HL Deb 05 March 1839 vol 45 cc1253-61
The Bishop of London

wished that a noble Lord had been in his place, who was in the habit of taking an interest in the conduct of Boards of Guardians of the Poor, before he had risen to make the observations he was about to submit, but as those observations would not affect the Board of Guardians, the absence of that noble Lord was the less to be regretted. His observations would relate to a subject that was no otherwise important than as it bore on the Marriage Law. Their Lordships were all aware that about two years ago a Bill passed, altering in a great degree the law of marriage in order to satisfy certain Dissenters, who held it to be a grievance to be married according to the religious forms of the Established Church. Amongst other things it was at that time apprehended that that Bill would afford facilities to clandestine marriages, and the petitions he held in his hand would show that apprehension was hot altogether unfounded. The number of marriages that had been solemnized since the passing of the Act otherwise than according to the forms of the Church had been very insignificant—so insignificant, that had the Legislature known, it probably would have hesitated before it had made such an innovation on the then established law as this Bill made. However, whatever number of Dissenters felt themselves to be aggrieved, it was the duty of their Lordships to afford them relief; the question was, whether the relief provided would not be attended with more serious cause of grievance than the comparatively small grievance that existed before. He held in his hand two petitions, one from the Board of Guardians of the Oundle Union, and the other from the clergy in the neighbourhood, and they tended to show that the law as it now stood, was not calculated to heighten but rather to lower the tone of public feeling as to the standard of marriage. There was something that might, perhaps, excite a smile in the circumstance to which he was about to allude, which was the fact referred to in one of the petitions, of a case of marriage, solemnized by the superintendent of the Oundle Union, between a young man and a woman who was his grandmother-and who were therefore incapable of contracting a marriage. He did not mean to impute blame to any of the parties concerned, except the two persons themselves. With respect to the conduct of the Registrar General, he was a person for whom he entertained very great respect, and although he had committed an error to a certain extent, it should be regarded with leniency, as mistakes were likely to occur in the administration of a law which had introduced such important and extensive innovations into the law of the country. But because it was an innovation, the parties who were to administer it, should have proceeded with the greatest caution, so as to prevent those evils and offences against morality and religion, which were likely to arise. The right rev. Prelate read the petition at length and proceeded. He regretted that the Registrar had not taken the advice of ecclesiastical lawyers, who would have at once decided that the marriage was within the prohibited degrees. As soon as the objection had been pointed out, the Registrar General had issued an injunction, but it was too late, for the marriage had been already solemnized. He had also a petition from the Board of Guardians to the same effect. There was another complaint made by the clergy who had signed the petition—that the marriage had been performed without the usual notice, and in defiance of the caution of the Vicar. He thought it was the duty of the Registrar to institute some inquiry into the matter. He had no complaint to make of the conduct of the Registrar General, but he hoped he would be excused for calling their Lordships attention to the fact, in order that some measures might be taken for rendering such a case impossible again. He had intended at first to have moved for the whole of the correspondence that had passed between the parties and the Registrar General, but he did not now see that any good end would be served by so doing, and as he did not wish to give pain to the several parties unnecessarily, he would not then move for it. While he was upon this subject, their Lordships, he hoped, would allow him to make a few observations upon another Act which passed at the same time as the Marriage Act, he alluded to the Act for the Registration of Births. The Marriage Act would do but little harm, because it would never be much acted on, but the Act for the Registration of Births had done much harm to the Church, not as an establishment, though in that way she suffered much, but she felt more because she lost her influence over the lower orders. One distressing case had occurred lately. It was brought under his notice by a surgeon, who wrote to him at the suggestion of the mother of a child which had not been baptized, and the clergyman of course refused to bury it with the usual ceremonies. He was obliged to say, that the clergyman was not only right, but that he was expressly forbid to bury the unbaptized child. On inquiry he found that the mother had been informed, that having registered the birth of the child, there was nothing else required, and of course, the feelings of the parents were much hurt at the want of the usual religious solemnities. It was unfortunate that any slur should have been cast upon Ecclesiastical registration, which was closely connected with baptism, aad the instructions issued by the Registrar-General were calculated, though doubtless unintentionally, to produce in the lower orders, a disregard of the initiatory rite of religion. In conclusion the right rev. Prelate complained of the provision by which a penalty of 10l. was imposed upon every clergyman who interred a corpse without giving notice to the Registrar. That provision he said unjustly reflected on the clergyman, and was too vague and indefinite, because it did not specify to which Registrar notice was to be given.

