HC Deb 26 April 1819 vol 39 cc1461-9
Dr. Phillimore

having moved the order of the day for the further consideration of the report of this bill,

The Kings Advocate

(sir C. Robinson) rose, and opposed the further progress of the measure, which he thought not at all called for by the present state of things. He contended, that the House was not yet in a state of information to enable it to proceed upon a matter of so much importance. It was true, that some very hard terms had been employed in the attack made by the learned doctor on a former night, but none of them were warranted by the fact. The learned doctor had contented himself with broad assertions, and had formed his law according to his own notions, but it was by no means calculated to produce any beneficial effect. He then entered into an examination of the origin of the marriage laws, and into the necessity of affording a protection to the young and inexperienced persons who might be made the dupes of designing individuals. He did not deny that there were some defects in the existing law, which it might be fit, at a proper time and with proper lights, to remedy; but not in the general and sweeping manner proposed by the measure now under consideration. He was convinced that the bill suggested was liable to many of the principal objections that had been made to the law as it stood; and in order to establish this point, he read to the House several of the clauses, commenting as he proceeded upon the manner in which they were worded. He particularly directed his observations against those provisions that related to the period within which it should be permitted, to those who had married during their minority to set aside the union. He resisted also those sections that referred to the residence of the parties in the parish where the bans were published, for a certain time before such publication. On the whole. he saw no important benefit that could result from the measure, while it would be attended with many practical inconveniences. Under these circumstances, and with these objections, he thought that the law ought not to be altered. He should, therefore move, as an amendment to his hon. and learned friend's proposition, "that the report be taken into further consideration upon this day six months."

Mr. Serjeant

Onslow contended, that the principle of the bill was good, but thought that there were some of the provisions which might be advantageously omitted, and that there were some deficiencies which might be advantageously supplied.

The Solicitor General

opposed the bill upon the grounds that it was completely contradictory in its spirit and tendency to the general marriage act. It would be impossible to support the present measure unless the clause by which the marriage of minors without the consent of their parents was declared null and void, should be observed. By the present bill, a principle totally unknown to the English law would be introduced, and unless the House intended to destroy the vital principle of the marriage act, the amendment must be carried.

Sir James Mackintosh

conceived that this was as important a subject as any that had recently come before them, inasmuch as it was one upon which the happiness of society in a great measure depended. He therefore thought himself justified in saying a few words to the House upon the objections which had been urged against the measure of his hon. and learned friend. The first objection adduced against it was, that it would be a departure from the law itself. To this charge he must plead guilty, because he did not See how any amendment to a law could entirely agree with the law itself. He wished to draw the attention of the House to the manner in which the marriage act had been originally passed. It was not an act of deliberation, but an act of the utmost rashness. Mr. Pulteney, in attending some Scotch appeals, was struck by the harshness of the then existing law. He drew up a bill, which was referred fire different times to the judges. After it had been so referred, lord Hardwicke remoulded it, and, driven perhaps by personal altercation into a zeal for the law which he proposed, employed his talents and his influence in procuring its enactment. In two lines of that act, five capital felonies were created. One of its most revolting features was, that it visited with the most severe punishment individuals utterly innocent of crime; that it inflicted a less severe, although still a severe, punishment on individuals who were the least guilty; and that it not only allowed the most guilty individuals to escape with impunity, but in many instances gave them a reward for their treachery and cruelty. The unfortunate children of the marriages against which the act was directed, were declared illegitimate: the unhappy wife was sent back into the world, deprived of her name and her reputation, while the husband, who in many cases might have devised this plan of unmanly triumph over innocence, was rewarded for his guilt, by a liberation from those sacred engagements into which he had basely entered, with the knowledge that he had the power of freeing himself from them at his own pleasure. By that act, passed by the legislature hastily and intemperately, and contradicting in its character the principles by which the great body of the English law had been rendered so venerable—those guards which had been set round the more defenceless part of the community—those protections which justice had afforded to woman against the power and violence, and oppression of man, were weakened, and in many cases wholly withdrawn. After having proceeded at some length in answer to the various objections which had been urged against the bill, the hon. and learned gentleman concluded, by observing, that if they trusted more to immutable nature, and less to the stern operation of law, the intended effect would be more fully and completely produced than it could be by a multiplicity of severe enactments on the subject.

