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which was proposed without effect. tracted without legal consent, would Thus the whole progress of the have left the old law, rather altered Bill is laid before the reader. than improved. The Act of Amend
Dr. Phillimore's intentions con- ment is far preferable in rescinding cerning the clause of nullity, were the clause of nullity altogether and far less absolute and perfect than without any limitation or exception, the provisions of the present law. but in respect of marriages, of
“ I now proceed to the details of the which the invalidity had been almeasure. The first clause in the proposed ready called in question or deterAct, will go to the entire repeal of the nul- mined in a court of competent julity clause in the Marriage Act. Instead risdiction. It is no common consoof a marriage, in which the consent re
lation to know, that these questions quired by the statute has not been given, being null and void to all intents and pur
shall not be agitated afresh. There poses in law whatsoever, I propose to give
can be no new case of nullity for to the father of the minor, if living; if want of consent: marriages solemdead, to the guardian of the person; if nized and not litigated before July there be no guardian, to the mother, if 22, 1822, are all confirmed, and the living and unmarried, and if there be no
clause of nullity mother living and unmarried, then to a
same relates to any marriage to be gnardian appointed by the Court of Chancery, the power of annulling it by a suit to hereafter solemnized, shall be and is be instituted in the ecclesiastical court of repealed." competent jarisdiction for that purpose.
To this unlimited repeal, it was In my former Bill, a similar power was objected in the Protest of Lord given also to the parties contracting the Stowell, “ that the withdrawing the marriage, for six months after they should effect of pullity from the marriages have attained their majority ;-- if the of minors had without the consent House wish that persons should be invested with this authority to impugn their of parents, is likely to produce own acts, I must bow to their decision. more and greater mischiefs, than But after the most mature consideration, such as can fairly be considered as that I have been able to apply to the sub- resulting from the general operation ject, I really have not been able to bring of the subsisting Marriage Act.” myself even to appear to sanction a
The evils of the former Act are conrse of proceeding, which, in principle, seems to me so utterly unjustifiable. i upon record, and it is hard to con: strongly feel, that minors, who by their ceive a system of more accumulated own voluntary act may have anited them wrong: when the mischiefs of the selves in marriage, and who have ratified new measure shall be developed in that act, by continuing to cohabit one day practice, it will be the office of a after they have attained their majority, wise and watchful legislature to onght not to be anthorized to recede from engagements they have solemnly contract. prevent and correct them, not in
the meanwhile delaying the restraint ed, long after the age when they were capable of consent, and long after the of positive evil, in the apprehension period, when, if they had been married by of that which is problematical and banns, the marriage must have been indis. . unknown. The nullity clause was, soluble." Phillimore, p. 45.
as it was described by Doctor StebThe concession of this power to bing, a measure of mere force, or minors to undo their own acts, was terror, as it is called by Dr. Phillinot attempted. The clause, how- more: by arming the parent with an ever, in the third section, which was uncontrolled power of nullifying the afterwards withdrawn, enabling all marriage of his child; it superpersons to institute a suit of nullity seded better considerations in his within six months after the passing mind; it relaxed his vigilance in preof the Act, and the proposed re- venting a connection which he could servation to parents and guardians not approve ; and it rendered him of a right to nullify during the mi- averse from all overtures of compronority of the parties, marriages con- mise and reconciliation. The present
Bill, by taking away the hope of tors of law inust have sighed in vaio remedy, addresses itself to the jea. for their customary rest and vacalousy of the parent, and challenges tion. his most anxious endeavours to frusa Mr. Poynter, also in concurrence trate the designs of an unsuitable with Dr. Phillimore's Bill, wished marriage, to which, when it has that parents and guardians should been contracted, and cannot be retain the power of instituting, duravoided, the very necessity of the ing the minority, suits of nullity: case may reconcile his mini. The
.“ because, while the general and permild influence of a parent's autho- petnal application of the penalty of volrity, and circumspection, will sel-lity cannot be too much deprecated, it is, dom be eserted without effect: and at the saine time, quite impossible to deny, where the parent's duties have been
that this very enactment, whichi, with reneglected, and the child has not
ference to one class of cases is admitted to
be highly objectionable and painfully opexperienced the protecting care
pressive, lias, under other circumstances, which his years required, is it just afforded a most salutary and desirable that the parent shali possess a power protection. For it ought not to be forof dissolving a marriage, in which gotten how many are the unhappy conneche took no concern, to which, if he tions which have been dissolved by a sen did not give, he hardly refused histence of mullity; low many the parents
whom the right of instituting snch suits, consent, and which, if it should be
has relieved from a load of sorrow ; soscelebrated by banns, he would have
row proceeding from one of the deepest no power to disturb?
