HL Deb 16 May 1889 vol 336 cc221-3

The following notice stood on the Paper, in the name of the Earl of Milltown: To call attention to the decision of the majority of the Judges in the Court for the Consideration of Crown Cases Reserved in the case of 'The Queen against Polson,' which appears to make a material alteration in the law of bigamy as it has hitherto been understood.


Before the noble Lord puts the question of which he has given notice, I would venture to appeal to him and to suggest that the subject matter of this discussion is not one which is altogether proper to your Lordships' House. The matter to which the noble Lord directs attention is a decision of Her Majesty's Judges—divided in opinion—upon a certain state of the Criminal Law. I am quite sure that my noble and learned Friend does not mean to impeach the Judgment of the learned Judges by a discussion à propos of nothing, but the very terms of his Motion are, in truth, a challenge of the correctness of the decision, because he asks if a serious alteration has not been made in the law by that decision. I must say I cannot conceive anything more inconvenient than a discussion in this House, in which a decision of Her Majesty's Judges is to be called in question. That it is quite possible that different opinions may be held upon the matter, is sufficiently evinced by the fact that nine Judges were opposed to five. But what I earnestly deprecate is a discussion upon the subject of their decision. It may be quite right to discuss what the law is, and, if my noble Friend is dissatisfied with the law as it is held by the Judges to be, there is the obvious mode of remedying it by bringing in a Bill upon the subject, when the whole policy of the law can be properly discussed. But I do trust that he will not initiate a discussion in which the question necessarily must be whether a decision of Her Majesty's Judges is right or wrong.


I quite see the force of what has fallen from my noble and learned Friend on the Woolsack. The fact is, that it seemed to me that Her Majesty's Judges had, in this instance, somewhat exceeded their functions by deciding not what the intention of the Legislature had been, but what, according to their Lordships' judgment, the intention of the Legislature ought to have been. No doubt we must take what they have decided as being now, and always having been, the law of the land. We have, fortunately or unfortunately, no Court of Criminal Appeal in this country, and what has been determined by the Court for Consideration of Crown Cases Reserved must of course, pending legis- lation, be taken to be the law of the land. At the same time, I cannot help calling attention to what is the effect of their Lordships' decision. The limit of seven years within which it has hitherto been generally considered extremely unsafe for persons to re-marry without certain and sure proof of the death of their husband or wife, has been practically abrogated; and, if the husband or wife bonâ fide believes in the death of his or her spouse—or rather, if he or she can persuade a jury to take that view—it appears, according to the law as now established, that no limit whatever is placed upon the period within which they may re-marry.