Lords Sitting of 19 July 1820

CITY PETITION.
Lord Erskinecalled the attention of the House to a petition from the corporation of London, observing, that he did not wish to give any opinion upon the subject matter of the petition; his opinions were to be known from his vote and conduct in parliament. The House had been in the habit of giving such a latitude to the receipt of petitions, that it became very difficult for any peer of parliament to say what petition, worded respectfully, they would not receive; and he would find it still more difficult to determine what might be the opinion of the House, when the petition tendered was not from any individual, but from the corporation of London. He did not, therefore, feel himself authorized to refuse, as a peer of parliament, to present this petition.
The petition was read, and lord Erskine moved that it do lie on the table.
The Lord Chancellorsaid, it was for their lordships to determine, after hearing the allegations in the petition, whether such a petition should lie upon the table.
The Earl of Lauderdalesaid, that the petitioners assumed to themselves to know that the bill of Pains and Penalties originated in the secret committee; now he, who was a member of that committee knew of no such thing. The bill of Pains and Penalties did not originate in the secret committee, that committee having no knowledge whatever of it, but was brought forward by his majesty's ministers upon their own responsibility.
The question was put that the petition do lie upon the table, and negatived.
The Earl of Lauderdalesaid, that according to the established practice of parliament another motion now became necessary, and he therefore moved that the petition be rejected.
The Duke of Hamiltonurged the House not to go the length of rejecting the petition, as no greater objection could be made against it than might have been stated against many other petitions, which the House had received.
The Lord Chancellorsaid, that the city of London had no more right to interfere in the judicial proceedings of that House, than any other city or town. If they were to allow of such an interposition from one quarter, they must expect it from every other, and in that case, it would be infinitely better for the public that their lordships should altogether surrender their judicial functions.
Lord Redesdalethought the expressions used in the petition, with reference to the secret committee and the bill of Pains and Penalties sufficient cause for its rejection.
Lord Hollandsaid, that the learned lord had almost convinced him, contrary to his previous opinion, that the petition ought not to be rejected, as if the House were to make a practice of appointing secret committees, he should think it perfectly proper that such a practice should be complained of on behalf of the people at the bar of the House; nor did he see any objection to the expressions used respecting the bill of Pains and Penalties. But there was one allegation in the petition, which was decisive with him that it could not be received, and that was, the assertion, that the whole of the evidence referred to the secret committee, consisted of the depositions taken before the

553
Milan commission. This was an assertion, which, if the petition were received, must be taken as a fact, but of which, nevertheless, he as a peer of parliament, had no knowledge whatever. Upon this ground, therefore, he felt that the petition could not be received.
The petition was then rejected.

MARRIAGE ACT AMENDMENT BILL.
On the motion for the recommitment of this bill,
Lord Redesdaleobserved, that the bill, as now altered, bore hardly any resemblance to what it was before, and he really thought it infinitely more objectionable than it was in its original state. The act already in force had provided that marriages contracted under certain circumstances should be null and void; but this bill would render them only voidable upon suit instituted. It proceeded altogether upon a new ground; namely, that the former act did not make such marriages void; and it enacted, that all such marriages should be good, notwithstanding any provisions of the existing law. It was, in effect, a total repeal of the former act. Even marriages celebrated in the Fleet, which was one description of marriages adverted to in that act, would be now made good and binding. Then again, by this bill neither party was to be at liberty to institute any suit, but parents and guardians alone. Those, therefore, who had neither parents nor guardians, must have their marriages rendered valid, whatever might have been the circumstances under which they took place. There was another clause, relative to the succession to dignities, which was at utter variance with its proviso. When this happened, according to lord Coke, the proviso must be regarded as foolish; but the enactment was altogether at variance with a solemn resolution of that House, as to succeeding to dignities. He would move as an amendment, that the bill be recommitted on this day six months.
