HL Deb 23 April 1861 vol 162 cc972-6

, 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- 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 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 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.


said, 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.


wished 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.


said, 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,


said, 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.


said, 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.