HC Deb 04 May 1830 vol 24 cc396-401

Mr O’Connell rose, he said, to move for leave to bring in a Bill to render valid, in certain cases, the marriages of Roman Catholics in England by a Catholic Clergyman, and to abolish in Ireland certain penalties imposed on Catholic Priests for celebrating marriages between Catholics and Protestants. He wished, if possible, to earn the approbation of Gentlemen on the other side, or at least to avoid their censure, by being very brief upon this subject at present, trespassing on the attention of the House only to an extent sufficient to make his intentions understood. The object of the proposed measure was, to render valid, in certain cases, the marriage of Roman Catholics in England, and to abolish the penalties imposed on Catholic Priests in Ireland for solemnizing marriages between Protestants and Catholics. There were two different points for consideration, on which the House might be disposed to come to different decisions. The House might be ready enough to amend the law of Ireland, without wishing to interfere with that of England. He did not refer to a law making the marriages of Roman Catholics valid in themselves; in that respect but little alteration was desirable, for marriages celebrated by a Roman Catholic priest, between Roman Catholic parties, were perfectly valid at present. Such marriage entitled a female to dower, and conveyed the ordinary interest in property to the children. That law extended in Ireland also to marriages celebrated between Protestant Dissenters by clergymen of their own communion. There were three distinct laws relating to marriages in Ireland:—first, for marriages celebrated by clergymen of the Established Church; secondly, for marriages by Protestant Dissenting ministers; and thirdly, for marriages celebrated by Roman Catholic priests, which are valid only when both parties are Roman Catholics. That being the slate of the law, his object was to mitigate the penalties for any violation of that law by a Roman Catholic priest. There was no penalty on clergymen of the Established Church for marrying persons of different religious persuasions, none on Dissenters—upon the Roman Catholics alone was any penalty inflicted. He would briefly notice some of the statutes which authorised these penalties. The first Act to which he would allude, was passed for the purpose of preventing the taking away and marrying children against the will of their guardians—a very (it object for a penal law, against which he had no design to make any objections. But in that Act, which was passed a great many years back, after prohibiting Catholic clergymen from celebrating such marriages, it was enacted, that any Roman Catholic clergyman who should celebrate such marriages, or marry any party or parties, knowing that they are of different persuasions, should incur all the penalties attached to the law. The first punishment was death; but a particular clause was introduced, providing that it should only be inflicted when the clergyman knew that one of the parties was not a Catholic. The next Statute to which he would call attention, was the 8th Anne, c. 11, s. 26, which continued these penalties. The House would recollect that the Roman Catholic clergyman was guilty of no offence unless one of the parties was a Protestant. The 26th Section enacted that Roman Catholic priests shall not many parties, when one of them has been of the Protestant religion, unless they get from the Protestant minister a certificate, certifying that the party was not a Protestant at the time of the marriage. This, however, raised a legal presumption that the priest knew that the party had been a Protestant, and to avoid that, he got from the Protestant clergyman a certificate, stating the negative. But the Act gave no means of forcing the Protestant clergy man to give that certificate, and if the priest could not get the Protestant clergyman to certify this under his hand and seal, and he should marry the parties, he fell under the penalties provided by the Act; that was not a state in which the law should be allowed to remain. By the 1st George 1st it was made felony without benefit of clergy for Popish priests to celebrate a marriage between two parties, one a reputed Protestant, and the other a Papist. When he coupled these statutes together, he found that in the one, knowledge was presumed, unless a certificate were produced; and that the other made it a capital felony to marry, not a Catholic and Protestant, but reputed Protestants, unless a certificate were produced, showing that they were not Protestants. This statute enabled Justices of the Peace to summon any persons, suspected of having been guilty of the offence mentioned, before them; and upon refusal to enter into recognizance’s, to punish them by imprisonment for the space of three years. This inquisitorial punishment was of so serious a nature, that it ought to be altered. He knew two instances of it, one of which occurred at Londonderry, and the other at Long ford, where there were now four persons in gaol under the provisions of this section; so that it was by no means a dead letter. The next he would mention was the 19th of George 2nd, c. 13, which declared void every marriage celebrated by Catholic priests, between Catholics and Protestants, where either party had been a Protestant twelve months preceding the Marriage: and by 23 George 2nd it was enacted, that as the marriage was not valid, the clergyman celebrating it should be hanged;—that Act continued in force to this day, with this difference, that by the Relief Bill, 33 George 3rd, c. 21, intended to repeal the former Act, it was enacted, that such a marriage should be invalid, and it ordered that a fine of 500l. should be paid by any Roman Catholic clergyman who should celebrate the marriage of a Catholic and Protestant. He must inform the House, that the question came before the Court of King’s Bench in Ireland, when Lord Kilwarden was sitting as Judge, and he determined that the latter punishment did not remove the penalty of death; and the ground for his opinion was, that the one Act of Parliament had used the word “reputed,” and that the other had not used that expression. So that, according to law, a Popish Priest, guilty of the offence mentioned in the Statute, might be hanged in the first instance, and fined afterwards! This was really too bad. Having thus stated briefly to the House the law on the subject, he might, perhaps, be asked what he proposed to do. To abolish the penalty of death altogether he would answer. He proposed to limit the fine to a small amount, and to remove the penalty in all cases, where the parties were Catholics at the time of the marriage, and not to go back one year previous to the marriage. That was the alteration which he proposed to make in the law of marriage in Ireland. He did not wish to carry the Relief Bill one particle further than it was carried already; but he wished to put out of the Statute-book, that capital felony, which, in his opinion, ought not to remain. He wished further to make the offence punishable only when the priest had a knowledge of the religion of the parties, when the malus animus on his part was manifest. He wished to state to the House, that he had heard of instances in which Catholic clergymen had been betrayed into the performance of the marriage ceremony, by designing persons, from sinister motives, and was acquainted with one of great respectability who was obliged to flee the country for two years precisely under such circumstances. Two persons went to him, and alleged that they were Catholics, and got themselves married, for the mere purpose of afterwards prosecuting him. And it was not until some time afterwards, when the conduct of the parties was discovered, that the clergyman was enabled to return. There was another part of this subject about which he felt considerable anxiety, that was, the marriage of Catholics in England; he did not allude to the marriage of the richer Catholics, but to their poorer brethren, many of whom came from Ireland, and when they were in their own country, had been in the habit of seeing their brothers, sisters, and all their relations married by Catholic priests, and they could not believe that marriages celebrated by Catholic priests in England were invalid. He begged to inform the House, that a Catholic clergyman could refuse to celebrate a marriage, when required, without a breach of the Canon Law. What was the consequence of this in England? Why the husband could desert the wife—many melancholy instances of which had lately occurred, and all the children were illegitimate. He felt, however, that he had said enough on this subject, and would trouble the House no further. He should wish to bring in a bill to allow all Protestant Dissenters, as well as Catholics, to marry according to the forms of their own religion, but he would not introduce a clause on that subject, if the Legislature should be adverse to such a measure. He hoped that he might then be allowed to bring in the Bill, and he would take another opportunity of entering more fully into the subject. In conclusion, the hon. and learned Gentleman moved for leave to bring in a Bill to amend the laws respecting Marriages celebrated by Roman Catholic Priests.

