§ Dr. Phillimore
rose and addressed the House as follows;*
Mr. Speaker:—In conformity with the notice I have given, I have to request permission of the House to be allowed to bring in a bill to amend the 26th of Geo. 2, c. 33, usually denominated the Marriage Act. The measure I am about to propose has, in former parliaments essentially, and in substance several times received the sanction of this branch of the legislature; but in deference to objections entertained in another place, objections, however, in which it is but fair to add none of the distinguished lawyers either within or without this House, with whom I have consulted as to the formation of the bill, at all concur; still, in deference to those objections I have made considerable alterations in the structure of the present bill, and I am now about to introduce it, altogether re-cast and remodelled, to the House.—Under these circnmstances, I feel it due to those members of the present House of Commons, to whose judgment and consideration this measure is now for the first time submitted—I feel it due to a question of such vast importance, affecting, as it necessarily must, to a certain extent at least, the very foundations of social order, and involving as it does in its consideration the peace, and happiness, and comfort of a prodigious number of individuals in this country;—I feel it due (if I may say so without arrogance) to the part I have myself taken in the furtherance of an object I have so much at heart—to explain to the House, as briefly as the nature of the subject will admit, the extent and magnitude of the evils which have grown up under the operation of the law as it now stands, and the nature of the remedies that I have it in contemplation to apply to them.
In order to put the House fully in possession of the scheme of the measure, I must recall their recollection for a few minutes to the state of the matrimonial law of England anterior to the passing of the Marriage Act in 1753; and, I shall do this the rather because such a statement will necessarily carry with it a complete refutation of the principal objection which* From the original edition printed for John Murray, Albemarle-street.1327 on former occasions, has been urged within these walls against the Measure; namely, that it was an innovation upon long-established laws, and a departure from usages handed down to us from our ancestors.—By whatever title the Marriage Act may recommend itself to our favourable consideration (and I shall presently shew that there are titles by which it does so recommend itself), whatsoever respect or admiration it may claim at our hands; most undoubtedly it cannot rest its pretensions to them on the antiquity of its origin—to antiquity at least it can have no claim. The act itself stands remarkable for being the very first instance which occurs in our annals of any interference on the part of the legislature with the general * matrimonial law of the land. Neither at the Reformation, nor at any period in the long interval which elapsed between the Reformation and the year 1753, did our ancestors think it advisable to` innovate upon the law in this respect.† Up to that period the law of marriage stood (as was generally the case throughout Europe) on the basis of the canon law alone—up to that period nullity of marriage, in the sense contemplated by the Marriage Act, was utterly unknown to the law and constitution of England. Nay, so repugnant is this doctrine to the uniform tenour of our laws—so hostile, as it were, to the very genius of our constitution—that those eminent lawyers of ancient days, who distinguished themselves by their struggles against the en-* The 32 H. 8, c. 38, cannot be so considered; it declared, that all persons might lawfully marry, but such as were prohibited by God's law; and that all marriages contracted by lawful persons in the face of the church, and consummate with bodily knowledge, and the fruit of children, should be indissoluble; but it did not lay down any general law for the regulation of marriage.† It is not my wish to have it understood, that an alteration of the law was never contemplated before this period; for I find that by an order of 31st March 1677, Dr. Lloyd and Dr. Exton (two eminent civilians of that day) were summoned to attend the Lords' committee, to consider of an act to prevent clandestine marriages; and, I believe, that soon after the Revolution a bill to prevent clandestine marriages passed the House of Lords, but was lost in the House of Commons.1328 croachments of foreign law, would have recoiled with bettor at the possibility of their remote descendants being bastardized in any case where there had been a de facto marriage between the parents, and where that marriage had remained unquestioned and unimpeached during the the life time of the parties who contracted it.
Prior to the year 1754, any persons having attained the age of consent, which by the common law, * as well as by the common law,† was fixed at fourteen in males, and twelve in females, were competent to contract marriage; and provided a minister in holy orders assisted at the ceremony, whether it was publicly solemnized in the face of the church, or clandestinely performed in a private chapel; whether it was had with or without the consent of the father or guardian, it was alike indissoluble.—Again, if two persons having attained the age of consent, i. e., if a male of fourteen, and a woman of twelve years of age, entered into a contract per verba de prcesenti‡, as it was termed, or an agreement to contract marriage, the contract was indissoluble, and either party might, at any subsequent period of their joint lives, be compelled, by a suit in the ecclesiastical court, to solemnize a marriage in pursuance of that contract. Further, if any boy above the age of seven, but under the age of fourteen, or any girl under the age of twelve, agreed to marry, the marriage unquestionably was only inchoate and imperfect; but if, on attaining the age of consent,§ they* 1 Inst. 79.† Decret. lib. 4, tit. 2, cap. 3, 4. The probability is, that both the common and the canon law derived their rules on this head from the Justinian Code. Cod. 5,60. 3.—Dig. 23, 1–14.‡ Si inter virum et mulierem legitimus consensus interveniat de prœsenti, ità quod unus alterum, mutuo consensu verbis consuetis expresso, rccipiat, utroque dicente: Ego to in meam; et Ego le accipio in meum; vel alia verba consensurn exprimentia de præsenti: sive sit juramentum interpositum sive non; non liceat alteri ad alia vota transire: quod si fecerit secundum matrimonium de facto contractum (etiam si sit carnali copulâ subsecuta), separari debet, et primum in sua firmitate manere.—Decret. lib. 4, tit. 1, c. 31.§ rom the age of seven to the age of1329 expressed their intention to abide by the engagement they had entered into during their infancy; the contract became indissoluble, and they might at any time be compelled, as in the former instance, by a suit in the ecclesiastical court, to celebrate a marriage in conformity with that contract. There were, it is true, laws* inscribed in the statute book;—there were ecclesiastical constitutions and canons† in existence, against irregular and clandestine marriages—the priest who solemnized them, and the parties who contracted them, were alike liable to punishment and censure; but the contract itself was, indissoluble; and the practical result was, that those restrictions which a sense of duty and propriety—a deference to parental authority—the fear of temporal punishment—or the dread of, ecclesiastical censure—might seem to impose, were found by experience utterly unable to withstand the impetuosity of youthful passion, and snares of artifice and fraud. In one case, and in one case only,‡ could marriage once had, be annulled and rendered void; that was in the case of a marriage by affinity, or, as it is otherwise termed, of an incestuous marriage; but even in this solitary instance, the marriage could only be annulled by a suit, and after proceedings had in a court of competent jurisdiction; and if such suit was not instituted, and the sentence pronounced, during the life-time of both the parties, all future inquiry into the legality of the marriage was barred, and the issue of it succeeded, without mo-twelve, as to the woman; and fourteen as to the man, they cannot contract matrimony de præsenti, but only de futuro.—Swinburne, s. 7.*4th and 5th, Ph. and M. made every man liable to fine and imprisonment, who married a woman child under sixteen years of age; and gave her estate during her husband's lifetime to the next heir;—but the marriage was indissoluble. By the 6th and 7th Will. 3rd, c. 6th; 7th and 8th. Will. 3rd, 35, 10th Ann. c. 19, various penalties were imposed on clergymen who married parties without publication or banns or without license.† See the 62nd Canon.‡ A marriage with a person who was under a præ-contract to another person, was placed on the footing of a marriage with one who had already a husband or wife.1330 lestation or impediment, to the estates and property of their parents.
Such was the state of the marriage laws—such the sanctity with which the ceremony once had, was upheld—such the indissoluble nature of the bond—within seventy years of the period at which I am now addressing you; therefore, with his usual propriety and accuracy of expression that Mr. Justice Blackstone,* in commenting on this branch of English, law, characterized the Marriage act as an innovation upon our ancient laws and constitution."—Let not the House imagine for a moment from this statement, that I am about to endeavour to persuade them to revert to the ancient law. I know too well the inconveniences with which the systems fraught, and the abuses to which it was liable—indeed, any one but slightly conversant with the history of the times to which I have referred, must be sensible that the law of præ-contracts, and the impunity with which clandestine marriages were celebrated, not only in the chapels of the Fleet-prison and May-fair, but generally throughout the kingdom, justly excited the scandal and indignation of our forefathers, and called loudly for the redress and reformation they experienced at their hands.† Fox what purpose, then, have I made this reference? Partly, Sir, to tear off the Veil of antiquity under which it has been attempted to shroud and conceal the deformity of the: Marriage act; and partly also, I am free to confess, with a view of showing that, by an impulse not unnatural in the human mind when employed in the investigation and correction of long existing abuses, the framers of that act were precipitated from one extreme to another—from the extreme of laxity and negligence to that of undue severity and rigour.
