SECOND READING. (Hansard, 15 July 1878)

THE EARL OF CAMPERDOWN
, in moving that the Bill be now read the second time, said, it proposed to enact that a certificate from the registrar of a district in which the parties lived who desired to get married should be held to be equivalent to proclamation by banns. This would, practically, make the law in Scotland the same as in England. The principal enacting clause was the 4th, which was as follows:— From and after the commencement of this Act, it shall he lawful for all ministers, clergymen, or priests in Scotland to celebrate marriages in that country either after due proclamation of banns, or after such regulation of notice of an intention to marry as is hereinafter prescribed, 1429 and upon production to such minister, clergyman, or priest, either of a certificate or certificates of due proclamation of banns, or of such registration, or of a licence of a justice of the peace, as hereinafter prescribed. The machinery proposed by the Bill was described in Clause 7, which was— In every case of persons residing in Scotland intending that a regular marriage shall be celebrated or registered between them in Scotland without the proclamation of banns, each of such persons shall, on or about the same date, give notice of the intended marriage to the registrar of the registration district in which he or she have resided for a period of not less than fourteen days previous to the giving of such notice, in the form set forth in the Schedule A. annexed to this Act; provided that when both of such persons reside within the same registration district it shall suffice for one of them to give such notice. It would be seen that any clergyman in Scotland would now be authorized to celebrate a marriage upon a certificate from a registrar, as he now did upon a certificate of the proclamation of banns. The Bill was introduced owing chiefly to a decision of their Lordships' House, given some three years ago, with regard to the ecclesiastical character of the ceremony of proclamation of banns. In consequence of that, a good deal of uncertainty and religious heart-burning occurred, and many persons incurred much expense and no little inconvenience in the effort to render valid marriages which might possibly be considered illegal. A Bill similar in terms to this one was brought in during the last Session of Parliament, and after being read a second time, without opposition, it was withdrawn in order that the parties interested might have an opportunity of considering it. It had been re-introduced this Session, and in the House of Commons it had been read a second time without opposition. Under these circumstances, he hoped their Lordships would give it a second reading.

THE BISHOP OF CARLISLE
desired, before the Bill passed to its second reading, to call attention to a difficulty which he hoped the noble Earl would find a method of getting over—a service which would entitle him to gratitude from some whose case he (the Bishop of Carlisle) wished to put before their Lordships. This was the 1430 point. Suppose a marriage was going to take place, and the bridegroom, lived in Scotland on the Border, while the bride lived in England. The bride had her banns published in the ordinary course in an English parish church, and the bridegroom had his published in Scotland in the Established Church in the ordinary way also. The bridegroom brought a notice from the sessions clerk that the banns had been so published, and therefore the marriage took place. A number of persons had been married in this manner. About a year ago an opinion was given by a noted ecclesiastical lawyer, Dr. Tristram, that such publication of banns in Scotland was not due publication within the meaning of 4 Geo. IV. c. 76. In consequence of that opinion—and he had no reason to believe that it was not sound—marriages celebrated in the manner described might possibly be regarded as illegal marriages, and the clergyman celebrating them liable to ecclesiastical censure. This was, therefore, a very practical question. As soon as the opinion was published in the newspapers, persons so married were exceedingly disturbed. Several instances came under his notice, one of which occurred in his own diocese, in reference to which he thought it would be a peculiar hardship if it were held that the marriage was not valid. He did not think, however, that in this case the marriage could, under any circumstances, be pronounced illegal; for the provision of the Act was that persons "knowingly and wilfully" marrying without due publication of banns should have their union declared null and void, whereas, in this case, there was certainly no wilful neglect of the law. At any rate, he hoped the gentleman would be held to be duly married. It would be obvious to their Lordships that a difficulty and anomaly of this character ought not to exist. There was obviously, in the present state of the law, a difficulty as to the marriage of persons who lived on the Border, one residing in England and the other in Scotland, and that difficulty ought to be done away with. He should be the more disposed to press this point, because he observed a very kindly clause in the Bill—Clause 11—which contemplated the case of one of the persons residing in Scotland, and the other not, and where it would be a serious inconvenience to 1431 require the latter to reside in Scotland merely for the purpose of complying with the provisions of the Act. In that case, a justice of the peace would be entitled to grant a licence which would have the same force and effect as a registrar's certificate. But this relaxation applied only to cases where the marriage was to take place in Scotland. If it were enlarged, so as to extend to England, the difficulty might be met. In any case, he hoped the Bill would be so modified as to meet the case—a clear and obvious one—which he took the liberty of saying ought to be met. An eminent lawyer, to whom he had put the matter, after he saw the Bill and came to the conclusion that a reasonable opportunity had now presented itself for putting the uncertainty aside, wrote him, saying— I have looked into this matter, and it seems to me that the position of a person who crosses the Border from Scotland to be married by banns in England is one of considerable difficulty, and it would be well if some opportunity for legislating upon this point should be found. I do not think such a person can comply with the marriage law of England as regards the publication of banns. That was his case, and he was willing to leave it in the hands of the noble Earl (the Earl of Camperdown). He had drawn up some clauses to meet the case, which he would put into the hands of the noble Earl; but it struck him that a slight modification of Clause 11 would more readily answer the purpose.

