The Home Rule Bill: Memoranda on Amendments [Union Defence League] (London 1912)

[Source: Available at Internet Archive - online; accessed 17.08.2014.]

Sect: Marriage, Divorce, Custody of Children

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This brings us to the question of “Mixed Marriages”, which have been brought into prominence by the promulgation of the famous Ne Temere decree and the resultant McCann case. Into the facts of that case it is unnecessary to enter. The outstanding points are these: that after some years of marriage McCann deserted his wife on the representations of the clergy of his Church that he was living in sin; that the wife was left without means of subsistence; that the children of the marriage, one about a month old, were stolen from her and that they are kept in hiding and that she is refused access to them. This action has [24] been defended by well-known Catholic clergymen, such as Father Finlay, Father Herbert, Father Power, and others.

The decree Ne Temere, based on the decrees of the Council of Trent, passed in 1563, was promulgated in Ireland on Easter Day, 1908. The Catholic Dictionary Edition of 1905, explains the delay:

“In order to avoid the difficulties which would otherwise have arisen, the decree of Trent was not promulgated in Great Britain, Scandinavia, several German States - indeed in Protestant countries generally; so that the marriages of Protestants or Catholics, made before the Protestant clergyman or magistrate, or without any functionary in these countries, are valid.”

From this it follows that in the eyes of the Catholic Church, marriages made since April 19th, 1908, before the Protestant clergyman or Magistrate, are invalid.

It may be observed that Germany and Hungary have refused to permit the promulgation of the Decree, and that in Italy no marriage is valid unless performed before the magistrate.

The difficulties, to avoid which the promulgation of the Decree was delayed for 350 years, have arisen immediately on its promulgation in Ireland, and, as above described, in Canada, a fact which cannot be ignored in connection with giving the Irish Parliament the control of the marriage laws.

It will, of course, be argued that the operation of the Decree in Ireland is met by the words of Clause 3:

“In the exercise of their power to make laws under this Act the Irish Parliament shall not make a law so as to ... impose any disability or disadvantage, on account of religious belief or religious or ecclesiastical status, or make any religious belief or religious ceremony a condition of the validity of any marriage.” [25]

This safeguard, imposing on paper, is not likely to be of much effect in practice. Cardinal Logue, Mr. Dillon and Mr. Hannay (George Birmingham) have all derided the efficacy of safeguards in words quoted elsewhere in these memoranda. A single question will show its hollowness. If the McCann case is possible when Irish marriage laws are subject to the Imperial Parliament, what may not be possible when the control of the Imperial Parliament is gone?

Here we come to a vital point, not touched by the legislative safeguard of Clause 3 - the Executive and Administrative powers of the Irish Government. Even were the Irish Parliament to abstain from legislating on the subject of mixed marriages, the Irish Executive could, simply by inaction, connive at the perpetration of injustice and iniquity. Lord Aberdeen's reply to Mrs. McCann's appeal is but a foretaste of what Irish Protestants might expect from the Nationaliat Executive.

The foregoing memorandum has been mainly concerned with marriage and divorce. The question of the custody of children need not be fully discussed. It naturally follows that the control of the laws respecting custody of children, &c., must accompany the control of marriage and divorce, and so the fore- going arguments can be applied to the question of children.