their course of sin. It might have afforded a curious illustration of the confused ethics of the law, if, during the undisputed validity of the marriage, the nominal wife had committed adultery, and the plea had been repelled not by recrimination, or proof of innocence, but by allegations, then first exhibited, of minority and want of consent at the time of marriage. The legal argument would have been irresistible, but would common sense or common honour have concurred in approving the equity of the defence?

The common and only palliation of these anomalies is, that there is no legal marriage: but, if a clear view be taken of the essence of marriage, and of the peculiar forms under which it is celebrated in England, can it be said, that, because the marriage is deficient in some irrelevant form arbitrarily imposed by the law, the conjugal relation is therefore not contracted? In the parallel case, under the same statute, of marriages null by the publication of banns in an unauthorized church, and afterwards ratified by the special enactment of the legislature, when did the conjugal relation commence? When the parties in the church pledged their troth either to other? or when the Act interfered to prevent the dissolution of their marriages, when some of the parties were probably in their graves, and could derive no benefit from the Act, but in the confirmed legitimacy of their children? The same question may apply to such marriages void without consent as were ratified by the Act 3 Geo. IV. c. 75. and admits but of one resolution. The abstract essence of marriage is the consent of the parties to live together as man and

wife policy requires that this consent shall be publicly declared; religion has ordained that it shall be avowed in the face of the Church, and ratified with sacred offices. In the English formulary of marriage not a word is said of the consent of parents, and minors, married by banns duly published, although without consent, or by licence with consent, are joined together in indissoluble marriage. The parties are warned, that if they are joined together otherwise than God's word doth allow, they are not joined together by God, neither is their matrimony lawful: this clause, explained by contemporary enactments of marriages within the prohibited degrees, implies, that if there is no such impediment they are joined together by God, and their matrimony is lawful. No such impediment is alleged, and, according to the ritual, the man takes the woman for his wife, and the woman takes the man for her husband, to live together after God's ordinance in the holy estate of matrimony; the man further declares, that he weds the woman with the ring; they declare their mutual consent in holy wedlock by giving and receiving of a ring, and by joining of hands; the minister pronounces that they are man and wife together, and recites the words primarily relating to the institution of marriage, but in their ritual use having a ritual application: Those whom God hath joined together let no man put asunder. This is the form in which husbands and wives are joined together in England, and without which, except in the case of Jews and Quakers, there is no marriage. In this form there is certainly no reservation; and its validity is admitted in all cases in which it is not

defeated by the law. Where there is no fraudulent intention, no offence but involuntary ignorance or misapprehension, it is hard to conceive that this form does not bind the conscience: and where fraud is intended, it is equally hard to conceive that any misrepresentation out of the Church can disannul a solemn obligation contracted in the Church; and that perjury before a surrogate can cancel a vow before the minister. When the Marriage Act was passed, the ritual of marriage should have been altered in conformity with its provisions; and as in the ancient missals, a clause was inserted in the form of mutual stipulation, if holy Church will it ordaine, the modern ritual should have made the vow and publication of marriage dependent on the hypothetical condition of the parent's consent. The Act would thus have retained all its oppression and injustice; but the ritual would have been guiltless of the profanation of invoking the Deity in attestation of a nullity, and the minister would not have been degraded by the publication of a falsehood.

It is a proof of the fatal force of prejudice, that a statute so vicious in its principles, so arbitrary in its enactments, so indiscriminate in its application, so pregnant of moral guilt and misery, should have been suffered to disgrace the English law for nearly seventy years, and that after the full maturity of its iniquity was disclosed, the legislature should have been harassed for ten years in its amendment. The law had been nearly sixty years in operation before all the excesses of its fatal power were developed; and it was from February 5, 1812, when Mr. Wilson first moved the amendment of the law,

to July 22, 1822, before the nullity of marriage was superseded, and the good old doctrine of its indissolubility was restored.

It would be tedious to collect even the most contracted view of the arguments which were again and again urged in this decennial controversy; but it would be unjust to the opinions which have been advanced, to overlook the speech of Doctor Phillimore, in introducing the first successful Bill; and the debates in the committees of the House of Lords, on the several propositions for restricting the nullity of marriage, and for substituting voidability for nullity. A clear view may thus be obtained of the light, which the civilian, the lawyer, the statesman, and the divine, have thrown on this most interesting and important question.

Doctor Phillimore argued on the vast importance of a question affecting the very foundations of social order and the happiness of very many individuals. In repelling the charge of innovation, he observed, that the Marriage Act itself had no claim to antiquity, and was the very first instance of legislative interference with the general law of marriage received in England, whose constitution was so averse from the doctrine of nullity, that the old lawyers, who had opposed the encroachments of foreign jurisdiction, would have recoiled with horror from the imputation of bastardy upon the issue of a marriage, unimpeached during the life of the parties who had contracted it. Penalties and censures were pronounced upon irregular and clandestine marriages, but they were indissoluble. Incestuous marriages were the only exceptions; and they could only be

annulled in a court of competent jurisdiction, and during the life of the parties, whose heirs would otherwise succeed to their inheritance.

The law of precontracts, and the frequency of clandestine marriages, had undoubtedly called for reformation and redress. The Bill introduced by Lord Hardwicke passed the Lords with little opposition; but it was vehemently debated in the Commons, and was so changed and modified, that the original provisions could hardly be recognized. Lord Hardwicke nevertheless considered it expedient to pass the Bill; distinctly stating that the objectionable clauses might be afterwards amended. It was hardly possible, that a law which at one blow subverted the whole matrimonial law of England, as it had existed for centuries, should not need revision; and if its author could have foreseen its practical operation and effects, he would have been the first to propose a remedy for the evils which it had produced.

The Act was valuable, in making the consent of a parent or guardian necessary to the marriage of a minor; in abolishing the law of precontracts; and in securing the registration of marriages. It was objectionable in giving encouragement to fraud and perjury, and in taking vengeance of posterity; as if it was designed to operate upon the innocent, and to afford impunity to the guilty. It sought to enforce its provisions by mere terror, and practically gave rise to a complication of immorality and injustice.

Under this Act marriages were null, when they were celebrated by minors by licence obtained without consent; and when they were solemnized in churches and chapels in which banns had not been published before the year 1754. In the latter case the nullity