Lords Sitting of 11 August 1835

MINUTES.
Bill. Read a third time:—Larceny Act Amendment; Postage.
Petitions presented. By the Marquess of BUTE, from Kingarth, for further Accommodation in Scotch Churches.—By the Earl of STRADBROKE, from the East Suffolk Society, for Protection and Relief to the Agricultural Interest.—By the Bishop of LONDON, from Tottenham, against Allowing Beer to be drunk on the Premises of Beer-Shops.—By the Duke of RICHMOND, from Horse-leap, for Poor-laws to Ireland.—By Viscount MELBOURNE, Lords RADNOR and BROUGHAM, from a number of Places, in favour of,—and by the Earl of FALMOUTH, from two Places, against the Municipal Corporations' Bill.

ROMAN CATHOLIC MARRIAGES.
The Marquess of Clanricarde The Marquess of Clanricarde moved the second reading of the Roman Catholic Marriages Bill. Ha called for the support of the House to a measure which was founded upon humanity, justice, and policy. The law, as it at present existed, affixed a stigma upon the Roman Catholic population of Ireland, and it was the object of this Bill to remove the last remnant of the penal code which had so long afflicted that portion of the community. The Bill would take away the power now, in some instances, most barbarously used by parties to the marriage contract, of invalidating and setting aside that contract, and would thereby give security to property without the litigation to which the present law exposed innocent parties. According to that law the marriage of a Roman Catholic and Protestant was invalid if it were disputed within twelve months from the time of its celebration; but there were other circumstances connected with such a marriage deserving the serious attention of your Lordships. To prevent the danger of parties professing themselves Catholics, in order to avoid the penalty to which the priest was liable, the Act stated that "any person shall be deemed to be a Protestant who has been so, at any time within twelve months before the celebration of the marriage;" so that a person might become a Catholic in, appearance at least, and might, under that name, contract marriage with another Roman Catholic by the ministry of a Catholic priest, the woman having the utmost reliance and confidence in the man of her choice; but if this man became tired of her, he had only to say that he was a Protestant within twelve months, and again return openly to that worship, and the law would allow him to turn the confiding and affectionate woman whom he had deceived into the world, and, with perfect impunity, to abandon her and her children. Such a state of the law was a disgrace to any country calling itself civilized. That law might be oppressive and unjust, where no fraud was intended. A man might be a perfectly sincere convert to the Roman Catholic faith; but there might be a difficulty in proving that he was not a Protestant some time within twelve months, and the onus of that proof was thrown upon the children pf the marriage—if the marriage were impugned. They must either prove a negative, or fail to establish their own legitimacy. He could state many cases in which
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the hardship was greater, even than in that which he supposed. He would mention the case of a gentleman who had married a woman much his inferior in society, he conforming, in appearance, to the Catholic faith to which she belonged. He, however, got tired of her and married another. An action was brought, and it was found that he had gone to church within the year before he was married, and on this plea that he was a Protestant within the time, the first wife was defeated. Another instance was that of a gentleman, who had been a Protestant, and had married a Roman Catholic lady, with whom he got a large fortune. With part of this property he purchased land, he died intestate, and the widow claimed her dower. The heir-at-law, however, stepped in, and having shown that the husband had been a Protestant within twelve months before his marriage, the widow lost the whole of her property. In another case, an officer in the army married a Roman Catholic lady of his own rank in life, with whom he received a considerable property. On the death of the husband, his son, by the marriage, was allowed, by the Court of Chancery, 800 l. a-year for his maintenance out of the estate. His claim, however, was disputed by the next heir-at-law of the deceased, on the ground that the mother had been a Protestant within twelve months of her marriage. This fact was proved; and thus, without any imputation on the father or mother, was the child declared illegitimate, and thrown upon the world without a shilling, or without a legal protector. Was that a state of the law which their Lordships could sanction? It led to the grossest frauds, of which the innocent were the sufferers, and where no fraud was intended, the greatest injury might be done on innocent women and children under its sanction. The only objection he had heard urged against the Bill was the allegation that it went to aid clandestine marriages in Ireland. That allegation he denied. This Bill went to prevent, as he had already said, the invalidation of contracts solemnly entered into. The means of clandestine marriages were fully afforded in Ireland by the class of individuals well known to many of their Lordships as "couple-beggars," who were to be found throughout Ireland. On the grounds of humanity, morality, and expediency, he recommended the Bill most

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strongly to their Lordship? for their adoption.
