Lords Sitting of 5 March 1849

MINUTES.
PUBLIC BILLS.—Outdoor Paupers.
2a Commons Inclosure; Vice-Guardians of Unions (Ireland); Relief of Distress (Ireland); Buckingham Summer Assizes.
Reported.—Larceny Acts Amendment.
3a Marriage (Scotland); Registering Births, &c. (Scotland).
PETITIONS PRESENTED. By the Duke of Richmond, the Earl of Eglintoun, and the Earl of Aberdeen, from Glasgow, Edinburgh, Aberdeen, and a number of other Places, against the Marriage (Scotland) Bill; also from the same Places, against the Registering Births, &c. (Scotland) Bill.—From Carrickmacross and Nenagh, against the Imposition of a Rate in Aid of certain Distressed Unions in Ireland.—From Rothesay, against the Repeal of the Navigation Laws.—From Trowbridge, for the Adoption of Measures for the Suppression of Seduction and Prostitution.

MARRIAGE (SCOTLAND) BILL.
LORD CAMPBELL LORD CAMPBELL moved the Third Reading of this Bill.
The EARL of ABERDEENsaid, that the noble and learned Lord, without making
158
any observations, had now moved the third reading of this Bill. As he (the Earl of Aberdeen) had already addressed the House on the subject, it was not his intention to trespass on the attention of their Lordships at any length on the present occasion. He must, however, state, that he had received many letters from various parts of Scotland, complaining of the haste with which this Bill, and that for the Registering Births, had been pressed through the House, and expressing the desire of the writers that an opportunity should be afforded them of petitioning against them. He was rather surprised at this desire, seeing the entire neglect and inattention with which, for the last two years, the petitions on this subject had been received by the House. He would admit that, of late years, the right of petitioning had been so much abused that it was not wonderful that their Lordships should not receive these petitions with all that respect and interest which they would otherwise command. But this was no party question. It was one affecting the social condition of the people of Scotland, and one on which a great unanimity of opinion had been expressed, and still existed at this moment in that country. The more he considered the two Bills introduced by the noble and learned Lord, particularly the Marriages Bill, the more he was at a loss to ascertain the grounds on which it was introduced. He could discover no reason for it, and He could only consider it an attempt to make more perfect a general system of registration, without considering the evils which the alteration would inevitably produce. The alteration was supported by the most flimsy and wretched arguments. They were told that there was a system of registration of marriages provided for England, and therefore it was fitting that there should be a similar system established for Scotland. But those who urged these arguments, entirely forgot that there was no resemblance between the circumstances of the two countries. In England the system of registration and of marriages before the registrar was established in consequence of the numerous petitions which were presented by Dissenters, who formerly were obliged to go to the Established Church to be married, and against which they entertained conscientious scruples. Nothing of the kind was the case in Scotland. There was no compulsion there to go to the Established Church. Each party was married by

159
the minister of the sect to which he belonged; and on this head, therefore, there was no practical grievance whatever. When he looked at the evils to the morals of the country that were likely to arise from the measure, he thought the present subject was one which deserved the most serious consideration of the House. They did not propose to interfere with the principle of the marriage law of Scotland. Under the present Act, marriage was still to be a civil contract, perfected by the consent of the parties. Although, fortunately, irregular marriages were not very frequent in Scotland, yet, when they did take place, their validity was unquestionable. A written promise given by the party, followed by cohabitation, was a valid marriage. He maintained that this was just. He said, that when a man gave a written promise, and thereby effected the ruin of a woman, it was only a matter of common justice that such a contract should be considered a binding one. This rule prevailed in every country of Europe; it was the law of Scotland at the present moment, and had been so for ages; and perhaps it would be quite as well if it prevailed in England. Now, this alteration would have the effect of holding out an indemnity and encouragement for seduction; for he believed he might take it for granted that seduction was generally effected by moans of some such promise. It generally appeared so in cases of actions for seductions in England. Let them look at any circuit in England. The cases of seduction in one circuit in England were often more in number than those which occurred in Scotland in the course of fifty years; and now, in spite of that which had been the law in Scotland time out of mind, Parliament was to say, that such a promise, followed by cohabitation, was no longer to be binding. Such a course would lead to an incalculable amount of guilt and misery. When he saw the institutions of his country overthrown, without the slightest show of reason, and contrary to the wishes of the people, he must say, that the feelings with which he viewed such an attempt were those of indignation. If their Lordships now wished to alter the law, they should appoint a Committee of Inquiry—they should call evidence, and see what the evils and advantages of the existing law were—they should inquire deliberately into the subject before they ventured to interfere with a matter which affected the welfare
160
of the people of Scotland in the highest degree. But the system proposed to be established by the present measure was quite new, and had never yet been attempted. His noble and learned Friend (Lord Brougham) some years ago introduced a Bill on this subject; but what was the nature of that measure? That measure was one in which the noble and learned Lord attempted to remedy the evils which arose in consequence of the difference between the English and Scotch laws on the subject of marriage. His noble and learned Friend on that occasion stated truly, that the people of Scotland were exceedingly attached to this portion of their jurisprudence; and that, for his part, he had no intention of interfering with it; and he added, that one system might be advantageous in Scotland, and another in England, yet that was no reason why the people of this country should take advantage of the Scotch law to evade the provisions of their own law. On that occasion he (the Earl of Aberdeen) expressed his concurrence in the views of; his noble and learned Friend; but now it appeared that a change had come over him, and that he was prepared to sweep away, without hesitation, that law which he said before he had no intention whatever of interfering with. On this subject, he could only appeal to Philip sober. The law of marriage in Scotland had been frequently referred to in both Houses of Parliament during the debates on Lord Hardwicke's Act, but no one thought of proposing any alteration in it. He had heard Lord Eldon and Lord Stowell on the subject of the Scotch marriage law, and they had never suggested any alteration in this respect, however much they might desire to correct the evils arising from the evasion of the law of England. Neither Lord Hardwicke nor anybody else had ever hinted at the propriety of altering the law. Dr. Lushington had spoken of this law with respect, and had never intimated the slightest idea of any such alteration. He might be permitted to say, that a measure of such importance as to its objects, and the extent to which it might be carried, deserved to be approached with much more caution than had hitherto been shown, seeing that there could not be the least necessity for it, except to complete, and to render somewhat more perfect, a general system of registration. He had expressed himself strongly, because he felt deeply on the subject; and finding that it would be vain for him to contend against the domination

