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criminal conversation is sustained; riance with the whole spirit and analogy of that the divorce a mensa et thoro our English. law. I speak not of the upon proof of adultery is granted
matrimonial law alone, but I maintain that
it is in direct violation of those great and upon condition that the parties
fundamental principles on which the law of shall not marry again during the
England proceeds; it undermines prelife of each other, and that the scription, the basis on which we rest for vinculum matrimonii can only be the permanence and security of our pos. dissolved by a special act of the sessions. It subverts the law of inherilegislature. In opposition to all tance; for by the law of inheritance do these provisions of law, one only
man can be stript of an estate after he has
possessed it sixty years without molesta. statute bas introduced a fatal fa
tion: a possession of sixty years quiets all miliarity with cases of nullity of difficulties of title: to the law of marriage marriage. The same statute dis. alone there is no limitation of actions." turbs the Englishman's birthright, Phillimore. p. 19 the security of property, and repeals “ In very many cases which have failen the law of inheritance. A man under my own cognizance, both parties must be assured that the minutest bave at the time, and for many subsequent fórms have been observed in the
years, been completely ignorant of the
invalidity of the marriage they have conseveral marriages of his predeces.
tracted. I could cite many instances of sors since the passing of this sta. crying hardslip on this head. One occurs tute, of which the least infringement to me at this moment. Upwards of twenty will vitiate the title of himself and years since, a marriage was solemnized behis remotest posterity to their ho.
tween two minors, with the full consent and nours and their estates, without any
approbation, and in the presence of the pa
rents of both parties : four years ago, the redress or without any limitation.
eldest daughter of that marriage was married In other cases a title to property
to the great satisfaction and delight, and may be acquired by possession, but consequently with the consent of her father. the inheritance which has been dis. Children have been born from this marturbed by the fatal operation of the riage; bat subsequently to the solemniz. Marriage Act, can never be re-esta
tion of it, the father of the woman has disblished to its natural proprietor.
covered that he was a natural son, bom
before his parents were united in wedlock, ." It is on the innocent issue of these ill. an event which, up to this period of bis fated marriages that the severest punish- life, had been studiously concealed from ment is inflicted: the children, the grand- bim. But mark the consequence; pot children, the remotest posterity, the yery only all his children, but all his daughter's nati nalorum may at any time be amerced children, become as it were, ipso facte, of their estates and possessions, on proof bastards : no guardian appointed by the made of the want of lawful consent to any court of chancery gave consent to either one of the marriages of the description to the one or the other of these marriages. which I have been alluding ; so indelible A nullity has been ingrafted on a nallits, is the stain, that it can never be effaced. and so it might have gone to an infinita : I am bold to njaintain, that under the ac- for, if the grand-daughter had married tual operation of this law no person who with her father's consent, before the flaw hears me is secure in the possession of bad been discovered, ber issue would have entailed property: no member in the other been equally illegitimate. It is in vain, House is safe in the enjoyment of any high in this instance, to which I have alloded, dignity, which has descended to him since it is in vain, that all the family, in all its the 25th of March, 1754; for who can say branches, concur in an anxions wish, that any one of the male or female ances. to give stability to two marriages, so tors from whom he deduces his descent, lemnly and bona fide contracted ; deficient may not bave married in violation of the in no religious ceremonies, and consolidated strict letter of the Marriage Act. Cen- by reciprocal affection and the birth of turies may roll on; generation may suc- numerous issue : it is in vain that the ceed generation; but the lapse of time parties themselves to each of these maraffords no protection against the operation riages, endeared to each other by the of this law, the very foundations of pro- strongest ties of mutual affection, and perty are shaken by it to their centre ; deeply impressed by the sacred uature of sure I am that the pullity clause is at va- the bond by which they are united, Aus
nie sprint atziously and earnestly seek for a process of quent marriage, solemnized during I speak w law, by which their marriages may be de- the life of either party, on pretence , wat lanclared valid. Unless the House passes of the factitious and legal nullity of 1290 sf they this remedial clause, their canse is hope
the first marriage, differs in nothing pe pas less, the children and the grand-children
but in name from sanctioned bigamy it we must be degraded from the station they s rico have hitherto enjoyed in society, and and licensed adultery. seat or only be considered in law as the offspring “ I am confident in maintaining that the to the art of a meretricious connection." Phillimore, Marriage Act, by its actual operation and landit p. 62.
