§ LORD CHELMSFORDcalled attention to the Report of the Marriage Law Commission presented to the House in the year 1868, and asked, Whether the Government have any intention of taking steps to carry out the recommendations of the Commissioners for the Amendment of the law? His reason for doing so at the present time was that since 1868 the subject appeared to have been utterly forgotten. Their Lordships doubtless recollected the remarkable case of a lady who claimed to be the wife of a major either by a marriage in Scotland or a marriage in Ireland. The question was tried in the Courts in Scotland and in Ireland, and ultimately came before their Lordships, who decided that neither the Scotch nor Irish marriage was good. The case excited much attention, and much discussion arose upon it; and the result gave rise to a desire that the state of the marriage law should be inquired into, and a Question was asked in the House of Commons upon the subject by an hon. Member, who expressed the opinion that Scotland, as far as its marriage laws were concerned, was not a civilized country. Lord Palmerston replied that the question was a large one, and declined to promise off-hand that the Government would take the matter into consideration; but on the Question being repeated in the following Session, Sir George Grey said that the Government had advised Her Majesty to issue a Royal Commission. Accordingly in 1865, a Commission was appointed to inquire into and report upon the various laws now in force in the United Kingdom with respect to marriage. He (Lord Chelmsford) was himself appointed head of the Commission, and of the body of 236 the Commission he could say that a better selection of men could not have been made. It included the present Lord Chancellor, Lord Cairns, the late Lord Mayo, Lord Penzance, the present Lord Chancellor of Ireland, Mr. Monsell, the present Lord Justice General, the present Lord Advocate, Mr. Dunlop, Mr. Walpole, Sir Roundell Palmer, and the Queen's Advocate. The Commission began their labours by examining persons of experience from different parts of the kingdom who were acquainted with the marriage law, and he must express his regret that the concise statements which were made were not printed in the Appendix with the Report; and at the request of the Commissioners he issued a Circular, which was sent to every authority in the kingdom, including the heads of the Nonconformist Body and the Chief Rabbi of the Jews, asking for information, which was furnished, and proved to be most valuable. This information was printed in the Appendix of the Report. The Commissioners then examined witnesses selected from various religious bodies, and if any of the Commissioners were absent at any time attending to their ordinary official duties a copy of the evidence taken during their absence was sent to them. The Report of the Commissioners was signed by the whole body; but the Lord Chancellor of Ireland and Mr. Monsell dissented from part of the Report on religious grounds; and the Lord Justice General differed entirely from all the references to Scotland, and, with pardonable partiality for the institution of his country, declared his conviction that the marriage law of Scotland was preferable in theory and principle to the marriage law of England, and that in practice it had been very beneficial in its influence upon the social condition of the country. He was afraid, however, the Lord Justice General had not considered the evidence as to the moral effect of the law in certain cases. The primary object of the Commission was to bring the marriage law in the several parts of the United Kingdom into unison, and with this object in view the Commissioners laid down what they deemed to be the principles of a sound marriage law. They made most important recommendations as to the inquiries preliminary to marriage, and expressed their opinion that the publication of banns 237 ought not to be required by law as a condition either of legality or of regularity in a marriage. The Commissioners also recommended the total abolition of fees on marriage; and said that if their recommendations were adopted the enactments necessary to give effect to them should be embodied in a single statute, and that all the existing statutes on the subject should be repealed. He ought to mention that all the recommendations made by the Commissioners had received the sanction of the different religious bodies, with some few exceptions. In concluding their Report the Commissioners said that if their recommendations became law the great object of uniformity would be accomplished, the law of marriage would be simplified and consolidated, guarantees for the certainty of marriage would be obtained without any infringement of religious liberty, without causing any antagonism between the Church and the State, and without sensible interference with the methods in which marriages have been hitherto solemnized in England, Scotland, and Ireland. It would surely be a great reproach to the country if a Report of this kind, made by such distinguished Commissioners, was allowed to fall to the ground and produce no fruits. In the year 1869 he asked his noble and learned Friend on the Woolsack whether the Government intended to give effect to the Commissioners' Report. The noble and learned Lord in his reply said a number of things were occupying the attention of the Government, and mentioned in particular the patent law, the bankruptcy law, charitable trusts, and the review of our system of judicature. The subject, his noble and learned Friend added, was one which affected every family in the kingdom; that sufficient time had certainly not been given to the public to consider what might result from the alterations recommended by the Commissioners; and that although to proceed with immediate legislation on the subject might present the appearance of vigour and alacrity, still the Government might bring on itself a charge of hasty and inconsiderate legislation. These words were uttered very nearly three years ago, and if the Government were now to legislate on the subject they could hardly suffer from any imputation of undue haste. Whether Government could legislate without consideration 238 must depend on the answer which his noble and learned Friend on the Woolsack was about to give, for if the subject had not been considered by the Government they would hardly be prepared to bring in a Bill. He trusted, however, that the noble and learned Lord would be able to assure the House that a measure on this important subject, which, as he had himslf remarked, affected every family in the kingdom, would be presented to Parliament.
THE LORD CHANCELLORsaid, it was impossible to find fault with his noble and learned Friend for having brought this matter to their Lordships attention; and the public must be greatly indebted to him both for his earnest efforts to promote the inquiry and for his constant attendance at the sittings of the Commission. There was, however, one circumstance which would in some degree explain what appeared to his noble and learned Friend to be the unreasonable delay of the Government in introducing a measure founded on their Report. Three years were occupied in making the inquiry, and this was owing not only to the number of persons examined, but also to the fact that most of the Commissioners had other important duties to perform. His noble and learned Friend, for instance, held the office of Lord Chancellor during a considerable portion of that time.
§ LORD CHELMSFORDBut I attended all the meetings.