Lord Carberyopposed the motion. The hardship of the existing law could not, he thought, be as great as the noble ' Marquess had contended, as the severest penalties were imposed on Roman Catholic priests for performing marriages of this nature at all—penalties amounting in the first instance to suspension, and terminating, after repeated offences, in deprivation and death. He could not but think that parties who were married by a Roman Catholic priest under such circumstances, must have the consequences before their eyes, and that they took very little pains to guard against them. There was a Protestant minister in every parish, and it was just as easy for the lower as for the upper classes to be married by him; in which case the hardships of which the noble Marquess complained would be avoided. Another objection he had to the repeal of the present law (until some protection were given against clandestine marriages) was founded in the power assumed by the Roman Catholic Bishops of annulling marriages celebrated between Protestant and Roman Catholic. He would mention, in illustration of this, a case which had occurred:—a Roman Catholic had violated a woman, and was in custody for the offence. In order to escape punishment he offered to marry her, and they were married. He afterwards went to his Bishop, who annulled the marriage. The man then married another, and he was arrested on a charge of bigamy. When brought to trial, the priest who married him could not be found, and the prisoner was in consequence discharged from the dock. He afterwards committed another offence of a kind similar to the first; but he was again pardoned by his Bishop. While such powers were exercised by the Roman Catholic Bishops and priests, it would be wrong to make marriages between Roman Catholics and Protestants, celebrated by them, valid. Suppose the present law were repealed, what was there to prevent any Roman Catholic priest from going at night to the house of any one of their Lordships in Ireland, and there marrying any member of their family to some worthless individual; for it was only such characters who, in general, got married in a clandestine way? Such marriages by a clergymen of the Established Church were
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not permitted. Then why give the Roman Catholic clergy a power which the canon law did not concede to the clergy of the Established Chinch or Presbyterians? He was the less disposed to acquiesce in such a scheme when he saw the late increase in the number of Jesuits and Friars, who, he believed, renounced all Episcopal authority, and acted independently. On these grounds he begged to move as an amendment, that the Bill be read a second time that day six months.
Lord Plunkettsupported the Bill, which, as he submitted, only went to annul and repeal that law under which marriages solemnized by Roman Catholic priests might be invalidated either by the fraud of the parties or other means. No, objection could be urged against this Bill on the ground that it would facilitate clandestine marriages; for, on the contrary, the strictest orders had been given by the Roman Catholic bishops by circulars to their clergy, prohibiting the solemnization of marriage except only on the due publication of banns, while, on the other hand, as was known to most of their Lordships, the greatest facilities to clandestine marriages were afforded on the payment of fees varying from 2s. 6d. to 40 s. by Protestant clergymen known in Ireland under the denomination, as the noble Marquess had observed, of "couple-beggars." On the whole he supported the Bill, as based on justice, humanity, and morality.
The Earl of Limerickopposed the motion, on the ground that he was unwilling to increase the power and influence of a body of men who would not be disposed to use either with any friendly feeling to the Protestant Church in Ireland—he alluded to the Roman Catholic clergy of that country. If any proof were wanting in the present day of the disposition of that body to obtain and retain power, it would be found in a letter addressed by a Roman Catholic bishop in the county of Waterford to the foreman of the Grand Jury of that county, than which a more insolent and presumptuous document had not been issued by any prelate of that Church since the days of Hildebrand. It appeared that some dispute arose between a Rev. Mr. Prendergast, the Roman Catholic chaplain to the gaol, and the governor of that prison, and the Grand Jury having inquired into it, decided upon removing Mr. Prendergast, and appointing the priest of the parish in which the

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gaol is situated in his stead; for this high crime and misdemeanour the foreman of the Grand Jury received the following letter from the titular Bishop of Water-ford:—
"Clonmell, July 28, 1835.
