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a Bill which was "too good to be lost, and might have much good engrafted on it hereasterk.”
The virtue of the Bill was contained in the provisions for enforcing the publication of banns; for making the consent of parents or guardians necessary to the attainment of a licence for the marriage of minors ; for abolishing the obligation of precontracts; and for securing the registration of marriages, If the Bill had contained no other provisions, it had been innocent of all evil, it could not have failed of producing essential good. These however were in the issue but the subsidiary and subordinate details of a measure which in its amended form pronounced a sentence of absolute and irretrievable nullity upon all marriages celebrated under an improper publication of banns, or under the authority of a licence obtained surreptitiously and without the requisite consent, and rendered them upmeaning forms, by which no relation was contracted and no obligation incurred.
Such nullity ought to rest not on the arbitrary rule of a single statute, opposed to the whole tenour of national law, but on principles universal and immutable: and yet, as was contended at the time, and as has been argued in these pages, the assumed right of nullity rests on no solid foundation of divine law delivered in the Scriptures, or of natural law adapted to the condition and constitution of mankind, and cannot be collected from the variableness of national laws, or from the imaginary compact which is the supposed basis of civil society, or from
* Lord Orford's Memoirs, vol. i. p. 293.-296.
any principle but the paternal despotism maintained in the Roman jurisprudence. The legislature may ordain the civil nullity of marriage, it may take away the civil benefit and protection of marriage, and alter the law of maintenance and inheritance; but it cannot change the nature of marriage as it affects the conscience; it cannot make the marriage, except as it is founded in the perjury of one of the parties, an act of sin opposed to the law of God, and therefore void; it cannot make that which is marriage to be no marriage; it cannot justify the parties in a voluntary separation from each other, in abandoning the care of a common issue, or in revoking and transferring the vows which they have mutually bound themselves to observe; it cannot, upon any just principle of moral reasoning or political expedience, defend the nullity which it creates. The very permission of the marriage of minors both by banns and by licence implies both their natural and moral competence to marry, and in restricting that permission the law. infringes the common liberty of mankind, the privilege which the Almighty has ordained for the relief and consolation of human infirmity. If the parties had come of age but on the very day of their marriage ; if the marriage had been celebrated by banns instead of licence; if some form, known or unknown, had not been intentionally or unintentionally neglected; the marriage would have been affirmed: but the penalties of the law were extended beyond the design or conception of its authors in cases of the most perfect integrity and good faith which could not have been brought within its rules, but by the most subtle application of de
tached principles of law. Such were the informality in the testamentary appointment of a guardian, the reasonable presumption of a mother's widowhood, and the incompetence of the mothers of illegitimate children, circumstances under which the courts were constrained, in violation of every equitable principle, to pronounce the marriage of a minor void. The last case was first decided in the Ecclesiastical Court, and again after solemn argument in the Court of King's Bench, when Lord Ellenborough reluctantly and after hesitation consented'. Lord Eldon may be supposed to have at least doubted of some of the decisions, when, in opposing Mr. Wilson's Bill for the amendment of the law, he adverted to a case which was before the Court of Chancery, and which might be argued before another tribunalm.
In opposition to the received principles of British law and equity, and to an extent unprecedented in the foreign laws of nullity, the victims of this legis. lative experiment were persecuted without discrimi. nation and without redress. The party by whose contrivance the marriage was concerted, whether by perjury in obtaining the licence, or fraud in the publication of banns, was not only exempt from all penalty, but free, in the first moment of caprice or satiated passion, to take advantage of his own wrong, and the innocent object of his delusion was also free to solicit, and unable to resist, the sentence of nullity. No distinction was made between fraud and error": the marriage was intrinsically and irre
See 11 Term Reports. Priestley v. Hughes. m Woodfall's Parl. Rep. vol. Ix. p. 690. • The whole fault of the marriage might originate in the
mediably null: and although the parents and guardians had never meditated an objection ; although they had actually consented in a presumption of their right to consent; although all parties had acted in good faith ; although they had lived for years in harmony; although their marriages had been acknowledged in their families and by the world ; although they would have sacrificed life itself to confirm their marriage, and secure its benefits to their children ; the law was inexorable: there was no redress for the original misapprehension ; no advantage could be derived from the submission of the offender, the mediation of friends, or the compliances of returning affection: the marriage had been denounced by the law as a meretricious union ;' the husband and wife had been legally living in concubinage; their issue was illegitimate and incapable of inheritance. Even this was not the consummation of legal iniquity. If any defect in the parents'
ignorance or misapprehension of the surrogate; and the following observations are ascribed to Sir John Nicholl in deciding a case of nullity upon the ground of minority and the want of the required consent: “ The marriage had been contracted in a distant part of the country, and the surrogate had granted the licence on an affidavit, which on the very face of it was de. fective. It stated the young woman to be only twenty years of age, and yet there was no certificate of consent by parent or guardian in her behalf. This was not the first instance of such neglect that had fallen under his notice. A surrogate in the country had a short time since written to him stating that he had granted a licence to a minor on the consent of his fatherin-law, and wishing to know whether such marriage was legal. He had of course advised the parties to be immediately remarried by banns, there being no doubt, that the former marriage was ipso faclo void.” Gent. Mag. vol. xc. pt. ii. p. 188.'
marriage had been overlooked or unknown, and their children had been married during their minority with their consent, their marriage also was illegal, and their children also were exposed irretrievably to the penalties of bastardy. Under such a law the whole line of descent was disturbed, and the rights of all property were insecure. A taint worse than the taint of treason was affixed to a marriage solemnized in the most undesigned violation of the statute, a statute arbitrary in its principles, indiscriminate in its application, inflexible in its judgments, and insatiable in its revenge.
It is easy to conceive the effects of such a law upon the charities of domestic life; the restraint which it would put upon the yearnings of parental affection; the watchful cupidity which it would excite among the collateral relations; the tyrannical power which it would convey to the husband; the temptation which it would offer to an unprincipled woman to abandon the maternal and conjugal duties; and the suppression of all parental affection to children, whom the law had disinherited and pronounced a spurious issue. It was a law which constituted new offences, and gave impunity to undisputed crime. The English law supposes such a duty of cohabitation in married persons, as to make the loss of a wife's society the burthen of the action for criminal conversation ; but if any parties married in contravention of this statute, their cohabitation was vicious ; their separation was no abandonment of conjugal rights; their infidelity was not adultery; their marriage with others was not bigamy. The nullity of their first marriage left them free to choose