§ The House having resolved itself into a committee on this bill,
§ Dr. Phillimoreproposed to substitute the word "natural" in place of the words "natural and lawful," in the first clause. In many instances the marriage had been invalidated, although the mother had given her consent to it, her daughter being a minor; because it had been afterwards roved that such party was the natural mother only, and not the natural and lawful, mother. The House, he thought, would not be disposed to sanction such a plea.
§ Mr. Wetherellwas surprised at this clause, which was calculated rather to increase than to diminish the cases of doubt and difficulty which arose under the marriage act. Here was one of the penalties which had been long attached to illicit connexions at once removed. The effect of this first clause would be, that any young man might marry a minor, born out of wedlock, with the consent of her mother as knowing that the mother herself was not in a condition to give it under the present law, and as being willing to take the chance of future legal decisions, whether by the pending bill she would be empowered to consent. The present bill would be a premium on these hypothetical marriages, and might lead to the most mischievous consequences. A young lady might say to a gentleman, or a gentleman to a young lady under age, "Oh, never mind the consent of father, or mother, or guardian; let us marry, and take the chance of our marriage being, if we continue together till after our majority, declared valid, and our children legitimate, or, if we do not, of its being pronounced invalid, and our children illegitimated." In fact, the bill provided, that where parties had married, the one or each of them being a minor, without consent of parents or guardians duly obtained, they should not be allowed to institute any suit for the annulling of such marriage, if they had continued together until the minor was of the age of 21 years. This measure, therefore, which was intended to be amendatory was, in fact, attended with ten times the objections and obscurity that attached to the existing law. Since the case of "Liddiard and Horner," decided in 1799, and the effect of which was to lay down a rule of construction different from that which had previously prevailed every body must know the principle of the existing marriage law. It might be, therefore, imprudent to alter it. He would conclude by moving, as an amendment, that all the words after "be it enacted," be left out.
§ Sir J. Mackintoshsaid, he was not prepared to hear an hon. gentleman rise in his place in that House and declare that no alteration was called for in the existing marriage law—a law which he would be hold to say, had encouraged fraud, perjury, and dishonour—had sowed the seeds of dissention in private families—had caused misery and anguish between parties in all situations—and had introduced 704 the most active principles of repulsion into all the elements of social life. The argument of the opponents of the present measure had been this—that some alterations in the marriage law might have been reasonably called for twenty or thirty years ago, but was by no means necessary now; that the case of "Liddiard and Horner," decided in 1799, laid down an entirely new rule of construction, different from that which had been observed from the passing of the marriage act in 1753, down to 1799; that that new rule of construction had been adhered to ever since, and therefore that the case of "Liddiard and Horner" must of necessity be known to all the world. The unquestionable talent of that most weighty authority (lord Stowell), by whom the case of "Liddiard and Horner" was decided, no man could more highly appreciate than he did; and the case was too well known to make it necessary for him now to describe it to the committee. The existing marriage act declared, that all marriages of minors, had without the consent of the natural and lawful father of the minor, if living; or if not, of the natural and lawful mother; or in case of their being both dead, then of the guardian appointed by the court of Chancery, or by testament, should be null and void. In the case, therefore, of a mother's giving consent to the marriage of her daughter if the mother be natural mother only, the marriage would be invalid, and the daughter would be illegitimate; if the daughter was illegitimate, so would her children be; and not only that, but the same illegitimacy would attach to their offspring, and so down to the latest generation. To guard against this cruel liability, a man upon the point of contracting marriage with a young woman would be under the necessity of making the strictest search into all the most secret history of the family with which he was about to ally himself. To what an inquisition would this be to expose the most virtuous individuals!It would be to violate that delicacy, in the observance of which our females were so carefully educated; and to ensure from the virtuous indignation of a woman so insulted, or from the just resentment of her family, the suitor's rejection and dismissal with contempt and scorn. He should assuredly vote against the amendment just proposed, and for this clause as part of the proposed bill.
Dr. Lushingtonsaid, that the grievances to which the marriage act gave rise were 705 so numerous and so glaring, that he hoped a measure which tended to correct those evils would receive the approbation of the House. As the law stood, a parent or guardian, on a technical point, might seek to break a marriage, to which in the first instance they had assented.
§ Dr. Phillimoresaid, that as the law now stood, all marriages of minors, had without the consent of the natural and lawful parents, or of guardians, were declared to be null and void. The consequence was, that either of the parties contracting marriage under such a disability, might at any period of his or her life, however remote, come forward and set aside the connexion. They might, as the law was new administered, set aside their own oath, after taking the benefit of their own perjury.
The first clause was then agreed to. On the next clause being read,
§ Mr. Wetherellcontended, that it would be an unprecedented deviation from the general rules of jurisprudence, to give this measure a retrospective operation. The general rule of law was, that a party should bear the consequences of their own crimes, faults, and even errors. It was unwarrantable, therefore, if a man became the lawful possessor of property, on account of the invalidity of the marriage of his uncle for example, to step in and deprive him of his right.
