Lords Sitting of 28 April 1856

MINUTES.
PUBLIC BILLS.—la Bankruptcy (Scotland); Marriage Law Amending.
3a Exchequer Bills (£21,182,700).

MARRIAGE LAW AMENDMENT BILL.
LORD BROUGHAM, in presenting a Bill for amending and declaring the Law of Marriage, said, that he would, in the first instance, call the attention of the House to the most important petition which he had presented the other evening from the Cumberland magistrates, relating to the conflicting nature of the law of marriage as existing in England and in Scotland. The country was already under great obligation to those intelligent and upright magistrates for the great service they had done by a petition which they had presented, through him, several Sessions ago, and which ultimately led to a great improvement in the criminal law; for, owing to their perseverance, his noble and learned Friend (the Lord Chancellor) and himself had each brought in a Bill. An amalgamation of the two was made, and the Summary Jurisdiction Bill received the sanction of the Legislature, to the great relief of the Judges and the great improvement of the criminal law. He hoped they might now owe to them and to their petition another improvement in our law—he meant the Marriage Law—by removing the conflict of the laws on that subject which prevailed in the two countries of England and Scotland. In 1835 he had the honour of bringing the subject before their Lordships' House, when a change in the law was generally desired, not only in this country, but by the community, the bench, and the bar in Scotland. That was at the end of September, so that nothing more could that Session have been accomplished. Illness, the next year, detained him from his Parliamentary business. But when he
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returned, in 1837, he found that he had not sufficient support or encouragement from those high quarters to which he had referred to justify him in presenting a measure on the subject, for a feeling had got abroad that it was but one step towards altering the Scotch marriage law, whereas it was only intended to remove the conflict between that and the English law. After a delay of ten years, in 1845, he again introduced the same measure, it being one of the nine Bills which he that year submitted to the consideration of their Lordships' House for the amendment of the law. Five of those Bills, he was happy to say, had been since passed into law, with more or less difficulty—including that grand and most beneficial change in the law by which parties in civil suits, one class of cases excepted, were allowed to be examined as witnesses. The other four had not yet received the sanction of the Legislature, among which was his Marriage Bill, and which he considered to be the most important of the four. He considered that, in consequence of the great complaints set forth by the Border magistrates, now was a fitting time for once more pressing the measure upon the attention of their Lordships. He was quite aware that it might be said that there were other amendments equally required in the marriage law; but, as at present advised, he was content to postpone those other Amendments, and to rest satisfied in endeavouring to remove the conflict of the law in the two countries. There were two objects which he sought to effect by his measure—first, to prevent the evasion of the English marriage law by parties removing across the Scotch border, and there contracting a marriage prohibited in England, but valid according to the law of Scotland. It was a very great defect in Lord Hardwicke's Act that it did not require absolutely the consent of the parents and guardians to constitute a legal marriage in England. It was another defect that he did not extend his law to Scotland; and it was a further defect that he did not provide against the evasion of the statute by the parties removing to Scotland. That evasion was one which in every respect was to be disapproved and deprecated. No doubt there was another defect in allowing marriages to be valid by a, mere publication of banns. In small towns and country villages such publication might be effectual; but in large towns and cities,

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where 100 or 150 banns were published in one church of a Sunday, the law was a mere dead letter. The present Bill consisted of two parts. By the first it was enacted, that if Scotland were not the birth-place or domicile of the parties, three weeks' residence in that country should be a condition precedent to the validity of the marriage. The second part of his Bill related to the subject of divorce. From the conflict of the laws of the two countries on this subject there resulted this grievance: that a divorce which was looked on by the law of Scotland as complete, and as dissolving the marriage wheresoever contracted, was invalid as to an English marriage by the law of England. In consequence of this conflict of the laws, a husband had been convicted of felony for having married a second time in England, after having obtained a Scotch divorce. If he had contracted the second marriage in Scotland, he could not have been punished at all. But even in the latter case the issue would not escape the risk of having their legitimacy contested. His opinion had always been, that the issue of a marriage so contracted by English parties in Scotland, after a Scotch divorce, ought to be legitimate in England, as they were undeniably legitimate in Scotland; but the consequence of the existing state of things was, that it constantly raised doubts as to rights on which no doubts should be allowed to exist. He therefore proposed to put an end to those doubts by giving validity, in certain circumstances, to the Scotch divorce of a marriage contracted in England, and by giving legitimacy to the issue of a re-marriage contracted after a Scotch divorce. One of the most important matters to consider was the length of the domicile which should be required to give validity to a Scotch divorce of an English marriage. He might mention that, in the case of Warrender v. Warrender, the House of Lords had held that the marriage was a Scotch marriage, although it had been contracted at Richmond, in England. He proposed to fix twelve months' domicile in Scotland as the period to entitle English parties to obtain a divorce in Scotland, and he proposed to give validity to the second marriage, and legitimacy to the issue of any such second marriage, and to declare that a person legitimate in Scotland, as in the case of legitimation per subsequens matrimonium, is legitimate everywhere. On this point he had dif-
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fered with the learned Judges here in Doe v. Vardell, but his opinion was confirmed by the authority of the greatest jurists in Germany, Holland, and America, and by Mr. Justice Story, the author of the greatest work which had ever been written at any time, or in any country, on the subject of the conflict of laws. He trusted that the House would agree with him in thinking that it was now fit time that a law should be passed to put an end to a state of things by which the same person might be legitimate in Scotland and a bastard in England; nay, more, by which the same person might be legitimate in England when he went to the Court of Chancery to obtain personal property, and a bastard when he went to the Court of Queen's Bench to claim real estate. What he thought the law ought to be was this: They ought to make it certain when a person was legitimate by the law of the country of his birth, that he should be held legitimate all the world over; and when he was illegitimate by the law of the country of his birth, that he should be held bastard all the world over. These were the heads of the measure, which had been twice already before their Lordships, and he hoped that they would now give it their support. But the pressing part of the measure was to prevent the daily evasion of Lord Hardwicke's Act on the Scotch border, so justly complained of by the Cumberland magistrates, without any change of the marriage law of Scotland. He understood that his noble Friend (the Earl of Aberdeen) was only opposed to any alteration in the law of Scotland on the subject of marriage. The noble and learned Lord concluded by moving, that the Bill be now read the first time.
THE EARL OF MINTOsaid, he perceived with regret that the remedy proposed by the noble and learned Lord would be confined to the grievances felt on one side of the border only, and would leave Scotland still exposed, as it was now, to the intolerable evils which were caused by the present state of the law. He was sure that a mere recital of the law of Scotland on the subject of marriage would be enough to convince their Lordships that some remedy must be provided. He desired only some means by which it should be ascertained, upon certain evidence, whether or not a contract of marriage did really exist, in any particular case, between the two parties.
Bill read la.

