List of the AYES. Adderley, C. B. Aglionby, H. A. Berkeley, hon. H. F. Cochrane, A. D.R.W.B. Compton, H. C. Hornby, J. Jolliffe, Sir W. G. H. Knox, hon. W. S. TELLERS. Baring, T. Mackenzie, W. F. revising the Practice and Pleadings of the Courts of Common Law in this country. He should like to know whether his noble and learned Friend was informed of the progress made by those Commissioners, and whether their Lordships might expect to have their report soon? LORD CAMPBELL was sorry that he could not inform his noble and learned Friend that these Commissioners had made their report. In common with the rest of the public he entertained the highest hopes from that Commission. There could not have been a better selection of individuals to form a Commission of revision than that of the learned and able gentlemen who composed it. They were most able and indefatigable men, and well versed in the knowledge of their profession. He had been looking from month to month for their report; and he had been informed three months ago that their report on the Practice, Pleadings, and Fees of the Courts of Common Law was ready for their signatures. He regretted exceedingly the delay which had occurred in the presentation of it, for it prevented the Judges of those Courts from doing that which they could otherwise have done of their own power. It would be in the recollection of their Lordships that some time ago, when he was first appointed to the high office which he then held, he had proposed a Bill giving the Judges further power with respect to alterations to be made in practice and in pleading; but he had not proceeded with that Bill, because, in common with the other Judges, he thought it better to wait. until the Commissioners had introduced their new code of Practice and Pleading, than to proceed at once upon ideas of their own, for it might otherwise have been discovered hereafter that while the Judges were proceeding in one direction, the learned Commissioners were proceeding in another. He hoped that there would be no long delay in the presentation of their report; for, if there were any long delay, the Session would in all probability come to a close without their doing anything. He believed, that as it was, justice was better administered here than in any other country in the world; but still he thought that it could and ought to be rendered more economical. He hoped that before long the latter object would be accomplished; but before it could be accomplished their Lordships must have before them the Reports of these Commissioners. LORD BROUGHAM admitted that there was already much good in our system, and that the good predominated over the bad in it. But, to save what was good, we ought to get rid at once of what was bad, or else we might see all the good and all the bad parts of our system swept away in one common ruin. He should now proceed to lay upon the table of the House a Resolution declaratory of the benefits to be derived from adopting a system of reconcilement and arbitration. He was sorry that he could not have the satisfaction which he could have wished to derive from the concurrence of his noble and learned Friend (Lord Lyndhurst, we believe), and of his noble and learned Friend on the woolsack, in his Resolution. He then read the terms of it, which declared that the great advantages of a system of reconcilement and arbitration appeared to their Lordships to be clearly made out from the experience derived from its adoption in the dominions of the King of Denmark during the last twenty years. LORD REDESDALE thought, that in point of form, this could not be done. He did not think that the noble and learned Lord had any right to lay a Resolution of this kind on the table, though, beyond all question, he had a right to move it. which he then held in his hand had immediate reference to a judgment which had been given in their Lordships' House, in the case of "the Queen v. Willis." By that judgment it was decided that a marriage contracted between a member of the Established Church and a member of the Presbyterian Church, when celebrated by a Presbyterian minister, was null and void by the common law of England. He need scarcely mention to their Lordships the grave importance of such a decision, which, emanating from that House in its judicial capacity, had not only force in this country, but also at the Antipodes, and in every colony of the British empire where the common law of England prevailed. In adverting to that judgment, a noble and learned Lord who dissented from it observed that it was a declaration that wherever the law of England prevailed, unless it was corrected by some remedial measure, every marriage that was celebrated without a priest was ipso facto void, and that the issue of every such marriage would be bastard and illegitimate. Notwithstanding this consequence of the decision was clearly pointed out to them, their Lordships decided that all marriages between members of the Church of England and members of the Presbyterian faith celebrated by a Presbyterian minister, were void by the common law of England. One of the main grounds on which this judgment was founded was, that so far back as the time of King Edward the Saxon, it was declared that to make a marriage valid, there should be the presence of a LORD CAMPBELL contended that it "mass" priest; and it was the opinion of was the right of any Peer to lay informa- high legal