CLAUSE 3.—(Marriage of Sovereign under the age of eighteen forbidden during Regency without consent of Regent and Parliament). (Hansard, 5 July 1910)

§ Mr. J. KING (for Mr. Luttrell)
On behalf of my hon. Friend I beg to move, in Sub-section (1), to leave out the words "and any marriage entered into in contravention of this Section snail be null and void to all intents and purposes."
I move this Amendment because I think the retention of the words I propose to leave out would be obviously offensive to present ideas. We desire to treat the Royal family, and all members of it, with as much respect and confidence as we should the members of our own families. This Clause, as it stands, means that a marriage might be lawfully performed according to the rites of the Church of England, and yet be declared null and void by this Parliament. I trust I shall have the support of those Members opposite who accept the traditions of the Church of England in my effort to eliminate the last portion of the Sub-section.

§ The PRIME MINISTER
I do not think my hon. Friend has carefully examined the language of the Clause. If he had he would see that the Amendment, if adopted, would be meaningless. What are the words he proposes to allow to stand without objection? That "during the Regency, the Sovereign for whom the Regent is appointed shall not intermarry before attaining the age of eighteen years, with any person unless the consent in writing of the Regent and the assent of both Houses of Parliament is previously obtained." He is prohibited there from marrying before attaining the age of eighteen unless the consent of the Regent and the assent of 1520 both Houses of Parliament is previously obtained, and the Clause goes on, "And any marriage entered into in contravention of this Section shall be null and void." What is the object of and what would be the effect of prohibiting a marriage if the prohibited marriage after it took place was not, to all intents and purposes, null and void? If my hon. Friend had proposed to omit the earlier words of the Section we should have something to argue about, but when you say first in absolute terms such a marriage is not to take place why object to saying if it does take place it shall be null and void?

§ Sir F. BANBURY
I do not think the hon. and learned Gentleman who moved the Amendment can really have read it before he moved it, because the Amendment would make nonsense if carried. Suppose, for the sake of argument, the Amendment was carried, and that the Sovereign was married without the assent of both Houses of Parliament, the marriage would be null and void, even though the words of the Amendment were omitted, because the Sovereign would have contracted a marriage without the consent of Parliament. I am not learned in the law, but I hope I have a little common-sense—a quality which seems to be lacking among certain Members on the other side of the House. It seems to me that the omission of these words can only be moved with the object of wasting time or else that the hon. Gentleman in whose name the Amendment stands upon the Paper, when he read it, decided he had better not move it himself, and left it to his hon. Friend to do so. I should like to have some explanation as to whether the Amendment was put down after due consideration, or if, after seeing it on the Paper, the hon. Member in whose name it is retired from the House for the time being. I hope the Amendment will not be pressed.

§ Mr. LUTTRELL
I think we ought to have the same law for the Sovereign with respect to matrimony as we have for the people of this country.

§ Sir F. BANBURY
This makes the Amendment more confused than ever. The hon. Member says we ought to have the same law for the Sovereign as for everybody else. Supposing the hon. Member were to marry, has he to come and obtain the assent of both Houses of Parliament? He is prepared to agree to the first part of the Section, which says the Sovereign 1521 cannot marry without the assent of both Houses of Parliament, unless without my knowledge he has introduced some Bill—

§ Mr. LUTTRELL
What I stated was that after the marriage was contracted the law with regard to it ought to be exactly the same as it is in the case of anybody else. The Sovereign should be treated in the same way as an ordinary being after he has entered into the bonds of matrimony.

§ Sir F. BANBURY
That apparently has only just occurred to the hon. Gentleman. The Amendment says nothing about "after the marriage has been contracted." The only argument he has brought forward is one which ought to induce him to vote against the Clause as it stands. I do not know whether he proposes to do that, but it is the only logical outcome of his argument.
Question, "That the words proposed to be left out stand part of the Clause," put, and agreed to.

§ Mr. LUTTRELL
moved to leave out Sub-section (2).
I am strongly opposed to this Sub-section. One may object to a marriage of this sort, but I do not think we ought to have the severe penalty of high treason put upon it. The Sovereign would be exempt and get off scot free, but the poor woman who happened to marry him would be subject to the punishment of death. I think that is far too high a penalty for such an offence, but I would be willing to accept the penalty for felony.

