Lords Sitting of 16 April 1891

REPRESENTATIVE PEERS FOR IRELAND.
Lord Teignmouth(Claim to vote for Representative Peers for Ireland)— Ordered and directed, That a Certificate be sent by the Clerk of the Parliaments to the Clerk of the Crown in Ireland, stating that the Lord Chancellor of the United Kingdom has reported to the House of Lords that the right of the Lord Teignmouth to vote at the elections of Representative Peers for Ireland has been established to the satisfaction of him the said Lord Chancellor; and that the House of Lords has ordered such Report to be sent to the said Clerk of the Crown in Ireland: And it is hereby also Ordered, That the said Report of the said Lord Chancellor be sent to the Clerk of the Crown in Ireland.
The Lord Ebury—Took the Oath.

PROTECTION OF MARRIED WOMEN.

  QUESTION-OBSERVATIONS.
  THE EARL OF WINCHILSEA: I beg to ask the Lord Chancellor a question, of which I have given him private notice—whether his attention has been called to statements by certain Magistrates that, in consequence of the decision in what is known as the Clitheroe abduction case, they will no longer make Separation Orders, or otherwise interfere for the protection of married women; whether the law as laid down in that case has really such an effect as those statements seem to import; and, if so, whether the Government will propose legislation on the subject?
  THE LORD CHANCELLOR: In reply to the noble Lord's questions, I beg to say that I have not myself seen the statements of Magistrates which he mentions; and I should be very unwilling to think any such reports could be accurate, and that any Magistrates could have given utterance to the statements attributed to them. Nothing, to my mind, could be more inappropriate or inconsistent with the demeanour which
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  becomes persons in judicial positions than to make general statements beforehand as to their views on classes of cases which may come before them; and I should be reluctant to attribute to any Magistrate, on the authority of a newspaper only, a view of the law laid down in the case referred to so erroneous as almost to appear perverse. The Court of Appeal released, by their order, a person whom they held to be in unlawful custody. As to legislation, therefore, as the noble Lord sees, there is only one point to be dealt with—whether or not a man may imprison his wife. I am sure that the Government will not propose a Bill to enable a man to imprison his wife, and I should not myself personally be able to give such a measure my support. If they did bring in such a Bill, the facts published in the recent application for a habeas corpus would not, I think, be likely to assist them in passing it.
  LORD ESHER: My Lords, as I was a party to the judgment, which seems to have been more misunderstood than any judgment I recollect, I, perhaps, may be excused from making an observation. It was urged before the Court of Appeal that by the law of England a husband may beat his wife with a stick no bigger than his thumb if she refuses to obey him, and that if a wife refused her husband conjugal rights, whatever that phrase may mean, which I have never been able to make out, he may imprison her until she restores him conjugal rights, or satisfies him that she will. All that the Court of Appeal decided was that a husband cannot by the law of England, if the wife objects, lawfully do either of those things. Those intelligent people who have declared that the judgment is wrong must be prepared to maintain the converse, namely, that if a wife disobeys her husband he may lawfully beat her; and if she refuses him a restitution of conjugal rights he may imprison her, as it was urged, in the cellar or in the cupboard, or, if the house is large, in the house by locking her in it and blocking the windows. I thought, and still think, that the law does not allow these things. The intelligent objectors say that by so holding we made a decree for the restitution of conjugal rights a farce, so that it is a farce to grant it; and that a Magistrate

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  ought not, or even cannot, give a protection order to a wife. They may rest assured that the Court did not hold any such nonsense. If there is a difficulty in enforcing a decree of restitution of conjugal rights it is caused by the Legislature, which lately took from the Divorce Court the power of imprisoning a wife for contempt for refusing to obey such a decree. But—perhaps it may appear absurd to the intelligent critics—we did not think that, by taking away from the Court a power which the Legislature thought was oppressive and unnecessary, the Legislature meant to give to the husband the power of perpetual imprisonment which it took away from the Court. We thought, and I still think, that the Judge of the Divorce Court may grant a decree, and the Magistrates may make an order, and that they need not attribute to the Court of Appeal decisions which, if they had read the Judgment, they would probably have seen that the Court of Appeal did not arrive at. I cannot see that the critics have reason to find fault with the decision of the Court of Appeal, which, begging their pardon, I venture to think was perfectly right.

