§ The Solicitor General presented a petition from Arthur Chichester, esq. Against certain clauses in this bill, by which, if passed into a law, he would be deprived of property to a large amount, to which he was entitled, by the law of the land, under the will of his grandfather. On the order of the day, for taking into consideration the Lord's Amendments to the said bill,
§ Dr. Phillimore
said, that he rose for the purpose of calling upon the House to concur in the amendments introduced into the bill by the House of Lords, and in so doing he could net deny himself the satisfaction of congratulating the House on the success with which their efforts had at length been crowned; and the opportunity which, after so many ineffectual struggles, was now, as it were, placed within their reach, of carrying into effect a salutary reformation which was imperiously called for by the best interests of society—a reformation which had for its object to restore to the marriage bond its true and indissoluble character; to give stability and security to property; to quiet and allay the apprehensions of hundreds of innocent individuals who had unwittingly incurred the penalties of a tremendous law; and to diffuse peace and happiness, and comfort throughout domestic life. Having this great object in view, he had to entreat the House not to reject the only means by which it could be accomplished. The amendments, however objectionable some of them might be, came singularly recommended to their notice. They were the result of protracted discussions in the other House—discussions every way proportionate to the importance of the subject; and they had been adopted after the most deliberate consideration that in our days had been applied to any bill which had been sent from this House to the other branch of the legislature. Within the last five years three bills had been sent to the House of Lords on this subject, varying in form from each other, but agreeing in substance. All these were rejected; but on the present occasion the 1636 House of Lords had not only adopted this the fourth bill, but with the zeal and enthusiasm which generally characterize those who are suddenly converted to new opinions, they had carried the principle of reform infinitely farther than the House of Commons had contemplated. This circumstance had necessarily led to considerable alterations in the bill, and to the introduction of many formalities which had not been thought necessary by the Commons.—The difference in the substance was this: The act of 1754 had declared, that all marriages had without certain consents, which were set forth, should be null and void for ever. The House of Commons had said in this bill; they should only be null during the minority of the parties, and only liable then to be annulled at the suit of the parent or guardian. The House of Lords had gone a step farther, and said there should be no such thing as nullity of marriage. Leaving, therefore, the first clause in the bill in the state it was sent to them from the Commons, which abolished the nullity entirely, they had substituted in the place of the second clause (which limited suits of nullity to the minorities of persons marrying without consent) eight clauses—interposing, instead of the impedimentum dirimens (as it was termed by the canonists) impedimenta impeditiva, which imposed on the minister and the surrogates the duty of not proceeding in the marriage till certain requisites should be complied with, which, however, if omitted, would not invalidate the bond after the marriage had been solemnized.—The hon. and learned gentleman then explained the amendments at considerable detail, and said he had no hesitation in admitting, that the abolition of the nullity entirely was the sounder principle of legislation, provided it could be effected with due protection to those who, by reason of their tender years, could not protect themselves from artifice and fraud. He then expatiated on the advantage of upholding the sanctity of the marriage bond, and on the evils which had been introduced into society from the frequency of nullity causes, which had vilified and degraded the marriage ceremony in the eyes of the people, by showing that it was even possible for those who had long cohabited as husband and wife, and who had numerous issue, to rend asunder the ties which had united them, and to bastardize their children.—He next proceeded to the retrospective 1637 clause, and pointed out that the House of Lords had, by the introduction of a few words, carried the principle of that clause farther than the House of Commons. The retrospective operation was originally confined to marriages actually subsisting: the House of Lords had extended it to all cases of marriages had since. 