§ Order of the Day for the House to be put into Committee read.
§ Moved, "That this House do now resolve itself into a Committee upon the said Bill."—(The Earl of Dalhousie.)
§ EARL CAIRNSsaid, that, before going into Committee on the Bill, he wished to call the attention of their Lordships to an Amendment which appeared, in company with another, on the Paper in the name of the noble Earl who had charge of the measure (the Earl of Dalhousie), and which proposed in Clause 1, page 1, line 10, to leave out after "contracted" the following words:—
In England or Ireland in the office of any registrar under the provisions of the Acts relating to marriages in England or Ireland, or to be contracted in Scotland or elsewhere," and insert "within the realm.Now, that Amendment was a very important one; it had only just been put upon the Paper, and, consequently, it had taken many of their Lordships by surprise, seeing that little, if any, Notice of it had been given. He did not wish, at that stage, to offer any opinion on the merits of that Amendment, but merely to point out how necessary it was that their Lordships should have time for considering it, seeing that it entirely altered the whole tenour of the Bill. If the Amendment was to be discussed at that stage, he should ask their Lordships to defer the Committee for a fortnight; but he hoped it would not be proceeded with that evening. The Amendment was one which would allow these marriages to be celebrated in any church in the Three Kingdoms; whereas the Bill, as drawn, confined these to the Registrar's offices only, and made them civil marriages.
EARL NELSONsaid, he also trusted the noble Earl opposite (the Earl of Dalhousie) would assent to the suggestion not to move his Amendment at pre- 899 sent. As regarded himself, he (Earl Nelson) knew nothing about the Amendment until he came up to town that day, and other Peers were in the same position, and, therefore, they required to take its effect into consideration. The measure had been supported by many of their Lordships and other people out-of-doors, on the ground that it did not extend to ecclesiastical marriages which were celebrated in churches, and so did not affect clergymen who objected to celebrate such marriages. In his opinion, however, if the Amendment, as proposed, was made in the Bill, it would throw a new and heavy responsibility on the clergy, and would entirely alter its character.
THE EARL OF DALHOUSIEsaid, he could assure their Lordships that he had no intention of springing a mine upon the House in the shape of these Amendments, and thereby taking their Lordships by surprise, or of proposing anything which should alter the whole character of the Bill, as alleged by the noble Earl opposite (Earl Nelson). Neither had he any idea of the serious feeling of opposition with which it would be received. The fact was, he put down the Amendment on the Paper on account of a remark made by the noble and learned Earl himself (Earl Cairns) in the debate on the second reading, complaining that his (the Earl of Dalhousie's) Bill would introduce an entirely new principle into the Law of Marriage inasmuch as if a man married his deceased wife's sister in church, the marriage would be void, whereas it would be valid if he married her before the Registrar. He (the Earl of Dalhousie) quite agreed with that criticism of the noble and learned Earl, for it was very far from his wish to rob marriage of its religious character. He certainly should not be content himself with making a civil marriage, and he did not suppose that there were many Englishmen who would. It seemed to him that it was a mistake, from many points of view, to place the marriages in question in the position of purely secular contracts. In this particular instance there appeared to be an additional reason for not doing so, because the Bill was intended to remove a grievance; it was, in some sort, a remedial measure, and it would be robbed of much of its value in the eyes of those for whom it was in- 900 tended if the religious part of the marriage ceremony should be practically abolished. At the same time, he would admit that the noble and learned Earl had complained quite justly that there had not been time for considering the Amendments. He certainly did not wish to take the House by surprise, and he would consent to withdraw the Amendments, and to consider between that time and the Report stage whether he should bring them forward again.
LORD DENMANsaid, that he had tried to address their Lordships at the close of the debate in the year before last, but was silenced by clamour; and likewise this year on the second reading, when the most rev. Primate (the Archbishop of Canterbury) followed the noble and learned Lord opposite (Lord Bramwell). On the first occasion, he (Lord Denman) had wished to explain that an argument by his lamented Predecessor in title had been republished and handed to him just before the debate. It had been obtained by a gentleman who was very anxious to marry his deceased wife's sister, and who went down to his (Lord Denman's) house in North-amptonshire to see the retired Lord Chief Justice; but he (the late Lord Denman) had advised that gentleman not to marry until the law was changed. But the gentleman went abroad and married; and he (Lord Denman) confessed that there might have been no marriage of any sort—only disappointment. In writing that argument, the late Lord Denman, who had had two paralytic seizures, used strong language. In the course of it he wrote that Bishop Blomfield had altered his opinion; but in his memoir—by the Bishop of Bedford, his son—he (the present Lord Denman) found that, although Bishop Blomfield had attached less weight to the prohibition (Lev. c. xviii. v. 18), yet he was convinced that such marriages were against the whole spirit of the Scriptures. He (the late Lord Denman) had ended his argument by a quotation from Numbers, c. xxiii., end of 8th verse—"How shall I defy whom God hath not defied?" In the debate of 1835, both Mr. Warburton, M.P. for Bridport, and Dr. Lushington, then Judge of the Consistory Court, had wished such marriages to be at once, for the future, declared void, before two years, during which time Lord Lyndhurst would have 901 allowed them to remain questionable, in order to prevent such marriages, which were likely to increase if Mr. Poulter's exclusion of the 2nd clause were continued. In 1869, Lord Lyndhurst admitted that in Massachusetts, Boston, connections of his own had made such marriages with happy results; but added that a different state of society in another country might make them unsuitable. His Lordship attached great weight to the opinion of the Bishop of Exeter, and, although his Bill had been altered, did not attempt to repeal it. He (Lord Denman) had wished to explain, on the second reading of this Bill, that the opinions obtained from Professors on two verses only in Scripture—in Leviticus and Ephesians—did not convince him. He thought I Con c. vi., v. 16, more to the purpose. He thought there was mystery as to the union between Christ and His Church, but no mystery as to the connection between a man and his wife. He (Lord Denman) thought the expression" Chêre entiere," which the Earl of Chesterfield, in his letters to his son, advocated as a means of influence on the Continent, though an incontinent one, explained his meaning. He (Lord Denman) believed that no good could be done by discussing this Bill in Committee. In 1869, on a Bill by Earl Russell for 28 life Peers, attempts were made to improve the Bill; but an hon. Member—late Chancellor of the Duchy of Lancaster—had written, or said, that their Lordships were "tinkering the Bill." Yet, on the Motion of the Earl of Malmosbury—although he (Lord Denman) could not obtain a Teller on the second reading of the Bill, in his Motion against it—on the third reading, it was thrown out by a majority of 30; and he (Lord Denman), instead of trying to improve this Bill in Committee, would move its rejection on the third reading.