The Lord Chancellor

believed, that the right rev. Prelate had truly stated the facts of the case. At the same time, although the marriage was between a grandmother and a grandson, the grandmother was under age. It had unfortunately happened, that when the caveat was transmitted to the Registrar-General, that officer was absent, or the answer would not have been sent as had been—and when the Superintendent-Registrar was subsequently written to, the marriage had taken place. The question now to be considered was, whether the public had full security under the law as it stood against the recurrence of similar instances. He would therefore state what were the regulations adopted in the Registrar-General's Office in such cases. Upon a caveat being entered the Superintendent Registrar sent a copy to the party giving notice of the marriage, requiring to be informed whether the objections were admitted or denied; if denied, the party objecting was asked for further statements. If there was any doubt in the case, the caveat was transmitted to the Registrar-General, with copies of all the documents, and all the correspondence, together with written statements of any verbal communications. If no caveat was entered, and no one knew what was to take place, there was not and could not be any objection. It was utterly impossible in a very large and populous parish, in some instances, to know or to suspect any invalidity between two parties who came to contract marriage. When the Registrar was not able to come to a satisfactory decision he was to inquire into the facts and transmit the whole to the Registrar-General; and if the Registrar-General had been present, undoubtedly what was now complained of would not have taken place. The regulations which had been passed were well calculated to elicit the facts which were necessary to be known in order to prevent improper marriages taking place. He was not aware of any general regulation that could be made, better calculated to secure the object desired, and upon the whole he considered these regulations very well calculated to secure the object.

The Bishop of London

said, he was informed of another case which was still stronger than what had been mentioned, where a marriage took place between a man and his wife's sister's daughter, the facts of which were known to the Guardians before the marriage took place. This could not have occurred under the old law, at least without the Clergyman being subject to Church censure as well as other punishment.

Lord Lilford

said, that as ex-officio chairman of the Board of Guardians of the Oundle Union, he had received two letters, from which it appeared that the petition which had been presented by the right rev. Prelate as the petition of that Board of Guardians was not the petition of that Board, nor had it ever been before the Board. It was true that it was signed by some of the members of the Board, but it could only be taken to be the petition of such persons as had signed it. He desired to abstain from giving any opinion on the legality of the marriage, and only wished to set the House right as to the source from whence the petition came.

Lord Brougham

said, that the objection of marrying persons in a parish, without knowing that they were resident in that parish, was an objection that applied to the old Act. In some instances, where parties knew they were not entitled to be married in certain parishes, they went to very largely populated parishes, consisting perhaps of 8,000 or 10,000 inhabitants, and then it was almost impossible to become acquainted with all the circumstances of the parties who contracted marriages. Some persons thought it was the most easy thing in the world to make a new law, and such a new law as would be calculated to meet every event, but those who lived the longest in Westminster Hall, and tried their hands the most at law making, found that it was the most difficult thing in the world to make a general law-calculated to effect every object upon every subject. He would fain hope, however, that the right rev. Prelate's observations, which were most useful, would direct the attention of those whose duty it was to attend to such affairs as this, to the subject. The right rev. Prelate had mentioned two marriages which were in point of law, no marriages at all—the issue of which were illegitimate, and where nothing could be done to cure that defect. He did not know who the person was who had been adverted to, but he was certainly a very rash individual. His noble and learned Friend declined to give an opinion on the legality of the marriages, but he (Lord Brougham) desired it to be distinctly understood that no doubt whatever existed of the illegality of the marriages. The judges had solemnly decided for a century past that such marriages were illegal. A bill had been brought in by him (Lord Brougham), to which great attention had been given by his noble and learned Friend opposite, with a view to cure the conflicts that existed between the Scotch marriage law and the English marriage law, which presented on the one hand the most painful uncertainty, and on the other the most absurd anomalies. The highest interests of society required that the law of marriage should be clear and easy to be understood. As the laws existed at present, a marriage might be lawful in Scotland and unlawful in England. A man might contract a marriage which would be perfectly lawful, but yet, if the same marriage had been contracted fifty yards towards the south from the place at which it was solemnized, such marriage would subject the man to transportation for bigamy. Such a circumstance had actually occurred. A most respectable man at Liverpool had mistaken the boundary of the two countries. Instead of being married in Scotland he was married in England, and for that marriage he was sentenced to transportation to Botany Bay. Subsequently his sentence was commuted to two years on board the hulks.—If he had been married in Scotland, the law of England could not have touched him. The twelve judges had to be assembled on that occasion, and they decided that the marriage was illegal. [Lord Lyndhurst—He was afterwards pardoned.] I know he was pardoned, if that was to be called a pardoning after he had been two or three years on board the hulks. The man was thus punished because it was said to be necessary in this way to stamp such conduct as illegal. The still more absurd anomaly followed, that a man was actually a bastard in England, while he was legitimate in Scotland, from the ante-nuptial law being different in the two countries. From that cause the same individual was legitimate in one country, and would be seized of lands as well as chattels there, while he was illegitimate in the other and could be seized of neither. A further absurdity was the fact, that in England a man might be a bastard when he went into a court of law, and legitimate when he went into a court of equity; so that he might be a bastard, and incapable of enjoying one estate, and legitimate so as to be capable of enjoying another estate. These were gross absurdities, and the sooner the attention of the Legislature was drawn to the law under which they arose so as to do away with them the better. He, in 1835 had brought in a bill with a view to remedy the state of the law, but he was about that time in very ill health, and consequently he had not been able to proceed with it. His noble and learned Friend, (Lord Lyndhurst) had given great attention to it. He was very anxious again to apply himself to the bringing forward of Lorne such measure, and which should also be calculated to prevent another mockery of the law, viz., the prevention of the marriage of infants without proper consent, This part of the law was open to those who were not likely to be the subjects or objects of it, but the law had no operation as regarded those who could pay for post-horses to carry them to the Scotch borders. At the time that Norrie was convicted—the person's case to which he had alluded—he was counsel in that case, and he remembered stating that the Lord Chancellor, the Lord Primate, and the Lord Keeper of the Privy Seal, all of that day, had married their wives at Gretna Green. Every one of those great officers of State had themselves actually evaded the law of marriage of this country. Was it not absurd, that such a state of things should exist? The Legislature ought to be able to prevent the great mischiefs that might thus arise from marriages by those who could in this manner evade the law by running a race against it to Gretna Green. He should be most unwilling to make any alteration affecting the law of Scotland without the concurrence of persons there, whom everybody knew to be persons of great learning, ability, and transcendant worth, but he had no doubt, that they would be very happy to have some of the absurd anomalies of the marriage law removed.

