil marriage. That was exactly one of the objections he made to this Bill. Here, for the first time in their history, they had got a proposal to establish a new kind of marriage—a sort of morganatic marriage, or marriage with a restriction. Here was a Bill that provided that if a man married his deceased wife's sister in a church the marriage was to be void; it was not made valid; but if he married the same person before a Registrar it was to be a valid marriage.The Duke of Marlborough afterwards spoke in very much the same terms. We propose to get rid of all these objections. We have always been in favour of having all marriages performed in the same way; and, therefore, our objections apply to all of the Amendments, which would make two classes of marriages. I, for one, consider the Amendment to be most objectionable, and, therefore, feel bound to oppose it.
§ *(12.52.) MR. J. G. TALBOT (Oxford University)
I know very well that whatever Amendments we may propose on this side of the House will not be accepted, nor will they be adequately discussed, however reasonable they may be; but if that is the line which is to be adopted, I am afraid it will only recoil in the end upon those who adopt it, because it will show that they are not prepared to meet the question by fair argument. I wish to address myself for a moment to the Amendment which has been moved by my hon. Friend. I am not prepared to go with my hon. Friend the length of saying that the time has come for settling the question, if he means by that that we are to pass this Bill. I believe that the strong moral sense of the country is opposed to the measure, but looking at the matter from a practical point of view, lam bound to see how best I can minimise the evil effects of this Bill if it is to pass. I have no doubt that the measure, if it does pass in any shape, will offend the consciences of the majority 101 of the people; and it is no light matter, that if you pass the Bill you traverse the whole of the marriage traditions of the Christian Church. It is all very well to say that there is no desire to injure the Church of England. But what is the right hon. Gentleman opposite doing? He is supporting a Bill which will conflict with the Act of Uniformity, which gets rid of the table of prohibited degrees, and which sanctions marriage which the Church declares to be unlawful. The Christian Church has for centuries repudiated these marriages, and they have never been allowed as the rule in any part of the Christian Church. If they are to be sanctioned, why object to their being performed only as a civil contract in the Register Office? As far as we can help, we will never allow them to be obtruded into our churches. The right hon. Gentleman opposite says that clergymen come in now to celebrate marriages in churches to which they are not attached. No doubt; but they come in by the invitation of the clergyman of the parish, and what we contend is that to compel the celebration of these marriages against their will, will simply be to irritate the feeling of the clergy. I have the honour of knowing Dr. Vaughan personally; I know the eminent position he holds, and I have the utmost respect for his views; but I cannot admit that even his opinions should be allowed to do away with the traditions of the Church. I am satisfied that a Bill forced as this Bill is proposed to be forced against the conviction of the people, is not likely to be productive of a happy result.
§ *(12.57.) MR. DARLING (Deptford)
I am not an enthusiastic supporter of this Bill; but I think the time has come when it ought to be passed. I voted for the Second Reading, and in regard to the Amendment which has been moved by my hon. Friend, I do not think it would be of any kind of advantage to set up two classes of marriages in this country—one of which is to be recognised as of major, and the other as of minor obligation. I do not think the Church of England is entitled to take 102 the line which the hon. Gentleman who spoke last has taken on behalf of it. The hon. Gentleman spoke of obtruding these marriages into our churches, and he spoke of the marriages themselves as marriages which the Christian Church has repudiated for centuries. Now, I presume that the Church of England is a Christian Church, and it certainly has not persistently refused to recognise these marriages, or refused permission to its clergy to perform them. I believe there are clergymen alive now who have performed such marriages; and how, then, can it be said that the Christian Church has always repudiated them? It was only in 1835 that Lord Lyndhurst—that eminently religious person—brought in a Bill to render them void in future, and even then, those which had taken place up to date were not included. It is only since that date that the Church of England has declared these marriages to be abhorrent to the Christian Church. If we are to pass this Bill let us put all these marriages on an equal footing with other marriages, and not be deterred by the scruples of a Church which up to 1835 had very few scruples in the matter.
§ *(1.0.) MR. TOMLINSON (Preston)
My hon. and learned Friend (Mr. Darling) began by saying that we ought not to set up two kinds of marriages. There are two kinds of marriage already—marriage by a clergyman, and marriage in a Registrar's office. As reference has been made to Lord Lyndhurst's Act, let me ask what that Act was? It was directed against all marriages within the prohibited degrees of consanguinity or affinity. Some of these marriages may have been celebrated per incuriam. Lord Lyndhurst's Act made all marriages within the degrees of consanguinity actually void, and all future marriages within the degrees of affinity actually void also, but it sanctioned those which already existed. Some years ago a very curious case came under my notice arising out of a marriage between a man and the widow of his deceased brother. Some persons interested desired to prosecute the man before the Ecclesiastical Court. In order to 103 avoid a citation he went abroad until Lord Lyndhurst's Act was passed, and under Lord Lyndhurst's Act this marriage became valid, as much as if it had been that of a deceased wife's sister. It was within the power of any person to have these marriages made void by taking proper proceedings in the Ecclesiastical Court. The Church has in every way possible declared her abhorrence of these marriages. There can be no doubt that from very early times the idea of a Christian marriage was that the man brought the wife's relations into the same position in the family as his own relations. Therefore, I have a right to assert that the Church has not acquiesced in these marriages, which are abhorrent to her, and which she always regarded as marriages into which Christians ought not to enter.
§ *(1.7.) MR. G. OSBORNE MORGAN (Denbighshire)
I think the hon. and learned Gentleman the Member for Preston has confused Lord Lyndhurst's Bill with Lord Lyndhurst's Act. Before 1835 marriages of this kind were constantly celebrated by clergymen, and not per incuriam. They were all perfectly valid unless the parties during their lifetime chose to make them void. The object of Lord Lyndhurst's Bill, as originally drawn, was to make these voidable marriages valid. The House of Lords took it into their heads to turn the Bill literally inside out, to make it the reverse of what it originally was. Instead of making these marriages valid they made them altogether void, and the result is that from that time these marriages have been, of course, not only voidable but void.
§ *MR. TOMLINSON
The right hon. Gentleman has missed the point of my argument, which was that by Lord Lyndhurst's Act, marriages within all the degrees of affinity were in the same position. The supporters of the Bill wish to make an exception of one of these degrees.
§ *(1.10.) COLONEL MAKINS
I never heard a discussion on this question in which Lord Lyndhurst's Act was not brought in and made to do duty in 104 favour of the Bill. Before the passing of Lord Lyndhurst's Act marriages were an ecclesiastical matter, and any breach of the Ecclesiastical Law had to be tried in the Ecclesiastical Courts. These marriages, though performed by clergymen of the Church, were only marriages so long as they were not attacked or impugned. Whenever action was taken to make them void, they were made void. The authority of Dr. Vaughan does not diminish the force of the argument that this is held by the clergymen to be a matter of his ordination vow, and if this Bill is to be passed he will be placed between the upper and the nether millstone—he will be dragged by the law of the land in one way, and by the law of the Church in another. The 99th Canon of the Church distinctly says that these marriages are incestuous and void. ["No, no."] Let those gentlemen who say "No" refer to the 99th Canon. The rubric at the head of the title of the Degrees of Affinity, states distinctly, that these marriages are contrary to the law of the Church, and how can a clergyman break the law of the Church to which he has promised obedience? I thank the right hon. Gentleman for the courteous way in which he dealt with my Amendment, but he did not express the slightest sympathy for the clergy or laity whose consciences will be outraged by what he proposes.
