THE DUKE OF ARGYLL
called the attention of their Lordships to a petition from the Synod of the United Presbyterian Church, at the meeting at Edinburgh, of which the subject, although it related to a distant dependency of the Crown, was of the very greatest interest and importance. He was sure that all their Lordships would admit that any grievance which arose out of the uncertainty of the law of marriage was a grievance which must be very severely felt, and which ought to be very speedily redressed. The petition 536 which he then held in his hand had immediate reference to a judgment which had been given in their Lordships' House, in the case of "the Queen v. Willis." By that judgment it was decided that a marriage contracted between a member of the Established Church and a member of the Presbyterian Church, when celebrated by a Presbyterian minister, was null and void by the common law of England. He need scarcely mention to their Lordships the grave importance of such a decision, which, emanating from that House in its judicial capacity, had not only force in this country, but also at the Antipodes, and in every colony of the British empire where the common law of England prevailed. In adverting to that judgment, a noble and learned Lord who dissented from it observed that it was a declaration that wherever the law of England prevailed, unless it was corrected by some remedial measure, every marriage that was celebrated without a priest was ipso facto void, and that the issue of every such marriage would be bastard and illegitimate. Notwithstanding this consequence of the decision was clearly pointed out to them, their Lordships decided that all marriages between members of the Church of England and members of the Presbyterian faith celebrated by a Presbyterian minister, were void by the common law of England. One of the main grounds on which this judgment was founded was, that so far back as the time of King Edward the Saxon, it was declared that to make a marriage valid, there should be the presence of a "mass" priest; and it was the opinion of high legal authorities that the only person who could now be considered as a "mass priest" must be a clergyman of the Church of England. Their Lordships would observe that that judgment applied to all our Colonies in every part of the world to which a remedial measure was not applied. So fatal were the consequences of it found to be in Ireland, that a noble and learned Lord then in the House (Lord Lyndhurst), had, much to his honour, introduced and carried through Parliament a Bill giving validity to all such marriages in Ireland. The judgment, however, to which he had referred was as wide in its application as the dominion of the law of England, and the dominion of the law of England was as wide as the habitable globe. The Bill to remedy that judgment was confined to Ireland; it therefore held good as to all Presbyterian marriages celebrated elsewhere; 537 and from that circumstance great injury had accrued to the inhabitants of Australia. In the year 1849 a person of the name of Roberts, being an Episcopalian, had contracted in Australia a marriage with a member of the Church of England, and the marriage was performed by a minister of the Established Church. He subsequently entered into a marriage contract with another person, a member of the Scotch Church, and the marriage was performed by a Presbyterian minister, and upon that marriage he was arraigned upon a charge of bigamy. The question arose whether he could be convicted of bigamy, as the last marriage was alleged to be illegal and void. The judgment of the Supreme Court at Sydney was very injurious to those who professed the Presbyterian religion. It decided that the indictment for bigamy could be sustained, stating that it declined to give any opinion whether the last marriage was invalid or not. It came to this decision on the ground that as the first marriage was undoubtedly valid, no marriage after it could be valid, and therefore there was no occasion for them to inquire whether the Presbyterian marriage—which was admitted to have taken place—was in itself valid, or the contrary. But, although by this determination of the Colonial Judges the question of the validity of Presbyterian marriages was held in suspense, yet they expressed an opinion which in another point of view was highly important. In the year 1834 a Colonial Act had been passed to render valid Presbyterian marriages. But the terms of that Act were so strict, and the requirements of it were so complicated and numerous, that it was the opinion of the Judges that Presbyterian marriages acquired no validity from its enactments. He had no official record of that judgment; but he would read it to their Lordships as he found it in the colonial newspapers. [Here his Grace read a paragraph of some length from an Australian newspaper, in which the Court declared that a Presbyterian marriage derived no validity from the Colonial Act of 1834, and declined deciding the question whether it was a good and valid marriage by the common law of England.] The Presbyterian inhabitants of Australia were, therefore, in this painful condition at present—they had found out that the Colonial Act drawn up expressly for their behoof rendered their marriages invalid, because it was next to impossible to comply with all its requirements. This local 538 Act referred only to persons being members of the Church of Scotland. Now, if the question were to be mooted in a court of law, it would unquestionably be held that a Presbyterian of the Church of Scotland only meant a member of the Established Church of Scotland. Therefore, this remedial Colonial Act referred only to one-third of the Presbyterians in the colony; and, if so, two-thirds of the Presbyterian marriages in Australia were invalid, and their issue bastards. He therefore came to this conclusion, that no greater grievance could be inflicted on this colony than the uncertainty under which so many of its inhabitants laboured as to the validity of their marriages, and the legitimacy of their children. Such being the ease, the three Judges who formed the Supreme Court at Sydney unanimously expressed a hope that this question would not be raised before them again until it had been finally settled either by the Imperial or the Colonial Parliament. In the next ensuing session of the Colonial Legislature an Act was passed to remedy this grievance. And what sort of an Act did their Lordships suppose it to be? An Act had been passed declaring all Presbyterian marriages celebrated before its enactment valid, but not making any provision for future marriages, leaving the question as to them exactly where it was before. He had read with surprise not unmingled with regret, a speech which the Governor of the colony, Sir C. Fitzroy, had made to the Colonial Assembly shortly after that Act was passed. He said that the Act for the confirmation of Presbyterian marriages would remove the apprehensions of many respectable persons in the colony, who, from neglect of the requirements of the law, had placed themselves in a position of great difficulty; and he then added that it was very essential that the dangerous precedent of this measure should not be relied on in future, for he should be very sorry to lend his aid again to remedy a defect which might have been avoided by a due observance of the enactments of the law. Now, he (the Duke of Argyll) maintained that it could not be so avoided on account of the confusion and intricacy of the law itself. He trusted that he had now proved to the satisfaction of their Lordships that a great grievance existed in Australia as to the law of marriage, and that it ought to be remedied not by the Colonial but by the Imperial Parliament.