authorities that the only person tion the table for the instruction of who could now be considered as a upon his brother Peers. With that view Lord priest" must be a clergyman of the Church Mansfield had on one occasion laid his note of England. Their Lordships would obbook on the table of the House. serve that that judgment applied to all our Subject at an end. Colonies in every part of the world to which a remedial measure was not applied. fatal were the consequences of it found to be in Ireland, that a noble and learned Lord then in the House (Lord Lyndhurst), had, much to his honour, introduced and carried through Parliament a Bill giving validity to all such marriages in Ireland. The judgment, however, to which he had referred was as wide in its application as the dominion of the law of England, and the dominion of the law of England was as wide as the habitable globe. The Bill to remedy that judgment was confined to Ireland; it therefore held good as to all Presbyterian marriages celebrated elsewhere; LORD BROUGHAM: Then I'll move the Resolution now. The MARQUESS of LANSDOWNE was understood to say that his noble and learned Friend had a right to lay his Resolution on the table at present, but not to divide the House upon it that evening. LAW OF MARRIAGE, AUSTRALIA. The DUKE of ARGYLL called the attention of their Lordships to a petition from the Synod of the United Presbyterian Church, at the meeting at Edinburgh, of which the subject, although it related to a distant dependency of the Crown, was of the very greatest interest and importance. He was sure that all their Lordships would admit that any grievance which arose out of the uncertainty of the law of marriage was a grievance which must be very severely felt, and which ought to be very speedily redressed. The petition 66 mass So 538 and from that circumstance great injury | Act referred only to persons being memhad accrued to the inhabitants of Aus- bers of the Church of Scotland. Now, if tralia. In the year 1849 a person of the the question were to be mooted in a court name of Roberts, being an Episcopalian, of law, it would unquestionably be held had contracted in Australia a marriage that a Presbyterian of the Church of with a member of the Church of England, Scotland only meant a member of the and the marriage was performed by a Established Church of Scotland. Thereminister of the Established Church. He fore, this remedial Colonial Act referred subsequently entered into a marriage con- only to one-third of the Presbyterians tract with another person, a member of in the colony; and, if so, two-thirds of the Scotch Church, and the marriage was the Presbyterian marriages in Australia performed by a Presbyterian minister, and were invalid, and their issue bastards. upon that marriage he was arraigned upon He therefore came to this conclusion, a charge of bigamy. The question arose that no greater grievance could be inwhether he could be convicted of bigamy, flicted on this colony than the uncertainty as the last marriage was alleged to be il- under which so many of its inhabitants legal and void. The judgment of the Su- laboured as to the validity of their marpreme Court at Sydney was very injurious riages, and the legitimacy of their children. to those who professed the Presbyterian Such being the ease, the three Judges religion. It decided that the indictment who formed the Supreme Court at Sydney for bigamy could be sustained, stating that unanimously expressed a hope that this it declined to give any opinion whether the question would not be raised before them last marriage was invalid or not. It came again until it had been finally settled either to this decision on the ground that as the by the Imperial or the Colonial Parliament. first marriage was undoubtedly valid, no In the next ensuing session of the Colonial marriage after it could be valid, and there- Legislature an Act was passed to remedy fore there was no occasion for them to this grievance. And what sort of an Act inquire whether the Presbyterian marriage did their Lordships suppose it to be? An -which was admitted to have taken place Act had been passed declaring all Pres-was in itself valid, or the contrary. But, byterian marriages celebrated before its although by this determination of the Co- enactment valid, but not making any prolonial Judges the question of the validity vision for future marriages, leaving the of Presbyterian marriages was held in sus- question as to them exactly where it was pense, yet they expressed an opinion which before. He had read with surprise not in another point of view was highly impor- unmingled with regret, a speech which the tant. In the year 1834 a Colonial Act had Governor of the colony, Sir C. Fitzroy, been passed to render valid Presbyterian had made to the Colonial Assembly shortly marriages. But the terms of that Act after that Act was passed. He said that were so strict, and the requirements of it the Act for the confirmation of Presbywere so complicated and numerous, that it terian marriages would remove the apprewas the opinion of the Judges that Presby-hensions of many respectable persons in terian marriages acquired no validity from its enactments. He had no official record of that judgment; but he would read it to their Lordships as he found it in the colonial newspapers. [Here his Grace read a paragraph of some length from an Australian newspaper, in which the Court declared