expediency of passing the bill in its altered state, as an alternative preferable to risking the loss of the measure; distinctly stating, however, that opportunities might be taken hereafter for amending the exceptionable clauses which had been introduced into the act in its progress through the Lower House of Parliament *.

By the operation of the act thus passed, marriages became null and void in two cases; first, when solemnized, under the age of twenty-one years, without the previous consent of the parent or guardian; secondly, when solemnized in a parish-church or public chapel where banns had not been usually published, that is, before the 25th of March 1754 +. By a singular anomaly, the penalty was almost never allowed to attach in the latter case; whereas, in the former, no obstacle was ever interposed to the full and unrestricted operation of the law. By this enactment of nullity, marriages took place which had never any legal commencement, while no recognition, no acknowledgment, no cohabitation of the parties after they had attained their majority, no lapse of time, in short, could give effect to marriages thus contracted; tractu temporis non convalescunt. Hence it happened in practice,

that a man who obtained a licence upon a false statement of his own age, or of that of the person with whom he was about to intermarry, might, at any subsequent period of his life, avail himself of his own erroneous statement, and, in defiance of the oath he made when he obtained the licence, prove the minority of either of the parties at the time of the marriage, and the absence of the previous consent required by the statute in which case, he became entitled, as a matter of course, to a sentence declaring this marriage to have been null and void ab initio. Applications for a sentence of nullity were in conse quence frequently made to the ecclesiastical court after a cohabitation of seven, eight, nine, or ten, and in some instances twenty years. Penalties like these operated against the innocent, while the guilty were safe; an encouragement was held out to the worst species of fraud and perjury, for it was on the issue of these ill-fated marriages that the severest punishment fell; the children, the grand-children, the remote posterity, the very nati natorum, might at any time be amerced of their estates and possessions, on proof made of the want of lawful consent. Under the operation of such a law, leaving its immoral tendency ‡ entirely out of the

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question, no man was secure in the possession of entailed property, or in the enjoyment of any dignity which had descended to him in virtue of any marriage contracted since the 25th of March 1754, for he could have no security that that marriage was not entered into in violation of the act in question.

It was with a view to remedy these dreadful defects, which thus went to unsettle the tenure of property, and to destroy the honour and happiness of families, that the present bill was introduced into Parliament. The operation of the bill was to be twofold, prospective and retrospective. With regard to the prospective part, it repealed entirely the nullity clause in the marriage act; and instead of a marriage in which the consent required by the statute had not been given being null and void to all intents and purposes in law what soever, it was enacted that the power of annulling it should be by a suit to be instituted in the ecclesiastical court of competent jurisdiction for that purpose. In order to obviate a possible inconvenience which might arise from parties clandestinely married without the consent of their parents or guardians withdrawing beyond sea, or without the jurisdiction of the English ecclesiastical courts, and remaining abroad till they might attain their majority, and being enabled, by such conduct, to baffle the intent, and elude the operation of the law, there was introduced a clause, borrowed in substance from an act

which passed in the Irish Legislature in 1749, authorising parents and guardians, on the occurrence of such a case

as that now stated, to file a libel in the ecclesiastical court of the diocese within which the minor was resident at the time of the marriage, and empowering the ecclesiastical court to proceed to hear and determine the cause in the same manner as if the party proceeded against was resident within the diocese, if it should be shown by affidavit that such party had been served with the process of the court, and consequently had received due notice of the pending proceedings.

With regard, on the other hand, to the retrospective part of the bill, it was enacted, that in all cases of marriages solemnized anterior to the passing of the act, without the necessary previous consent, where both the parties had attained the age of twenty-one, and continued to live together as husband and wife, such marriages should be hereafter deemed good and valid, unless either of the parties to such marriage should institute a suit in a cause of nullity within six months after the passing of the act. This retrospective clause, was founded upon and justified by the most conclusive precedents. In 1781, Lord Beauchamp (now Marquis of Hertford) brought in a bill (21. Geo. II. c. 53. already alluded to) to legalize all marriages solemnized in churches and chapels in which banns had not been published antecedently to the passing of the Marriage Act; and in 1805 Bishop Horsley brought in another bill to the same effect with that formerly introduced by Lord Beauchamp. Both received the unanimous sanction of the Legislature; and when passed into laws

had the effect of legalizing many marriages, which under the enactments of the Marriage Act were absolutely null and void. These remedial laws stood,

precisely upon the same ground with the retrospective part of the present bill. In both instances marriages existed de facto, but not de jure; and, therefore, in both instances, were absolutely null and void; consequently nothing short of a retrospective law could give effect and validity to them. If such a law was resorted to in the one case, there could be no possible objection to it in the other.