161
to which he was exposed, he should merely add, that he never valued more highly than he now did the privilege which every Peer possessed of recording in a protest his opinion of any measure which he considered inexpedient and unjust.
LORD CAMPBELLwas surprised at the complaint made by the noble Earl against these Bills. The present was the third Session during which they had been before the House; and both in principle and in detail they had been most deliberately discussed. It was on account of the very condition of the law of marriage in Scotland, described by the noble Earl, that he (Lord Campbell) bad introduced the Marriage Bill as an attempt to remedy its evils. Its object was to register those promises of which the noble Earl had spoken, in order that the marriages might be legalised and declared, for the sake of the wife and the offspring, so that if the marriage were ever questioned, the promise could be shown to have been made. No one could enter into a bargain for the sale of goods or lands without a written contract; and if his noble Friend would not part with any of his numerous estates without having a contract in writing, how could he object to a written contract of marriage between persons—involving so deeply as it did the peace and character of females and their families, the morality of the people, and the possession of property—being made so publicly as to render any denial of it impossible? The mode of marriage required to be carefully attended to. It was peculiar to Scotland, and the power of declaration or concealment lay with the parties themselves. They might live together for years as man and wife, and finally either declare their marriage, and legalise their children, or say they were never married, and so illegitimise their offspring. The noble Earl had referred to the custom of other countries, and had stated that no country in Europe refused to recognise a written promise of marriage otherwise than as a good marriage. He would venture to contradict the noble Lord, and to state that in no Christian country in Europe did a written promise of marriage constitute a marriage. In France, and every part of Christendom where the Council of Trent prevailed, no marriage was lawful unless it were entered into in the presence either of the parish clergyman or the officer appointed by law for the purpose. It was the object of the present Bill to assimilate the law of Scotland
162
in this respect to that of every other Christian country, and to put an end to f. state of doubt as to what was, and what was not, a legal marriage.
Bill read 3a and passed; as was also the REGISTERING BIRTHS, &c., (SCOTLAND) BILL.

VICE-GUARDIANS OF UNIONS (IRELAND) BILL.
The MARQUESS of LANSDOWNE The MARQUESS of LANSDOWNE moved that this Bill be now read 2a.
LORD STANLEYsaid, he was glad to find that this Bill was to be of only temporary duration, and, under the circumstances, he should not offer any opposition to its passing. At the same time, he thought the subject was one which required considerable attention on the part of Her Majesty's Government, whether the Poor Law Commissioners should not be required to specify the grounds of their proceedings in each case where they appointed vice-guardians. The two systems of elected guardians and of paid guardians were liable to separate evils—either they had local knowledge with local prejudices, or, in the other case, there was an absence of local prejudice, but, at the same time, an absence of local knowledge, which frequently resulted in the expenditure of a large and an unnecessary sum of money. He suggested that a remedy might be found in the vice-guardians calling to their assistance some of the more intelligent of the elected guardians.
The EARL of WICKLOWsaid, the suggestions of the noble Lord were no doubt of considerable weight; but he thought there were reasons on the opposite side which considerably outweighed them. He contended that responsibility ought to rest exclusively either upon one class or the other. He deplored any system which would divide the responsibility between the vice-guardians and the elected guardians. Both systems might be liable to peculiar evils and abuses; but he was sure that those abuses would be greatly augmented by a union of the two systems.
LORD MONTEAGLEfelt it Ins duty to support the present Bill; but, at the same time, he thought the system of paid guardians was peculiarly liable to abuse; and, while several excellent appointments had been made, he knew cases, on the other hand, where parties were appointed that were utterly incompetent to discharge the duties of their situation.
The BISHOP of CASHELrose to bear