THE EARL OF DALHOUSIEsaid, he wished to add one or two words of explanation, for he was very anxious that their Lordships should understand his position. His view was, that the two Amendments in his name should be taken together. That was to say, that if any of the clergy did not object to celebrate these marriages between a man and his deceased wife's sister—
§ EARL BEAUCHAMProse to Order, and said, it would be much more regular 902 if the Amendments were taken as they arose. In that case, any further explanation that might be required would be more conveniently made.
THE EARL OF DALHOUSIE, resuming, said, he was merely going to add that, in the case of those clergymen, it should be lawful for them to do so.
§ Motion agreed to.
§ House in Committee accordingly.
§ Preamble agreed to.
§ Clause 1 (Marriage between a man and his deceased wife's sister not void or voidable).
§ EARL BEAUCHAMP, in rising to move, as an Amendment, the omission of the words which gave the Bill a retrospective character, said, there were many reasons why a Bill such as this should not be retrospective, but none, as far as he could see, for the present proposal. Lord Lyndhurst's Act of 1835 was, no doubt, retrospective; but there was no analogy between that Act and the Bill before the House. That Act clothed the temporal Courts with power to decide that all these marriages were void. The main reason for making the Bill retrospective, according to its promoters, was the sentimental argument that an injury would otherwise be inflicted on the innocent children of these marriages; and, as far as it went, that was a fairly good argument. But, he might ask, what view did the law take of other children born also out of wedlock, who were no less innocent, in his view, than the children born of these marriages? He was not speaking as a theologian; but to him all children were, more or less, equally innocent, whether their parents were married or not. But the proposal now was not to legitimate them all, but only to legitimate the offspring of the unions affected by the Bill; and, that being the case, he failed to see the cogency of that sentimental argument. Grievances were spoken of; the Bill was to redress grievances; but they were the grievances of persons who had transgressed the law, and might be supposed to know the consequences of doing so. He contended that the effect of the clause, if it were allowed to remain as it stood, would be to set up marriages again which had been by the Ecclesiastical Courts declared void, and it would 903 enable parties to claim titles and estates under such marriages, and might have the effect of upsetting rights which had been settled. Their Lordships would at once see how dangerous such a course would be. No doubt, there were some grievances under the Law of 1835; but it should be remembered that they had been greatly exaggerated, and that the parties affected had entered into these marriages, knowing that by the law of England they were doing wrong. At any rate, it was an entirely new doctrine; and he thought it would be a remarkable innovation on Parliamentary practice, that the law should be altered to suit the convenience of those who had broken it, by placing them in the same position and with the same advantages as those who had obeyed it. He hoped, therefore, that whatever change might be made in the law, the House would not show so much deference to the very active agitation that had been carried on as to make the Bill retrospective; for he could not help feeling that it would, indeed, be a very evil day for the Parliament of England, if their Lordships admitted that provision of the Bill to become operative. An active canvass had been carried on upon the question; but he would call upon their Lordships to decide on their own responsibility. He begged to move the Amendment standing in his name on the Paper.
Amendment moved, in page 1, to leave out from (" sister ") in line 7, to ("which") in line 9.—(The Earl Beauchamp.)
