iously and earnestly seek for a process of law, by which their marriages may be declared valid. Unless the House passes this remedial clause, their cause is hope less, the children and the 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 connection." Phillimore, p. 62. It was not the character of English law to admit a grievance with out providing a remedy. The law was also calculated to bring the offices and ordinances of religion into contempt. The permanence and indissolubility of marriage, is the great principle which pervades the Office for the Solemnization of Matrimony. The man and the woman mutually stipulate, that they will live together after God's ordinance, in the holy estate of matrimony, and that forsaking all other, they will severally keep each to the other, so long as they both shall live; to have and to hold each the other as a wedded consort, till death do part them; and when the Priest joins their hands together, he addresses them and the congregation in words of solemn import : "Those whom God hath joined together, let no man put asunder.' And are these words to be vox et præterea nihil, to strike the air, and bind to no conformity, because one of the parties is a minor at the time of celebration, because there is a fault in the consent of the guardians; because one of the parties is the issue of an illegitimate connection; or because the marriage is solemnized by licence and not by banns? If the banns had been published; if the consent had been legally given; if the parties had been of full age, the vow would have been irrevocable, the marriage would have been indissoluble. Defect in legal forms cannot change the meaning of words, or destroy the force of religious obligations: the contract is in fact, if not in law, a marriage: the conscience is bound, and any subse quent marriage, solemnized during the life of either party, on pretence of the factitious and legal nullity of the first marriage, differs in nothing but in name from sauctioned bigamy and licensed adultery. “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 ma ture intellect, and perfectly competent to which they engage, are united together in understand the nature of the contract 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 the ground of the want of parental conthen advanced to middle age, separate on sent 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 letof God and man guilty of the crime of adu!ter of the municipal law, are not in the eye tery? 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 engraven in our hearts, authorize the commission of adultery?" Phillimore, p. 53. An objection to this reasoning may possibly be taken from cases of bigamy and incestuous marriage, in which, though the same forms are observed, there is nevertheless a nullity. The answer is obvious. In both cases there is an impediment of divine authority: the parties being coupled together otherwise than God's word doth allow, are not joined together by God, neither is their matrimony lawful. The appeal has been made to God in vain he is made the witness not of vows to confirm them, but of disobedience to condemn it. So vicious was the old law: so irreligious and illegal, so unjust and arbitrary. It has been repealed: and the new law, whatever be its errors, excesses, and defects, and they are many, and they are great, has nevertheless the merit of restor ing the good old principle, that marriage is indissoluble, and of giving its just and proper validity to all marriages solemnized according to the rites of the Church of England. These are merits which should have entitled its provisions to more candid and favourable consideration than they have received, which should have abated the tone of popular clamour and private obloquy to which it has been exposed, and should have repelled the unjust and unworthy imputations which have been advanced against it, without adequate consideration of the necessity, the delicacy, and the difficulty, of amending the law. The Bill has been ignorantly 'called an innovation, when in fact, it is a revival of the ancient law, which has been suspended for a period of less than seventy years. Its progress has been compared with that of the former law, and a charge of precipitancy derived from the comparison; because the former law was, forsooth, committed to the twelve Judges, from whom, however, the Bill devolved upon Lord Hardwick; his Bill was altered in every part by the Commons, and in its amended state accepted by the Lords only upon consideration of the hard necessity of the case. The principle of the present law, since the year 1812, when Mr. Wilson carried his Act of Amendment through the House of Commons, has been debated from session to session in both Houses of Parliament, and the Bill was originally, and as it was sent to the House of Lords, prepared by a gentleman of no common experience in the subject to which it relates. The aid of ridicule has been employed against the Bill, which in its tendency has been said to promote fornication, an imputation which no man, upon the reflection of a moment, would not treat with the contempt which it deserves. If better principles, if a higher sense of honour and virtue did not prevail, the security of property would influence the wealthier classes, and the vigilance of the overseer would restrain the pauper, from avoiding the diffi culties of the law, by a voluntary contract and covenant of concubinage. These are popular and general exceptions, from which it is necessary to proceed to the more formidable, because more elaborate and authoritative objections to the Bill; to the clause repealing the nullity, and to the retrospective operations of that clause; and to take a cursory examination of the principal provisions and details of the Bill. Ample materials for this investigation are afforded by the works of which the titles are prefixed to the present