The history of the Marriage act is weir known; it originated in the House of Lords—several members of that branch, of the legislature having been scandalized at some instances of clandestine and formal marriages which had been brought* Blackstone's Commentaries, Vol. 1. p. 438.† It was stated, in the course of the debates on the Marriage Act, in the House of Commons, as an authenticated fact, that 6,000 marriages had taken place, within one year, in the chapel in the Fleet prison. See Parl. V. 15, p. 19.1331 under their cognizance, while in the exercise of their judicial functions, directions were given to the twelve judges to prepare a bill to remedy the existing abuses. In conformity with these directions a bill was framed, but it was found so objectionable in. its provisions that it was speedily abandoned. Lord Chancellor Hardwicke then undertook the task, and brought in the act in question. It passed the House of Lords,* with little opposition; but in its progress through the Commons it underwent a very protracted discussion—encountered the most violent opposition that is recorded of any measure† that was agitated at that period, and engendered heats and animosities, of which the memory is scarcely yet entirely extinguished. In fine, it was returned to the upper House, so modified and changed as to its provisions as scarcely to be recognized by those with whom it had originated. Lord Hardwicke nevertheless strongly pressed the expediency of passing the bill in its altered state,‡ as an alternative preferable to the risking the loss of the measure, distinctly stating that opportunities might be taken in a future session to amend the exceptionable clauses which had been introduced into the act. And here, Sir, I must not be understood as presuming to argue that the alterations now proposed were at all in the contemplation of lord Hardwicke. I am free to confess that perhaps they were the very last which would at that period have suggested themselves to his consideration; he depended on other machinery for the execution of his measure—but this I will maintain, that lord Hardwicke was well aware that a law, which went at one blow to overturn the matrimonial law of England as it had existed for centuries, might naturally stand in need of revision and re-consideration; and that if he had lived to see the practical working of this measure, and those effects which never could have been anticipated by him, he would have been one of the first persons to have proposed a remedy for the evils it has introduced into society.
* It was opposed by the duke of Bedford, and eleven or twelve peers.† Perhaps I ought to have excepted the Jews Naturalization Bill.‡ See Hardwicke papers; the account is given in a letter from Dr. Birch to Mr. Philip York. and will be found in the parliamentary History, v. 15, p. 84.1332 I must not be understood from any expression that may escape me in the course of this discussion, to derogate from the real value of the Marriage Act. The act is valuable for its leading and characteristic principle, for the very basis on which it rests, viz., that no person under the age of twenty-one years should marry without the consent of a parent or guardian.—In marriages by banns, the publicity of the notice, it was presumed, would afford ample opportunities to the parent or guardian to express his dissent, if he felt it his duty so to do. But, in all marriages by license, with which I propose first to deal, it was made an imperative provision, "that there should be the consent of the father of the party under age, (if then living), or if dead, of the guardian or guardians lawfully appointed, or one of them; or, if there should be no guardian or guardians, then of the mother if living and unmarried; or if there should be no mother living and unmarried, that of the guardian or guardians of the person appointed by the court of chancery." And assuredly it is a just and wise provision, that those whom the policy of the law protects in all other contracts, should be protected also in this the most important of all contracts, the one, too in which from the passions incident to youth, the warmth of temperament, and the carelessness of the future by which that season of life is so peculiarly characterized, they are most likely to be exposed to the allurements of temptation, and to become the victims of artifice and fraud. I am quite convinced that authority to the extent given by this law ought to be conferred on parents or guardians, as the best preservative against those misfortunes which so frequently embitter the whole tenor of domestic life, and rend in pieces the dearest ties which unite individuals together in society.—The Marriage Act is valuable also for having swept away for ever all marriages per verba de prœsenti, and expunged * from the matrimonial code the whole law of præ-contracts which were the scandal and disgrace of the times in which they flourished. It is valuable also for the institution of the registration of marriages; these provisions would of themselves be sufficient to entitle the framers of the statute to the gratitude: of posterity.* The law of præ-contracts, in Ireland, was not repealed till the 58th Geo. III. c. 81.1333 The objections to the statute; the evils I am anxious to remedy, arise from the sanctions by which it is attempted to be enforced, and the penalties which have been annexed to the violation of its enactments—sanctions holding out such an encouragement to fraud, such a lure to perjury, that they are a disgrace to the Statute book—penalties so tremendous, breathing such vengeance against posterity, that eminent judges in expounding the law, have been compelled to admit that they were intended to operate against the innocent *; penalties which allow to the most guilty not only escape, but impunity—impunity, indeed, is too mild a term, they go farther, they hold out to guilty passion the strongest stimulus to the encouragement and commission of crime. The fact is, the framers of the act looked to terror for the inforcement of their law—it was by dint of this engine, and this engine alone, that they hoped to insure the execution of it. The machinery has failed in its operation—the effect of the law has been very generally countervailed and defeated, and under the shadow of it an extensive system of injustice and immorality has been fostered, and reared to maturity.
In two instances marriages, by the operation of this act, become null: First, When they are solemnized under the age of twenty-one years, without the previous consent of the parent or guardian. Secondly, When they are solemnized in churches and chapels, in which banns had not been published prior to the 25th of March 1754. By a singular anomaly, the penalty has scarcely ever been allowed to attach in the latter instance, whereas, in the former instance, no obstacle has ever been interposed to the unrestricted scope and operation of the law. By this enactment of nullity, they became, as it were, marriages which never had any legal commencement. No subsequent act, therefore, no recognition, no acknowledgment, no cohabitation of the parties after they have attained their majority; no lapse of time can give effect and validity to such marriages, tractu temporis non convalescunt. It follows therefore in practice, that a man frequently obtains a license on a false statement of his own age, or of that of' the person with whom he is about to intermarry; this may be the effect of error,* King v. Inhabitants of Preston; 2 Burrows, 827, 1 Blackstone, 192.1334 of design, or even of mere inattention to the subject matter of' the affidavit, but from whatsoever cause it proceeds, the effect is the same; it is competent to him at any subsequent period of his life to avail himself of his own erroneous statement, and in defiance of the oath he made when he obtained the license to prove the minority of either of the parties at the time of marriage, and the absence of the previous consent required by the statute; and he is then, as a matter of course entitled to a sentence declaring this marriage to have been null and void, ab initio. This is no fanciful or theoretical, no accidental, or isolated case. The time when he shall lay claim to the benefit of his own fraud or of his own ladies, whichsoever it may be, will vary according to his temperament, to his passions, his temptations, or even his caprice; in short, according to every circumstance which ought to have no effect in licensing the dissolution of the marriage contract. Sometimes the application to the ecclesiastical court for a sentence of nullity will be made within a year after the marriage; in other cases, seven, eight, nine, or ten years, will be suffered to elapse, and instances are not rare of the application having been made after a cohabitation of more than twenty years.
I am well aware that persons, not conversant with the actual operation of this statute, will scarcely believe this statement; it is, indeed barely credible, that, in the state of civilization in which we are living, and under the sense which is happily entertained in this country of moral and religious obligation, it should be possible for a man, when impelled by passion, or ruffled in temper, or sated with enjoyment to discard his wife at his pleasure—when elated with prosperity, to dismiss her who has borne together with him the struggles of adverse fortune; or when too indolent to maintain his children, to rend asunder all the tender charities of life, and turn his offspring loose upon society, as helpless and fatherless vagabonds. Yet these and similar proceedings are licensed by the Marriage Act, and those who are acquainted with the proceedings of the courts in which such facts are most likely to be developed, will know that I am not indulging in an exaggerated statement, or referring to facts of rare and unfrequent occurrence. Nor is the institution of proceedings of this description confined to the husband (for so, in common par- 1335 lance, he* may be called) alone; on an average, I think these suits almost as frequently originate with the wife†, who, however forgetful she may be of the delicacy of her sex, has seldom an opportunity of adding perjury to her disgrace, as the license is generally obtained upon the oath of the man ‡.