that a Presbyterian marriage derived no validity from the Colonial Act of 1834, and declined deciding the question whether it was a good and valid marriage by the common law of England.] The Presbyterian inhabitants of Australia were, therefore, in this painful condition at present-they had found out that the Colonial Act drawn up expressly for their behoof rendered their marriages invalid, because it was next to impossible to comply with all its requirements. This local the colony, who, from neglect of the requirements of the law, had placed themselves in a position of great difficulty; and he then added that it was very essential that the dangerous precedent of this measure should not be relied on in future, for he should be very sorry to lend his aid again to remedy a defect which might have been avoided by a due observance of the enactments of the law. Now, he (the Duke of Argyll) maintained that it could not be so avoided on account of the confusion and intricacy of the law itself. He trusted that he had now proved to the satisfaction of their Lordships that a great grievance existed in Australia as to the law of marriage, and that it ought to be remedied not by the Colonial but by the Imperial Parliament. EARL GREY did not think his noble Friend who had just spoken exactly understood the circumstances of this case. The facts, as he (Earl Grey) understood them, were these. He believed it was an acknowledged principle that the law, statute and common, in all our Colonies, was the law of this country as it stood at the time of their foundation, subject to alterations which might be subsequently made by the Colonial or Imperial Legislature; consequently New South Wales having been founded after the English Marriage Act of 1757 was passed, he apprehended that the English Marriage Act was the law in force in New South Wales. LORD CAMPBELL: No, no! EARL GREY: At all events the Common Law of England, whatever it might be, with respect to English marriages, was in force in New South Wales. That law gave no power to contract marriages in New South Wales other than in the mode in which it was contracted in this country. Therefore, in 1834, an Act was passed by the Colonial Legislature enabling Presbyterian ministers to celebrate marriages; but requiring, as the condition on which they should do so, that one or both of the parties presenting themselves for marriage should declare themselves members of the Presbyterian faith. It appeared that one particular clergyman in the Church of Scotland, residing in Australia, had habitually neglected to require from the parties who presented themselves to him for marriage that declaration, and the consequence was that a great number of marriages celebrated by that gentleman were not supposed to possess the force of law. In the decision given on the indictment for bigamy, the Court threw out the greatest doubt as to the validity of any marriage celebrated by a Presbyterian clergyman, in which the terms of the colonial statute had not been complied with, and therefore whether, admitting the first marriage to be valid, an indictment for bigamy could be supported on a marriage thus celebrated. The question then arose, how were these doubts to be removed-how was the defect in such marriages, if defect there was, to be supplied? It appeared from the debates in the Legislative Council of New South Wales that the Attorney General introduced a Bill which was copied almost verbatim from the Act of the noble and learned Lord opposite (Lord Lyndhurst) with regard to Presbyterian marriages in Ireland. The difficulty in the case was the same as the difficulty that had arisen in the case of the Irish marriages; and the Attorney General for Australia confined himself to introducing a Bill making valid those marriages respecting which the doubts had been raised. In doing so he said the whole marriage law of the colony was in an unsatisfactory position, and required to be revised, and in another Session ought to be brought under the consideration of the Legislative Council. He said there was not then time to prepare a measure in that Session, and therefore it seemed to him expedient that the interference of the Legislative Council should be confined on that particular occasion to legalising the particular marriages on which doubts had been raised. The Governor of the colony, in his speech at the close of the Session in which this Act was passed, undoubtedly said he should have difficulty in assenting a second time to a provisional measure of that kind; and he (Earl Grey) thought the Governor was justified in saying that, for nothing can be more unsatisfactory than allowing persons to go about celebrating marriages in an illegal manner, and then passing Acts to legalise them. What was necessary was, that the law should be put upon a permanent and proper footing, so that marriages could be contracted in a proper manner, probably by such a measure as had been passed in this country in 1835. From what had passed in the Legislative Council he had little doubt that in another Session the subject would be considered by that body, and that a measure would be proposed putting the law of marriage in Australia on a satisfactory footing; but with regard to the suggestion that Parliament ought to interfere, he (Earl Grey) held that to be most irregular. There was no one of their colonies in which, at that moment, the manner in which marriages were to