MARRIAGE LAW (IRELAND) (Hansard, 8 August 1842)

The Lord Chancellor
begged to lay before their Lordships the report of the committee which had been appointed to consider the state of the marriage law in Ireland. The committee proceeded to examine witnesses; but in the course of their proceedings they were informed that certain proceedings had taken place in Ireland, and that a special verdict had in one case been returned, in order that the question should be argued before the Queen's Bench, the decision in which court would be reviewed in all probability by a writ of error before their Lordships. The judges had been summoned, in order that their Lordships should have the advantage of their advice and assistance in considering the question of the marriage law, and laying the foundation of future legislation, if future legislation should be deemed necessary. That course had been acted on up to a certain point: but notwithstanding all the efforts he, as well as others interested in the question, had made, he found it impossible to have the writ of error decided by their Lordships before the judges went circuit. It was impossible then to come to a decision in the present Session of Parliament. In the mean time he was informed that great inconvenience arose from the present state of the law; that men were deserting their wives in great numbers, and that an immediate remedy was necessary to check the evil. This matter being brought before the committee, after carefully considering the subject, they came to the decision that the bill which had been referred to the committee, should be passed into a law for the purpose of legalising the marriages which had already taken place. Some amendments were suggested in the bill as it was originally framed, and he begged to give notice that he should move its committal to-morrow.

Lord Campbell:
It must be in the recollection of their Lordships that he had presented a vast number of petitions from the Presbyterians of Ireland against this 1121 billߞthat body comprising one half the Protestants of that part of the United Kingdom. They unanimously expressed their aversion to the bill which had been sent up from the other House on this subject, on the ground that it was an enacting instead of a declaratory law. It assumed that those marriages were null and void, and that the parties so married (unless the marriages were confirmed by act of Parliament) had lived in a state of concubinage, and that their issue were bastards. This subject excited but little interest, here; but it filled the people of Ireland with consternation. In India, America, and all our colonies, the validity of such marriages must be called in question. It was distinctly announced that no legislation should take place until the question was judicially determined. A solemn warning was given by his noble and learned Friend (Lord Brougham) that marriages contracted pending the decision might be pronounced unlawful. He bore willing testimony to the eagerness of his noble and learned Friend on the Woolsack to bring this question on before the judges went on circuit. But why should not the judges be now assembled? His noble and learned Friend (Lord Brougham) must recollect a case where the judges were summoned to give their advice as to the validity or invalidity of a certain marriage. Would it be unfitting that the judges should be now assembled, and the Session prolonged a few days, in order to decide so momentous a question as whether thousands, and hundreds of thousands of their countrymen were lawfully married, and their children legitimate or bastards. But there was no necessity for summoning judges. His noble and learned Friend on the Woolsack promised to secure the attendance of six or seven judges. [The Lord Chancellor: I said I could reckon on five judges; but some of the bishops objected.] The bishops. Surely his noble and learned Friend dreaded no anathema from that quarter. And at all events he must have done better if he acted on the dictates of his sound judgment, than when he followed (with all reverence he said it) the extremely injudicious advice which had been given on this occasion by some right rev. Prelates. However, it was plain that, in addition to the judges, on which his noble and learned Friend reckoned, their Lordships might have the assistance of three noble and learned Lords who filled the highest judicial office, and whose opinions were univer- 1122 sally respected. They might have the Master of the Rolls, and the judges of the Arches and Consistorial Courtsߞmen eminent for all learning, but especially remarkable for their knowledge of marriage law. Amongst the witnesses examined before the committee, were Dr. Henry and Dr. Montgomery. The first said, that his own father, being dead, must be considered to have lived in a state of concubinage if this bill passed; and Dr. Montgomery added, that nothing could be more offensive to the whole body of the Presbyterians than such an enacting law. he could prove from laws passed in the Irish and English Parliaments, that the present bill was without precedent. In 1782ߞwhen the marriages of Presbyterians by a clergyman of their own body were in the same state of doubt as mixed marriages were nowߞan act was passed declaring them valid, but not at all amounting to an enacting act. In India, again, Presbyterian ministers sent out from Scotland, were in the same situation as in Ireland. In the reign of George 3rd, an act was passed, which stated in its preambleߞ Whereas doubts have arisen, &c., as to marriages celebrated by ordained ministers of the church of Scotland, be it declared that such laws should be considered valid. It had been said, however, that in the present case there could not be a declaratory law, because the decisions in Ireland pronounced these marriages void. In the first place, if that were the case, it would be no bar to their passing a declaratory law. There were several instances where a law was passed directly in the teeth of the opinion of the judges. He recollected one instance of the kind ߞ Fox's Libel Act. Before that bill passed, the judges were assembled, to ascertain whether the jury was entitled to consider the question of law and fact, and they unanimously decided, that the jury had nothing to do with the law. But in spite of this, the House came to the decision, that it was the ancient common law of England, that the joint question came properly before the jury, and that they had unjustly been deprived of it. There was no necessity, however, in this case, of running counter to the decisions of the judges. There was a great majority of those decisions in favour of the validity of such marriages. The noble and learned Lord then referred to a number of cases, among others, the King v, Marshall, the King v. Wilson, the Queen v. Holloway. In one case, Judge 1123 Moore said, in answer to an objection that such marriages were illegal, he wondered that the question should be raised, when the decisions on the circuit in their favour had been so numerous. The only legal authority in opposition to all these was a note in a book of a very acute barrister, deceased, Mr. Jacob; while in the opposite scale, lay the opinions of Sir Samuel Sheppard, Sir W. Scott, Chief Justice Dallas, Lord Ellenborough, and all the high authorities of our courts. In the first decision in Ireland, the judges decided without any great assistance; but in the Court of Queen's Bench, the question was argued (and he carefully read a report of the proceedings) in a most learned, elaborate, and satisfactory manner. No counsel in Westminster-hall could have argued it better—few so well. If ever there was a case for a declaratory act, this was that case. The bill before their Lordships could not but be hurtful to the feelings, and prejudicial to the interests, of the Irish Presbyterians. They should, he thought, contrive means for adjudicating upon writs of error, during the present Session of Parliament, and postpone any legislative enactment until the next.

