Lords Sitting of 1 June 1835

MINUTES.
Petitions presented. By the Earl of MANSFIELD, from Aberdeen, against the Abolition of Imprisonment for Small Debts.—By the Earl of RODEN, from Cork, for the Protection of the Established Church of England and Ireland.—By the Marquesses of LONDONDERRY, and CAMDEN, and Earls DARTMOUTH, HARROWBY, and RODEN, from several Places, for Protection to the Protestant Church of England and Ireland.—By the Duke of RICHMOND, from the Agriculturists of Sussex, for Relief.—By Lord DACRE, from Great Berkhampstead, for the Better Regulation of Endowed Schools.—By the Duke of GORDON, and the Earls of KINNOUL and STIRLING, from several Places,—in favour of,—and by the Marquess of WESTMINSTER and Lord LYNEDOCH,—against the Grant of Money for Building Churches in Scotland.

FOREIGN AFFAIRS.—SPAIN.
The Marquess of Londonderrywished to take the opportunity of asking the noble Viscount opposite some questions upon a most important subject. It was not his wish to originate a discussion on a subject of this deep importance, but he wished to ask some questions. His first question was, whether, since his accession to office, any instructions had been sent out to his Majesty's cruisers off the north coast of Spain to place themselves at the disposal of the Queen's Government? Further, to ask if the arms and stores, which he understood to have been furnished by this country, had been paid for, or by what mode they were to be paid for; and then, whether there were any Spanish vessels which had been fitted out here, and what was their number, and at whose expense?
Viscount Melbournesaid, that he was not informed as to any instructions having been sent out by the Admiralty; and as to the ships, we were bound to furnish them by the treaty.
The Marquess of Londonderry: How are they to be paid for?
Viscount Melbournewas not fully informed on the subject. Had the noble Marquess given him notice, he would have informed himself on the subject. He should do so by to-morrow, and would then answer the question. What was the third question?
The Marquess of Londonderry: What vessels had been fitted out here, and at whose expense?
Viscount Melbournecould not answer this question at the moment.
Subject dropped.

ISLINGTON MARKET.
The Bishop of Londonpresented a Petition from 1,734 inhabitants of Islington, in favour of the

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Islington Market Bill. The petitioners complained of the evils which were consequent upon the existence of the great metropolitan cattle market in such a place as Smithfield; and they expressed their opinion, that these evils were of such a nature that any Bill for improving and extending Smithfield-market would not remove them, and that it was out of the power of the Corporation to remedy them. They thought that a great part of these evils would be removed if the Islington Market Bill was passed into a law. The objection made to it was, that it would enable an individual to levy tolls on all beasts brought to Smithfield-market; but that seemed to be an evil, if it was one, that would remedy itself; while the moral and physical mischiefs now existing from the driving of cattle to Smithfield-market could not be remedied by any other measure than the removal of the market. The Corporation of London now opposed the Bill; and he might, perhaps, think it improper to vest such a power in the hands of an individual, if any body corporate had come forward to remedy the existing evil; but as years had now elapsed, and no attempt of the kind had been made, he thought that there ought to be granted to an individual who did so the means of compensation for his great outlay. In his opinion, the public gratitude was due for the spirit and conduct of an individual who had embarked so large a sum of money—he believed 120,000 l.—in such an undertaking as the construction of a market of this kind, with a view to remedy the evils of the existing system. Some years ago, a Committee of the House of Commons had recommended a plan of this sort: but till this one individual had undertaken the task, no one appeared disposed to carry the recommendation into effect.
Petition laid on the Table.

MARRIAGE LAW.
Lord Lyndhurstwished to call the attention of the House to a matter of considerable hardship connected with the present law of marriage. He proposed to their Lordships a Bill to correct the evil he would advert to. As the law now stood, a marriage within what were called the prohibited degrees of consanguinity was not absolutely void, but only voidable; and any competent person might institute a suit against parties who had contracted such a marriage. Unless the marriage was annulled within the life-time of the parties who had contracted it,
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the marriage could never after be impeached, and the offspring would be legitimate. If any such proceedings were instituted, and either of the parties died during its pendency and before sentence, the marriage remained valid, and the legitimacy of the offspring was fully established. Their Lordships must be aware that, from this state of the law, hardships and inconveniences often occurred to the children. The legitimacy of the children might remain in suspense more than half a century. There were many important considerations connected with the subject, to which he should not now advert, since he did not propose to effect any change in the law, except with regard to the simple point to which he now called their Lordships, attention. With respect to what were called the prohibited degrees, there were some doubts whether these degrees were such as were prohibited by Scripture: as, for instance, when the husband marries the sister of his former wife. Our Courts of Law, Ecclesiastical and Common, had decided that a marriage within those degrees was illegal, and it was not necessary now to interfere with that part of the matter; but there was another point of great importance. Marriages within those degrees were valid till they were annulled by sentence of the Ecclesiastical Court. They were called, therefore, voidable marriages. It was the Question of voidable marriages to which he now wished to call the attention of the House. Voidable marriages were such as were contracted between persons within the prohibited degrees of consanguinity; but in his opinion, it was reasonable that the law, instead of declaring them voidable, should declare them absolutely void, at the instance of an individual who became a public prosecutor, so as not to leave the matter, as at present, at the will or caprice of any particular person. It was well deserving of consideration whether the law in that respect might not be altered with great advantage to the public. He should not presume to propose the alteration of the whole law, but should take a more humble course. His proposition was, to legislate upon one of the points he had alluded to. At present, as he had before stated, if a suit was not brought calling in question the lawfulness of the marriage during the life-time of the parties, it could not afterwards be questioned. He proposed, that if the marriage within the prohibited degrees was not, in marriages hereafter to be cele-