Injurious as these examples are to society, degrading as they are to the institution of marriage, the evil does not rest here; it is on the innocent issue of these ill-fated marriages that the severest punishment is inflicted, the children, the grand-children, the remote posterity, the very nati natorum may at any time be amerced of their estates and possessions, on proof made of the want of lawful consent to any one of the marriages of the description to which I have been alluding; so indelible is the stain, that it can never be effaced. I am bold to maintain, that, under the actual operation of this law, no person who hears me is secure in the possession of entailed property—no member in the other House is safe in the enjoyment of any high dignity, which has descended to him in virtue of any marriage contracted since the 25th of March, 1754; for who can say that any one of the male or female ancestors from whom he deduces his descent, may not have married in violation of the strict letter of the Marriage Act. Centuries may roll on,—generation may succeed generation—but the* He is the de facto husband, although if the marriage should be declared null ab initio, he is not a husband in the sense of the law.† The case of Watson v. Little, (Consist. of London, May 21, 1805,) furnishes a remarkable instance of a shameless proceeding of this description on the part of the woman. The marriage took place in 1787, the man obtaining the license on an affidavit that both parties were of age, he knowing himself to be so, and the woman having assured him that such was the fact as to herself. They had issue six children, and cohabited eighteen years, when the woman instituted a suit for a nullity, and on proving that she was a very few weeks less than of age when the license was granted, obtained a sentence, and bastardized her issue.‡ Only two instances occur to my recollection, in which I have observed that the license has been obtained upon the oath of the woman.1336 lapse of time affords no protection against the operation of this law; the very foundations of property are shaken by it to their centre. I really believe there is no law at this moment in civilized Europe which savours so much of barbarism; the cruelty of its operation is unparalleled.—The terms in which the nullity is denounced are probably borrowed from an enactment of nullity, which is to be found in one of the decrees of the council of Trent*. but in that decree the penalty only attaches to those marriages which are performed without the intervention of a minister in holy orders, and without the presence of two or three witnesses; that is, it defines what ceremony shall constitute a marriage; it does not as in the case we are considering, make the nullity depend upon the conduct of the party who has at once the power of creating it, and the power of concealing it.—But whatever may be the enactments of foreign law, sure I am that the nullity clause is at variance with the whole spirit and analogy of our English law. I speak not of the matrimonial law alone, but I maintain that it is in direct violation of those great and fundamental principles on which the law of England proceeds; it undermines prescription, the basis on which we rest for the permanence and security of our possessions. It subverts the law of inheritance—for by the law of inheritance no man can be stript of an estate after he has possessed it sixty years without molestation—a possession of sixty years quiets all difficulties of title, to the law of marriage alone there is no limitation of actions.
Unquestionably Ireland has, in this respect, taken the lead of England in civilization and humanity. The legislature of that kingdom passed an act so long ago as in the year 1735,† in its spirit and pro-* Qui aliter, quam præsente Parocho, vel alio sacerdote de ipsius parochi, seu ordinarii licentiâ, et duobus vel tribus testibus, matrimonium contrahere attentabunt: eos sancta synodus ad sic contrahendum omnio inhabiles reddit; et hujusmodi contractus irritos et nullus esse decernit, prout cos præsenti decreto irritos facit et annullat.—Can. et Dec. Conc. Trid., Sess. 25, c. 1.† 9 Geo. 2, c. 11.—By this act marriages and matrimonial contracts, where either of the parties are under the age of twenty-one, without consent of the1337 visions very much resembling the Marriage act, except that its operation seems to be restricted to persons possessed of as certain amount of property: by that act, marriages of minors, without the consent of the father or guardian, were rendered null and void ab initio; but in a subsequent clause bounds were set to, the operation of the law, and it was provided that, if no suit should be instituted within a year* after the parties attained their majority, the marriage should be good and valid to all intents and purposes what soever.
In order to bring the facts I have stated home to the judgment and feeling of the House, perhaps it may be permitted to me to refer to the particulars of some of the cases which have occurred in the ecclesiastical courts. The cases of Wattle† v. Hathaway, and of Hewittt‡ v. Bratche, furnish as strong an illustration as can be adduced of the effect and operation of the law; and they are of the highest authority, as the sentence in both of them was affirmed by the Court of Delegates. In the first, that of Wattle v. Hathaway, the woman was a minor at the time of the marriage; the husband obtained the license by making oath that she was of age. They cohabited some years, and had issue four children; when being in great poverty and distress he went to India, and there realized a considerable fortune. He returned to Eng-father, or, if dead, of the guardian, given in writing under his hand, or if there be no guardian, of the lord chancellor; are declared to be null and void, if the minor is entitled to 100l. per annum, real estate, or personal property to the amount of 400l.; or if the father and mother of the minor are in possession of 100l. per annum, real property, or 2,000l. personal property.—By a subsequent clause, persons marrying, or contracting to marry, a minor, without the consent above stated, possessed of 10,000l., forfeits 500l. otherwise only 200l.* Sect. 3.—"Provided always, that if no such suit be commenced within one year after the solemnization of such marriage, or the making of such matrimonial contract, such marriage or matrimonial contract shall, from the expiration of the said year, be good and valid, to all intents and purposes, as if this act had never been made.† Delegates, 1789. ‡ Delegates, 1809.1338 land; and after his marriage had subsisted twenty seven, years, instituted a suit for a nullity of marriage, on the ground of his wife having been a minor at the time ballad sworn her to be of age, and he succeeded in his suit.—In Hewitt v. Bratche also, the woman was a minor at the time of the marriage the man obtained the license by swearing that she was of age; and twenty-five years afterwards, he availed himself of his own perjury, to obtain a sentence declaratory of the nullity of the marriage.
I now pass to four cases which were decided in the courts at Doctors' Commons, two years ago, within the space of two months. I select them in preference to many others, because they vary in their circumstances, and show how generally the intention of the framers of the Marriage act has been defeated by the actual operation of the law.—In Johnston v. Parker, the marriage was in 1796. The man swore he was of age at the time, though in point of fact he wanted five weeks of his majority. As, proof of this fact, the marriage was, at his suit, declared null* by the consistory court of London, in April 1820, after it had subsisted twenty-four years.—In Riddall v. Leddiard, the marriage was solemnized in October, 1818†, with the consent of the guardian of the woman, she being a minor; the guardian, however, was appointed by a will attested by one witness‡ only, and a statute, passed in the time of Charles the 2nd, requires two witnesses to any will appointing a guardian; and, on proof of the fact of the will having been attested by only one witness, the marriage was held to be null and void by the Arches Court of Canterbury, on the 8th day of May, 1820. The learned judge in giving sentence in this case, concluded with the following manner: "This marriage is in no degree clandestine, it has been solemnized with all the requisites of law. The court must deeply lament* I rather apprehend that I may have inaccurately stated the date of the final sentence in this case; the proceedings are not at this moment within my reach, but I believe that the cause, though in substance decided in April 1820, stood over for further evidence as to one fact till a later period; the issue of the suit is correctly stated.† This suit was brought by the woman.‡ 12 Car. 2, cap. 24, sec. 8.1339 to see such a case brought before it; it is a case of hardship on society that persons should have been so long living together as man and wife, and be cast loose on society; but it is in vain for the court to observe on the hardship so long as the law continues on its present footing. As the law now stands, there is nothing to be done but to pronounce this to be an invalid marriage."—In Hayes v. Watts, the marriage was in 1800,* with the consent of the mother, who supposed herself a widow, her husband having gone to sea ten years before, and been reported to be dead. He, however, returned to England, and on proof of the want of his consent to the marriage, it was in May, 1820, adjudged to be null.—In Jones v. Haslewood, the parties were married in 1782,* From a note I have of this case, it appears that the following amongst other expressions fell from the learned person who pronounced judgment in this case:This marriage was not clandestinely had, but it is admitted, that the woman was a minor, married by the consent of the mother who was supposed to be a widow. The father was in fact then living, he is still living, and he only could legally give consent; without his consent the marriage is null and void. Eighteen years after the celebration of the marriage, without any alleged impropriety, this proceeding is instituted, not at the suit of the husband, as more frequently happens, but at that of the wife. It does not appear whether there is any issue. It is the duty of the court to be completely satisfied that the marriage was a mere nullity: if it was, I have only to pronounce it to be such. The marriage took place on the 29th of May, 1800. The woman was rather under twenty years of age; her mother consented to it; there is no suggestion of any fraud; but there is no doubt as to the minority; the very circumstance of her being married as a minor With the consent of her mother, establishes that fact. The want of the consent of the father is proved. Though the parties did contract marriage, and were connusant of each other's age, yet either of them have a right to a sentence from this court, declaratory of the nullity: indeed, no such sentence is necessary; but it is a matter of convenience to the parties, and a duty to the public, to declare the situation in which this man and woman stand, to each other.1340 by a license obtained by the man, in which both parties were stated to be of age. He, however, was a minor, and had not the consent of his father to the marriage; and, on proof of these facts the nullity was established by the court of arches on the 20th of May 1820, after the marriage had subsisted thirty-eight years, in consequence of a suit promoted by the woman.