§ Mr. CARLILE
A responsibility is laid upon the Sovereign in the terms of the Bill by the Legislature, and in return for that he is entitled to the protection provided for in the Bill. No penalty could be too high, and I hope the hon. Member will see fit to withdraw his Amendment, because by eliminating the Sub-section the whole of the responsibility still devolves upon the Sovereign under the Bill, and the only protection which is extended to him by this Sub-section, is removed.

§ The PRIME MINISTER
The effect of the Amendment would be that no punishment of any sort or kind would be inflicted on those concerned in aiding, abetting, or procuring the marriage. My hon. Friend proposes to make it a perfectly legal act. I do not think he intends that. If he desires to discuss the question whether it should be treated as high treason or not 1522 that is an arguable point; but he now proposes that it should be perfectly legal for a person, or a number of persons, to procure the Sovereign a lady in marriage. I would therefore suggest to him that he should withdraw this Amendment.

§ Mr. LUTTRELL
My object was to eliminate this Sub-section and have something put in its place. We hope there will be some improvement on the Sub-section, and on those grounds I am perfectly willing to withdraw my Amendment.

§ Mr. LUTTRELL
moved, in Sub-section (2), after the word "shall" ["any person who shall"] to insert the word "knowingly."
I think my Amendment will greatly improve the Sub-section. Anyone might abet a marriage of this sort without knowing it, and it would be very hard indeed that there should be this very heavy penalty for anyone who took a part in the marriage. Even the clergyman or minister might be subject to punishment for treason. My Amendment, at any rate, would make sure that if anyone was punished for aiding or abetting the marriage they would have done so knowingly.

§ Sir F. BANBURY
I do not think there is much difference one way or the other. I do not see how anybody can abet a marriage without knowingly doing it. The legal effect is exactly the same whether or not you leave out the word "knowingly." Why is the hon. Member so extremely anxious to save from this penalty any person who tries to marry his daughter to the King? There must be some hidden object in this Amendment. Will the hon. Member explain, and then perhaps I may be able to come to his assistance? He told us there would be great danger if this Section were passed. I cannot see any danger. I do not believe any ordinary person in England would endeavour to get his daughter married to the future King when he knew that by so doing he would be contravening an Act of Parliament. Unless the hon. Gentleman knows that there is some conspiracy on foot, which he may be aiding and abetting himself, I really do not know what the object of this Amendment is.

§ Mr. THEODORE TAYLOR
I think there is some substance in the Amendment of my hon. Friend.

§ Sir F. BANBURY
What, have you a daughter, too?

§ Mr. THEODORE TAYLOR
I do not know that the word "knowingly" will make much difference, especially as previous provisions of this Act make such marriages null and void. Such an attempt is doomed to failure therefore from the outset. It cannot be a marriage after all, and I do not think that the failure should be treated as an offence subject to the death punishment. I must confess I do not think that this matter should be treated as a joke. My hon. Friend who has moved this Amendment has good intentions; there is common sense and humane feeling at the back of his proposal. We all know him to be a very humane and serious-minded man, and I do hope that the Prime Minister will give consideration to this proposal. Of course, I am speaking in entire ignorance of any understanding there may be between my hon. Friend and the hon. Baronet the Member for the City of London.

§ Sir F. BANBURY
I can assure you I have no desire to prevent this Bill going through.

§ Mr. THEODORE TAYLOR
I can only express my humble opinion in favour of some modification of this Section. I do not think the offence indicated is one worthy of the death penalty.

§ The CHAIRMAN
I understand we are going to discuss the question of the penalty at a later stage, and we had better deal with this point then.

§ Mr. THEODORE TAYLOR
I thought I was in order in assuming that the word "knowingly" did apply to the Amendment of my hon. Friend, which seeks to provide that the person who commits the offence shall "knowingly" be guilty of something very serious. The question is: Cannot the penalty in this case be made less serious? I strongly urge the Government to agree to some modification, because I confidently believe that public opinion would never allow any Court to give effect to the Clause as it now stands.

§ The PRIME MINISTER
I do not think it is worth while spending time in discussing this Amendment; but, if it will afford any satisfaction to my hon. Friend, I will at once state that I agree that under the legal construction of this Clause no man can possibly be convicted unless it can be shown he knew what he was doing.