Viscount Melbourne

was exceedingly sorry to hear the observations which had been made by the right rev. Prelate. Unless there was accuracy in the registration of the births of children, great disorders might arise; but he did not see why, from having a civil registration, person s should be discouraged from bringing their children to receive the rites of baptism. If any Registrar had done anything to discourage that, the right rev. Prelate must know, that such a person had acted contrary in that respect to the instructions of the Registrar-general. He had not brought down those instructions with him, but so far as he recollected them, they were in very strong and very explicit language. He entirely agreed with the right rev. Prelate, that it was incumbent on the Legislature to watch the workings of this bill, more especially as their Lordships knew, that the solemnization of marriages had been subject to great abuse. If they looked at the dispensations of the Roman Catholics; if they took our marriage law from the period of the Reformation in this country to the passing of the Marriage Act, they all knew, that what was called the Fleet marriages had taken place in a manner which was neither conducive to the interests of the State, nor suited to the character and profession of the Clergy. If their Lordships considered what had been the state of the marriage law when the act was passed, and what abuses it was intended to prevent, they would remember that marriages had been solemnized which ought never to have taken place; and when every one knew, that those things did happen, when the solemnization of the marriage rested entirely with the clergy, it was absolutely necessary, now that the solemnization of marriages was confided to others than the clergy, to watch narrowly what took place.

The Bishop of London

certainly complained, that the Registrars had actually discouraged the baptism of children. It was intimated, that it was not necessary that baptism should take place immediately; the consequence was, that it was delayed from week to week, from month to month, from year to year, and so the children never got baptised at all. He complained, that the registration of the births of children by the Church, had not been left undisturbed.

Lord Ellenborough

wished to know if this duty was left to an officer out of the Church, why it was, that the clergy did not go among the people and instruct them in what was their duty.

The Bishop of London

thought, that the noble Lord might have spared that invidious reflection on the clergy. Did it follow, that because an officer went among the people to tell them that their children need not be baptised, or that ceremony would do at any subsequent time, that the clergy did not do their duty? It was not unlikely, that where a little expenditure was required, the people might listen with eagerness to any statement by which they might be enabled to avoid that expense. As one of the clergy, he must express a hope that the noble Lord on consideration would allow that the reflection he had just thrown on the clergy was not well founded.

Lord Ellenborough,

If the clergyman took much trouble to disabuse tile minds of the poor, he would easily counteract the poison of the Registrar, the Church would be believed.

The Bishop of London.

There is this difference. The clergyman would require a long course of argument to prove the necessity of what he required to be done, whereas the other only used the argument, that a shilling would be saved—one which was easily understood.

Petition laid on the Table.

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