HL Deb 12 June 1857 vol 145 cc1657-65

Amendments reported (according to order).


said, that he had given notice of certain Amendments, the object of which was to enable those of Her Majesty's subjects who, from religious convictions, did not think themselves justified in asking for a divorce to obtain a judicial separation in cases of adultery, and to authorize the Court in such cases to punish the guilty parties. As the Bill now stood, the Court had not the power, unless a divorce was prayed for. He should not, however, press the Amendments on that occasion.


said, the discussion which had taken place had suggested various Amendments which he now asked the House to agree to. The first was, that the term "judicial separation" should be substituted for a divorce à mensâ et thoro, and that the same power be given to a sentence of judicial separation as now belonged to a divorce à mensâ et thoro. In reference to the 17th clause, he proposed to insert a clause, giving to a husband or wife against whom a decree of judicial separation had been pronounced on the ground of desertion, the power of applying to the Court for a reversal of the sentence, if it could be proved that the absence has been involuntary or unavoidable. Another Amendment which he proposed was that in cases, which might happen, where persons who had been judicially separated, chose to come together again, in order that it might be known that the woman had ceased to be a femme sole, the parties should enter a notice to that effect in some book to be kept by the Court. He also proposed to add a clause exempting Jewish marriages from the operation of the Act.

The several verbal Amendments were agreed to.

On the Motion of the noble and learned Lord the three following clauses were inserted in the Bill.

To follow Clause XVII.

Clause (A.) "Any Husband or Wife, upon the Application of whose Wife or Husband, as the Case may be, a Decree of Judicial Separation has been pronounced, may, at any Time thereafter, present a Petition to the Court praying for a Reversal of such Decree on the Ground that it was obtained in his or her Absence, and that there was reasonable Ground for the alleged Desertion; and the Court may, on being satisfied of the Truth of the Allegations of such Petition, reverse the Decree accordingly; but the Reversal thereof shall not prejudice or affect the Rights or Remedies which any other Person would have had in case such Reversal had not been decreed, in respect of any Debts, Contracts, or Acts of the Wife incurred, entered into, or done between the Times of the Sentence of Separation and of the Reversal thereof.

To follow Clause XX.

Clause (B.) "Where after a Divorce à Mensâ et Thoro or a Judicial Separation the Husband and Wife again cohabit, they may cause to be lodged with the Registrar of the Court a Declaration that their Separation has ceased, and the Registrar shall cause all such Declarations to be forthwith entered in a Book to be kept by him for that Purpose, and which all Persons shall be at liberty to search on Payment of a Fee of One Shilling; and until such Declaration has been so lodged with the Registrar, every Creditor or other Person shall in respect of the Debts, Contracts, and Acts of the Wife have the same Rights and Remedies as against the Wife and her Property as if such Separation had continued.

To follow Clause LVIII.

Nothing herein contained shall give the Court hereby established Jurisdiction in relation to any Marriage of Persons both professing the Jewish Religion contracted or solemnized according to their own Usages.

On Clause 54,


proposed an Amendment, the effect of which was to confine the marriages of divorced persons to civil contracts entered into before the registrar, thereby relieving clergymen from performing the ceremony, to which they might have conscientious objections. The noble Earl said that the divorce à vinculo was forbidden by the common law, which was based on the canon law, and that on the Scriptures. The advocates of the measure had shrunk from the Scriptural argument. Now, as this was an Act to repeal the ecclesiastical by the power of the civil law, the advocates of the measure had no right to avail themselves of the ecclesiastical power to carry out their objects. Those who in this House took the same view with himself were but twenty-six, but they represented hundreds out of doors who felt this law to be opposed to the Scriptures. How could a clergyman, when he put the question to persons presenting themselves to be married, whether they knew of any impediment to their marriage, how could he accept their reply that they did not? How could he conscientiously perform the ceremony under such circumstances? And if a clergyman, from conscientious motives, gave up his office rather than perform the ceremony, he was disqualified by the very fact of his holding holy orders from any civil office. They were thus forced either to violate their consciences or lose their means of living. There was an understood contract with the clergy, who were not represented in Parliament, not even in this House by the Bench of Bishops, for they had no voice in electing them. They ought to be consulted in this matter. The change ought to apply only to civil marriages. Moved—"To insert after the Words ('to marry again') the following Words ('in the Office of the Registrar, or in any Building registered under the Marriage and Registration Acts.')