effect, as far as any municipal law can lifast step It was not the character of Eng
cense that which is a malum in se, does 0 Fill lish law to admit a grievance with
license adultery. If two persons of ma
ture intellect, and perfectly competent to out providing a remedy.
understand the nature of the contract in The law was also calculated to
which they engage, are united together in bring the offices and ordinances of a de facto marriage, deficient in no circumes de religion into contempt. The per- stance enjoined by the religious institutions e manence and indissolubility of mar of the state; if they cohabit together as Eroriage, is the great priuciple which
man and wife, and acknowledge each other
as such, for many years after they have 0 pervades the Office for the Solem
attained the age of twenty-one years, and nization of Matrimony. The man
then advanced to middle age, separate on and the woman mutually stipulate, the grond of the want of parental conthat they will live together after sent to their original union, and severally God's ordinance, in the holy estate intermarry with other persons, will any of matrimony, and that forsaking one deny that persons so conducting themall other, they will severally keep
selves, though they may not be amenable each to the other, so long as they
to punishment according to the strict let.
ter of the municipal law, are not in the eye both shall live; to have and to hold
of God and man guilty of the crime of aduleach the other as a wedded consort, tery? Or can it be contended that the till death do part them; and when municipal law, which sanctions such conthe Priest joins their hands toge- duct, does not, in point of fact, and acther. he addresses them and the cording to the rule of that law which is encongregation in words of solemn graven in our hearts, authorize the commisimport: “ Those whom God hath
sion of adultery 2. Phillimore, p. 53. joined together, let no man put An objection to this reasoning asunder.". And are these words to may possibly be taken from cases be vox et præterea nihil, to strike of bigamy and incestuous marriage, the air, and bind to no conformity, in which, though the same forms are because one of the parties is a observed, there is nevertheless a minor at the time of celebration, nullity. The answer is obvious. In because there is a fault in the con- both cases there is an impediment sent of the guardians; because one of divine authority: the parties being of the parties is the issue of an coupled together otherwise than illegitimate connection; or because God's word doth allow, are not the marriage is solemnized by li- joined together by God, neither is cence and not by banns? If the their matrimony lawful. The appeal banns had been published; if the has been made to God in vain : he consent had been legally given ; if is made the witness not of vows to the parties had been of full age, the confirm them, but of disobedience vow would have been trrevocable, to condemn it. the marriage would have been in. So vicious was the old law: so dissoluble. Defect in legal forms irreligious and illegal, so unjust and cannot clange the meaning of words, arbitrary. It has been repealed : or destroy the force of religious and the new law, whatever be its obligations: the contract is in fact, errors, excesses, and defects, and if not in law, a marriage: the con- they are many, and they are great, science is bound, and any subse- has nevertheless the merit of restoring the good old principle, that the wealthier classes, and the vigimarriage is indissoluble, and of giv- lance of the overseer would restrain ing its just and proper validity to the pauper, from avoiding the diffiall marriages solemnized according culties of the law, by a voluntary to the rites of the Church of Eng. contract and covenant of conculand. These are merits which binage. These are popular and geshould have entitled its provisions neral exceptions, from which it is to more candid and favourable con necessary to proceed to the more sideration than they have received, formidable, because more elaborate which should have abated the tone and authoritative objections to the of popular clamour and private ob- Bill; to the clause repealing the loquy to which it has been exposed, nullity, and to the retrospective and should have repelled the unjust operations of that clause; and to and unworthy imputations which take a cursory examination of the have been advanced against it, with- principal provisions and details of out adequate consideration of the the Bill. Ample materials for this innecessity, the delicacy, and the dif- vestigation are afforded by the works ficulty, of amending the law. The of which the titles are prefised to Bill has been ignorantly 'called an the present article. Dr. Phillimore innovation, when in fact, it is a re- in his Speech exhibits a luminous vival of the ancient law, which has view of the necessity of amending been suspended for a period of less the old law, illustrated in the marthan seventy years. Its progress gin by a copious collection of appro. has been compared with that of the priate cases, and argues on the former law, and a charge of precipi- principal clauses of the Bill which tancy derived from the comparison; he proposed to introduce. In the because the former law was, for- « Concise View of the Doctrine