§ The House went into Committee on this Bill.
§ [The EARL of MORLEY in the Chair.]
No marriage of any person whose former marriage shall have been dissolved on the ground of his or her adultery or crime, and whose former husband or wife, as the case may be, is living, shall be solemnised in any church or chapel of the Church of England; and any marriage solemnised contrary to the provisions of this Act with the knowledge of both the parties thereto shall be void.
*LORD GRIMTHORPE moved to leave out from "person" to "is living, shall" in order to insert—
found guilty by a superior court in the United Kingdom (including the House of Lords) of adultery or any crime for which marriage may be dissolved,
so that the clause should read:—
No marriage of any person found guilty by a superior court in the United Kingdom (including the House of Lords) of adultery or any crime for which marriage may be dissolved, shall be solemnised in any church or chapel of the Church of England.
He said that he had indicated in general terms, on the Second Reading, the nature of the Amendment which he now brought forward. The Amendment, had been altered after a little consultation so as to embody the words "Superior Court of the United Kingdom." He was not quite confident of the way in which to describe that Court, and though the words were slightly different, there was no substantial difference between this Amendment
and that of last year. Among other persons whom he consulted was the President of the Divorce Court, one of the most learned and experienced men in the country. He approved this Amendment in all points of view, legal as well as moral. In November, the Mover of the present Bill asked him for a copy of the Amendment, which had been thus discussed and agreed upon the Session before, not only with him, but with the Archbishop of Canterbury and the Bishop of London. He accordingly sent that Amendment to the noble Viscount, who not only approved of it, but asked him to bring in the Bill himself. He told the noble Viscount that it was not his Bill, and he declined. He heard from Lord Halifax again in February, and then to his surprise his Lordship sent a manuscript draft, with the name of some proctor on it, of a totally different Bill. He was asked to make some suggestions upon the Bill; but he refused to have anything to do with it. Then there was a little more correspondence, and he heard no more about the matter until the day after the Bill had been read a First time. The noble Viscount then wrote to him and said that he had consulted people about the Bill, and there was such a difference of view prevailing that he reverted to his Bill of 1895, except on one point, which this Bill certainly does not. He was surprised still more by the line which the Archbishop of Canterbury took the other day, quite contrary to what he had agreed to last year. The first thing the most reverend Prelate propounded in connection with the evil and injustice of the existing law was that it deprived the clergy of the discretion which they had, and which they exercised in many things. They had no discretion at all to say whether a marriage should take place or not; a clergyman had no discretion or power to prevent any persons from being married in Church if a clergyman was willing to marry them. In the Prayer-book the clergy were directed to withhold the Communion from persons whom they perceived to be living in malice and hatred with each other. Did they ever do it? It was a mere Brutum fulmen. Was it ever acted upon? [A BISHOP: "Yes!"] They might indeed exercise discretion when persons were
living an evil life notoriously; but they must report it to the Bishop, who was thereupon directed to prosecute them, which no Bishop ever thinks of trying. Neither had they any discretion about burial; the fact was that they had no discretion at all, though a good many of them thought they ought to have. Dealing with the defects of the Bill, he said that, assuming its principle to be right, which he thought it was, it was a question of degree how far it ought to go. After the Bill passed, some of the following persons would be enabled to go to a clergyman and demand to be married in Church. Some of them would have to wait for the death of what was called in Scotland "the Spouse"; but that might happen very soon. People convicted of bigamy could demand to be married in Church as soon as the spouse was dead. A person convicted of rape might do the same. He was certain to be a single man—[a laugh]—or almost certain, and he need not wait for the death of a spouse. Co-respondents might go and get married at once, and there was no spouse there. Again, every now and then, both parties to a divorce suit were convicted of adultery, and therefore this Bill, which professed to keep out of Church people who had been divorced, let in worse people, who could not get divorce by reason of their iniquities. There was, too, the case of adultery on the part of the man, without sufficient cruelty to justify a divorce—he might go and get married. And what was to be said about licences? Dr. Tristram had found and decided that the practice of the Consistory Court of London had always been to grant licences to all persons not absolutely prohibited by law from marrying. The Attorney General thought the Chancellor had a discretion. Personally he agreed with the Attorney General, and he had acted on that discretion and had stopped licences to guilty people. That, however, was a disputed point, but under this Bill there would be no question about it. He did not see how, after this, any Chancellor could refuse to issue his licence to persons to get married in Church. So there were six classes of convicted offenders who would be entitled to compel the clergy to marry them. One of the questions he had to face was how to define the
Court which was to determine whether people were guilty or not. On that point, after consulting the two most learned people he could get hold of, he put the clause in the form which the Amendment indicated. But that did not satisfy the Archbishop. He said that there were many divorces effected in the colonies and in foreign countries. But there was no security whatever that the preliminary question of guilt was properly tried in some foreign courts of law, if in any. He alluded to a case the other day in which a woman had consented to a divorce on account of adultery. The colonial decree was granted and shown to him, but he satisfied himself on inquiry that no court in this country would hold that adultery had been proved. She said now that she never had committed adultery, though she was willing to get rid of the man, and, in fact, the whole transaction was collusive. There was no Queen's Proctor there. Certainly there was none in America, nor in any of the colonies. With regard to foreign countries some very queer things had been disclosed in a Parliamentary Paper of the ways in which divorces were effected, even in Popish countries. They were told they never granted nomination divorces in those countries, but ingenuity worthy of a better cause discovered that the marriage was always a bad one, and it was annulled as bad ab initio. That was the sort of thing they had to recognise if they admitted, as the right reverend Prelate desired, foreign divorces.