1754, except where property had been transferred; where other marriages had been contracted; or where marriages had been pronounced null, either directly or incidentally, by any court of competent jurisdiction; and to carry into effect these provisions they had appended four new clauses to the retrospective clause.—The hon. and learned gentleman then adverted to an objection which had just been taken (on the presenting a petition) to the amendments; namely, that there was no precedent of the House of Commons having passed a bill as much amended as this had been by the House of Lords. But, by a singular reverse of circumstances in the history of legislation, it so happened, that the Marriage act of 1754, which originated in the House of Lords, was as much altered by the House of Commons as the present bill had been by the House of Lords. He then stated many circumstances connected with the discussion of the Marriage act in 1754 in that House; and, amongst others, that after the bill had passed the committee, one of the most determined opposers of the measure held it up in his hand streaming from beginning to end with red ink (for all alterations in committees were at that time made in red ink), and said,Look! in this place ran Cassius' dagger through: See what a rent the envious Casca made: Through this the well-beloved Brutus stabbed.But what was the conduct of lord chancellor Hardwicke on that occasion? Baffled and disappointed as he was, to see a bill, which had originated with him, returned to the House of Lords so mutilated that he could scarcely recognize it; he nevertheless entreated the House to pass it in the shape in which it had been returned to them, for the sake of the point gained by it, and to leave to a future parliament the task of correcting the errors and inconveniences with which it was evidently embarrassed.—The hon. and learned gentleman then called upon the House to follow lord Hardwicke's example. He said he should be dealing most uncandidly with the House if he did not distinctly 1638 admit, that many of the alterations introduced by the Lords were very objectionable. The clause in point of style were obscure and verbose, and abounded with unnecessary repetitions; in point of substance there was an unnecessary multiplication of oaths, and there were many regulations which he thought would be found harassing and inconvenient in their practical operation. He instanced the 5th clause, as so drawn as to be scarcely intelligible; but he said it would be unworthy of that House, on account of the style in which the new clauses were drawn, or of technical objections, or even of the higher inconveniences which he had noticed as likely to result from the operation of the act, to hazard the loss of a great principle for which they have hitherto struggled in vain. The provisions of the act might create difficulties, but they inflicted no positive evil on society, and all the inconveniences might be corrected and amended by subsequent legislation. Besides, looking to the species of opposition this bill had experienced in another place, they must not conceal from themselves, that the question really at issue this night was, whether they should pass the act in its present shape or not pass it at all. A verbal alteration might be fatal; as that alteration might elsewhere be proposed to be read that day six months. He held it essential to the credit and character of parliament, that the bill should pass. He was no friend to theoretical or visionary alterations of the law; but where an evil was demonstrated, he would always struggle for the correction of it. Those who opposed themselves to all alterations, who resisted those improvements which lapse of time and change of manners rendered necessary, were, in his opinion, the most dangerous enemies of the state. They were the persons who held out to speculators and reformers the best chance of overturning the constitution of Great Britain. High as the credit of parliament was with the country, he was convinced it would be higher if they passed this measure. The educated and thinking, portion of the community looked to it with anxiety, as the triumph of principle over narrow and illiberal prejudice. All who were interested in the security of property and the comfort of domestic life, were interested in the success of the measure. He trusted, therefore, that they would not allow the dread of minor inconveniences to prevail over a great peculiar good, but 1639 give their assent to the amendments in the exact shape they were sent to them, as the only means of compassing the great object they had in view.