§ MR. A. ELLIOT (Roxburgh)
The hon. and gallant Gentleman will notice that there is no compulsion on any clergyman of the Church of England to perform the marriage service in such a case. In Scotland, no clergymen is required to perform these services.
§ *(1.15.) MR. SYDNEY GEDGE (Stockport)
It seems to me it is for the State to determine who may or may not marry; but, when it has done that, there ought not to be any distinction as to the way in which marriages should be celebrated. It is an absurdity to say that a man may marry a woman, and then go on to say that he shall do so only in a particular way. We are asked to say, we do not consider certain 105 marriages unlawful, and then to say that such marriages shall not be celebrated by religious service. The Amendment will prevent the parties from being married in a dissenting place of worship, for it tells the parties that their marriage shall not have a religious sanction. This is to put a stigma on an act of the State and to stultify the action of Parliament itself. A building can have no feelings, and objection to a marriage in a church can come only from a rector or vicar; but it is merely in a technical sense that the church belongs to him, because it it must be vested in somebody. The church does not in equity belong to the clergyman any more than it belongs to any layman in the parish, and therefore Parliament has nothing to do with the feelings of the clergymen as regards the building. Their personal feelings are sufficiently protected by another clause.
§ *COLONEL MAKINS
There is nothing in the Bill to prevent any dissenting minister from giving the sanction of his church to marriage after the civil contract has been performed before the registrar. After the civil marriage there can be a service at either church or chapel.
§ *(1.22.) MR. GAINSFORD BRUCE (Finsbury, Holborn)
I cannot allow a statement of my hon. and learned Friend the Member for Deptford (Mr. Darling), and of the right hon. and learned Gentleman opposite (Mr. Osborne Morgan), to pass unchallenged. The hon. and learned Gentleman said there was a time when these marriages were considered valid by the Church of England. It is true there was a time when marriages could only be set aside by the Ecclesiastical Courts; and until set aside by the Ecclesiastical Courts, they were voidable only. But they never were valid marriages. This matter has been discussed as if it affected members of the Church of England only. The matter is one that affects the conscience of Presbyterians; and in a declaration signed by ministers in Scotland of the Established, Free, and United Presbyterian Churches, it is stated that with the Presbyterian ministers the question 106 is no mere matter of Church law, but an article of faith which they would have no choice but to administer were the civil law changed. The promoters of the Bill will be well advised if they accept this Amendment, for unless they do they will offend the consciences of others besides members of the Church of England.
§ *MR. SYDNEY GEDGE
The difficulty is not got over by saying that there may be a religious service after the civil marriage. The point is that the marriage is required to be a secular and not a religious marriage, and that is to put a stigma on the marriage.
(1.25.) The Committee divided:—Ayes 36; Noes 107.—(Div. List, No. 276.)
§ *(1.35.) MR. GAINSFORD BRUCE
I beg to move to insert after "marriage," in line 7, the words, "hereafter to be celebrated." No doubt the House adopted the principle of an alteration of the marriage law when it passed the Second Reading of the Bill, but surely it is not reasonable that that alteration of the law should be made retrospective. The alteration ought only to affect marriages celebrated subsequently to the passing of the Act. Lord Coke, in his commentary on the statute of Gloucester, says that it is the regular practice of Parliament in passing a new measure to affect the future, not the past. In this particular case there is no reason why the ordinary principles of legislation should be disregarded. The moment the Act is passed, any person who has already gone through the form of marriage with his deceased wife's sister may contract a valid marriage with her. It may be said that it is humiliating for such persons to go through the form of marriage. I do not see why it should be so considered. It is a more honourable thing to go through the ceremony of marriage than to claim the advantage of marriage by reason of the automatic provisions of an Act of Parliament, which will have the effect of marrying a large number of persons in the lump without their consent, and in many cases without their knowledge. It is said that one object of the clause is to legitimise the children, 107 but that may be done by an express provision in the Act. It would be very much better to deal with this matter in the ordinary way, and to allow the law to operate from the time of the passing of the Act, and to insert a special clause giving from the date of the Act the status of legitimacy to the children. I submit that the Amendment is a reasonable one, and I hope that it will be accepted.
§ Amendment proposed, in page 1, line 7, after the word "marriage," to insert the words "hereafter to be celebrated."—(Mr. Gainsford Bruce.)
§ Question proposed, "That those words be there inserted."
§ *(1.38.) MR. G. OSBORNE MORGAN
I think the hon. Member has attached too wide an operation to the clause. The clause will apply to marriages with a deceased wife's sister celebrated in the colonies. Those marriages are valid as far as the colonies are concerned, and they are also valid to a certain extent in the United Kingdom. Thus, if a person who contracts such a marriage in the colonies comes back to England and dies intestate, the marriage is held to be valid in this country as regards movable property, but invalid as regards immovable property. But I do not see how the clause can apply in the case of alleged marriages celebrated in England (which are really not marriages at all) though it may apply to marriages celebrated in the colonies. Surely it would be absurd not to take advantage of this opportunity of getting rid of an obvious inconsistency in our law.
§ *(1.39.) THE POSTMASTER GENERAL (Mr. RAIKES,) Cambridge University
I thought the object of this Bill was to make valid those marriages with a deceased wife's sister which have taken place in England as well as in the colonies. But the right hon. and learned Gentleman the Member for Denbighshire, who is a lawyer of no mean repute, has just put a most extraordinary gloss upon the clause. It appears to me that an explanation ought to be made as to the real effect and meaning of the Bill. In view of the endless litigation likely 108 to arise from any vague legislation on this point, I think we should be justified in moving to report Progress in order to elicit an explanation.
§ *(1.41.) MR. HENEAGE
I think the right hon. Gentleman is rather hard upon my right hon. Friend, who was only dealing with one aspect of the clause. Looking at it as a whole, the promoters of the Bill decline to be parties to making illegitimate, after the Bill has passed, the children of marriages with a deceased wife's sister, whether such marriages have been performed in this country or in the colonies. We desire that the offspring of all marriages shall be legitimate, subject to certain conditions put down in Clause 3. We believe that the present law is unjust, and desire that there shall be no stigma on the children who are the offspring of these marriages. We also think it unnecessary to call upon the parents to go through the degradation of a second marriage. Those are the reasons which prevent us accepting the Amendment of the hon. Member for Finsbury.