calamities of civil society, that of seeing Mr. Poynter, in concurrence with an inexperienced child, whose station war. Dr. Phillimore, was desirous of pre- ranted a brighter hope, linked indissolably venting all persons " from turning in the bonds of a degrading marriage." round at an indefinite period of Supplement, p. 3. time to disavow acts which they It might be difficult, except by a bad soleninly engaged in, and which reference to the statute, to justify cobabitation had rendered morally or contirm this supposed right of and equitably binding,” would also instituting suits of nullity of marwith him, have modified “ the re- riage for ilie mere neglect of legal trospective effect of giving instant forms. Such a right is conveyed validity to marriages declared to be by no sentence of Scripture, nor is null and void by the existing law,” there any sacred record of iss prac. and thus have afforded to the par- tice: neither can it be derived from ties, “ for a short period, a locus any social compact: the children of penitentie.” We fear, that the lon- the marriage, who are principally gitude and latitude of this locus pe. interested in its repeal, cannot be nitentie would have been found in supposed to assent to its avoidance, Doctors' Commons; and that the But in cases, in which there is least penance would bave consisted in
reason to question the right, what many doubts and disputes, inflamed advantage does this sentence of by ihe limited interval of dissolu. . nullity afford? It dissolves an untion: and that some loving couples, happy connection : no more. If an who had no previous thoughts of inexperienced girl has been seduced separation, might have been tempted into a meretricious union, as it is to think of change, and to make called, will the sentence of pullity provision for any variation which restore her to her maiden state? their affections might undergo. Suits will it put her in a condition to of nullity would have been multi. enter upon a more auspicious marplied beyond all former precedent; riage? if she has not been a wife, and in the six months from July to will her parent venture to designate January, which followed the passing what she has been? Or, if an inof the Act, the college of the doc- experienced boy has been inveigled
by an artful woman, shall his affec. permit them to marry below theirs. But tions be estranged from that woman
sometimes it happens otherwise, and you by a dictum of law, so that upon
would have a law to prevent it. Well : attaining his majority, he shall be
you have it, and wbat will you do with it?
The law adds nothing but force ; force is prepared with constant affection to
abhorrent to human nature, and may draw enter into marriage with another?
upon you and your children, mischiefs In either case, where are the chil. which you will surely repent, and for dren? Let the children of the son which you will find no remedy. For misbe abandoned to their state of ille chief, give me leave to say, there may be, gitimacy, but shall the mother forget unless you can find a nullity, which, like a her sucking child, or shall she be magic wand, would make every thing it
touches vanish and disappear, as if it had suffered to clasp a bastard to her
never been.” breast? There is but one alternative: the child is legitimate or ille.