Severely as the law operates on the description of cases to which I have alluded, there is yet a peculiar cast of persons on whom the penalties of this vengenance-breathing statute press with infinitely greater rigour,—I mean on illegitimate children married, while under age, by license, especially on all those who were married prior to the decisions which of late years have taken place on the construction of the statute. In many instances these ill-fated persons have become the victims of an interpretation put upon the statute, which men of ordinary capacity and ordinary knowledge applying their minds to the consideration of the subject, could not have- foreseen or anticipated. In cases for instance, where the putative father—in others, where the testamentary guardian appointed by the putative father—in others, where the natural mother have been present at and consenting to the marriages,—the marriages have nevertheless been held null and void for want of the legal consent. I dispute not the soundness of the decisions which have ruled this point; but this I say, that it required legal subtlety and acuteness; it required a mind exercised in legal questions; it required a deliberate consideration of the intent and spirit of the statute, to ascertain that none of the persons whom I have been describing were qualified to give the consent exacted by the law, and to arrive at the settled conclusion, that the marriage of every illegitimate minor which was solemnized without the consent of a guardian appointed by the high court of chancery was ipso facto void. I am justified in these assertions, because it was only after long and elaborate arguments in various courts of justice, and after doubt and hesitation on the part of some of the learned judges, before whom this question has been at different times argued, that the point was finally determined. The first decision on the subject was given by sir William Scott, in the case of Horner v. Liddiard, in 1799; and ten years subsequent to this lore Ellen- 1341 borough, after some hesitation,* as it has always been supposed, gave a decision to the same effect in the court of King's-bench, in the case of Priestly v. Hughes.
Harriet Liddiard was the natural daughter of John Whitelock, by Sarah Liddiard. Mr. Whitelock at his death bequeathed to her considerable property, and appointed, by a will regularly executed, her mother and another person, his executors and the guardians of the person of his child. Soon after she attained the age of twenty, she was married to Mr. Horner,† with the entire approbation and concurrence of her mother (the other guardian appointed by the will being dead), which approbation was expressed in the license, and confirmed by her presence at the wedding. Three years afterwards, this marriage was held to be null and void for want of lawful consent, on a suit instituted by Mr. Horner.
In Priestly versus Hughes,‡ John Wynne Hughes wàs married in September 1792, to Jane Roberts, the illegitimate daughter of Thomas Jones, in the presence of her natural mother, and with her consent formally expressed in the license. John Wynne Hughes died in 1793, leaving an only child, a daughter.* Mr. Justice Le Blanc and Mr. Justice Bayley concurred with lord Ellenborough in this judgment. Mr. Justice Grose was dissentient from it. He considered the consent to the marriage of an illegitimate minor to be a casus omissus in the statute. This case was twice argued before the court, and the court took time for consideration.In the King v. the inhabitants of Hodnet, 1st Term Reports, p. 96. The marriage of an illegitimate minor by license was held to be null and void under the Marriage act, but in that case no consent was given by any one, and the question was expressly decided by lord Mansfield on that ground.† See Dr. Croke's report of the case of Horner v. Liddiard, Consistory of London, 1799.She was described in the license as Harriet Liddiard, otherwise Whitelock, a minor; and, it was stated that the marriage was about to be solemnized by and with the consent of Sarah Liddiard her mother and guardian. The marriage took place on the 7th of March, 1796. The suit was instituted in February, 1799.‡ East. Term Reports, p. 1.1342 In 1796 the father of John Wynne Hughes died, leaving considerable property, which apparently vested in his grand-daughter, but in 1809, that property was wrested from her by the heir at law, who proved that her mother had not the consent of a guardian appointed by the Court of Chancery to her marriage.
Subsequent to these decisions, many cases of a similar description have occurred, and if the law be not altered many more must occur: I will content myself here with mentioning one which was decided in the course of last term. Frances Davidson, born in August, 1779; was the natural daughter of James Boorder. Her father died while she was very young. In December, 1798, she was married to John Henry Carles, on whose oath, and on that of her mother, the license was obtained; the mother, too, was present at the marriage, and signed the entry in the register. In December, 1821, this marriage was pronounced null and void, upon a suit brought by the woman, after it had subsisted twenty-five years.
Had I not been apprehensive of exhausting the indulgence of the House, I could readily have prepared myself with the details of an infinite variety of cases of this description, which, have occurred within the eighteen years during which I have been conversant with the practice of ecclesiastical courts. I believe, for a considerable time after the passing of the act, cases of this description were comparatively few in number, but they have exceedingly multiplied of late years, and for obvious reasons will probably proceed in an increasing ratio. In order to form some calculation as to the probable amount of them, I have procured a list of all the causes decided in the Arches and Consistory courts, since 1810; and I think I have seen enough of the nature of these causes (though the list has only been a few hours in my hands) to justify me in venturing to affirm, that within this period at least forty cases of nullity of marriage, on account of the want of the previous consent required by the statute, have been decided in the Consistory court of London, and at least twenty in the Arches court of Canterbury. If we further consider that, in addition to the two courts to which I have alluded,* all* It consists with my knowledge that1343 the Consistorial courts, and all the Ecclesiastical courts, of peculiar and exempt jurisdiction, within the provinces of Canterbury and York, have cognizance of suits of this description—if we add to this, that many of these cases come before magistrates in their sittings at quarter sessions (as several hon. members, whom I see in different parts of the House, will testify)—that they sometimes find their way into courts of common law—and finally, that there are many of them which are never brought into any court, for it has been repeatedly held that the sentence of a court is not necessary to establish the illegality of one of' these marriages—if we take, I say, all these circumstances into our calculation, we must be irresistibly impelled to the conclusion, that the evils I am endeavouring to remedy are of a nature and extent to call loudly for legislative interference.
