Lords Sitting of 23 April 1861

MINUTES.
PUBLIC BILL.—2a Marriage Law Amendment.
IONIAN ISLANDS.

  ADDRESS FOR PAPERS.
  THE MARQUESS OF NORMANBYwished to ask his noble Friend, the Colonial Secretary, Whether the papers he had formerly referred to on the Ionian Islands were forthcoming? and to make himself quite regular he would now move for them. He desired to take that opportunity of correcting a complete misunderstanding which prevailed in the Ionian Islands as to what took place when the subject was last discussed in this House. Since he spoke on that occasion he had received the copy of a letter addressed by Signor Dandolo to Earl Grey, in which the Signor gave a great deal of credit to himself (the Marquess of Normanby) and Earl Grey for advocating the cause of the Ionians in that House. Now, it would be in the recollection of their Lordships that he had done no such thing; that, on the contrary, addressing his noble Friend (the Duke of Newcastle) he expressed his hope that Her
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  Majesty's Government would resist every attempt to deprive the Crown of the Protectorate of the Ionian Islands. The noble Marquess concluded by moving an address for "Copy of Papers and Correspondence in reference to or in connection with the Prorogation of the Legislative Assembly of the Ionian Islands on the 12th day of March, 1861."
  THE DUKE OF NEWCASTLEsaid, that he had promised to produce these papers; but, finding that a Member of the other House had moved for them, he had requested his noble Friend (the Marquess of Normanby) to move for them in the usual way, as it seemed somewhat irregular that they should be produced on Motion in the one House and presented by command in the other. He should be sorry that any misapprehension should exist in the Ionian Islands as to the intentions of Her Majesty's Government, and would, therefore, take that opportunity of repeating that there existed no intention whatever on the part of this country of withdrawing from the responsibilities which were imposed upon us by the treaties of Vienna.

MARRIAGE LAW AMENDMENT BILL.

  SECOND READING.
  THE LORD CHANCELLOR, in moving the Second Reading of the Marriage Law Amendment Bill, said, that formerly the law of marriage both in England and Ireland was the same, and marriage celebrated by a priest at any place or any time was valid; and it was also in the opinion of many that a contract between a man and woman, per verba de presenti, was a valid contract, and conferred all the civil rights of marriage. As their Lordships were aware, by Lord Hardwicke's Act, a material change was introduced into the law of England; but in Ireland the old law remained as before with a few occasional alterations. At the beginning of the reign of George I., when the spirit of persecution against the Roman Catholics had not altogether ceased, an opinion prevailed that it was highly detrimental to the Protestant cause to admit mixed marriages. That was then the opinion of the Protestants, just as now in several Roman Catholic countries the opinion prevails that these mixed marriages ought to be checked as much as possible. Accordingly, at an early period of the reign of George II., an Act was passed which forbade Roman Catholic priests to celebrate a mar-