In the Protests of the Lords, obgitimate, the mother is a wife or a jections were made to the retroconcubine, But the marriage is spective clauses and operations of miserable and degrading: in whose the Bill
, as dangerous precedents, judgment ? upon what principle ? especially affecting the right of proIs it that there is a difference of perty. The necessity of these rank and fortune, that it bears that clauses was defended by Dr. Philli. character, These are not the mar
more at considerable length. riages, which courts are called to “ On general principles, I feel the argn. dissolve, or which minors are prone
ment in favour of the retrospective operato contract. The rich and the
tion of the Bill to be exceedingly strong. noble see no attractions in poverty judicial to the community; if, instead of
If a law by experience is found to be preand degradation. Doctor Stebbing's promoting order, and equity, and justice, advice
it holds out a temptation to perjury and repeated :
fraud, and tends by its operation and ef“ Consider, gentlemen, the power that
fect to villify and degrade in the estima. God and nature hath put into your hands :
tion of the community, that institntion, and which, if you use properly, you will which, for obvious reasons, ought to be find no great want of the aid of laws. upheld as a primary object of respect and Nature hath placed your children under veneration, surely no delay should be interyour inspection and care; always within posed to the repeal of such a law, Surely, the reach of your advice and authority, also, the repeal should be as complete and which should be employed in giving them effectual as possible, and in the manner a sober and virtuous education, suitable to
best calculated to heal all the wounds, their raok and quality, which will natu
which by its operation it may have inrally dispose them to set a just value upon
flicted on Society." P. 50. themselves, and to think themselves de
In addition to general principles, graded when offers of marriage are made
Dr. Phillimore alleges as precedents to them by persons of inferior condition. Add to this, that you are masters of the
in favour of the Bill, that the late state and fortune of your families, which Marquis of Hertford and Bishop will always be a great check, ordinarily. Horsley had brought in Bills for the sufficient, to keep them back, wheu they confirmation of marriages solembegin to find their inclinations running nized by banns published in chapels contrary to your judgments. Experience shews this. For look abroad into the
not recognized by the Act, wbich, world, and what will you see? Why,
in all points involving the right of ordinarily, the poor marrying among the the persons so married and their depoor, the middle rank among the middle scendants, and the defeat of the rank, and the rich and the noble among claims of third parties as lawful the rich and the noble. The world natu
heirs of the persons unmarried or rally runs this way without the help of not legally married, correspond with laws. The lower classes of men have it
the recent enactment. The property not in their power to marry above their rank, or very rarely. The rich and the thus transferred from the legal to great bave as rarely so little pride as to the natural heir, is placed in no REMEMBRANCER, No. 48.
other hands than would have pos- feiture to the crown; these are sessed it, if the Act of 1754 had not points on which surrogates can adbeen passed; if the parties had not vise, and on which legislators may been married during their minority; deliberate. The general reader will if the marriage had been celebrated regret “ the very great difficulties by banns; if some forms, which in- thrown in the way of marriage by tentionally or unintentionally were the irksome regulations contained neglected, had been observed. The in the eighth, ninth, and sixteenth current of inheritance is again sections." turned into its natural channel, from In regulating the publication of which an artificial statute had for- banns, the law appears to have cibly diverted it.
contemplated the wants of large Mr. Poynter further complains, and populous towns, ratber than of that a most uncalled-for innovation villages, and moral districts, in the has taken place in respect “ of the circumstances of which its proviregulations hitherto in force for the sions are generally useless and unprevention of clandestinity.” The necessary. In respect of banns, the ground of the complaint is not very Act is also defective and imperfect, obvious, nor does it appear that any both in its retrospective operations, of the precautions hitherto in force and in its regulations for the time in respect of license or of banns to come, It takes no notice of has been superseded or repealed by marriages by banns before July 22, the present Act, of which the eighth 1822, which therefore remain “open and sixteenth section, together with to lawful objection in the same manthe former laws, may be thought to ner, and on the same grounds, and comprize almost every means for by the same persons as before.” It the prevention of clandestinity. The neither confirms the marriages soonly fear is, that the machinery will lemnized by banns published in unbe obstructed by its own complica- authorized churches or chapels, nor tion. Whether the means of ob- lays down any rule concerning such taining proof of the majority of publication for the future. The depersons alleged to be of age, may fect was pointed out by the Bishop