§ VISCOUNT HALIFAX
said that he would give an account of what took place last year, and of what had occurred subsequently between Lord Grimthorpe and himself in connection with the present Bill. The Bill of last year merely proposed to repeal Clause 58 of the Divorce Act, and so to relieve clergymen from the obligation of admitting into their churches any stray clergyman to perform a marriage in the case of persons who had been the guilty parties in a divorce suit. It did no more than leave an option to the clergyman of refusing the use of his Church. Then Lord Grimthorpe moved an Amendment—on the ground that it was very unsatisfactory to leave these matters to the clergyman's 1662 discretion—providing that these marriages should be absolutely illegal. He confessed that, in the first instance, he did not clearly understand the object of Lord Grimthorpe's Amendment. He thought at first that it was to make the marriages of guilty persons illegal during the lifetime of the former spouses, as the present Bill proposed. Therefore, he wrote to Lord Grimthorpe, proposing to introduce the Bill with his Amendment; and it was after that that he discovered that the Amendment would make the marriages illegal for the whole lifetime of the person concerned.
§ * LORD GRIMTHORPE
That is the thing which I expressly said I disagreed with, but I yielded that to the Archbishop, and having done that, I thought it right to stand by the bargain. I have not changed my opinion in the least.
§ VISCOUNT HALIFAX
said, that the object of his Bill was to protect the sanctity of marriage, and not to penalise persons for crimes which they had committed. Lord Grimthorpe's Amendment provided that persons who had committed certain wrongful acts should never be married in Church. He could not possibly accept an Amendment of that kind. What would be the consequences of such an Amendment? A co-respondent or any unmarried person, against whom misconduct with a married person had been proved would suffer the penalty of that conduct during their whole life-time. Even the prohibition for a number of years instead of for the life-time was still a penalty, and not a protection of the sanctity of marriage. As to divorces abroad, a person domiciled abroad and divorced for adultery in the courts of their country of domicile would not be touched by the Bill. As to bigamy, what would be the result of the Amendment? It would prevent the bigamist from ever marrying again in Church, even when the first marriage had been dissolved by death. It was a not uncommon case for a woman, who had been deserted by her husband, to marry another man. That was bigamy, and under the Amendment, even after the real husband's death, such a woman would never be able to properly marry the second man. He had no desire to conceal the fact that, if he could, he 1663 would get rid of the whole of the Divorce Act, which had been a source of sin, perjury, and pollution to the country at large; but he was simply asking now for the abrogation of a particular clause in an Act of Parliament. He did not think it was the business of the House or of the State to punish people for breaches of the Commandment as such; but it was the business of both to protect the law of the Church as far as possible, and to protect the clergy and the laity from the gross scandals occasioned by these particular cases. He hoped the Amendment would not be accepted, because it was a reversion to a principle which had long been abandoned, and which he hoped would never be revived. As to the provision voiding the marriages which were knowingly entered into contrary to the Bill, he attached no importance to it. He was told that it was necessary to impose some penalty, and he would be prepared to accept any alternative agreeable to the House.
