HL Deb 25 May 1906 vol 157 cc1548-57

Order of the Day read for the House being put into Committee.

Moved, "That the House resolve itself into Committee on this Bill."—(The Earl of Elgin.)


My Lords, before the Motion is put I beg to move the Instruction standing in my name on the Paper, giving the Committee power to extend the Bill to include a declaration of the law relating to all marriages legal in the place in which they have been contracted, and recognised as valid in the United Kingdom. I should like to guard myself from its being supposed that the objections which I and others feel to this Bill, and which were so admirably expressed by several noble Lords the other night, and especially by Lord Halifax, will be removed in the smallest degree if the Instruction which I propose is carried; but it seems to me that, whether the Bill is on the whole satisfactory or not, it at least should be made a logical one, and I protest very strongly against legislation with regard to the marriage law dealing with that subject in a one-sided manner. The noble and learned Lord on the Woolsack stated the other night—I have not got his exact words, but I do not think I shall misrepresent him—that the law of this country recognised as valid all marriages contracted abroad or in the Colonies unless they were repugnant to the common religion of Christendom, if contracted by persons domiciled in the country whore those marriages were legal; that is to say, they were valid for all purposes except one, succession to real property. Now, if it be desirable to remove an exception which prevents the succession of the offspring of these marriages to real property, why do you select only one form of marriage, namely, marriage with a deceased wife's sister? The grievance which it is proposed to remove under this Bill is, I believe, an absolutely academic grievance. It has never been alleged in this House, so far as I have heard, that a child of a marriage with a deceased wife's sister was over prevented from succeeding to real property in this country.

It appears that this marriage is selected because their happens to be a fancy for marriage with a deceased wife's sister in the Colonies and it has often been contracted. I have always protested against the counting of noses in the matter of the marriage law. I hold that if a marriage is lawful and right, either from a religious, moral, or social point of view, then that marriage should be allowed whether one person wants it or 500. On the other hand, if a marriage is wrong, either from a religious, moral, or social point of view, it does not matter how many people wish to contract: it the Legislature has no right to make it legal. In the same way, it appears to me that any man in the whole of our vast Empire after you have passed this Bill who is the offspring of another form of marriage legal in some of the Colonies—a marriage, we will say, with the niece of a deceased wife—has a definite grievance against you if he is left out of the four corners of your Bill.

I quite appreciate the danger which the noble and learned Lord on the Woolsack pointed out of admitting marriages which are revolting to the conscience of Christendom, as some of the Hindu marriages to which the noble and learned Lord referred are, but, as I understood the definition which the noble and learned Lord himself gave, those marriages would be excluded because they would be repugnant to the common religion of Christendom. I contend that you should not legislate for one marriage only just as fancy dictates, and I urge that if you deal with this matter at all, all marriages that are according to the conscience of Christendom should be admitted within the four corners of the Bill.

Moved, "That it be an Instruction to the Committee that they have power to extend the Bill to include a declaration of the law relating to all marriages legal in the place in which they have been contracted, and recognised as valid in the United Kingdom."—(The Duke of Northumberland.)


My Lords, I hope the House will not accept the Instruction which has just been moved by the noble Duke. The noble Duke objects to the Bill because it is limited to one class of marriages, and he forthwith proceeds to endeavour to enlarge it very considerably. I am not going to argue the reasons for this Bill, but I may tell the noble Duke that this is not considered an academic question in the Colonies. It is, on the contrary, looked upon as a matter of very great importance, and it is one on which there is very strong sentiment. In several of the Colonies Acts have been passed which have been sanctioned by the Imperial Government legalising marriage with a deceased wife's sister, and this Bill has been brought forward in order to enable the offspring of those marriages to secure full legal rights in this country. It is a very simple measure, and I hope we shall not commit the mistake of widening the scope of the Bill.


My Lords, I am afraid I cannot consent to the Instruction which has been moved by the noble Duke. I do not deny that a Bill could be drawn on the lines which the noble Duke indicates in his Instruction, but it would not be this Bill. I may at once say that wo did consider the alterative measure suggested by tho noble Duke and rejected it, and if I wanted a justification for that course I think I might find it in what took place on the Second Reading of this Bill. The noble Marquess opposite, Lord Salisbury, complained that we wore advocating a state of things in which everything that was enacted by Colonial Legislatures should have effect in the United Kingdom. That is the purport of tho Instruction moved by the noble Duke, but it is not the purport of the Bill which I have had the honour of introducing to your Lordships.

