No, no, thy good, Sion, alone must crown The head of all my hope-nurst joys: But, Edom, cruel thou! thou criedst down, down; Her falling thou didst urge, and thrust, And haste to dash her into dust. Dost laugh? proud Babel's daughter! do, laugh on, E'en such as these; laugh, till a venging throng Weep precious tears upon the stones. CRASHAW. HUMAN FRAILTY. WEAK and irresolute is man: The bow well-bent, and smart the spring, But passion rudely snaps the string, And it revives again. Some foe to his upright intent 'Tis here the folly of the wise Bound on a voyage of awful length, But oars alone can ne'er prevail The breath of heav'n must swell the sail, NOT seldom, clad in radiant vest, COWPER. The smoothest seas will sometimes prove The umbrageous oak, in pomp outspread, But Thou art true, Incarnate Lord, I bent before thy gracious throne, WORDSWORTH. REVIEW OF NEW PUBLICATIONS. A concise View of the Doctrine and Forms. By Thomas Poynter, Proctor in Doctors' Commons. 1822. 24 Clarke. pp. THE merits of the Marriage Act of 1754 were that it made the consent of parents necessary to the marriage of minors; that it abolished the matrimonial obligation of contracts per verba de præsenti, and per verba de futuro; and that it secured a permanent evidence by prescribing the registration of marriages. These were the redeeming virtues of a statute, which contained in itself some very exceptionable provisions, upon which a subtle interpretation of the law accumulated additional wrongs, which could not have been contemplated by the authors and promoters of the measure, and to which the assent of the courts was not obtained without reluctance and hesitation, without repeated and elaborate argumentation. The great offence of the bill was a declaration on the mere fiat of its own power, of the invalidity and nullity to all intents and purposes whatsoever of the marriages of minors by licence obtained without legal consent, and of the marriages of any other persons by banns pub. lished in Churches not recognized by the Act and it was afterwards drawn by an inference from the Act, that all marriages of illegiti mate minors, under whatever circumstances, without consent of a guardian appointed by the Court of Chancery were also invalid. It is passing strange that a statute so arbitrary and unjust, so contrary to the whole tenour and spirit of British equity, and so calculated to bring into coutempt the offices and ordinances of religion, should have continued for a period of seventy years without amendment or repeal. The law was arbitrary. In en acting the nullity of marriage, it laid down a rule which had not before existed; which received no collateral support from other acts of the legislature, and which has perished in an instant with the repeal of the offensive statute. It might have more than satisfied the demands of the secular law to declare the marriage void and null in civil estimation and effect, so that the wife should not be entitled to maintenance from her husband, nor the children to the inheritance of their parents: but it exceeded the limits of any human legislation to weaken the bond of marriage on the conscience and to enable the parties to enter into a second marriage, as if they had been previously living in a state of concubinage. It is possible that the full effect of the law was not anticipated at the time of its enactment. Its application to illegitimate minors was not determined in the Ecclesiastical Courts before 1799: and it was not till ten years after this that Lord Ellenborough, after some hesitation, as it has always been supposed, gave a decision to the same effect in the Court of King's Bench. Doctor Henry Stebbing who in 1755, published " A Dissertation on the REMEMBRANCER, No. 48. power of States to deny civil pro. tection to the marriages of minors made without consent of their parents and guardians," expressed his apprehensions rather than his conviction of the force of the law: "I am afraid," he says, "that the general construction upon this Act will be, that if a young gentleman should marry a woman against his father's or guardian's consent, he may marry another with as little scruple as if he had only gone to bed to a common prostitute. But this will be a dangerous mistake." He did not consider that "the law could reach the Vinculum Matrimonii as it lies in conscience, but only regulate its civil effects :" and he trusted to the conscience of pa rents, that they would consent to ratify the informal by a legal marriage. The Act assumed to the legislature a power which the pa rent never possessed, and which the State never needed of nullifying a marriage, only technically and for want of form invalid, not voidable in itself, not contracted otherwise than God's word doth allow and this enactment was in contravention of the divine law and institution of marriage; that the man sliall cleave unto his wife, and that those whom God hath joined together shall no man put asunder. The law was as unjust as it was arbitrary. The penalties of the alleged offence did not fall upon the offender. Although the licence under which the marriage was solemnized was procured by deliberate perjury, the perjury was committed with impunity. The consequences of the nullity fell with most weight upon the children whom it deprived of their inheritance, reduced to a state of illegitimacy, and rendered incapable during their minority of contracting a lawful marriage, without the consent of a guardian ap pointed by the Court of Chancery, which they were not prepared to solicit. The woman also not skilled in the refinements of the law, was in some instances seduced by the 5 B promise and appearance of a lawful marriage, into a state of disguised concubinage, which her soul would have abhorred; and after a cohabi. tation of many years and the wreck of all her fortunes was ejected as a mistress with a family of bastards, whom she had educated with care, and been accustomed to consider the heirs of their parent's fortunes. "It becomes of greater moment, when the lawful character of that state (marriage) is ascertained, less from the obvious intention of persons than from the forms by which the celebration of marriage is preceded and attended: and it is of infinitely higher importance when certain deviations from those forms are inevitably followed by the serious consequences of nullityconsequences which in the face of the purest motives brand the connexion of the presumed husband and wife with the stigma of a meretricious union,' and visit their unoffending issue with all the disqualifications of illegitimacy, divesting the natural heir of his estate, and diverting the stream of