Lords Sitting of 25 July 1848

MINUTES.
Took the Oaths.—The Earl Poulett.
PUBLIC BILLS.—Reported.—West India Islands Relief.
3a and passed:—Registering Births, &c. (Scotland); Marriage (Scotland). Received the Royal Assent.—Habeas Corpus Suspension (Ireland).
PETITIONS PRESENTED. From Foreman and Grand Jury of the County of Tyrone, that a Law may be passed for the Suppression of Armed Clubs and Seditious Journals.—From Westminster, and several other Places, in favour of the Public Health Bill.—From Members of several Odd Fellows' Lodges, for the Extension of the Provisions of the Benefit Societies Act to that Order.—From Walls End, against the Sale of Intoxicating Liquors on the Sabbath.—From Ashton, for the Adoption of a System of Secular Education in the County of Lancaster, to be supported by Local Rates.

MARRIAGE (SCOTLAND) BILL.
LORD CAMPBELL LORD CAMPBELL moved that the Bill be now read 3a.
The EARL of HADDINGTONwas understood to oppose the Bill, on the ground that it recognised for the first time by statute marriages not solemnised in the face of the Church. No doubt the common law of the country admitted irregular marriages; but the Church had uniformly censured them, and Parliament had never hitherto given its sanction to them. The tendency of the Bill would be to tranfer the celebration of marriages from the Church to the registrar, and it was on this account that the General Assembly of the Church of Scotland had petitioned against it. He protested against forcing a Bill of
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this sort upon an unwilling country, and hoped that at least it would be postponed till another Session, when the views of those interested in the matter would have been ascertained. He concluded by moving that the Bill be read a third time that day three months.
LORD BROUGHAMhoped the noble Earl would withdraw his Amendment, and allow the Bill to pass; for really, he must say, that a more groundless prejudice than that which had been raised against it he had never known. He considered it to be a most beneficial measure—a measure which would greatly amend the law of Scotland, and lead to an improvement in the social condition of the people. He knew that great ignorance as well as great prejudice existed in regard to this Bill. Indeed, the amount of ignorance which had prevailed in different quarters in reference to it was wholly unexampled in his experience. He was sorry to hear his noble Friend (the Earl of Haddington) say, that the tendency of the present measure would be to do away with marriage as a religious ceremony, and to take the celebration of marriage out of the hands of that exemplary body the Scottish clergy. It would be all very well to make these sort of objections if the law of Scotland in regard to marriage were different from what it was; but let their Lordships only consider what the law really was on that subject at present. It did not require a clergyman of any denomination; it did not require a registrar, or any ceremonial whatever. It merely required a man and a woman of the age of consent—the one being fourteen and the other twelve. By a law taken from oriental climates—by a law taken from Constantinople—any girl of twelve and any boy of fourteen—without going before a clergyman—without going before a registrar or witness of any kind, beyond any postboy or chambermaid that might be at hand, or any peasant they might meet on the highway—for it was not necessary that the parties should go into a house for any purpose—it was not necessary that they should go into a church for any purpose—all that was necessary was, that before any sort of witness the man should say to the woman, "I take you for my wife," and that the woman should say to the man, "I take you for my husband;" and, this being proved, constituted as valid a marriage, under the civil law of Scotland, as any that had ever been celebrated by the Archbishop of Canterbury. Such was the law