THE TREATY OF PEACE.
THE EARL OF CLARENDON: I rise, my Lords, to lay on the table of your Lordships' House a copy of the Treaty of Peace concluded at Paris, which has been signed by the Plenipotentiaries of England, France, Russia, Austria, Prussia, Sardinia, and Turkey. The ratifications of this treaty were exchanged yesterday, and have been received to-day. There are three separate conventions annexed to it, which will also be printed with it. There is also a declaration respecting maritime law, and the course to be pursued with reference to neutrals during time of war, which has been signed by the Plenipotentiaries on behalf of their respective Powers.
LORD BROUGHAM: To do away with privateering?
THE EARL OF CLARENDON: Yes, I have likewise to lay before your Lordships copies of all the protocols of the sittings and conferences, during the time of the session of the Congress at Paris; and I have now further to move, that this treaty be taken into consideration by your Lordships on this day week.

THE IRISH MAIL SERVICE.
VISCOUNT DUNGANNONsaid, he wished to put two questions to the noble Duke the Postmaster General; first, whether there was any prospect of steamers of greater size and power than those at present employed being established during the next summer between Holyhead and Kingstown? and secondly, whether it was the intention of Government to establish steam-packets between Portpatrick and Donaghadee? Under the present arrangements, letters which came from England by the night mail were seldom delivered in Dublin earlier than Twelve o'clock in the day. He also remarked that the use of larger and more powerful steam-boats would tend to prevent accidents. With regard to the subject of his other question, he urged it on account of the increasing traffic between Scotland and the north of Ireland.
THE DUKE OF ARGYLLsaid, that great attention had been given to the object of accelerating the communication between England and Ireland by the noble Viscount who preceded him in the office of Postmaster General (Viscount Canning), and although no definite arrangement had yet been come to for the acceleration of the Irish mails, yet the Post Office, the Trea-
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sury, and the Admiralty, which were the departments concerned in it, had agreed as to the conditions which it would be necessary to lay down for the better and more efficient postal service between this country and Ireland. He could not indeed state that the improved arrangements would be carried into effect this summer, but he had hopes that it would be done shortly. Several proposals had been made, which would be perhaps convenient to Dublin, but would not be so convenient to the more distant provinces of Ireland. He thought, however, that some deputations which had lately come to the Government on the subject had been satisfied with the representations that were made to them by Mr. Wilson, the Secretary to the Treasury. One of the conditions laid down by the Government was, that the passage between the London terminus and the Dublin terminus should not exceed eleven hours. As for the other question of the noble Lord, there was no measure in contemplation of the Government for establishing steam-boats between Portpatrick and Donaghadee.
THE EARL OF WICKLOWexpressed his satisfaction at the statement of the noble Duke, but urged him to bear in mind that if sufficient attention were not paid to the convenience of passengers, the arrangement would result in a very considerable loss to the Government. He wished to remind the noble Duke that when the late Sir Robert Peel was in office, a very large and influential meeting of Irishmen and Welshmen unanimously recommended that there should be only one postal communication between England and Ireland, provided it received the support of the Government, and that all the other communications should be given up. The Government did patronise and assist that one communication; and upon an understanding that the recommendation he had mentioned would be adhered to, the Holy-head railway was undertaken, and a new packet system adopted between the two countries.
THE EARL OF EGLINTONsaid, that two communications had, in fact, existed between the two countries ever since the establishment of the present railway system; and it was impossible to give up the communication between the northern ports of England and Ireland.
THE BISHOP OF CASHELalso deprecated any arrangement by which only one line of communication would be established,

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and urged the expediency of establishing a line of communication with Waterford and the South of Ireland.

AUSTRIAN OCCUPATION IN ITALY— MOTION WITHDRAWN.
THE EARL OF CLARENDON: My noble and learned Friend (Lord Lyndhurst) has given notice of a resolution with respect to the occupation of a portion of Italy by the Austrian troops, and I take the liberty of asking him to postpone his Motion for the present. I need hardly say that I do so on public grounds alone, but if he consents, I think he will be more likely to promote those interests which he as well as myself has at heart.
LORD LYNDHURST: After the appeal which my noble Friend has made to me, I will not proceed with the Motion upon which I have given notice at present. But I beg leave to add that I shall observe with considerable anxiety the course which is intended to be pursued to put an end to the intolerable grievances and misgovernment under which the people of Italy have been so long suffering.
House adjourned till to-morrow.