The smoothest seas will sometimes prove The umbrageous oak, in pomp outspread, But Thou art true, Incarnate Lord, I bent before thy gracious throne, WORDSWORTH. REVIEW OF NEW PUBLICATIONS. Substance of the Speech of Joseph Phillimore, LL.D. in the House of Commons, on Wednesday, March 27, 1822, on moving for Leave to bring in a Bill to amend the Marriage Act. 80 pp. Mur ray. 1822. A concise View of the Doctrine and Practice of the Ecclesiastical Courts in Doctors' Commons, on various Points relative to the Subject of Marriage and Divorce. By Thomas Poynter, Proctor in Doctors' Commons. 162 pp. Clarke. 1822. Supplement to a concise View of the Doctrine and Practice of the Ecclesiastical Courts in Doctors' Commons, on various Points relative to the Subject of Marriage and Divorce, occasioned by the Repeal of the 11th Section of the 26 Geo. II. c. 33. by the 3 Geo. IV. c. 75. intituled, "An Act to amend certain Provisions of the 26 Geo. II. for the better Prevention of Clandestine Marriages" with an Appendix of Forms. By Thomas Poynter, Proctor in Doctors' Commons. 24 pp. Clarke. 1822. THE merits of the Marriage Act of 1754 were that it made the consent of parents necessary to the marriage of minors; that it abolished the matrimonial obligation of contracts per verba de præsenti, and per verba de futuro; and that it secured a permanent evidence by prescribing the registration of marriages. These were the redeeming virtues of a statute, which contained in itself some very exceptionable provisions, upon which a subtle interpretation of the law accumulated additional wrongs, which could not have been contemplated by the authors and promoters of the measure, and to which the assent of the courts was not obtained without reluctance and hesitation, without repeated and elaborate argumentation. The great offence of the bill was a declaration on the mere fiat of its own power; of the invalidity and nullity to all intents and purposes whatsoever of the marriages of minors by licence obtained without legal consent, and of the marriages of any other persons by banns published in Churches not recognized by the Act: and it was afterwards drawn by an inference from the Act, that all marriages of illegitimate minors, under whatever circumstances, without consent of a guardian appointed by the Court of Chancery were also invalid. It is passing strange that a statute so arbitrary and unjust, so contrary to the whole tenour and spirit of British equity, and so calculated to bring into coutempt the offices and ordinances of religion, should have continued for a period of seventy years without amendment or repeal. The law was arbitrary. In enacting the nullity of marriage, it laid down a rule which had not before existed; which received no collateral support from other acts of the legislature, and which has perished in an instant with the repeal of the offensive statute. It might have more than satisfied the demands of the secular law to declare the marriage void and null in civil estimation and effect, so that the wife should not be entitled to maintenance from her husband, nor the children to the inheritance of their parents: but it exceeded the limits of any human legislation to weaken the bond of marriage on the conscience and to enable the parties to enter into a second marriage, as if they had been previously living in a state of concubinage. It is possible that the full effect of the law was not anticipated at the time of its enactment. Its application to illegitimate minors was not determined in the Ecclesiastical Courts before 1799: and it was not till ten years after this that Lord Ellenborough, after some hesitation, as it has always been supposed, gave a decision to the same effect in the Court of King's Bench. Doctor Henry Stebbing who in 1755, published "A Dissertation on the REMEMBRANCER, No. 48. power of States to deny civil protection to the marriages of minors made without consent of their parents and guardians," expressed his apprehensions rather than his conviction of the force of the law: "I am afraid," he says, "that the general construction upon this Act will be, that if a young gentleman should marry a woman against his father's or guardian's consent, he may marry another with as little scruple as if he had only gone to bed to a common prostitute. But this will be a dangerous mistake." He did not consider that "the law could reach the Vinculum Matrimonii as it lies in conscience, but only regulate its civil effects :" and he trusted to the conscience of parents, that they would consent to ratify the informal by a legal marriage. The Act assumed to the legislature a power which the parent never possessed, and which the State never needed of nullifying a marriage, only technically and for want of form invalid, not voidable in itself, not contracted otherwise than God's word doth allow and this enactment was in contravention of the divine law and institution of marriage; that the man shall cleave unto his wife, and that those whom God hath joined together shall no man put asunder. The law was as unjust as it was arbitrary. The penalties of the alleged offence did not fall upon the offender. Although the licence under which the marriage was solemnized was procured by deliberate perjury, the perjury was committed with impunity. The consequences of the nullity fell with most weight upon the children whom it deprived of their inheritance, reduced to a state of illegitimacy, and rendered incapable during their minority of contracting a lawful marriage, without the consent of a guardian appointed by the Court of Chancery, which they were not prepared to solicit. The woman also not skilled in the refinements of the law, was in some instances seduced by the 5 B promise and appearance of a lawful marriage, into a state of disguised concubinage, which her soul would have abhorred; and after a cohabitation of many years and the wreck of all her fortunes was ejected as a mistress with a family of bastards, whom she had educated with care, and been accustomed to consider the heirs of their parent's fortunes. "It becomes of greater moment, when the lawful character of that state (marriage) is ascertained, less from the obvious intention of persons than from the forms by which the celebration of marriage is preceded and attended: and it is of infinitely higher importance when certain deviations from those forms are inevitably followed by the serious consequences of nullityconsequences which in the face of the purest motives brand the connexion of the presumed husband and wife with the stigma of a meretricious union,' and visit their unoffending issue with all the disqualifications of illegitimacy, divesting the natural heir of his estate, and diverting the stream of hereditary honour into a distant channel, or perhaps abruptly ter minating the long line of an illustrious ancestry at a single blow." Poynter, Preface, p. 1. There were many cases in which no fraud was intended upon any part, in which a valid marriage had been contemplated by all parties, but in which from the neglect of some form, which no prudence could discover, all the penalties of an irregular marriage were incurred; the parties, not only without their consent, but in defiance of their best and strongest inclinations, discovered that they were not, and