trusted that the House would pause when it reflected that this measure repealed all that had been done since the year 1754, in a manner perfectly novel and impracticable. The present was the only occasion when the House was afforded an opportunity of reconsidering a subject that affected property and interests to an immense amount. It was singular that there were only twenty lines of the original bill left, While ten pages of new and undigested matter was added by their lordships. Some parts were so confusedly worded, that it was wholly unintelligible. It was not less remarkable, that, if the principle of the bill were good, it had not been extended to Ireland. The learned doctor then proceeded to point out the injustice which would be inflicted on various individuals under many of its clauses. It would affect most injuriously a great deal of property, the inheritance of which depended on contingent remainders. Many individuals vested their money in the purchase of reversions, and contingent reversions, depending on parties not marrying, whose interests might be materially injured by this bill. He then commented on that part of the bill which provided that perjury committed for the purpose of procuring a license should be punished with transportation. It held out a strong temptation, when family disputes occurred, for one of the parties, where perjury had been committed, to inform against the other, and to untie the marriage knot, by having recourse to transportation. But it was not only the party, but the person granting the licence, that was in danger of a misdemeanour, if he neglected any one of a number of forms, which no one could be sure of having complied with. He happened to be the surrogate under the bishop of London, and he declared, that, if this bill passed, all his friends should die bachelors, before he would grant them a license. He had heard a noble lady had had a great hand in framing this bill; and it certainly appeared to him to savour more of a feminine than a masculine mind. It was curious too, that, under whatever circumstances of fraud a marriage by banns was celebrated, there was no transportation, and the marriage was valid even if the banns were published under names 1640 entirely different from the real ones of the parties. The whole object of the publication of banns was thus defeated. It had been acknowledged by one of the warmest advocates for the bill, that there was obscurity in some of the clauses. Good God! obscurity in a new marriage law! He was convinced that no one who had not studied the measure thoroughly, could foresee the train of evils which it would be attended with; and he conjured the House, not for the sake of remedying one mischief, to lay the foundation of innumerable mischiefs. He hoped that no man would give a vote in favour of the bill, who could not lay his hand on his heart and say, that he understood its enactments and its effects. He moved, "that the amendments be read a second time this day six months."
said, he perhaps did not understand every sentence in the but he believed in his conscience that it would do great good, by removing a system whose principal features were manifest injustice and gross cruelty; and he also thought that any inconveniences to which it might give birth might very easily be cured. The hon. and learned gentleman said, "Adhere to the ancient law of the land, and resist this innovation." He would say, "Let us return to the ancient law of the land, on which the existing Marriage act is an innovation." The Marriage act passed in 1754 was an innovation on the ancient and indubitable law of this country. That act was introduced by lord Hardwicke, to prevent the children of distinguished families, in their minority, from forming unsuitable alliances. It was clear that the evil which it was intended to meet could not be very extensive, and, in his opinion, it might have been cured by judicious moral restraint. For his own part, he knew no better mode of preventing such a mischief than by good example, and the application of mildness and temper. He did not mean to say, that legislative authority might not be beneficially resorted to on such an occasion; but it ought to be used for the purpose of forming such guards and securities as would prevent the offensive act from being done, instead of sending forth a bill, like that of 1754, which was so loosely framed, that an improper marriage might easily be effected, and which visited with punishment both the innocent and the guilty. That act left it in the power of those persons whom it was the object of 1641 the legislature to restrain from unsuitable marriages, to effect the object they had in view, if they either wilfully or mistakenly took a false oath. It left it not in the power of the parent, or guardian of the minor, or of the clergyman, to prevent the marriage, or to inquire into the truth of the minor's allegation. All that was necessary was his oath. The present bill left it net to the party himself. It required that his age, and the consent of his parent or guardian, should be verified by the affidavits of third persons. The act of 1754 had not the effect of punishing the author of a fraud: no, it visited with punishment a remote and unoffending posterity. It made the offspring of certain families bastards; it destroyed their inheritable blood; and, as estates could not devolve on them, they must either go to some other branch of the family, or if it had become extinct, the property became vested in the Crown. It was a monstrous act, and he rejoiced that the present measure would put an end to its operation. It was an act undistinguishing and merciless—it was an act punishing the innocent and rewarding the profligate—it was an act cutting up all the relations of life—it was an act unsettling property and destroying the peace and happiness of society. The learned doctor had described, most pathetically, the distress which must afflict a noble family when any of its branches formed a rash matrimonial connexion. He could feel for the distress of parents and relations on such an occasion; but he could not bring himself to remove that distress by hurling ruin on those who had not offended. Let the learned doctor look to the incalculable misery which the present law heaped on the other side. Could the distress of a disappointed family be placed in competition with it? Were not disgrace and infamy, under the existing act introduced into the