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of Scotland at present: and could anything be more barbarous? No time or space was given for reflection—away they went, and before they could count two on their fingers they were married. The present Bill, on the contrary, required not only that a marriage should be contracted either by solemnisation in presence of a clergyman, or before a registrar; but it also imposed certain restrictions, such as that there should be previous residence in the parish for a certain time, as well as previous notice to, and a certificate from, the registrar. And yet there were parties who said that the tendency of the Bill would be to put an end to marriages by the Church! At present a marriage solemnised by a clergyman was a perfectly valid marriage; it would be an equally valid marriage after this Bill had passed. In that respect there would be no change, So far as any alteration was effected in the existing law, it seemed to him to be a decided improvement. The provision of previous residence was in his opinion a very material improvement. The present measure would prevent the scandal which at present attached to the Scotch marriage law, and which was made the means of evading the English law of marriage. At, present Lord Hardwicke's Act was every day evaded by means of the existing Scotch law. He confessed he looked with great satisfaction to the present measure. He had long endeavoured to provide some remedy for the bad state of the Scotch law on this subject; and he thought the present Bill fully met the wants of the case. This Bill, and a little amendment of Lord Hardwicke's Act, would in his opinion, place the marriage law of the two countries on a satisfactory footing.
THE DUKE of ARGYLLsaid, that although, considering the great importance of the subject, and the interests, opinions, and prejudices which would be affected by the Bill now under consideration, he could not help thinking that it would have been a wiser course for Government to have given a little more time for public discussion on it; and although with this view he had the honour of suggesting that the Bill should be referred to a Select Committee, for the purpose of receiving evidence with regard to the practical operation of the existing law; and although he had afterwards supported a Motion which was made by a noble Earl (the Earl of Aberdeen) who was not then present, recommending the postponement of the Bill for another
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Session; yet, he felt bound to confess that, so far as he could see, if there was to be any change in the law of marriage at all, no Bill could proceed on safer or sounder principles than those upon which the present Bill proceeded. With respect to the opposition which had been offered to this Bill by the Established Church—with respect to the petition which had been presented to their Lordships' House from the General Assembly of the Church of Scotland—he was anxious to say a word. He had not seen the petition, but he thought he had heard it read when it was presented by a noble Lord at an earlier period of the Session; and, if he was not mistaken, the objection of the General Assembly to the Bill was, that for the first time it recognised formally by a statute of the Legislature marriages which were not celebrated in facie ecclesiœ. They admitted that the existing law had provided innumerable modes of contracting irregular marriages, not by statute law, but by the common law of Scotland. Their objection then came down to this, that for the first time there was put upon paper and sanctioned by that House that which by judicial decisions had been, from time immemorial, recognised as the common law of Scotland. Now, this Bill did not recognise all the irregular modes of contracting marriage which were admitted under the common law. It recognised marriages which were celebrated in facie ecclesiœ, by a clergyman of any denomination, and, beyond this, it recognised marriages by civil contract which were performed before a public functionary—the registrar. It did appear to him that the Bill afforded every possible scope for the contraction of marriages in Scotland. One objection raised to the Bill by a noble Earl (the Earl of Aberdeen) was, that it did away too much with irregular modes of marriage—that it placed too much restriction on the law of mariage; and the noble Earl held, that besides marriages by a clergyman of any denomination, and besides marriages before a registrar, there should be a statutory recognition of some other, although irregular mode, which the present law recognised. Now, no one was more inclined to pay the greatest deference and respect to the opinions of the General Assembly of the Church of Scotland than he was—he only wished their Lordships had paid more deference to those opinions at a time when that body represented a larger portion of the people of Scotland than it did at present,

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and when its opinions were peculiarly valuable; but he felt bound to say that, considering the objections which the Assembly had brought against the present Bill, and looking to the specific reasons on which those objections were founded, he regarded them as quite untenable. He should, therefore, give his vote for the third reading of the Bill.
LORD CAMPBELLsaid, it give him sincere pleasure to have the support of the noble Duke on this occasion, and he trusted that that support would have a powerful effect in doing away with the prejudices which at present existed against this great improvement in the law. They had been considering the subject for some years, and he did not think that any advantage could possibly result from further postponement. As to examining witnesses he could not see what information could be laid before them of which they were not already possessed. He appealed to his noble and learned Friends (Lords Brougham and Lyndhurst) whether they had not in the course of their legal experience found the most multiplied evils arising from the existing law? He believed that this Bill would do much to remove these evils; and that, so far from encouraging clandestine marriages, it would put an end to them, as there could in future be no marriage in Scotland except before a clergyman or before a registrar. He regretted very much that the Bill should have been opposed by the clergy of the Church of Scotland. He was himself descended from a minister of that Church, and had always entertained the greatest possible respect and affection for it; but he must say that on this occasion he thought the objections of that body altogether unreasonable. He trusted, however, that upon further consideration those objections would gradually die away, and that the Bill would be received by the people of Scotland in the manner it deserved to be received, as a great improvement in their social condition.
LORD BROUGHAMexpressed his astonishment to find the clergy of the Church of Scotland objecting to the Bill, as recognising marriage by civil contract for the first time, in the face of the notorious fact that it had been so recognised by the Judges of England for the last sixty or seventy years, and uniformly so by the Judges of Scotland.
The EARL of HADDINGTONassured their Lordships that he was by no means attached to the present system of irregular
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marriages, nor unfavourable to any well-considered measure of reform which should have the sanction of the Church and those whose opinions were entitled to weight on the subject; but he did not consider the present to be a measure of that description. He begged to say that his noble and learned Friend (Lord Brougham) had misstated the objection of the Church of Scotland. That objection was not that marriage would be recognised for the first time as a civil contract, but that this would be its first recognition by statute. Seeing the feeling of the House, however, he would not press his Amendment.
Bill read 3a and passed.

