HL Deb 09 July 1896 vol 42 cc1085-8

No marriage heretofore or hereafter contracted within the realm or without, othan than a marriage hereafter contracted in England by solemnisation thereof by a clergyman of the Established Church of England shall be deemed to have been or shall be void or voidable by reason only of having been or being contracted between a man and his deceased wife's sister, notwithstanding any statute, canonical or other objection, unless it has been before the passing of this Act annulled by some court of competent jurisdiction, or shall be so annulled in a suit instituted before the passing of this Act, or unless cither party thereto has (after the marriage and during the life of the other) before the passing of this Act lawfully married another; and such evidence as would be proof of any other marriage shall be received for all purposes as evidence of such marriages respectively; but no right, title, estate, or interest, whether in possession or in expectancy, and whether vested or contingent, at the time of the passing of this Act existing in, to, or in respect of any dignity, title of honour, or property, and no claim by the Crown for duties leviable on or with reference to death, and before the passing of this Act due and payable, and no payment of or discharge for such duties before the passing of this Act duly made or given shall be prejudicially affected thereby.

VISCOUNT HALIFAX moved after the words "other than a marriage," to insert the words "heretofore or" He said that the Amendment which he asked their Lordships to accept had for its object to remedy an inconsistency that existed between Clauses 1 and 2 of the Bill. If their Lordships would refer to the Bill they would see that under Clause 1 all marriages with a deceased wife's sister were legitimised in England for the future, with the exception of such as were performed by a clergyman of the Church of England, and that all such marriages were legalised in the past, however contracted. By Clause 2, however, the clergyman was not relieved from the penalties to which he is at present liable under the Ecclesiastical law, for performing a marriage within the prohibited degree, and it was quite clear that anyone who contracted such a marriage would not be able to bring any action against any authority of the Church for refusing to administer to him or her the Holy Communion. Under the present Bill any marriage with a deceased wife's sister which should be performed by a clergyman of the Church of England was declared to be void, while at the same time if the Bill were carried, such marriages in the past would be rendered legitimate by the State law by retrospective action, and although the latter class of marriages had been contracted in defiance of the law, not only of the Church, but of the State. The two proposals were absolutely inconsistent with each other in point of principle. But even a greater objection to the proposals than their being inconsistent was that these marriages in the past had been enabled to be performed only by the fraud and perjury of the parties concerned when they obtained the necessary licence or applied for banns to be put up. At any rate, the parties, by their silence, must have deliberately assented to that which they knew to be absolutely untrue. In his view it did not become that House, which was the highest judicial court in the country, to condone such breaches of the law, or to whitewash people who had been guilty of them. He begged their Lordships to observe that his Amendment did not touch such marriages as had been contracted before the Registrar, but merely those which had been performed by Clergymen of the Church of England. It appeared to him that it was not merely the character of these marriages which was at stake in this matter, but the character of their Lordships' House also as the guardian of truth and justice. There was another matter to which he should wish to draw attention, and that was that his Amendment in drawing a distinction between ecclesiastical and civil marriages was in harmony with the suggestion which had been made by the noble Earl on the Front Opposition Bench, when he said that perhaps a remedy for this alleged grievance might be found in drawing a broad distinction between civil and ecclesiastical marriages. He thought that there was a great deal to be said in favour of that proposal, and if ever this Bill became law, which he hoped it would not, the matter would be dealt with on that basis. He hoped that their Lordships would accept his Amendment.

THE EARL OF DUNRAVEN

said that he was unable to accept the Amendment of the noble Viscount opposite, and he hoped that their Lordships would not agree to it, because it would completely destroy the retrospective action of the Bill, which to him was a matter of the greatest importance. He ventured to think that even among those who opposed the Bill many were of opinion that the Amendment would be most grossly unjust to the children born before this Bill passed into law. That was the chief reason why he could not accept the Amendment. But he thought also that it would draw a very unfair distinction between the rich and the poor, because those who had been able to afford to get their marriage solemnised by a clergyman of the Church of England or other minister in another country would reap the benefit of the Act, while those who were unable to do so, would not. He would like to take the opportunity of thanking his hon. Friend Lord Heneage for not moving the Amendment which stood in his name. There was no Member of the House who would have greater weight with him and their Lordships on this matter, than the noble Lord who had been so long and intimately connected with measures of this nature in the House of Commons. He greatly sympathised with the noble Lord's object, but he felt that it would be a very dangerous thing to alter materially a Bill passed by a substantial majority on the Second Reading.