bosom of families which had before been the abode of innocence and virtue? Did it not bring ruin and discredit on those who, in the first instance, had no means of averting the act which was visited with so much calamity? He was surprised at the resistance the bill had met with in the other house, from one (lord Stowell) who had long been the ornament of this house, and who had been deservedly raised to the peerage. His opposition to the measure was a melancholy proof that neither strength of mind, extent of learning, nor maturity of experience, were capable of 1642 eradicating deep-rooted prejudices. Three objections were raised against the present bill:—first, that the principles of our legislation were decidedly hostile to ex post facto laws; second, that if this bill were to have a retrospective effect, it ought to provide for the rights of property, which it did not; and third, that if those rights were not attended to, it ought, at least not to affect by its operation suits which were now pending. Now, he denied that it was against the practice of our legislation to frame bills that operated retrospectively. When laws were made which encroached on the common law, which affected the rights of individuals, and which were found to be unwise or dangerous, it was erroneous to say, that the practice was not to remedy them by retrospective laws. A memorable instance of this was to be found in the repeal of the popery laws, both in England and Ireland. When Certain recovery laws were repealed in 1781, did the act of repeal merely say, that they should not operate in future? No; it went back, and relieved those whaled been subject to their operation, with a few special exceptions. With respect to the effect, which the present measure would have on property, especially that which depended on contingent, remainders, the learned gentleman must know that the act of 1754 was not passed with the most distant view to the security of those who were interested in that species of property. Measures connected with this very subject, and having a retrospective effect, had already been sanctioned by the legislature. Witness the bills introduced by lord Hertford and bishop Horsley to legalize certain marriages solemnized by banns, in chapels where marriages had not been solemnized previously to 1754. By the 12th Charles 2nd all marriages solemnized between 1642 and 1660 were rendered valid, though many of them took place under circumstances that made them void. By the 3rd of Edward 6th, and by the 5th and 6th of the same king, it was declared, that the marriages of priests were, to all intents and purposes, valid and effectual. It had not, been thought affrontful to the House of Lords to propose dealing with legitimate issue in point of property, as if they were illegitimate. By passing an act of this kind the House would proceed so far in disentangling our laws from technicalities. He would follow the example of lord 1643 Hardwicke, who had said that there were clauses introduced into the bill of which he did not approve, but he would take it "for better and for worse."
§ Mr. Hudson Gurney
entirely approved of the retrospective part of the bill, but reprobated the clauses added by the lords, as necessarily leading to perjuries without number, and which he hoped and trusted another bill, if this must be passed, would be brought in to remedy. At the same time, he thought the best measure would be, the simple repeal of the Marriage act, leaving the law as it formerly stood, and analogous to that in Scotland. Where there were, after all, as few imprudent marriages as there were here.
§ Mr. Wetherell
objected to the retrospective clause, as an unconstitutional innovation on the rights of property. With respect to the acts alluded to rendering the marriages of priests valid, they could not be cited in support of the present measure, because at the Reformation the whole code of popery laws fell to the ground, and the restrictions imposing celibacy on popish priests of course fell to the ground with them. He objected to the bill on constitutional grounds; for if a man's right to property could be taken away by an ex post facto law, it was impossible to limit the operation of such a precedent, and men might in a short time be punished criminally by an ex post facto law. It was notorious to every man, both in and out of that House, that the present measure was not founded upon general principles of legislation, but had been introduced for the express purpose of meeting an individual case. His hon. and learned friend had expressed just reprobation of canvassing for a private bill. He thought it a hundred times worse to canvass on a public bill. But it was notorious that this bill had an aspect to a particular case now under litigation. What, he would ask, was the old law, which this bill was intended to replace? Was it not framed by lord Hardwicke, one of the greatest men this country ever produced? And was not the present bill opposed by the lord chancellor of 1822, whose legal knowledge and high acquirements, rendered him equal, if not superior, to his great predecessor? He admitted that the feelings of parents were exposed to deep injury by the operation of the existing law, and his mind required no moralising, humanising influ 1644 ence, to make him regret it as deeply as any one; but such regret would not induce him to throw aside the principles of established law, and to disregard the constitutional rights of property. He could also meet the supporters of this bilk upon the score of feeling; for although some parties would be relieved by its operation, yet it would impose on others a degree of hardship almost intolerable. He also objected to placing such a power in the hands of the Crown, as that of declaring whether property should or should not descend to the children of parties whose marriage had been irregular and contrary to law. What a monstrous power it would put into the hands of ministers! It was no less a power than that of declaring whether the offspring of a marriage should be legitimate or spurious. And, might there not be cases of an exactly similar character, in which policy might dictate different courses, while justice demanded an equality of treatment? Thus, with the same rights, one party might be admitted to the enjoyment of property, while the other was excluded from it. He conjured the House not to pass the bill with the indecent haste which was now proposed.
