Lords Sitting of 2 July 1822

MARRIAGE ACT AMENDMENT BILL.
On the order of the day for the third reading of this bill,
Lord Stowell Lord Stowell moved, that the first clause, which establishes the principle that marriages once solemnized are indissoluble, be omitted. He contended, that civil society had a right to prescribe what was a valid marriage, and that it could never have been the intention of the right reverend prelates who had spoken on a former night on the subject to maintain that improper marriages were purified and made good by the ceremony of the church, notwithstanding all that might have preceded it. He then took a general view of the measure, and stated that the cases which had been urged as its ground-work, were not so hard as they had been represented. In most of them cohabitation had ceased for many years, and the annulling of the marriage was sought either as a relief from the debts and persecutions to which one of the parties had been subjected by the licentiousness of the other, or as a cheaper process than a divorce bill. He complained that all the good produced by the marriage act as it now stood, and the misery from which he had relieved fathers and families, were kept out of view, whilst a few cases of hardship were blazoned forth with detestation and horror. The present measure said to minors and adventurers, we put difficulties in your way, but once get to church and you may enjoy the fruits of your fraud and imposture. A bill founded on such a principle afforded a

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premium to unlimited marriages, which would more than counterbalance the securities which it provided for the prevention of improper marriages.
Lord Ellenborough,after so many days had elapsed since the nullity clause had been rejected by the unanimous sense of the House, was not prepared for this funeral oration in its praise. It had been rejected in consequence of the opinion expressed by the right rev. prelates, that marriages once solemnized ought never to be broken, and he had not heard one word since, in favour of its revival. The learned lord spoke of the present bill as giving premiums to undue marriages; he (lord E.) on the contrary, thought that the existing act gave those premiums. It induced men who were desirous of obtaining a woman's person, to marry her, knowing that her marriage could be broken whenever they pleased. The present bill not only prevented such immorality, but deprived adventurers of the prize which they had attempted to gain; for it took away all the property from them and sent them to pass the rest of their lives in Botany Bay. The learned lord seemed to think that marriage was ordained, not for the satisfaction of the persons married, but for that of fathers and mothers.
Lord Hollandsaid, it was with much surprise he had heard the learned lord describe this bill as a repeal of the ancient law of marriage. What, the ancient law which commenced in 1754? The fact was, that the bill restored a part of the ancient law of the country. The learned lord would punish every fraudulent marriage with nullity; but that very nullity which he thought capable of preventing fraud was really the premium for committing it. In a few instances the dread of nullity might affect the guilty party; but in 99 cases out of 100 it fell on an innocent victim. Both on the ground of reason and precedent their lordships were justified in passing this bill.
The clause was agreed to.
The Lord Chancellor The Lord Chancellor moved an amendment to the retrospective clause, providing that marriages obtained by license, when both parties knew that the putative father was living, and had not given his consent, should not be valid.
Lord Ellenboroughthought that the question of the knowledge of both parties, independently of any other objection, could scarcely ever be proved in a court of justice.
The Lord Chancellorsaid, he would divide the House on the question, if it was only to record his opinion of the measure.
The Ear of Liverpoolwas not friendly to the retrospective clause as it stood. He wished an exception had been made, saving all suits pending. He could not, however, approve a clause such as that proposed by his learned friend which depended upon proof of a nature extremely difficult to be obtained.
Their lordships divided; Contents, 18; Not-contents, 68 Majority against the amendment, 50.
The Lord Chancellorthen proposed a clause for rendering valid, deeds, assignments, and settlements made by persons having claims on property affected by this bill. He should first propose it without the words "upon good and valuable consideration," and if rejected that shape, would propose it with those words.
The Earl of Liverpoolthought this qualification necessary to the retrospective clause.
The Earl of Westmorelandconceived that it would lead to an inextricable labyrinth, and would, in a still more odious manner than the clause which had just been rejected, legalize marriages, but deprive children declared legitimate of the property to which they were entitled, because a third person had willed or conveyed away what had never been his own.
The Marquis of Lansdowncontended that the clause proposed by the learned lord would produce a monstrous state of things. It would declare children legitimate, but would disinherit them of their property: it would people that House with titled beggars, enjoying the honours of their ancestors, but stripped of the means of supporting those honours. If their lordships adopted this proviso, they would leave existing possession subject to endless litigation and fraud.
Lord Ellenboroughhoped, after their lordships had agreed to the retrospective clause, that any attempt to render it nugatory by provisos like the present, would prove unavailing. The course pro; posed was one, which, as guardians of the public morals, their lordships could hot adopt; for it would introduce a system of left-handed marriages in the true German style—marriages which gave legitimacy, but not property.
Lord Redesdalecontended, that to de-