THE LORD CHANCELLOR
remarked, that Her Majesty's Government had not offered any opposition to the Bill in the other House of Parliament, nor did they propose to offer any opposition to it in this House. The main object of the Bill was to extend to Scotland—and it seemed desirable to do so—the principle adopted in England of the substitution, if the parties desired it, of a notice given to the registrar, for the publication of banns in a parish church. The noble Earl said the Bill had passed through the other House without opposition, and he was afraid he should have to add that it passed too hastily, and with a sort of understanding that defects in its form would be corrected in their Lordships' House. He purposed submitting Amendments to their Lordships, and he hoped the noble Earl would not fix his Bill for Committee before Thurs- 1432 day week, so that those Amendments might be considered. The right rev. Prelate who had just sat down had referred to a difficulty. He believed it was perfectly correct to say there was some difficulty in regard to marriages celebrated near the Border between England and Scotland. No doubt, it had been the practice where one of the parties lived in Scotland to bring the banns from Scotland, and then, presenting them to a clergyman South of the Border, it was held that there had been publication on both sides. The same thing occurred North of the Border. There had been a good deal of anxiety in regard to the subject, and as to how such marriages should be made valid, supposing the publication to be insufficient. In order to constitute a marriage in Scotland free from Church censure, there must be a proper publication of banns. It was not too much to say there was some doubt as to whether, under the circumstances indicated, marriages South of the Border could be considered legal. He had directed that clauses should be prepared to meet the case on both sides, not only for the future, but as regarded the past.

§ LORD SELBORNE
said, it was a matter of regret that the discrepancy between the marriage laws prevailing in the different parts of the United Kingdom should continue; though he was not prepared to object to legislation such as that now before the House, for the purpose of remedying minor evils, in the absence of any great measure to place upon a consistent and harmonious basis the whole marriage law of the United Kingdom. More than 10 years had now passed away since a Royal Commission reported upon that subject; and he believed that, in their Report, a true basis for such a measure might be found. But it was a misfortune of the times in which they lived, that any large or comprehensive legislation on those subjects which touched most closely the highest interests of all classes of men, seemed to be impossible, unless some popular or political excitement could be got up about them. The importance of uniformity in the marriage laws of the United Kingdom was a subject which was constantly brought under the attention of those who were concerned with the administration of the laws of the country. From year to year cases arose 1433 which showed forcibly the necessity of an alteration in the law. Her Majesty's Government could not better use the great power of which they seemed likely, for some time to come, to be in possession, than by taking up this question.

THE EARL OF CAMPERDOWN
expressed his willingness to improve the Bill in Committee.