article. Dr. Phillimore in his Speech exhibits a luminous view of the necessity of amending the old law, illustrated in the margin by a copious collection of appropriate cases, and argues on the principal clauses of the Bill which he proposed to introduce. In the "Concise View of the Doctrine and Practice of the Ecclesiastical Courts," Mr. Poynter considers the principal points involved in the contract of marriage; in the manner of carrying that contract into effect, whether by banns or by licence; in the impediments to matrimony, whether canonical or legal; in divorces, how obtained and how prevented; and in the kindred questions of restitution of conjugal rights, alimony, and jactitation of marriage. In conclusion, he explains the law of marriage in France and in Scotland, and establishes the necessity of de termining the validity of marriage by the lex loci. The information contained in this volume is highly valuable and important, both to the student and to the general reader. The Supplement, which bears more immediately upon the present discussion, contains Dr. Phillimore's Bill, with the various alterations it underwent in the House of Com. mons, and the Act which passed the Lords, with the Protests of Dissentient Peers, and an amendment which was proposed without effect. Thus the whole progress of the Bill is laid before the reader. Dr. Phillimore's intentions concerning the clause of nullity, were far less absolute and perfect than the provisions of the present law. tracted without legal consent, would shall not be agitated afresh. There "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 relation to know, that these questions quired 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, 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 invested 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 sub ject, 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 them selves in marriage, and who have ratified that act, by continuing to cohabit one day after they have attained their majority, onght not to be authorized 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." Phillimore, p. 45. The concession of this power to minors to undo their own acts, was not attempted. The clause, how ever, in the third section, which was afterwards withdrawn, enabling ail persons to institute a suit of nullity within six months after the passing of the Act, and the proposed reservation to parents and guardians of a right to nullify during the minority of the parties, marriages con To this unlimited repeal, it was objected in the Protest of Lord Stowell," that the withdrawing the effect of nullity from the marriages of minors had without the consent of parents, is likely to produce more and greater mischiefs, than such as can fairly be considered as resulting from the general operation of the subsisting Marriage Act." The evils of the former Act are upon record, and it is hard to conceive a system of more accumulated wrong: when the mischiefs of the new measure shall be developed in practice, it will be the office of a wise and watchful legislature to prevent and correct them, not in the meanwhile delaying the restraint of positive evil, in the apprehension of that which is problematical and unknown. The nullity clause was, as it was described by Doctor Stebbing, a measure of mere force, or terror, as it is called by Dr. Phillimore: by arming the parent with an uncontrolled power of nullifying the marriage of his child; it superseded better considerations in his mind; it relaxed his vigilance in preventing a connection which he could not approve; and it rendered him averse from all overtures of compromise and reconciliation. The present Bill, by taking away the hope of remedy, addresses itself to the jealousy of the parent, and challenges his most anxious endeavours to frustrate the designs of an unsuitable marriage, to which, when it has been contracted, and cannot be avoided, the very necessity of the case may reconcile his mind. The mild influence of a parent's authority, and circumspection, will seldom be exerted without effect: and where the parent's duties have been neglected, and the child has not experienced the protecting care which his years required, is it just that the parent shali possess a power of dissolving a marriage, in which he took no concern, to which, if he did not give, he hardly refused his consent, and which, if it should be celebrated by banns, he would have no power to disturb ? Mr. Poynter, in concurrence with Dr. Phillimore, was desirous of preventing all persons "from turning round at an indefinite period of time to disavow acts which they had solemnly engaged in, and which cohabitation had rendered morally and equitably binding," would also with him, have modified" the retrospective effect of giving instant validity to marriages declared to be null and void by the existing law," and thus have afforded to the parties," for a short period, a locus penitentiæ." We fear, that the longitude and latitude of this locus penitentia would have been found in Doctors' Commons; and that the penance would have consisted in many doubts and disputes, inflamed by the limited interval of dissolution: and that some loving couples, who had no previous thoughts of separation, might have been tempted to think of change, and to make provision for any variation which their affections might undergo. Suits of nullity would have been multi. plied beyond all former precedent; and in the six months from July to January, which followed the passing of the Act, the college of the doc tors of law must have sighed in vain for their customary rest and vacation. Mr. Poynter, also in concurrence with Dr. Phillimore's Bill, wished that parents and guardians should retain the power of instituting, during the minority, suits of nullity: "because, while the general and perpetual application of the penalty of quility cannot be too much deprecated, it