I now proceed to the details of the measure. The first clause in the proposed act will go to the entire repeal of the nullity clause in the Marriage act. Instead of a marriage, in which the consent required by the statute has not been given, being null and void to all intents and purposes in law whatsoever; I propose to give to the father of the minor, if living; if dead, to the guardian of the person; if there be no guardian, to the mother, if living and unmarried; and if there be no mother living and unmarried,within the period alluded to, suits for nullity of marriage on this ground, have been entertained in the Peculiars Court of Canterbury, in the Consistory court of York, in the Court of the Dean and Chapter of Westminster, in the Consistory of Rochester, &c. &c. It is to be observed also, and it is worthy of the most serious consideration, that causes of nullity involving such important rights of property, and affecting, as they do, the legitimacy of issue, as well as the validity of the marriage bond, must frequently be decided in the country Ecclesiastical courts (which unfortunately abound throughout England), by persons who have had no opportunity of acquiring legal knowledge and experience, but whose sentence nevertheless, if not appealed from, is as valid and conclusive as it would have been if it had been pronounced by either of the learned judges who preside over the Ecclesiastical courts at Doctors Commons.1344 then to a guardian appointed by the court of chancery—the power of annulling it, by a suit to be instituted in the ecclesiastical court of competent jurisdiction for that purpose. In my former bill, a similar power was given also to the parties contracting the marriage, for six months after they should have attained their majority—if the House wish that persons should be vested with this authority to impugn their own acts, I must bow to their decision. But, after the most mature consideration that I have been able to apply to the subject, I really have not been able to bring myself even to appear to sanction a course of proceeding which, in principle, seems to me so utterly unjustifiable. I strongly feel that minors who, by their own voluntary act may have united themselves in marriage, and who have ratified that act by continuing to cohabit one day after they have attained their majority, ought not to be authorised to recede from engagements they have solemnly contracted long after the age when they were capable of consent, and long after the period when, if they had been married by banns, the marriage must have been indissoluble.
In order to obviate a possible inconvenience which it was suggested might arise from parties clandestinely married without the consent of their parents or guardians withdrawing beyond sea, or without the jurisdiction of the English ecclesiastical courts, and remaining abroad till they might attain their majority, and being enabled by such conduct to baffle the intent, and elude the operation of the law; I have introduced a clause,* bor-* 23 George II., cap. 10 (Irish), was passed for the purpose of explaining and making more effectual the 9th of George II., cap. 11. (Irish). The following is the clause to which I allude: "And whereas since the making the said act, many persons intending to avoid the force and effect thereof, and to evade the same, have left this kingdom or absconded to avoid the service of process in a suit, to be instituted pursuant to the said act for annulling such marriage or matrimonial contract: be it enacted by the king's most excellent majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present parliament assembled, and by the authority of the same, That from and after the 29th day of September 1750, it1345 rowed in substance from an act which passed the Irish legislature in 1749, which will have the effect of authorizing parents and guardians, on the occurrence of such a case as that which I have stated, to file a libel in the ecclesiastical court of the diocese within which the minor was resident at the time of the marriage, and empowering the ecclesiastical court to proceed to hear and determine the cause in the same manner as if the party proceeded against was resident within theshall and may be lawful to and for the father, guardians, or guardian of such infant, who shall marry without such consent as aforesaid, and the parties entering into the same or either of them, shall leave this kingdom or abscond, by which means it may be difficult to serve process in a suit to be instituted for annulling such marriage or matrimonial contract; or in such case, if there be no father or guardian, for any person or persons to be appointed by the lord chancellor, the keeper or commissioners the great seal, for that purpose within one year after such marriage or matrimonial contract, file an allegation in the ecclesiastical court of the diocese, where such infant was usually resident before his or her going out of this kingdom, or entering into such marriage or matrimonial contract, in the same manner as if the necessary parties had appeared in a suit instituted in the said court to annul such marriage or matrimonial contract; which ecclesiastical court shall thereupon issue process to compel the persons so marrying or entering into such matrimonial contract, to appear in the same court within a time therein to be limited, and shall have full power to proceed to hear and determine the said cause, in the same manner as if the parties thereto were resident, and the said marriage or matrimonial contract entered into within the said diocese, if it shall appear by affidavit that such process was served in the usual manner on the said parties, whether in this kingdom or in any parts out of this kingdom; and, if it shall appear in the said suit by proper proof, that the said recited marriage or matrimonial contract was contrary to the said act, such marriage or matrimonial contract should be adjudged and declared by the ecclesiastical court where such suit shall be commenced, to be absolutely null and void to alt intents and purposes.1346 diocese, if it shall be shewn by affidavit that such party had been served with the process of the court, and consequently had received due notice of the pending proceedings.
So much for the prospective part of the bill; but I feel that we should fall infinitely short of our duty, lamentably short of that justice which the country has a right to expect from our hands, if we did not, to a certain extent at least, give a retrospective effect to this measure, and endeavour to alleviate that dreadful state of wretchedness and uncertainty in which so many individuals, and so many families have been plunged by the cruet operation of the existing law. Accordingly, the House will find in the bill, a clause which enacts that in all cases of marriages solemnized anterior to the passing of this act without the necessary previous consent, where both the parties shall have attained the age of twenty-one, and have continued to live together as husband and wife, such marriages shall hereafter be deemed good and valid unless either of the parties to such' marriage shall institute a suit in a cause of nullity, within six months after the passing of the act. It is with extreme reluctance that I have opened the door to the institution of suits of this description for six months after the passing of the act; nothing could have induced me to give way on this point,* but the apprehension which many of the friends of the measure entertain, that the omission of a proviso to this effect might endanger the success of the measure in another place.
On general principles, I feel the argument in favour of the retrospective operation of the bill to be exceedingly strong. If a law by experience is found: to be prejudicial to the community—if, instead of promoting order and equity and justice, it holds out a temptation to perjury and fraud, and tends by its operation and effect to vilify and degrade in the estimation of the community, that institution which for obvious reasons ought to be upheld as a primary object of respect and veneration; surely no delay should be interposed to the repeal of suck a law. Surely, also, the repeal should be as complete and effectual as possible, and in the manner best calculated to heal all* In the first bill I brought on this subject (in 1817), there was no such permission.1347 the wounds which, by its operation, it may have inflicted on society. Those who maintain the contrary position undoubtedly appear to reason more like lawyers than legislators or statesmen. The great and characteristic distinction between persons exercising these distinct functions I apprehend to be, that the lawyer has his rule to go by; his rule must be the sole guide of his conduct; he can travel neither to the right nor to the left of it; he cannot look dehors (if I may be allowed the expression) the letter of the law. Whereas the legislator stands on higher ground. He is to look to the fixed and immutable principles of morality—to the interests of social order-to the substance of original justice—to the two main pillars of all law—equity and utility. By utility I mean, not utility limited to the benefit or advantage of any particular individual, or any particular class of individuals, but general public utility, embracing the interest, and comprehending the welfare and good government of the whole community. If it were otherwise—if the existence of an unjust law were to be an argument in favour of its continuance—if it is to be maintained, that however true it may be that this law is undermining the foundations of society—is working iniquity, and fraught with injustice—yet because it has been acknowledged as the law, we must admit its operation up to a certain period—we must not put a stop to all the iniquity and all the injustice that we can—we must not benefit society to the utmost of our power, lest we should prevent some contingent benefit flowing from this unhallowed source to some particular individuals—if this is to be the course of reasoning seriously maintained on such a subject, we had better at once abdicate our functions as legislators. "Quod si populorum jussis—si principum decretis, sententais judicum—jura constituerentur—jus esset latrocinari—jus adulterare—jus testamenta falsa supponere—si hæc suffragiis aut scitis multitudinis probarentur." Sir, this language, powerful and eloquent as it is, is quite as applicable to the question we are discussing, as it was to that to which it was more immediately addressed. It is the language of one of the greatest statesmen and philosophers of antiquity—of one who had sounded the very depths of morality, of science and of law. He could not refrain from expressing his contempt and indignation 1348 at the idea of upholding, for one moment, the operation of any municipal law which impugned and counteracted the great and fundamental principles of justice. Mr. Burke emphatically expressed the same idea, when he exclaimed, "that it was not the black letter or the king's arms that made the law, but that we must look for it elsewhere;" and we find the same great statesman, in another passage of his immortal works, laying it down as an axiom, "that laws can derive no authority from their institution merely, independent of their subject matter." I am confident in maintaining, that the Marriage act, by its actual operation and effect, as far as any municipal law can license that which is a malum in se, does license adultery. If two persons of mature intellect, and perfectly competent to understand the nature of the contract in which they engage, are united together in a de facto marriage, deficient in no circumstance enjoined by the religious institutions of the State—if they cohabit together as man and wife, and acknowledge each other as such for many years after they have attained the age of twenty-one years, and then, advanced to middle age, separate, on the ground of the want of parental consent to their original union, and severally intermarry with other persons—will any one deny that persons so conducting themselves, though they may not be amenable to punishment according to the strict letter of the municipal law, are not, in the eye of God and man, guilty of the crime of adultery? Or can it be contended that the municipal law, which sanctions such conduct, does not, in point of fact, and according to the rule of that law which is engravers in our hearts, authorize the commission of adultery?
