Sitting of 13 July 1820

TEST ACT.
Mr. W. Smithsaid, he had to present a petition from a respect-
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able body of men, of whom he should not fail to speak in terms of eulogy if he did not himself form one of their number; he meant the Protestant Dissenters, praying that the House would take into consideration the situation in which they were placed, and praying the House to repeal the Corporation and Test acts. The petition was signed by 100 persons, and as almost every one of those persons was a member of a separate congregation, and might be said to speak the sense of every member of each congregation, he could fairly say, that though the House could not receive it as such, it was the petition of a great number of congregations. Indeed, if the petitioners had been willing to trust to the appearance of their number, more than to the strength and justice of their case, he could as easily have procured 100,000, and many more, as those 100 signatures which were now affixed to the petition. The case of the petitioners on which they relied was this: — many years ago, when there were grave apprehensions of a popish successor, and fears for the Protestant establishment, the predecessors of the petitioners assented to the propriety of certain tests, to keep out the influence of popery; and they also (under what he considered an erroneous view of the subject) lent themselves willingly to the enactment of tests which applied to themselves, and from which they might fairly have demanded an exemption. If he had wished to enter into an eulogium of the petitioners, he could not have done so in more eloquent terms than those which had been applied to them by his hon. and learned friend, who had brought in the Education bill, when he had occasion to speak respecting them. The petition was so worded, that while it claimed what the petitioners considered to be their rights, it spoke of the House and of the constitution in general, in terms as respectful as possibly could be. It would probably be his lot hereafter to found some motion on this petition: the petitioners courted an inquiry into their conduct, convinced that no class of men would be found more loyal or more warmly attached to constitutional liberty. They conceived they had been harshly treated in being excluded from the rights common to other classes of subjects, he meant eligibility to participate in civil offices, not actual participation, for admission to office must rest with those who administered the government. Ineligibility was

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inflicted as a punishment on persons guilty of violating the provisions of the law, and generally in some very disgraceful and scandalous manner. In looking into the statutes for another purpose, that morning, he observed that revenue officers in Ireland who took bribes to neglect their duty, were rendered incapable of serving his majesty, a punishment that was inflicted without trial on the whole body of Dissenters. He moved that the petition be brought up.
Lord Nugent,in seconding the motion, observed, that the principle of exclusion from office, on account of a difference in religious opinion, had always appeared to him an anomaly in a free constitution and an enlightened age. He himself had a petition from that respectable body the Roman Catholics of England; and in declining to present it this session, he was influenced only by a consideration of the awful and immediate importance of that question which now engaged the public mind. He must, however, be permitted to say of it, that it contained a most satisfactory answer to the often-renewed charge of a divided allegiance.
Ordered to lie on the table.

BARRACK AGREEMENT BILL.
On the order of the day for the second reading of this bill,
Mr. Caleraftsaid, he would oppose the bill in every stage. Though the money to be voted for this object was trifling, yet in the present state of the country every 1,000 l. deserved serious attention from that House. The barracks now under consideration were to be built for the second regiment of life-guards. The situation selected was the Regent's-Park. He had no objection to the building of barracks—he believed it necessary; nor had he any objection to the place chosen: but he objected to the data upon which the estimate had been formed, for he did not consider them formed on economical principles. The right hon. gentleman had said that this measure had become urgent, for that the regiment had had notice to quit. That was not the fact; the person whose buildings they now occupied would be extremely happy to continue to give the buildings either by lease or sale.
The Chancellor of the Exchequeragreed with the hon. gentleman, that in the present situation of the country, any expenses which could be avoided ought not
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to trench upon its resources. But this measure would not add to the actual expenditure of the present, or of any subsequent year. There were various expenses attending the existing barracks besides rent, and the average might be stated at 5,500 l. The question then was whether they should continue the present arrangement without any certainty of the building, or adopt the course proposed with the certainty of having at the end an excellent building?
Lord Nugentsaid, it was no matter where the barracks were to be built, for how much or for how little money; he objected to building any new barracks. He objected to them for the precise reasons for which the noble secretary at war had recommended them. He thought it highly unconstitutional to destroy the connection between the citizen and the soldier; he thought it essential to our liberties, as well as consonant to our constitution, that "a circulation of feelings and interests, according to the constitutional language of Judge Blackstone, should be kept up between the army and the people, between the citizen and the soldier." Without this connection no country's liberties were safe while it kept up a standing army. He was not ashamed to avow these opinions, although they might be out of fashion in that House. They had been the feelings and opinions of the greatest men who had distinguished this country—of sir G. Savile and lord Chatham. They were the opinions of one whose writings, genius, eloquence, and public spirit cast a lustre over the period in which he lived—he meant sir William Jones. He wished the public opinions of that great man, enforced as they were by his virtuous life and his profound learning, were engraved in letters of gold in that House. The noble secretary at war had thought it desirable that a corporate spirit should be encouraged by means of barracks in the army. But this spirit he thought most dangerous in time of peace. It proceeded from the worst principles; it led to the worst events. It led to a military government. The military governments of the continent were all crumbling around us, and we ought, therefore, to apply the adage to ourselves. The only military government that remained undisturbed was the Turkish government, and it continued so because it was fortunate enough to shut out civilization and intellect. Where civilization