§ *(1.43.) MR. SYDNEY GEDGE
There is evidently a difference of opinion between the right hon. Gentlemen the Members for Grimsby and Denbighshire. One declares that the clause has a certain meaning, and the other says it means nothing of the kind. May I point out that a marriage with a deceased wife's sister, if celebrated in the United Kingdom, is not a marriage at all; it is a mere form. In that respect it differs from marriages celebrated abroad and in the colonies. We surely have a right to know exactly what the Bill does mean, and we ought to have the opinion of the Law Officers of the Crown as to what the effect of the clause will be. I contend that we ought not to be asked to pass a clause which two right hon. Gentlemen interested in the Bill have interpreted in two different ways. We ought to have the advice of the Law Officers of the Crown, who are both absent from the House, attending, I presume, to their private practice. Their guidance is imperatively needed, and the fact that they are absent constitutes 109 good ground for adjourning the discussion. I do not agree with the right hon. Gentleman the Member for Denbighshire in his views as to the effect of the law regarding the property of persons who have contracted these marriages, and died intestate. If the marriage is contracted in a colony by persons domiciled in that colony, I believe it is treated as valid for all purposes all the world over. If a marriage is solemnised between two foreigners in their own country our law does not go behind it, provided, of course, it is a Christian and not, for instance, a Mahommedan marriage. If the marriage were between a Frenchman and Frenchwoman in France, and if a child were the result, that child would, should the father die intestate, inherit the real property if the deceased possessed any in England. As the meaning of the clause is so full of doubt, and as the Law Officers of the Crown are not here to advise us, I beg to move to report Progress.
It does not appear to me that the reason assigned by the hon. Member is adequate ground for the Motion. I cannot put it, as, in the circumstances, it is an abuse of the Rules of the House. The Committee is quite competent to work the question out.
§ (1.50.) MR. KELLY (Camberwell, N.)
I do not think the language of the clause could be more plain or more simple. I cannot understand why some hon. Members, like the hon. Member for Finsbury, object to the retrospective action of this clause. This is a vital question in many English households, and yet the hon. Members want to fasten the stigma of bastardy on the children, and to humiliate the parents by making them go through a second marriage. It seems to me that the one object of hon. Members opposing the Bill is to prevent a change being made in the law, and that is why this discussion is being prolonged.
§ *(1.54) MR. TOMLINSON
This is not simply a question of the reading of the clause. We want to know its exact meaning, and as to that even the promoters of the Bill are not 110 unanimous. I do not see any reason for making the clause retrospective in its action, and I think we are justified in insisting on a full and clear explanation. I should like to know, for instance, will the clause apply to all persons who have contracted these marriages?
§ *(1.57.) MR. DARLING
I think the right hon. Gentleman the Member for Denbighshire was in error when he said that this clause would not apply to marriages solemnised in this country, and I am glad to see that the Home Secretary is now in his place, as he is an authority upon these questions. The right hon. Gentleman said that as a form of marriage was not a marriage the clause would not apply to marriages with deceased wives sisters celebrated in this country. In that I cannot agree with him, because I hold that the intention is to legalise all such marriages, even if they have taken place in this country. If I turn to Lord Lyndhurst's Act, I find it makes all such marriages in this country absolutely void. It says—It is fitting that all marriages which may hereafter be celebrated between persons within the prohibited degree of consanguinity and affinity shall be absolutely null and void to all intents and purposes whatsoever.But those are spoken of as marriages, and not as mere forms. Now we want to legalise them. How else can we describe them than as marriages? It is not necessary to go on to say that these marriages are null and void to all intents and purposes, but practically that is what it amounts to; they are null and invalid because Lord Lyndhurst's Act makes them so. The right hon. Gentlemen on the Front Bench were, I think, delighted to hear the right hon. and learned Member for Denbighshire make the slip he did. I do not think they take the same view. I do not think the Home Secretary does. I think they were delighted at the obstacle the right hon. Gentleman by his words placed in the way of those who have brought in the Bill. I shall be surprised if any other lawyer should get up and say the Bill as it stands would not cover equally colonial marriages and marriages solemnised in this country, but void by Lord Lyndhurst's Act.
§ *(2.1.) MR. G. OSBORNE MORGAN
I simply stated my individual opinion, and I had in mind a remark of Lord Hatherley, that marriage within the degrees of affinity is no marriage at all; but that, of course, is only an obiter dictum. Now that the hon. Member for Deptford has quoted the words of Lord Lyndhurst's Act, I think we are safe in following the words of that Statute. In any case, I should not wish to set up my individual opinion against the preponderance of legal opinion in this House, and certainly not against the actual words of the Statute quoted.
§ *(2.2.) MR. GAINSFORD BRUCE
There is one way in which the difficulty can be settled. I think the hon. and learned Member for Deptford has shown there is considerable doubt whether the contention of the right hon. Member for Denbigh is correct or not; but that can easily be settled by adding the words "celebrated in the colonies or abroad in such circumstances as a valid marriage."
§ MR. A. ELLIOT
As my name is on the back of the Bill, and I have taken a considerable part in promoting it, perhaps I may be allowed to say that, as far as I know, of the many gentlemen whose names are on the Bill not one of them had an idea that the clause could bear the construction put upon it by the right hon. and learned Member for Denbigh. I listened to him with interest, and I attach great weight to his opinion on matters of legal construction. But I understand he did not give his opinion in any other capacity than that of a private Member, and I should like to know, if this discussion is to proceed, whether the opinion lightly and casually thrown out by an individual Member has any support in the Committee? If there is any such support, I have seen no indication of it. I think we may assume that the construction put upon the clause by the promoters of the Bill is the true construction, and that the Bill refers to marriages which are invalid, because they are between a man and his deceased wife's sister, and that the Bill validates such marriages. As we seem all agreed that 112 this is the construction, I do not think we need continue the discussion.
§ *(2.5.) COLONEL MAKINS
This is a matter of vital importance, as, indeed, all matters connected with the Marriage Laws are; and it is impossible for us to leave the matter in the slightest doubt. It is all very well for the right hon. Gentleman the Member for Denbigh to make himself a legal Jonah, and swallow his opinions; but when an opinion is deliberately expressed by a legal authority, we are entitled to have that opinion affirmed by an equally eminent legal authority, or we should have it con clusively demolished. Would it not be far better to adopt the suggestion of the hon. Member for Finsbury (Mr. Bruce), and clear away all doubt by putting in words which will definitely decide what marriages we do mean? There are several different kinds of marriages with a deceased wife's sister, some contracted abroad, some in the colonies where such marriages are legal, some where there is no law affecting them, and on every one a question may arise whether it is rendered valid by the Bill. It would be far better, in my opinion, for the promoters to withdraw the clause now, and bring in another on Report dealing with this question and making the meaning clear. The whole matter is surrounded by legal difficulties, and bristles with objections which may be raised when it is proposed to validate one of these marriages. I proposed to allow these marriages to be registered simply. The hon. Member for Camber well talks about the degradation of going through a second marriage——
§ *COLONEL MAKINS
That is easily removed by going through a second marriage. ["No, no!"] If a marriage can be made legal retrospectively so can children be legitimatised. It follows that if Parliament can legalise the one 113 so it can the other. If an Act of Parliament retrospectively makes a marriage legal equally Parliament can say the offspring of such marriage are legitimate. That should be done by a special clause; it should not be left to be fought out on the meaning of words in a clause. I earnestly hope that we shall have it made perfectly clear, either by the insertion of the word "hereafter" after "marriage," or by a separate clause. If the promoters will undertake to bring up a clause on Report dealing with the matter I shall be satisfied; but I do not think we can leave the matter in the vague condition in which it now is, especially after the opinion expressed by the right hon. Member for Denbigh.
