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should hold it his duty, to give warning and to complain, if he thinks that the law is outraged, misrepresented, or disregarded, by another individual, even though he may be one to whom the administration of the law is entrusted.
I have taken considerable pains to understand the act for marriages, and that for registration. I have read, carefully, the notices and directions to which I refer, and which, of course, must be taken as the official publications of the registrar-general.
It is not too much to admit, that the idea of giving a concise, simple, and true abridgment of the registration act, is very commendable; for it is in itself prolix, vague, intricate, and unsatisfactory. I rejoiced, then, in the hope that such a task had been kindly and judiciously performed by one by whom the people would do well to be guided, as a wise and understanding authority; and I took shame to myself for having prematurely attempted such a work for my own parish.... Great was my chagrin-I will even say, my indignation-when I had read the notices and directions of the registrargeneral. They are worthy of little else than blame. The provisions of the law are by no means correctly set forth; while the effect of the directions will be a still greater dislike, on the part of the people, toward the law, than they even at present entertain; and thus this law, which more than almost any other rests upon the good dispositions of the public toward it for its success, will become an object of public contempt, and a memorial of the unskilfulness of its framers. It comes out from the general registrar's office a very different thing from that which received sanction by parliament and king.
This weight of charge requires to be supported. I am not afraid of its being examined into. My evidence is in the following extracts from the notices and directions of the registrar-general, compared with others from the act of parliament. The notices and directions are in two papers; the first of which came out in June last, and the second in July. To begin with that of June: "All births and deaths &c. may be registered by the registrar," &c., "without any payment being required from the person applying to have them registered," &c. &c. Again" All persons, therefore, should have the births of their children registered without delay." Again" The time at which a death," &c., "may be registered, is not limited; but it is very desirable it should be done as soon as possible. The registrar may be compelled to register a birth or death, if notice is given him of the birth within six weeks after it, and of the death within five days after it, by persons duly authorized." Again-"All persons may give notice: and it is to be desired that whosoever has an opportunity should do so." Enough from this notice; next turn to the act of parliament. Thus-"Every registrar shall be authorized, and is hereby required, to inform himself carefully of every birth and every death which," &c. &c. &c.; "and to learn and register as soon after the event as conveniently may be done, without fee or reward," &c. &c. (p. xviii.) Let these two sets of extracts be compared together, and there will be no difficulty in discovering the unlikeness between the one and the other. I am mistaken if it is not perceived at once to consist in these VOL. XII.-Sept. 1837.
particulars-viz., that by the act of parliament, the duty of registration, of having births and deaths registered, is assigned to the registrar; but on the contrary, that the registrar-general transfers it from the registrar to the people. And again, that the act intends and desires that a death shall be registered within five days; but, on the contrary, that the registrar-general postpones it, or permits it to be deferred, to any period of time-to a time not limited. The duty of the registrar is one of the few points which are so clearly expressed, that he that runs may read. Any difficulty belonging to the performance of it, the absurdity of supposing that a registry shall be complete by such a method as is here prescribed, is a matter which I leave untouched. I abide by the fact, that the duty of the registrar is explicitly defined; and that the people are not burdened with the responsibility of seeking, or "applying," or "having," &c. &c. The expositions of the registrar-general afford an instance of cool and disingenuous hardihood, hardly to be expected in one so young in office, which deserves to be checked, lest, with his continuance in office, he may proceed to some more daring encroachments. The present occasion is not a trifling one; but is it fit, and praiseworthy withal, that so great liberty should be taken by an individual, especially one in an office connecting him with every family in the community,-by the registrar-general? His deed, likewise, is unfavourable to the people; or, if it were otherwise, as certainly one must confess the act might be altered much to the satisfaction of the public, the registrargeneral should know how to obey, as well as how to legislate.