THE LORD CHANCELLORsaid, that this was a subject upon which he thought it his duty to address their Lordships. The House had read the Bill a second time, and he was sorry for it; but much as he regretted that, in doing so, it had affirmed the principle of the Bill, and, although on the division he had voted in the minority, he was bound to say that he was in the habit of bowing to its decisions, and therefore he could not vote for the Amendment, for he could not but think that the House, in accepting that principle, had accepted also the substance, though not necessarily the form, of this provision to which the noble Earl opposite (Earl Beauchamp) objected. He (the Lord Chancellor) regarded them as being in- 904 capable of being altogether dissociated from each other. Ten years ago, when a similar Bill was under discussion, he placed before the House his views as to the danger of the principle involved in such a retrospective clause as was now under controversy. The matter did not receive much consideration upon the second reading, although his noble and learned Friend behind him (Lord Bramwell) had made some comment upon it; and if he (the Lord Chancellor) had addressed their Lordships last week, he should have adverted to that portion of the subject. In the Bill there were two distinct principles. Ono was that debated last week as to the religious, moral, and social bearing of the -proposition that marriage with a deceased wife's sister should be legal; and, to that question, the point of its retrospective operation was not relevant. Whatever religious or moral principle in the view of anyone was involved in marriage with a deceased wife's sister, was, of course, as much involved in the same union without legal marriage; and what belonged to the past was irrevocably done, and must be so regarded. So, again, with respect to any disturbance of social relations, that which was irrevocably done could not, for the future, operate upon social relations more than it had done in the past. Therefore, the arguments founded upon religious, moral, and social considerations were not relevant to the present question of the retrospective operation of the Bill. There was, undoubtedly, another principle involved, which he could not help hoping would be taken note of, either here or in "another place." If the 1st clause, as to its retrospective operation, were to remain in its present form, he could not but think that it would amount not only to a repudiation of what their Lordships did 40 years ago, but to a declaration by the Legislature of its own moral incompetence to legislate upon this subject. And if they were morally incompetent to legislate upon this subject, it followed that they must be morally incompetent to legislate on a variety of kindred subjects also. The same principle would certainly apply, at all events, with regard to all degrees of affinity. He said "at all events;" because he was by no means sure that, in the view of those who thought the Legislature morally incompetent, the objection to its competency 905 might not consistently be pressed still further. That point was neatly put by an Oxford clergyman, the Rev. Archer Gurney, in a letter lately published in the newspapers, in which he said that the law had no right to make that a crime which God's law had not made so, and that the State had no right to forbid what God's law allowed; and he proceeded to draw the practical conclusion as to all degrees of affinity. He (the Lord Chancellor) could not understand what other principle there was in this retrospective clause as it now stood, for it declared all marriages of this kind, not merely to be for the future, but to have been, from the time when they were contracted, valid and lawful, notwithstanding the Statute Law which had been in force for nearly 50 years, and was still in force, declaring them absolutely null and void. If that were so, then the Legislature, as often as any question arose as to restrictive legislation concerning marriage, must enter into theological inquiries, or it must accept the principle that everything which any considerable number of men did not believe to be prohibited by any Divine commandment as to matrimonial relations, was beyond the competence of a human Legislature to prohibit. It. was a very serious thing to pass a Bill which, in terms, abdicated the right to legislate upon this subject, not merely by legitimizing innocent children, but by expressly justifying 48 years of deliberate and systematic disobedience to the law, and declaring all those marriages since 1835, which were illegal and void by Statute, to be legal, and treating the Statute as if it had never been passed. He would ask the noble Lord in charge of the Bill, whether, under these circumstances, he could not devise, at a later stage of the Bill, some mode of giving effect to his principle, which would, at least, not be open to the objection he had specified? Would it not be possible for the future, instead of declaring that no marriage of this kind should be deemed to have been void, to declare simply that the status of the children of such unions should not be different from that of the children of unions which had been according to law? Otherwise, in its present condition, the Bill would be an affirmation of the right of individuals to disobey the law; and he would appeal to the noble Lord to 906 consider whether it would be safe to encourage others to rely on the fact that after a sufficient amount of disobedience, the Legislature would not only change the law in their favour, but, as it were, go down on its knees before them and acknowledge itself to have been in the wrong? Difficulties, moreover, might arise, which, he dared say, the promoters of the Bill had never contemplated; for the effect of the Bill, as it stood, might be to validate marriages actually declared void by the Courts of Law. Or, a man might have married his deceased wife's sister, and then the parties might have agreed mutually to live separate, and might have carried out that resolution for several years. As the law stood now, no question of compelling them to live together could possibly arise; but under the clause, as it stood, a suit for the restitution of conjugal rights might be instituted by either party. There was another point which required consideration, and that was that women who had been, in the eye of the law, single women up till now, and who might have entered into contracts, now binding upon them in law, might, by this Bill, be released from such contracts. He could not undertake to suggest particular Amendments; but he would appeal to the promoters of the Bill to consider how they could moot these objections. At all events, they might except cases in which there had been decrees of Court, and in which parties had been living separate. Therefore, while suggesting that some such Amendments as he had described should be made in detail by the promoters of the Bill, it appeared to him that the ground covered by the Amendment now before the House was so wide as not to be clearly separable from that on which the division on the second reading had been taken, and it would not be consistent with the deference he was inclined to pay to the vote of their Lordships' House on the second reading to vote for the Amendment.