Dr. Phillimore

said, that agreeing as he did in most of the statements which had been so forcibly urged by his hon. and learned friend who had immediately preceded him, be could not however concur with him in the sweeping condemnation which he had pronounced against the marriage act. The foundation of that act was, that the marriages of minors should be solemnized either with the consent of their parents and guardians, or under such circumstances of publicity and previous notice as should afford to all who had an interest in opposing the union which was about to take place, an opportunity of so doing. Was this objectionable in principle? Surely it was adviseable that minors who, by the policy of the law, were protected in all other contracts, should be protected also in the most important and solemn contract which they could form,—the one, too, in which, from the passions and temptations incident to their time of life, they are most likely to be deceived. The objections to the act— the evils he was anxious to remedy, arose, in one branch of it (i. e. with respect to marriages by licence) from the sanctions and penalties by which the provisions of the act were enforced,—sanctions holding out such encouragement to fraud, and a lure to perfidy, that they were a disgrace to the statute book—penalties so tremendous, breathing such vengeance, as it were, against posterity, that eminent judges in expounding the law, had been compelled to admit that it was intended to operate against the innocent. In the other branch of it (i. e. with respect to marriages by bans), to the facilities by which the provisions of it were evaded. The arguments urged against the bill by the solicitor general were if analysed entirely of a technical nature; those of the king's advocate were resolvable into this, that the House ought never to think of altering a measure which nearly 70 years ago was introduced into parliament by the twelve judges and lord Hardwicke. In the first place, the twelve judges could not introduce any measure into parliament; and in the next, the bill which was submitted to their consideration, never obtained the sanction of the legislature: and with respect to lord Hardwicke it happened most unfortunately for those who wished to shelter their opposition to the present measure under the authority of his venerable name, that he was well aware of the evils of the bill as it finally passed the legislature, and looked forward to future times to remedy them. Of this there exists most authentic evidence; for in the Hardwicke papers there is a letter from a clergyman (Dr. Birch), who states himself to have been present in the House of Lords when the marriage act was returned with its amendments from the Commons, and who gives lord Hardwicke's opinion in the following words: "The lord chancellor declared his concurrence with all the amendments, though some of them evidently weakened the bill as sent down from that House, since the substance of it was of so much moment to the nation, and these defects might be supplied by a subsequent one." Nay, so strongly did he feel the necessity of revision and reconsideration of the measure, that Dr. Birch reports him to have thus illustrated his ideas on the subject: "He hoped their lordships would act as their predecessors had done in the case of the act of settlement under king William, when the Commons, who were generally thought ill affected to it, clogged it with many impracticable limitations, in order to prevent their lordships from passing it, who, on the other hand, wisely consented to the whole, for the sake of securing the succession itself, resolving to wait for some favourable opportunity to retrench the exceptionable clauses connected with it."✶ It had been said, that the evils arising from the operation of the law in its present state were of rare occurrence, and he had been called upon to produce examples; he felt considerable surprise at the nature of this demand, and at the quarter from which it was made; for his hon. and learned friend, the king's advocate, could not be so ignorant of all that was passing in the ecclesiastical courts as not to know that those evils were monstrous, and almost of daily occurrence. In the case of Wattle v. Hathaway, decided by the delegates in 1789, the woman was a minor at the time of the marriage; the husband obtained the licence, swearing that she was of age—four children were the fruit of their union; being in great poverty, he went to the East Indies, where he amassed considerable wealth; he returned to this country, and 27 years from the date of his marriage instituted proceedings to annul it, on the ground of his wife having been a minor at the time he swore she was of age, and he succeeded in his suit. * See Parliamentary History of England, vol. 15, p. 84. In Hewitt v. Bratcher, the marriage was set aside on account of the minority of the wife, at the suit of the husband, after a cohabitation of 25 years. In Peyton v. Salmon, the parties had been married several years—two children were born to them; the man read one of the nullity cases in the newspapers—he knew himself not to have been of age at the time he procured his licence; he instituted a suit to annul his marriage in the Consistory court in 1808; failing in his proof there, he, in 1809, commenced proceedings in the court of Peculiars, and the marriage was declared null and void. In Watson v. Little, the marriage took place in 1787; the issue of it were six children; the man obtained the licence on the wife's assuring him she was of age—as she was, within a very few months;—eighteen years afterwards she formed an adulterous intercourse with another man, and then annulled her marriage, and bastardized her children. Walker v. Longstaff, before the Consistory in 1812; Balfour v. Carpenter before the Arches in 1811; Jeffries v. Foster before the Consistory in 1813; Day v. Jarvis 1814; Potter v. Potter 1814, are all cases of the same description; and there is at this moment a cause pending, in which the cohabitation has Subsisted for 22 years; there are 5 or 6 children, and the husband is proceeding to annul the marriage on the ground of his having been a minor at the time it was contracted, he having then sworn himself to