trusted their Lordships would not accede to this Amendment. In order to get rid of a supposed difficulty on the part of the clergy, they were asked to deprive persons of a religious ceremony which, in their eyes, might render their marriage more sacred. The law having said that certain parties were no longer married, and that it was lawful for them to marry, he could not see why any clergyman should refuse to give credit to the law and be justified in declining to perform the marriage service. The clergy would, no doubt, act in regard to any civil rights in the same way as any other of Her Majesty's subjects, and the law having said that these persons being no longer husband or wife, he did not think a clergyman would refuse to marry them.


said, the Amendment rested upon two distinct grounds, upon one of which he should be ready to assent to it, and upon the other to reject it. The scruples of the clergy were represented as resting partly on the law of the Church, and partly on the law of God. If it were simply a question of the law of the Church, he should feel great difficulty in saying that there ought, or could be any law repugnant to the law of the land, or that any law of the Church could be pleaded for refusing obedience to the law of the State. But, with regard to the law of God, it was impossible for any Act of Parliament to overrule, or change, or affect in the slightest degree any conscientious scruples on that ground. Without feeling those scruples, he sympathized with those who did, and as the measure would probably multiply cases in which divorce would be pronounced, he would assent to the Amendment.


trusted their Lordships would remember that they were discussing in a very thin and empty House a question which, in a very full House, had been decided by a large majority. This was the Amendment of the right rev. Prelate (the Bishop of Oxford) in an aggravated form, because, whereas the right rev. Prelate proposed only to give individual clergymen room to exercise their own scruples, this Amendment absolutely prohibited any clergyman of the Church of England, whether he had scruples or not, from celebrating marriages between persons, one of whom had been divorced. In another point of view he thought the right rev. Prelates should oppose it. What a step it would be towards the separation of Church and State if, by an Act of Parliament providing that parties under certain conditions might marry again, they enacted that they might be married by registrars or ministers of dissenting congregations, but not by clergymen of the Church of England? He contended that the legal effect of this Amendment would be that the marriage could not be celebrated in any church of the Church of England or by any clergyman of the Church of England.


said, he must call the attention of the House to a clause inserted at his own instance into an Act of last Session, by which clergymen were empowered to superadd the religious ceremony to any marriage which had been previously solemnized at the registrar's office in cases where the parties wished to avail themselves of the religious rite. He contended that the argument of the noble Duke fell to the ground, because the Amendment, together with the provision in the Act of last Session, would enable persons who wished to be married before the registrar, and yet to superadd the religious ceremony, to apply to a clergyman for that purpose, only taking care to obtain the services of one whose conscience would not be violated by the performance of the ceremony. The Amendment would therefore relieve clergymen who had a scruple in reference to such marriages, and at the same time enable parties to add the religious ceremony to a marriage solemnized before the registrar, if they wished to do so. He trusted, therefore, the House would grant this redress, for it was precisely in the track of the law that was passed last year, and so prevent the great evil of a collision between Church and State.


supported the Amendment, contending that what was asked by it was strictly in accordance with the course of legislation in existing Acts of Parliament, and citing the case of the Quakers, whose conscientious scruples had been respected by the legislative permission accorded to them to substitute an affirmation for an oath. He added, that if he himself were a clergyman he should refuse to marry persons who had been divorced, believing as he did in the indissolubility of the marriage tie.


said, it had been admitted with perfect fairness that the effect of the Amendment would be to reverse a decision which had been arrived at in a very full House, and he did not believe that if the House were now equally full, there would be any disposition to adopt such a course. He could hold out no expectation on the part of the Government that, as at present advised, they would be inclined to acquiesce in the Amendment. He did not think the reference of the noble Lord to the case of Quakers was at all in point, for Quakers were persons who were not in a position which required them to discharge public duties. If, as a right rev. Prelate had said, these marriages were forbidden by the law of God, why should a registrar be compelled to solemnize a marriage which he might consider contrary to the Divine law, while a clergyman was relieved from such an obligation.


explained that his argument was, that a clergyman might have scruples, believing marriage under these circumstances to be contrary to the law of God. But he could not understand what kind of conscience that must be in a civil registrar, that could object to register a civil contract.


said, although he did not think that the dissolution of marriage was in every case forbidden by the law of God, he believed that remarriage was contrary to that law. He would, therefore, support the Amendment.


said, he was convinced in his own mind that the marriages against which the Amendment was directed were contrary to the Divine law, and if he were called upon to solemnize such a marriage he could not hesitate as to which law he should follow—the law of his God or the law of the State. He, therefore, besought their Lordships, by adopting the Amendment of the noble Earl, to give clergymen a means of escape from the difficulty in which they might otherwise be placed.