The Lord Chancellorstated, that there was hardly one word of the bill, in its unamended state, to be found in the present. He wished, if possible, to avoid any objections to the recommitment; but, after what had taken place, he must entreat their lordships not to proceed further with so important a measure at this period of the session. He could assure the noble lord (Ellenborough), that he was so oppressed with the weight of other matters that
554
he doubted his capacity to do justice to his own views upon this question. He thought, however, that very little would be sufficient to show how necessary it was for the House to take more time before they passed a measure of this description. He had not the least doubt that the learned persons who had patronized the bill, had a much higher degree of learning than he could pretend to in one department of the law; but be must say that the measure seemed to evince the utmost ignorance of the common law of the land. It had been indeed so altered from its original shape and texture, that it reminded him of a case put in some essay on identity—whether written by Locke or some other metaphysical writer, he knew not; but the question discussed was, whether a silk stocking, which had been darned with worsted till no silk remained, was the same stocking? This bill was altogether wrong in its principle: it set out, in fact, with supposing, that in every case which was to come under its provisions a suit was necessary; that a suit was either now pending, or about to be instituted; but this was a view of things which very few of those cases would warrant, It was, moreover, a monstrous principle of this bill which went to require that he who so instituted a suit should prove more than the ordinary forms of the law demanded of him. And what, he would ask, would be the benefit of this clause if it should be agreed to? None in the world. Marriages would be just as valid, so far as this clause could affect them, as if this new law had never been made. As to the precautionary views of the bill, the marriages it proposed to annul were equally null and void under the existing Marriage act. If it were the case of a marriage by licence, contrary (to use the words of the bill) "to the said recited act," it was void by the same Marriage act; if a marriage by bans, contrary to the said bill, it was valid under the former statute, and valid even upon the declaration of this bill itself. If the measure now before them did not amount to a total repeal of the old Marriage act, he knew not what did.— His lordship went on to animadvert upon the mischievous effects of a retrospective bill like this, whose operation did not go back to yesterday—nor to ten, nor twenty years ago, but to the year 1723. It made all marriages contracted since 1723 (however invalid they might have been in point of law, however illegal they might have

555
been in point of fact) good and valid ones, unless the parents and guardians of the parties (although it might very well happen that many of them had no parents nor guardians at all) should have interfered, and proceeded to prevent them. In short, it went back so far, that this was the consequence: the parents and guardians in question, as well as the husbands and wives themselves, had many of them, long since, been enclosed and recumbent with- in the urns and sepulchres of mortality. Yet every such marriage, however great had been the moral or legal objection to it, was to be considered valid. Then, as to the oath taken preparatory to the obtaining of the licence, he must be allowed to remark on this point, that the ecclesiastical authority or his surrogate, either had or had not the right of administering that oath. Now, if he had not the right, he must contend, that the serious prosecutions and penalties incident upon the commission of perjury by reason of false swearing ought not to be instituted. This bill, it appeared to him, went to take away the advantages of legitimacy from those who were legitimate issue, and to confer them upon the illegitimate. His lordship concluded by expressing his conviction, that it was a measure calculated to affect the whole mass of private property in this kingdom, both as to succession and possession; and upon these grounds it was, that striving rather to revise it than to defeat its primary object, he most humbly, most earnestly, and most solemnly, entreated their lordships gravely to consider the objects and nature of the bill, and to allow it to be brought forward in an amended shape at an early period of the ensuing session.