THE DUKE OF ARGYLLsaid, he was sorry to say he felt himself obliged to dissociate himself from those with whom he had hitherto voted on this question. In the first place, it appeared to him that the question before their Lordships was entirely a different question to that which was before them last week on the second reading of the Bill. He had 907 always been a consistent opponent of any measure for legalizing marriage with a deceased wife's sister, and he was one of those who deeply regretted that the principle of this measure had received the sanction of their Lordship's House, for, like many others, he believed that it would injuriously affect the comfort and purity of our domestic life. But a majority of that House had decided the matter otherwise, and they knew from past experience—at least, they had good reason to believe—that that was the opinion of the majority of the Members of the other House of Parliament. The question now remained, whether this contest was to be carried further, and whether, in principle, it was to be carried to this particular extent—that almost the whole penalty for the disobedience of the law in past time was to be visited on the innocent offspring of these marriages. For his own part, he was not prepared to vote for any measure which would visit the penalty for disobedience on the offspring of these marriages. He desired to point out to the House the complication and inequality that would arise, as between the law of England and law of Scotland, if this Amendment was carried. He entirely agreed with the view of his noble Friend opposite (Earl Beauchamp) as regarded the parents who had contracted these marriages. They had done so, knowing they did so in violation of the law; and they had no reason to complain if, in defying the law, the law defied them, and attached certain penalties to their disobedience of the law. It ought to be borne in mind, however, that if the Bill were purely prospective, these persons would have nothing to do but to go before the Registrar, in order to render their marriage valid for all future time. There might be some humiliation in that; but there was this difference, that in Scotland it would have the effect of legitimizing the children, while it would not have that effect in England. The result of the Amendment would be that all persons who, in Scotland, had contracted these marriages more against the feeling of the country than in England, would be able to have their children legitimated, while the offspring of such unions in England would still remain the position of bastards. Such a state of the law, he thought, would be open to serious and 908 grave objection. The noble and learned Earl (the Lord Chanceller) had pointed out objections to the clause, in which he (the Duke of Argyll) confessed he very much agreed. He could not conceive that there was anyone in that House, even his noble and learned Friend behind him (Lord Bramwell), who would go the length of saying that it was incompetent for society to enact such a prohibition. At all events, if that was the opinion of the majority of the House, he certainly should not be disposed to accept a verdict which went against the unanimous opinion and verdict of the Christian Church in all ages. That he could not conceive to be the object of his noble Friend who had charge of the Bill (the Earl of Dalhousie). All he (the Duke of Argyll) understood the noble Earl to mean was that this restriction should be withdrawn, and that, as a matter of expediency, these marriages should be legalized. This House, by a small majority, had sanctioned the principle of the Bill; and, under those circumstances, he thought it would be invidious, and even vindictive, to carry on the controversy to the extent which was proposed by his noble Friend (Earl Beauchamp). If the suggestion of his noble and learned Friend the Lord Chancellor) was adopted, if his criticism was fairly met, and a distinct clause were brought forward for the purpose of legitimizing the children of these marriages, he would be glad to support it; but, if the only alternative were the Amendment before the House, he should be bound to oppose it.
LORD HOUGHTON, in opposing the Amendment, said, he wished to draw their Lordships' attention to the circumstance, that the two clauses of which Lord Lyndhurst's Act of 1835 consisted absolutely contradicted each other as regarded their principle. Under that Statute, marriages of this kind contracted before a specified date were valid; but, if contracted after that date, they were absolutely void. If these provisions were not contradictory, he did not know what contradiction meant; and he thought it was not to be wondered at that men had not regarded as a serious offence, the violation of an Act of Parliament which enacted such monstrous legislation. He objected to the idea that people should be regarded and treated as criminals for what only amounted to an act of ille- 909 gality. It would be unjust, in the highest degree, that many thousands of innocent persons—he believed something like 100,000 —should be stigmatized in the way suggested by the promoters of the Amendment for no act of theirs, but for that of their parents. He would further point out that, if the retrospective clause were not permitted to pass, it would only augment the complication existing between Great Britain and the Colonies on this question. As a rule, the lex loci prevailed as to marriage; and it was thought that it would be a sufficient protection in the case of marriages contracted elsewhere than in this country with a deceased wife's sister. But the decision in "Brooke v. Brooke" proved that that expectation was a delusion. He should certainly vote against the Amendment; and he trusted their Lordships would, by passing the Bill, confirm the abrogation of the former monstrous law—that most contradictory enactment.
THE ARCHBISHOP OF CANTERBURYsaid, it was with regret that he should speak, and with a sense of much responsibility in doing so; but he felt compelled to avow that he differed from some of those with whom he desired to act, and whom he recognized as having been entirely on the side of morality, the Church, and religion. He could not vote for the Amendment, although he felt that there was much force in the objections urged against the clause, as it stood, by the noble and learned Earl on the Woolsack. He (the Archbishop of Canterbury) recognized the fearful blot which, it had been pointed out, there would be in the Bill if the Amendment were not carried. The clause did not appear to him to be more retrospective than was the whole of the Bill. The parents had had their offences condoned in such a manner that they could place themselves in the positions of man and wife; but the great difficulty to him, as regarded the Amendment was, that the only people who would be injuriously affected by it would be those particular children who were born within a particular number of years. The parents might set themselves straight by marriage, and all their subsequent children would be legitimate, whilst the earlier born children would be for ever illegitimate. He could not look upon the condition of these children as a matter 910 of mere sentiment; it would be an unjust one if the Amendment were carried. It seemed to him to be a condition which, above all, called for their charitable consideration, and particularly for the charity of the Church. Therefore, although he most deeply lamented the passing of this Bill, yet, looking at the matter from the position of the Church, and considering the advice the Church ought to tender to the State, he held it was plainly the duty of those who brought in the Bill to take care of the children, not indeed by the words as they stood, but by some careful provision. It was not, he thought, right that they, and only they, should be left under punishment for the marriages already contracted.
