« ForrigeFortsett »
No, no, thy good, Sion, alone must orown
The head of all my hope-nurst joys:
Sink, Sion, down, and never rise ;
Dost laugh? proud Babel's daughter! do, laugh on,
Till thy ruin teach thee tears,
Of woes too late do rouze thy fears:
WEAK and irresolute is man:
The purpose of to-day,
To-morrow rends away.
Vice seems already slain ;
And it revives again.
Finds out his weaker part;
Through all his art we view;
His conscience owns it true.
And dangers little known,
Man vainly trusts his own.
To reach the distant coast;
Not seldom, clad in radiant vest,
The smoothest seas will sometimes prove
REVIEW OF NEW PUBLICATIONS.
Substance of the Speech of Joseph Forms. By Thomas Poynter, ,
Phillimore, LL.D. in the House Proctor in Doctors' Commons. of Commons, on Wednesday,
Clarke. 1822. March 27, 1822, on moving for The merits of the Marriage Act of Leave to bring in a Bill to amend 1754 were that it made the consent the Marriage Act. 80 pp. Mur- of parents necessary to the marriage
of minors; that it abolisbed the A concise View of the Doctrine and matrimonial obligation of contracts
Practice of the Ecclesiastical per verba de presenti, and per verba Courts in Doctors' Commons, on de futuro ; and that it secured a various Points relative to the Sub- permanent evidence by prescribing ject of Marriage and Divorce. the registration of marriages. These By Thomas Poynter, Proctor
were the redeeming virtues of a in Doctors' Commons. 162 pp. statute, which contained in itself Clarke. 1822.
some very exceptionable provisions, Supplement to a concise View of the upon which a subtle interpretation
Doctrine and Practice of the of the law accumulated additional Ecclesiastical Courts in Doctors' wrongs, which could not have been Commons, on various Points re- contemplated by the authors and lative to the Subject of Marriage promoters of the measure, and to and Divorce, occasioned by the which the assent of the courts was Repeal of the 11th Section of not obtained without reluctance the 26 Geo. II. c. 33. by the and hesitation, without repeated 3 Geo. IV. c. 75. intituled, « An and elaborate argumentation, The Act to amend certain Provisions great offence of the bill was a deof the 26 Geo. II. for the better claration on the mere fiat of its Prevention of Clandestine Mar- own power, of the invalidity and riages ;" with an Appendix of nullity to all intents and purposes
whatsoever of the marriages of power of States to deny civil prominors by licence obtained without tection to the marriages of ininors legal consent, and of the marriages made without consent of their of any other persons by banns pub. parents and guardians,” expressed lished in Churches not recognized his apprehensions rather than his by the Act: and it was afterwards conviction of the force of the law : drawn by an inference from the
“ I am afraid," he says,
" that the Act, that all marriages of illegiti- general construction upon this Act will mate minors, under whatever cir- be, that if a young gentleman should cumstances, without consent of a
marry a woman against his father's or guardian appointed by the Court guardian's consent, he may marry another of Chancery were also invalid. It with as little scruple as if he had only gone is passing strange that a statute so
to bed to a common prostitute. But this
will be a dangerous mistake." arbitrary and unjust, so contrary to the whole tenour and spirit of Bri He did not consider that “ the tish equity, and so calculated to law could reach the Vinculum Mabring into coutempt the offices and trimonii as it lies in conscience, but ordinances of religion, should have only regulate its civil effects :" and continued for a period of seventy he trusted to the conscience of payears without amendment or repeal. rents, that they would consent to