Lord Ellenboroughregretted that his noble and learned friend who had just sat down, and for whose profound talents and knowledge of the law, displayed throughout the whole course of his long and useful life, he entertained the highest deference and respect, should have expressed himself so decidedly against the present frame of the bill, or should not have reserved the benefit of his important observations for the opportunity of a committee, in which they might have been heard with so much effect. While he lamented that that noble and learned lord would not allow the bill to go into a committee, he must say, that he was not less surprised at the course that had been taken by another noble and learned lord who had
556
spoken first upon the subject. The noble lord then proceeded to defend the principle of the bill, expressing his regret that it should have been so unfortunate as to excite the lord chancellor's opposition after the many improvements and amendments which had been effected in it. He next adverted to several cases, for the purpose of showing the very serious evils and inconveniences of the exiting law. Any one of their lordships, whose father and mother, or whose grandfather and grandmother, might perhaps have been married fifty-four years ago, was liable, by possibility, in one moment to be deprived of his fortune, and perhaps of his title, in consequence of the accidental omission of some minute form of law. The principle of this bill, so far as regarded the marriages of minors was this, that one moment of error, one moment of passion, should not be fatal and wholly irretrievable, as respected both the minor and the parent; but they should still have time to recover it. His lordship finally contended that it was hardly fair to argue against the principle of the measure by attacking the indirect wording of the clauses, rather than their spirit; and declared that he should reserve any further observations for the discussion which might occur in a committee.
The Earl of Westmorelandsaid:—The proposition is for the committal of the bill to amend the act of 26 Geo. 2nd. The objections that have been made have been generally to the provisions of the bill; it has been admitted that some remedy is required for the existing grievances, and it is proposed to recommit the bill to remove the objections to it, with the aid and assistance of the noble and learned lords, in the hope, by their great ability, some remedy may be found; but if unhappily after such consideration, that which is complained of cannot be amended, that the country must still suffer under such a system, at least we may have the satisfaction of having done our duty in the endeavour.—Before I proceed to consider the measure itself, I shall attempt to make some excuses for myself and the noble lord who proposed the reading of this bill for the very distressing situation in which we are placed in supporting a measure of a legal nature disapproved by the two learned lords, and stated to shake the property and the settlements of the country. The first protection under which I shall shelter myself is the authority of the

557
House of Commons. This bill has three times passed that House, and this year, as I know by the votes, without a dissentient voice. Whether a measure may be exactly right or correct is not my argument, hut I cannot believe that the House of Commons would without dissent pass a hill that went to shake the property and settlements of the land. That House contains many most eminent lawyers, the two chief judges of ecclesiastical authority in the kingdom, neither of whom expressing a dissenting voice, and one chief judge (sir J. Nicholl) moving or supporting one of the amendments. Then there was the learned and eminent lawyer who introduced the measure, who would not have proposed one of a dangerous tendency, and to whom also this credit is due, that he must have been actuated by most disinterested conviction, as the proposition tends to diminish the suits in the courts in which he pleads. Under these authorities do I shelter myself. Next, this is talked of as a sudden proposition arising out of a few cases. As regards myself the opinions are not new; when I withdrew my bill about twelve years ago, I stated the growing evil, and begged for some remedy, the learned lord, the father of the noble lord who made this motion, admitted the necessity of some; and if at that time any provision had been made, the calamitous situation in which this subject now is, would have been avoided;— and now we are desired to wait again, and not to consider till another year.—Next, as to a few particular cases, I assert it is a general grievance daily increasing, and one which must in its necessary course increase. I have endeavoured in some degree to ascertain the number of cases of marriages duly solemnized which have been nullified, but I have not been able to procure any accurate account, owing in some degree to the extent and number. I have a list of about twenty, all of marriages annulled upon slight informalities previous to solemnization. The noble lord produced six of the sort, of marriages annulled only in the last term. I would call your attention to the grounds of them; Lydyat and Homer—because the consent was given by the mother, a guardian by will, not by a guardian appointed by the court of Chancery. Priestley and Hughes —the daughter deprived of her fortune, her mother an illegitimate child having been married with the consent of her mother. Another, the father was missing
558
for fifteen years, supposed dead; the mother gave consent to the licence, the father returned, the marriage voided. Another, a mistake of a few days in the family of the birth of the lady who supposed herself, as was supposed by the family, of age. Another the licence obtained with consent of the guardian, but the will appointing the guardian had only one witness, when it legally required two. The first four cases, the marriages dissolved after one hundred years cohabitation, that is averaging twenty-five years. Let us recollect that this bastardy would perhaps annul the marriages of all the descendants. The other, marriages generally on the ground of minority, the man having obtained the licence either by swearing himself or his intended wife of age, sometimes wilfully, sometimes ignorantly—the number nothing in comparison of the cases not produced, of families in alarm, as to what upon some specialty of this kind discovered after their death may be the fate of their children, and I believe there is not a professional man, who has not many clients consulting him in alarm upon this subject.
