HL Deb 28 April 1856 vol 141 cc1587-90

, 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 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, 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- 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.


said, 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.

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