§ EARL CAIRNSsaid, that be was compelled to take the great liberty of setting the noble Lord opposite (Lord Houghton) right. The noble Lord was mistaken in supposing that Lord Lyndhurst's Act made valid all those marriages which had taken place up to the date of the Act. That House and the Ecclesiastical Courts had decided otherwise. There was not a word in the Act itself—although there was in the title, which, as was well known, was no part of an Act—about making marriages valid. All that the Act did was to make a sort of Statute of Limitations to prevent the action of the Ecclesiastical Courts being invoked in order to make these marriages invalid. He also took exception to the suggestion of the noble Duke opposite (the Duke of Argyll)—namely, that if this Amendment wore passed, they would place English children in a worse position than those born of Scotch parents. He (Earl Cairns) would not like to speak with any positiveness on the Scottish law; but his impression was that, while it was certainly true that Scotch law legitimated children whose parents married subsequently to their birth, that only applied partially; for it was an essential element in the Scottish Law of Legitimacy that it only took effect in cases where the parents might legally have been married to each other at the time of the birth. No solution had, in his view, been proposed to the question proposed by his noble and learned Friend (the Lord Chancellor); and it was absurd to propose, as was done by the Bill, to declare valid ab initio those very mar- 911 riages which, for the last 40 years, the law had already pronounced to be invalid. What was required was a clause providing that these children, the fruit of marriages with a deceased wife's sister, should be held to have the status of legitimate children. He would have no objection to an Amendment, which it would be the duty of the noble Earl (the Earl of Dalhousie) to propose, in case the present Amendment were carried, conferring upon the children of those past marriages the full status of legitimate children. Having said so much, he should certainly support the Amend-meat of his noble Friend (Earl Beauchamp).
THE BISHOP OF OXFORDsaid, that the noble Duke (the Duke of Argyll) had urged that there was something vindictive in the Amendment. He (the Bishop of Oxford), however, must say that he should be very sorry to bring any such feeling into the subject. Indeed, he was very tender of the feelings of children born of such marriages as these, and not only of them, but of all illegitimate children, for he felt that they were, as things now stood, grievously treated. He was, therefore, always disposed to be tender towards them, and he wished something could be done—he feared that it could not be done by law—to bring home their sins to the hearts of the profligates who were the cause of illegitimate children. But he saw no reason why he should be more tender to this class of illegitimate children than to any other. It was said that there wore about 100,000 of them; but when they were asked to consider the interests of these children, then he remembered that there were greater interests than theirs. There were the interests of the whole community, which they were bound to consider. The interests of the whole community were, that marriage should be sacred, and that no expectation should be held out to the community that they might break the Law of Marriage, and then go to Parliament, and claim that they might have their marriage declared to be valid, and their children legitimate. That would be the result if the retrospective character of the Bill were agreed to. There could surely be no greater objection to a man's marriage with his wife's niece, than with his wife's sister; and yet, if those who had contracted the 912 former marriages came to their Lordships' House to have them legalized, what would be the answer? Indeed, they had a stronger case than the advocates of the Bill, for the affinity in the former case was more distant by one degree. What would be the consequence of the passing of the Bill? They would have a Marriage Law Amendment Bill introduced Session after Session, until they had gone through all the marriages within the prohibited degrees. That was not a very pleasant prospect, or one to which he could look forward with equanimity. The fact was, that it seemed to him that this was a Private Bill, and that it dealt with a subject which had far better be honestly dealt with by a general measure. It was a Bill for the benefit of a certain number of persons, and, as a Private Bill, it would be thoroughly honest. He felt with all his heart for the children who were the issue of these quasi-marriages; but he felt still more for the community at large. As a public measure, this Bill did not contain the necessary element of honesty, inasmuch as it was not fair to all, and he had to complain that during the debate of last week, the noble Earl in charge of the Bill (the Earl of Dalhousie) had made no answer to the speeches made against it. The trouble which their Lordships were about to bring upon themselves in the future by passing this measure was greater than they had any idea of. He would advise their Lordships to reject this retrospective clause altogether, and to wait until an honest Bill, legalizing the issue of all these irregular marriages was brought in. If such a Bill were passed, he was not sure that he should vote against a retrospective clause of this kind.
THE BISHOP OF CARLISLEsaid, that he agreed with the most rev. Primate (the Archbishop of Canterbury) rather than with the right rev. Prelate who had just spoken (the Bishop of Oxford) on the point under discussion. The speech of the most rev. Primate was full of a feeling of kindness towards the innocent children, who were the issue of these irregular marriages; whereas that of the right rev. Prelate was one directed against the principle of the Bill, but it did not affect the point now before their Lordships. If ever their Lordships were so misguided and misled as to pass such 913 a measure as that indicated by the right rev. Prelate, to render valid irregular marriages of all descriptions, he hoped that they would be prepared to render legitimate the innocent children of such unions. The question before their Lordships, on the present occasion, was whether, when they were about to relieve a class of persons, who had sinned against the law by contracting a certain class of irregular marriages, from the consequences of their violation of the law, they should not go a step further and relieve those who were perfectly innocent. The House could not reasonably reject such a proposal. He trusted that the noble Earl who had moved the Amendment (Earl Beauchamp) would accept the suggestion that had been made, and would thus save the House the trouble of dividing.
§ VISCOUNT CRANBROOKsaid, he differed entirely from the right rev. Prelate who had just sat down (the Bishop of Carlisle). He (Viscount Cranbrook) maintained that the question of the legitimacy or illegitimacy of certain children was not the matter under consideration. The question was, whether they were to sanction a breach of the law? If the Amendment was negatived, it would set the seal upon every breach of the law that had taken place since the year 1835. The question before the House was, whether they were to sanction a deliberate breach of the law by those who had contracted these so-called marriages with their eyes open, as laid down by the noble and learned Earl upon the Woolsack? To do so would be to place those persons on the same footing with those —and he was glad to know there were many such—who had obeyed the law of the land and had waited until Parliament thought fit to change it. If they desired to protect the children of these marriages, for whom he (Viscount Cran-brook) felt as strongly as anyone, let it be done by direct legislation, and not in this general way.