I have addressed thus much of the argument to the House in its legislative capacity; but to take the question on the lower ground, and to discuss the subject as lawyers, even here, I think, I shall be able to satisfy the House, if they are to be guided by precedents, that they ought to give a retrospective effect to this law; for I have a precedent to adduce, which, to borrow a trite expression, runs upon all-fours with the act which I am proposing to introduce. In 1781, the present marquis of Hertford, then lord Beau champ, brought in a bill to legalize all marriages which had been solemnized ht churches and chapels in which banns had 1349 not been published antecedently to the passing of the Marriage act, A settlement case, in which a question had been raised respecting a marriage had in a church of this description, had been taken by * certiorari to the Court of King's-bench, and that court had been unanimously of opinion that the marriage was null and void. Lord Beauchamp's bill† passed this House and the House of Lords, as it were, by acclamation—no dissentient voice was raised against it—not a syllable was uttered as to the rights of third parties; the bill was entirely retrospective—it gave effect to marriages which were null and void ab initio. It had no prospective operation; and in the course of the discussion which took place in the House of Lords, the lord chancellor (lord Thurlow) distinctly admitted that it was intended to operate upon all existing suits, and to put a stop to any proceedings in courts of law, which might be instituted to annul any marriage had in violation of this provision of the law. In 1805, bishop Horsley, no mean authority on any question of this description, brought a bill‡ into the House of* The king v. the Inhabitants of Northfield.—Douglas, p. 634.† See Parliamentary History vol. 22, p. 370.‡ Bishop Horsley in one of his charges to the clergy of the diocese of St. Asaph, gives the following account of the bringing in of this bill: "However, my reverend brethren, you may put your minds at ease, and the parties so unlawfully married may put their minds at ease, if it may give ease to your minds to know that all that is past, is pardoned and obliterated; and to theirs to know, that the knot so loosely tied at first is now drawn tight and hard, and made indissoluble, and that the legitimacy of their offspring is secured.In the spring of 1801, I carried two bills through parliament. The one is a general act, the 77th chapter of the 44th of the king, intituled 'An Act to render valid certain marriages solemnized in certain churches and public chapels in which banns had not usually been published before, or at the time of passing an act made in the 26th year of the reign of his late majesty king George the Second, intituled 'An Act for the better preventing Clandestine Marriages.' The other specially relates to the chapel of Voélas. It is the,1350 Lords to the same effect as that which lord Beauchamp introduced in 1781. This All likewise received the unanimous approbation of the legislature, and, when passed into a law, had the effect of legalizing many marriages which, under the enactments of the Marriage act, were absolutely null and void.
I am at a loss to understand how these remedial laws, expressly introduced with he view of quieting subsisting marriages, and legitimating the issue of them, are to be distinguished in principle from the clause which we are now discussing. They appear to me to stand precisely on the same ground. In both instances marriages exist de facto, but not de jure; in both instances, therefore, the marriages are absolutely null and void, consequently nothing short of a retrospective law can give effect and validity to them; such a law has been resorted to in one instance, why is it to be with holden in the other? The rights of third parties (if such unhallowed pretensions are to be misnamed rights) are alike affected in the one as the other case; for if there be a nullity of marriage, the relative situation of third88th chapter of those acts of the same year of the king which are local and personal, but to be judicially noticed. It is intituled 'An Act for enabling the officiating minister for the time being of the Chapel of Voélas, in the county of Denbigh, to publish banns and solemnize marriages in the said chapel.'By the former, the public act, all marriages solemnized in public chapels in which banns had not usually been published, without any other deviation from the provisions of the Marriage act, before the 25th day of March 1805, are made good and valid; and the clergymen who so solemnized them are indemnified against the penalties of the Marriage act; and, the registers of such marriages are made good and lawful evidence in all courts of law and equity. But it is farther enacted, 'that the registers of all such marriages as hereby are made to be valid in law, shall within fourteen days next after the said 25th of March 1805, be removed to the parish church of the parish in which such chapel shall be situate; or in the case of a chapel extra-parochially situate, then to the, parish church next adjoining to such extra-parochial place.'I hope the provisions of this statute1351 persons to the parties married, must be the same from whatever cause the nullity may have accrued. It has been said, however, that the law has been violated ignorantly in the one case, and knowingly in the other, and stress has been laid upon this as creating a distinction: to this I should say, that in the first place ignorance furnishes no legal excuse for the Violation of any law; and, in the next, giving the argument the utmost latitude of which it is capable, it furnishes no solid ground for contending that, in a moral and religious point of view, in cases of the description to those which I have detailed to the House, parties ought not to be so much bound by their own act, where they have cohabited as man and wife for so many years alter they have attained their majority, as they ought to be in cases where they may have unwittingly violated the law. Again, I should say, that, in many of the cases of nullity, for want of consent, the dictum of communis error facit jus, applies as literally as to the cases of nullity of marriage solemnized in churches and chapels, where banns hadhave been attended to; and, you will take special notice, that the benefit of this statute comes down only to the 25th of March, 1805. If, since that day any marriages have been or shall be solemnized in chapels in which banns had not been usually published before the passing of the act of the 26th of George the Second, all such marriages are still null and void, as they would have been if this act of mine never had been passed; the clergymen so solemnizing them are not indemnified; and, the registers are not evidence in any court of law and equity."—Bishop Horsley's Charges, p. 205.More marriages of the same description occurred, and they gave rise to the 48 Geo. III. c. 27, which was to the same purport, and had the effect of legalizing all the void marriages of the same description, which had occurred subsequently to the passing of bishop Horsley's act.The legislature has, in other instances, passed bills to give validity to de facto marriages, which were in themselves null and void, or concerning which a question might be raised. By the 47 Geo. III. c. 76, Marriages solemnized in the vestry-room of the parish of Wallsend, were legalized.1352 not been published anterior to the passing of the Marriage act. In very many cases which have fallen under my own cognizance, both parties have, at the time, and for many subsequent years, been completely ignorant of the invalidity of the marriage they have contracted. I could cite many cases of crying hardship on this head. One occurs to me at this moment. Upwards of twenty years since a marriage was solemnized between two minors, with the full consent and approbation, and in the presence, of the parents of both parties; four years ago the eldest daughter of that marriage was married, to the great satisfaction and delight, and, consequently, with the consent of her father. Children have been born from this marriage; but, subsequently to the solemnization of it, the father of the woman;, has discovered that he was a natural son, born before his parents were united in wedlock, an event which, up to this period of his life, had been studiously concealed from him. But mark the consequence; not only all his children, but all his daughter's children become, as it were, ipso facto,The 58 Geo. III. c. 84, after stating that doubts had arisen respecting the validity of marriages solemnized within the British territories of India, by ministers of the church of Scotland, declared, that all marriages of that description, heretofore had and solemnized, should be adjudged, esteemed, and taken to have been of the same effect, as if they had been solemnized by ministers of the church of England.The 21st and 22nd Geo. III. c. 25, (Irish) was passed to give retrospective effect and validity to the marriages of many Protestant dissenters, which were supposed to be nullities in law. The preamble stated, "That whereas the removing doubts that may have arisen concerning the validity of matrimonial contracts or marriages entered into between Protestant Dissenters, and solemnized by Protestant Dissenting ministers, will tend to the peace and tranquillity of many Protestant Dissenters and their families;" and then proceeded to enact "that all matrimonial contracts and marriages heretofore entered into, or hereafter to be entered into, between Protestant Dissenters, and solemnized or celebrated by Protestant Dissenting ministers or teachers shall be, and shall be held and taken to be good and valid to all intents and purposes whatsoever.1353 bastards; no guardian, appointed by the Court of Chancery, gave consent to either the one or the other of these marriages. A nullity has been ingrafted on a nullity, and so it might have gone to an infinitum; for if the grand-daughter had married with her father's consent, before the flaw had been discovered, her issue would have been equally illegitimate. It is in vain in this instance to which I have alluded, it is in vain that all the family, in all its branches, concur in an anxious wish to give stability to two marriages, solemnly and bona fide contracted, deficient in no religious ceremonies, and consolidated by reciprocal affection, and the birth of numerous issue; it is in vain that the parties themselves to each of these marriages, endeared to each other by the strongest ties of mutual affection, and deeply impressed with the sacred nature of the bond by which they are united, anxiously and earnestly seek for a process of law by which Their marriages can be declared Unless the House passes this remedial clause their case is hopeless; the children and grand-children must be degraded from the station they have hitherto enjoyed in society, and only be considered in law as the offspring of a meretricious connexion.