§ (2.11.) MR. HENEAGE
The only expression of opinion throwing any doubt upon the construction was that from my right hon. Friend the Member for Denbigh, and that opinion he has since withdrawn, and, therefore, all this discussion is founded on a myth. The Amendment we have to consider is that of the hon. Member for Finsbury, and with that I think we should proceed to deal. The hon. Member wants to put in words to prevent the retrospective action of the clause. To that we are entirely opposed, and upon that the Committee have to come to a decision.
§ MR. JEFFREYS (Hants, Basingstoke)
Although there seems some dispute as to the interpretation of the words in the clause, at any rate the Amendment of my hon. Friend has the merit of being perfectly plain. He proposes to insert words to prevent the Bill, if it passes, being retrospective in its action, and therein many of us support him. Although the Bill may pass into law, yet we think it is very wrong that all these marriages, contracted in contravention of the law of the land and of the Church—marriages that have taken place, as hon. Members say, "by accident or otherwise"—should be made perfectly legal. How can such marriages be deemed accidental? People know perfectly well that it has always been illegal to go through the form of such marriages. No doubt in some of our colonies and abroad such marriages are legal, the 114 parties being domiciled there. But why, when they come here, should we, by giving the Bill a retrospective action, liberate these persons from the consequences of having deliberately broken the law, whitewash them, and place them in the same position as other persons who have regarded the law? The hon. Member for Camberwell says the numbers in the last Division show how large a majority there is in support of the Bill, and that opponents of the measure ought at once to submit; but to apply such a principle would stop discussion on many Bills, discussion that has often led to useful and important results in modification of original proposals. We are, perhaps, in a minority at this present time; but we are a united minority, and feel very strongly about this Bill. Why should discussion be stifled because on this particular day we are in a minority? We have still the right to discuss the Bill. But to return to the Amendment. It is perfectly plain in its object; there is no ambiguity about it. We propose that the Bill shall not have a retrospective effect, and in that object I have great pleasure in supporting my hon. Friend.
§ *(2.15.) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Mr. MATTHEWS,) Birmingham, E.
I do not intervene in the Debate as a lawyer, but there is one matter to which I would ask the right hon. Gentleman the Member for Denbigh to direct his legal mind-I am sorry to see he has left his place. Accepting his dictum that the marriage referred to here means a marriage de facto between a man and his deceased wife's sister, whether contracted in the past or in the future, I wish the promoters of the Bill to consider this point. What does the clause do? I invite attention to the structure of the clause. Let us take the case of a past marriage between a man and his deceased wife's sister. The clause says that that marriage shall not hereafter be deemed invalid by reason of affinity; but it does not say that a marriage is no longer to be deemed invalid for the period which elapsed between its celebration and the passing of the Act. By the law as it stood at that time the marriage was 115 absolutely void, and the children born during that period bastards. The clause says that hereafter—that is, after the passing of this Bill—such marriages are not invalid; but it does not say those marriages were valid from the beginning. The clause leaves past marriages with all the sins of their origin, and with the effects attaching to them, from the moment of the celebration to the passing of this Bill. This is a consideration worth the attention of these eminent lawyers whoso names are on the back of the Bill. The right hon. Gentleman the Member for Denbigh has returned. Let me put the proposition to him. The sole effect of the clause is to say that with regard to marriages celebrated before they shall not be deemed invalid after the passing of this Act; but the clause leaves such a marriage, as it was from the celebration to the passing of this Act, incestuous and void, carrying no civil rights, and giving no legitimacy to the children born of such marriage before the passing of this Act. It will consequently leave a very considerable doubt as to the status of the issue of marriages of that kind contracted in the past. For my own part, I think such marriages should not be valid in the future, and, still less, when contracted in the past, in defiance of Lord Lyndhurst's Act, but I only point out these doubts as to rights and position of children born of such marriages during the interval between the contraction of the marriage and the passing of this Act.
§ *(2.19.) MR. TALBOT
I waited thinking there would be some reply to the Home Secretary. I am not a lawyer, and will not presume to intervene between my right hon. Friend and the right hon. Gentleman the Member for Denbigh; but I am, I hope, an English politician and a reader of English history, and I must say I think that of all the monstrous propositions ever submitted to the House of Commons this is about the most monstrous. Persons who have deliberately broken the law are now, by a clause in an Act of Parliament brought in by a private Member, to be set free from the consequences of their action. I regret the absence of some of the responsible leaders of the Party opposite, 116 of the right hon. Gentleman the Member for Mid Lothian, and the right hon. Gentleman the Member for Derby, who has held the responsible position of Home Secretary. I can understand the support of this clause from hon. Members who have no responsible position, but not from those who have some regard for the preservation of constitutional principles. There is much more in this than the legalisation of marriage with a deceased wife's sister. Whether that be a matter of minor importance or not, it is not a matter of minor importance to say to people "break the law if it is your pleasure to do so, and we will pass a Bill to declare that you have not broken the law." A more monstrous proposition than this can hardly be advanced. I am sorry, in one sense, that this red herring should be trailed across the track, because interesting and amusing as it is to find the right hon. Gentleman the Member for Denbigh at first suggesting that the Bill means one thing, and then when his friends will have nothing to do with that construction saying he did not mean what he said—interesting and amusing as this episode has been, I should like to hear this matter discussed with graver arguments. I still hope there may be those on the other side of the House who consider this matter is too grave to be disposed of off-hand in half an hour's discussion in a thin House on a Wednesday afternoon. Are we to say to a man marry whom you please—["Hear, hear!"]—and when you have done this——"Hear, hear," says my hon. Friend. Docs he mean——
§ *MR. TALBOT
Yes; marry anybody. "Marry whom you please," and then come to the House for a Bill to declare that you may do so with impunity, and that your issue shall be legitimate. The interjection of my hon. Friend shows how far-reaching is the effect of this proposal. Parliament cannot stop at this point; and if we are to sweep away all the doctrines connected with matrimony, then England will become a very different country from what we have known and loved in the 117 past. [Cries of "Question!"] This is the question I want my hon. Friend to face. He said just now, in his interlocutory remark, "Marry whom you please." [Cries of "Question!"] This is the question. If my hon. Friend does not mean what he said let him, too, get up and say he did not mean it. This is a vital point, and the future position of this question ought to be made clear before the Committee allows it to pass. I, for one, shall strongly oppose the clause, believing that its effect will be the demoralisation of the people.
§ * 2.24.) MR. DARLING
Some attention is due to the point raised by the Home Secretary. I have supported the Bill so far, and I hope to support it still further, but I have an objection to voting for a clause I do not understand, unless, perhaps, it happens to be in the Land Bill for Ireland, or something of that kind. I have endeavoured to understand this clause. The Home Secretary has raised a point which presents a very serious question indeed.