"SIR—I never was more astonished than on receiving a document purporting to be a decree of the county of Waterford Grand Jury, passed at the last assizes—a decree as slovenly in its verbiage as it was arrogant in its conception." (The gentleman, it appeared, was educated in France, if one might judge from the style of his letter.) "This conduct might well become the mild meridian of Elizabeth's reign, but certainly ill accords with the vaunted liberality of modern jurists. What! a box of laymen to usurp the patronage of a Catholic bishop? I can scarcely believe it. But to guard against the possibility of any infringement on my rights, I now tell you, as foreman of that said Grand Jury, that no other priest but the Rev. Mr. Prendergast shall dare officiate as chaplain of the county gaol, and this you may publish from the highest to the lowest places. What right had the Grand Jury to dispose of my subjects in the fullness of their wisdom, and this without a single appeal to the proper authority? The world shall see, by the result of this very affair, not only the usurping propensity of that said jury, but also its impotence in ecclesiastical affairs. I mean nothing personal in this address, but really I can with difficulty restrain my feelings on such a subject, and in such times as these.
"I am, Sir, your obedient servant,
"W. ABRAHAM."
So said he (the Earl of Limerick), he could with difficulty restrain his feelings, and he called on their Lordships not to give a greater power to the Catholic priests than they now possessed, which this Bill would confer. The few cases of abuse which other noble Lords had cited were not sufficient to warrant their Lordships in passing a Bill of this kind.
The Earl of Wicklowconcurred with his noble Friend, the noble Earl who last addressed the House, that a more presumptuous, arrogant, and insolent letter had never been issued than that which his noble Friend had read; yet, would it be believed, there were amongst the Grand Jury, to whom, through their foreman, this letter was addressed, nine Roman Catholics, with one of whom this very Motion respecting the removal of the chaplain originated? This was not the only case in which some of the Roman Catholic hierarchy of Ireland had attempted to browbeat those who dared to oppose their will. A prelate of that church,
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Dr. M'Hale, had called the established church a sinking and a falling religion, the bane and curse of the country. These were things which could not happen under another Government. He had not heard anything which convinced him of the necessity of this Bill. The grievance was not in the state of the law, but in the ignorance of those who ought to know it better. All that had been said by the noble and learned Lord (Lord Plunkett) only went to show the necessity of altering the general law relating to marriages in Ireland. In that necessity he fully concurred. The present law was wholly inoperative in preventing the marriage of Catholics and Protestants by Catholic priests. He did not think that a limited measure of this kind would cure the evil, but still it might be made productive of some good, if some additions were made to it in the Committee. With the hope of being able to effect such improvement, he would support the Motion for the second reading of the Bill, and when it got into Committee he would move a clause, which would guard against some of the evils arising from the present state of the law as to marriage. It was his intention to move that no priest, under a penalty, should celebrate any marriage which a beneficed clergyman in Ireland would be prevented from celebrating by the canon law. The penalty he should propose would be one that would not be rendered inoperative by its too great amount. If he should succeed in inducing their Lordships to adopt that clause, he would then vote for the third reading, but otherwise he would oppose it.
Lord Farnhamwished that some general measure might be brought in with the support of Government for the improvement of the law relating to marriage in Ireland. He regretted that the application of the canon law of Ireland had not been more diligently attended to, for he thought that with due diligence by the Ecclesiastical Courts a clergyman of that Church might, if he acted contumaciously with respect to its discipline, be degraded. However, in the present late period of the Session, which must now terminate in a few weeks, he thought it too late to give a due consideration to any measure on this subject. Under these circumstances, and also because he feared that some clauses which were inserted in the Bill of last year, and which were calculated to be

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a check on clandestine marriages, were omitted from the present, he should vote for the Amendment for putting it off to that day six months.