The noble and learned Lord on the Woolsack pointed out, on the Second Heading, that we deal in this Bill with one particular subject. We deal with the law which prevails over a great part of our Colonial Empire, and which has existed there for more than twenty years without, I think, any inconvenience or any scandal arising. But twenty years is not a very long time in which to bring about questions of succession to property or to honours such as are dealt with in this Bill. As the noble Earl who spoke last mentioned, the present state of things is regarded in the Colonies as an anomaly, and our Colonial fellow subjects are unanimous in their desire for this Bill.

All that we propose in this Bill is to make a concession on the matter of succession to property. We do not deal in any way with the marriage law, and I ask the House to bear that in mind in voting upon the Instruction moved by the noble Duke. The most rev. Primate, who spoke on the Second Reading of this Bill, as he always does, in both a cautious and moderate manner, said he strongly objected to changes in the marriage law in the direction of the particular marriage mentioned in this Bill; but he added that, on the statement which I had made of the intention of this Bill, he acquiesced in the change. That is the position I take with regard to this Bill. I ask your Lordships to agree to it, not as a change in the marriage law, but as a declaration of the law with a view to remedying a grievance with regard to succession to property and honours which is much felt in our Colonial Empire.


My Lords, I feel bound, after the speech to which we have just listened, to call the attention of the noble Earl to the language of the Bill. The Bill begins with an allegation that it is for the purpose of removing doubts. I am not aware that on the particular subject in question there have been any doubts. The noble and learned Lord on the Woolsack would not suggest that there was any doubt on the question whether the offspring of a marriage not according to the law recognised in England could inherit real property in England. Again, I look at the Bill, and I find that it is a Bill, not to alter any law, but to declare the law. Is that accurate? I should have thought that if the object of the Bill is, as stated, to remove a grievance which is supposed to exist, it should not be to declare but to enact. It will be found in a moment that this is not a mere verbal objection but one of substance.

The sole object of this Bill is to alter our law of inheritance to real property in the case of the particular marriage in question. But have the draftsmen done it? It is not part of my duty to attempt to amend the Bill for the Government. That is their responsibility; but I venture to think it would be difficult for any lawyer to say that this Bill removes a supposed grievance at all. I have already pointed out that it states that doubts have been entertained, and that it further purports to declare the law. Now, let us see what the rest of the Bill says. Clause 1 provides that where a man has, whether before or after the passing of this Act, married his deceased wife's sister, and at the date of the marriage each of the parties was domiciled in a part of the British possessions in which at that date such a marriage was legal, the marriage if legal in other respects shall be, and shall be deemed always to have been, legal for all purposes within the United Kingdom. So it is at present. I am not aware that any part of that statement could be controverted. It is legal at this moment, and for all purposes.

The status of the persons married is legally that of man and wife. The one question with which the Bill is supposed to deal—namely, the right of inheritance to reality in England—is not mentioned in the Bill from beginning to end. The right of inheritance to real property in England is not any defect as regards the marriage. If the view I take is the true view, then this Bill is waste paper. I will not do the thing you intend it to do. After the statement of the noble Earl that the sole object of the Bill is to remove this supposed grievance, I have thought it my duty to point out to the noble Earl that it does not accomplish its object.


My Lords, before the noble and learned Lord on the Woolsack replies I should like to say a word or two on what has been said by my noble and learned friend Lord Halsbury. The argument he addressed to your Lordships was not, I venture to think, quite relevant to the Motion which has been submitted by the noble Duke; but anything coming from my noble and learned friend of course deserves the attention of your Lordships. My noble and learned friend's first point was that there could be no doubt, and never had been any doubt, upon the question whether the marriage was in this country legal as regards the inheritance to property.


I said nothing of the sort. I said there never was any doubt on the question whether a person so born could inherit real property.


I would remind my noble and learned friend that this Bill was discussed in 1898 when he was on the Woolsack, and that my noble and learned friend Lord Esher expressed the opinion that the Bill was unnecessary. He said that it was quite clear to his mind that these persons could inherit; and my noble and learned friend will find that statement by Lord Esher reported. With regard to my noble and learned friend's second objection, I would advise the Lord Chancellor, if I may venture to do so, to listen to what Lord Halsbury has said and make perfectly clear what is the intention of the Bill. The object of the Bill is to give the children of these marriagos the right of succession to real property. The Bill provides that these marriages shall be legal for all purposes within the United Kingdom. That must include, I should think, succession to real property. But I agree that my noble and learned friend Lord Halsbury has rendered good service in calling attention to this matter, if there be any doubt as to the efficiency of the drafting. I do not think that the distinction between marriages with a deceased wife's sister in the Colonies and other marriages not valid in this country is quite appreciated. South Australia was the first Colony to pass an Act legalising marriage with a deceased wife's sister. They had to enact it five times before the Imperial Government would give way. But the Imperial Government did then give way, and the law was ratified within that Colony. Since then fifteen other colonies have followed suit, and the Acts have all received the consent of the Imperial Government. These colonies now come as suitors pointing out to us that it was with the sanction of this country that these marriages were contracted, and asking that no stain of illegitimacy should exist. The Instruction moved by my noble friend would include all parts of the Empire. We have Crown Colonies in which polygamy is recognised.