§ *MR. DARLING
I accept your ruling. Sir, but I have some difficulty in voting against the Amendment unless I know exactly what the clause means without the Amendment. The hon. Member for Finsbury says, "Let us make these marriages valid in the future," and he gives his reasons. "Let us," he says, "legitimatise the offspring of these marriages, but not if such marriages have taken place in defiance of the law."
§ *MR. GAINSFORD BRUCE
I said if it was the object of the framers of the Bill to do that it had better be done by a separate clause.
§ *MR. DARLING
But I cannot imagine how it could be better done. Whether these marriages from the time they are contracted are to be valid or whether from the time of the passing of this Act is the question. There is a hiatus to be provided for, and I cannot imagine that the Amendment of the hon. Member for Finsbury will be sufficient. He says "Let them be invalid until the ceremony is performed again," and yet, where no 118 second marriage is performed, he says, "Let the offspring be made legitimate." But these were born when the parents were no more married than Henri Quatre to Gabrielle D'Estrées, and they must be legitimated as those were. How can the offspring be legitimate when there was no marriage? I cannot bring myself to vote for the Amendment without some elucidation of this point. But I should like to know, if we vote against the Amendment, whether those children born of marriages with Lord Lyndhurst's Act in force are legitimate or whether they are not. Grave doubts arise under the form of the clause. The clause says such marriages shall not hereafter be deemed unlawful or invalid, but only hereafter and from the time of the passing of the Bill. I am in the dilemma that I do not want to vote for the Amendment of my hon. Friend, but I do not want to vote for the clause, because I do not understand it, and unless some explanation is given I shall not vote for it. I object to putting on the Statute Book an Act that from the moment of its passing raises doubts so grave, and no explanation is forthcoming.
§ (2.29.) MR. J. CHAMBERLAIN (Birmingham, W.)
It would be presumptuous for a laymen to intervene on a point of legal construction. The Home Secretary disclaims intervention as the able lawyer we know him to be, and I as a laymen suggest to him that the clause is perfectly clear. It would undoubtedly legitimatise all those marriages and all the consequences of them. What is a marriage? Is it the act of marrying, or is it the condition of the parties? I say that it is the act of marrying; and when the law has declared that this act of marrying shall be deemed to be valid and lawful, then all the consequences of that act necessarily become valid. If that position is correct, I do not think there was anything in the scruples put before the Committee by the Home Secretary. An hon. Member opposite has said that a dangerous thing is being done which may lead to serious consequences; that we are condoning a breach of the law. There 119 is no doubt whatever that by this Bill we are declaring that the law has been wrong. If we declare that the law is wrong, we ought, as far as possible, to indemnify the parties from the consequences of that law. At the same time that we declare that this law is unjust we ought to relieve the parties who have suffered in consequence.
§ *(2.30.) MR. G. OSBORNE MORGAN
The answer to the right hon. Gentleman depends entirely on the meaning you place upon the word "marriage" in the clause. If it includes, as many who have spoken seem to think, marriage within prohibited degrees of affinity, then it is clear the effect of the clause will be to legalise marriage within prohibited degrees of affinity. [Cries of "Divide!"]
§ *MR. TOMLINSON
[Cries of "Divide!"]: It seems tome that the right hon. Gentleman opposite has put forward a doctrine which may be carried to a dangerous length. His doctrine is that if you make a change in the law it is evident that the law which previously existed was bad, and that those who suffered from it are entitled to relief. But it is the duty of every subject of Her Majesty to obey the law as he finds it, and it appears to me that there have been no more cruel acts committed in this world than some of those marriages with deceased wives' sisters. Men, knowing that they were acting illegally, have deliberately led women into these relationships, telling them, perhaps, that the time would come when the marriages would be rendered legal by Act of Parliament. Many of the parties to such marriages, of course, have died before any change in the law has been effected, and many of the women have been deserted without legal redress. [Cries of "Divide!" and interruption.] I would ask the Committee to look at the retrospective matter from a different point of view. What is the law? All marriages within prohibited degrees of affinity are on the same footing, and now you are going to say that one particular relationship out of many of the same kind shall be rendered legal. That is distinctly illogical, and it is unjust to the other cases.
§ *MR. TOMLINSON
I did not make my meaning clear. [Cries of "Divide!"] You cannot do an illegal act in the expectation that the law will be altered, and that that which you do to-day illegally will be rendered legal to-morrow.
§ *(2.36.) MR. SYDNEY GEDGE
[Cries of "Divide!"]: We have had a red herring drawn across the track by the right hon. Member for Denbighshire, and our attention has been diverted from the most serious part of the clause, namely, the intention that the provision shall have a universally retrospective effect, and that every marriage that has taken place in this country, or rather every so-called marriage, between a man and a woman who the law said should not be able to contract such a marriage will now be valid. The right hon. Gentleman the Member for West Birmingham says that the very fact that you alter the law shows that the law is a wrong one, and that, therefore, the people who break it ought to be put in the same position as if Parliament of a past period had altered the law instead of Parliament of the present day doing it. That is the most extraordinary proposition I ever heard laid down within these walls. It is clear that whenever we alter the law, by the fact of our doing so we say that the law as it stood before was imperfect, or improper, or wrong; so that, according to the right hon. Gentleman, whenever people have to conscientiously consider whether they may do this or that, they have not to ask themselves, "Is what I propose to do in accordance with the law or contrary to it?" but, "Is what I propose to do in accordance with or contrary to that which I hope at some future time Parliament will enact to be the law?" If that is the proposal we are asked to give assent to, we are certainly laying an axe at the root of everything we have thought to be the duty of law-abiding citizens in this country. It is tantamount to saying that a man is not to deal with the law as it stands, but according to his own notion of how future Parliaments may alter the law. On that broad ground of principle, 121 I hope that, whatever we do with regard to the Bill, we shall not make it retrospective. If we do we shall involve ourselves in inextricable confusion. There are cases in which a man has married his deceased wife's sister, and they have found after marriage that they have made a gross mistake, and have agreed to separate, and perhaps one of the parties has married another person. [Cries of "Divide!"] Now, if this clause is passed without this Amendment, the result will be that the man who had married his deceased wife's sister, who had left her and had married again, would have two lawful wives living in this country at the same time. ["No, no!" renewed cries of"Divide!" and interruption.]