The Bishop of Londonsaid, there could not be any great difficulty about the canon law of Ireland, as that of England had been adopted bodily by the Irish Church. A clergyman who contumaciously resisted or refused obedience to the canons of the Church might be excommunicated, which would have a very serious effect upon his liberty and civil privileges. He admitted that the law relating to marriage was defective in England, and more so in Ireland, and called for legislative interference. Even if the present Bill were to pass, it would not prevent the whole of the marriage law from being brought under the consideration of the House. As that was the case he asked, was it worth while to urge on a partial remedy at this late period, seeing that the Legislature would be called on to revise the whole subject at no very distant day. He admitted, that under the law, as it now stood, some unworthy clergymen of the Established Church might, by becoming couple-beggars as they were called, encourage clandestine marriages; but if the present Bill passed they would have twenty couple-beggars where they now had one. He also objected to this measure on the ground that they ought to guard against adding to the difficulties with which the Established Church was at the present time surrounded. If the Bill passed it would tend to encourage the marriage by Catholic priests, not only of Catholic with Protestant, but also of Protestant with Protestant, of which the Catholic priests would avail themselves for the purpose of proselytism, and in support of this view of the case he read an extract from the evidence given by the late Archbishop of Dublin before the Lords' Committee in 1825. This was also the opinion of Dr. Doyle, who admitted that a conscientious Catholic married to a Protestant would be bound to use his efforts to convert his wife to the Catholic faith. Was this, he would ask, a time to pass a measure which would give the Catholic priests an advantage over the Protestant clergy? He contended that it was not, and under these circumstances, looking to the necessity of a more general measure, he would vote for the Amendment.
Lord Broughamconcurred with the right Reverend Prelate, that upon a
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subject of this description, where various defects of the law existed, and where a general and large measure of alteration might be deemed by some to be necessary, that it would be better to have that larger and more comprehensive measure than a less extensive one. Let the right reverend Prelate reflect for a moment what it was that constituted the difficulty of dealing with the Marriage Law in this country, it was Lord Hardwicke's Marriage Act. Lord Hardwicke's Act had introduced all the difficulty of dealing with the subject; this being the only country in Europe in which a law existed, declaring that all marriages which took place between parties under age without the consent of parents or guardians, or without the publication of bans, should be null and void. All Europe acknowledged and acted on the remains of the Roman or Civil Law in regard of Marriage, except England. Scotland alone was different; Ireland was the same as the rest of Europe. The Marriage Act of Lord Hardwicke introduced all the difficulties, and it was entirely owing to that peculiarity, now become an anomaly, that England was distinguished in respect of marriage from all nations under the sun. It was that Act which first introduced a nullity of the contract in place of a penalty upon the parties. All other laws, and the common and statute law of England previous to it, proceeded on the plan of attaching a penalty to the Act and inflicting it on one or more of the parties. Who could look without horror on the idea of rendering infamous the parties because one of them had, perhaps, been deceived? Who could contemplate the notion of making the innocent offspring bastards? Who could see, without shuddering, the facility which the present law afforded an infamous profligate of seducing an innocent woman under pretence of change of religion, and then abandoning her, with the stigma of prostitution on her character, and the brand of illegitimacy upon her offspring, consigning both to utter wretchedness and misery? Few but professional men were aware of the extent of the evil, and the details of horror which it caused—few but those were aware of the fertile source of sorrow and despair which it opened in families. The only difficulty in dealing with it, however, arose from Lord Hardwicke's Act. That difficulty existed only in Eng-