163
his testimony in favour of paid guardians, 'instead of that class of guardians which generally composed an elected board, where it was too often the case that politics were: introduced as subjects of debate, instead of attending to the wants of the poor, He could state, that in the district of country with which he was acquainted, the ratepayers were thankful for the substitution of paid guardians; and the poor, to his own knowledge, were twice as well taken care of as they were under the old system. As to the expense, it was a fact with which he was acquainted, that in one union the paid guardians had made such arrangements that, unless a sudden scarcity of food should take place, such as was not at all anticipated, there would be a saving of 6,000 l. or 7,000 l a year. He believed, if there was a uniform and permanent system of paid guardians, both the ratepayers and the poor would be better satisfied.
The EARL of LUCANsaid, he would acquiesce in the measure without at all giving an opinion upon the point which had been referred to by the right rev. Prelate. A suggestion had been made, that, before the Poor Law Commissioners dismissed a board of guardians, application should be made to the Court of Queen's Bench to proceed by mandamus; and he was not sure that great advantages might not result from such a practice. He had had some experience, in the working of the system of paid guardians. In the county with which he was connected there were four unions under the management of paid guardians, and great complaints had been made of the mischief they had done from their want of local knowledge.
Bill read 2a.

RELIEF OF DISTRESS (IRELAND) BILL.
The MARQUESS of LANSDOWNE The MARQUESS of LANSDOWNE moved the Second Reading of the Relief of Distress (Ireland) Bill.
LORD BROUGHAMsaid, he did not mean to oppose the Bill. He feared the necessity was so great that it was impossible they could do otherwise than accede to it. Indeed, he feared it was too late to resist the grant, because the money was actually in the course of being paid away in relief—dum loquimur fagerit. At the same time, he must suggest to his noble Friends in the Government that it was grievous to have these applications made to Parliament for grants of money from time to time, the Irish living, as it were, from hand to mouth, to provide for what
164
he feared was a permanent evil. The present grant was at once too little and too much—too little to do any permanent good, and too much to avoid the infringement of a great principle. There was one thing to which he would fain call their Lordships' consideration, and that was, to think how I they could most avoid accustoming the Irish—or rather, he feared he should now say, how they should most avoid continuing to accustom them—to look for a remedy of this sort at all, in which they were accumstomed to rely upon such loans as these—more or less scanty, more or less precarious—in which they were accustomed to rely upon any one supply for their hard I necessities, other than the natural and wholesome and legitimate supply which their own exertions, through their own industry, ought to furnish, and alone ought to furnish. They might rely upon it that country was in a false position—that people was in an unhappy state—that national polity was in a most diseased condition—in which reliance was systematically placed for any other supplies of the peoples wants than the exercise of the people's industry. It had, unhappily, become the case—he did not mean to blame the Government—he did not mean to blame even the system—he did not impute it to the conduct of the landowners—he did not impute it to the conduct of the peasantry—God forbid that he should impute it to the national character, for which he had the greatest affection and respect: but it had happened from one thing or another—be it from the system—he it from a long abuse of the powers of the law—he it from the tardy rendering of justice by an equality of rights—be it from the conduct of the landowners—be it from the ignorance or the indolence of the peasantry—be it from the system of middlemen—one thing or another had produced that unhappy state of things in the sister kingdom, that they were, less than any other people we know, in the habit of relying upon their own exertions, and, more possessed of the kindred habit which naturally arose in the absence of the other, of looking elsewhere than to their own exertions for a supply of food. How this was to be remedied—whether by carefully adopted improvements in the polity of the country, by giving every facility to labour, by removing all impediments to the traffic in land—at the same time by giving as little encouragement as possible, or rather by giving as little additional stimulus as possible, to that diseased craving for the possession

165
of pieces and patches of land—for he looked upon that as the curse of Ireland, and he knew it was not confined to Ireland, for he was acquainted with a part of the Continent where there was the same inordinate desire for specks of land, which was ruining agriculture, and which would ruin the people too, if they increased in anything like the rapid progress they did in Ireland—whichever of these might be the true remedy, or whether all of them combined, he would not now discuss; but he thought every effort should be made to withdraw them from a desire for the possession of these specks of land; for while that was in the minds of the people, they knew, by sad experience, that one of the results would be a low estimate of competence. Now, the higher the idea the people had of what constituted a competence, the happier that people would be—the more comfortable they would be—the more industrious they would be—and the more productive in the fruits of industry they would be. But if men were to indulge in the feeling that they could keep soul and body together by boiling a few roots, and sprinkling a little salt over them, what they would come to would be this: in the first place, they would live miserably; in the second place, they would live indolently, for they would labour no more than what served to cultivate those roots; in the third place, their numbers would increase, not according to the resources of the country, but according to other rules, to which he would not advert there; and, lastly, they would live in a diseased as well as a degraded state, as long as they had that low estimate of competence in their minds. How these alterations were to be made, though the subject had occupied his mind for long years, he would not then discuss; but be could not avoid expressing his hope that this would be the last application of the sort made to Parliament, and that before a second application became necessary, other and better sources of supply might be pointed out.
After a few words of explanation from the Marquess of LANSDOWNE and the Earl of WICKLOW,
Bill read 2a.
House adjourned till To-morrow.