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should have no choice, than that he should have one, not knowing the feelings of the parties, and not perhaps being capable of forming a correct notion of what his duty might call for. It was a responsibility which, in his own case, he should regret to be under. He was satisfied that what was the old law of this country, what was still the law in most foreign countries, and what still prevailed in some parts of this island, should be universally restored. In Scotland, where the feelings and prejudices of aristocracy were, it possible, stronger than in England, the marriage contract was merely a civil one; and no evil consequences had been found to result from the facilities with which it was entered into. Looking at the clause in all its bearings, and considering it as at once nugatory, and leading to hardships, he expressed his decided opposition to it. There was a subsequent clause, of which he entirely approved. It was that which would prevent men who married from merely mercenary motives, from benefitting by the fortune of their wives. This was a provision against that class of persons called fortune-hunters, which was perfectly just and highly desirable.

Lord Powerscourt opposed the clause, as being at variance with the laws of God,

that there shouldbe a voidability was most objectionab. It might perhaps be said that th old law contained the latter principl but, would any man say, therefore, th it ought not in this respect to be alted? Even if it were advisable that th marriages of minors should be dissoluk, it should be effected by making them tl and void-not voidable. Next to hiobjection against the principle was thisthat the clause would not be sufficient effect the object at which it aimed. e persons who introduced it were atated by a desire to uphold the pared authority; but, if allowed to stand pt of the bill, it would not have any suchperation. Formerly, a chaise and pa could transport the parties who sougho effect a clandestine marriage to Gretgreen: now, amongst the other advantas which had sprung from the discoves in the power of steam, was that one boat, by which, at a much less expse, parties could be conveyed to Calai where their marriage could be effected :h the utmost facility. The difficulties we so numerous and so great, that he ded the House ever to meet the question' foreign marriages so as to prevent then Putting aside, however, those easy eans of evading the law, the marriage bans still remained. The Archbishop of Canterbury said, it By far the greatenrt of the clandestine could not be considered surprising if he marriages he had Ird of were solemnized expressed some uneasiness at the arguby bans. What, en, was the provision ments which had been urged against this worth, if Scotlan the continent, and clause. It had been alleged, that there bans, were still lefee from its operation? was something unchristian in its composiLet the House loat the consequences tion. That charge was, in his opinion, of the proposed ause. The learned unfounded. The clause had been adopted lord, had said, verruly, that there were by the committee, after due consideration, cases of female axell as of male seduc- because it appeared to be on the whole, tion; but it becamheir lordships to con- the least objectionable that had been prosider most that wh was most usual, and posed. He, however, was not so wedded he would venture say, that in nineteen to it as to press it in opposition to the cases out of twen the female was the wishes of the House. A great deal had seduced party. e woman, who after been said about the authority of the pa the marriage had in completed, should rent. He however, begged their lordships be turned adrift, haothing before her but to look at the protection which was due disgrace, misery, a ruin. The man, if by to the parent. It was undoubtedly true the persuasion of friends, or from any that in the marriage ceremony certain other cause, he shld be induced to give words were introduced from Scripture, up her whom he I engaged to protect, viz." Whomsoever God hath joined let would, during thwhole of his life, be no man put asunder." But then this subject to feelings no enviable descrip- question arose out of the bill now before tion. However might deprecate im- their lordships" What is this junction provident marria, he was convinced which hath the sanction of Scripture? Is there was no meg the matter by dis- it the mere ordinance of marriage, withsolving them I the majority of cases out any religious ceremony whatever to it would be nor ender and humane to distinguish that state from concubinage ?" provide, the parent or guardianIt was no such thing. Marriage, they

all knew, was formerly a solemn sacra- tract of marriage certain between the parment. And why was it not now consi-ties and all the world besides: for, not dered a sacrament? Because it had none of the properties of a sacrament-none of the outward and visible signs of a sacrament-since, by the Scripture, it was left to the regulation of man. Let it be recollected, that mankind were made by Almighty God for society, and that the forms of society related to man. He, as a social being, was enjoined to marry; but the forms of marriage were left to the regulation of man. Where government framed laws relating to marriage, provided those laws were consistent with the revealed will of God, the marriages solemnized under such laws were good and binding. But, as the form of the marriage ceremony was left to man, their lordships assuredly had a right, where a marriage was procured by fraud or falsehood, not to declare it at once a nullity, but to provide means by which it might be rendered voidable and of no effect.