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land; it had no existence in Ireland, because the Marriage Act was never extended to that country. He knew no part of the law which could be affected by it except the remaining dark spot of the Penal Statutes against Papists. It was an abuse of language to call it a Marriage Act. It was never intended to be such. It was a Penal Statute against the Roman Catholics of that day, and the legislators of the time, 19 George 2nd, would laugh if they could hear their Lordships call it a Marriage Act. It was a remnant of the anti-Papal code, enacted against the Catholics, which, he was sorry to observe, there appeared a disposition in some quarters to perpetuate. He was sorry to find that the noble Prelate who had last spoken had suffered his usually acute intellect to be clouded, and his understanding to become hazy; which must have been the case when he stated that the Bills before their Lordships would have the effect of putting the Papist on a better footing than the Protestant—of injuring the Established Church, and raising that of Rome. And not less had he been astonished to hear from the same eminent quarter an assertion founded upon a statement contained in a report of Dr. Magee's evidence, given before the Committee of that House in 1825, namely that the allowing a Catholic priest to marry two Protestants, or a Protestant and a Catholic, would lead to an increase of Catholics. Unless he had heard it from the right reverend Prelate's own lips, he certainly would never have believed that one of his penetration could have been so egregiously deluded. Neither, looking at the effects which daily and notoriously flowed from the present state of the law, unless he had himself been an ear-witness, could he have believed that the right reverend Prelate would have contended for the continuance of such a law for a single hour. It was a law which in no instance went to punish the wrong-doer—neither the priest who married, nor the man who deceived—in every instance the punishment fell upon the innocent woman and her helpless children. A man to obtain a selfish or sensual purpose, might impose upon the woman he proposed to marry, as well as the priest who was to marry them; and when his mind changed—when the personal charms of his wife began to decay—when he saw another whom he thought he should prefer—in
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short, upon any pretext whatever, or without any pretext at all, he had only to announce the manner of his marriage, to render it at once a perfect nullity—to proclaim the partner of his bed a prostitute, and his children bastards. The wrong-doer escaped scot-free; nay he not only escaped scot-free, but escaped with a reward. The first wrong-doer—the priest—(supposing the priest to have a knowledge of the real religious opinions of the parties he was marrying) was rewarded in the shape of the fee he obtained for performing the ceremony; the second wrong-doer—the husband—was rewarded in the enjoyment he obtained in the seduction of the woman. Was that a state of the law which any Protestant divine would wish to continue? Then, the right reverend Prelate contended that if the present Bill were allowed to pass, for every "couple-beggar" that might now exist among the Protestant clergy, there would become twenty "couple-beggars" amongst the Roman Catholic clergy. He (Lord Brougham) did not believe that that would be the case. He did not believe, indeed, that the Roman Catholic clergyman was so likely to degrade his functions in that way as the Protestant clergyman, and he would shortly state why: the Roman Catholic Church regarded matrimony as a sacrament, whilst the Protestant Church regarded it only as a civil contract ["No, no!" from the Bench of Bishops.] He would only mention that his authority for the assertion was the highest, and perhaps the most eminent consistorial judge who had ever lived in that country—Lord Stowell, who, in the case of Dalrymple v. Dalrymple, had distinctly considered the act of marriage as a civil contract. In conclusion, the noble and learned Lord ridiculed the idea that the proposed Bill could in any way tend to facilitate for the Roman Catholic clergy the business of proselytism.
The Bishop of Exetershould not have departed from his original intention of taking no part in the debate, but for the observations of the noble and learned Lord who had just sat down. The proposition that marriage in the eye of the Protestant Church was nothing more than a civil contract, was one which he (the Bishop of Exeter) would never hear asserted without entering his decided protest against it. In the eye of the law it was undoubtedly a civil contract, but in the estimation of the

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Church it was much more than a civil contract. It was regarded as a holy estate—a state into which a man certainly could not enter without a contract; but the contract was merely the gate. When a man was married, he was in a holy estate—a religious estate. It was a religious estate because it was ordained by God, commanded by God, blessed by God, and rendered irrevocable by God. Rendered irrevocable by the Deity, the law of England regarded it as irrevocable. In illustration of that fact he need only mention the case of Miss Turner; the Bill for the dissolution of whose marriage could not be sustained on the ground of fraud, and was only subsequently passed by their Lordships on the ground that no legal marriage had taken place, in consequence of the violence that was used. He was not speaking on his own authority when he stated marriage to be the most sacred of all human ties, and that it was not merely a civil contract,—but, on the authority of a great man, now unhappily dead to the world, best known as Sir William Scott, whose authority had been so confidently appealed to in the particular case of Dalrymple v. Dalrymple, as favourable to the idea that marriage was merely a civil contract; whereas, on the contrary, he declared it to be a religious contract. He had in his hand, also, the high authority of Chief Justice Holt, in that very judgment of his, in