said, that when this question was previously before the House he had not supported the Amendment of the right rev. Prelate, who wished, as it appeared to him, to claim for individual clergymen the right to refuse to perform certain marriages which they thought contrary to the law of God. In his opinion it would be most objectionable thus to lay down the principle that the ecclesiastical law was to supersede the law of the land, and that individual clergymen might determine which law they would obey. As he understood, a practical and legal marriage could be contracted before a registrar, and therefore the inconvenience which might have arisen under the right rev. Prelate's Amendment would be in a great measure obviated. The statements made to-night as to the existence of scruples of conscience on the part of clergymen were much stronger than those made on the previous occasion, and he thought that, even as a matter of policy, such scruples ought to be treated with every possible indulgence. He trusted that Her Majesty's Government would adopt this Amendment; but, feeling the inexpediency of reversing in a comparatively small House, and when the question was not expected to be raised, a decision previously come to, he should recommend the noble Earl who had moved the Amendment not to press it to a division at present, but to bring it forward again on the third reading of the Bill.


said, that in his own diocese there was a considerable number of clergymen who regarded this as a scriptural question. If the Bill passed without the insertion of some protection for the consciences of such clergymen, what the noble Duke (the Duke of Argyll) had said would be true in a different sense from that in which he meant it, and this would be a most important step towards the separation of Church and State.


said, that if their Lordships considered only the scruples of clergymen they might place in a very difficult position many members of the Church of England who objected to be married before a registrar. The effect of the principle involved in this Amendment would be to relieve the clergyman from the performance of any duties imposed upon him by law which he chose to say violated his conscientious scruples. He, for one, should most strongly object to the introduction of such a principle. On that ground, therefore, and because it was most unusual in a comparatively small House, consisting chiefly of friends of the Motion, to attempt to reverse a previously arrived-at decision, he hoped their Lordships would not agree to this Amendment. If they did, the question would be again brought forward, and there would be a third discussion.


objected to the statement of the House being taken by surprise. Due notice had been given by his noble Friend of the Amendment to which the noble Lord objected.


repelled the charge of surprise, not having written to his most intimate friends respecting the clause. He regretted that he could not adopt the suggestion of the noble Earl (Earl Grey) opposite, which was a good one, if accompanied by any promse from the Government to reconsider their decision. As that promise had not been given he should feel bound to divide the House.


said, that his impression of the clause was, that it would not enable the person to be married before a clergyman. Under the new Marriage Act it was quite clear that no marriage could take place except in the office of the registrar, or in some registered building. He trusted the House, whether taken by surprise or not, would not introduce so important an alteration as that suggested without its being materially considered. The language ought to be such as to place it beyond all possible doubt.


would be happy to insert the words "In accordance with the Marriage and Registration Act," if the noble and learned Lord (the Lord Chancellor) would promise to support the Amendment.


believed that the Amendment would empower a clergyman to shut the church door in the face of any one that he believed to be a guilty person. He should therefore oppose it.

On Question, Whether the said words shall be there inserted?

Their Lordships divided:—Contents 17; Not-Contents 20: Majority 3.

Carnarvon, E. Llandaff, Bp.
Grey, E. Oxford, Bp.
Mayo, E. Salisbury, Bp.
Nelson, E. [Teller.] St. Asaph, Bp.
Powis, E. St. David's, Bp.
Dungannon, V. Colville of Culross, L.
Melville, V. Congleton, L.
Dunsandle and Clanconal, L.
Gloucester and Bristol, Bp.
Redesdale, L. [Teller.]
Cranworth, L. (L. Chancellor.) Denman, L.
Foley, L. [Teller.]
Townshend, M. Meldrum, L. (M. Huntly.)
Ponsonby, L. (E. Bessborough.) [Teller.)
Airlie, E.
Granville, E. Rivers, L.
Harrowby, E. Stanley of Alderley, L.
Minto, E. Sundridge, L. (D. Argyll.
Portsmouth, E.
Yarborough, E. Talbot de Malahide, L.
Manchester, Bp. Truro, L.
Ripon, Bp. Wrottesley, L.

gave notice that on the third Reading of the Bill he should move the omission from the third clause of the words "and divorce;" and in the event of the House agreeing to omit those words, to move such further Amendments as may be required to deprive the Court of the power of pronouncing decrees for the dissolution of marriages.


gave notice that, in the event of this Amendment not being carried, he should move that the Bill be read a third time that day six months. The Bill contained several Amendments of the law which he should be glad to see carried into effect, but he could not consent to purchase them at the cost of the very serious injury to the morals of the people which the introduction of this law of divorce would bring about.


also gave notice that he should again move the Amendment which had just been negatived, or one to a similar effect.

Bill to be read 3a on Monday next.

House adjourned at half-past Nine o'clock till To-morrow, half-past One o'clock