only were the parties entering into that contract interested, but all persons in the same society were interested, in knowing whether A. and B, were actually married. They ought to consider that point: and he could see nothing in the law of God which prohibited them from legislating on that which was essential to the good of society or to the happiness of those of whom it was constituted. Now, was it beneficial to society, that, when a marriage was contracted it should be in the power of a third person to interpose, and to declare that the contract shall no longer continue. It appeared to him, if they viewed the question in that light, and considered all the circumstances which might affect the persons with whom the contracting parties had to deal, that they would act most impolitically if they recognized such a power. A law of that nature would be attended with no convenience. It would produce no benefit comparable to the mischief which it would create. If they declared that marriages should be voidable under certain circumstances, and during a certain period, they would give rise to evils much more extensive than any benefit which could be hoped for from such a provision. For his part, he was of opinion, that making marriages of an improper nature null and void, as was done under the old law, would be the course to be preferred.

Lord Redesdale thought, it was absolutely necessary that there should be some declaration as to what might and might not be called a marriage. Now, as there was no such regulation in the scriptural authority which had been referred to, it was clear that the regulation must be made by man. In looking at what was fit to be done with respect to the contract of marriage, it was proper to consider what would be most beneficial to man in a state of society. They regulated the property of men-they disabled per- Lord Ellenborough said, that the clause sons under twenty-one years of age from had been carried in the committee by a disposing of that property-and he majority of 7 to 4; but at the time several thought they might with equal justice de- members of the committee were absent, clare, that the marriage of minors should who held a different opinion from the mabe null and void. They did not, how-jority. If all the members had been preever, conceive that to be expedient, and sent, there would not have been a majorthey had therefore placed the marriage ity of more than one. After having ceremony under certain regulations. Then heard from the noble earl opposite, in the came the question, whether the marriage course of his eloquent speech, that it was of persons who broke those regulations impossible for this clause to secure that should be considered void? It appeared legal protection for parents which the to him to be a question of expedience. right reverend prelate had stated to be Was it expedient for the legislature to his chief object, he was astonished that say, after persons were joined together in he should persist in calling on their lordthis manner, that the marriage should be ships to adopt it. His astonishment was at once void? It seemed to be the ge- the greater when he recollected that last neral impression, that the marriage should year the right rev. prelate had stated, not be thus declared void, but that under that a clause of this nature was repugnant certain circumstances, and after certain to morality and religion. proceedings, it should be rendered void. He thought that the object of civil society, in forming regulations on the subject of marriage, should be, to render the conVOL. IX.

The Archbishop of Canterbury said, he did not mean to persist obstinately in pressing the clause." He only supported it as the least objectionable mode.

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Lord Ellenborough said, that while they left the law as to marriages in Scotland and on the continent in its present state, any provision, either for the nullity or the voidability of marriages, would be nugatory. Their lordships knew perfectly well, that it was more easy to effect a marriage by illegal bans, than by license. But, while they left open to those, who might be inclined to make the experiment, the easiest way of effecting improper marriages, they, by this clause, shut a door through which no human being in his senses would think of passing. This was the most absurd principle of legislation he had ever heard of. He wished to know from the right rev. bench, whether they did, or did not, believe that the moment a marriage was solemnized, a religious contract was entered into? If it was a religious contract, had that House the power of dissolving it? Could they give a power to a third person-a power which might be exercised from motives of avarice or caprice-to put an end to that contract, after it had existed for a certain period? They ought to be aware of inculcating the opinion, that marriage was not a religious contract. If that principle were once removed, there would be little protection for the purity of marriage, and that purity appeared to him to be the best foundation of private happiness and of public liberty. He hoped their lordships would not grant the support to this clause which was called for by the right rev. prelate, who would himself, perhaps, on a few hours more reflection, regret that he had pressed it on the House.

