(No. 83.) COMMITTEE. (Hansard, 12 May 1865)

THE BISHOP OF OXFORD
proposed to insert in the Bill the following clause:— And whereas by Error Banns have been published and Marriages have been solemnized in Churches and Chapels duly consecrated, but in which Churches or Chapels Banns cannot be legally published nor Marriages by Law be solemnized; and it is expedient to remove all Doubt arising from the Circumstances aforesaid touching the Publication of such Banns and the Validity of such Marriages: Be it therefore enacted, That all Banns already published and all Marriages already solemnized in such Churches and Chapels as aforesaid shall not hereafter be questioned on account of the said Banns having been published or the said Marriages solemnized in a Church or Chapel not legally authorized for the Publication of Banns and Solemnization of Marriages, and the Minister or Ministers who solemnized the 189 same shall not be liable to any Ecclesiastical Censures or to any Proceedings or Penalties by reason thereof, provided he or they be rightly ordained; and the Registers of all Marriages so solemnized as aforesaid, or Copies of such Registers, shall be received in all Courts of Law and Equity as Evidence of such Marriages respectively: Provided always, that nothing herein contained shall extend or be construed to extend to authorize the Publication of Banns or Solemnization of Marriages in any of such Churches or Chapels hereafter unless they be duly licensed for such Solemnization.

THE LORD CHANCELLOR
asked the right rev. Prelate having charge of the Bill (the Bishop of Oxford), whether he thought it wise to insist upon the clause extending the retrospective operation of the measure, not merely to particular cases, but generally to all cases of the nature contemplated by the Bill, in which, as originally drawn, this particular clause was not included. Parliament had been careful, whenever it was called on to deal with cases relating to a matter so delicate as the solemnization of matrimony, to require that all the facts should be laid before it, and only to legislate in those particular instances where error or inadvertence was clearly shown. The Bill proceeded upon the general statement that banns had been in error published and marriages solemnized in churches and chapels duly consecrated, but in which banns could not be published nor marriages solemnized by law. Now, who was to decide whether this statement was accurate, or what was meant by the term "error?" There ought to be no vagueness or uncertainty in dealing with such matters as the legality of marriages and the legitimacy of children. The law of marriage was at that moment under the consideration of a Royal Commission, and it was probable that it would result in a general measure, by which the question could be much more satisfactorily dealt with. He feared that the too wide terms of this clause might be attended with mischievous effects, and he therefore suggested that it should be withdrawn.

THE BISHOP OF OXFORD
said, he was quite in their Lordships' hands. He had not drawn the clause himself, nor was he wholly responsible for its introduction into the Bill; but he could not acquiesce in the statement that in now proposing it he was for the first time introducing something opposed to the spirit of previous legislation. The exact opposite was the case, because the clause was taken, word for word, from a clause of the 24 Vict. c. 16; 190 and therefore so far from desiring to stretch into a general enactment a principle which Parliament had hitherto reserved for exceptional cases, he was merely asking the House to repeat in 1865 words which they had adopted in 1861. To clear himself from the charge of apparent carelessness and boldness in introducing a clause that would form an utterly unheard of precedent, it would only be necessary that he should read a passage from the letter forwarded to him by the Registrar General in the interval between the first and second reading of this Bill. Mr. Graham said— Will you kindly excuse me in taking the liberty of calling your Lordship's attention to Act 24 Vict. c. 16, for the purpose of suggesting for consideration whether in the Marriages (Lambourne) Bill, to be read a second time in the House of Lords on the 9th instant, it would be expedient to introduce a clause similar to the 4th clause in the Act I have above mentioned? Many of the clergy erroneously think that they are empowered to solemnize marriages in newly-consecrated churches, and when they apply to me for register books I invariably ascertain that marriages may legally be celebrated before I furnish them with registers. But it has come to my knowledge that there are instances where, the erroneous impression existing, and the register books of the mother church being used, marriages have been solemnized touching the validity of which doubts may be entertained. If in 1861 it was considered desirable by the Legislature to remove all such doubts as to such marriages up to that date, it appears to me equally unobjectionable that this similar opportunity should now he made use of to render valid all marriages celebrated under similar circumstances up to the present date. On receiving that letter from the Registrar General he took the liberty of consulting a leading Member of the Government, a noble Earl not at that moment in his place, and from him he understood that a clause giving effect to the views of the Registrar General would have the support of the Government. He repeated that on this matter he was entirely in the hands of the House; but he thought the evil to be cured was more wide-spread than the noble and learned Lord appeared to think. The fact was that clergymen in distant parts of the country did not know, or forgot, that after a church was consecrated it must be licensed by the Bishop for the solemnization of matrimony before that service could be legally performed. To refuse to follow the example set in the Bill of 1861 might be to expose persons who had acted with the best intentions to the terrible disaster of having their marriages questioned hereafter.

§ LORD CHELMSFORD
said, that if the clause were introduced it would be necessary to alter the title of the Bill, which, as it stood, referred only to Lambourne.

THE LORD CHANCELLOR
said, he could assure the right rev. Prelate that he by no means desired to obstruct the passing of the Bill; but then, inasmuch, as the whole subject was under consideration, he doubted whether it was expedient to enact a comprehensive clause, such as that under discussion, except as portion of a general measure. Any church or chapel which was consecrated would come within the scope of the clause; but as there were many churches which, although they had been consecrated, were disused, he thought it was undesirable that marriages should be celebrated in such places as proposed. The right rev. Prelate might, no doubt, to a certain extent, have copied the clause from the Act of 1861, but the precedent was not applicable to the present occasion, and the question was whether it would be well to introduce it into the present Bill.

THE BISHOP OF OXFORD
said, he did not exactly know what the noble and learned Lord meant to convey by the words "to a certain extent." He could accept no such qualification, because the clause was not in the slightest degree different from the precedent on which it was founded. However, he did not wish to press a clause as to the propriety of passing which there was any doubt.

THE LORD CHANCELLOR
said, it was most undesirable that anything personal should be introduced into the discussion. What the Committee really had to consider was whether a clause so wide in its scope should be allowed to form part of the present Bill.

§ LORD CHELMSFORD
agreed with the Lord Chancellor in thinking that it was not desirable that the clause should be introduced in this Bill. At the same time he thought it would be well that the Government should consider whether it ought not to be made part of a general measure, the only hesitation he had was lest innocent parties should suffer in the meanwhile.

§ EARL GREY
thought that as the Registrar General had stated that these irregularities had occurred, it would be hard if the remedy were postponed until the undefined period when a general marriage law should be introduced. On the other hand, perhaps the clause of 1861 went rather further that it should in one direc- 192 tion, and that was in relieving from consequences the clergy who, through their own negligence in not ascertaining the law, had gone into error.

§ THE EARL OF DERBY
must say that he thought that it was objectionable in principle that they should habitually sanction violation of the law by ex post facto legislation. The Act of 1861 having passed gave sufficient notice to all parties with regard to the state of the law in reference to these marriages, and if, after that, such marriages took place, he did not think that it was desirable that every four or five years they should repeat the Indemnity passed in 1861. Upon a choice of evils, he thought that the risk would be less in not passing the clause, than in continuing by Act of Parliament indemnities for violations of the law. He thought that the clause should not be pressed.

§ LORD REDESDALE
suggested that if the Registrar General was aware that there were other parishes in the same position, he should communicate the fact to those who had charge of the Bill, in order that as the Bill was passing through the Commons the Bill might be made applicable to those places also.