§ *(2.44.) COLONEL MAKINS
The right hon. Gentleman the Member for West Birmingham has thrown the aegis of his authority over the construction of this clause. He confessed that he was not a lawyer [cries of "Divide!"], but he is generally governed by common sense, whether lawyer or not. But this Bill, if it passes into law, will have to be interpreted by lawyers; there fore, it is important that there should be no doubt as to what is the meaning of this clause. My hon. and learned Friend (Mr. Gedge) was laughed to scorn because he put the difficulty of the case of the man who had married his deceased wife's sister, and then, having separated from her, had married another woman. It is said that the Bill has provided for such a case, but I cannot see that the children of such a marriage are provided for. Who is to be the lawful heir of this man—the son born of the marriage with the deceased wife's sister or the son born of the subsequent marriage? I would appeal to the right hon. Gentleman to take measures to avoid these difficulties and all the disputes which would arise if the Bill became law in its present form. Let him put in words which will show that not only are marriages between a man and his deceased wife's sister which have 122 already taken place—whether the parties are alive or dead—valid, but that the offspring of these marriages are legitimate. It is clear that the points which have been raised by legal authorities are such as cannot be settled without a clear definition. I would suggest that he should insert a clear definition either when the Bill comes before us on a future day in Committee or when it comes before us on Report. I trust, however, that the House will not reject the present Amendment. On the merits of that Amendment I may say I have waited to hoar arguments against it and in favour of the Bill, but the conspiracy of silence initiated at the commencement of this discussion has been continued to the present point, and we do not know why the promoters of the Bill oppose the Amendment. They must remember that they are inaugurating a precedent which will be of the utmost consequence as to the general law of the country in legalising by a retrospective measure breaches of the law.
§ *(2.45.) MR. MATTHEWS
When I ventured to trespass on the time of the Committee before I was misled by the irrelevancy of my right hon. Friend opposite, I did not believe that any reason had been given for making the Bill retrospective. I am bound to say, however, that the right hon. Gentleman the Member for West Birmingham has given a reason for it, but I protest against that reason. The argument of the right hon. Gentleman seems to me to strike at the authority of Parliament and at the roots of public morality in this country. I deny that by the alteration of this law—even conceding for argument's sake that the altered temper of the age, the altered feelings of the people upon such subjects as consanguinity and affinity, justify the alteration of the law—I protest emphatically against its being said that the old law was therefore unjust, and that those who suffer by having broken it are entitled to reparation. That is like the argument from some hon. Members below the Gangway opposite, who, when 123 the machinery is contrived for relieving tenants from the payment of rent, thenceforth always assert that the old rents were unjust and wicked. And so the right hon. Gentleman treats the law we are going to alter as an unjust law. I, on the contrary, maintain that the law has been in accordance with the public conscience, not only of the Parliament of the time, but of all past ages. ["No."] Yes; from the beginning of the Christian Church. [Cries of "No, no!" from the Opposition Benches.] These marriages have been contrary to the public sense of all civilised nations, and the law simply has put upon record what all men were agreed upon up to that time. But we live and grow, and many Members of this honourable House uphold the new morality as being superior to the old. I protest against the Act of Parliament of 1840 being branded as so unjust that, forsooth, some legislative compensation is due to those who have acted in defiance of that law, and in defiance of the recognised morality of the time and of all past ages. It is now agreed by the lawyers and social philosophers that this clause is going to validate past marriages of this kind whenever and wherever contracted, and therefore, I suppose, going to validate those marriages in their very inception and origin, and going to legitimatise the offspring. That is to happen although both the married persons have already ceased to exist. What will be the consequences in respect of civil rights? There must be many cases in which estates have passed to to, and become vested in, perfectly innocent persons. [Cries of "No!"] Yes! [VOICES: "Clause 3;" and the right hon. Gentleman paused to read the clause.] I beg pardon. I shall not pursue the topic. The clause referred to answers the objection I was about to make. I observe, however, that the right hon. Gentleman in charge of the Bill will move to strike out Clause 3.
§ MR. HENEAGE
In order to substitute a much better clause in the name of the hon. Member for Finsbury, I agreed with the hon. Member to substitute that.
§ Question put, "That the Question be now put."
§ (2.50.) The Committee divided:—Ayes 141; Noes 60.—(Div. List, No. 277.)
§ Question put accordingly, "That those words be there inserted."
§ (3.0.) The Committee divided:—Ayes 78; Noes 136.—(Div. List, No. 278.)
§ *MR. GAINSFORD BRUCE
I rise to move the Amendment standing in my name, namely, in Clause 1, page 1, to insert the words "subsequently to such marriage and." Supposing a man marries a woman and she dies, and after that he marries his deceased wife's sister, if the first marriage took place during the life of the deceased wife's sister the marriage with the deceased wife's sister would be invalid, unless the Bill is amended in the way I propose.
§ Amendment agreed to.
§ *MR. TOMLINSON
The clause provides that no marriage should be deemed unlawful or invalid by reason only of its being, or having been, between a man and his deceased wife's sister unless either of the parties had married some other person before the passing of this Act. I move, as an Amendment, that the words "before the passing of this Act" shall be omitted.
§ Amendment proposed, in page 1, line 10, to leave out the words "before the passing of this Act."—(Mr. Tomlinson.)
§ Question proposed, "That the words proposed to be left out stand part of the Clause."
MR. R. T. REID&c.) (Dumfries,
If these words are omitted the clause will make a marriage with a deceased wife's sister voidable, for it will enable any person after the passing of this Act to marry any one else, and prevent the deceased wife's sister and her children from having the benefit of the Act.
125 (3.25.) The Committee divided:—Ayes 153; Noes 74.—(Div. List, No. 279.) (3.35.)
(3.54.) Amendment proposed,
In page 1, line 11, to leave out the words "or the parties have been separated by decree," in order to insert the words "or the husband of the deceased wife in the lifetime of his said deceased wife shall have been pronounced by the judgment, decree, or sentence of a competent tribunal guilty of adultery with the other party to such marriage."—(Mr. Gainsford Bruce.)
§ MR. TOMLINSON
I think this provision is a very desirable one so far as it goes, but I am not sure that it goes far enough. I think that the words "in the lifetime of his said deceased wife" are surplusage, and beg to move their omission from the words proposed to be inserted.
§ Amendment, as amended, agreed to.
§ *MR. TOMLINSON
I now beg to move a further Amendment in line 11, the object of which is to prevent two people who have contracted one of these marriages, but who have, in fact, separated, being forced to continue their union against their will. Where persons have, in fact, separated they should not be required to prove strictly an agreement to separate in order to exclude them from the Bill.
§ Amendment proposed, in page 1, line 11, before the word "agreed," to insert the words "in fact separated."—(Mr. Tomlinson.)
§ Question proposed, "That those words be there inserted."
§ *MR. TALBOT
Perhaps the promoters of the Bill will tell us if they accept this. I do not see why persons who have contracted these alliances, and subsequently agreed to separate, should by this Act be obliged to consider themselves as legally married.
§ (3.58.) MR. R. T. REID
The hon. Member for Oxford University has rightly stated the point. He says that persons who have agreed to separate ought not to be legally bound together 126 by the passing of this Bill; and the clause provides that in such cases they shall be exempt from the operation of the Act. Surely his own sense of justice will satisfy him that that view is a correct one. But a man may have led a woman into these relations under a solemn promise, and he may choose, without any agreement with the woman, to leave her just before the Bill passes into law. That would not be a separation by agreement, and in that case the exemption provided for in this clause would not apply.
§ *COLONEL MAKINS
I agree with the views of my hon. Friend, and hope that the Amendment will be pressed.
§ *MR. TOMLINSON
I do not think the hon. Member for Dumfries answered the proposition I put forward. I agree with him that in the case he cited there would not be any formal agreement to separate.