Having satisfied you, I trust, that this is no trifling or special but a mischief of a most alarming extent, and daily increasing, I shall proceed to another part of the question. The noble and learned lords have told us that this act would shake the foundation of property, and all the settlements of the kingdom —strong words; "vultus et verba minantum" from such authority. I have heard a noble friend of mine often say, that if you could but bear the first noise and smoke of an enemies battery, and examine its effects, you would not find them quite so terrible. Having, therefore, after this first discharge, recovered a little my senses, I began to consider what rights and property that bill could shake, and what settlements it could affect or destroy. In arguing this point, I beg to be understood, that this bill is to affirm all decided judgments, not to affect rights and property enjoyed under them. What are the rights this bill affects? the right of bringing an action to annul another man's marriage, which dying he had supposed good, or lives in the same belief, and by this law he has six months to bring that action, and if your lordships will go into a committee, may have any time they think fitting to propose.—Next, as to shaking the settlements, what settlements can it

559
affect? Has any man made a settlement to take effect upon annulling another man's marriage? I do not believe such a thing exists; and if it does, the man who made the settlement, or the heir under it has the benefit of the time to bring his action. But if this act will not affect the property or settlements, I contend that no property or settlement is safe under the existing laws. I stated the other day a case of a tenant for life. He shall marry with all formality, and have a numerous progeny, who shall, men and women, interchangeably marry with all the great families of the kingdom; he shall suffer a recovery when his son comes of age, mortgage part of his settled estate, and sell other parts of his estate. After all these transactions, thirty years after his marriage, one of these specialties shall come out; his wife shall have been a day too young, licence under a testamentary guardian instead of one by the Court of Chancery, some mistake in his own or his wife's mother's marriage, nay grandmother,—what is the effect upon him as an honest man, upon all the families thro' which the bastardy may run, I shall not attempt to describe; but suppose him a rogue, and what is his state? He takes back his sold estates from the purchasers, spends the money, laughs at the mortgagees, and, tired of his wife, solaces himself in the arms of a new one, and so defeats the expecting remainder man. Is this the state of the law? Will any body deny it? Why, a noble and learned lord seemed to make a little hesitation which frightened me, but his very objection proved my case; for the only objection he seemed to take was; whether the mortgagee, during that gentleman's life could get his interest. That would depend upon the form of the mortgage, I think, whether he had a joint bond; but it was not denied, he must lose the principal; it is quite clear that neither purchaser nor mortgagee could have any lien on the estate against the remainder man.—Another case I will put:—A man obtains a licence by any of the pretences, and marries and gets possession of an estate of his wife, real, or even personal, which he sells; the marriage is null; suppose the wife dead or dies, what protection can the purchaser have against the heir at law? I presume to say that no counsel can assure a purchaser or mortgagee that there is a good title to any estate. He would say, "I have examined
560
this title with the greatest accuracy; every thing appears perfectly regular; the family marriages and registers are properly attested; but it is out of my power to tell you that these marriages are good; some of the old ladies may have been at their marriages, a day too young; the marriages of their mothers may have had the same mistake; the guardian that gave the consent may have been appointed by a will with only one witness, or fifty other specialties, and therefore if you mean to have the estate you must take my opinion with this reserve." Then I contend, that instead of shaking property and settlements, this act is necessary to confirm them.