§ LORD BRABOURNEsaid, he had been fighting in the van of this battle for many years, but had never yet addressed their Lordships, and would not now have risen but for one or two speeches which had been delivered. The debate had taken a turn which certainly caused him some surprise. His noble Friend (Earl Beauchamp), who had moved the Amendment, had stated that 914 all children were innocent. This was a strange repudiation of the doctrine of original sin to come from so staunch a champion of the Church.
§ EARL BEAUCHAMPsaid, he expressly stated that he had not spoken as a theologian.
§ LORD BRABOURNEsaid, his noble Friend might not have spoken as a theologian; but he had certainly enunciated a doctrine which would hardly meet with support from the Episcopal Bench. He (Lord Brabourne) wished to give the most emphatic contradiction to the assertion that this Bill was the outcome of an agitation which had been set on foot by wealthy persons. When he heard that allegation so constantly made, and the harsh terms which were applied to the advocates of the Bill, answered as they were by imputations of bigotry and intolerance upon its opponents, the lesson conveyed to his mind was that there was no question upon which it was more possible for men to feel conscientiously and strongly on one side and on the other; and, consequently, there never was a question demanding a greater exercise of Christian charity, and, above all, the charity of the Church. He did not like to be told, even by a Chief of his Church, that this was not an honest Bill; and he believed that the vote he should 'give on this matter was as much in the interests of the Church as any vote he ever gave. He could not help recalling the recent utterances of a right rev. Prelate (the Bishop of Peterborough) upon another question, when he had told their Lordships that if the union between Church and State was to continue, it must be carried out fairly and honestly on both sides, and that the State ought to assist, and not to impede, the Church, when she attempted to reform herself. He applied those words of the right rev. Prelate to the present question, and said that when the State tried to assimilate her Marriage Laws to that of other countries, the Representatives of the Church should assist, and not impede her. And he (Lord Brabourne) considered that one of the worst days for the Church which had occurred for many years—as bad as that which witnessed the passing of the Public Worship Regulation Bill, which he had done his utmost to oppose—was the day when a majority of lay Peers prepared to 915 agree to this relaxation of the law was converted into a minority by the unanimous vote of the Bishops. 'The more he (Lord Brabourne) wished the Church to become a mighty engine for the improvement of the moral and religious condition of the people, the more he desired to see her influence extended among the masses, the more earnestly did he deprecate the state of things in which a civil disability could be pointed out as the result of her teaching and influence, and that, too, a disability which was inflicted as a punishment for an act which was approved and sanctioned by one - half of the Christian world, and by every other Protestant country. Nor must it be forgotten that this was not the case of the Church punishing her own contumacious children for disobedience to her commands. In this free country, men had a right to choose their own religion; and this breach of Church discipline was punished upon hundreds and thousands of people who were not amenable to the discipline nor subject to the control of the Church. He (Lord Brabourne) had presented a Petition signed by 7,422 Nonconformist ministers, declaring their belief that the measure ought to be passed. A meeting of 44 Baptist Churches had expressed the same view very strongly. It was due from their Lordships, the majority of whom belonged to the Church, that they should be most charitable to those who did not. He had no particular love for these marriages himself; but when the great majority of Christian nations—he believed every other Protestant nation—sanctioned these marriages, it was a little too bad that in England — the boasted home of civil and religious liberty—we should continue to enforce a heavy penalty upon those who contracted them. He hoped, therefore, the House would not accept the Amendment of his noble Friend, and, if it were rejected, that it would be possible to amend the clause in. accordance with some of the suggestions of the Lord Chancellor.
THE EARL OF DALHOUSIEsaid, he had listened with the greatest respect to the speeches which had been made in various parts of the House. There was, however, one speech which he heard with the greatest pain, so different it was in tone and feeling from everything he had ever heard before come from the 916 right rev. Bench. [Cries of "Oh!"] The right rev. Prelate (the Bishop of Oxford) complained that during the debate of last week, he (the Earl of Dalhousie), as having charge of the Bill, had made no reply to the speeches made against it. Well, he was an old enough Member of their Lordship's House to know that, when the clock pointed to half-past 7, it would task the powers of a greater orator than himself to interest their Lordships. He was not sure that the right rev. Prelate had not been visited by a similar feeling, for the speech they had just heard had evidently been intended for the second reading of the Bill, and not composed for the purposes of Committee. The Bill was a fair and honest Public Bill, so far as it went, and he knew all that related to it. The measure, however, which it would in part undo was, in reality, first introduced as a Private Bill under the guise of a public one—he referred to the Act of Lord Lyndhurst. He had listened to with great attention, and fully accepted, the criticisms of the noble and learned Earl upon the Woolsack; at the same time, he would ask the House to reject the Amendment of the noble Earl opposite (Earl Beauchamp). With regard to the question of the noble and learned Earl on the Woolsack, whether he intended to bring forward Bills dealing with all the other degrees of affinity, and, in fact, to take up the whole question of the Law of Marriage, and deal with it on a logical principle, he had to reply that he had no such ambition or intention. The Bill simply was intended to remove a present grievance, with as little disturbance as possible to the existing Marriage Law. But he asked them to reject the Amendment on this ground. He considered that, by the vote of last week, the House practically declared that Lord Lyndhurst's Act, so far as it related to marriage with a deceased wife's sister, was a mistake, and that the hardship and suffering it had caused were unnecessary; and, that being so, that Act had committed a most grievous wrong, and though the whole of that wrong could not be undone, it was desirable that they should undo as much as possible. He therefore thought the retrospective operation of the measure should be preserved. Those who had inherited property, honours, or titles, or formed expectations which might be re- 917 garded as in the nature of vested rights, would in no way be touched by the measure. It would, however, be an unnecessary and a wickedly cruel hardship, so far as children were concerned, not to make this Bill retrospective in regard to their legitimacy. That retrospective principle he considered, though not absolutely essential, yet as a very important part of the Bill; and though he certainly would not drop the Bill, if the noble Earl's (Earl Beauchamp's) Amendment was carried, he would, nevertheless, ask the House to reject that Amendment.