The July notice.-Possessed of all the evil of the preceding, it is unfortunately loaded with much more grievous faultiness peculiar to itself. It commences with a very just observation on the convenience of a perfect registry, and a correct statement of the deficiencies of the registry devised by Parliament in the year 1812, which has been kept by the church from that period to the present. But, to my extracts. The registrar-general says "All persons may have the births of their children registered without any payment being required at any time within six weeks." Inasmuch as the " "may have" evidently requires the application to be made by the parents, in its fault it resembles the June notice. It represents registration even as a favour. Is this consistent with the act? The act, wise or not wise, (that is no matter belonging to the registrar or to me, but,) being followed out, requires the registrar to "inform himself," to "learn and register," &c. &c.-i. e., in homely words, to learn and labour-to do his duty in that state of life, &c.
Again, says the registrar-general-"Parents causing the births of their children to be registered before baptism, are recommended to state the name by which they intend they shall be called when baptized. The statement of the name in the first instance, in order that it may be registered, will save parties the trouble and expense of having the baptismal name added afterwards." From whence comes this recommendation? The registrar-general is the only authority. And in making it, that worthy gentleman incurs the guilt of violent and wilful transgression of the law, in letter and intent; of insidious dealing
towards both the law and the people; nor is the argument of kindly seeking to save trouble and expense to either party proper to be used in defence or extenuation of his conduct in this point. His recommendation is a thing foreign to the law; and, as such, exposes itself to the highest censure. It must have been penned, besides, with a full knowledge of its illegality; because it will hardly be credited that the animated debates in parliament, on the very question of registering the name previously to baptism, should have escaped the notice of him who was to be appointed registrar-general. Can his memory be so weak, that he did not, while penning his recommendation, feel some compunctions about adopting in practice that clause which was most severely reprobated, and, through the exertions of the Christian members of the house of commons, was at last expunged from the original unchristian bill? Could he imagine that such boldness should be met by meek submission? That the people or ministers of the church would consent to take the law from the register office which was scouted with cheers from the legislature? Had the legis. lature deemed it expedient to make such further alteration in their new law, they might have done it, in this most weighty particular, when engaged with that "act to explain and amend" the act for registering births, &c., passed in the late session, an. prim. Vict. It was, however, left untouched, and the registrar-general, of his own wilfulness and authority, makes the serious alteration in practice of registering names without baptism. The registrars, I imagine, ought to refuse obedience, in this instance, to their superior; but they act upon his recommendation, and, in my own parish, persons unbaptized are registered by name.
This is the high and special cause of complaint against the notices and directions of the registrar-general; some remedy is necessary, and, if there be no other, I trust that the members of the universities will be called upon to take notice hereof in their places in parliament. Having established the charge of illegality against the directions of the registrar-general, I may be allowed to point out an inconvenience inseparable, or nearly so, from their being followed.
A child registered by name may not receive subsequent baptism. It dies, and is brought, with the registrar's certificate, for burial. Burial is denied by the rubric to the unbaptised, and they are never brought for it. The clergy would not, probably, on religious grounds, refuse burial to the unbaptised infant of Christian parents; but their oath to the rubric could not possibly be got over, even in favour of an infant. In the case of a person "of riper years," their oath and their religious feelings would both unite against allowing the holy service; and thus, although the registrar's certificate is not an order for burial, his office may seem to suffer, and blame and ill-will will surely be gotten to the clergy. Again" The entry" of death "may be made at any time, without any payment being required." "Though a death may be registered at any time, it ought, if possible, to be registered before burial, and a certificate of registry obtained from the registrar, to be shewn to the clergyman officiating at the funeral." The
same disposition is discoverable here, to impress the people with the idea that they are to carry information to the registrar; and that registration will be made on application; and I must observe again, that the time of registering a death is not fairly stated. The act speaks of five days. The registrar-general teaches, the time is not limited; that it may be registered at any time. The vague act is sufficiently vague, and these directions will tend to make it still more lax in practice. If possible," a certificate should be had, and shewn to the clergyman. Why imply even a difficulty? Nothing but the grossest negligence can be the cause why a certificate should not almost always be had. The clergy will, I trust, demand it not to be shewn, but delivered to them-thus promoting obedience to the act, and saving themselves the hazard of offence.