The next objection is, that this is an ex-post-facto law, a most improper term for it, but I must contend that no remedy that has not a retrospective effect is of any use; the evil is interwoven by the operation of 70 years, and every hour does and must add to the extent. The legislature has been so aware of the mischief, that they have passed four acts to confirm marriages (21st, 44th, 47th, and 48th, of the king),where they had been performed in places not covered by the act 26th George the 2nd, one for a parish at Walls End in Northumberland, where, during the repairing of the church, service of marriage had been performed in an adjoining building. And I want the learned lords to tell me whether the merged rights of others, and the rights of bringing actions, were not as much interrupted by those laws to which they gave their approbation as to this? I do not pretend to lessen the propriety of those laws, but I say the case was not so necessary for remedy as the present, because, particularly in Walls End, the time was short, the blot immediately known, and persons had an opportunity to endeavour to remedy it, which in many cases might have been done; but here the disease extends all over the kingdom; the sin, the mistake, extends to the farthest generations. No man knows whether he is safe, however confident he may be, till the blot is struck. What are all Indemnity acts that pass yearly to exempt men from penalties, and others from bringing actions? This objection surprises me most from a learned lord who had the honour of bringing in a bill for the relief of the Roman-Catholics from many of the penal laws. What were those laws? Why, the property went from a

561
Catholic, in certain cases, and his children, and went to the heir at law; the brother could strip the brother of his estate, and take possession. Did it ever enter the head of any one that it was an act of injustice, or an ex post facto law to deprive a man of a vested right, to repeal those severe laws, and deprive the heir at law of his action or right of dispossession? If you may repeal a law, you may surely amend it.
I shall now proceed to the consideration of the law and its effects. The 26th George the 2nd is an act to prevent Clandestine Marriages; and it is proper to consider what were the evils it was intended to check, and what the law at that time. It was the practice to make marriages secretly, suddenly, and clandestinely—children were decoyed from their parents—persons led to the marriage in a state of intoxication, and from scenes of riot and debauchery. To stop this evil the bill was passed; a very wise and necessary measure in its principle. Are these dissolved marriages clandestine? Can they be brought within the principle of that law? A marriage shall be solemnized with the greatest pomp and magnificence; the king shall honour it with his presence, and the archbishop of Canterbury shall perform the service. This marriage shall be dissolved as a clandestine marriage upon some specialties of many years before. Can any man suppose such a system of irreligion, cruelty, and absurdity! Should not the archbishop, when he performs the service, when he holds out the expectation of a progeny to be raised for their own honour and the service of their country, say to the victim; "Remember that which I here charge you to do, may perhaps be your greatest misfortune, and may deliver you to a life of sin and disgrace, and your children to beggary."
But has this cruelty and oppression the slightest effect in preventing that which it was meant to prevent? It is only a trap for innocence and the unwary, and an encouragement to plunder and immorality. If by going to Scotland or France you set the laws at defiance, you are safe. If you comply as far as your judgment enables you, you and all your generation are punished. Yet there is not one of these marriages that may not be confirmed in the highest rank for 40 l., and in the lowest for a small fraction of the money. A licence once obtained, and
562
the ceremony performed, let them only put themselves into a post-chaise and spend, the happy week at Gretna Green, instead of Richmond, or in the lower rank go in the hoy to Leith or Calais, and in forty-eight hours the marriage will be as valid as if there had been no perjury, no mistake in your age or in the marriage of your grandmother. As soon as the parties are of age also they may marry by bans. It is therefore ignorance only that produces the mischief; the blot discovered, the case is easy till they have children—then that which was intended for a blessing, becomes a curse—they cannot then place themselves in a state of conformity to the religion of their country without injury to their children, and that is the state in which these persons exist, till perhaps the passions and debauchery of one avails himself of this cruel mistake; the deceived and unhappy wife is handed over to beggary and disgrace.