§ EARL GREY
did not think his noble Friend who had just spoken exactly understood the circumstances of this case. The facts, as he (Earl Grey) understood them, were these. He believed it was an acknowledged principle that the law, statute and common, in all our Colonies, was the law of this country as it stood at the time of their foundation, subject to alterations which might be subsequently made by the Colonial or Imperial Legislature; consequently New South Wales having been founded after the English Marriage Act of 1757 was passed, he apprehended that the English Marriage Act was the law in force in New South Wales.
§ EARL GREY
At all events the Common Law of England, whatever it might be, with respect to English marriages, was in force in New South Wales. That law gave no power to contract marriages in New South Wales other than in the mode in which it was contracted in this country. Therefore, in 1834, an Act was passed by the Colonial Legislature enabling Presbyterian ministers to celebrate marriages; but requiring, as the condition on which they should do so, that one or both of the parties presenting themselves for marriage should declare themselves members of the Presbyterian faith. It appeared that one particular clergyman in the Church of Scotland, residing in Australia, had habitually neglected to require from the parties who presented themselves to him for marriage that declaration, and the consequence was that a great number of marriages celebrated by that gentleman were not supposed to possess the force of law. In the decision given on the indictment for bigamy, the Court threw out the greatest doubt as to the validity of any marriage celebrated by a Presbyterian clergyman, in which the terms of the colonial statute had not been complied with, and therefore whether, admitting the first marriage to be valid, an indictment for bigamy could be supported on a marriage thus celebrated. The question then arose, how were these doubts to be removed—how was the defect in such marriages, if defect there was, to be supplied? It appeared from the debates in the Legislative Council of New South Wales that the Attorney General introduced a Bill which was copied almost verbatim from the Act of the noble and learned Lord opposite (Lord Lyndhurst) with regard to Presbyterian marriages in Ireland. The difficulty in the 540 case was the same as the difficulty that had arisen in the case of the Irish marriages; and the Attorney General for Australia confined himself to introducing a Bill making valid those marriages respecting which the doubts had been raised. In doing so he said the whole marriage law of the colony was in an unsatisfactory position, and required to be revised, and in another Session ought to be brought under the consideration of the Legislative Council. He said there was not then time to prepare a measure in that Session, and therefore it seemed to him expedient that the interference of the Legislative Council should be confined on that particular occasion to legalising the particular marriages on which doubts had been raised. The Governor of the colony, in his speech at the close of the Session in which this Act was passed, undoubtedly said he should have difficulty in assenting a second time to a provisional measure of that kind; and he (Earl Grey) thought the Governor was justified in saying that, for nothing can be more unsatisfactory than allowing persons to go about celebrating marriages in an illegal manner, and then passing Acts to legalise them. What was necessary was, that the law should be put upon a permanent and proper footing, so that marriages could be contracted in a proper manner, probably by such a measure as had been passed in this country in 1835. From what had passed in the Legislative Council he had little doubt that in another Session the subject would be considered by that body, and that a measure would be proposed putting the law of marriage in Australia on a satisfactory footing; but with regard to the suggestion that Parliament ought to interfere, he (Earl Grey) hold that to be most irregular. There was no one of their colonies in which, at that moment, the manner in which marriages were to be celebrated, was not defined by colonial enactment. In New South Wales marriages were celebrated under the Act of 1834; and if that Act were insufficient, it ought to be amended. Parliament had dealt with the subject, as regarded this country, in a satisfactory manner; but, in passing the Act of 1835, they purposely and most properly excluded any reference to the Colonies; for this reason, that the machinery of that Act did not exist in the Colonics. There were no poor-law unions there, whose officers would act as registrars if marriages were celebrated without a religious ceremony, as provided by that 541 Act. So it was in every colony; the machinery necessary for substantiating the fact of a marriage being properly celebrated, must vary according to the circumstances of the colony, and the existing institutions; and it was therefore, of all subjects, the subject which it was most necessary to leave to the colony itself. It was an established maxim of this country that a marriage celebrated in a British colony, or in a foreign country, according to the law of that colony or country, was good in this country.
