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 consider 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

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.

HOUSE OF COMMONS,
Tuesday, June 8.

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

paper called The Clydesdale Journal," but only one number of that paper was published after the partnership, and they then commenced the paper called "The Glasgow Sentinel." Some time after, Borthwick wished to retire from the concern, and a dissolution of partnership took place. The conditions of that dissolution were, that the property in the concern should remain that of Alexander, he paying to Borthwick the sum of 201. in hand, and giving him three bills for 301. each, well secured at six, nine, and twelve months. The sum of 201. was paid to Borthwick, but the other part of the contract was not performed as stipulated; for, instead of the three well-secured bills for 301. each, at six, nine, and twelve months, Alexander only gave his own note for 30l. at six months, but withheld the other two at nine and twelve months. Upon this Borthwick raised an action before the court of the magistrates of Glasgow, who were fully competent to try the case, and in his petition prayed that Alexander might be directed to fulfil his contract, or that he (Borthwick) might be put in possession of his share in the property, as he was before the contract for dissolving the partnership was entered into. The case was discussed before the magistrates of Glasgow, not only by the printed papers, but by solemn argument. It began in Dec. 1821, and on the 14th Feb. following, a solemn and final decision was made by the court, which was, that Alexander should perform his contract within six days from that time, or that if he did not, Borthwick should be put in possession of his property as before. Here, then, they saw Borthwick in possession of a decree of court in his favour, awarding that he should be restored to the possession of his property, provided Alexander did not fulfil his contract within six days. The six days elapse, the contract is not made good, nor is he put into possession. Now he would ask any man of common sense, whether the attempt of a person so circumstanced to regain his property, under the authority of a judgment of a court of law, was a fair ground on which to indict him for a felony? Was this a case which it was expected a judge would try or a jury convict upon? But, if he wanted a witness to show the absence of anything like a felonious intention on the part of Borthwick, in his subsequent attempt to get possession of his property, he would

Scotland-if he were now to shrink from the performance of his duty, it might be supposed he did so from unworthy motives. He felt that he owed no apology to the learned lord for bringing forward the question; but, he felt that he did owe some explanation of the circumstances which compelled him to introduce it at so late a period of the session. It was not attributable to any reluctance on his part that the motion with which he intended to conclude had not been made at a much earlier period; but he had been compelled to delay it, in consequence of the tardy production of papers which had been ordered to be laid before the House, and which were necessary to the right understanding of the case, and the vindication of the learned lord opposite. The inquiry into the conduct of the sheriff of Dublin had also been the means of retarding his motion. Having given this explanation, which he considered necessary, he would proceed to state his case as concisely as possible, upon the authority of the papers before the House. He begged the House would bear in mind, that in Scotland there were no grand juries. The lord advocate, in virtue of his office, might bring whom he pleased to trial, upon his own authority and responsibility. It was true, there was another course open, by which a private individual might prosecute by getting a "concourse" from the lord advocate; but this was attended with so much expense, delay, and uncertainty, that it was very rarely resorted to. It would not be denied to be most important, that the person possessing such great powers as the lord advocate, should uniformly exercise them without any personal bias, or feelings of political consideration. That personal bias had had no influence upon the learned lord in these transactions, he was quite willing to admit; but, looking at the whole of the case, its origin and progress, and the learned lord's knowledge of both, he could not bring himself to the same conclusion with respect to the influence of political considerations. At the date of these transactions, political party feeling ran very high in Scotland. In his opinion, they had been extended, and very improperly so, to the case out of which the present matter rose. The case was this a person named William Murray Borthwick had entered into partnership with a person named Alexander. Whilst in partnership, they printed a