We have heard it said, that this bill was to tend to irreligion and immorality, and I wish to look at it in this view. Some years ago about six or eight divorces á vinculo by act of parliament were commenced in this House; every body, was alarmed, the morality of the country would be destroyed, something must be done to stop these numbers of divorces! I am a little unlucky upon that subject. We were then told we encouraged irreligion and immorality by supporting divorce as a punishment for sin; now, we are charged with encouraging immorality because we would prevent divorces for innocence; but if six or eight parliamentary divorces frightened from their number, what do you say to the number I have stated? what to, as was stated by the noble lord, six in the last term on this special ground? add to these the divorces in every consistory court, in every diocese in the kingdom—to those who, tired of one another, have parted without any suit at all,—the number is most frightful Perhaps one of the most frightful operations of the French Revolution was the facility of dissolving marriages, but they were hardly equal to the state of these laws. In closing this subject, I intreat you to consider the possible case of your own daughters, or that of your friends, and I add to the claims of mercy, religion, and morality, the insecurity of property itself.
The Earl of Carnarvonwould not op-

563
pose the motion for the House going into a committee on this bill, because there were some parts of it which he thought would be productive of great advantage. He apprehended, however, that the bill attempted to embrace too much: it proposed a remedy for the past, with provisions for the future; it proposed to limit the power of guardians in preventing marriages, and it provided that marriages should be valid in cases where consent had not been given, but where it had been intended to be given. His strongest objection to it was, that it confounded mala fide marriages with bona fide marriages. The object of the second clause, and indeed the spirit of several other clauses of the bill, was, to convert marriages, that were ipso facto void, into marriages voidable by suit; and that was a principle to which he never could reconcile his mind. There were many other principles contained in the bill, which their lordships, with all the legal knowledge for which that House was so eminent, could not have time to consider in the present session; and therefore he thought the measure should be deferred till another session, when the subject might receive that attention which it deserved.
Lord Erskinesaid:—My lords: It appears to me that we are in the same situation now as when we consented to the principle of the bill by reading it a second time, and committing it; and that the motion of the noble and learned lord is to reverse that proceeding; and were it not that he had begun by stating that he intended to oppose the recommitment, I could not have collected such an intention from his speech, which consisted principally of objections to the framing of the amendment, all of which might be obviated in the committee, if suffered to proceed, so as to carry the bill, the principle of which had already been adopted by the House, into safe and clear execution.
He would preface the little he had to say by observing, that his noble friend (lord Ellenborough) was entitled to the thanks of the whole public for originating the support of the bill in this House, and for his ability and perseverance in removing every objection to its success. The Marriage act was a sudden and violent innovation on the ancient law of the country, and though professing only to prevent clandestine marriages and to protect
564
infants from injudicious and dangerous contracts, had nevertheless, by the introduction of forms not at all necessary to fulfil that useful purpose, involved the most innocent and virtuous persons of both sexes in irretrievable ruin, without the aid of the law now proposed to relieve them, overturning marriages celebrated in the face of the church, with the consent of parents and guardians upon objections utterly unknown to the contracting parties, or to their relations consenting to the marriage.
The cases cited proved these evils in many disgraceful instances; and there were numbers besides occurring everyday, which could not be contemplated without horror and disgust. Was it to be endured in a civilized country that a marriage, celebrated with the consent of a guardian, should, at a remoter period, be set aside, because the will appointing such guardian had been attested by one witness instead of two; and that, in another instance, though the consent of the mother had been given upon the presumption of her husband's death, who had been abroad many years, and unheard of, an affectionate and happy couple who had been long married, and were surrounded by a beloved and innocent family, should at a remote period be condemned to bastardy and loss of property by such a detestable statute, utterly unworthy of an enlightened and civilized nation? But why speak of a nation as civilized where such a law exists. If a traveller from Africa were to publish that this abomination was the law in the kingdom of Ashantee, he would be set down as a common liar, and nobody would read his book. It had been well observed by a noble earl opposite, that all these evils might have been remedied by a total evasion of this law by marriages in Scotland; but after a marriage celebrated in England, in confidence that all was secure by an observance of our Marriage act, it was too late for the legitimacy of the children to marry in Scotland again, as if the first marriage had been in that country.