§ Sir J. Mackintoshmaintained the propriety of the retrospective part of the bill, and cited several precedents in its favour; especially the statute of limitations, and the act of James 1st, assigning the period within which suits from personal property might be instituted. Thus, the security of a tailor's bill was guarded with all the anxiety of legislation, while the dearest and most solemn ties, as the marriage law now stood, were left without any corresponding protection. Hence might foreigners fairly infer, that the English disregarded every thing that was not immediately connected with pounds, shillings, and pence: that the relations of blood, and affection—the bonds of father, mother, and child,—were postponed on our Statute book to the most insignificant matter of pecuniary arrangement. The object of his amendment would be, to restore the bill in some degree to the shape in which it formerly passed that House. The law, as it now existed, was cruelly, needlessly, and inquisitorially retrospective, and one great object of the measure now under consideration was to remedy a law so un- 706 just and tyrannical. The design or the hon. and learned gentleman who spoke last was, to postpone the operation of it until 90 or 100 years after the passing of the original statute, to which so many objections had been urged. The Scotch marriages, resorted to so frequently, soon after the adoption of the present marriage act, were only clumsy expedients to escape its wanton severity. The hon. member then proceeded to answer the challenge of his hon. and learned friend (Mr. Wetherell) on the subject of retrospective laws, and first referred to the modification and partial repeal of the marriage act ten years after it was passed in 1753. This amendment was retrospective, as well as lord Beauchamp's bill in 1781, which was introduced with the approbation of the then lord chief justice of the court of King's-bench. The further alteration of the law, carried at the suggestion of bishop Horsley, was also of the same character. Retrospective bills were numerous on our Statute book; but he particularly referred to that passed not many years since, in order to put an end to about 300 suits instituted against the clergy for non-residence. His hon. and learned friend had argued the question in a manner that savoured too much of special pleading and technicality, and had employed a sort of reasoning unworthy of him and of the House. The existing law tempted persons to pry into the secrets of families, in hopes of finding something to their advantage: it held out inducements to younger brothers to ascertain the legitimacy of their elder brothers, in order to defeat an entail; or, preserving the knowledge thus obtained until the death of the elder brother, to defraud his children of their natural expectations, and to turn them out into the world helpless and portionless orphans. He did not say that such had been the effect but such was the tendency of the law. Among Englishmen he firmly believed that it operated rather as an incentive to virtue and generosity, than as a motive to blast the hopes of the innocent. It seemed admitted on all hands, that the amendment must be retrospective, and the question was, therefore, whether it should be so to the disadvantage of guiltless fathers, mothers, and children, or whether it should not rather be designed to disappoint the unhallowed and rapacious hopes of some despicable relation. The present law was opposed alike to the peace of 707 families and to the security of property. Was marriage to be taken out of the rules applicable to all other contracts? In the case of a minor who contracted a debt, he might or he might not, when he came to age of discretion, sanction the contract. With a marriage he could not, for it was void ab initio. The present bill placed a marriage precisely in the situation of another contract. If a minor when he came of age continued in possession of land which he had previously taken, his continued possession made him liable for the arrears of rent. Should not a continued cohabitation with a female, who conceived herself legally married, be equally affirmatory of the marriage contract? The marriage act had originally been intended to settle difficulties and prevent cruel retrospective effects. But, like many precipitate measures, it had created the evil it was intended to prevent. This was its intention; but it had in its progress degenerated into a domineering law, highly injurious to various classes, and repugnant to the structure and general character of English society. It was more like a measure of the grandees of Castile, made to protect their moral and physical imbecility against any correction from the admixture of plebeian blood, than a measure in character with the mild and unoppressive dignity of English nobility. It was a law against marriages of affection, a law for rank and wealth against virtue and nature. The hon. member concluded by moving an amendment, omitting certain words and substituting others, for the purpose of rendering the measure more conformable to the bill of last session.
Mr. D. Gilbertobserved, that parliament had, upon various occasions, agreed to bills which had a retrospective effect. In proof of this, he observed, that the ancient mode of executing deeds and wills was by sealing and delivering. In modern times, however, signing was introduced. Now, it had so happened, a few years ago, that property, to the amount of several millions, had been transferred in the ancient mode, without the formality of signing, by which the transfer was vitiated. Under these circumstances, that House had passed a bill, which was in spirit similar to that now before the House, by which those deeds were rendered valid.
The Marquis of Londonderryobserved, that a great mass of evil was generated under the existing law, and, as a moral 708 people, it was their duty to endeavour to remedy it. As to the objection which had been made to any retrospective operation of the present measure, he was of opinion, that where a great evil called for redress, no peculiarity of circumstance ought to arrest the omnipotence of parliament. The defects of the marriage act, if not remedied, were likely to disseminate mischief of the most deplorable description amongst families, and would, in many instances, render doubtful the legitimacy of children. He could see no reason whatsoever for, withholding the operation of the present measure from those who had already gone into the ecclesiastical courts.
The amendment was agreed to, and the report was ordered to be received tomorrow.