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  riage between a Roman Catholic and a Protestant, making it a capital felony, but leaving the marriage itself valid—according to the principle "fieri non debet, factum valet." Bad as this was, it was more reasonable than the course which was afterwards adopted, and which was especially cruel to the innocent parties, the progeny of the marriage, In the nineteenth year of George II., an Act was passed rendering all marriages celebrated by a Roman Catholic priest between a Protestant and a Roman Catholic absolutely null; and, moreover, the marriage was declared to be null, if at any time within twelve months before the celebration of the marriage either of the parties had been, or professed to be, a Protestant. Things continued in this state till the year 1849, when there arose the celebrated case of "The Queen v. Millis," which led to a material change in the law. Millis was a Presbyterian, and married a Presbyterian woman, and the marriage was celebrated by a Presbyterian minister. He became tired of the connection, left his wife, and married again; and being indicted for bigamy, he pleaded that the first marriage was null and void, because it was celebrated by a Presbyterian minister. The fact of both marriages was proved, and it was left to the consideration of the courts of law whether the first marriage was valid or void. A majority of the Irish Judges were of opinion that the marriage was void. The case was brought by appeal before their Lordships' House, where the opinions of their Lordships being divided, according to the Standing Orders of their Lordships, semper presumitur pro negante, the judgment of the Court below was not reversed, and the marriage was held to be a nullity. This state of things caused great excitement among the Presbyterians in Ireland, who found that by it they and their children were placed under a legal stigma. The Legislature came to their aid, and his noble Friend Lord Lyndhurst, with that promptitude which he had ever shown in the discharge of his duty, introduced a Bill to render valid all Presbyterian marriages which had theretofore taken place, and he introduced into Ireland, as far as he could, the English Marriage Act which was passed in 1835. According to that Act the members of different religious persuasions could be married according to their own rites and ceremonies. But the Roman Catholics of Ireland were not included in that Act. In England the Roman Catholics wisely submitted to
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  the same regulations, which were intended to prevent irregular and clandestine marriages, which were imposed upon other religious denominations: but in Ireland matters were left with regard to the Roman Catholics in the same state as before. In consequence the Act of 19 Geo. II., which rendered invalid marriages between Protestants and Roman Catholics, remained in full force to the present time, and the question was whether such a state of the law ought to be continued? It was contrary to the principles of religious liberty, and put a force on the consciences of Roman Catholics. Why were these marriages to be restrained? Was it not most monstrous that a couple married in Ireland, one a Protestant, the other a Catholic, could not call in a Roman Catholic priest to bless their union? Yet, if that was done, not only was the marriage by law a nullity, but the priest was liable to be transported for the act. Surely the time was come when that blot should be removed from our statute book. The effect of this law was most monstrous. It gave an opportunity to the seducer to inveigle a virtuous young woman into a snare, and enabled him, when his passions were satiated, to get rid of her. This had occurred again and again; but what occurred more frequently was that a man who had entered into such a union with an intention that it should be valid, but in the course of a long matrimonial life quarrelled with his wife, was enabled by law to renounce the marriage, and represent his wife to the world in the character of his concubine. This state of the law had consequently been productive of great cruelty and mischief. Various efforts had been made to procure an alteration of the law. He himself when in the House of Commons bad supported two Bills sent down by their Lordships for that purpose; but these Bills did not pass, and the reason was that at that time there existed no sufficient security against clandestine marriages; Lord Lyndhurst's Act had not passed, and there was nothing in Ireland to prevent a marriage being solemnized in any place and at any hour. Lord Lyndhurst's Act had remedied this. It required notice to be given, and a certificate of registration was necessary. This Bill did not ask their Lordships to do what former Bills forbade; it did not allow a marriage between a Protestant and a Roman Catholic, celebrated by a Roman Catholic priest to be valid at all events; but it

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  only recognized such marriages where the preliminaries required by the Bill had been observed. Notice was to be given to the registrar and a certificate issued, as required by Lord Lyndhurst's Act, which certificate was to be delivered to the priest at the time of the solemnization of the marriage; the marriage was to be solemnized in a building set apart for Roman Catholic worship, and within the district of the registrar by whom the certificate was issued; it was required to be celebrated between the hours of eight in the morning and two in the afternoon, in the presence of two or more creditable witnesses. He hoped their Lordships would give their sanction to this Bill, and he now moved that it be read a second time.
  LORD MONTEAGLEsaid, he heartily concurred in the second reading of the Bill, and congratulated the House that they were now approaching a time when the last fragment of the penal code against Roman Catholics would be swept away. He believed there existed in Ireland some misapprehension as to the nature of the Bill. It had been represented that the Bill interfered with the religious part of the question; but it did no such thing. The restraint that was provided by the Bill had no bearing whatever, directly or indirectly, on the religious question. It was as expedient for the Roman Catholic as it was for the Protestant that clandestine marriages should be prevented, and the check provided by the Bill amounted simply to the provision that a fortnight's notice should be given before the marriage ceremony was performed.
  THE EARL OF DERBYwished to call the attention of the noble and learned Lord to the circumstance, that whereas in the first clause there was, among others, a condition that the marriage must be celebrated between eight in the morning and two in the afternoon; in the second clause, which made void marriages performed in wilful violation of the Act, no mention was made of the hours within which the marriage had been celebrated.
  THE LORD CHANCELLORsaid, the condition was omitted, lest twenty years after the marriage had been celebrated the validity of it should be called in question, merely because the hammer of the clock struck two before the conclusion of the ceremony.
  After a few words from Lord CHELMSFORD as to the wording of the first and second clauses,
  THE EARL OF ST. GERMANSsaid, that the Act which this Bill was intended to amend deprived Roman Catholic priests in Ireland of the benefit of the provisions of what was commonly called O'Loughlin's Act. The latter repealed the penal laws against priests who should perform marrying between a Protestant and a Roman Catholic; but the Roman Catholics objected to some of the provisions of the Bill, and a few words were inserted which, unfortunately, had the effect of reviving the 19th Geo. II., by which the penalties were provided. He could assure their Lordships that this was not the intention of the Government of the day, and he did not believe it was the intention of Parliament. Practically the penal enactments were not put in force; but every Roman Catholic priest in Ireland who celebrated a mixed marriage was subject to them, and that was a state of things which ought not to be allowed to continue.
  THE MARQUESS OF CLANRICARDEsaid, that if there was one thing more monstrous than another it was to make the validity of a marriage depend upon proof of the religion of the persons married. When, on one occasion, he brought this subject before their Lordships he mentioned, by way of illustration, several cases of hardship which had arisen from that law. Among them was that of a young man who was entitled to considerable property, and who could obtain possession of it only by proving that his mother, who had been married in the north of Ireland twenty-one years previously, was a Roman Catholic. He would have been unable to prove this fact but for the accidental discovery of an old man who was able to testify to the fact. He heartily thanked his noble and learned Friend on the woolsack for the present Bill, which would, he trusted, meet with the ready approval of their Lordships.
  Motion agreed to; Bill read 2a.