It is painful to me, my lords, to differ in opinion on this occasion from my noble and learned friends; as in questions of property it is of great moment that there should be no difference of opinion amongst the law lords of the House; but I cannot possibly discover in what manner property will become insecure by the amendment that is proposed, as it appears

565
clearly to me that every insecurity would be removed by it.
In the present state of things, no man can say where property may rest. An erroneous entry in a Bible, as the noble earl opposite has well observed, may have been the foundation of a marriage, when only a single day was wanting for being of age; whereas, the present law if adopted leaves all fraudulent evasions of the statute as they stood before, and does not even set up the purest marriages, though void from accidents such as have been described, but gives to parents and guardians six months after the passing of the act to annul them, if contrary to law. If this time should be accounted too short a period, as not furnishing due notice in all cases, the committee in its discretion might enlarge it, and property could not possibly be shaken, because if persons are already in possession from an illegal marriage, though contracted innocently and in ignorance of any invasion of the statute, they are not to be disturbed by the bill before us; yet what are such possessions, when advantage is taken of such marriages, because innocently and unconsciously void? what but the possession of a thief or a highwayman, who ought to be hanged, instead of being protected? Why should not parliament interfere to prevent such enormities? It has been well observed by the noble earl opposite, that parliament, in the destruction of some of the Catholic incapacities, had gone further than is asked by this bill.
When it was, nevertheless, said that it would shake all settlements, and destroy all the inheritances of the kingdom, he could not help calling to mind what had passed in the House of Commons. No man deserved to be more valued and respected than sir William Scott, and was by none more than himself—what he may have thought of the bill he knew not, but surely if he had considered it as destructive of all property, he would have been in his place to oppose it; but all the civilians,—and amongst the rest sir John Nichol,— supported it; that able judge came into the profession as a civilian about the same time that he did in the other courts. He knew his talents and learning, which had justly raised him to his high station in those courts that are familiar with these cases; he knew all their cruel consequences, yet he warmly supported this bill—certainly not believing that it would destroy all property, because some vul-
566
tures hovering over even living bodies, might occasionally be disappointed of their infamous prey. The bill supported no clandestine marriages, made wilfully in evasion of the law, but only those which had been honestly made in ignorance of the facts that made them void. Lord Hardwicke, who passed the Marriage act, was a most able man, and a great judge; but he did not sufficiently contemplate the danger of making such a solemn contract, subject to such arbitrary provisions; and he was such an enthusiast in the advantages of his own statute as almost to forget himself as a judge when it came in question. Their lordships knew that there were very many marriages celebrated in the Fleet Prison before the Marriage act, which were perfectly legal, and the evidence of which ought not to be touched; yet one of these books having been offered in Chancery as proof of a marriage, lord Hardwicke not only rejected it, but tore the book, and stamped it under his feet. His late most excellent friend, lord Kenyon, whose memory, he held in perpetual honour, told him that he knew this to be a fact; yet one of the same books he (lord Erskine) had produced at the assizes before Mr. Justice Heath, in support of the most important legitimacy of Mr. Passingham, and it was afterwards sustained by his noble friend on the woolsack, in a most just, able, and he trusted a final judgment on that important cause. In truth, my lords, whenever, to prevent frauds in any branch of the law, positive forms and ceremonies were enacted for the conveyances of property of any description (which forms must of course be inexorable, as rules of law), there ought in all of them to be left some jurisdiction in some other tribunal to modify them when they appeared clearly to have been overlooked from mistake or ignorance, and not omitted from fraudulent design. The want of such healing provisions had often produced the most mischievous consequences to the most innocent, and had created greater mischiefs than the forms prescribed by law were calculated to do good.