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stroy reversionary rights retrospectively, would be downright robbery.
The House then divided: Contents, 27; Not-Contents, 51; Majority against the clause, 24. A second division took place on the same clause, but with the addition of the words, "for a good and valuable consideration." Contents, 31; Not-Contents, 48; Majority against the clause, 17.
The Lord Chancellorthen said:—My lords, ten days ago, I believe, this House possessed the good opinion of the public, as the mediator between them and the laws of the country: if this bill pass tonight, I hope in God that this House may still have that good opinion tent days hence. But to say the best of this measure, I consider it neither more nor less than a legal robbery; so help me God. I have but a short time to remain with you, but I trust it will be hereafter known that I used every means in my power to prevent its passing into a law.
On the question, that the bill do pass, the House divided: Contents, 41; Not-Contents, 18: Majority, 23.

PROTESTS AGAINST THE MARRIAGE ACT AMENDMENT BILL.
The following Protest was entered on the
Journals, against to the first enacting clause:
DISSENTIENT:—Because it appears to me, that the withdrawing the effect of nullity from the marriages of minors, had without the consent of parents, is likely to produce more and greater mischiefs than such as can fairly be considered as resulting from the general operation of the subsisting Marriage Act.
"STOWELL."
The following Protest was entered against passing the said bill:
"DISSENTIENT:—1st. Because the bill proposes to repeal retrospectively a law which has endured and been enacted upon nearly seventy years, governing the rights of persons and of property; and such repeal is, therefore, a dangerous precedent, destroying all confidence in rights founded on existing law, and threatening, by its consequences, the destruction of all law.
"2nd. Because the injustice and impolicy of repealing the law retrospectively, is acknowledged by the several qualifications introduced into the bill to limit the effects of such retrospective repeal; and yet clauses offered further to limit such effects were rejected, and many incon-
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venicences foreseen therefore remain unprovided for, and there may probably be many unforeseen, and to which human foresight cannot extend.
"3rd. Because, whatever evils may have arisen from the effects, in some instances, of the law proposed to be repealed, the evil of retrospective repeal of a law which has so long endured is much greater, considered as a precedent, which may be used to justify the grossest injustice.
"ELDON, C. REDESDALE,
"SHAFTESBURY, COLCHESTER."
"DISSENTIENT:—1st. For the above reasons, and also because the bill is not, either with respect to marriages heretofore had without the consent of putative fathers, or heretofore had without the consent of natural and lawful fathers, founded upon misapprehension of the law creating any such general practice, as in my judgment can authorize the House to legislate, as in this bill, retrospectively with respect to such marriages.
"2nd. Because the House, having refused to insert clauses in the bill saving vested rights, and rights acquired by purchasers of estates for good or valuable considerations, from persons by the law of the land entitled to sell or settle such estates, appears to me, by this measure, to have acted contrary to the principles which have hitherto secured to the subjects of this country their property, and to have rendered the bill, if otherwise fit to pass into a law, such as no reasoning can sanction, and no precedents can justify.
"ELDON, C.
"SHAFTESBURY.
"COLCHESTER."
"For the second reason:—
"VERULAM, STOWELL.
"SIDNEY, CAMDEN."