  THE HULKS AT BERMUDA.—QUESTION.
  THE EARL OF CARNARVONrose to inquire of the Secretary of State for the Colonies, Whether any Measures have been taken to investigate the Truth of the Charges made by the Chaplain of the Bermuda Hulks against the Discipline and present Management of the Convicts confined there? The noble Earl said it was not necessary for him to go into details on the subject, which was one which he brought under the notice of their Lordships towards the close of the last Session. It

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  was quite enough to say that the picture which the chaplain drew of the present management of that convict establishment represented as disgraceful a state of things as it was well possible to imagine. When he called their Lordships' attention to this matter on the former occasion the noble Duke the Secretary for the Colonies was absent from this country; but the President of the Council promised that it should receive the attention of Her Majesty's Government, and undertook that there should be a full and complete inquiry on the spot as soon as possible. After that promise, he must say, he was very much surprised at the despatch of the Governor. He was astonished at the easy and cursory manner in which the Governor spoke of this very distressing case, and at the little evidence on which, so far as the blue book was concerned, he seemed to have satisfied himself that the assertions of the chaplain were not borne out. He regretted, too, that the despatch from the Colonial Office implied an approval of all the Governor had said and done on the subject. And what had he done? He said that he had paid a visit to those hulks on three several occasions. But in the first place it would appear from his despatch that his endeavour was not to ascertain whether the statements of the chaplain were true; but to ascertain whether they were not false and erroneous. Again, there was a singular fact connected with the visits which the Governor paid on three several occasions, and during which he said he found the hulks in a perfect state of order. The noble Earl the President of the Council undertook that there should be a local inquiry after the discussion in that House; but these three visits were all antecedent to that discussion. In the next place the Governor said that there had been no intimation which could have reached the hulks of his intention to visit them. He could perfectly understand that so far as the Governor himself was concerned there had been no such intimation; but, without meaning to cast any imputation on the Controller and Deputy-Controller of the Hulks, he could not but think that the Governor had not acted prudently in selecting those officers to accompany him, they being the persons who were primarily responsible for any mismanagement there might have been. The chaplain in firm but temperate language re-affirmed the statement which he made last year; and he himself had received, in common, no doubt, with the Colonial Secre-
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  tary, a large number of communications from unfortunate men who had been at various times inmates of the hulks at Bermuda, on reading which, and after making allowance for the misrepresentation and exaggeration which might naturally be looked for in them, it was impossible not to feel that there was a great substratum of truth in the statements of the chaplain. From official sources it appeared that the proportion of offences and punishments to the number of prisoners was greater than it ought to be, that there was a continual shifting and changing of the warders, whilst the mere practice of associating persons on board of the hulks without any classification of age or offences was enough to create a probability that abuses would ensue. With the experience of the den of infamy at Norfolk Island, the horrors of which had led to the suppression of the system of transportation there, there was a risk of Parliament wilfully closing their eyes to abuses of a similar character when they were pointed out. A step in the right direction had been taken when one of these hulks was broken up and the convicts sent into prison at Bermuda; but no permanent improvement could be looked for as long as the system of association continued; for there was the same want of classification in the prisons as in the hulks. It must always be remembered that such establishments in Bermuda, owing to the distance which separated them from this country, peculiarly required the vigilance of the Secretary of Slate for the Colonies to keep up to the mark the efforts of public servants, upon whom, in similar establishments at homo, public opinion would exercise a beneficial influence.
  THE DUKE OF NEWCASTLEsaid, he agreed that no duty could be more incumbent upon the Secretary of State for the Colonies than to watch over the conduct of the convict establishments in various parts of our Colonial Empire. With regard to the first branch of his noble Friend's statement, having reference to the complaints made last year by the Chaplain of Bermuda, he must say, that having read over all the documents, his impression was somewhat different from that arrived at by his noble Friend. The statements of the chaplain appeared to him, to say the least, considerably exaggerated. He did not impute blame to that gentleman, who at the time he made these statements doubtless believed them to be correct; but, both as