§ Mr. LUTTRELL
I beg to move, in Subsection (2), to omit the words "and the person who shall be married in contravention of this Section to the Sovereign."
The object of this Amendment is to prevent the person who marries the Sovereign being subject to this extremely heavy penalty. It is quite possible that great hardship may arise under this provision. The person might be to a very great extent innocent; she may possibly have been foolish, but certainly she ought not to be subject to this very heavy penalty, and I therefore ask the Government to except one who may be the victim of a conspiracy on the part of others to bring about this marriage.

§ The PRIME MINISTER
I should like to say I am disposed to agree with the Mover of this Amendment, although there is not the faintest reason to fear that the extreme penalty of the law would be inflicted in a case of this kind. But at the same time my hon. Friend will not surely contend that the person who is the most guilty party ought not to be punished.

§ Mr. GIBSON BOWLES
I do not think the Prime Minister is entirely right in saying that the person who marries the future Sovereign is the most guilty party of all. I would remind him of the case of Mrs. Fitzherbert. I do not think it can be said that she was the most guilty party. I am rather sorry to see this Bill treated with so much levity. After all, it is a very serious arrangement for dealing with a very serious set of circumstances. In case, which God forbid, our present gracious Sovereign should die during the minority of his son, circumstances might then arise which would not be at all the subject of a joke; they would indeed be very serious circumstances, and they must be provided for in a serious manner. I think there is something to be said for this Amendment. It cannot be denied that the person who has married the Sovereign has been acting, aiding, and abetting, or concerned in obtaining, procuring, and bringing about the marriage; and as a humble layman I think there is something to be said in favour of leaving out the words proposed to be omitted. It would not in any respect weaken the Clause, because the case of this particular person is included in the rest of the Clause, and, therefore, subject to the same penalty.

§ The PRIME MINISTER
It is a pure question of drafting. My hon. Friend 1525 surely will not suggest that the person who contracts a marriage should not be punished. This is the form of words invariably used by the great lawyers and draftsmen of the past when they have had to deal with this particular matter. I am not so sure that they have been wrong or that my hon. Friend is right. I can quite conceive that a person who is actually one of the parties to such a marriage contract may not be strictly described in point of law—and in these legal matters the Statute has to be very strictly construed— I am not so certain that such a person could be accurately described as acting, aiding, and abetting, or concerned in obtaining, procuring, and bringing about the marriage. If anybody is to be punished at all it surely cannot be suggested that the person who is herself one of the parties to the marriage should be exempted. I appeal to my hon. Friend to withdraw the Amendment, as really his point will be served when we come to deal with the question of the amount of punishment to be awarded.

§ Mr. JAMES HOPE
If such a marriage as has been referred to did take place, it is quite possible that the bride might not know that it was the Sovereign she was marrying, and, therefore, it is necessary to include the word "knowingly" at some point, in order to justify her being made subject to the penalty of high treason; otherwise the Clause might operate very harshly against her.

§ Sir F. BANBURY
I agree with the hon. Member for King's Lynn that we ought to treat this question in a spirit of seriousness. I do not quite agree with him in his reference to Mrs. Fitzherbert. As far as I remember, it was stated in that case that no marriage had taken place. Indeed, it has never been admitted that any marriage did take place. On the contrary, it was always denied, and therefore I do not think the illustration is an apt one. I can hardly believe that in these days any girl would be so foolish as to allow herself to be married to the Sovereign without knowing it. I really do not think it is possible, and under the circumstances I hope the hon. Member will withdraw his Amendment.

§ Mr. LUTTRELL
I do not know whether I am in order in referring to what fell from the Prime Minister, which leads me to suppose that he would consider whether the penalty should not be greatly reduced, 1526 but on that understanding I am quite willing to withdraw this Amendment.

§ Mr. JAMES HOPE
I do not know whether I should be in order in moving the insertion of the word "knowingly," but I suggest it to the Prime Minister.

§ The PRIME MINISTER
Move it.

§ Mr. JAMES HOPE
I beg to move, in Sub-section (2), after the word "Sovereign" ["and the person who shall be married in contravention of this Section to the Sovereign"], to insert the words "knowing him to be such."