the Court of King's Bench, which had so often been supposed to give countenance to the idea that marriage was a civil contract; for what said that illustrious Judge? He said, "If the contract be per verba de prœsenti, it amounts to an actual marriage, which the parties themselves cannot dissolve; that it is as much a marriage in the sight of God, as if it had been performed in facie ecclesiœ." The noble and learned Lord who spoke last said that, "before the 19th George 2nd, the marriage ceremony required the sanction of a Presbyter to make it valid." Lord Holt did not, however, look upon it in that point of view; for sitting at the head of the highest court in Westminster Hall, he declared "not that it was invested with all its legal rights, but that, if performed per verba de prœsenti, this constituted the very essence of matrimony in the sight of God;"—and though he did not add that the legitimacy of children, the right of dower, and other civil rights, follow
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from it,—the statute of Edward 6th recognised that principle; for it empowered the ecclesiastical Judge to sentence commanding solemnization, cohabitation, and so on. It could not, therefore, be regarded as a mere civil contract; it did not take effect unless completed by the presence of the priest; but the parties might be compelled to complete it; and then, through the priest, it was invested with all the civil effects of such a contract. The noble Lord had said that clandestinity was out of the question when the law now sought to be repealed was enacted. Formerly there were preambles to Bills, though the present Bill had dispensed with that form, and from these preambles he could prove to the noble Lord that it was. The noble and learned Prelate then recited the preambles of the 6th and 19th George 2nd, to show that clandestine marriages were as much aimed at by the Acts as the suppression of Papistry and Romanism. But then there was the power of granting dispensations, and all the evils that followed. But the strongest argument was that which had been urged by his right reverend brother—the tendency of the proposed measure to strengthen the power of the Roman Catholic priesthood to make proselytes. He maintained that the necessary consequences of yielding assent to the proposed measure would be to produce a tendency to recognize, not merely the individual who performed the ceremony, but the Roman Catholic Marriage Law itself. Had their Lordships duly considered what the Roman Catholic Marriage Law was? It probably went infinitely further than they were at all aware of. It declared that impediments to marriage by the law of God, should not be considered impediments if the Pope chose to remove them. It declared that, with the Pope's permission, uncles might marry nieces, nephews marry aunts, &c. &c. While it thus licensed incestuous marriages, it tied up the liberty of man even in cases in which God had permitted its free exercise. The Roman Catholic marriage law, that law which was at present in force in Ireland, in certain cases made null and void marriages beyond the Levitical degrees. It declared that not even a godfather or godmother should marry (no very probable case, certainly) the children for whom they had stood.

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It declared that even the affinity which arose from baptising another was sufficient to prevent marriage. Were such things as these to be introduced into Ireland, by way of healing the evils which at present existed in that country? There were many other arguments which occurred to him, but he would no longer trespass upon their Lordships' attention. He should most heartily vote for the Amendment.
The Bishop of Herefordsaid, he would vote for the second reading of the Bill, in the hope that the clause described by a noble Earl, to the effect that the Roman Catholic priest should not be at liberty to solemnize a marriage where the Protestant clergyman was not at liberty to do so, would be introduced into the Bill in the Committee. If the Bill came out of the Committee without such a clause, he should feel it his duty to oppose the third reading.
The Marquess of Clanricardebriefly replied, denying that he took the council of Trent for his guide in legislating and contending that the limitation to marriages amongst the Roman Catholics was not materially different from that which prevailed amongst Protestants. He observed, that some Lords had dwelt at considerable length upon the evils arising from clandestine marriages, and his sentiments upon that subject fully coincided with theirs as to the evils arising from such a practice. But he maintained that the proposed Bill would not afford greater facilities to clandestine marriages than the present state of the law permitted, and he begged the House to compare the evils of clandestinity on the one hand with those of the power of declaring nullity of marriage on the other—the nullity of a marriage conscientiously contracted by the parties, and believed by them to be binding and imparting legitimacy to their offspring. Whatever might become of the present measure, he hoped that another Session would not be allowed to pass without a general marriage law being enacted.
The House divided on the original Question: Content 16; Not-content 42: Majority 26.
Bill postponed for six months.