sooth, coinnitted to the twelve and Practice of the Ecclesiastical Judges, from whom, however, the Courts,” Mr. Poynter considers the Bill devolved upon Lord Hardwick; principal points involved in the couhis Bill was altered in every part by tract of marriage; in the manner of the Commons, and in its amended carrying that contract into effect, state accepted by the Lords only whether by banns or by licence; in upon consideration of the hard nes the impediments to matrimony, whecessity of the case. The principle ther canonical or legal; in divorces, of the present law, since the year. how obtained and how prevented; 1812, when Mr. Wilson carried his and in the kindred questions of resAct of Amendment through the titution of conjugal rights, alimony, House of Commons, has been de- and jactitation of marriage. In colbated from session to session in both clusion, he explains the law of mar. Houses of Parliament, and the Bill riage in France and in Scotland, was originally, and as it was sent to and establishes the necessity of de the House of Lords, prepared by a termining the validity of marriage gentleman of no common experience by the lex loci. The information in the subject to which it relates. contained in this volume is highly The aid of ridicule has been em- valuable and important, both to the ployed against the Bill, which in its student and to the general reader tendency has been said to promote The Supplement, which bears more fornication, an imputation which no immediately upon the present disman, upon the reflection of a mo- cussion, contains Dr. Phillimore's ment, would not treat with the con, Bill, with the various alterations it tempt which it deserves. If better underwent in the House of Com. principles, if a higher sense of ho- mons, and the Act which passed the nour and virtuc did not prevail, the Lords, with the Protests of Dissedsecurity of property would influence tient Peers, and an ameudment
which was proposed without effect. tracted without legal consent; would
Thus the whole progress of the have left the old law, rather altered Bill is laid before the reader. than improved. The Act of Amend
Dr. Phillimore's intentions con- ment is far preferable in rescinding cerning the clause of pullity, were the clause of nullity altogether and far less absolute and perfect than without any limitation or exception, the provisions of the present law. but in respect of marriages, of
« I now proceed to the details of the which the invalidity had been almeasure. The first clause in the proposed ready called in question or deterAct, will go to the entire repeal of the nul- mined in a court of competent julity clause in the Marriage Act. Instead risdiction. It is no common consoof a marriage, in which the consent re- lation to know, that these questions quired by the statute has not been given,
shall not be agitated afresh. There being pull and void to all intents and purposes in law whatsoever, I propose to give can be no new case of nullity for to the father of the minor, if living; if want of consent: marriages solemdead, to the guardian of the person ; if nized and not litigated before July there be no guardian, to the mother, if 22, 1822, are all confirmed, and the living and unmarried, and if there be no clause of nullity “ as far as the mother living and unmarried, then to a sme rela
same relates to any marriage to be guardian appointed by the Court of Chan
hereafter solemnized, shall be and is cery, the power of apnulling it by a sait to be instituted in the ecclesiastical court of repealed." competent jurisdiction for that purpose.
To this unlimited repeal, it was In my former Bill, a similar power was objected in the Protest of Lord given also to the parties contracting the Stowell, “ that the withdrawing the marriage, for six months after they should effect of nullity from the marriages have attained their majority ;- if the
of minors had without the consent House wish that persons should be in. vested with this authority to impugn their
of parents, is likely to produce own acts, I must bow to their decision. more and greater mischiefs, than But after the most mature consideration, such as can fairly be considered as that I have been able to apply to the sub- resulting from the general operation ject, I really liave not been able to bring of the subsisting Marriage Act." myself even to appear to sanction a The evils of the former Act are course of proceeding, which, in principle,
upon record, and it is hard to conseems to me so utterly unjustifiable. I strongly feel that minors, who by their ceive a system of more accumulated own voluntary act may have united them wrong: when the mischiefs of the selves in marriage, and who have ratified new measure shall be developed in that act, by continuing to cohabit one day practice, it will be the office of a after they have attained their majority,
wise and watcbful legislature to onght not to be anthorized to recede from
prevent and correct them, not in engagements they have solemnly contract. ed, long after the age when they were
the meanwhile delaying the restraint capable of consent, and long after the
of positive evil, in the apprehension period, when, if they had been married by of that which is problematical and banns, the marriage must have been indis- unknown. The nullity clause was, soluble." Phillimorc, p. 45.