But those marriages are not valid in the United Kingdom, and the noble Duke's instruction only affects such marriages as are valid in this country.


The noble and learned Lord on the Woolsack said that all marriages that were according to the conscience of Christendom were valid in this country for every purpose except one; and I ask that all such marriages should be included within the scope of the Bill.


I accept the noble Duke's reading of his own Instruction, but is there any analogy between the two cases? In the one case the Colonies themselves do not wish to have any alteration made in the law, but in this particular case the grievance is taking place day by day. This is not by any means an academic question. In 1898, after the debate on this Bill, a man who had been present in the Stranger's Gallery spoke to me in the lobby as I vas leaving, and after referring in terms of satisfaction to the debate, he said— Do understand why I object to this law. I object to it because it brings shame upon me and upon my child. There is one other person on whose behalf I object to this law still more. I object to it on behalf of that wife whom I married according to the laws you gave us. What has she done that she should be told she has borne an illegitimate child? I could not tell him what she had done, and I do not think your Lordships could.


My Lords, in reply to what was said by my noble and learned friend Lord Halsbury with regard to the removing of doubts may I say that I was under the impression that there had been a difference of opinion in this House between the late Master of the Rolls, Lord Esher, and Lord Davey on this point. I believe that Lord Esher stated that in his opinion a child of a marriage of this kind was entitled to succeed to real property in England, and that my noble and learned friend Lord Davey expressed a contrary opinion. I would remind the House that this is no new Bill. It was in existence before the present Government came into power; and the difference of opinion to which I have referred probably accounts for the insertion of the words "for removing doubts." The Bill proceeds to say that the marriage shall be legal for all purposes within the United Kingdom. Surely that must include succession to real property. I cannot see any ambiguity in the drafting, but, if I am wrong, the matter can be discussed in Committee. The noble Duke, by his Instruction, would be legalising certain marriages without being able to define them, and uncertainty is always undesirable especially in the law of marriage. When you say that a marriage between a man and his deceased wife's sister shall he recognised as legal for all purposes you know exactly what you mean. But if you say that any marriage which is valid in the Colonies shall be valid here you enable every Colony in the British Empire to make laws which are saddled on you.


If it is the sense of the House I will withdraw my Instruction.

Instruction, by leave of the House, withdrawn.

House in Committee (according to Order).

Clause 1:—

VISCOUNT HALIFAX moved an Amendment to insert the provision that nothing in the Bill should affect the obligations imposed on any clergyman by the laws ecclesiastical. He explained that the object of the Amendment was to clear up any possible doubt and prevent difficulties arising in the future. If, however, he was assured that the only effect of the Bill was to remedy a legal grievance, and that it in no way affected the laws ecclesiastical or the obligations of the clergy, he would withdraw his Amendment.

Amendment moved— In Clause 1, page 1, line 20, after the word 'Act' to insert the words 'provided also that nothing in this Act shall affect the obligations imposed on any clergyman by the laws ecclesiastical. "'—(Viscount Halifax.)


I believe there is nothing in the Bill which affects the obligations imposed on clergymen by the laws of the Church; but I quite appreciate the noble Viscount's point, and I will endeavour to satisfy myself with regard to it before the Third Reading. I will tell the noble Viscount if I see any reason to alter my opinion.


If the Bill does not affect tho laws ecclesiastical my Amendment would, of course, be superfluous. I am content not to press my Amendment at this stage, but to leave the matter as the noble and learned Lord has suggested.


I think the noble and learned Lord has met my noble friend fairly in the promise which he has made to look into this matter between now and the Third Reading; but I think your Lordships must have been struck with the amount of doubt there was in the Lord Chancellor's words. I hope that if he finds that as a matter of fact the Bill does affeet the ecclesiastical laws he will be the first to agree to the Amendment on the Third Reading.


My doubt is due to this fact, that I thought the Amendment had another reference until the noble Viscount was kind enough to explain to me a few minutes ago what his meaning was. The laws ecclesiassical are familiar to very few of us, but I think I know enough of them to be able to assure the noble Lord that this Bill does not affect those laws. But I should not like the noble Viscount to act upon an opinion of that kind without being quite sure, and I will therefore look into the matter between now and the Third Reading.

Amendment, by leave of the House, withdrawn.

Clause 1 agreed to.

Remaining clause agreed to, and Bill reported without Amendment to the House.