be of age, and being within six weeks of 21 years. If this fact is established, the court will have no option but to set aside the marriage. The operation of the law with respect to illegitimate minors is, if possible, more harsh and severe; for in their case it has been held absolutely necessary that there shall have been the previous consent of a guardian appointed by the high court of chancery. Lydiard's case in 1799 is a striking illustration of this. Harriet Lydiard was the natural daughter of Mr. Whitelock and Sarah Lydiard; he recognized her as his daughter, bequeathed to her property by his will, and left her mother and another person his executors and her guardians. She married Mr. Homer at the age of 20, with the consent of her mother and guardian, and it was stated in the licence that she had that consent; three years afterward Mr. Homer set aside this marriage because it had not the sanction of a guardian appointed by the court of chancery. In Priestley v. Hughes, John Wynne married Jane Hughes, an illegitimate child, with the consent of her mother; the issue of that marriage was a daughter; the father died first; the grandfather died in 1796, and at his death considerable property descended to the granddaughter, which was wrested from her in 1809, on proof being made by the heir at law, that Jane Hughes was married without the consent of a guardian appointed by the high court of chancery.—Such is the operation of the law which has been characterized in the course of the discussions this sight, by the appropriate epithet of merciful, and such are the amendments of it, which have been stigmatized as unwise and impolitic! Neither the House nor the Country can have been aware of the extent and enormity of the evil, or it could not have been so long tolerated and endured. A poet, who well understood human nature, and who had looked deep into the foundations of civil society, described that period as the commencement of civilization and refinement when persons began to cohabit together in marriage and issue was born from such union— Tam mulier conjuncta viro concessit in unam Castaque privatæ Veneris connubia læta Cognita sunt, prolemque ex se videre creatam. But now the whole order of civilization 6eemed inverted,—in this our England in the 19th century, it seemed as if it were competent to a husband when sated with enjoyment, to discard his wife,—when elated with prosperity, to get rid of her with whom he had been united and associated in the days of adversity. It was competent to a father, when he was too indolent to maintain his children, to rend asunder all the tender charities of life, and to turn them loose upon society as outcasts and vagabonds.—As to the second branch of the bill, it certainly was most extraordinary, that while the law was so stern and severe with respect to marriages of minors by licence, no protection whatever was afforded to the minor who is married by bans. Bans undoubtedly were the ancient mode by which matrimony was solemnized; and in the simpler stages of society, when the parish minister was acquainted with all his parishioners, no more admirable mode could be devised. The marriage act enjoins, that all bans of matrimony shall be published in an audible manner in the parish church where the parties reside; but by a subsequent clause, it forbids all inquiry after the marriage has been celebrated, into the residence of the parties.; the consequence of this is, that banns have ceased to be a publication or notice to parents or guardians; and in the populous cities of this kingdom, the banns are daily published of persons who have no connexion with the places; and the marriage act in this respect is reduced to an entire nullity;—for example, in the three last months of 1817, the banns of 284 couple were published in the parish church of Marylebone; of these 568 persons, all but two were described as belonging to the parish, whereas the fact was notoriously otherwise.—In the case of Paget v. Tomkins, William Peter Paget, a boy of 17, married his mother's maid; the banns were published in the parish church of St. Andrew's, Holborn, in which both the parties were utter strangers; — fortunately, the name of Peter was omitted in the publication, and for this omission, the court felt itself authorized to set aside the marriage, which, had the name of Peter been mentioned, must have been indissoluble. In a more recent case, a boy of 17, greatly connected, the son indeed of a member of this House in the last parliament, was in the interval between Eton and College married to the daughter of a huntsman, in a church in the Borough; in this parish the parties had never resided. During the performance of the ceremony the clergyman, struck with the youthful appearance of the young man, interrupted the ceremony to question the parties as to their residence in the parish, and the consent of their parents; all these questions were satisfactorily answered by the mother of the woman, and in spite of this unblushing falsehood, the marriage was so valid that it was feared it would be impossible to annul it. These were anomalies in the law which called loudly for redress—the object was, to render the matrimonial law equal and uniform in its operation, and to strip it of the unjust and unnecessary severity by which it was now enforced.—The hon. member concluded with stating, that his sense and experience of the evils and injustice resulting from the actual operation of the law, had alike induced him to attempt the amendment of it, and that he was anxious to submit this bill to the calm and unbiassed judgment, and consideration of the House.

The question being put, "That the words proposed to be left out, stand part of the question," the House divided; Ayes, 98; Noes, 27.

List of the Minority.
Arbuthnot, rt. hon. C. Maconochie, A.
Bathurst, rt. hon. C. M'Naghten, A.
Brownlow, W. Montgomery, sir J.
Castleresgh, visct. Pole, rt. hon. W. W.
Clerk, sir G. Robertson, A.
Cockburne, sir G. Robinson, rt. hon. F.
Clive, H. Shepherd, sir S.
Collett, E. Scott, right hon. W.
Evans, capt. Shepherd, H.
Foster, right hon. J. Stewart, A.
Foster, J. L. Wallace, rt. hon. W.
Grant, R. TELLERS.
Holford, G. Gifford, sir R.
Houston, A. Robinson, sir C.
Joliffe, H.