The law was arhitrary. In en. ratify the informal by a legal maracting the nullity of marriage, it riage. The Act assumed to the laid çown a rule which had not legislature a power which the pa. before existed ; which received 110 rent never possessed, and which collateral support from other acts the State never needed of nullifying of the legislature, and which has a marriage, only technically and for perished in an instant with the waot of form invalid, not voidable repeal of the offensive statute. It in itself, not contracted otherwise might have more than satistied tlie than God's word doth allow: and demands of the secular law to de- this enactment was in contravention clare the marriage void and null in of the divine law and institution of civil estimation and effect, so that marriage; that the man sliall cleave the wife should not be entitled to unto his wife, and that those whom maintenance from her husband, nor God hath joined together shall no the children to the inheritance of man put asunder. their parents : but it exceeded the The law was as unjust as it was limits of any human legislation to arbitrary. The penalties of the weaken the bond of marriage on alleged offence did not fall uponi the conscience and to enable the the offender. Although the licence parties to enter into a second mar. under which the marriage was soriage, as if they had been previously lemnized was procured by deliberate living in a state of concubinage. perjury, the perjury was committed It is possible that the full effect of with impunity. The consequences the law was not anticipated at the of the nullity fell with most weight time of its enactment. Its appli- upon the children whom it deprived cation to illegitimate minors was of their inheritance, reduced to not determined in the Ecclesiastical state of illegitimacy, and rendered Courts before 1799: and it was not incapable during their minority of till ten years after this that Lord contracting a lawful marriage, with. Ellenborough, after some hesitation, out the consent of a guardian áp: as it bas always been supposed, gave pointed by the Court of Chancery, a decision to the same effect
in the which they were not prepared to Court of King's Bench. Doctor solicit. The woman also not skilled Henry Stebbing who in 1755, pub- in the refinements of the law, was lished “ A Dissertation on the in some instances seduced by the
REMEMBRANCER, No. 48.
promise and appearance of a lawful to transmit the taint of their illegimarriage, into a state of disguised timacy from generation to genera. concubinage, which her soul would tion: have abhorred; and after a cohabi.
“ It is to be observed, in respect to tation of many years and the wreck of all her fortunes was ejected as a
marriages, which are ipso facto void, (and
this observation more particularly applies mistress with a family of bastards, itself to marriages had without due publiwhom she had educated with care, cation of banns, or if by licence to the and been accustomed to consider marriages of minors had without lawful the heirs of their parent's fortunes.
consent,) that it is not the good faith or the “ It becomes of greater moment, when acquiescence, or the long cohabitation of
the parties, or that there is issue of such a the lawful character of that state (marriage) cohabitation, or that the parties are desi. is ascertained, less from the obvious inten
rous of adhering to their contract, which tion of persons than from the forms by which the celebration of marriage is pre- defect which no time can cure, and which
can amend the origival defect : for it is a ceded and attended : and it is of infinitely is open to detection and proof even after higher importance when certain deviations
the legality of a marriage might have refrom those forms are inevitably followed
miained onquestioned for many generations. by the serious consequences of pullity- The incalculable evil of which is the more consequences which in the face of the readily imagined by putting the case of a purest motives brand the connexion of person, who unconscious of the illegality the presumed husband and wife with the stigma of a meretricious union,' and visit riage of his minor child. This child has
of his own marriage, consents to the martheir unoffending issue with all the disqua- issue, and consent is repeated in the same lifications of illegitimacy, divesting the natural heir of his estate, and diverting tion, each parent fully persuaded of the
manner in the next and following generathe stream of hereditary honour into a
lawful right of consent inherent in virtue distant channel, or perhaps abruptly ter- of a supposed lawful marriage. But if minating the long line of an illustrious
the nollity of the first marriage is proved, ancestry at a single blow.” Poynter, all the subsequent narriages had in virtue Preface, p. 1.