Upon the whole, these notices and directions are objectionable, as being unlike the act of parliament in their chief features, with steadiness and pertinacity misleading the people into the idea that registration is a duty which the law has laid upon them; and permitting and recommending a practice condemned by parliament, and purposely rejected from the provisions of the act. There is in them a great want of integrity and truth; they aggravate the dislike already so universal against the law in its best state; they are careless and dangerous in a religious view, and they supersede the wisdom and acts of the united legislature, by the will and conceptions of an individual.
With these views I have ventured, Mr. Editor, to appeal to you, and to your many writers and readers, and beg to leave the matter in your and their hands, for further consideration.
I remain, Mr. Editor, your faithful and obedient servant,
THE NEW MARRIAGE ACT.
SIR,-As you express a wish for counsel's opinion upon the subject of the New Marriage Act, I transmit you that of Sir Charles Wetherell, with the case which was presented to him; and also a copy of a letter which accompanied copies of these to Lord John Russell, and shall be glad if by any means attention may be called to the subject, that the clergy may make application to their friends in parliament to procure a repeal of this most vexatious enactment. A PARISH PRIEST.
Case submitted to Sir Charles Wetherell, Knt.
The New Marriage Act Amendment Act, 1 Vict. 22, § 36, says,— "Be it enacted, that the giving of notice to the superintendent registrar, and the issue of the superintendent registrar's certificate, as in the said act and by this act provided, shall be used and stand instead of the publication of banns to all intents and purposes, when no such publication shall have taken place; and every parson, vicar, &c. in England shall solemnize marriage, after such notice and certificate as aforesaid, in like manner as after due publication of banns." But the
discipline of the church (canons of 1603) peremptorily forbids the clergy to solemnize marriage except by banns or episcopal licence. And the vow of the clergy at ordination, at least in the judgment of many, prohibits them from administering divine offices otherwise than according to that discipline which has been sanctioned by the synods of the church; they therefore consider that they cannot, in conscience, obey the clause of the new act, until the convocation shall have altered the discipline of the church agreeably thereunto.
QUESTION. If a clergyman shall refuse to solemnize marriage upon the registrar's certificate, as enjoined by this act, what proceedings can be had against him? Will a mandamus lie from the Court of Queen's Bench? Will committal to the Fleet follow a perseverance in the refusal ? Will the discipline of the church, and the clergy's ordination vow, afford them any protection?
Opinion of Sir Charles Wetherell, Knt.
I think that clause thirty-six of the act is mandatory, and, consequently, that any clergyman who refuses to marry parties who produce a certificate, framed according to the requisitions of the clause, is liable to all legal suits and proceedings which may be instituted on that refusal. In point of law, the clause thirty-six carries with it a dispensation from, or abolition of, canonical obedience. And the canons could not, I think, be set up in bar to justify the refusal of a clergyman to comply with the provisions of the act.
Lincoln's Inn, July 21, 1837.
Copy of a Letter to Lord John Russell, Secretary of State for the Home Department, accompanying copies of the foregoing case, and opinion.
MY LORD, I beg leave respectfully to call your lordship's attention to the accompanying paper; by which it will appear in how painful a position those clergy are placed, by the requisitions of the New Marriage Act, who entertain the conscientious view of the nature of their vows which is expressed in this paper,-being liable to be harassed with vexatious prosecutions,-to be torn from their families, imprisoned, and ruined by legal expenses, for simply desiring to discharge their religious offices according to the vows that are upon them.
I feel confident that such cannot be the intention of her Majesty's advisers, and that they cannot wish the commencement of a new reign to be marked with an act of pains and penalties, against quiet, unoffending, and conscientious men; and I venture to hope for an assurance from your lordship, that, upon the re-assembling of parliament, no time will be lost in releasing us from our most painful situation. In the meantime, we must bear our burden the best we may. I have the honour to be, my Lord, your very obedient and faithful servant, &c.
July 24, 1837.