be celebrated, was not defined by colonial enactment. In New South Wales marriages were celebrated under the Act of 1834; and if that Act were insufficient, it ought to be amended. Parliament had dealt with the subject, as regarded this country, in a satisfactory manner; but, in passing the Act of 1835, they purposely and most properly excluded any reference to the Colonies; for this reason, that the machinery of that Act did not exist in the Colonies. There were no poor-law unions there, whose officers would act as registrars if marriages were celebrated without a religious ceremony, as provided by that Act. So it was in every colony; the ma- | priest, or of any person beyond the witchinery necessary for substantiating the nesses who might bear testimony to the fact of a marriage being properly cele- contract being made. Such is the law of brated, must vary according to the circum- Scotland at the present time, and such, he stances of the colony, and the existing hoped, with some modification, would reinstitutions; and it was therefore, of all main the law of Scotland. It certainly subjects, the subject which it was most gave great facilities for marriage-dangernecessary to leave to the colony itself. It ous facilities at present he was bound to was an established maxim of this country say; but he would rather that marriage that a marriage celebrated in a British could be entered into with too much facility, colony, or in a foreign country, according than impose unnecessary restrictions upon to the law of that colony or country, was it. Now, let them see the position in good in this country. which the colonists were placed by the decision in "the Queen v. Millis;" after that decision the intervention of a priest episcopally ordained became necessary; a Roman Catholic priest being episcopally ordained was considered quite sufficient; and he supposed a priest of the Established Church would be considered sufficient; but a Pres LORD CAMPBELL: Good all over the world. EARL GREY: Such a marriage was good all over the world; therefore if the Legislative Council took proper measures for the celebration of marriages, whether by ministers of the Established Church, or Roman Catholic, or Presbyterian, the mar-byterian clergyman, even the Moderator of riages so contracted under that colonial law would be perfectly good and valid in this country, and the interference of Parliament was not required, LORD CAMPBELL: Notwithstanding the observations of the hon. Secretary for the Colonies, he must say, it seemed to him that the petition presented by the noble Duke opposite was most reasonable, and he hoped its prayer would be complied with. It was his humble opinion that there was a call for the interference of the Imperial Parliament, because, not only in Australia, but in all their Colonies, the inhabitants were now placed in a situation of the greatest embarrassment, and were subject to great injustice, and until recently no such complaint could be made. What the noble Earl had stated as the law in newly-established colonies was correct, with one exception; the noble Earl supposed that all the statutes in force in this country at the time of the establishment of a colony, were imported into the newly-established colony: that was not so; it was only statutes which were supposed to be applicable to an infant community that were so imported into it. No inconvenience on the subject of marriage had, however, been felt, until the recent decision of their Lordships in "the Queen v. Millis;" for it was supposed, before the introduction of Lord Hardwicke's Act, that the canon law of Europe remaining in force in England, was carried by their colonists all over the world; and by that canon law it was well understood that marriage was a contract made by consent, and there was no occasion for the intervention of a mass the Church of Scotland, for this purpose would be considered a layman. He (Lord Campbell) must say, that it became that House and the other House of Parliament to make a provision for the new law which that decision introduced; and his noble Friend opposite (Lord Lyndhurst), then Lord Chancellor, most properly introduced a most excellent remedial law for Ireland; and amongst the many excellent measures that had been introduced by him, that would always be remembered to his credit. He (Lord Campbell) regretted extremely that there had not been a similar measure introduced for the Colonies. It would not do simply to extend to the Colonies the law that had been passed for England in 1835; but there ought to be a marriage law passed for all the Colonies, restoring the old canon law, whereby consent constituted marriage. There were cases where it was impossible to get a minister, and the marriages were celebrated before magistrates, commanding officers, and captains of ships; and those marriages were considered as valid as if they had been celebrated by the Archbishop of Canterbury or by the Pope himself. He differed from the noble Earl in thinking that this matter should be left to the Colonial Legislature; and they could not abstain from seeing the difficulty to which the noble Duke opposite had referred; namely, that in Australia there was a Roman Catholic Attorney General. It was true that in this country also they might have a Roman Catholic Attorney General; but if they had, he could not interfere with legislation as the Attorney General of Australia had the |