§ EARL GREY
Such a marriage was good all over the world; therefore if the Legislative Council took proper measures for the celebration of marriages, whether by ministers of the Established Church, or Roman Catholic, or Presbyterian, the marriages so contracted under that colonial law would be perfectly good and valid in this country, and the interference of Parliament was not required.
Notwithstanding the observations of the lion. Secretary for the Colonies, he must say, it seemed to him that the petition presented by the noble Duke opposite was most reasonable, and he hoped its prayer would be complied with. It was his humble opinion that there was a call for the interference of the Imperial Parliament, because, not only in Australia, but in all their Colonies, the inhabitants were now placed in a situation of the greatest embarrassment, and were subject to great injustice, and until recently no such complaint could be made. What the noble Earl had stated as the law in newly-established colonies was correct, with one exception; the noble Earl supposed that all the statutes in force in this country at the time of the establishment of a colony, were imported into the newly-established colony: that was not so; it was only statutes which were supposed to be applicable to an infant community that were so imported into it. No inconvenience on the subject of marriage had, however, been felt, until the recent decision of their Lordships in "the Queen v. Millis;" for it was supposed, before the introduction of Lord Hardwicke's Act, that the canon law of Europe remaining in force in England, was carried by their colonists all over the world; and by that canon law it was well understood that marriage was a contract made by consent, and there was no occasion for the intervention of a mass 542 priest, or of any person beyond the witnesses who might bear testimony to the contract being made. Such is the law of Scotland at the present time, and such, he hoped, with some modification, would remain the law of Scotland. It certainly gave great facilities for marriage—dangerous facilities at present he was bound to say; but he would rather that marriage could be entered into with too much facility, than impose unnecessary restrictions upon it. Now, let them see the position in which the colonists were placed by the decision in "the Queen v. Millis;" after that decision the intervention of a priest episcopally ordained became necessary; a Roman Catholic priest being episcopally ordained was considered quite sufficient; and he supposed a priest of the Established Church would be considered sufficient; but a Presbyterian clergyman, even the Moderator of the Church of Scotland, for this purpose would be considered a layman. He (Lord Campbell) must say, that it became that House and the other House of Parliament to make a provision for the new law which that decision introduced; and his noble Friend opposite (Lord Lyndhurst), then Lord Chancellor, most properly introduced a most excellent remedial law for Ireland; and amongst the many excellent measures that had been introduced by him, that would always be remembered to his credit. He (Lord Campbell) regretted extremely that there had not been a similar measure introduced for the Colonies. It would not do simply to extend to the Colonies the law that had been passed for England in 1835; but there ought to be a marriage law passed for all the Colonics, restoring the old canon law, whereby consent constituted marriage. There were cases where it was impossible to get a minister, and the marriages were celebrated before magistrates, commanding officers, and captains of ships; and those marriages were considered as valid as if they had been celebrated by the Archbishop of Canterbury or by the Pope himself. He differed from the noble Earl in thinking that this matter should be left to the Colonial Legislature; and they could not abstain from seeing the difficulty to which the noble Duke opposite had referred; namely, that in Australia there was a Roman Catholic Attorney General. It was true that in this country also they might have a Roman Catholic Attorney General; but if they had, he could not interfere with legislation as the Attorney General of Australia had the 543 power of doing. Marriage was not a subject that ought to be left to the colonists; because it was most important that there should be a uniform law of marriage as far as possible throughout the British empire. There was an appeal from all the Colonies to the Queen in person on the subject; and how were the Members of the Judicial Committee to find out what was to be the law of all the various Colonies under the Crown of England?
THE DUKE OF ARGYLL
said, his noble Friend opposite (Earl Grey) had said, that he (the Duke of Argyll) was imperfectly informed as to the law of marriage: but he could assure him that he was himself imperfectly informed respecting it if he thought that the law of 1834 afforded relief for the grievances of which the petitioners complained. As to leaving the question to the Colonial Assemblies, no doubt they might pass an Act to remedy the grievance; but cases might arise where, in the event of an appeal to the Crown, it would be difficult to say what the decision would be. The remedy proposed by those petitioners was a reasonable remedy, and a declaratory Act should be passed to carry it into effect.
§ EARL GREY
could not concur with his noble and learned Friend that this was a subject that could be satisfactorily dealt with by Parliament, and not by the Colonial Assemblies. There ought to be some defined mode of giving evidence of the marriage; and if they adopted the suggestion of the noble Duke, and passed a declaratory Act superseding all colonial enactments, it would follow that any contract without any regulation as to the way it should be made, would be a valid marriage. It was better to leave the matter to the colonists, who had shown every disposition to follow their example; and the Act of 1835 was a model that was likely also to be followed by the other Colonies.
§ Petition to lie on the table.