as it was described by Doctor StebThe concession of this power to bing, a measure of mere force, or minors to undo their own acts, was terror, as it is called by Dr. Phillinot attempted. The clause, how- more : by arming the parent with an ever, in the third section, which was uncontrolled power of nullifying the afterwards withdrawn, enabling all marriage of his child; it superpersons to institute a suit of pullity seded better considerations in his within six months after the passing mind; it relaxed his vigilance in preof the Act, and the proposed re- venting a connection which he could servation to parents and guardians not approve ; and it rendered him of a right to nullify during the mi- averse from all overtures of compropority of the parties, marriages con- mise and reconciliation. The present
Bill, by taking away the hope of tors of law must have sighed in vain remedy, addresses itself to the jea. for their customary rest and vacalousy of the parent, and challenges tion. his most anxious endeavours to frus- Mr. Poynter, also in concurrence trate the designs of an unsuitable with Dr. Phillimore's Bill, wished marriage, to which, when it has that parents and guardians should been contracted, and cannot be retain the power of instituting, duravoided, the very necessity of the ing the minority, suits of nullity: case may reconcile his mind, The ......“ because, while the general and permild influence of a parent's autho- petual application of the penalty of mulrity, and circumspection, will sel- lity cannot be too much deprecated, it is, dom be exerted without effect; and at the same time, quite impossible to desy, where the parent's duties have been ha noront's duties have been that this very enactment, which, with re
ference to one class of cases is admitted to neglected, and the child has not
be highly objectionable and painfully opexperienced the protecting care
pressive, lias, under other circumstances, which his years required, is it just afforded a most salutary and desirable that the parent shali possess a power protection. For it ought not to be forof dissolving a marriage, in which gotten how many are the unhappy conneche took no concern, to which, if he
tions which have been dissolved by a sen
tence of uullity; how many the parents did not give, he hardly refused his
whom the right of instituting such suits, consent, and which, if it should be
has relieved from a load of sorrow; sorcelebrated by banns, he would have
row proceeding from one of tbe deepest no power to disturb ?
calamities of civil society, that of seeing Mr. Poynter, in concurrence with an inexperienced child, whose station warDr. Phillimore, was desirous of pre- ranted a brighter hope, liyked indissolubly venting all persons “ from turning in the
m turning in the bonds of a degrading marriage." round at an indefinite period of Supplement, p. 3. time to disavow acts which they. It might be difficult, except by a bad solemnly engaged in, and which reference to the statute, to justify cohabitation had rendered morally or confirm this supposed right of and equitably binding,” would also instituting suits of nullity of marwith him, have modified “ the re- riage for ihe mere neglect of legal trospective effect of giving instant forms. Such a right is conveyed validity to marriages declared to be by no sentence of Scripture, nor is null and void by the existing law," there any sacred record of its pracand thus have afforded to the par- tice: neither can it be derived from ties, “ for a short period, a locus any social compact: the children of penitentie.” We fear, that the lon- the marriage, who are principally gitude and latitude of this locus pe interested in its repeal, cannot be nitentiæ would have been found in supposed to assent to its avoidance. Doctors' Commons; and that the But in cases, in which there is least penance would have consisted in reason to question the right, what many doubts and disputes, inflamed advantage does this sentence of by the limited interval of dissolu. nullity afford ? It dissolves an untion : and that some loving couples, happy connection : no more. If an who had no previous thoughts of inexperienced girl has been seduced separation, might have been tempted into a meretricious union, as it is to think of change, and to make called, will the sentence of nullity provision for any variation which restore her to her maiden state? their affections might undergo. Suits will it put her in a condition to of nullity would have been multi. enter upon a more auspicious marplied beyond all former precedent; riage? if she has not been a wife, and in the six months from July to will her parent venture to designate January, which followed the passing what she has been? Or, if an inof the Act, the college of the doc- experienced boy has been inveigled