Lord Calthorpesaid, he should support the bill, as the principle was triumphant over every thing that had been adduced against it.
The Earl of Liverpooldenied that the House, because it had approved the principle of the bill, was bound to consent to

567
its re-committal. Upon a former day a majority of the House had approved of the second reading, and the bill had been committed. It had now come out of the committee—in what state? As a new bill. Every word of its contents had been altered; the bill which came out of the hands of the committee was as different from the bill which went in as one bill possibly could be from another; and yet he doubted whether the bill as it originally went in, or as it now came out, was the most objectionable. What, then, could their lordships hope from the re-committal of such a bill? He was as folly convinced as any man in that House, that a great alteration was necessary in the law of marriages. He felt the defects of the law as it stood: but the present bill was not the true mode of curing those defects. The bill contained principles contradictory of each other; and it had this radical fault—that it attempted to blend a prospective with a retrospective measure. Although he had a general dislike to ex post facto laws, he would not say that in no case could a retrospective measure be advantageous; but he did contend that such a measure could not properly be mixed with a prospective law. Let the House look to what ought to be the law upon the subject of marriage, and let them, by a process as simple as possible, make that the law. He thought that a prospective law was necessary to the happiness and to the morals of society; and, at all events, if we were to have a prospective measure, let that measure be taken separately. The bill had already been in the hands of one committee, and had failed; and he sincerely believed that no more satisfactory result could be expected from its recommittal.
Lord Hollandsaid, that the noble earl would, as he understood him, prefer the introduction of two bills—one prospective, and one retrospective. Now, he would not deny that the one course would, probably, be as good as the other; but there was an old proverb, that a bird in the hand was worth two in the bush. If he could hope that the noble earl would follow up his argument by moving an instruction to the committee to divide the bill into two parts, lie would offer no objection to the course which that noble earl had indicated. As far as he understood the practice of the House, the alterations which the bill had suffered in the first committee could form no objec-
568
tion to its recommittal; and surely no one who paid any respect to the existing act, 26 Geo. 2nd, could urge such an objection. The alterations of that act had been singular. First introduced into that House by the judges, nearly every word of it had been altered by lord Hardwicke; and, being then sent down to the Commons, it was returned with scarcely one word left of the alterations of lord Hardwicke. Lord Hardwicke, however, had acted like a man of sense; he had accepted the bill for the sake of the principle, and trusted to future amendments to adapt it to his own views. It was impossible for him to impress too strongly upon their lordships the importance of the present question. The necessity of alteration,—the disgraceful position of the existing law—was felt not only through the House, but through the country. The proposal now was, to recommit the bill; and he could have wished that the noble lord who had stood forward as the opponent of that proceeding had dealt so fairly and candidly with the House as to have stated clearly and intelligibly whether he was or was not favourable to the bill.
Lord Redesdalesaid, he had told the noble lord, from the first, that he was not favourable to the bill. When it was read a second time, he had said that to any retrospective clause he should be decidedly averse, and that he thought the only remedy for the inconveniences of the existing law would be to cause all marriages to be performed by bans.
Lord Hollandcould not see upon what principle the consideration of the subject in question was to be adjourned sine die, while it was acknowledged, that the continuance of the present system was highly injurious to the interests of the community. The House, as it appeared to him, could only defend itself from applying a remedy either by declaring that the evil was such as they had not power to remedy, or that there existed no evil which called for a remedy. If their lordships were satisfied with the present state of the marriage laws, let them refuse to re-commit the bill; but if they really had been affected by the heart-rending cases which had been laid before them; if they did really entertain a feeling of the propriety and of the necessity of a change; let them indicate and record that feeling by voting for the re-committal.
The House divided: Contents, 13;

569
Not-Contents, 25: Majority against the recommitment, 12.