MARRIAGE ACTS AMENDMENT BILL [H.I,.]—(No. 79.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE BISHOP OF LONDON: My Lords, this Bill has been introduced after a great deal of consideration for the purpose of dealing with certain troubles and difficulties in the working of the present law of marriage. The complaints which I get in very great numbers from the clergy of this diocese, and which I have heard also from the clergy of other dioceses, are that they are put into great difficulties by the rules which they have to obey. They are obliged, in many cases, to make inquiries, which in the present state of things it is practically almost impossible for them to make, and they are subject to exceedingly severe penalties under the Acts bearing upon the subject if they cannot prove that they have made sufficient inquiry in any case where the law has been broken. It is quite true that the Courts in their interpretation of the Acts
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  have always, as they naturally would, done their best to protect the clergy where there has been no intention to disobey the law; but still, for all that, the clergy are placed in a very difficult position; and in certain cases of breach of the law, in consequence of the difficulties that they find in obeying its provisions, are liable to 14 years' transportation for celebrating marriages where, as far as they could see, everything was quite right, but where, in reality, some serious impediment existed. The banns are now put in three Sundays before the marriage, and those who put them in are required to state their residence to be in the clergyman's parish. In the vast number of cases the residence is merely nominal, and the clergy have very little chance of being able to ascertain whether it is real or not. Practically the law is evaded in hundreds and hundreds of cases, and, meanwhile, as matters stand, the clergy are often involved in serious trouble and perplexity. Besides this, there is constant discontent on the part of the laity at the restraints which are put upon them at present in the matter of choosing in what churches they shall be married. They very often feel that those restraints are very unreasonable indeed. A man, for instance, living in a district parish in London, and probably not knowing exactly what is the boundary of his own parish, but worshipping at some church in the district near him, not within his own parish, finds to his great surprise that he is not allowed to marry in the church where he has always worshipped. As far as he can see there is no reason whatever why he should not be married in the church where he usually worships and where he is generally known, or why he should be compelled to be married in some church where he does not usually attend, and where nobody knows anything about him. The laity further complain that their right of being married in the Mother Church of a large parish which has been divided has now been taken away, and they cannot get married in the Mother Church where their fathers and mothers have been married before them. They look upon these things as great hardships, and the hardships are felt the more because they see no particular public good that is done by insisting upon,

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  and no necessity for, such restraints. Though the matters which are the subject of those complaints may not seem to some persons to be of any very great consequence, yet they do cause a great deal of friction, and much annoyance to the clergy. Undoubtedly these restraints cause exceeding discomfort, because it is very hard for any clergyman when he really desires to obey the law to be quite sure that he sees exactly how the law is to be obeyed. Besides those, there are cases which need special provision, namely, those where persons are not living in any parish at all, but in boats upon canals and rivers, or on board ship; and it is desirable that their cases should be dealt with upon some regular system. It is also felt to be a great evil that the marriage fees at present required in the churches should be so much larger than those which are charged in a Registrar's office. The result of that is that there is a growing tendency towards giving up marriage in the church, and substituting marriage at a Registrar's office for the solemn ceremony which Christians ought certainly to undergo upon the celebration of their marriage. The Bill proposes to deal with all these matters. It has been very carefully considered, and it is hoped that the provisions of the Bill will remove a great deal of the present trouble, and make the law of marriage, as far as marriage in church is concerned, very much clearer than it was before. I need not say anything about Sections 1, 2, and 3, which practically only repeat the present law; but the 4th section empowers parties to be married in any church of the diocese in which the banns have been published, and does not confine the marriage to the precise church in which the publication of the banns has been made. It thus gives a very large extension of liberty. There does not appear in these days of rapid communication to be any reason for restricting the marriage to the place where the banns have been published, and certainly anything which allows greater freedom in this respect will be a boon to the laity, and will I think tend to encourage marriages taking place in church very much more than hitherto. In the 5th clause it is proposed to deal with seamen by recognising for this purpose a church or chapel in the parish in which the man
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  usually lives, that it shall be treated as if he was there living, even though he may not be residing in the place at the time when the banns are published. But it is the 6th clause which most effectually protects the clergyman, because he will have the power of requiring from the parties desiring to be married a declaration as to various particulars similar to that which is now required at the Registrar's office. There does not seem to be any reason why the Registrar should, and the clergyman should not, be allowed to ask questions which have to be answered on pain of punishment. If a man is to be married at a Registrar's office he is required to answer those questions, and there seems to be no reason why, if he is to be married in a church, it should be left to the clergyman to find out, if he possibly can, what the law requires. In a large number of cases it is simply impossible for him to do so, and this section provides that he shall be put on the same footing as a. Registrar. Sections 7, 8, 9, 10, and 11 provide for marriages by licence instead of by banns. There is nothing very peculiar in them. They confer the same liberty upon the persons desiring to be married as is given when the marriage is to be by banns. In the case of sear men the fact that a man is on board his ship is to be recognised as if he were residing in the diocese where he gets the licence; and if he comes on shore to be married he can get the licence exactly as if he had been all the time living in the parish. There does not seem to be any reason why be should not have that liberty granted to him. There are special provisions in Clauses 11 and 12 which I do not think I need speak further about, with regard to the sending of notices of the marriage of persons residing in canal or river boats-By Clause 13 it is proposed to effect great changes in the fees for performing marriages by making them the same for marriages in church as in the Registrar's office. This is, of course, a considerable change, and it is likely that in many cases the clergy may lose something by it. The 14th is a mere protective clause. The 15th is more important, inasmuch as it puts a false statement made to a clergyman on the same level as a false statement or declaration made in the Registrar's office.