§ *MR. SYDNEY GEDGE
I hope my hon. Friend will not press this Amendment. Much as I object to these marriages and hope the Bill may not pass, if it is to become law I shall certainly do all I can to make it as good a measure as is possible under the circumstances. There are other parties to consider besides the man and his wife, namely, the children. It seems to me we ought to make it as easy as possible to determine whether a man and a woman are really married or not.
§ *MR. TOMLINSON
All I say is, do not let us sweep into the net those whom we do not really desire to sweep into the net.
§ (4.2.) MR. STANLEY LEIGHTON (Shropshire, Oswestry)
There must be two parties to an agreement, and therefore the marriage, as I take it, will be legalised unless both parties agree to separate. Both parties to such a marriage know that the issue are legitimate at the present moment. One may desire that this state of things should continue, and that the true heirs should not be kept out of the pro perty——
§ MR. STANLEY LEIGHTON
But we are not at Clause 3 yet, and I am dealing with this clause. We do not know what will happen when we come to Clause 3. Am I right in assuming that if one of the parties desires that the state of things existing now in regard to the issue shall remain as it is the clause will not apply?
§ *COLONEL MAKINS
I cannot help thinking that if this Bill is to become law, a place should he left for repentance of those who have contracted a marriage which they knew at the time was illegal. With that view, I shall support the Amendment.
(4.6.) The Committee divided:—Ayes 74; Noes 174.—(Div. List, No. 280.)
§ *MR. GAINSFORD BRUCE
I move to insert the proviso which stands in my name—Provided that in the case of a marriage hereafter to be celebrated, it shall have been celebrated in accordance with the terms of such certificate as hereinafter mentioned, granted under the hand of one of Her Majesty's Principal Secretaries of State.Allusions have been made to the law as it exists in other countries of Europe, where there is a distinction between the ecclesiastical and the civil marriage. In this country fortunately, at the present time, the Civil Law and the Ecclesiastical Law remain the same, and this Bill will for the first time draw a distinction between them. It behoves us, under the circumstances, to consider the state of things where the distinction already exists. In Roman Catholic countries it is necessary to obtain the assent of the ecclesiastical authorities to a religious marriage, and of the civil power to a civil marriage. In some of the Protestant countries of Europe these marriages are not allowed on any terms, but in nearly all those Protestant countries where such marriages are allowed they are allowed only by the licence of the Crown. There is, therefore, no novelty in this proposal; it is founded on the 128 results of experience. The Italian Code, which very fairly represents the opinion of modern Europe with reference to the subject with which it deals, lays down that these civil marriages can only be celebrated with the consent of the authorities representing the Crown. The words of the Code are—The Crown may for grave cause enable a marriage to take place between a man and his deceased wife's sister.If gentlemen opposite wish to introduce a foreign law into this country, at least let them accompany it with safeguards, which are found necessary abroad.
At the end of the Clause, to add the words "Provided that in the case of a marriage hereafter to be celebrated, it shall have been celebrated in accordance with the terms of such certificate as hereinafter mentioned, granted under the hand of one of Her Majesty's Principal Secretaries of State."—(Mr. Gainsford Bruce.)
§ Question proposed, "That those words be there added."
§ MR. HENEAGE
This Amendment is entirely inconsistent with the whole principle of the Bill, which is to place these marriages in the same category as ordinary marriages. We cannot accept the proposal.
§ *(4.22.) MR. TOMLINSON
There is no doubt that this is a very important proposal. The question to consider is, whether these marriages ought to be regarded as the rule or the exception. We are asked to pass this Bill, because foreign nations have adopted the system it will legalise; but it is a fair retort that foreign nations regard these marriages as exceptional things, which ought only to be allowed on exceptional grounds. My hon. and learned Friend's suggestion is, I think, deserving of great consideration. Unless some better suggestion is put before the Committee for exercising authority over these marriages, and allowing them only under exceptional circumstances, I must support the Amendment.
§ MR. A. ELLIOT
We know that in Italy and other Roman Catholic countries marriages of this kind are continually celebrated, subject to dispensation by the proper ecclesiastical authorities. I can hardly suppose my hon. 129 and learned Friend (Mr. Gainsford Bruce) is serious when he proposes that it should become one of the duties of the Home Secretary to decide whether or not it is fitting that particular individuals should enter into matrimonial relations.
§ *(4.25.) MR. SYDNEY GEDGE
My first objection to this Amendment is that you are making one law for the rich and another for the poor. This Bill has been pressed upon us, it is said, in the interest of the poor. I rather think it is in the interest of a few rich people. But after all, if we pass the Bill, do not let us do it in a grudging way: let us do it in a straightforward way. If we adopt this Amendment, and a poor man wants to marry his deceased wife's sister, he will have to seek out the Secretary of State. He will have to consult a solicitor, which is always a more or less expensive process, perhaps counsel, which is still more expensive. He will have to present a petition, and make disclosures which will be very disagreeable to him. And then, upon receiving an application from this poor man, the Secretary of State shall cause such inquiries to be made as he may think fit. Into what the Bill does not say—whether it is as to the age of the man, or his pecuniary circum stances, or as to the number of children he has by his first wife, or as to whether the children require the assistance of their aunt——
§ Question put, "That the Question be now put."
§ (4.30.) The Committee divided:—Ayes 166; Noes 92.—(Div. List, No. 281.)
§ Question put accordingly, "That those words be there added."
§ (4.45.) The Committee divided:—Ayes 53; Noes 213.—(Div. List, No. 282.)
§ Mr. HENEAGE
claimed to move, "That the Question, 'That the Clause, as amended, stand part of the Bill,' be now put."
§ Question put, "That the Question, 'That the Clause, as amended, stand part of the Bill,' be now put."
§ (4.55.) The Committee divided:—
§ (5.0.) On the return of the Tellers,
§ *MR. SYDNEY GEDGE (speaking seated)
On a point of order, Sir, I desire to call your attention to the fact that the right hon. Gentleman the Member for Grimsby (Mr. Heneage) moved that the Question be now put before the Motion, "That the Clause be added to the Bill," had been put from the Chair. That Question had not been proposed from the Chair. Rule 186 provides that "after a Question has been proposed a Member rising in his place may claim to move, 'That the Question be now put,'" and I submit to you, Sir, as a point of order, that the Question had not been proposed from the Chair, and that it was, therefore, not competent for the right hon. Gentleman to move the Closure on the Question, "That the Clause, as amended, be added to the Bill," inasmuch as that Question was not before the Committee.
The right hon. Gentleman the Member for Grimsby (Mr. Heneage) had moved "That the Question be now put" on a previous Amendment, and it had been carried. The Rule says—When the Question 'that the Question be now put' has been carried, and the Question consequent thereon has been decided "—as it has been—any further Motion may be made (the assent of the Chair as aforesaid not having been withheld) which may be requisite to bring to a decision any Question already proposed from the Chair. Also, if a clause be then under consideration, a Motion may be made (the assent 131 of the Chair as aforesaid not having been withheld), that the Question, that certain words of the clause defined in the Motion stand part of the clause, or that the clause stand part of, or be added to the Bill, be now put.