* THE ARCHBISHOP OF CANTERBURY
said, that he would not go into the particulars, where his memory did not exactly accord with that of Lord Grimthorpe, because they were matters of no importance. As to the amount of opposition which the noble Lord expected, he supposed Lord Grimthorpe drew his inference from the amount of lawn which he saw on the Episcopal Benches. But that was an accidental circumstance. It happened that there had been that day a fully attended meeting of Bishops. As a matter of fact, their Lordships were told that it would not be necessary for them to appear in the House of Lords in large number. But, in any case, the circumstance was fully explained by the natural liking of the Bishops to hear Lord Grimthorpe on themselves. He would not follow the noble Lord into such a serious question as absolution. His remark was a subtlety which would catch nobody. A clergyman never felt compelled to give absolution to a person whom he did not believe to have made a sincere confession. The question at issue was one which concerned the care of the Churches. In all other respects the clergyman had the care of his Church. He locked and unlocked the door; he ordered its decoration; he made all arrangements; he consented to this or 1664 that service being held; but in regard to the marriage of divorced persons, the clergyman's discretion was taken from him. Whatever he or the parishioners might think, he was obliged to put the Church at the disposition of another person. He entirely agreed with Lord Halifax that the aim and object of this change of the law should be to relieve the clergyman of the obligation to lend his Church for a purpose of which his people and he disapproved. If public opinion were ready to go to the extent of saying that those who had flagrantly broken the vows which they had made in Church ought not to be married in Church again, he should be heartily and deeply thankful. But, whatever he might wish as to the greater stringency of discipline, it ought not to be the object of a Bill like this to inflict a singular penalty on crimes which had come to light in the course of investigations not directed to discovering them, and upon which no senence had been passed. It was more in accordance with the spirit of our law that those persons should be prevented from marrying again in Church who had been declared by the proper authorities to have flagrantly broken their former vows. The objection he had before taken to the words "found guilty by a Superior Court of the United Kingdom" he still maintained. But he saw no difficulty in limiting the provision to "persons whose marriage had been dissolved according to the law of England." That would include divorces which had taken place in other countries, and which were recognised in this country.
THE EARL OF KIMBERLEY
said that he quite agreed with the noble Viscount in his objection to the Amendment. But the matter went deeper. Lord Grimthorpe had alluded to cases where, in his opinion, a clergyman had no discretion. In the particular case under discussion, the Divorce Act, no doubt, made a singular exception with regard to the clergyman's discretion. It seemed to him that there lay at the root of this controversy a very deep problem. There was an Established Church in the country, and it followed that certain duties were laid by law upon the clergy of that Church. It might be that it was repugnant to the clergy to perform some of those duties. 1665 To many of the clergy it was repugnant to have to allow the marriage service to take place in the church in the case of divorced persons. But it appeared to him—though perhaps he would find very little agreement on the point—that this difficulty arose because the system upon which the marriage law was based was fundamentally wrong. He was strongly convinced that the only sound and sensible marriage system was the marriage system which prevailed on the Continent, where a civil marriage was obligatory by law on all, and where, in regard to the religious ceremony which followed, the clergy of each Church were left unfettered to act as they thought best. So long as, under the marriage law of this country, the ceremony solemnised in the church was itself the contract of marriage, so long would the difficulties and scandals which the Bill proposed to remove exist.
THE BISHOP OF LONDON
said, the noble Earl had not helped the House very much in the consideration of the Amendment, nor had he given much light as to whether they should support it or oppose it. But he presumed that on the whole the noble Earl meant to vote against the Amendment. [The Earl of KIMBERLEY: "Hear, hear!"] He entirely agreed with that view, and hoped the Amendment would not be carried. He thought he had a perfect answer to what had been said by Lord Grimthorpe as to an agreement between the noble Lord and the Archbishop of Canterbury and himself last year. It was that he considered that, as between the Bill introduced last year by Viscount Halifax and the Amendment which Lord Grimthorpe proposed to move to that Bill, the Amendment was better than the Bill. But now they had before them quite a different Bill from the Bill of last year, and he thought the present Bill was better than the Amendment. He therefore did not see any inconsistency in his action. The whole position had been changed by the change in the Bill. That change had been made in the Bill in consequence of its having been insisted upon in many quarters that there should be no discretion in the matter left to clergymen, and that the Bill ought to declare that the marriage of a divorced person ought not 1666 to be solemnised in a church. As the Bill stood it would be more effective in producing the result they desired than any Amendment that had yet been suggested. It would relieve the consciences of a great many religious people and a great many clergymen who felt a great difficulty in regard to such marriages.
§ LORD HERSCHELL
said, he could not support the Amendment of his noble Friend, but at the same time he thought the Amendment showed that the Bill did not rest upon any sound or logical basis. He confessed that the more he thought of it he was driven to the conclusion that the only satisfactory solution was that to which the Earl of Kimberley had alluded. The reason why those marriages were objected to by many clergymen was that they believed that the marriage tie was indissoluble, and that the innocent party as much as the guilty party in a divorce had no right to marry again in the lifetime of the former husband or wife. To them it was a scandal that the person who in their eyes had a husband or a wife still living should go into a church and have the ceremony of marriage performed again. Those scruples, those difficulties, and that scandal would remain just as much after the Bill had passed as before, because the Bill did not apply to one of the two persons—the innocent person—in a divorce. There were other clergymen who did not take that view, but who took the view that the scandal lay in a divorced person going through the marriage ceremony in a church fresh from the violation of the marriage vow. But even that scandal would not be got rid of by the Bill, because the Bill only applied so long as the other parties in the contract were living. The Bill, there fore, did not entirely get rid of the scruples of clergymen, and no Measure of which that could be said rested on a sound foundation. If legislation of this kind was once commenced those who wanted it could, for reasons on which they founded their demand in the present case, make an irresistible appeal for a further alteration of the law. But the whole difficulty would be removed by a civil marriage, because the Church would then be left to determine in each case whether the subsequent religious ceremony should be allowed, and there would thus be an end of all 1667 scandal arising out of the use of a church for the purpose of marriage.