Indeed all the marriages of illegitimate children, solemnized without the consent of a guardian appointed by chancery, prior to the decision of Liddiard and Horner, in 1799, are, in point of fact, in exactly the same situation with that which I have just described. They were all contracted in utter ignorance of the law, and have the strongest possible claims on the prompt and efficacious interference of the legislature.
I have still another precedent, and in my judgment it is even stronger in some respects than the one which I have already cited. In 1814, several actions were commenced in the court of king's bench against clergymen, under the 43rd of George III., c. 37, for non-residence. Two hundred actions were stated to have been brought by one individual, and one hundred by others, to recover penalties incurred for a violation of the statute. In that case there was ground for saying, that interests were vested in the prosecutors: the suits had been instituted not only by the authority of an act of parliament, but under circumstances of peculiar encouragement, for it had been distinctly stated during the discussions which took 1354 place while the act was in progress in 1803, that the great object was to hold out the strongest inducements to informers to come forward and make complaints against any act which might be done in contravention to the provisions of the statute. In spite of all these considerations, the legislature in 1814,* passed an act by which they put a stop to all the existing suits to which I have referred, and thereby deprived the prosecutors of the right, it was admitted they had in law, to recover the penalties imposed by the act. There could only be one of two grounds on which parliament acted on this occasion; either it must have considered, that the general interests of justice called upon them to overlook all partial considerations of the advantages which might have accrued to particular individuals under the existing law; or, that the statute had worked in a manner which never could have been calculated upon by the legislature when they enacted it. I confidently ask the House to compare the operation of this statute to which I have just referred, with the operation of the Marriage act, to apply the same tests to the one as to the other, to try it by the same criteria; and to say whether they are not as imperiously called upon to pass a remedial act in the one as they avowedly were in the other case.
I now proceed to the other branch of the bill, namely, that which relates to marriages by banns. In directing our inquiry to this part of the subject, we must be instantly struck by the anomaly and inconsistency of the law. The same act which fulminates such terrible denunciations against shose who contravene its provisions, and inflicts such inexpiable penalties upon their unborn issue, with respect to the marriages by license, literally affords no protection whatsoever to a minor, who may be unwarily entrap it into the worst possible description of marriages, under a publication by banns. In the one instance the marriage never can be legalized, in the other it never can be called in question. With the View of preventing clandestine marriages, the statute enjoins, that banns shall be pub-*The act was entituled, "an act to discontinue the proceedings on certain actions already commenced, and to prevent vexatious actions under the 43rd of the king.1355 lished in the church of the parish within which the parties reside; but, by a subsequent clause it forbids any inquiry to be made as to the residence of the parties after a marriage has actually taken place. The consequence has been, that the enactment on this head has become as it were felo de se, and banns have of late years furnished the most effectual cover for evasion, deceit, and fraud, that the ingenuity of man could have devised.
Banns* in their original sense mean a proclamation; the object of them is to give notice of a transaction which is about to take place, and thereby to afford to all persons interested in opposing a marriage an opportunity of so doing; and, undoubtedly in the earlier stages of society, and before the population of the country had been condensed into great towns, resort could not be had to a more admirable mode of publication, independently even of the consideration, that in such a state of population the minister might be supposed to have such a personal knowledge† of the individuals of whom his flock might be composed, as would give him a general superintendence and control over their conduct. But under the existing state of society in this, and the other thickly-inhabited towns of this populous kingdom, a proclamation by banns has long ceased to operate as a notice; the names repeated by the clergyman are so numerous, that no one attends to the recital of them, and no one, by such a publication as that which takes* They were an institution of the council of Lateran; the publication of them is thus enjoined by the council of Trent: "Idcirco sacri Lateranensis Concilii Sub Innocentio III. celebrati, vestigiis inhærendo præcipit, ut in posterum, antequam matrimonium contrahatur, ter à proprio contrahentium parocho tribus continuis diebus festivis in ecclesiâ inter misarum solemnia publicè denuntietur, inter quos matrimonium sit contrahendum."—Con. et Dec. Con. Trid. Sess. 26. c. 1.† One of our most approved canonists thus records an antient constitution of the church on this subject, and the reason of its enactment:—"In matrimonio quoque contrahendo semper tribus diebus Dominicis, vel festivis à se distantibus, quasi tribus edictis, perquirant Sacerdotes à populo de immunitate sponsi et sponsœ. "—Lynw. p. 271.1356 place, is apprized of an approaching marriage. Even if the fact were otherwise, as the law now stands, every facility is given, and every encouragement is offered, to evade the publication in the only place where there could be a chance of the parties being recognised by their kindred or their friends, namely, in the church or chapel of the district within which they are resident, for no inquiry can be made into residence after a marriage has actually taken place. Hence it follows, that minors who desire to contract clandestine marriages, do not now, as formerly, withdraw themselves to those parts of the United Kingdom, which are placed beyond the pale of the English law, or pass over to the continent for the accomplishment of their object—but they cause their banns to be put up in some church in London, or the suburbs of London, or in some church of one of the populous provincial towns of England, within a parish where they were never resident*, and where it would be next to a miracle that their names should be recognised; and after such a publication, the marriage is solemnized by a clergyman, who, from the very nature of the transaction, is effectually precluded from discovering, or even making inquiry into, the imposition which has been practised upon him. Such a marriage is irrevocable, however ignorant the† parents or* Since the second reading of this bill, I have been informed by a clergyman resident in the county of Kent, that in the month of February last, eleven persons, all belonging to his parish, and all but one under age, had their banns published at the same sime, in the church of another parish, in the same county in which they had never resided, for the purpose of being clandestinely married. I mention it as one among a thousand instances of this sort which have been transmitted to me upon authority on which I can rely.† Unless fraud can be shewn in the use of the names under which the banns are published, as, for instance, in the case of Pouget v. Tomkins, (Ecclesiast. Rep. vol. i. p. 499,) where a lad of 16 was married to his mother's maid, under a publication of banns made in the church of St. Andrew's, Holborn, in which parish neither of the parties were resident, and there was no chance of their names being recognized. This marriage was set aside, because the banns were published under1357 guardians may have been of the whole transaction—whereas, if it had been a marriage by license, it would have been illegal, and never could have been rendered valid.