The Solicitor General  expressed his satisfaction at hearing that it was not the intention of the hon. and learned Member to disturb in any manner the Catholic Relief Bill of last year. He differed from the learned Gentleman in supposing that it would not be possible to bring in a Bill to apply to the marriage of Roman Catholics in England, which should not include all Dissenters; and he should object to any bill that was not of a general nature. As the hon. Member had given up that part of his Motion, and as there were many of the regulations which the hon. Member had suggested as to Ireland which appeared likely to be useful, he was not prepared to oppose the Motion. As he understood the matter, the Act of 1793 was intended to get rid of the severe penalties attached to the offence of celebrating illegal marriages, leaving no other penalty than the fine of 500l., but as there was a doubt on the subject, it was proper that that doubt should be cleared up. Nobody, he was sure, would be ready to carry the law into execution, which sentenced the priest to death for celebrating such marriages. Understanding, therefore, that the hon. member for Clare limited the Motion to bringing in a Bill declaratory of the law, he should most certainly not oppose it.

Lord Leveson Gower said, it was not his duty to oppose, but to promote the hon. and learned Gentleman’s Motion. He wished, however, to reserve his opinions on the subject, till a subsequent stage of the Bill, and he should certainly offer no opposition to it in that stage.

Sir J. Brydges said, he would not oppose the introduction of the Bill, but conceiving that after what was called the obsolete Statutes were repealed, there would be some motion to enact different laws, he should certainly oppose the Bill at its subsequent stages.

Mr. North supported the Motion. The Bill was to amend the civil law respecting marriage, and nobody who knew what that law was, whatever political opinions he might profess, would oppose that Bill. The hon. and learned Member, as he understood, did not intend to alter the law. But at present, the punishment to which a Catholic clergyman was supposed to be liable for celebrating illegal marriages was nothing less than death. In the opinion of many celebrated men, and in the opinion of an humble individual, himself, though his was a very conscientious opinion, the Relief Bill passed by the Irish Parliament in 1793 repealed the law inflicting this punishment. The punishment was no longer death—it was not transportation—it was a fine of 500l.; and the first object of the hon. member for Clave was, to reduce that penalty still further. He differed from the hon. member for Clare as to the point of determining the religion of the parties at the moment of celebrating the marriage, for it had happened to him to know that many parties went before the Catholic clergyman, and declared that they were Catholics, when it was known to the priest that they were born of Protestant parents, and had been at Church but a few months before: they said they had been converted. On this point, therefore, he disagreed with the hon. member for Clare; but in the general features of the Bill he concurred with him.

Mr Croker was in hopes, that ere long something would be done to make the marriage law similar throughout the three kingdoms. It was, in his opinion, a most monstrous anomaly, that the marriage law, which was the very foundation of society, on which depended the rights and fortunes of all classes of citizens living under the same general scheme of policy, subject to the same system of Government,—it was a monstrous anomaly that this law, the foundation of the whole society, should not be the same for every part of the kingdom, and every description of persons. At present, however, this law was so extravagant, and so extraordinary, that there was now a case of marriage pending, as the learned Gentleman opposite knew, which, after the highest court of Scotland had declared the couple to be legally married, and their children legitimate, was about, he believed, to be set aside by a still higher authority here; and the children were to be declared illegitimate. He did not mean to enter into the question as to Ireland, but he did hope that his Majesty’s Ministers, or some Gentleman of talents and weight in the House, would bring the state of the marriage-law under discussion, and would enable the people to know, at all times and places, whether they were legally married or not, and whether their offspring were legitimate or illegitimate.

Leave given to bring in the Bill; and Mr. Q’Connell and Mr. Jephson were ordered to bring it in.