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  The other clauses are nothing more than formal or consequential. This Bill, it will be seen at once, seriously affects the clergy, and therefore it is right to say that it has been very carefully considered, both by the clergy in the Diocese of London generally, who are the most seriously affected by it, and also by the Convocation of the Province of Canterbury. It has also been considered by the Convocation of the Province of York. In the diocese of London the clergy—the vast majority, about nine to one—are strongly in favour of fixing the marriage fees at the same rate throughout for marriages in church as in the Registrar's office, and the Lower House of Convocation of the Province of Canterbury have accepted the proposal, though not unanimously, yet by a very large majority indeed. So that I think I may assure the House that I am representing the wishes of the clergy in proposing that such a change as this should be made. The whole Bill, I may say, has the approval of both Houses of Convocation of the Province, and I submit it therefore to the House, not merely as a Bill of my own, but as -one which is, speaking generally, backed up by all the authority of the Church. I do not question that the measure may not require very careful consideration, and perhaps a good deal of amendment in Committee. A Bill of this sort is sure to require very careful revision, especially by lawyers, to put it in proper form, and it has not yet received perhaps that full consideration by lawyers which it ought to have before it is passed into an Act. Therefore I expect that in the Standing Committee, if it is referred to the Standing Committee, as I rather hope it will be, there will be a good deal of criticism on details, which, for my part, I shall very heartily welcome, because 1 think it is of the greatest importance that a measure of this sort should be made thoroughly workable. So far as it can be considered outside the House I think it has been fairly considered. It has been before the clergy, as I have explained, both in Convocation and generally all over England, and I may say that I have particularly brought it before the clergy of the diocese of London. It has been before them for two years, and therefore there can be no question that those who are most particularly concerned in the matter have had the fullest
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  opportunity of considering the effect of it. 1 now ask your Lordships to give the Bill a Second Reading.
  LORD GRIMTHORPE: My Lords,I quite agree with the main object of the Bill, and I have very little to say in the way of criticism of it here. As the right rev. Prelate says, there are details which will have to be attended to, and in Committee the lawyers may, as he says, be able to point out certain matters for which provision will have to be made, which even the two Convocations have not discovered. One of the objects aimed at by the Bill, which, indeed, the right rev. Prelate very properly put first, it is certainly desirable should be effected, and he might, I think, have gone a little further than be did when he said that people are unable to see the necessity for the present restriction or that any public good is done by it in regard to people being married in any church of the place where they live, because that difficulty was really never intended. The difficulty in people being married in any such church is generally considered to have arisen from a mistake in the Act of 18 & 19 Vict., commonly called Lord Blandford's Act, in which there was a provision that where a new parish was created it was to be an ecclesiastical one for all purposes; and that has been decided to cut off the connection with the old parish church completely. I have always heard that the authors of the Bill, and those who supported it, had no intention of so cutting off the new districts, and the people living within them, entirely from their old parish church. I happen to know that people do resent that very much, and that, whether they are in the habit of going to that parish church or not, they are very angry at it. I merely wished to add that as a supplement to what the right rev. Prelate has said. With regard to the publishing of banns, I may mention at once that the Bill seems to me very imperfect in that respect, unless it is intended that new Parliamentary rubrics should never be followed by those who have the printing of them. Looking at the Prayer Book, and the rubrics in it, one at the end of the Nicene Creed, and two others in the marriage service itself, they seem to have become very wrong. The original ones were entirely supplanted