§ Dr. Phillimore
denied that the bill had been prepared with a view to any particular case, and maintained that its retrospective operation was not so decided as that of the measure of 1817.
The Attorney General
resisted the amendments. The act, as it now stood, differed totally, except as to two clauses, from the bill passed by the House of Commons. The alterations introduced were pregnant with mischief. The existing law might press hard in particular instances; but let the House look at the measure to be substituted for it. The mode in which the prospective clause provided for the protection of minors in future, was really worthy of the attention of members. Suppose the kind of case against which the act provided. Some man took advantage of a girl of fortune's inexperience, and by fraud or perjury, inveigled her into an improvident marriage. Under such circumstances, the whole personal property of the woman came into the possession of the husband. Now, how did this new law propose to punish such an offender? It transported the husband for life, and so deprived the wife of her protector; it confiscated the whole of his property to the Crown, and so robbed her of those means which had 1645 only vested in him by his marriage with her. And let the House consider the situation in which parties were placed. The fact of fraud in a marriage might be discovered years after it had taken place; and the private malice of a third person might plunge a whole family in ruin. The question, then, was not, whether there were evils in the existing law, but whether the House was disposed to introduce greater evils in order to remove them. There were enactments in the bill, so absurd, that it was impossible they could be complied with. Licenses were not to be granted but upon the taking of certain oaths. If one of the parties was 21 years of age, he was to swear that the other was 21 also. The learned doctor denied that the bill had been framed to meet any particular case; but it was impossible not to perceive, that there were persons who looked forward to the bill with interested motives. What would the House say to the clause enacting that, before banns could be published, "the names of the parties and the houses of their abode should be fixed upon the door of the parish church?" The effect of the retrospective clause was, to make no difference between cases of absolute perjury and cases of ignorance or neglect; but at once to Make valid all marriages, whatever their character, since 1754. The evils which must arise out of the passing such a measure divided themselves into ramifications into which it was scarcely possible to follow them. Was it just to benefit a wilful violator of the law at the expense of parties who had never violated the law at all? However he might consent to a change of system for the future, he never would consent to the violation of existing contracts. It was a measure full of importance, and one upon which the House ought to pause.
§ Sir J. Mackintosh
said, it had been asserted that the votes of members had been canvassed on this bill. If that were the case he was in ignorance of it. No man had presumed to canvass him upon the subject. He knew of no parties to the measure in any way; but when he saw the great injustice of the present law—when he perceived its immoral tendency—when he perceived the conduct of individuals who sought to take advantage of that injustice—when he saw one branch of a family endeavouring to destroy the honour, the dignity, the wealth of another, for the sake of personal gain, he could 1646 not but raise his voice against an act which sanctioned such evils. To him it appeared that the amendments of the Lords had rendered the bill less objectionable. The law as it now stood with respect to nullity of marriages, was one, the intensity of whose punishment acted inversely in proportion to the innocence of the parties on whom it operated. It was asked, "will you validate that which has for 70 years been invalid, and which has been rendered so by the perjuries of individuals years ago." He would answer, yes; and for the sake of those parties who were innocent of such perjuries. Was it to be supposed, that for some informality, some technical objection, the House was to go on rendering generation after generation illegitimate, until some near relation at the end of sixty or seventy years should take advantage of the first informality, for the purpose of making that property his, which in strict justice belonged to others? He was one who would not disturb the security of property; but it was because he was so, that he would support the amendments of the present bill. This was not a particular, but a general law, and its effect on particular individuals ought not to militate against its general application. It was said, that it was retrospective; but were there not numerous precedents for such laws? The House was told to look to the law authorities on this subject. If they were to inquire what was the law, they might quote authorities and precedents, and be bound by them; but if they were to consider what ought to be the law, they should discard black letter, and look to the natural feelings and principles of mankind. This bill ought not to be one of divorce between patrimony end matrimony; it was a question between legitimacy and succession; and he contended that it would be violating all the laws affecting that state, if the child were to be made a pauper, inheriting his father's name and honours, and every thing except his property. He wished to caution the House against being led away by the feelings of persons who were learned in the law, for they generally had a prejudice in favour of what was law, and were opposed to any alteration. Surely it would not now be contended, that what was law might not be beneficially altered; and if alteration were admitted, the question would be, how far it was to go? In the present case, it would go for nothing if it 1647 did not act retrospectively. The security of property, instead of being less, would become greater by this bill. The great object of all law in this country was secure succession and possession. The retrospective clauses were entitled to the support of the House, because they tended to repair the injury already done, and because they went to secure property and succession.