*THE BISHOP OF SALISBURY

suggested that the difficulty might easily be met by introducing a clause designating such children as it was desired to make legitimate. What the noble Viscount wished to prevent was a premium being put on law-breaking in the past. That was what the Bill did. It bore the mark and note that it was in defence of those who had openly defied the law.

LORD HERSCHELL

pointed out that the punishment would not fall on those who had broken the law. It would fall on those who were perfectly innocent, namely, the children. In addition to that it would be a great inconvenience if this kind of marriage was validated in some cases and not in others, merely because in some cases a clergyman had solemnised the marriage.

THE LORD CHANCELLOR (Lord HALSBURY)

said the noble and learned Lord seemed to forget that in all cases in which the stamp of illegitimacy lay upon the children, the children were innocent. It seemed to him that if the argument of the noble and learned Lord were adopted the distinction between legitimate and illegitimate children would be abolished.

The House divided on the Question that the words proposed be there inserted:—

CONTENTS … … 47
NOT-CONTENTS … … 90

DIVISION LIST:—CONTENTS.
Canterbury, L. Abp. Melville, V.
Halsbury, L. (L. Chancellor.) Ely, L. Bp.
Lincoln, L. Bp.
Oxford, L. Bp.
Abercorn, M. (D. Abercorn.) St. Albans, L. Bp.
Salisbury, L. Bp.
Ailesbury, M. Winchester, L. Bp.
Bristol, M.
Hertford, M. Balfour, L.
Chelmsford, L.
Beauchamp, E. Clinton, L. [TELLER.]
Belmore, E. Colchester, L.
Carnwath, E. Crofton, L.
de Montalt, E. Douglas, L. (E. Home.)
Dudley, E. Egerton, L.
Hillsborough, E. (M. Downshire.) Foxford, L. (E. Limerick.)
Lauderdale, E. Gage, L. (V. Gage.)
Mar and Kellie, E. Howard de Walden, L.
Mayo, E. Lovaine, L. (E. Percy.)
Morton, E. Middleton, L.
Powis, E. North, L.
Stanhope, E. Ponsonby, L. (E. Bessborough)
Waldegrave, E.
Yarborough, E. Sinclair, L.
Stanmore, L.
Halifax, V. [TELLER.] Stratheden and Campbell, L.
Knutsford, V.
Llandaff, V.
NOT-CONTENTS.
Devonshire, D. (L. President.) Dorchester, L.
Farrer, L.
Glenesk, L.
Bedford, D. Granard, L. (E. Granard.)
Fife, D.
Portland, D. Grey de Ruthyn, L.
Saint Albans. [TELLER.] Hawkesbury, L.
Heneage, L.
Sutherland, D. Herschell, L.
Hobhouse, L.
Abergavenny, M. Kenry, L. (E. Dunraven and Mount-Earl.)
Northampton, M.
Abingdon, E. Kensington, L.
Bathurst, E. Lawrence, L.
Camperdown, E. Leigh, L.
Carrington, E. Macnaghten, L.
Chesterfield, E. Manners, L.
Clarendon, E. Mendlip, L. (V. Clifden.)
Cowper, E. Monckton, L. (V. Galway.)
Crewe, E.
Ellesmere, E. Monkswell, L.
Granville, E. Northington, L. (L. Henley.)
Hardwicke, E.
Kimberley, E. Playfair, L.
Lichfield, E. Ranfurly L. (E. Ranfurly.)
Morley, E.
Northbrook, E. Reay, L.
Onslow, E. Rendel, L.
Portsmouth, E. Ribblesdale, L.
Rosse, E. Rodney, L.
Saint Germans, E. Rosebery, L. (E. Rosebery.)
Spencer, E.
Rothschild, L.
Falkland, V. St. Levan, L.
Falmouth, V. Shand, L.
Oxenbridge, V. Sherborne, L.
Portman, V. Stanley of Alderley, L.
Stuart of Castle Stuart, L. (E. Moray.)
Belper, L.
Boston, L. Sudley, L. (E. Arran.)
Boyle, L. (E. Cork and Orrery.) Swansea, L.
Thring, P.
Brougham and Vaux, L. Tollemache, L.
Burghclere, L. Tredegar, L.
Burton, L. Tweedmouth, L.
Castletown, L. Wandsworth, L.
Cheylesmore, L. Wantage, L.
Churchill, L. Watson, L.
Coleridge, L. Welby, L.
Connemara, L. Westbury, L.
Davey, L. Wolverton, L.
De Saumarez, L. Wrottesley, L.

Clause 2,—