The Bishop of London contended, that this clause was perfectly consistent with the principles of morality. He had hoped that charges of this nature would have been abandoned, and that the argument would have been allowed to rest on the expediency of such an enactment. It was asserted, that the clause was contrary to the principles of morality and to the revealed word of God-that it was an infraction of our blessed Saviour's injunction, "Those whom God has joined together, let no man put asunder." This, however, was a false view of the case. It was not a question, whether any human authority should be so rash and impious as to disturb a contract which had received the divine sanction; but what constituted that union, and whether it was religious or civil? He conceived that union to be at once religious and civil,

wherever it was formed; and intended to distinguish between lawful marriage and illicit concubinage. His notion of the marriage ceremony was, that it was founded on the agreement of persons capable of entering into that union on the terms prescribed by the law of the country. Now, whether those terms were few or many, if they were truly complied with, he then apprehended that the union took place which was formed under the divine authority. Let the marriage ceremony be ever so simple, let it be merely a religious ceremony, he held, that a marriage under it was as valid as it could be made by any addition whatever. But, if other terms were enacted by law, the mere religious ceremony was not sufficient. The law said, the marriage was not complete, except it was solemnized in a church; and not even then, except by license or publication of bans. On these grounds, he thought it must be acknowledged, that the law was not completed by the performance of the mere ceremony, so long as any thing else was required. Another point was, the incapacity of persons to marry until a certain age. In all civilized countries, minors laboured under a certain degree of incapacity. They were not suffered to marry without the concurrence of their guardians by nature. They did not allow the minor in this country to contract a debt without the consent of his parent or guardian; and surely, in a case which involved his happiness, his virtue, and his fortune, it would be inconsistent to give him that power which was refused in matters of much less importance. On these grounds he would support the clause.

Lord Sidmouth said, he felt himself bound in justice and honour, as one of the committee, to declare that he entirely concurred in the arguments advanced in support of the clause. He admitted that the portion of scripture which was introduced into the marriage service imposed a religious obligation on the parties. But he thought it would be impious to declare those marriages to be the act of God, which had been effected by fraud and perjury, and brought about by means in direct contradiction of the laws of God and man.

Lord Ellenborough said, that as their lordships were about to go to a division, he begged of them to recollect, that no attempt had been made to shew that the clause in question was not contrary to the

spirit of Christianity: that no attempt had been made to shew that it was not a most inexpedient clause; that no attempt had been made to shew that it would not be totally nugatory whenever a wish existed to evade it; and that no attempt had been made to shew, that whenever it was called into action, it would not be by a person who was originally anxious to have the semblance of a marriage and not a legal one.

Lord Stowell said, that in all cases of this kind, they ought to consider how they could best legislate for the protection of the younger branches of the community. It was of the greatest importance, where marriages were about to be formed, that the utmost caution should be used. Formerly it was assumed, in all cases, that the consent of parents or guardians had been granted to those about to enter into the state of matrimony, although, in point of fact, little more was deemed necessary than the consent of the two parties them selves. In this state the matter continued for a long series of years, and that rule survived the Reformation. But soon after, the attention of the reformers was called to the propriety of strengthening the parental authority. The doctrine was then expressly promulgated, that where marriages were contracted without the consent of parents, they should be totally null and void, as was laid down in the "Reformatio Legum." Thus the law remained till the time of lord Hardwicke, when the disturbances in society, from the want of an efficient marriage law, induced him to turn his serious attention to the subject. His act was superseded by that which had been passed last year, and it was found necessary, in consequence of the inconveniences experienced under that measure, to reconsider the subject. The committee, in turning their attention to it, found there were only four possible ways in which the authority of the parent could be secured. The first was that of nullity. He was charged with having, on this occasion, supported voidability in opposition to his former declaration on the subject. Now, he would say, that nullity in point of principle, appeared to him, up to the present moment, to be perfectly correct. But the general opinion was, that nullity was a monster against which every rational man ought to take alarm; and therefore it was abandoned. Another mode had been suggested by a noble and learned person that of a remedy by a preventive measure. If he thought a preventive