Lord Brougham
said, that although it was impossible to deny the greater part of the propositions stated by the noble and learned Lord, still the noble and learned Lord did not seem to reflect on the difficult position in which they were placed, and how much it was a choice of evils and difficulties which was before them. The question was not whether they should pass a declaratory or an enacting act. There existed circumstances which rendered the former course almost impossible at present, however practicable it might have been at a former stage of the proceedings. It had been decided by a majority of eight to two of the Irish judges, that the marriages were illegal, and it would be adopting a very novel course to state, as they would have to state, in the preamble, supposing that they passed a declaratory act, that doubts had arisen as to whether the marriages in question were legal or not, when, as he had stated, it had been declared, by a majority of eight to two of the Irish judges, that there was no doubt about the matter, and that the marriages were clearly illegal. The petitions Which he had frequently presented during the Session, upon this subject, were strongly in favour of a declaratory act; but he believed, that under the existing circum- 1124 stances, when the question was, whether they should have an enacting measure, or no measure at all, the people would prefer the former alternative.

The Lord Chancellor
explained that he had introduced the measure before the House in consequence of the impossibility of finally deciding the question judicially this Session. He had received a letter from the Rev. Dr. Montgomery, the moderator of one of the Irish Synods, stating the desirableness of an enactment of a retrospective character, wide enough to meet all the difficulties of the case; and, instead of insisting upon a declaratory act, appending the draft of an enacting act, which it was stated would be satisfactory. Their Lordships, he thought, could not with propriety pass an act declaring that to be law which not only the Irish judges, but the Ecclesiastical Courts, had declared not to be law. He would, therefore, advise their Lordships to pass the bill before them as the least objectionable course which they could adopt, and as the best mode of meeting the difficulties of the case.

The Marquess of Clanricarde
believed that the great majority of the Irish Presbyterians would be adverse to the bill be- fore their Lordships. He was sure that the most influential and intelligent among them would prefer postponing legislation for this Session, rather than adopting the bill before the House. But for his own part, he was so much aware of the difficulties which had sprung up from the present unsatisfactory state of the law, that he would assuredly wish to see some measure passed upon the subject without delay. He could have wished that it had been found possible to have introduced a declaratory act, for this purpose; for it was the opinion of the Irish people, notwithstanding the judicial decision, that the marriages were legal. There were marriages of the same description taking place in other parts of the world, and if they allowed the idea to go abroad, sanctioned by their Lordships' decision, that such marriages were illegal or invalid, much mischief could not but ensue. He trusted that, supposing the real state of the law to be what the Irish Presbyterian public esteemed it, a declaratory act would be at some future period introduced without prejudice to the bill before their Lordships.

The Earl of Wicklow
did not think that the Irish Presbyterians would be dissatisfied with the bill before the House. At a 1125 former period of the proceedings they might not have approved of it, but under the present circumstances it became a matter of consideration for them, whether it would not be better that the bill as it stood should pass, rather than that the law should remain in its present uncertain condition; and he would, upon this view of the case, give the measure before their Lordships his most cordial concurrence.

Lord Campbell
was afraid that no Presbyterian in Ireland knew what was now about to be done, and the enactment of this bill would come upon them like a clap of thunder.