Heart-rending cases of frauds practised under the sanction of this branch of the law—of daughters inveigled and debauched from the care and protection of their parents, and clandestinely allied to men of vicious and infamous habits—of sons united for life to menial servants, or women of the lowest and most profligate cast, without the possibility of redress, or the hope of remedy, are of daily and familiar occurrence. To remedy these grievances, and to render the law equal and uniform in its effect and operation, I propose to place the marriages of minors by banns precisely on the same footing as those by license will be placed by this act; and in all cases of marriages, had without the knowledge and consent of the natural guardians and protectors, I intendthe names of William Pouget only, whereas the lad's real names were William Peter Pouget; and it was proved that Peter was the name by which he was familiarly known to his relations and friends. The court considered this omission as fraudulent, and annulled the marriage. But in another case, where a boy under 18, who had just left Eton, and was resident at his father's seat in Buckinghamshire, was married to an obscure person, resident in a neighbouring parish, after a publication of banns in a church in the borough of Southwark, in which it was almost impossible that either of them should be recognized; the court held, that it had no authority to dissolve the marriage, though the clergyman, struck with the youthful appearance and demeanour of the lad, twice stopped, in the course of the ceremony, to question the parties as to their age and residence, which questions were specifically, but falsely, replied to by the mother of the woman about to be married: but, as in this instance, no fraud could be proved in the use of the names, the court held that the proclamation of the banns was not vitiated. It is not intended to dispute the correctness of the conclusion of law, in either of these cases, but, assuredly, on principle there is no ground for the law to make such a distinction, in cases where the fraudulent nature of the transaction admits of no doubt.1358 to give the same persons who have a power to institute proceedings in one instance, a power also to institute them in the other. I am utterly at a loss to discover on what principle minors, who marry by license, are to be under the protection of the law, while those who marry by banns are to have no protection at all. If minors of both sexes ought not, without the consent of parents, to have a capacity of contracting the matrimonial contract in one instance, assuredly they ought not to have it in the other.
This is the extent of the alteration I propose with respect to the marriages of minors by banns. I have only now to state some regulations which will be found in the bill, applicable generally to all marriages by banns. From the statement I have already laid before the House, it will be obvious that great evils and inconveniences arise from the present mode of the publication of banns. The parochial; clergy feel deeply and sensibly these evils and inconveniences, and anxiously look to this House for some regulations which may at least alleviate them. Occupied as I have been for some years in the amendment of the Marriage act, I have naturally received various and extensive communications from this most intelligent and most useful body of men, as to the practical defects of the existing law, and I can assure the House that there is no subject on which the parochial clergy are so anxious for reformation and amendment, as on this; however they may differ as to other points, they all entirely concur in stating the frauds which are daily practised against them in the publication of banns, and how utterly impossible it is for them, by the exertions of unremitting labour and diligence; adequately to discharge their functions in this particular;—how unavailing their efforts are to interpose any effectual check to those frauds, to the furtherance and success of which they are unhappily rendered mainly and essentially instrumental.* The real fact* I insert a letter I have just received from the incumbent of a very populous parish in the north of England, as affording an excellent specimen of the statements I have received on this subject from, very many quarters:You have directed your attention particularly to the facilities which are given to improper and clandestine mar-1359 is, that banns, from the circumstances I have detailed, operate no longer as any check whatsoever on irregular and clandestine marriages, and marriages of this description are effected with as much facility and as much impunity as they were by licences, at the time of passing of the Marriage act. At the same time I very forcibly feel the difficulty of applying any remedy to this evil, inasmuch as I should be extremely reluctant to interpose any unnecessary checks to the marriages of persons who are to be considered as sui juris in the eye of the law. I shall, therefore, content myself, on this head, with introducing some provisions into the bill, which will facilitate to the clergyman the means of inquiry, as to the names of thoseriages, by the present defective provision relating to the publication of banns. As a parochial clergyman, I have had the opportunity of witnessing some of the defective provisions, and I beg to add my testimony to that of many others of greater weight, which I dare say you have received, in complaint of the evils for which you are proposing a remedy.It is possible, however, that your attention may have been excited principally by the inconvenience of the present state of the law, as it effects marriages, in which one of the parties at least is in some of the higher conditions of life. I am desirous of bespeaking your notice in behalf of the lower classes, who take this freedom which the law leaves to them, but did not mean to give them, of marrying in a very disorderly way.You propose, I believe, to make it a compulsory duty on the side of the clergyman, to verify the names, residence, and condition of the parties. It is for want of some such imperative regulation that the disorderly practices, which I allude to, among the lower classes, prevail. Any marriages may now be effected without the knowledge of parents, friends, or public. The parties have only to send their names to certain populous parishes, where they have leave to get their banns published without scrutiny, and in the multitude of names published, and the obscurity of the persons in question, there is an easy concealment of any project of marriage. It is not necessary for the parties to assume fictitious names; the concealment passes as a matter of course under the looseness of the practice.It would be a sufficient objection to1360 whose banns are given in for publication; and by the aid of which I shall hope to restore to the publication of banns something at least of their original character, that of notice to all parties interested, of the Marriage which is about to be solemnized.
As the law now stands, no clergyman can be compelled to publish the banns of marriage unless the persons to be married shall, seven days before the first publication, respectively cause to be delivered to him a notice in writing of their true christain and surnames, and of the house or houses of their abode within the parish, and of the time during which they have dwelt in the parish.* I propose to makethis lax, practice, that the clergyman is made often to utter a solemn untruth in, the face of the congregation, as to the residence of the parties, who get named without residence at all in the place where their banns are published; and that the intention of the law to give some notoriety to the intended marriage, by publication of banns, is utterly defeated. But in all this country nothing is more common. It is often a fancy or humour of the parties, that they will be married in the town, and not in the country, or in the place where they live. It costs them no trouble, no-change of abode, to indulge their wish. Sometimes they come home married, and take their friends by surprise. In my own parish not a year passes without instances of these clandestine marriages. In all the neighbouring country parishes the case is the same.The evil of these frauds is not confined to indiscreet and undutiful marriages, contracted without the advice or privity of friends; it goes to worse things; you will easily see how unions of bigamy, and others highly improper and unlawful, are promoted. I know an instance of a person living near to me, married to the daughter of his deceased wife, a daughter by a former husband; and also the case of a person married to his niece—these marriages having taken place in churches, of other populous parishes, near the places where the parties lived. For such abuses it is sincerely to be wished you may be able to provide a remedy, by bringing the law of marriage to be more favourable to the peace and virtue of families.* In the last three months of 1817, the banns of 284 couple were published in the parish church of Mary-le-bone, and of1361 this provision imperative, instead of optional, so that henceforth no officiating clergyman will be able to proceed to the publication of banns till he has received a notice of this description; and, in order to give more publicity to the transaction, I shall introduce a provision that banns shall not be published till the true christian and surnames, and the houses of the abode of the parties, shall be affixed to the principal door of the church, or to some conspicuous place within the church, and shall so remain affixed till the expiration of the three Sundays on which such banns shall have been published.
The only remaining regulations are, that if marriage shall not be solemnized within three months after the publication of banns, the publication must take place de navo: and so with respect to licenses—if a marriage shall not be obtained within three months after the grant of a license, a new license shall be required before the ceremony can be performed. I have now gone through the details of the bill. I trust I have not been misapprehended; my object is to remedy no fanciful or theoretical abuse; but certain and practical evils—evils of which the existence has, I trust, been proved to demonstration—evils entwining themselves, as it were, round the very roots of social order, and threatening by a silent, but progressive operation, to sap and undermine the very foundations of civil society. I would maintain and uphold inviolate the principle of the Marriage act, that minors should not contract marriage without the consent of their parents or guardians. I would give to this principle just, and equal, and uniform operation; but I would cut off from it those tremendous penalties which have been found by experience to press heavily on the innocent, and to secure impunity and even remuneration to the guilty. The time is singularly auspicious for the revision and re-consideration of this act.—We stand aloof from the party prejudices and violent animosities which ushered in the first alteration of the law, and accompanied it throughout every stage of its progress—we are placed at a sufficient distance from the period at which it passed, to be able justly to appreciate the character of thethese 568 persons all, except two, were stated to reside in the parish, whereas the great; majority of them were non-residents.1362 law, and calmly and impartially to examine and ascertain its practical effect and operation we see clearly that it has not worked in the manner contemplated by those with whom it originated. In fine, be it remembered that I call not on the House to trench on the venerable authority of lord Hardwicke; I call upon them rather to discharge the legacy he bequeathed to posterity—and surely we can in no manner more adequately discharge it than by making his measure more perfect and effectual, for the accomplishment of the great object he had in view—the amelioration of that law which regulates the most important contract, whether we look to the well-being of society, or the happiness of individuals, which man can form under the existence of any government. It only remains for me, Sir, to thank the House for the indulgence with which it has listened to me, and to move for leave to bring in a bill to amend the 26th of Geo. 2nd c. 33rd.
§ Leave was given to bring in the bill.