§ THE LORD CHANCELLOR (Lord HALSBURY)
said, he was not able to support the Amendment, and he should not have intervened in the discussion at all were it not that Lord Grimthorpe, in stating his view of what ought to be done, had—if his noble Friend would allow him to say so—entirely mistaken the law. The House of Lords sitting to decide questions in respect to divorces was not a Court of Law. It was true that the House on the Second Reading of a Bill for a divorce tried the question, but it sat as a House of Parliament, and the Bill would be valueless, even if you put in the Amendment, because the decision was an Act of Parliament in each case. As a matter of fact, when a Bill was introduced into that House, the draft contained a provision that the parties should not marry, but it was aslways struck out, in the progress of the Bill through the House. Therefore, an Amendment could not bind the House of Lords in its legislative capacity, and each new Act must speak for itself. For that reason many of them thought the Amendment and provisions of the Bill were not entirely satisfactory, and it would be impossible for him to support the Amendment.
* THE ARCHBISHOP OF YORK
said, there was a great deal in what had been urged in favour of the system which prevailed on the Continent, but they were not prepared, as a mere incidental result of a Bill like this, to enter on such a vast question. Further, he felt strongly with Lord Herschell that there were a great many cases that would not be touched by this Bill; and there would always be cases which it would be difficult to include in any single Measure. The Bill professed to deal, not with every case, but with a certain class of cases which called aloud for legislation, because they placed a heavy burden on the consciences of a large number of the clergy and the laity. While he felt the weight of the criticism that had come from the Front Bench opposite, he did not think it was fatal to the principle of the Bill or a sufficient objection to their agreeing to the Bill in Committee.
§ Amendment negatived; Clause ordered to stand part of the Bill.1668
*LORD GRIMTHORPE moved the omission of the words—
and any marriage solemnised contrary to the provisions of this Act with the knowledge of both the parties thereto shall be void.
He said he would leave the Amendment to the judgment of their Lordships.
§ THE LORD CHANCELLOR
said, if these words were struck out the case was not absolutely unprovided for, because disobedience to a statute was a misdemeanour at common law.
* THE ARCHBISHOP OF YORK
said, some penalty ought to fall on an offending clergyman, whereas the penalty imposed by the clause fell upon the parties who were married, and also upon their children. The hardship that would result was a sufficient reason for getting rid of this severe penalty, and the passing of a Measure of such limited scope was not a proper occasion on which to create avoidance of marriage. At a later stage he proposed to substitute for the words of the Bill a clause providing that any clergyman knowingly and wilfully performing such a marriage shall be guilty of an ecclesiastical offence. He preferred that it should be an ecclesiastical offence rather than a misdemeanour.
§ LORD HERSCHELL
did not see why they should make it an ecclesiastical offence; he would prefer a proposal to subject the clergyman to a pecuniary penalty of say not exceeding £100.
§ THE LORD CHANCELLOR
said, it might well be thought the other parties, well aware that they were disobeying the law, might induce a elergyman in perfect innocence to marry them. If he acted knowingly it would be better to treat it as a misdemeanour, and all objection would be got rid of by introducing the word ''knowingly.''
§ VISCOUNT HALIFAX
asked whether it would not be better simply to omit the words of the clause. A penalty was not of great importance. If, as the Lord Chancellor said, in the absence of a penalty, the offence was a misdemeanour, it would be better to leave it so rather than to create an offence which appeared to be out of the purview of the Bill.
§ LORD HERSCHELL
objected to leaving the offence a statutable misdemeanour, which was a clumsy kind of 1669 remedy. It involved going before a Grand Jury and their finding of a true Bill, which was an awkward, clumsy and expensive procedure. If there was to be a penalty it was better they should determine what it was to be.
§ THE LORD CHANCELLOR
said, the words might be struck out, and the penalty be provided by a subsequent sub-section.
§ Amendment agreed to; Clause, as amended, ordered to stand part of the Bill.
§ *LORD GRIMTHORPE moved the omission of the words "and shall be read with the Matrimonial Causes Acts 1857 to 1873."
§ Amendment agreed to: Clause, as amended, ordered to stand part of the Bill. Bill re-committed to the Standing Committee; and to be printed as amended.—[No. 106.]