The Marquis of Londonderry
said, he supported the present bill, because he thought it was calculated to repair injuries which had been done by the former act. It was said to be introduced to meet a particular case. If he were to support it on that ground, he should consider himself disgraced; but it ought to be no objection to the bill, if there was a case of such manifest oppression from the existing law, as forced an attention to the law, and the necessity of its amendment upon the consideration of the House. He would contend, that the hardships inflicted by the existing marriage act were greater than those inflicted by the law of attainder, inasmuch as the latter were capable of mitigation, and the former were not. Under the marriage act, the offence was latent, and might escape observation for more than one generation. As soon, however, as it was discovered, the consequences were irremediable; the party, to whom the property had descended, forfeited it; there was a defect in his blood, which immediately transferred his fortune to his collateral relatives. In the case of attainder, however, the treason was open and notorious; the blood was at once known to be tainted; the property devolved to the Crown, which in its leniency generally restored it to the family of the offending party, after the withholding of it for a few years had satisfied the purposes of public justice. Indeed, the principle of forfeiture, as acknowledged in the marriage act of 1754, was a most outrageous dereliction of all true principle, because it inflicted a heavy punishment, not upon those who had committed, but upon those who were perfectly free from any offence. If they felt, that the existing law of marriage was more cruel in its operation than the law of treason, they were bound, in justice, to repair by a retrospective clause the evils of which they had already made themselves the authors. He knew that, in passing a retrospective law which was to affect property, he was calling on the 1648 House to tread upon delicate ground; but still it was possible, that by adhering too closely to a general principle, they might do more mischief than by boldly transgressing it. He trusted, that they would not allow any general argument upon the inviolability of property to tie up their hands in this case, and to prevent them doing justice to those whose interests had been cruelly affected by their past legislation. He saw the horrors which the act of 1754 had already inflicted, in so dreadful a point of view, and looked forward to the still greater horrors it was certain to occasion, with so much alarm and anxiety, that he was ready to make every effort in his power to get rid of a measure which he considered to be much more severe than the law relative to high treason.
§ Mr. Canning
stated, that he voted for this bill on the ground of expediency. He did not altogether approve of its enactments, but he saw, that if it were not passed now, no amendment would, in ail probability be made in the act of 1754, which every body allowed to be cruel and defective. If it were passed in its present shape, it would, he was confident, be found so incompetent to the purpose for which it was framed, that it would be necessary to bring in a bill in the next session to amend and explain it. In the hope, therefore, of obtaining a better legislative measure on the subject of marriage than was to be found either in the existing law, or in that which it was now proposed to substitute for it, he should vote in favour of the present motion, with no thanks to the lords for the amendments, but with thanks to Providence, for having got back their bill at all,
§ The House divided on the question, That the Amendments be read a second time: Ayes, 122. Noes, 20. The said Amendments were read and agreed to.