§ *MR. TOMLINSON
I submit to you, Sir, as a matter of order, that was not the next Question to be considered. I had an Amendment on the Paper.
The figures were announced as follows:—Ayes 175; Noes 94.—(Div. List, No. 283.)
§ (5.4.) Question put, "That the Clause, as amended, stand part of the Bill."
§ The Committee divided:—Ayes 182; Noes 99,—(Div. List, No. 284.)
§ Clause 2.
§ *(5.16.) MR. TALBOT
I beg, Mr. Courtney, to move that you do now report Progress. Hitherto our discussions, though long, have been friendly, but I am sorry to say that, in view of what has recently occurred, they are not likely to be so any longer. The right hon. Gentleman the Member for Grimsby (Mr. Heneage), whose general courtesy we all acknowledge, has allowed his ordinary equanimity to be disturbed by the occurrences of the day. He has thought proper to take a course which I cannot help thinking he and his supporters will feel is a most arbitrary and oppressive one. He has not only endeavoured to close the mouths of his opponents, but has actually closed the mouths of his friends on this side of the House. My hon. Friend the Member for Stockport (Mr. Gedge) was actually supporting the views of the right hon. Gentleman when he was closured. More than that, the right hon. Gentleman has wholly shut out from the consideration of the Committee a most vital Amendment. I protest most strongly against the action that has been taken. I trust it will not be regarded as a precedent for the future. In order to emphasise the feelings I have on the question I beg to move, Mr. Courtney, that you do now report Progress.
§ Motion made, and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. J. G. Talbot.)132
§ *COLONEL MAKINS
I rise to second the Motion. I think the right hon. Gentleman (Mr. Heneage) has made a great mistake in tactics. He might just as well have moved that the remaining clauses of the Bill be put from the Chair. It is just as well that the supporters of the Bill and people outside should know that a Bill of this importance cannot be passed in a few minutes.
§ (5.20.) SIR W. HARCOURT (Derby)
I hope the House will go on with the Bill. Gentlemen opposite have had the opportunity of expressing their disapproval of the Bill. We on this side of the House have had a good deal of experience of the Closure. Last night the Government got into difficulties with a clause, and immediately applied the Closure. We bore it patiently, and directly afterwards they were good enough to accept all the things we had been contending for. I hope hon. Members will allow the Bill to go on.
§ MR. LABOUCHERE (Northampton)
I never indulge in obstruction, but I confess that if I ever felt inclined to indulge in obstruction I should try and benefit by the object lesson which has been given us by the ecclesiastical gentlemen opposite, and not only by the ecclesiastical gentlemen but by the Members of Her Majesty's Government. We have been told again and again by our respected leader in this House, the First Lord of the Treasury, that "time is money," and many other valuable things of that character, and have been urged by him to make progress. Gentlemen opposite say they want time for discussing a question that has been under discussion for 50 long years. We know what all this means. We know perfectly well that there is a determination on the part of a certain number of gentlemen to aid and abet the Members of the other House in preventing the Bill from being passed. It is impossible for the Bill to proceed with the obstruction which is going on. Do hon. Gentlemen mean to say that these childish and foolish Amendments 133 which have been moved, these scandalous attempts——
§ *COLONEL MAKINS
I rise to order, Sir. Is the hon. Gentleman using Parliamentary language in speaking of "scandalous attempts?"
§ MR. LABOUCHERE
I will withdraw that phrase, and say these "intelligent attempts" made by hon. Gentlemen opposite to prevent the Bill being passed not only by putting forward ridiculous Amendments, but by seizing every opportunity to have two Divisions instead of one on the Question "That the Question be now put." It is impossible for the discussion to go on to-day, but I hope the country will note what has been going on in the House to-day. For myself, I have made a note of it for future use.
§ (5.23.) MR. A. O'CONNOR (Donegal, E.)
I think we may draw an object-lesson for very useful instruction from the proceedings of the last half-hour, not only with regard to obstruction, but with regard to the use and abuse which is made of the Closure. It may hereafter be found that by establishing the Closure the House of Commons has done more harm to itself than by any other step that has been taken of late years. The hon. Member who has just sat down has been talking about scandalous obstruction and ridiculous Amendments. He does not appear to be aware that the right hon. Gentleman the Member for Grimsby, who is endeavouring to force the Bill through the House, and endeavouring to prevent other people from discussing Amendments, has himself on the Notice Paper several Amendments which have not yet been reached. We have been opposing the 1st clause of the Bill, and he himself proposes to leave out the 3rd clause. We have verbal Amendments on the Paper, and he has a verbal Amendment to the 6th clause. He alone, it appears, is to be entitled to express an opinion on the question of the 134 amendment of the Bill, and we, who take a great interest in the subject-matter of the measure, and desire that if it passes at all it shall pass in the best possible way, and shall do the least possible harm, are not to be allowed to open our mouths on a simple clause of the Bill. As to alleged obstruction, I have seen no obstruction as yet. Still, I saw the Closure moved after a most important Amendment had been under discussion for only three or four minutes. There was no time for obstruction in that instance, and I therefore protest against such a misapplication of the Closure. The Closure itself is bad, but if it is to be used first by one Party and then by another in this fashion, the proceedings of the House will become little short of scandalous.
§ (5.26.) MR. HENEAGE
I must confess that I am not surprised at the Motion, which is a perfectly fitting climax to the dilatory tactics which have been going on all day. The hon. Gentleman who has just spoken cannot have been present during the first part of the day. For an hour and a half we debated the question whether these marriages were to be secular or not, and I stated we had nothing to add to what we had said, and that if any Amendment had been accepted it would have been that of the hon. Member for Essex. I think, therefore, that I was perfectly justified in moving the Closure when another alternative Amendment was moved. I am told I have not acted courteously. But I would point out that I have accepted five Amendments from the other side, and that I have given way whenever I thought the words proposed were better than mine. As to the other Amendments, they were all opposed to the principle of the Bill, which the House has affirmed. The right hon. Gentleman the Member for Denbighshire made a slip which he explained within a quarter of an hour after making it—having left the House to consult Hansard—but for an hour and a quarter hon. Members opposite went on debating the slip as though my right hon. Friend maintained his original 135 position. I maintain that that was nothing more nor less than obstruction, and if I had known that there was a sufficient number of Members in the House at the time I should have moved the Closure. But, as a matter of fact, there was no Closure moved until half-past 3 o'clock. Everything we have done we have done in a courteous spirit, and so long as the measure is in my hands I intend to be courteous, but at the same time firm when I see dilatory tactics adopted.
§ (5.28.) MR. R. T. REID
I wish to point out that if the opposition which has been directed to-day against this Bill were offered to many Bills, the whole legislative power of this House would be absolutely palsied and paralysed. When the Government ask for leave to take the whole time of the House, I trust that hon. Gentlemen who have witnessed the proceedings of to-day will be resolute in trying to get the Government to make an exception in favour of this Bill.
It being half-past Five of the clock, the Motion for Progress lapsed, and the Chairman left the Chair to make his Report to the House.
Committee report Progress; to sit again upon Wednesday next.