measure could succeed, he should con sider that to be a very advisable course; but, on principle, he knew that it could not succeed. The experiment had been tried, and it had totally failed. The number of marriages had so decreased under that preventive system, that the demoralization of the country was likely to ensue. This was felt by the legislature; and, the very first day of the present session, a bill was started on the subject in the two Houses of Parliament, which threatened to jostle each other in the race of competition. The question was then referred to a committee of their lordships, for the purpose of deciding on what should be recommended to the House for the purpose of being enacted. The committee, as he had before said, only saw four ways in which parental authority could be secured;-namely, nullity, voidability, a preventive measure, or the doing of that which was extremely objectionable, throwing the reins at once on the neck of youth, at a period of life when passion always outran prudence. Nullity had been frequently, but vainly, acted upon, and preventive measures had proved in their operation very unsuccessful. The latter and only remaining principle was medium between the entire dereliction of parental authority on the one side, and entire voidability on the other. Though the committee were by no means insensible to the objections which existed against the principle of limited voidability, they thought it was one which ought to be submitted to the consideration of parliament, in preference to that of total dereliction of parental authority; and it was on this ground that they had introduced it into the bill which they had now brought under the notice of their lordships. With respect to the operation which this sort of security had been said to have in a neighbouring kingdom, he understood from persons of high legal authority and experience in that country, that it had not in truth there produced those tragical and destructive effects, which so much alarmed one of the noble lords who had that night spoken on the subject. Marriage was there protected with respect to voidability, in the same way, and for the same purposes, that it was in England. In the other kingdom, indeed, the law took a distinction, as between persons of different rank and fortunes; but this was a principle which the committee had not thought it desirable to adopt in the amendment

which they now submitted, it being considered much more expedient that with us the law of marriage should be uniform and universal, than that there should be one law for the rich, and another for the poor. The committee had therefore brought forward this clause, involving, as it did, a principle which they were well aware might be open to much reasonable objection, but which they conceived to be the best, seeing that nullity was sure of rejection, and that preventive measures were, generally speaking, inapplicable. It had been said, that the object of this clause might be so worded as to render the clause nugatory; and that, therefore, their lordships ought not to adopt it. But the same observation might, on some ground or other, be applied to any other clause that it was possible to suggest. It could not be otherwise in the nature of things; and if this common liability were to be taken as ground of valid objection, it would be ridiculous for their lordships to attempt to legislate at all in the matter. They might spare themselves the labour of devising such remedies, if every remedy proposed was to be defeated on the principle, that it was possible contrivances might be framed which should evade its operation. It had been argued that this clause would operate principally for the benefit of the male, and would bear hard upon the female portion of the community; and their lordships had been told, that the cases, against the recurrence of which they were called upon to provide, were much more numerous on the female side than on the male. Now, he confessed that his own professional experience had by no means led him to such a conclusion. As far as that experience went, it had rather been his fate to see the misery of families occasioned by sons, the hopes of those families, who had ruined themselves and had blasted those hopes, by the most disgraceful connexions. Their own happiness, not less than that of their families, had been destroyed for life. He contended, therefore, that disgraceful marriages much oftener happened among our young male, than among our female population. And this was very natural. The education of young women was much more correct and guarded than that of young men. The former were, for a considerable portion of their lives, under the vigilant superintendence of their parents or families; and, added to these restraints, the natural delicacy of their sex scarcely

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permitted them to be exposed to the same sort of dangers as young men were at the same period of existence. Young men were sooner removed from such inspection. They were sent to school earlier in life, and from thence were transferred to public schools, to colleges, and afterwards to great cities. There they could not so entirely be under the eye of their parents, but, left to themselves, pursued their own course and followed their own counsels. They were neither so much under parental superintendence, nor had so much the benefit of wise counsels as their sisters had. It was natural, therefore, that, yielding to their own inclinations, they should more commonly form early attachments, and that if they entertained such attachments they should more frequently gratify them by improvident marriages. The clause had been denominated an experiment, and consequences the most fatal had been anticipated from its adoption. He thought it was at least an experiment which ought to be tried. In framing the clause, the committee had proceeded with the utmost deliberation and with the best intentions, and sorry indeed he should be if their good intentions should be so singularly unfortunate as to lead to results so disastrous and overwhelming as those which had been deprecated by the right reverend prelate and the noble lord.

Their lordships then divided upon the clause: Contents 22, Not-Contents 28. Majority against the clause 6.

Tuesday, June 3.

CONDUCT OF THE LORD ADVOCATE OF SCOTLAND IN THE CASE OF W. M. BORTHWICK.] Mr. Abercromby said, he was extremely glad that the period had at length arrived when he should be able, not only to redeem the pledge which he had given to that House and to the people. of Scotland, but also to comply with the laudable desire expressed by the learned lord opposite, to have a question discussed in which he thought the conduct and character of that learned lord were deeply implicated. After the manner in which he had been goaded to the performance of the task which he had undertaken

after the manner in which he had been calumniated, and, with a perfect conviction of the truth of what he was stating, he would say, officially calumniated in

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