not be facilitated by taking the evi- of Chester, and must be deeply felt dence of third parties upon bond, in that populous diocese: the obor by a more direct requisition of vious remedy is to give authority to the certificate of baptism; whether the Bishops to license chapels for the method of ascertaining the con- the publication of banns, and the sent of parents, may not be modi- solemnization of marriage, of perfied so as to be rendered in all cases sons resident within a district to be practicable, and to throw not even defined. The Act specifies no time an imaginary difficulty in the way for the residence of the parties in of an unobjectionable marriage; the parish, before the publication of whether the retention of all the banns : they are required indeed to oaths is necessary; whether the certify their residence, but the resi. personal appearance of the woman dence may have been for an hour, before the surrogate, in considera- a day, or a year. In cases of lition of the delicacy of her situation, cense, the previous residence of the might not be dispensed with, espe- parties for the space of four weeks cially if her parent or guardian is necessary: and in this respect, should be present and consenting; the laws of license and of bands and whether the security of the should be assimilated. The misproperty to the issue in cases of chiefs and inconveniences arising fraud, as in the case of clandestine from this publication of bangs in marriages of wards of chancery, parishes in which the parties do not might not be preferable to a for- reside, and the tendency of this
evasion to defeat the great purpose be suspended at the discretion of of the Act, the prevention of clans the clergyman, on his certifying his destinity, were so strongly felt by knowledge of the parties, and his Dr. Phillimore, that he proposed to conviction that no fraud is intended. make it a ground of nullity at the In small parishes in the country, the instance of the parents or guardians clergyman knows his parishioners, during minority, if the parties should and their circumstances, and he not have been resident for fourteen needs no affidavit concerning them. days, immediately preceding the It has been reported, probably with publication, and in his Speech, he some exaggeration, that in the town insists on the corrupt fashion which of Hertford, but two sets of banns prevails, especially in the north, of were published for a certain period; being married, and having the banns and in both cases the man was in published in a populous town, to the bridewell, and the woman in the which the parties do not belong. workhouse. In this case, and in It has occurred within our many other cases, the oath is alto. knowledge, that the wife of a trans. gether needless and gratuitous ; nor ported convict, who could not pro- is it of any conceivable importance, cure the publication of banns in her that the parties shall swear, that proper parish, found no difficulty they are under, or that they are not in a neighbouring town, where she under age, since majority claims no was also married, without any evi- exemption, and no further obligadence or suspicion that she was not tion is imposed upon the minor. On a widow: and very recently, a these points, it is but too truly obyoung man required that his banns served by Mr. Poynter : should be published as belonging “ It has ever been held inconsistent to the same parish with bis intended with sound policy, and even with morality, bride, because he was actually in to encumber the approaches to matrimony the parish on the several Sundays with unnecessary forms; besides which, on which they were published.
the multiplication of affidavits required by The more exact description of the amendments introduced by the new
Act, is little calculated to revive that rethe parties and of their residence, verential feeling for the sacred obligation and the more public and permanent of an oath, which its hacknied repetition, exhibition of the names, during the in compliance with the incessant demands time of publication, do not appear of the statute book, has nearly extinto be liable to any valid objection, guished.” Supplement, p. 19. to any which experience and custom There are various minor objec. will not overcome. . The requisition tions to the Bill; its clerical error, of the oath is a matter of far more requiring that a house shall be doubtful expedience, and will give affixed to a church-door; its redunrise to many questions; whether dancies and surplusage, especially the oath should not be adminstered in the fourth section, which is comalways by the clergyman, and as prehended in the third and the fifth; was certainly the intention of the the omission of all schedules, wheLegislature, without a stamp; whe- ther for licence or banns, for town ther it might not be sufficient to or country; and its circuitous diadminister it after the publication rections concerning the preservation of banns, and before the solemniza- of affidavits, which might at once tion of marriage ; whether the oath be deposited in the iron chest with might not, in many instances, be the registers. The Act might also dispensed with altogether; and have restored the true time of the whether in parishes of a limited publication of banns, after the Nipopulation, and in the case of par. cene Creed, when the publication ties both belonging to the same pawould not interrupt the public serrish, the administration might not vice, and the clergyman would fol