hereditary honour into a distant channel, or perhaps abruptly terminating the long line of an illustrious ancestry at a single blow." Poynter, Preface, p. 1. There were many cases in which no fraud was intended upon any part, in which a valid marriage had been contemplated by all parties, but in which from the neglect of some form, which no prudence could discover, all the penalties of an irregular marriage were incurred; the parties, not only without their consent, but in defiance of their best and strongest inclinations, discovered that they were not, and that they never had been man and wife, or capable of transmitting an inheritance to their children. In other cases the children after the decease of their parents detected some fault and informality, which by nullifying the marriage of their parents rendered their issue illegitimate; and not only illegitimate in themselves, and therefore disinherited, but in a condition if they should marry during their minority without the consent of a guardian appointed by the Court of Chancery, to transmit the taint of their illegitimacy from generation to generation. marriages, which are ipso facto void, (and readily imagined by putting the case of a "Another circumstance may be added to the foregoing remarks, namely, that a sentence declaratory of the nullity of a marriage ab initio void, may be obtained at all times by third persons having an interest; not, it is true, as in an original matrimonial suit after the death of either of the parties, but rather in the shape of an incidental question (necessary to determine the validity of another marriage or a testamentary point, or in order to ascertain the party lawfully entitled to a grant of administration,) raised in bar to the claim of any person setting up a point, whether immediate or distant, under the marriage in question." Poynter, p. 50. A mother supposes herself to be the widow of a shipwrecked mariner and unmarried, and a guardian presuming on his lawful appointment under the will of a testator, give consent to the marriage of a child or a ward: but it is discovered after a lapse of many years that the father of the child is alive, and that the appointment of the guardian was defective in some form of law: let every parent decide whether it is just, that the marriage shall be therefore void; that the heaviest of penalties shall be incurred, by parties both unconscious and innocent of offence, and that the children shall also be involved in the wrongs, which their parent's suffer? yet such was the law. "In Riddiak v. Leddiard, the marriage was solemnized in October 1818, with the consent of the guardian of the woman, she being a minor: the guardian however was appointed by a will attested by one witness only, and a statute passed in the time of Charles II. requires two witnesses to any will appointing a guardian, and on proof of the fact of the will having been attested by only one witness, the marriage was held to be null and void, by the Arches Court of Canterbury on the 8th day of May, 1820. The learned Judge in giving sentence in this case concluded in the following manner: This marriage is in no degree clandestine; it has been solemnized with all the requisites of law. The Court must deeply lament to see such a case brought before it; it is a case of hardship on society that persons should have been so long living together as man and wife, and be cast loose on society: but it is in vain for the Court to observe on the hardship, so long as the law continues on its present footing. As the law now stands there is nothing to be done but to pronounce this to be an invalid marriage.' "In Hayes v. Watts, the marriage was in 1800, with the consent of the mother, who supposed herself a widow, her husband having gone to sea ten years before and been reported to be dead. He however returned to England, and on proof of the want of his consent to the marriage, it was in May 1820, adjudged to be null. Phillimore, p. 25. "Severely as the law operates on the description of cases to which I have alluded, there is yet a peculiar cast of persons on whom the penalties of this vengeancebreathing statute press with infinitely greater rigour,-I mean on illegitimate children married, while under age, by licence, especially on all those who were married prior to the decisions, which of late years have taken place on the construction of the statute. In many instances these ill-fated persons have become the victims of an interpretation put upon the statute, which men of ordinary capacity and ordinary knowledge applying their minds to the consideration of the subject, could not have foreseen or antici pated. In cases for instance, where the putative father; in others, where the testamentary guardian appointed by the putative father; in others, where the natural mother has been present and consenting to these marriages, the marriages have nevertheless been held null and void for want of the legal consent. I dispute not the soun Iness of the decisions, which have ruled this point; but this I say, that it required legal subtlety and acuteness; it required a mind exercised in legal questions; it required a deliberate consideration of the intent and spirit of the statute, to ascertain that none of the persons whom I have been describing were qualified to give the consent enacted by law, and to arrive at the settled conclusion, that the marriage of every illegitimate minor, which was solemnized without the consent of a guardian appointed by the High Court of Chancery was ipso facto void. I am justified in these assertions because it was only after long and elaborate arguments, in various Courts of Justice, and after doubt and hesitation on the part of some of the learned judges, before whom this question was at different times argued that the point was fully determined." Phillimore, p. 30. The law is contrary to the spirit of British equity. It holds out an encouragement to fraud, and gives countenance to perjury. It invades the great principle of English law, that no man shall take the benefit obtain a licence by perjury, and of his wrong, and suffers a man to afterwards to plead that perjury as a reason for dissolving a marriage, which from caprice or other motives is become disagreeable to him. This act alone and by itself counteracts the indissolubility of marriage, which is recognized in every other part of the law with such uncompromizing vigour, that no voluntary separation of the parties after marriage is admitted; that the legitimacy of children born during separation is assumed; that the continued cohabitation and society of the parties is the ground upon which an action for damages for |