of consent of the presumed lawful parent There were many cases in which or testamentary guardian become void no fraud was intended upon any
likewise, and a general bastardy of the
descendants is the unavoidable consepart, in which a valid marriage had
quence. been contemplated by all parties, “ Another circumstance may be added but in which from the neglect of to the foregoing remarks, namely, that a some form, which no prudence could sentence declaratory of the nullity of a discover, all the penalties of an
marriage ab initio void, may be obtained irregular marriage were incurred;
at all times by third persons having an in
terest; not, it is true, as in an original the parties, not only without their
matrimonial suit after the death of either consent, but in defiance of their of the parties, but rather in the shape of best and strongest inclinations, dis an incidental question (necessary to de covered that they were not, and termine the validity of another marriage that they never had been man and or a testamentary point, or in order to aswife, or capable of transmitting an certain the party lawfully entitled to a inheritance to their children. In
grant of administration,) raised in bar to other cases the children after the
the claim of any person setting up a point,
whether immediate or distant, under the decease of their parents detected marriage in question.” Poynter, p. 50. some fault and informality, which by pullifying the marriage of A mother supposes herself to be their parents rendered their issue the widow of a shipwrecked mariner illegitimate; and not only illegitimate and unmarried, and a guardian in themselves, and therefore disin- presuming on his lawful appointherited, but in a condition if they ment under the will of a testator, should marry during their minority give consent to the marriage of a without the consent of a guardian child or a ward: but it is discovered appointed by the Courtof Chancery, after a lapse of many years that the
father of the child is alive, and that the victims of an interpretation put upon the appointment of the guardian the statute, which men of ordinary capawas defective in some form of law: city and ordinary knowledge applying
their minds to the consideration of the let every parent decide whether it
subject, could not have foreseen or antici. is just, that the marriage shall be pated. In cases for instance, where the therefore void ; that the heaviest of putative father ; in others, where the tespenalties shall be incurred, by par- tamentary guardian appointed by the puties both unconscious and innocent tative father; in others, where the natural of offence, and that the cbildren
mother has been present and consenting shall also be involved in the wrongs,
to these marriages, the marriages have which their parent's suffer ? yet want of the legal consent. I dispute not
nevertheless been held null and void for such was the law.
the soun Iness of the decisions, which have “ In Riddiak v. Leddiard, the marriage ruled this point; but this I say, that it rewas solemnized in October 1818, with quired legal subtlety and acuteness ; it the consent of the guardian of the woman, required a mind exercised in legal quesshe being a minor: the guardian however tions; it required a deliberate considerawas appointed by a will attested by one tion of the intent and spirit of the statute, witness only, and a statute passed in the to ascertain that none of the persons whom time of Charles II. requires two witnesses I have been describing were qualified to to any will appointing a guardian, and on give the consent enacted by law, and to proof of the fact of the will having been arrive at the settled conclusion, that the attested by only one witness, the marriage marriage of every illegitimate minor, was held to be null and void, by the
which was solemnized without the consent Arches Conrt of Canterbury on the 8th of a guardian appointed by the High Court day of May, 1820. The learned Judge in of Chancery was ipso facto void. I am giving sentence in this case concluded in justified in these assertions because it was the following manner: This marriage is only after long and elaborate arguments, in no degree clandestine; it has been so in various Courts of Justice, and after lemnized with all the requisites of law. donut and hesitation on the part of some The Court must deeply lament to see
of the learned judges, before whom this such a case bronght before it; it is a case question was at different times argued that of hardship on society that persons should the point was fully determined.” Phillihave been so long living together as man more, p. so. and wife, and be cast loose on society : but it is in vain for the Court to observe
The law is contrary to the spirit on the hardship, so long as the law conti
of British equity. It holds out an nues on its present footing. As the law encouragement io fraud, and gives now stands there is nothing to be done countenance to perjury. It invades but to pronounce this to be an invalid
the great principle of English law, marriage.'
that no man shall take the benefit “ Io Hayes v. Watts, the marriage was in 1800, with the consent of the mother,
of his wrong, and suffers a man to who supposed herself a widow, her hus
obtain a licence by perjury, and band having gone to sea ten years before
afterwards to plead that perjury as and been reported to be dead. He how a reason for dissolving a marriage, ever returned to England, and on proof of which from caprice or other motives the want of his consent to the marriage, it is become disagreeable to him. was in May 1820, adjudged to be null. This act alone and by itself counPhillimore, p. 25.
teracts the indissolubility of mar“ Severely as the law operates on the description of cases to which I have allu. riage, which is recogoized in every ded, there is yet a peculiar cast of persons
other part of the law with such on whom the penalties of this vengeance. uncompromizing vigour, that no breathing statute press with infinitely voluntary separation of the parties greater rigour,--I mean on illegitimate after marriage is admitted ; that the children married, while under age, by li- legitimacy of children born during cence, especially on all those who were married prior to the decisions, which of separation is assumed ; that the late
continued cohabitation and society years have taken place on the construction of the statute. In many instan. of the parties is the ground upon ces these ill-fated persons bave become which an action for damages for