The other branch of the bill related to marriages by banns, and contained a number of regulations for preventing the frauds which had been practised in this respect; but upon these it is unnecessary to enter, as in its progress through the Upper House, no part of the original bill, with the exception of the retrospective clause, was retained, all the other provisions being, after repeated discussion, rejected; while, in their room, the principle was adopted that there should be no such thing as nullity of marriage, and a multitude of absurd and unintelligible forms prescribed, the omission of which, though it would not invalidate the marriage, was nevertheless to be visited with severe penalties. It is indeed difficult to account for the violent opposition which this just and necessary measure experienced in the Upper House, in every stage of its progress. The Lord Chancellor, Lord Stowell, and Lord Redesdale, were hostile to the whole measure, upon which they succeeded in engrafting a number of clauses and provisions calculated to produce inextricable perplexity and confusion, and to destroy whatever was likely to prove beneficial in the original bill.

This keen and persevering opposition was remarkably evinced on the third reading of the bill in the House of Peers. Lord Stowell moved, that

the first clause, which established the principle that marriages once solemnized are indissoluble, should be omitted. He contended, that civil society had a right to prescribe what was a valid marriage. He then took a general view of the measure, and stated that the cases which had been urged as its groundwork, were not so hard as they had been represented. In most of them cohabitation had ceased for many years; and the annulling of the marriage was sought either as a relief from the debts and persecutions to which one of the parties had been subjected by the licentiousness of the other, or as a cheaper process than a divorce bill. He complained that all the good produced by the Marriage Act as it now stood, and the misery from which it had relieved fathers and families, were kept out of view, whilst a few cases of hardship were blazoned forth with detestation and horror. The present measure said to minors and adventurers," We put difficulties in your way, but once get to church, and you may enjoy the fruits of your fraud and imposture." A bill founded on such a principle afforded a premium to unlimited marriages, which would more than counterbalance the securities which it provided for the vention of improper marriages.

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Lord Ellenborough, after so many days had elapsed since the nullity clause had been rejected by the unanimous sense of the House, was not prepared for this funeral oration in its praise. It had been rejected in consequence of the opinion expressed by the right reverend prelates, that marriages once solemnized ought never to be broken, and he had not heard one word since in favour of its revival. The learned Lord spoke of the present bill as giving premiums to undue marriages; on the contrary, the existing act gave those premiums. It induced men who were desirous of obtaining a woman's person,

to marry her, knowing that the marriage could be broken whenever they pleased. The present bill not only prevented such immorality, but deprived adventurers of the prize which they had attempted to gain; for it took away all the property from them, and sent them to pass the rest of their lives in Botany Bay. The learned Lord seemed to think that marriage was ordained, not for the satisfaction of the persons married, but for that of fathers and mothers.

Lord Stowell's motion being negatived, the Lord Chancellor moved an amendment to the retrospective clause, providing that marriages obtained by licence, when both parties knew that the putative father was living, and had not given his consent, should not be valid.

Lord Ellenborough thought that the question of the knowledge of both parties, independently of any other objection, could scarcely ever be proved in a court of justice.

The Earl of Liverpool was not friendly to the retrospective clause as it stood. He wished an exception had been made, saving all suits pending. He could not, however, approve a clause such as that proposed by his learned friend, which depended upon proof of a nature extremely difficult to be obtained.

Their Lordships divided; Contents, 18; Not-contents, 68: Majority against the amendment, 50.

The Lord Chancellor then proposed a clause for rendering valid, deeds, assignments, and settlements, made by persons having claims on property affected by this bill. He should first propose it without the words, " upon good and valuable consideration," and if rejected in that shape, would propose it with those words.

The Earl of Liverpool thought this qualification necessary to the retrospec

tive clause.

The Marquis of Lansdown contend

ed that the clause proposed by the learned Lord would produce a monstrous state of things. It would declare childred legitimate, but disinherit them of their property; it would people that House with titled beggars, enjoying the honours of their ancestors, but stripped of the means of supporting them. If their Lordships adopted this proviso, they would leave existing possession subject to endless litigation and fraud.

Lord Ellenborough hoped, after their Lordships had agreed to the retrospective clause, that any attempt to render it nugatory by provisos like the present would prove unavailing. The course proposed was one, which, as guardians of the public morals, their Lordships could not adopt; for it would introduce a system of left-handed marriages in the true German style-marriages which gave legitimacy, but not property.

Lord Redesdale contended, that to destroy reversionary rights retrospectively, would be downright robbery.

The House then divided: Contents, 27; Not-Contents, 51; Majority against the clause, 24. A second division took place on the same clause, but with the addition of the words, "for a good and valuable consideration." Contents, 31; Not-Contents, 48; Majority against the clause, 17.

The Lord Chancellor then said, "My Lords, Ten days ago, I believe, this House possessed the good opinion of the public, as the mediator between them and the laws of the country: If this bill pass to-night, I hope in God that this House may still have that good opinion ten days hence. But, to say the best of this measure, I consider it neither more nor less than a legal robbery; so help me God. I have but a short time to remain with you, but I trust it will be hereafter known that I used every means in my power to prevent its passing into a law."