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  by the Act of George IV., which is referred to here, and somehow or other the Queen's [printers, or somebody else, whoever may be responsible, took upon themselves to make new rubrics. And they were, at any rate, understood wrongly by the clergy for a long time, until a judicial decision was given upon them. Baron Alderson had to try a case in which those points were involved, and after he had pointed out where the clergy were wrong the practice became different. The old rubric after the Nicene Creed, which is referred to here, said that notices of banns and sundry other things were to be published then, and there was no provision for there being no morning service with that creed. Thereupon provision was made in the Act of George IV. that where there was no morning service banns should be published at the evening service after the Second Lesson, but the Universities and the Queen's Printer printed the new rubrics so ambiguously that that was not generally understood. Besides that, nobody had a legal right to alter them at all, even to accord with the Act. The question is whether We ought to allow the Bill to remain in the form in which it is now, leaving the same kind of practice to be gone through again. I cannot help thinking that we had better make the Bill complete, or at any rate give to the proper persons authority to make the rules correct. Of course we might make them so ourselves, but I think it would be better to give the proper authorities power to authorise new rubrics to be printed. When I mentioned that, I was answered as I knew I should be that the Convocation would insist that they only had a right to alter the rubrics. It is quite true that in 1662, when the whole Prayer Book was modified a very little from the previous one, the matter was referred to the Convocations to give their opinions upon it, but Parliament was not the least bound to accept them even as to doctrine or ritual, and a fortiori not on marriages. Nor did they make any material alteration from those rubrics of the second Prayer Book of Edward VI., until 1824. This claim of Convocation is an entirely new one. Parliament has never regarded it as right, and Parliament has altered every marriage rubric and canon
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  that has existed. But now, 60 years very nearly after the great Act of George IV., Convocations are waking up on the point, and putting in a claim to meddle with rubrics not affecting matters of Church ritual or anything of that kind, but about the purely lay matter of marriage. I call it a purely lay matter for this reason: Long ago, no less a person than Lord Hardwicke said in one of his decisions, that, although the laws affecting marriage are, in a sense, ecclesiastical, Convocations have never been allowed to meddle with them. In 1874 both Lord Salisbury and Lord Selborne on the Public Worship Regulation Bill laid down the same thing very emphatically, that Convocation has never been allowed to meddle with any matter of jurisdiction. Therefore, I say at once now, this is not a mere matter of detail to be dealt with in Committee. Assuming, then, that these rubrics are to be referred to somebody to amend, the question is who it should be. We are making the law, not the Convocations, who have nothing to do with it. But I think both your Lordships and the clergy will think that may well be left to the two Archbishops to do, with, of course, the consent of the Crown. Having said that, I turn to another object of the Bill. It is quite true, as the right rev. Prelate has said, and as great Judges have said, that clergymen might be subjected to-very considerable penalties if they did not happen to have made inquiries which every sensible man knows must be utterly futile and impossible; and if it is intended that clergymen should know whom they marry, it is of course desirable to give them the proper means of making the necessary inquiries. As the law stands at the present, less inquiry is required to be made in putting up banns than either for granting licences or for solemnising marriage at or from a Registrar's office. That is a matter which should be attended to. Certainly, I am in favour of modifying the declaration so as not to tempt persons to go and be married for the sake of cheapness in a Registrar's office, but there are two ways of doing that. Assuming it is right that the clergy-should know that the persons they are going to marry have a right to be married by them, it does not at all follow

