§ (The Earl of Dalhousie)
§ Amendments reported (according to Order).
§ Clause 1 (Marriage between a man and his deceased wife's sister not void or voidable).
THE EARL OF DALHOUSIE
said, He would now move an Amendment, to give effect to what he considered to be the wish of the House, on the occasion when the Bill was up for second reading. He proposed, with that view, to omit the words "heretofore celebrated or contracted at any place whatsoever within the realm or without." The effect of the Amendment would be to prevent the Bill having any objectionable retrospective effect.
Amendment moved, in page 1, line 7, to leave out from ("sister") to ("which") in line 7.—(The Earl of Dalhousie.) 1402 Amendment agreed to; words left out accordingly.
THE EARL OF DALHOUSIE
said, He should next propose an Amendment to meet the objections expressed by the noble Earl opposite (Earl Beauchamp) at a former stage of the Bill. The effect of it, while excluding the Church of England from the scope of the Bill, was to legalize marriages performed in Roman Catholic or Dissenters' chapels, or before a Registrar.
Amendment moved,In page 1, line 12, after ("Ireland") to insert ("or in any building registered for the solemnization of marriages at which the presence of a registrar is necessary by law"); and leave out from ("elsewhere") to ("shall") in line 13.—(The Earl of Dalhousie.)Amendment agreed to; words inserted and left out accordingly.
§ LORD CLIFFORD OF CHUDLEIGH
said, He proposed to add words to the Amendment which their Lordships had just assented to, the object of which was to give to these marriages, if celebrated in Roman Catholic chapels in Ireland, the same validity as when they took place in English Catholic chapels. He must explain to their Lordships that Irish Catholic chapels were not registered for marriages, and yet were not places where the presence of the Registrar was required.
Amendment moved,In page 1, line 12, after ("Ireland") insert ("or which shall be celebrated in Ireland by any Roman Catholic priest.")—(The Lord Clifford of Chudleigh.)Amendment agreed to; words inserted accordingly.
On the Motion of The Earl of DALHOUSIE, Amendment made, in page 1, line 14, by leaving out ("the") and inserting ("such").
THE EARL Or DALHOUSIE
said, that, in deference to the views expressed by his noble and learned Friend on the Woolsack on the second reading of the Bill, he would now move an Amendment giving validity, from the date of the passing of the measure, to every marriage already contracted with a deceased wife's sister, and legitimatizing the children of such marriages already born. If any person in the past had contracted marriage in a manner which 1403 the Bill would legalize if it were contracted after the passing of the Act, such marriage should be lawful.
Amendment moved,In page 1, line 18, leave out ("have been") and insert ("be"), and after ("celebrated") add ("and any such marriage heretofore celebrated or contracted, shall, from and after the passing of this Act, he and be deemed to be from thenceforth valid in the same manner as if it had been duly celebrated or contracted on the day of the passing of this Act according to the provisions thereof, and all children of any such marriages whether celebrated or contracted before or after the passing of this Act, shall, subject to the provisions herein-after contained, be held to be legitimate.")—(The Earl of Dalhousie.)
§ EARL FORTESCUE
said, he must protest against marriages solemnized in defiance of the law being given, on the day of the passing of the Act, exactly the same validity as the marriages of the parties who had conscientiously waited for the permission of the law would get when theirs were solemnized hereafter. To do that would be directly sanctioning wilful violation of the law. He agreed that innocent children should be treated as legitimate; but he did not see why the parents should not be compelled to be married again, and thought their disliking it no objection. With that object, He would move an Amendment to strike out all the words of the proposed Amendment down to "and all children," and leave that portion of it intact which legitimatized the children.
Moved, to amend the said Amendment by striking out all the words down to the words ("and all children.")—(The Earl For fescue.)
THE LORD CHANCELLOR
said, he looked at the question from the opposite point of view to that taken by the noble Earl who had just spoken (Earl For-tescue). In the Committee He had ventured to call the attention of the House to the dangerous principle of the Bill as it originally stood; and he thought that his objection in that respect had now been removed by his noble Friend (the Earl of Dalhousie). He must confess that he could not see any difference between an Act which itself married people on the day when it was passed, and a measure which would say that the same people might go on that day to the Registrar's Office and get married. In either case the marriages were civil mar- 1404 riages, and no more. He, therefore, fully approved of the Amendment proposed by his noble Friend (the Earl of Dalhousie), as it would have the desired effect of taking away the retrospective character of the Bill.
said, he wished the noble Earl (Earl Fortescue) to consider that the Bill favoured the right, and was not contrary to it.
Amendment (The Earl Forteseue) negatived.
Amendment (The Bart of Dalhousie) agreed to.
Words inserted accordingly.
Clause, as amended, agreed to.
Clause 2 (Excepted cases).
On the Motion of The Earl of DALHOUSIE, the following Amendment made:—In page 1, add—("Or where there has been a declaration of nullity of marriage by any court of competent jurisdiction whether before or after the passing of the Act of the fifth and sixth year of King William the Fourth, chapter fifty-four, or where proceedings are pending at the time of the passing of this Act for a declaration of nullity of any such marriage, or where the parties have been separated and are living apart at the time of the passing of this Act.")Clause, as amended, agreed to.
Clause 3 (Provision for saving rights).
On the Motion of The Earl of DALHOUSIE, Amendment made in page 2, line 13, at end of clause, by adding—("Nor any legacy duty, succession duty, or other duty paid or payable to Her Majesty in consequence of the death of any person before the passing of this Act.")Clause, as amended, agreed to.
Clause 4 (Proceedings against clerk not affected by this Act).
§ EARL FORTESCUE
, in moving the omission of the clause, in order to insert instead a provision taken from the Divorce Act, 1857, said, that his only object was, as learned men came to opposite conclusions with regard to the passages of Scripture bearing on this subject, to leave clergymen free to act according to their consciences, without imposing on them restrictions inconsistent with Christian liberty, which was not done by the clause as it stood. Surely those who made a marriage which many divines thought innocent, and 1405 most Christian Churches did not absolutely forbid, were entitled to as much consideration as those who had done what not only all Christian Churches, but the Jews and most enlightened heathens, considered unquestionably immoral.
Amendment moved,To leave out Clause 4, and insert as a new clause:—("No clergyman in holy orders ox other minister of religion shall be compelled to solemnize the marriage of any sister of a deceased wife, or shall be liable to any suit, penalty, or censure for solemnizing or refusing to solemnize the marriage of any such person.")—(The Earl Fortescue.)
THE EARL OF DALHOUSIE
said, he most earnestly hoped his noble Friend (Earl Fortescue) would not press this Amendment. It was in direct antagonism to the spirit of the clause, which, as it stood, had been passed by a Committee of their Lordships' House, after full consideration; and, therefore, he (the Earl of Dalhousie), although he was in sympathy with the views of his noble Friend, could not possibly assent to it now.
Clause agreed to.
On the Motion of The Earl of DALHOUSIE, the following new clause was agreed to, and inserted, to follow Clause 5:—(Valid marriages not affected.)(6.) Nothing in this Act shall affect any marriage which, by the law of England and Ireland, and of Scotland, respectively, was valid at the time of the passing of this Act.Bill to be read 3a upon Thursday next; and to be printed as amended. (No. 129.)
§ EARL BEAUCHAMP
said, he would give Notice that, upon the Order for the Third Reading of the Bill, he should move its rejection.
§ House adjourned at Nine o'clock, till To-morrow, a quarter past Ten o'clock.