HL Deb 05 April 1869 vol 195 cc135-40

rose to call the attention of the House to the Report of the Marriage Law Commission, and to ask Her Majesty's Government whether they intended to introduce any measure founded on that Report? The Commis- sion was appointed in March 1865, on account of the great difficulties that had arisen from the difference of the Law of Marriage in the different parts of the United Kingdom. This difference occasioned great embarrassment in our courts of justice, frequent conflict of opinion, and rendered uncertain the status of individuals, from the uncertainty whether a valid marriage had been contracted on one side or the other of an artificial line. This difficulty had been illustrated in a most striking manner in a late celebrated case before both the Irish and the Scotch Courts—n the one case from the peculiarities of the Scotch Law of Marriage, and in the other from the statute law relating to mixed marriages in Ireland. The controversies arising out of that case rendered desirable an inquiry into the possibility of bringing the marriage laws throughout the three kingdoms into closer conformity, and the Commissioners were accordingly directed to inquire into and report on the state and operation of the various laws in force in the different parts of the United Kingdom with respect to the constitution and proof of the contract of marriage, and the registration and other means of preserving evidence thereof. He himself had the honour of presiding on that Commission over persons than whom none could have been better qualified to investigate the subject; for England was represented by the noble and learned Lord on the Woolsack (Lord Hatherley), the late Lord Chancellor (Lord Cairns), Lord Lyveden, Mr. Walpole, Sir James Wilde, Sir Roundell Palmer, and Sir Travers Twiss; Ireland, by the present Lord Chancellor, Mr. Monsell, and Lord Mayo; and Scotland, by the Lord Justice General, the present Solicitor General, and Mr. Dunlop. Their first step was to direct the preparation of a succinct summary of the marriage law in different parts of the country, and at the request of his fellow-Commissioners he issued a Circular asking for information and suggestions. A copy of this was sent to all the Archbishops and Bishops, Protestant and Roman Catholic, to the Moderators of the Established Church, Free Church, and United Presbyterians in Scotland, to various deans, archdeacons, and other clergymen, to Roman Catholic clergymen in Ireland, to ministers and members of Dissenting bodies, including the President and Vice President of the Wesleyan Conference, and to many registrars of marriages in England. This Circular elicited valuable information; and witnesses from all. parts of the country were also examined. The inquiry extended over three years, and this was not attributable to any want of diligence, the reason being that some of the Commissioners had judicial and other duties to discharge in Ireland and Scotland, which rendered it difficult to fix the meetings to suit their convenience. If, however, any of them were absent they informed themselves of the evidence which was taken, and the result was that the Report was signed by all the Commissioners except Lord Mayo, who, having been prevented by his duties as Irish Secretary from attending the later meetings, did not think himself justified in affixing his signature. The Lord Chancellor of Ireland and Mr. Monsell signed it, with the reservation that they dissented from the recommendations as to divorce, believing the marriage tie to be indissoluble, and divorce à vinculo to be contrary to the law of God; while the Lord Justice General took exception to every part of the Report involving a change in the principle of the Scotch law, holding that present consent to be husband and wife deliberately interchanged between a man and a woman labouring under no incapacity to contract, makes marriage between them, without the necessity either of a religious ceremony or of a compliance with any statutory forms or solemnities. The recommendations of the Commissioners he believed to be highly beneficial; but he would not now enter into them, since he was not asking their Lordships to adopt them. His only anxiety was that the expectations of the public should not be disappointed by no action being taken on the Report, and it being peculiarly a task for the Government he should be glad to see it undertaken by his noble and learned Friend on the Woolsack, for no man was better qualified to undertake a work of the kind.


said, that his noble and learned Friend (Lord Chelmsford) had most truly stated that the subject was one of deep importance, and he felt grateful to him for having originally suggested that there should be a Commission, the result of which was a Report which informed Parliament and the public generally of the anomalous state of the law with reference to marriage, and the necessity of some remedy. When his noble and learned Friend asked whether it was the intention of the Government to introduce any measure he assumed that he meant during the present Session. He must say briefly why it had been impossible for him to undertake a duty of that description. When he was first called upon to occupy the position he had now the honour to hold, he certainly had but a short time in which to prepare any measure of law reform of any general importance—though many subjects presented themselves to his attention, on throe of which he had sat upon Commissions. One was the matter that was now brought to their Lordships' attention, another the patent law, and the third our system of judicature. All of these subjects were of considerable importance, and as to the last of them the Report had only been made during the past week, and recommended an entire review and re-organization of our whole judicial procedure. The Patent Commission had reported long since, but no proceeding had been taken upon it, no doubt in consequence of the difficulty of the subject. Besides these three subjects there were two others of importance—those of Bankruptcy and the Law of Charitable Trusts. He undertook the duties of his Office in December last, a period of four months ago. For the first three months he was occupied in the Court of Chancery, and sitting judicially in their Lordships' House, and he thought it would have been an improper assumption of vigour on his part if he had attempted to grapple with the five subjects during the single month that was left to him. He therefore selected one of them, and bankruptcy naturally suggested itself to his mind because the subject had been frequently before Parliament, the defects in the existing law were universally admitted, and the whole mercantile community was anxious to have the law of debtor and creditor put upon a satisfactory footing. He had further | the advantage of considering the three different Bills that had been brought before Parliament upon the subject—all prepared with the greatest care and deliberation—and the various Reports that had been made. He also had interviews with various deputations from mercantile bodies, and in this way he had been able to frame a measure which originally he intended to submit to their Lordships for consideration; but some of the deputations were extremely anxious that the measure should be introduced first into the other House. He thought there would be a general concurrence of opinion that such a measure should be introduced into the other House rather than in their Lordships' House. For his own part he readily acceded to that view, and the measure had accordingly been introduced "elsewhere," and would, he hoped, in due time, be presented for their Lordships' approbation. The Law of Marriage was a subject of the deepest interest to the whole community. After three years' consideration a Report had been agreed upon by the members of the Commission with one exception, but that exception was the Lord Justice General of Scotland. The subject, however, was one which affected every family in the kingdom, and sufficient time had certainly not been given to the public to weigh the consequences which might result from the alterations recommended by the Commissioners; and though to proceed with immediate legislation upon it might present the appearance of vigour and alacrity, still their might possibly succeed a charge of hastiness and inconsideration. With regard to charitable trusts, he hoped, at a later period of the Session, to call attention to the subject, for none required more careful consideration; but he should be sorry to propose legislation upon it at a time when there was no probability of its securing sufficient attention. A measure which equalled, if it did not exceed, in importance any measure which had been submitted to Parliament for many years past was now pending in the other House; and considering the time which its consideration must necessarily occupy, it would be unadvisable to introduce any measure involving changes in the law on subjects of great importance and difficulty. There was, moreover, considerable doubt whether, in one portion of the country at least, the recommendations of the Marriage Law Commissioners would meet with general acquiescence, and, judging from the publications expressly interested in legal objects, he doubted whether the Report had been so maturely weighed by the public as to warrant the expectation of such a general concurrence of opinion as would be necessary for legislation affecting the domestic relations of the community. He trusted that, under these circumstances, their Lordships would be of opnion that he had come to a wise conclusion.