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  that inquisitorial powers should be given to ask questions of no legal importance whatever. I think the man who drafted this Bill and its schedules must have been thinking of his catechism, for it directs the clergyman to begin with "What is your name?" Then the next is—not "Who gave you this name?" but—" Where do you reside in this parish?" It is not even "Do you reside in this parish?" That has been omitted. Why that omission was made I do not know; but if the thing is to be made homogenous the first question ought to be, "Do you reside in this parish; and if so, where?" I quite agree that if the clergy really are responsible for the residence of the parties, no doubt they ought to have the means of ascertaining it, or, at least, that the responsibility should be thrown on the parties themselves; but this Bill goes far beyond that. They are to ask, "How long have you resided there?" What business is that of the clergy? And it is not necessary because a man cannot get either a licence granted or banns put up without making a false declaration. Then the next question is—"What is your age?" Well, we have just been answering that question all of us for the Census, and I do not know why a lady should be obliged, under penalties for a misdemeanour, to put down a different age to that which she has put down in her Census paper. The Act of George IV., after a great deal of experience had been gained, entirely altered the canon upon that subject: the canon prohibited the clergy from marrying anybody under age; the Act of George IV., for reasons which I cannot investigate now, threw the onus the other way, and left parents to forbid the banns, I suppose because it was recognised that the old law was unsatisfactory. If the father and mother of a person under age choose to forbid the banns they can do so, though what follows in that case I do not know. People know that they can go to the parish clerk, and put down in the book "A. B." and "C. D." as they please, and if the banns are to be made a reality they ought to be made consistent. If you do not desire to frighten the people into the Registrar's offices for the purpose of getting married you ought not to put inquisitorial questions to them, such as 652
  "What is your age?" It must be remembered, too, that after a few years the reading of what may be called the Registrar's banns at a meeting of the Guardians of the poor was abolished, and so the Registrar's Office is a far more secret place than the Church, where banns are published before a large congregation. Then the next question is a very queer one to address to people—"Are you a blood relation?" What is that to the clergyman? And it is absurd, because everybody is a blood relation of everybody else. Assuming the clergy to be anxious to carry out the law, it is quite sufficient for them to ascertain that the persons coming to them to be married are not within the prohibited degrees, and I quite agree with the right rev. Prelate that the law ought to prescribe the means of ascertaining that. Curiously enough, there is provision made for it in almost every case except that of banns. When a person goes to the Registrar's office he is warned that if he declares falsely he is liable to a penalty, and if he gets a licence from a surrogate he must swear it. The fact is, all this is an attempt of the clergy to edge in inquiries about matters which they have nothing whatever to do with. Lately, many of us, no doubt, have been reading Newman's Letters, and there we find that the clerical attempt to make laws of their own as to whom they should allow to be married was started by Newman nearly 60 years ago, when he refused to marry a couple because one of them had not been baptised! They were poor people, and could not fight the case, and Newman had his way. Another case is recorded in the law books, within quite modern times, of a clergyman refusing to marry a couple because one of them had not been confirmed. Unluckily, the prosecution of the clergyman was defeated by a technicality; but there are sufficient warnings against our allowing any such clerical inquisition. So long as clergymen are acting entirely as the officers of the State in these matters they are within their rights, but the moment they go beyond that and claim to put the inquisitorial questions which the Bill proposes, I am sure that two things will follow; in the first place they will wreck the Bill, and

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  in. the next if they do not they will frighten people from the churches into the Registry offices. John Stokes goes to a clergyman and asks to have banns of marriage put up; and he is at once asked, "What is your age?" Naturally he will reply, "Why should I tell you my age?" Then "Are you a blood relation of your intended wife?" He will say, "What is that to you, so long as we are not within the unlawful degrees?" Then he is asked sundry other things, and presently says—" I am not going to be bothered in this way; I shall go to the Registry office and get married there." People have a right to resent inquisitive-mess of this kind. Therefore, I say, these are not mere matters of detail which can be dealt with in Committee, but matters of principle. If I wait until the Bill goes to the Grand Committee I shall be told that they are matters which the Grand Committee cannot consider. There are other minor matters to which attention might be called. I do not know whether it is intended to introduce a new, or an American, clerical aggression on the English language for the word "licence," but all through this Bill it is spelled with an "s," and in all my experience the noun has been spelled with " c," and the verb with an "s." I will trouble your Lordships no further at the present stage beyond saying that I shall be most happy to give the right rev. Prelate all the assistance I can in making the Bill a really good one, and in putting it in a form in which it will not be likely to suffer through anything objectionable in the way I have suggested.
  Bill read 2a (according to order), and committed to a Committee of the Whole House on Friday, the 24th instant.

EVIDENCE BILL [H.L.]-(No. 71.)

  SECOND HEADING.
  Order of the Day for the Second Reading, read.
  THE LORD CHANCELLOR: My Lords, this is merely a Consolidation Bill dealing with the law of evidence, and I ask your Lordships to give it a Second Reading.
  Bill read 2a (according to order), and committed to a Committee of the Whole House to-morrow.

TRUSTEE BILL [H.L.]-(NO. 72.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE LORD CHANCELLOR: This also is a Consolidation Bill dealing with the various statutes relating to Trustees.
  Bill read 2a (according to order), and committed to a Committee of the Whole House to-morrow.

MIDDLESEX REGISTRY BILL.—(No. 87.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE LORD CHANCELLOR: This is a Bill which comes from the Commons. It is understood that arrangements have been made for vacancies occurring in the Middlesex Registry. Practically the Bill is to drive into the coffers of the State certain revenue received at the Registry. It has come up from the Commons without Amendment, and the question I have to ask your Lordships is simply whether it should now be read a second time.
  Bill read 2a (according to order), and committed to a Committee of the Whole House to-morrow.
  House adjourned at five minutes past Five o'clock, till to-morrow, a quarter past Ten o'clock.