THE LORD CHANCELLORNo doubt his noble and learned Friend attended all the meetings; but the delay was occasioned by the intervals between the meetings. But it should also be remembered that this Report referred to one only of many important legal reforms affecting large classes of the community. When any Government took office it was the duty of each officer in his particular Department to see what were the subjects on which legislation was most necessary. The present Government had been reproached—and perhaps justly so in some degree—for having been over-laborious in preparing so many measures for the approbation of Parliament that it became almost hopeless to expect they could all be carried through the Legislature. He might assert with safety, however, that in the history of our country there could hardly be found in any three successive 239 years such a large number of important measures passed through the Legislature as had been carried since the present Government came into office. It was only necessary to specify the Irish Church Act, the Irish Land Act, and the Education Act—to say nothing of the important measures which were under consideration this Session, and which he hoped would pass into law. As regarded his own Department, he thought it sufficient if one large measure were undertaken at a time. The first and most important question was, in his opinion, the law of bankruptcy, which had already occupied the attention of three Chancellors and of two very able Attorneys General. Another pressing subject was our system of judicature. He had succeeded last Session in passing the High Court of Justice Bill through their Lordships' House, although from pressure of business in the other House it did not become law. That Bill, and the Bill on Appellate Jurisdiction, still occupied attention, and would, he hoped, be brought before their Lordships immediately after the Easter Recess. Under these circumstances, it did not seem wise to undertake a measure for the alteration of the law of marriage. Other subjects had been mentioned, as, for instance, the patent law and the state of the law respecting the title and registration of land. On the latter a Commission had reported several years ago; but their recommendation had not yet been carried into effect. With regard to the marriage law, it was undoubtedly a very important measure; but it was for the Government to consider whether there was any chance of its passing in the present state of public business, and whether it was wise to bring forward five or six measures at once with a certainty of succeeding in none. They had next to consider what measures it was best to postpone, and what sort of hope there was that a given measure would secure that general approbation of the public which was so conducive to its success. His noble and learned Friend (Lord Chelmsford) laid great stress on the fact that the House had the valuable Report drawn up by the Royal Commission, and recommending the introduction of the Bill. That there were difficulties to be met was evident on the face of the Report. It must be remembered, in the first place, that the Lord Justice General dissented from 240 the Report, because, while concurring in other respects with the Report, he held to views of his own with respect to the marriage law of Scotland; and, in fact, several Scotch witnesses recommended the adoption of their own law, in order to promote uniformity. Irish witnesses would probably have similar preference for their own law. Dr. Moriarty, on the part of the Roman Catholics of Ireland, pointed out that a measure based upon the Report of the Royal Commission was not likely to obtain any degree of concurrenc eon the part of the priesthood, who would be opposed to anything which would appear to connect them with the civil registrars, although they would be ready to send in certificates of marriage if required. A third difficulty arose in presence of the very large number of persons who thought that the proper mode of dealing with the marriage question was that the civil contract should be the only one recognized by the State, leaving it to the persons concerned to superimpose upon that process whatever other ceremony they might please to select. Still another difficulty was presented by the divergence between the divorce law of Scotland and the divorce law of England. Scotch lawyers, and possibly a majority of the Scotch nation, thought that their law, which permitted divorce upon proof of adultery, was the best and most moral law that could be enacted; while English lawyers and a majority of the English nation held that their own law was the better of the two. The mere mention of these difficulties was sufficient to show that the Bill was not one which could be passed through Parliament without a considerable amount of discussion and opposition. He was not stating that nothing was to be done, nor was he making any excuse for any amount of laziness which might be laid to his personal charge. But it was incumbent upon him to weigh the amount of time at his disposal against the number of pressing measures claiming his attention, and to make a selection of what he thought it best for the interests of the country to give precedence to. He had made his selection, and he must decline to alter it in favour of a marriage law, unless he saw some better prospect than at present existed of carrying it through the House this Session.
§ LORD LYVEDENfelt bound to say that, having been one of the Commission, he had rarely met with a subject that had received a greater amount of attention. He thought that in the present state of Business before their Lordships it would have been possible, during the sort of half-holiday they had kept, to have introduced a measure relating to the marriage law, and to have brought the Report of the Commission before the public, who knew little of its existence. The only difficulty in passing such a Bill would lie with the Scotch and Irish Members of the House of Commons. All Scotchmen affirmed that the Scotch marriage law was the most religious and moral ever passed, and infinitely more so than the law of England; whereas most Englishmen had the opposite opinion. He did not reproach the noble and learned Lord for not taking action in this matter. It was not so much his fault as the fault of the present system, under which nothing could be done until some sensational case arose, and then the necessity for legislation was admitted, and efforts made to meet it. No measures for the advancement of the happiness and welfare of mankind could be passed unless there was some party interest to support them. It was the same throughout every part of the law. They had recently had two monstrous cases, from one of which it appeared that an impostor could put persons to an expense of £100,000 to retain their estates; and from the other that a scoundrel could place people in even a worse position by means of affidavits, made under a system which he understood was sanctioned by the Attorney General.
§ THE MARQUESS OF RIPONrebutted the allegation of the noble Lord (Lord Lyveden) that at the present day no measures were passed that were not of a sensational character, by pointing to many useful and practical measures which had been passed of late years which did not come within that description. It would be useless for the Government to attempt to carry any measure on this subject during the present Session, having regard to the present state of Public Business; but he saw no reason why the noble and learned Lord opposite (Lord Chelmsford) should not himself undertake to bring forward a Bill which would embody his views on the subject.
§ LORD CHELMSFORDsaid, he should deprecate such a measure as the one he suggested being brought forward by a non-official Member of their Lordships' House.
§ House adjourned at a quarter before Eight o'clock, to Thursday next, half past Ten o'clock.