§ THE MARQUESS OF SALISBURYsaid, he thought the speech of the noble Earl opposite (the Earl of Dalhousie) was not so clear for the guidance of the House as their Lordships could wish on so important an issue as this. It was desirable, if it could be avoided, not to come to a division, as it might further excite animosities, which all would deplore in reference to a measure of this kind; and if it were possible to avoid a division, without losing the main objects which he (the Marquess of Salisbury) and his noble Friends had in view, of course they would be glad to refrain from dividing the House. He understood that their Lordships were quite agreed that the children ought not to suffer any damage in honour or in property in consequence of the illegal marriage of their parents; but he also understood that the noble Earl in charge of the Bill accepted the criticisms of the noble and leaned Earl on the Woolsack, in which case the noble Earl must have assented to the great evil of Parliament formally consecrating a defiance of its own decrees. The noble Earl had, therefore, left the House in considerable doubt as to the real course he meant to adopt—whether the words in the clause were to stand or not, or whether the Amendment of the noble and learned Earl would be accepted. If the noble Earl insisted permanently upon the retention of these words as they stood in the Bill, of course the supporters of the Amendment would have no option but to record their views on the subject; but if he would promise to take the words into consideration, with a view, on the one hand, of meeting the criticisms of the noble and learned Earl on the Woolsack, and, on the other, of protecting the honour, property, and rights of the children who were issue of these marriages, 918 the House might then reasonably avoid a division.
THE EARL OF DALHOUSIEsaid, he was greatly obliged to the noble Marquess opposite (the Marquess of Salisbury), who had expressed so much better than he (the Earl of Dalhousie) had done himself the course he intended to adopt. He thought he had said he accepted the Amendment, as well as the criticisms of the noble and learned Earl on the Woolsack. It was sufficient for his purpose if, after the passing of the Act, children of marriages of a deceased wife's sister which had already been contracted were declared legitimate. He would undertake to bring up, at the next stage of the Bill, words which would meet that Amendment; but he must still ask the House to reject the Amendment of the noble Earl opposite (Earl Beauchamp).
§ EARL BEAUCHAMPsaid, that, under the circumstances, he would ask leave to withdraw his Amendment, but upon the understanding that the words of the Amendment, which the noble Earl opposite (the Earl of Dalhousie) was subsequently to bring up, would cover the objections which he (Earl Beauchamp) entertained to the clause; if they did not he should exercise his right to urge his objection at a future stage of the Bill.
THE DUKE OF RICHMOND AND GORDONsaid, he should like to have it more distinctly from the noble Earl who had charge of the Bill (the Earl of Dalhousie) whether he was prepared to accept the compromise suggested by the noble and learned Earl (the Lord Chancellor)? If they got an assurance from the noble Earl that he would give effect to the criticisms of the noble and learned Earl, then it might be possible to avoid a division. Otherwise, he should be very much inclined to ask their Lordships to divide on the Amendment.
§ EARL GRANVILLEsaid, he thought the matter was clearly understood; though, if they went to a division, the Amendment would most probably be rejected. In his opinion, his noble Friend (the Earl of Dalhousie) had fully met the views of his noble and learned Friend (the Lord Chancellor).
THE LORD CHANCELLORsaid, he thought that the noble Earl behind him (the Earl of Dalhousie) had said all that he could be reasonably expected 919 to say at the present stage of the Bill. He (the Lord Chancellor) had indicated the principle in the Bill, as now framed, which he thought politically dangerous, and the direction which he desired to see followed in order to remedy it. If the Amendments which the noble Earl would propose at a subsequent stage were disapproved by noble Lords opposite, they would not be bound to accept them on account of what had now taken place.
§ EARL BEAUCHAMPsaid, he did not want to go to a division if it could be avoided; therefore, he would withdraw his Amendment, reserving his right to move it upon the Report, or on the third reading of the Bill.
§ Amendment (by leave of the Committee) withdrawn.
§ On Question? "That Clause 1 stand part of the Bill."
THE DUKE OF BUCCLEUCHasked whether the noble Earl in charge of the Bill (the Earl of Dalhousie) intended still to retain in the clause the mention of Scotland, seeing that Lord Lyudhurst's Act did not apply to Scotland?
THE EARL OF DALHOUSIEsaid, that the Amendment which had stood in his name would have left out Scotland altogether.
THE DUKE OF BUCCLEUCHsaid, that if Lord Lyndhurst's Act, against which this Bill was directed, were referred to, it would be found that Scot-laud was expressly excluded from it.