is, at the same time, quite impossible to deny, that this very enactment, which, with reference to one class of cases is admitted to be highly objectionable and painfully op pressive, has, under other circumstances, afforded a most salutary and desirable protection. For it ought not to be forgotten how many are the unhappy connections which have been dissolved by a sentence of nullity; how many the parents whom the right of instituting such suits, has relieved from a load of sorrow; sorrow proceeding from one of the deepest calamities of civil society, that of seeing an inexperienced child, whose station warranted a brighter hope, linked indissolubly in the bonds of a degrading marriage." Supplement, p. 3. It might be difficult, except by a reference to the statute, to justify or confirm this supposed right of instituting suits of nullity of marriage for the mere neglect of legal forms. Such a right is conveyed by no sentence of Scripture, nor is there any sacred record of its praetice: neither can it be derived from any social compact: the children of the marriage, who are principally interested in its repeal, cannot be supposed to assent to its avoidance. But in cases, in which there is least reason to question the right, what advantage does this sentence of nullity afford? It dissolves an unhappy connection: no more. If an inexperienced girl has been seduced into a meretricious union, as it is called, will the sentence of nullity restore her to her maiden state? will it put her in a condition to enter upon a more auspicious marriage? if she has not been a wife, will her parent venture to designate what she has been? Or, if an inexperienced boy has been inveigled by an artful woman, shall his affec. tions be estranged from that woman by a dictum of law, so that upon attaining his majority, he shall be prepared with constant affection to enter into marriage with another? In either case, where are the children? Let the children of the son be abandoned to their state of illegitimacy, but shall the mother forget her sucking child, or shall she be suffered to clasp a bastard to her breast? There is but one alternative: the child is legitimate or illegitimate, the mother is a wife or a concubine. But the marriage is miserable and degrading: in whose judgment? upon what principle? Is it that there is a difference of rank and fortune, that it bears that character. These are not the marriages, which courts are called to dissolve, or which minors are prone to contract. The rich and the noble see no attractions in poverty and degradation. Doctor Stebbing's advice to parents is worthy to be repeated: "Consider, gentlemen, the power that God and nature hath put into your hands: and which, if you use properly, you will find no great want of the aid of laws. Nature hath placed your children under your inspection and care; always within the reach of your advice and authority, which should be employed in giving them a sober and virtuous education, suitable to their rank and quality, which will naturally dispose them to set a just value upon themselves, and to think themselves degraded when offers of marriage are made to them by persons of inferior condition, Add to this, that you are masters of the state and fortune of your families, which will always be a great check, ordinarily sufficient, to keep them back, when they begin to find their inclinations running contrary to your judgments. Experience shews this. For look abroad into the world, and what will you see? Why, ordinarily, the poor marrying among the poor, the middle rank among the middle rank, and the rich and the noble among the rich and the noble. The world naturally runs this way without the help of laws. The lower classes of men have it not in their power to marry above their rank, or very rarely. The rich and the great have as rarely so little pride as to REMEMBRANCER, No. 48. permit them to marry below theirs. But sometimes it happens otherwise, and you would have a law to prevent it. Well: you have it, and what will you do with it? The law adds nothing but force; force is abhorrent to human nature, and may draw upon you and your children, mischiefs which you will surely repent, and for which you will find no remedy. For mischief, give me leave to say, there may be, unless you can find a nullity, which, like a magic wand, would make every thing it touches vanish and disappear, as if it had never been." In the Protests of the Lords, objections were made to the retrospective clauses and operations of the Bill, as dangerous precedents, especially affecting the right of property. The necessity of these clauses was defended by Dr. Phillimore at considerable length. "On general principles, I feel the argnment in favour of the retrospective operation of the Bill to be exceedingly strong. judicial to the community; if, instead of If a law by experience is found to be prepromoting order, and equity, and justice, promoting order, and equity, and justice, it holds out a temptation to perjury and fraud, and tends by its operation and effect to villify 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 such a law. Surely, also, the repeal should be as complete and effectual as possible, and in the manner best calculated to heal all the wounds, which by its operation it may have inflicted on Society." P. 50. In addition to general principles, Dr. Phillimore alleges as precedents in favour of the Bill, that the late Marquis of Hertford and Bishop Horsley had brought in Bills for the confirmation of marriages solemnized by banns published in chapels not recognized by the Act, which, in all points involving the right of the persons so married and their descendants, and the defeat of the claims of third parties as lawful heirs of the persons unmarried or not legally married, correspond with the recent enactment. The property thus transferred from the legal to the natural heir, is placed in no 5 C |