§ LORD CHELMSFORD
, who had given Notice to call attention to the Report of the Royal Commission on the Laws of Marriage, presented to the House in the year 1868, said, he rose for the purpose of bringing under the notice of their Lordships a subject of the greatest possible importance, and of deep interest to all classes of the community. It was now more than 10 years since public attention was called to the difficulties and perplexities arising from the circumstance that the laws relating to marriage differed in the three parts of the United Kingdom. The operation of these laws was at that time illustrated by a remarkable case which was tried in the Courts of Ireland and Scotland, and which ultimately came for final 3 decision in their Lordships' House. This case involved two questions—one arising from the peculiarities of the Scotch Marriage Law, and the other from the law relating to mixed marriages in Ireland. There was a difference of opinion among the Judges in the various tribunals before which the case was tried, and a strong controversy arose out-of-doors with regard to the case. After considerable discussion on various ways, a very general desire was expressed that an endeavour should be made to bring, if possible, the Marriage Laws into uniformity throughout the United Kingdom. The Government of the day yielded to the desire, and issued a Royal Commission in the year 1865 to inquire into the whole subject. He (Lord Chelmsford) was Chairman of the Commission, the other Members being all of them eminently qualified to investigate the subject, and to form an enlightened judgment as to what alterations of the law were desirable. They were very properly selected from the several parts of the United Kingdom. For England there were, besides himself, his noble and learned Friend on the Woolsack (Lord Cairns), his noble and learned Friend opposite (Lord Selborne), Lord Hatherley, Lord Penzance, Lord Lyveden, Mr. Spencer Walpole, and the Queen's Advocate. For Scotland there were the Lord Justice General, the Lord Advocate of Scotland, and Mr. Dunlop; for Ireland, his lamented Friend Lord Mayo, the late Lord Chancellor of Ireland, and Mr. Monsell. The Commission began their labours by requiring to be furnished with summaries of the Marriage Laws in the different parts of the United Kingdom. These were prepared by competent persons, and he could not help regretting that they were not published among the Appendices to the Report. By desire of the Commission, he (Lord Chelmsford) sent out a circular asking for information and observations upon the whole subject; and adding—But although the Commissioners would desire to have the advantage of your judgment upon the constitution of the marriage contract, (religious and secular), its proofs, its registration, and the preservation of the evidence respecting it, they are more particularly anxious to receive information as to the practical operation of the present law in those places with which you are best acquainted.That circular was addressed to all the Archbishops and Bishops in England, 4 Scotland, and Ireland, Protestant and Roman Catholic; to the Moderator of the Established Church of Scotland, to the Moderators of the Free Church and of the United Presbyterian Church of Scotland, to Roman Catholic clergy, and to several persons connected with the Presbyterian Church in Ireland; to clergymen of the Established Church in England, to the President and Vice President of the Wesleyan Conference in England, to various persons, members of the Dissenting bodies in England; to the Chief Rabbi, to the Registrar General, and to many of the Registrars throughout the country. That circular elicited a vast amount of very useful information. The Commission then proceeded to examine witnesses, and about 100 persons either answered the circular or were examined on a case before the Commission. The inquiry extended over a period of three years, not owing to any want of diligence on the part of the members, but to the fact that several of them had judicial and other duties to perform in various parts of the country; and it was therefore difficult to appoint meetings to suit the convenience of the different Members. After a very full consideration of the whole subject, the Report was prepared, and when he stated that the Commission was indebted for it to his noble and learned Friend opposite (Lord Selborne), he need not add that it was a most able and valuable document. It was signed, as to its general principles, by every member of the Commission except the late Lord Mayo, who, as his official position as Chief Secretary for Ireland prevented his attending the latter sittings of the Commission, thought it would not be right of him to sign it. He would shortly state to their Lordships some of the matters with which the Report dealt. It began by laying down the principles of a sound Marriage Law. It contained recommendations as to the capacity of persons to contract marriage, and as to the solemnities that should be required. It recommended the abolition of canonical hours; the solemnization of marriage in the presence of witnesses; and it contained numerous and important recommendations relative to the requirements preliminary to marriage:—such as notice and residence; they recommended that the publication of banns, though not interfered with in 5 the Established Churches, should not be required by law as a condition of the lawfulness of any marriage; as to the consent of parents and guardians; as to notices, they recommended that the certificate of compliance with the prescribed regulations of the proper officers should be sufficient, and that licences should be thereby superseded; as to the registration of marriages; and as to evidence and penalties. The Commissioners conclude—Should our recommendations in their general substance, become law, the great object of uniformity will have been accomplished; the law will be simplified and consolidated; the highest practicable security for the facility, certainty, and safety of marriage will have been attained without any infringement of religious liberty, or antagonism between the authority of the State and the influence of religion: and at the same time there will be no sensible interference with the previously accustomed course of regular marriage, as hitherto solemnized, in England, in Scotland, or in Ireland.It was right he should state that the Lord Chancellor of Ireland and Mr. Monsell dissented from the recommendations as to Divorce, believing that the marriage tie was indissoluble, and that