§ The PRIME MINISTER
I am disposed to agree that, having inserted the word "knowingly" in the first part of the Subsection some words should be here inserted. I do not quite like to accept the Amendment exactly in the form in which the hon. Member has moved it at the moment, but if he will defer the matter to the Report stage I will consider it.

§ Mr. LUTTRELL
I beg to move in Sub-section (2) to leave out the words "high treason" ["shall be guilty of high treason"] and to insert instead thereof the words, "a misdemeanour and shall be liable upon conviction on indictment at assizes to imprisonment for any term not exceeding two years or to a fine not exceeding five hundred pounds."
My object is to reduce the penalty, and I think that which I have proposed would be quite sufficient to attain the object in view.

§ Lord HUGH CECIL
I venture to express a hope that the Government will not accept this Amendment. There can be no doubt, I think, that any offence that affects the Succession to the Crown is either high treason or nothing. The Government will be acting contrary to the whole body of the Law and innumerable Acts of Parliament if they introduce the principle that an act affecting and involving the Succession to the Crown is anything but high treason. The question of whether the penalty for high treason is not in some cases too severe is another matter which does not arise on this Bill, but this is beyond all doubt high treason, because it is an act affecting the Succession to the Crown. The Government will go against a great body of constitutional authority if they treat it as anything else.

§ The PRIME MINISTER
I quite agree with the Noble Lord in so far that I do not think that the maximum penalty proposed by my hon. Friend would be adequate to meet the offence we are considering. I can imagine a very serious conspiracy to entrap a youthful Sovereign into an extremely improvident and undesirable marriage, and it would be most inadequate to treat that offence as a misdemeanour and make it punishable by a maximum sentence of two years imprisonment. I do not think that that covers the necessities of a case which is likely to occur. On the other hand, I am disposed to think we might modify the Bill. It has been drawn to render the act one of high treason, and it follows the precedents of all the previous Acts of Parliament. The last Regency Act was 1840, and that was passed prior to the Treason Felony Act of 1848. That latter Act, as many in this House will remember, was passed for the purpose of giving the law and giving the judges an opportunity of dealing with cases which were technically cases of high treason, but had not been of an aggravated character or grave offences which ought to be punishable by death, and death alone. That Act put these offences in a new category as regards punishment, and described them as treason felony. It imposed a penalty of the most elastic kind, as it might be nominal or it might be penal servitude for life, and I do not think that now, having opened this new chapter of the law, we might treat the offences dealt with by this Bill as those of treason felony. If my hon. Friend will withdraw his Amendment I will myself propose to leave out the words "high treason," and to insert the words "a felony under the Treason Felony Act of 1848."

§ The PRIME MINISTER
I beg to move to leave out the words "high treason," and to insert instead thereof the words "a felony under the Treason Felony Act of 1848."

§ Mr. AUSTEN CHAMBERLAIN
I desire to ask one question as to the provisions of that Act. The hon. Gentleman suggested in his Amendment that this offence might be dealt with by a fine not exceeding £500, but having regard to the offence, if it is an offence, I think that would be ridiculous. I want to put it to the Prime Minister, therefore, whether, if it was made an offence under the Treason Felony Act imprisonment would 1528 necessarily form part of the punishment, or whether under that Act a fine might be imposed? I do not think that this is an offence which can be curbed by the payment of a fine. If Parliament thinks it necessary solemnly to lay down that the King being a minor shall not marry without certain precautions, and without certain preliminary consents, the case we are dealing with is that of people who, in defiance of an Act of Parliament, induce the minor or connive at the minor committing a breach of the statute, and that, as my Noble Friend has pointed out, is a matter which most nearly concerns the Succession to the Crown and the safety of the nation, and is an offence which, under no circumstances that I can conceive, would be adequately met by the infliction of a mere fine. I should therefore like to know from the Prime Minister whether a fine is an alternative in the statute which he has adopted, and whether the more serious punishment must be inflicted?

§ The PRIME MINISTER
I am speaking from recollection, but I should say certainly that in the case of treason felony the smallest punishment that would be awarded would be some term of imprisonment, but I will look into the matter. At any rate, this Act does give the court a perfectly elastic power of imposing sentences as high as penal servitude for life, or as low as imprisonment for a short period. I think that is satisfactory.