that they never had been man and wife, or capable of transmitting an inheritance to their children. In other cases the children after the decease of their parents detected some fault and informality, which by nullifying the marriage of their parents rendered their issue illegitimate; and not only illegitimate in themselves, and therefore disinherited, but in a condition if they should marry during their minority without the consent of a guardian appointed by the Court of Chancery, to transmit the taint of their illegitimacy from generation to generation. "It is to be observed, in respect to marriages, which are ipso facto void, (and this observation more particularly applies itself to marriages had without due publication of banns, or if by licence to the marriages of minors had without lawful consent,) that it is not the good faith or the acquiescence, or the long cohabitation of cohabitation, or that the parties are desithe parties, or that there is issue of such a rous of adhering to their contract, which can amend the original defect: for it is a defect which no time can cure, and which is open to detection and proof even after the legality of a marriage might have remained unquestioned for many generations. The incalculable evil of which is the more readily imagined by putting the case of a person, who unconscious of the illegality of his own marriage, consents to the marriage of his minor child. This child bas issue, and consent is repeated in the same manner in the next and following generation, each parent fully persuaded of the lawful right of consent inherent in virtue of a supposed lawful marriage. But if all the subsequent marriages had in virtue the nullity of the first marriage is proved, of consent of the presumed lawful parent or testamentary guardian become void likewise, and a general bastardy of the descendants is the unavoidable conse quence. "Another circumstance may be added to the foregoing remarks, namely, that a sentence declaratory of the nullity of a marriage ab initio void, may be obtained at all times by third persons having an interest; not, it is true, as in an original matrimonial suit after the death of either of the parties, but rather in the shape of an incidental question (necessary to determine the validity of another marriage or a testamentary point, or in order to ascertain the party lawfully entitled to a grant of administration,) raised in bar to the claim of any person setting up a point, whether immediate or distant, under the marriage in question." Poynter, p. 50, A mother supposes herself to be the widow of a shipwrecked mariner and unmarried, and a guardian presuming on his lawful appointment under the, will of a testator, give consent to the marriage of a child or a ward: but it is discovered after a lapse of many years that the father of the child is alive, and that the appointment of the guardian was defective in some form of law: let every parent decide whether it is just, that the marriage shall be therefore void; that the heaviest of penalties shall be incurred, by parties both unconscious and innocent of offence, and that the children shall also be involved in the wrongs, which their parent's suffer? yet such was the law. "In Riddiak 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 II. 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 in 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 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. Phillimore, p. 25. 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 vengeance. breathing_statute press with infinitely greater rigour,-I mean on illegitimate children married, while under age, by licence, 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 anticiputative father; in others, where the tespated. In cases for instance, where the tamentary guardian appointed by the putative father; in others, where the natural mother has been present and consenting to these 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 ques tions; it required a deliberate consideration of the intent and spirit of the statute, to ascertain that none of the persons whoni I have been describing were qualified to give the consent enacted by 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 was at different times argued that the point was fully determined." Philli more, p. 30. The law is contrary to the spirit of British equity. It holds out an encouragement to fraud, and gives countenance to perjury. It invades the great principle of English law, that no man shall take the benefit obtain a licence by perjury, and of his wrong, and suffers a man to afterwards to plead that perjury as a reason for dissolving a marriage, which from caprice or other motives is become disagreeable to him. This act alone and by itself counteracts the indissolubility of marriage, which is recognized in every other part of the law with such uncompromizing vigour, that no voluntary separation of the parties after marriage is admitted; that the legitimacy of children born during separation is assumed; that the continued cohabitation and society of the parties is the ground upon which an action for damages for criminal conversation is sustained; that the divorce a mensa et thoro upon proof of adultery is granted upon condition that the parties shall not marry again during the life of each other, and that the vinculum matrimonii can only be dissolved by a special act of the legislature. In opposition to all these provisions of law, one only statute has introduced a fatal familiarity with cases of nullity of marriage. The same statute disturbs the Englishman's birthright, the security of property, and repeals the law of inheritance. A man must be assured that the minutest forms have been observed in the several marriages of his predecessors since the passing of this statute, of which the least infringement will vitiate the title of himself and his remotest posterity to their honours and their estates, without any redress or without any limitation. In other cases a title to property may be acquired by possession, but the inheritance which has been disturbed by the fatal operation of the Marriage Act, can never be re-established to its natural proprietor. "It is on the innocent issue of these illfated marriages that the severest punishment is inflicted: the children, the grandchildren, the remotest posterity, the yery 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 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 suc ceed generation; but the lapse of time affords no protection against the operation of this law, the very foundations of property are shaken by it to their centre ;sure I am that the nullity clause is at va riance 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 pos. sessions. 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." Phillimore. p. 19 "In very many cases which have failen under my own cognizance, both parties have at the time, and for many subsequent years, been completely ignorant of the tracted. I could cite many instances of invalidity of the marriage they have concrying 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, 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 bonâ 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 by the sacred nature of the bond by which they are united, aux |