divorce a vinculo was contrary to the law of God. The Lord Justice General signed, but, with excusable partiality, stated that, entertaining a settled conviction founded on experience and a patient study of the subject, that the Marriage Law of Scotland was preferable in theory and principle to the Marriage Law of England, and that it had in practice been highly beneficial in its influence on the social condition and morality of the people, he could not assent to a proposal to alter that law in any particular affecting its essential principle. The Report was presented in 1868—nearly seven years ago—and it was matter of great regret, and perhaps of reproach, that nothing had since been done to carry out the recommendations of the Committee. Of course, the introduction of a measure to alter the Marriage Laws could be undertaken only by a Government. He must relieve himself from any responsibility on the subject, by stating that he ceased to be Lord Chancellor in February, 1868, and the Report of the Commission was not presented to the House till July of that year. He was succeeded by his noble and learned Friend who now again occupied the Woolsack. 6 It could hardly have been expected that his noble and learned Friend would be able to do anything with so largo and important a subject as the Marriage Laws during the short time in which he then held office. In the next Session he was succeeded by Lord Hatherley. He (Lord Chelmsford) tried to ascertain what were the intentions of his noble and learned Friend (Lord Hatherley) on the subject now before their Lordships, and in reply Lord Hatherley said—The question 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 might present the appearance of vigour and alacrity, still there might possibly succeed a charge of hastiness and inconsideration.In 1872, he (Lord Chelmsford) again tried to urge the matter on the attention of his noble and learned Friend, when he was told that there were so many pressing measures on the hands of the Government that he could not then undertake legislation on so important a subject. Thus remitted to the future, when he pressed the subject on the attention of the Government, he began to despair, when his hopes were revived by the succession of his noble and learned Friend opposite to the Chancellorship. Feeling secure of his anxious desire that the recommendations of a Commission to which he had done such valuable service should be carried out, he took an early opportunity of appealing to him; and in reply his noble and learned Friend said—He trusted the proposals would one day be embodied in a law without pledging the Government in any way. If it should be his good fortune at some future time to be instrumental in submitting such a law to the House, it would not be one of the least of the services which he desired to be able to render to the country.He felt under some embarrassment in expressing his regret that the Great Seal should have passed from the hands of his noble and learned Friend; but must qualify the expression by confining it in relation to this subject, and by adding his satisfaction that he has been succeeded by his noble and learned Friend on the Woolsack. In making his appeal to him, his noble and learned Friend could not excuse himself from engaging with the subject of the Report 7 on the ground that he might be charged with hastiness and inconsideration, nor did he (Lord Chelmsford) suppose that his noble Friend would plead the numerous important subjects demanding his attention. Indeed, they were led to expect that under a rest-and-be-thankful Administration, the field of legislation would he fallow for the present Session. He hoped that his noble and learned Friend would not allow this subject to remain much longer neglected. He was anxious that the labours of the Commission should bear fruit, and that this question should not be sent to the limbo of abortive works. For this reason he wished to ask his noble and learned Friend the Lord Chancellor, "Whether he can hold out any hope that steps will be taken by the present Government to carry out the recommendation of the Commissioners for the amendment of the Marriage Laws?
THE LORD CHANCELLOR
said, that the subject to which his noble and learned Friend had referred was another of the many proofs that in this country most multifarious and onerous duties might be assigned to a Royal Commission, that those duties might be discharged with great zeal and ability, that a mass of valuable information might be collected and very excellent recommendations made, and yet years elapse before any particular fruit was borne as the result of those labours. He agreed with all that had been said by his noble and learned Friend about the Commission on the Marriage Laws. The subject was certainly a very wide and important one, and the pains taken by the Commission presided over by his noble and learned Friend could not be described in too strong terms. He further agreed with what his noble and learned Friend had said as to the Report. It was a document of great weight and great ability, in the preparation of which his noble and learned Friend the late Lord Chancellor (Lord Selborne) took the greatest trouble, and for which—if he might be allowed to say so—he deserved the greatest praise. But there were other circumstances which must be borne in mind when this subject was being considered. The great object of the Royal Commission was not so much to make a change in the Marriage Laws as to produce an assimilation of the Marriage Laws in the Three Kingdoms. The Commissioners 8 reported on a means to that end, and if that end was to be accomplished those means were perhaps those that alone could be adopted for the purpose. But in considering the feasibility of any proposed legislation on such a subject, we must see how far the recommendations of the Report would commend themselves throughout the United Kingdom. He believed the recommendations would affect the Marriage Laws of England so very little that they would not provoke much opposition in this country; but when they found a distinguished Scotch lawyer speaking as the Lord Justice General did—and not speaking for himself alone—it was to be apprehended that in Scotland the proposals of the Commissioners would have to encounter disfavour and discontent. Then their Lordships knew that the noble and learned Lord and the right hon. Gentleman (Mr. Monsell) who represented Ireland on the Commission dissented, not from the Report as a whole, but in respect of certain subjects which in a general measure would be