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and intellect prevailed, military despotism could not maintain its ground. A military government was equally pernicious to the governors and the governed. It made the government itself dependent on the will, the fancy, the caprice, of the soldiers. This lesson we learned from the Praetorian guards of Rome, and from the janissaries of the East. At times they were the ministers of odious despots in the oppression of their subjects; at other times they were the dethroners of the wretched creatures who depended on their defence. Certain circumstances which had lately occurred had not decreased his alarm on this subject. When he had on a former occasion said, that the system we pursued led to military despotism, he had been told that he had spoken from the impression of political feeling. Be it so. He imputed no motives of the kind to government. But if we could conceive a government so wicked, and proceeding coolly to subject the country to the iron despotism of a military government, they could not think of better means than destroying all the precautions and peculiar establishments of former periods and covering the face of the country with barracks and depots. Posterity would, on perusing the history of the present period, read with surprise the answers given to the questions that would naturally arise from the present state of the country. Why was the country in 1818 on the verge of bankruptcy, the commerce of the nation paralyzed, the manufacturer ruined, and the agriculturist and the mechanic involved in common want and misery? It was owing to the glorious and successful issue of a war for the purpose of obtaining indemnity for the past and security for the future! Why were the military doubled in 1819, and the face of England covered with barracks and depots? Why were the finances ruined, and in the time of profound peace? The same answer must be given! He held in his hand the return made to his motion respecting additional allowances given to the guards. He recollected the phrase of the noble lord had been, that they would be found to be all in kind. Here the noble lord read, "9d. per diem for every non-commissioned officer and private, to be laid out by the commanding officer in victuals as he might judge best for the men." This money had been laid out unauthorized by paliament, unaccounted for to parliament, and not even mentioned in
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the estimates of the year. He did not mean to found a motion upon it. He only mentioned it as a part of a system which he deplored, and must ever continue to deplore while it existed.
The House divided: Ayes, 98; Noes, 40.

List of the Minority.

Abercromby, hon. J.

Hobhouse, J. C.

Anson, sir G.

Hutchinson, hon. C.

Bright, H.

Heathcote, sir G.

Bernal, Ralph

Lemon, sir W.

Boughey, sir John F.

Monck, J. B.

Barrett, S. M.

Newport, sir J.

Bennet, John

Newman, R. W.

Calcraft, J. H.

Ord, Wm.

Colborne, N. R.

Powlett, hon. W.

Calvert, C.

Palmer, C. F.

Coffin, sir Isaac

Philips, G. jun.

Calthorpe, hon. F.

Robarts, George

Duncannon, visc.

Rowley, sir W.

Davies, T. H.

Stuart, lord J.

Ellice, E.

Tierney, rt. hon. G.

Fergusson, sir R.

Taylor, M. A.

Fitzroy, lord C.

Wharton, John

Graham, J. R. G.

Wilson, Thomas

Graham, Sandford

Grant, J. P.

TELLERS

Glenorchy, lord

Calcraft, John

Hamilton, lord A.

Nugent, lord

MARRIAGE-ACT AMENDMENT BILL.
Lord Ellenboroughrose 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
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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

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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 100 l. per annum, or personal property to the amount of 500 l. 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 Chancellorwould 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
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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 Westmorelandsupplicated 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 Redesdaleopposed 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

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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 Calthorpelamented 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 Limericksupported the bill, and regretted that the learned lord on the woolsack would not allow it to go into a committee.
The Lord Chancellorsaid, 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.
The House then divided: Contents, 32; Not-Contents, 26: Majority in favour of a second reading, 6.