MARRIAGE-ACT AMENDMENT BILL. (Hansard, 13 July 1820)

Lord Ellenborough
rose to move the second reading of this bill. He strongly impressed on their lordships the necessity of carrying through this measure, and hoped that their own judgment and feeling would supply whatever might be wanting in his argument in its support. The Marriage act, which it was proposed to amend, he admitted was a law of great advantage to the morals of the country; but the amendment proposed to be made by the present bill originated in no speculative theories, but in a practical view of the defects of the law. His lordship quoted several cases of great hardship which had occurred under the act by the dissolution of marriages contracted during the minority of one or both the parties after they had lived as husband and wife for twenty or thirty years. In one case a marriage had been dissolved, though made 420 with the consent of the guardians of the husband, because it was discovered that the will under which the guardians had been appointed was subscribed by only one witness. In another case a marriage which had been contracted with the consent of the mother of one of the parties, who erroneously supposed herself a widow, was dissolved after twenty years' cohabitation, the father, a seaman, having returned home after a long absence. In one of these cases seven children had been the issue of the marriage, and in another thirty-eight years had elapsed before the process for dissolution took place. The noble lord emphatically asked the House, whether this was a state of legislation consistent with the honour, the humanity or the religion of the country? Would their lordships consent that the law should continue in such a state, that an innocent woman could in a moment be deprived of all the respect and consideration she enjoyed in society, degraded to the state of a prostitute, and her children bastardized by a man, who, to accomplish that purpose, must take advantage of his own crime? They would not consent to see the innocent posterity of such marriages cut off from every prospect of respectability in life. They would not permit it any longer to be said that a single omission in a will should set aside a marriage made with the consent of guardians, and blast all the happiness and prospects of a numerous family. He called the attention of their lordships to the serious consideration, that, since the act passed in 1754, whole generations might be successively bastardized, in consequence of some defect in the marriage of the original ancestor. Though he approved of the Marriage act, he was ready to admit that, morally considered, every contract of marriage by mutual consent ought to be binding; and he thought that another marriage after such a contract was as much adultery as if the first marriage had obtained the consent of parents or guardians, and had been solemnized with all the forms of the law. This was the law of nature and of scripture. At the same time he was aware that the legislature of every country had the right of declaring in what manner property should descend; and as marriages of the kind to which he had alluded could not be contracted consistently with the system of law prevailing in the country, it was the duty of the legislature to discourage them 421 He therefore did not object to the Marriage act generally, but only wished to have its imperfections corrected. In the case of the marriage of minors, he thought that, if the marriage was not made void before the parties came of age, it should then be held that the consent of the parents had been given. The parties would then be in the same situation as if they had married by their own consent after twenty-one years of age. There were cases in which, though the marriage was voidable during the life of the parties, it became legal on the death of either. This was a state of things which no legislature that respected its own consistency could allow to exist. In the case of a man marrying his wife's sister, which was by one branch of the law held to be incestuous, this anomaly occurred, and during the life of the parties a sham suit was sometimes raised to prevent the interference of strangers. He approved of a provision in an act of the Irish legislature, which plainly recognised the principle that the Marriage act should only apply to persons of property, and rendered it inoperative against the poor. The Irish act provided that the law should apply only to persons possessed of 100l. per annum, or personal property to the amount of 500l. On the grounds he had stated, he trusted their lordships would agree to the second reading of the bill, and give its provisions their full consideration in the committee.

The Lord Chancellor
would have been deterred from opposing this bill, considering the virtuous principles on which the noble lord had rested its defence, were he not convinced that its tendency was, to injure those principles the noble lord wished to support. That there might have been, since 1754 when the Marriage act was passed, in consequence of mistakes of parties, many very unfortunate cases of marriage, was a proposition which he did not mean to controvert. These cases he sincerely regretted; and if this bill were intended for the relief of persons suffering under them, it would be a measure worthy of their lordships' serious consideration. Relief had been given with respect to marriages in chapels which were not consecrated before the Marriage act. That was a case in which an amendment of the act was necessary, because those marriages were universally believed to be legal, and communis error facit jus. He was surprised at the praise the noble lord 422 had bestowed on the Irish legislature, the acts of which he seemed to think ought to make the English blush. The noble lord had also referred to nature and scripture: was it by looking to nature and scripture that the Irish legislature made one law for persons of property, and another for those of none? With respect to the case to which the noble lord had alluded, in which marriage was voidable during the life of the parties and not after their death, lawyers of eminence had always considered that a fatal aberration from the general principles of the law, and that it was an exception which ought not to be extended. But the noble and learned lord chiefly objected to the present bill on account of its retrospective operation, by which he contended the rights of succession to all property, since 1754:, might be shaken. Morality and religion were better secured by the present bill, than they could be under the alteration. Were this bill to pass, young women might be more easily induced to marry under age, from their belief that they might rely on the man legalizing the marriage on attaining his twenty-first year. He was, however, anxious to give relief in all proper cases, as far as it could be done without injury to the rights of others.

The Earl of Westmoreland
supplicated the learned lord to allow the bill to go to a second reading, as, in the committee, alterations might be made, which might remove the objectionable parts. If in the committee it was found that the objections could not be removed, and that no remedy could be afforded, the country must submit to the evils of the law, as it now stood; but even taking all the learned lord's objections to be well founded, the attempt to obviate them should at least be made. The present bill was an amendment of the Marriage act. It went upon the principle, that there should be a limitation to the time of instituting suits under the Marriage act; and he knew not why there should be a limitation in all cases of property, and none in the case of marriage. Sixty years was the limitation with respect to property, but even sixty years possession did not give a man a title to his own wife.

§ Lord Redesdale
opposed the bill. It would, he said, take away rights already vested, and extensively affect the property of families. If any alteration was to be made in the Marriage act, it 423 ought to have a prospective, and not a retrospective effect. Titles to property might have been acquired on the understanding that the old law was to be continued, which would be annulled by this bill. All the evils to remedy which this measure was intended to provide might be guarded against by depriving parties of the right to marry by licence, and rendering bans always indispensable. The object of the Marriage act was to establish the fact of marriage; and this might be accomplished without the present bill, which was framed not to amend the existing act, but to destroy it.

Lord Calthorpe
lamented that the learned lord on the woolsack should have felt it his duty to oppose the bill in this stage, as so many reasons had been urged in support of it. Their lordships were often called upon to administer impartial justice, and to protect the faith and sanctity of domestic life, which could not be done as the law now stood. If it was their duty at any time to examine the Marriage act with a view to amend its provisions or to supply its defects, the call became more pressing on the present occasion, when their attention was called to the awful task of administering justice on the subject between the highest individuals of the realm. Their lordships ought to consider whether they would be answerable any longer for a state of the law which inflicted more injustice and hardships on certain parties than could be conceived—which rendered that relation that ought of all others to be stable, permanent, and respected, liable to be annulled and destroyed without the allegation of a fault—and which was as repugnant to common sense as it was to common humanity.

The Earl of Limerick
supported the bill, and regretted that the learned lord on the woolsack would not allow it to go into a committee.

The Lord Chancellor
said, he could not prevent the bill going into a committee, but he could not think he should be doing his duty if he did not vote against it.