found very embarrassing subjects to deal with. Therefore, he feared that when such a measure came to be discussed it would be received with anything but unanimity or concurrence on the part of the representatives of the sister countries, who were most likely to be affected by it. In saying that he did not mean' to say that those difficulties were a reason why legislation should not be attempted; but, at the same time, he thought they were not to be overlooked when the Government were asked to consider the probability of passing a measure of the kind. He agreed with his noble and learned Friend that if such a measure was to be brought forward it must be by the Government of the day; but the Government had to ask themselves what was the proper time to bring it forward with a fair prospect of passing it. What probability there was of its being sufficiently discussed and considered during any particular Session; and what were the probabilities out-of-doors of any desire for a measure such as they might think it right to introduce if they proposed legislation in the matter at all. He could only say, speaking as to the present Session, that, looking at the measures already brought forward, he did not think there was the slightest prospect of a Bill on this subject being introduced; and as to next Session, he 9 thought it would be extremely wrong, without knowing on what subjects legislation might be taken in that Session, to give any pledge as to legislation on the Marriage Laws. His noble and learned Friend asked him whether he could "hold out any hope" that steps would be taken by the Government in that direction? Well, that was a somewhat figurative way of putting it. They all lived in hope, and he was quite ready to join with his noble and learned Friend in any amount of hope on this or any other subject; but if his noble and learned Friend asked him to give any engagement on the part of the Government, that was what he was afraid he must decline to do.
§ LORD SELBORNE
said, that perhaps his noble and learned Friend on the Woolsack could not have given any other reply than that which he had just made to his noble and learned Friend opposite, so far as declining to enter into any engagement; but he must say that his noble and learned Friend's answer left on his mind the impression that government in this country—he did not mean by the present, more than by any other Administration—had of late lapsed into a deplorable state of weakness and indecision with regard to the largest social subjects and to those affecting the most general interests of the community. The real truth, as he understood his noble and learned Friend, was this:—his noble and learned Friend was aware that the subject on which the Commission had been engaged was one of great public importance; that the actual state of the Marriage Laws in portions of the United Kingdom was such as it ought not to be; that useful materials had been collected for the improvement of those laws; and that—whether the recommendations of the Commission wore, or were not, in all their details, exactly such as he would adopt—a proper mode of dealing with the subject had, upon the whole, been suggested. What, then, were the reasons why nothing could be done? Was it that this was a speculative matter? Were there no real practical evils arising from this state of the law? Though the cases which resulted in actual litigation might not be very numerous, every year cases did come from Scotland, furnishing fresh and fresh illustrations of the effect of the 10 present law as to irregular marriages in that country, in creating uncertainty as to the existence of the marriage tie and as to the legitimacy and the expectations of children. So strange was the law in Scotland that it was no exaggeration to say, that no man who had in youth led an irregular life in that country could be sure, when he married, that the legitimacy and succession of his children might not some day be called in question. What was the cause of the difficulty in dealing with this question? Not that the habits of the people of Scotland had been so formed on this vicious system that you would be uprooting and overturning them by improving the law; because, though those marriages were numerous enough to be a great evil, still, as compared with the total number of marriages in Scotland, they were insignificant. The law which produced the evil was not that of regular marriages, but that of irregular marriages, such as were disapproved and discouraged by every religious body in Scotland, opposed to the general sentiment and practice of the Scottish people, and even treated as the proper subject of penalties by the old statute law of that part of the Realm. It did seem not a little surprising that prejudice should have such power as to prevent the Legislature from dealing with such an evil after a reasonable mode of correcting it had been ascertained. The Commission recommended considerable changes in the Marriage Laws of England, Scotland, and Ireland; but those changes would have effected no disturbance of the religious sentiment or of the general habits of the people in any part of the United Kingdom; they would have given no advantage to any one Church or religious body over another; they would not have divorced marriage from religion: but they would have established uniformity and security for the Marriage Law in England, Scotland, and Ireland. If he were in the position of his noble and learned Friend on the Woolsack, he might, no doubt, also feel the difficulty of obtaining popular support for a measure to give effect to the recommendations of the Commission, sufficient to overcome any serious differences of opinion which might manifest themselves in the Legislature. There were difficulties in this case, as in every case in which reforms were to be accomplished 11 and prejudices overcome; but, if he had continued to occupy the position now more worthily filled by his noble and learned Friend, he should not have willingly given up the hope of being able to overcome them: and he still entertained the hope, notwithstanding what they had heard to-night, that if his noble and learned Friend should for some time longer enjoy an undisturbed occupation of office he would endeavour to achieve that important object.
regretted that the Summary spoken of by the noble and learned Lord (Lord Chelmsford) had not been published in the Appendices of the Report. He hoped that the Government would have it published so that full information might be given with a view to legislation next Session.