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brated, called in question within two years after the marriage had taken place, or for marriages already performed within six months from the date of this Bill, the legitimacy of the children should never afterwards on that account be endangered. Let their Lordships observe the hardship of the case. Parties might marry and have children born to them; the eldest son might come to the age of twenty-five, and on the supposition, as no proceeding had ever been taken, that he was legitimate, and as such was entitled to succeed to his father's property, he might, marry; he might have children; and between ten and fifteen years afterwards there might be a suit in the Ecclesiastical Court; he might be bastardized, and his children deprived of the means and the hopes of that fortune which they had been accustomed to consider as their own—deprived of the estate and of all claim whatever upon it. It was for the purpose of obviating this evil that he should now propose to introduce a Bill. It did not appear to him that any good reasons could be urged against it, but if there were any, they might be disscussed on the second reading. He should listen with the utmost attention to any objections, with the desire to modify the Bill so as to free it from any faults that might attach to its first preparation, and so as to render it fit to meet the justice of the case and to provide for the evils he had described, and for which he desired to find a remedy. The noble Lord concluded by moving that the Bill be read a first time.
Lord Broughamsaid, that the House was under great obligations to his noble and learned Friend for having directed its attention to this important subject. It was perfectly true that there were several defects in the existing system, and of these the one referred to by his noble and learned Friend was the most undoubted. In his opinion the marriage, instead of being declared voidable, should be declared absolutely void. He regretted that the Bill of his noble and learned Friend was not so comprehensive in this respect as to include a remedy for other evils besides those to which it had been limited. Without altering the degrees of consanguinity or altering the law in respect of which marriages were now voidable, it might safely be declared that in future no marriage within the degrees which now made a marriage voidable should be valid, so as to substitute in every case nullity for voidability. When the Bill came to be read a second
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time, he should make further observations upon it. He wished his noble and learned Friend to re-consider some of the provisions. Whenever statutes of limitation were passed they would, of course, have a prospective operation upon future contracts or rights of another kind; but he thought that in this instance especially, it would be well to apply the rule, that where for several years there had been no suits instituted, no such suits should be instituted in future so as to make an actual bar to the employment of such a remedy under such circumstances. That was the former course in the passing of such statutes, but his noble and learned Friend had adopted the principle of the more modern statutes, and wished to give six months for the instituting of such suits. He had always been of opinion, and his daily experience did but confirm it, that the older plan of the statutes of limitations was far the better. The consequence of the Tithe Limitation Act of Lord Tenterden giving a period within which suits might be brought, was, that many parties were thrust into Court who would otherwise never have thought of appearing there. Suppose it was said that all marriages not questioned on this account within two years after their celebration should never afterwards on this account be questioned. That would be prospective. The retrospective clause should in his mind attach from this very instant. He should wish to see it enacted, that where there were no proceedings now instituted, there should be none hereafter in respect of marriages already existing. The 1st of June, 1835, should be the beginning of the retrospective clause. To gain this advantage, he should be willing to extend the other period of two years to a longer space of time, four or six. [Lord Lyndhurst: "five."] Yes, five years; and he would cut off the remedy in other cases, on the ground that where the legitimacy had been so long allowed to remain unquestioned, it must be presumed that there was no good ground for disputing it. There was not one of the old statutes that was not altogether retrospective. That was the case with the statute of James, by which every person was included from the very date of the passing of the Act. The same principle had been wisely adopted in Lord Tenterden's Act, which he, as a Member of the other House, had assisted in introducing, on the subject of acknowledgment of a debt taking a case out of the Statute of Limitations. Before that Act

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any loose words were sufficient to take the case out of the Statute. Lord Tenterden's Act provided that that should not he done but by a written memorandum; there was no time fixed to limit the operation of the Act, and a case had been prepared to be tried at the Spring Assizes at Lancaster, the plaintiff relying upon proof of a parol promise; but between the time of action brought and trial, the Act passed, and Mr. Baron Hullock said, that the Act being passed, the plaintiff was precluded from recovering, and the defendant had a verdict. That was an instance to show that the general principle of a retrospective statute had been distinctly enforced in modern times.
Lord Lyndhurstdid not see that any inconvenience was likely to result from adopting this recommendation. The reason why he had not drawn up the Bill in that manner in the first instance, was, that he was very anxious to pass the Bill, and he feared that their Lordships would not allow it without there being some clause to limit its operation for a short period after its passing, so as to enable parties to take proceedings in courts of justice: but as it now appeared that their opinion was adverse to such a clause, he should be quite willing to adopt the proposed alteration. As to the recommendation to declare all such marriages in future absolutely void and not voidable, he should be willing to do so if it could be done in Committee without the necessity of introducing a new Bill.
The Bishop of Exetersuggested that there should be some further restriction with respect to marriages within the prohibited degrees which had taken place abroad. He knew of a case of a wretched marriage of this sort, where of course it was impossible for the parties to proceed, as they were out of the jurisdiction.
Lord Lyndhurstsaid, that a limitation to that effect was always introduced.
Lord Broughamadded, that cases where the parties were of unsound mind, or beyond seas, were always excepted from the operation of statutes of limitation.
Bill read a first time.