THE DUKE OF ARGYLLsaid, he wished to know whether the noble Duke opposite desired that Scotland should be excluded altogether from the Bill, so that in Scotland it should not be legal, and in England it should be legal, to marry a deceased wife's sister? That would be a very unsatisfactory state of the law.
THE DUKE OF BUCCLEUCHsaid, that he wished to leave the ancient law of Scotland as it was at present.
§ EARL GRANVILLEDoes the noble Duke move any Amendment?
THE DUKE OF ARGYLLsaid, that there were already serious differences between the Marriage Laws of England and Scotland. In his opinion, the law 920 of Scotland was superior to that of England in several particulars. For example, he approved the doctrine of legi-timatio per subsequens matrimonium. He, however, thought the Bill ought to be extended to Scotland, as it was inexpedient to increase the existing differences in the Law of Marriage as between the two countries, so closely united as they were in all other matters. He could not conceive that the House of Commons would accept a Bill of this kind which excluded Scotland altogether.
THE MARQUESS OF LOTHIANsaid, he wished to point out that the Bill, as applying to England, only referred to civil marriages; but that, if passed as it stood, it would affect all marriages in Scotland, civil and religious.
LORD BALFOURsaid, he ventured to think it would be absolutely necessary to leave the words as they stood in the Bill; at any rate, to include Scotland within the scope of the Bill. As he understood it, the reason of the difference in the wording with reference to England and Scotland was owing to a difference in Ecclesiastical Law. But if these marriages were to be legalized at all, which he certainly would deeply regret, it seemed to him a somewhat extraordinary proposal to make a difference between the law of England and Scotland on the point.
THE BISHOP OF OXFORDsaid, that with reference to some criticisms which had been made on his speech by the noble Earl (the Earl of Dalhousie), he wished to disclaim any intention of discussing the question in a spirit of bitterness, when lie used the word "honest." He had employed that term in a strictly Parliamentary sense—that was, when a person did not give an answer to a question fairly put, he did not think that was honest. Bitterness was far from his feeling.
§ Question put, and agreed to.
§ Clause agreed to, and ordered to stand part of the Bill.
§ Clause 2 (Excepted cases); and Clause 3 (Provision for saving rights), agreed to, without amendment, and ordered to stand part of the Bill.
THE EARL OF DALHOUSIE, in rising to move the following new Clause:— 921
No proceeding, ecclesiastical or civil, against any clerk in holy orders, after the passing of this Act, shall be affected by anything in this Act contained,said, he had not taken up this Bill with any intention of attacking the Church, neither had he any intention of allowing it to be made a weapon in the hands of others for that purpose. The object of the clause was to prevent interference from the outside with the discipline of the Church, and to maintain the law regulating legal proceedings against ministers of religion in its present form. There were many clergymen, no doubt, who would object to celebrate these marriages; but there were many also who would not object. A movement had been set on foot, having for its object the organization of an association of clergymen who should have no objection to marry persons wishing to contract such marriages, or to allow them to receive the Holy Communion. He hoped in that way parties contracting these marriages would not be obliged to risk a refusal by addressing themselves to clergymen who might be unwilling to perform the ceremony. Any action against a clergyman maintainable now would be maintainable after the passing of the Act.Amendment moved,
After Clause 3, to insert as a new Clause:—"No proceeding, ecclesiastical or civil, against any clerk in holy orders, after the passsing of this Act, shall be affected by anything in this Act contained."—(The Earl of Dalhousie.)
EARLY CAIRNSsaid, he fully agreed with the object of the clause, and would suggest that the object of the noble Earl opposite (the Earl of Dalhousie) would be better carried out if the clause were made to run as follows:—
No proceeding, ecclesiastical, criminal, or civil, against any clerk in holy orders, after the passing of this Act, for or in respect of any act done or omitted to be done by such clerk or other minister of religion in the performance of the duties of his office, shall be affected by any change in the law in this Act contained.He thought the alteration as proposed would bring out more clearly the noble Earl's meaning.
LORD DENMANsaid, that he could have no possible objection to Clause 3, because it would leave the law exactly as it was at present.
THE MARQUESS OF LOTHIANmoved to further amend the clause, by inserting, after "clerk in holy orders," the words "or other minister of religion," so as to protect ministers of the Church of Scotland in the same way.
LORD BALFOURsaid, the Amendment of the noble Marquess (the Marquess of Lothian) was entirely unnecessary as regarded Scotland; because he (Lord Balfour) did not think any action ministers of the Church there might take in such a matter could be brought under the view of' the Civil Courts of Scotland.
THE EARL OF DALHOUSIEsaid, that, as the Amendment would do no harm, he was perfectly willing to accept it. If the Amendment of the noble and learned Earl opposite (Earl Cairns) made his (the Earl of Dalhousie's) own Amendment more clear, he should also gladly accept it.
§ Amendment (The Marquess of Lothian) agreed to.
§ Amendment (Earl Cairns) agreed to.
§ New Clause, as amended, agreed to, and ordered to stand part of the Bill.
§
On the Motion of The Lord STANLEY of ALDERLEY, the following was inserted as a new Clause, after the one just added:—
Provided also that nothing in this Act shall remove wives' sisters from the number of those persons adultery with whom constitutes a right on the part of wives to sue for divorce, under the Divorce Act of 1857.
§ Clause 4 (Short title) agreed to, and ordered to stand part of the Bill.
§ House resumed.
§ Report of Amendments to be received on Monday next; Bill to be printed as amended. (No. 112.)