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guardian appointed by the Court of Chancery, a power of annulling a marriage contracted without consent, by a suit in a court of competent jurisdiction. It was found impossible, on mature consideration, to invest either of the parties contracting the marriage with the same power.
Justice demanded that the law should be retrospective, and it was proposed to affirm all marriages, celebrated without consent before the passing of the Act, in which the parties shall have attained the age of twenty-one years, and be living together, unless a suit shall be instituted within six months. It was a strong argument for the retrospective operation of the Bill, that it had inflicted wounds which ought to be healed, and involved many families in a state of the most distressing uncertainty, which the legislator only could relieve, as he was not restrained by any particular law, but directed in all his acts by the principles of all law, equity and expedience. Precedents in favour of the retrospective clause might be found in the Bills introduced for the confirmation of marriages celebrated in churches or chapels in which banns had not been published before the year 1754. These cases appear to stand precisely on the same ground. In both cases there were marriages de facto, but not de jure: in both cases therefore the marriages were legally null, and nothing short of a retrospective law could render them valid. The law which had been applied in the one case should not be withholden in the other. The rights of third parties, if such unhallowed pretensions might bear that name, were equally affected in both cases: for if there be a nullity of marriage, the
relative situation of third persons to the parties married must be the same, whatever be the ground of nullity. In very many cases both parties, at the time and for many subsequent years, were completely ignorant of the nullity of their own marriage. One of very many cases of crying hardship might be recited. Twenty years had elapsed since a marriage was solemnized between two minors with the full consent and in the presence of the parents of both parties : four years ago the eldest daughter of that marriage was married with the entire consent of her father: children were born of this marriage, but after its solemnization the father of the woman discovered that he was born before the marriage of his parents, a circumstance which had hitherto been studiously concealed from him. The consequence was, that not only all his children, but all his daughter's children became as it were ipso facto bastards; no guardian appointed by the High Court of Chancery gave consent to either of these marriages. A nullity had been engrafted upon a nullity, and it might have proceeded ad infinitum; for if the granddaughter had been married with her father's consent, before the flaw had been discovered, her issue would also have been illegitimate. It was in vain that all the family in all its branches concurred in an anxious wish to give stability to two marriages, solemnly and bona fide contracted, deficient in no religious ceremonies, and consolidated by reciprocal affection, and the birth of numerous issue: it was in vain that the parties to each of these marriages, endeared to each other by the strongest ties of mutual affection, and deeply impressed with the sacred nature of the
bond which united them, earnestly and anxiously sought for a process of law by which their marriages might be declared valid. Without the success of the proposed clause their case was hopeless : the children and grandchildren must be degraded from the station which they had hitherto occupied in society, and be considered in law as the offspring of a meretricious union. All marriages of illegitimate minors without consent of Chancery were in the same condition.
There was a striking anomaly in the statute, which ordained, that if marriages of minors without consent were celebrated by licence they could never be legalized : if they were celebrated by banns they could not be called in question, although it was notorious, that the publication of banns was subject to the most fraudulent abuse. It was proposed to remove this anomaly, and to place the publication of banns under new regulations.
The principal points of this luminous argumentP, by which an experienced civilian introduced the measure to the House of Commons, were necessarily enforced or contested when the measure was debated in the House of Lords; and it will be sufficient to present a very brief summary of the arguments used in the Committee on the clause for restricting the nullity of marriage.
The advocates 9 of the restriction regretted that a law which was irreconcileable with religion, justice,
p See Substance of the speech of Joseph Phillimore, LL. D. in the House of Commons, March 27, 1822, on moving for leave to bring in a Bill to amend the Marriage Act. • Earl of Westmoreland and Lord Ellenborough.
and humanity, had not been already amended, and that effect had not been given to a measure now made familiar by repeated discussion, and recommended by frequent sanctions of the other House, The judgments of the courts proved the insecurity of all hereditary titles, derived in succession from ancestors whose marriages might have been vitiated by casual oversights and informalities, naturally resulting in the bastardy of their issue ; and they enforced the necessity of ratifying all marriages contracted in good faith, and annulled only in consequence of accidental omissions. It was not unprecedented, it was not inconsistent with the prospective clauses of the Bill, to counteract effects which had not been foreseen, and which for a long time had not been acted upon. The great object of the Bill was to give confidence to the most important relation of social life, and to ascertain who were and who were not married. This was at least due to the institution on which the succession of property and civil rights depended, but which the existing Act so far subverted in opposition to the ancient law, that, while it ostensibly professed to prevent clandestine marriages, it annulled those which ought to be binding, and inflicted a stigma on persons who were under an obligation to live together. It was right to protect youth and property, but it was also right to prevent acts of fraud and spoliation, and to give security to all who complied with the law as far as they were acquainted with its provisions. The authors of the law could not have intended that a marriage should be dissolved at the suit of a man who had compassed it by his own perjury, or at the suit
of an heir at law, from the merest motives of selfish interest, or that the law should arm the dearest con. nexions against each other, and extinguish the sentiments of honour and affection. These evils of the law, these temptations to crime and to the violation of the most sacred duties needed only to be mentioned to be restrained. The main objection was, that the measure affected the rights of third persons, whose rights were however sufficiently protected, if indeed any thing more than their expectations were in danger. The interest of an uncle in the nullity of a nephew's marriage would for instance be defeated by the legal marriage of that nephew. It was incumbent on the legislature to overlook such expectations, and the rights of third parties had been again and again infringed; by the Act of Henry VIII. in confirming all marriages celebrated in the face of the Church; by the restrictions which had been put upon the Marriage Act in respect of one class of void marriages, and by the general law, which allowed no suit of nullity to be brought but during the life of the parties. To allow the parties themselves to commence suits of nullity was to allow voluntary divorces. Under the proposed law the parents would have the power of dissolving the marriage within a limited period, at the expiration of which it could be no more impeached. It was natural to look to a better system than this, under which marriage should be indissoluble but by the adultery of one of the parties. It might be observed, that the present Act was nugatory, and might be evaded, by a foreign marriage ; by a secret publication of banns ; and by a marriage after the parties should come of age.