PRIVILEGE.
LORD MONTEAGLEsaid, that he wished to call their Lordships' attention to a matter connected with the maintenance of their Lordships' privileges, arising out of a Railway Bill now pending before their Lordships' House. Certain suitors under the Bill had applied to the Vice-Chancellor of England to obtain an injunction to restrain certain other parties from appearing as petitioners against them before their Lordships' House. With respect to the probable result he had nothing to do. What he wished to call attention to was the fact that the application for such an injunction was unjustifiable, as being an attempt to prevent a subject from appearing before their Lordships in the character of a petitioner. A more flagrant violation of the liberty of the subject or of their Lordships' power of legislation was never before attempted. He should make no Motion upon the subject at present, but merely beg leave to lay the petition upon the table of the House.
The LORD CHANCELLORsaid, that it was a constant practice of the Court of Chancery to interfere by injunction with the proceedings of parties in the other courts of Westminster Hall, and those courts never took offence at such interference. His noble Friend had not stated any of the facts of the case upon which the whole value of the question might really turn. There might be contracts existing between the parties whereby they might be bound not to oppose the Bill; and in such a case an injunction might very properly be applied for to enforce the performance of the contract. The matter lay entirely between the parties them-selves, and did not in any manner affect their Lordships' power of legislation.

RAILROAD AND STEAM PACKET COMPANIES.
On the Motion for the Third Reading of the London and South Western Railway Company's Acts Amendment (Extension, Deviation, and New Works) Bill,
The EARL of HARROWBYobjected to the principle involved in the Bill, of empowering a railway company to establish steam packets, and he moved the omission of certain words in the preamble for the purpose of restricting the railway company to its proper province.
THE DUKE of WELLINGTONwas one of those who felt that, certain rules having been laid down by their Lordships for the guidance of their conduct in matters of this description, they were called on to pay the utmost respect to the report and decision of the Committee in the present instance; and most undoubtedly he should he inclined to pay the utmost respect to the Committee on this particular Bill. But he conceived their Lordships' principle was to pay the utmost respect to the decision of a Committee upon matters of which the object was to promote that which was essential to the working out of the enterprise, whether it were the South Western Railway or any other work. Making a railroad to Southampton, or making any other railroad, was the object; but what had the question with respect to the railroad to do with the construction of steamboats? The construction of steamboats had no relation to the question with respect to that railroad. He begged their Lordships not to be bound by any general feelings of the propriety of giving support to the decision of a Committee of their Lordships' House, when that decision was upon a point not at all within the scope or province of that which it was given the Committee to consider, namely, the construction of a railroad. This was beyond the railroad altogether. He knew one instance already of inconvenience from railroads interfering with harbours, and getting possession of a harbour and steamboats. Under these circumstances, he recommended their Lordships to adopt the Amendment of his noble Friend.
EARL ST. GERMANSexplained the reasons which had induced the Committee to recommend the adoption of the clause. He thought the objections ought to have been made on the second reading of the Bill, and not have been reserved till the present advanced stage, and after the whole measure had been referred to the
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consideration of the Committee. The Committee had given its decision upon public grounds alone, and not from any desire to confer peculiar advantages upon the company. It was considered that the concession of the power involved in the clause afforded the best means of securing safe and expeditious communication with the Continent.
LORD MONTEAGLEsupported the Amendment. He would appeal to their Lordships' experience if there was not a disposition on the part of railroad companies first to get their terminus at a port, then to get possession of the harbour, and next to commence as steamboat proprietors? If the clause now in question was sanctioned, there would be a steamboat monopoly in the hands of the railway company at the port of Southampton.
THE MARQUESS of WESTMINSTERwould oppose the Amendment, because he thought the public interest would be best promoted by the Bill as it stood. There was no company so capable of carrying on the communication between this country and the Channel Islands and Havre as this company was; and if the power of establishing that communication was withdrawn, the interests of the country would suffer.
The EARL of MINTOsuggested to the noble Earl the propriety of postponing the further consideration of the subject till another day. He was not disposed to enter upon the question now; but, if compelled to give an opinion, he must say that he very much coincided with that given by the noble Duke.
LORD BEAUMONTsaid, he was decidedly in favour of the Bill as it stood. Their Lordships should recollect that a powerful railway proprietary like this could easily find means to carry out their object by the establishment of a steamboat company composed of the same parties as the railway company, if they were not allowed to accomplish it under this Bill.
After some further conversation,
Debate adjourned.
House adjourned.