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  regarded tendencies of prisoners to reformation and also with regard to abuses, chaplains were liable to be greatly imposed upon. But he by no means intended to affirm, as the noble Lord from the second part of his statement seemed to apprehend, that the condition of the convict establishment at Bermuda was as satisfactory as could be wished. He had hoped on his return from America with the Prince of Wales last autumn to be able to visit Bermuda, and to acquaint himself with the general condition of these buildings and hulks; but that was found to be impossible, and as soon as he came home he was called on to consider whether it would be desirable to send out a Commissioner to ascertain the truth of the complaints, or what other course would be most advisable. Having come to the conclusion that the same objections which were made to the visit of the Governor would apply more strongly to the visit of a Royal Commissioner, and, seeing that the period of office of the late Governor had expired, he thought the best course would be to send out as his successor a gentleman who had already filled the office of Governor elsewhere, and from his long employment in the service of Government as an officer of engineers and in civil capacities would be eminently fitted to investigate the subject. Colonel Ord before his departure was required to acquaint himself minutely with the arrangements of the various convict establisments in this country in order that such steps as could be adopted for introducing improvements into the discipline in the prisons, and especially on board the hulks might be carried out on his arrival. But he was bound to say that he believed many of the evils which were known to exist were inherent in the system of convict establishments abroad, which for various reasons it was impossible to maintain in as good condition as those in this country. In the first place discipline and classification could never be kept up on board these hulks as perfectly as in well regulated prisons on shore, while the extent of prison accommodation at Bermuda, to a certain extent, necessitated the occupation of hulks. Climate, moreover, interfered with the strictness of discipline. Everything depended on the efficiency of those who had the superintendence of the prisoners, and there was a great disinclination on the part of properly qualified persons to undertake the management of a convict establishment, under such circum-
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  stances as that at Bermuda, and therefore, persons of inferior capabilities to those holding similar situations at home had to be employed. He was sure the experience of previous Colonial Secretaries would bear him out in the assertion that it was impossible to find gentlemen of the same stamp as Colonel Jebb and others subordinate to him in this country willing to go out and take charge of convict establishments in the colonies. The true remedy, therefore, lay either in the reduction or abolition of the establishment at Bermuda. He had no hesitation in saying that it was possible to diminish the establishment, and in fact a diminution was already being effected, and he hoped shortly to be able to dispense with it altogether. By the alterations which had taken place in our criminal law a material alteration had been made in the amount of transportation; and at the present moment none of our convict establishments abroad were full, their maintenance, therefore, being attended not only with expense, but with evils such as those to which attention had been called. If it became a question which of these convict establishments should be abolished, for reasons which must be obvious to the House, it would be more desirable to abandon that at Bermuda than at Gibraltar. It would not be respectful to the Committee which was at present investigating the subject, to prejudge the question; but it was his individual opinion that if one of those depots were to be relinquished, Bermuda was the one which ought to be given up. He had been in communication with the War Office and the Admiralty with reference to the works which were being executed at Bermuda. He learnt that those works were very considerably advanced, and that it would be possible to complete them within a very short time. In the meantime every effort would be made to correct the abuses which existed, and to prevent the recurrence of the frightful scenes which were represented by the chaplain to have taken place.
  THE MARQUESS OF SALISBURYbriefly contrasted the state of the convict establishment in Gibraltar and Bermuda, and the amount of work done at each, and contended that the former was in a better position in every respect than the latter, and that this was attributable to the maladministration of affairs at Bermuda.
  House adjourned at Half past Six o'clock, to Thursday next, half-past Ten o'clock.