The Sussex Peerage Case (1844)


Source: 11 Clark & Finnelly 85-154 and 764-767

Note: most of the material (92 to 141) has not been copied.)

[85]        

The Sussex Peerage [May 23, June 13, 25, and 28, July 9, 1844].


[Mews' Dig. v. 5; vi. 522, 536, 696, 813, 915; vii. 632 ; viii. 319, 320; xiii. 1883, 1888. S.C. 8, Jur., 793. Adopted (i.) as to admission of entry in Prayer Book in In re Lambert, 1886, 56 I..J. Ch., 122; (ii.) as to admission against interest, in Smith v. Blakey, 1867, L.R. 2 Q.B., 332; (iii.) as to expert evidence, in In re Coppin, 1866, L.R. 2 Ch. 53; and cf. Reg. v. Savage, 1876, 13 Cox. C.C., 178; In the Goods of Dost Aly Khan, 1880, 6 P.D. 6 ; and (iv.), as to construction of statutes, in Cargo ex Argos, 1873, L.R., 5 P.C. 153 ; River Wear Commissioners v. Adamson, 1877, 2 A.C. 778; Commissioners for Special Purposes of Income Tax v. Pemsel, (1891), A.C, 543.]

Royal Marriage Act—Evidence—Practice—Construction of Statutes.

The Royal Marriage Act, 12 Geo. 3, c. 11, extends to prohibit the contracting of marriages, or to annul any already contracted, in violation of its provisions, wherever the same may be contracted or solemnised, either within the realm of England or without.

In a claim of Peerage, where the question was whether the deceased Peer, the father of the claimant, had been married or not, a Prayer-book, found after the death of the claimant's mother among her papers, was received, and an entry made in her handwriting, declaring the tact of the marriage, read from it, not as conclusively proving that fact, but as a declaration of it made by one of the parties at the time.    (Infra [11 Cl. and F.], p. 98.)

A will of the deceased Peer, made many years before his death, declaring, and in the most solemn form, his marriage, and the legitimacy of his son (the claimant of the Peerage), was proposed to be read as a declaration made by one of the parties; but it was rejected, because the date, and certain expressions in it, showed it to have been written .after a suit to annul a marriage of the deceased Peer had been instituted by his father, and because there was nothing to show that that marriage was not the very marriage in question. (Infra 11 Cl. and F.], pp. 99 to 103.)

The declarations  of a deceased clergyman to his son, to the effect that he had  lebrated a marriage between the deceased Peer and his alleged wife, are not receivable in evidence as the declarations of a deceased party made against his own interest; such interest not being an interest of a pecuniary nature.

The law does not recognise the apprehension of possible danger of a prosecution as creating an interest which can bring these declarations within the rule in favour of their admissibility in evidence upon the ground of their being declarations made against the interest of the party making them. (Infra [11 Cl. and F.], p.  103 et seq.)

A professional or official witness, giving evidence as to foreign law, may refer to foreign law books to refresh his memory, or to correct or confirm his opinion ; but the law itself must be taken from his evidence.

A Roman-catholic Bishop, holding the office of coadjutor to a Vicar-apostolic in this country, is, in virtue of that office, to be considered as a person skilled in the matrimonial law of Rome, and therefore admissible as a witness to prove that law.

In a claim of Peerage, where evidence has been produced for the purpose of establishing a certain point, the party who has produced it will not, should the Crown call evidence of a contradic-[86]-tory kind, be allowed to produce-additional evidence confirmatory of the first.

Before the claimant's junior counsel summed up the evidence previously to the opening of the case on the part of the Crown, the counsel for the Crown were required by the Committee to declare whether they would or would not call evidence on a question of foreign law, so as to enable the claimant's counsel to determine whether they would then (as they could not afterwards) produce any additional evidence on that question.

By the Judges:—The rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are of themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do, in such case, best declare the intention of the Legislature.
Soon after the death of his Royal Highness the Duke of Sussex, in the year 1843, a petition was presented to Her Majesty by Augustus Frederick D'Este, claiming the honours, dignities, and privileges of Duke of Sussex, Earl of Inverness, and Baron of Arklow.

This petition, stating the grounds (see Lords' Journ. for 22d August 1843) upon which the claim rested, was referred by Her Majesty to the Attorney-general to consider and report thereon. Evidence in support of the claim was laid before the Attorney-general. The facts, as they appeared from the petitioner's printed case, were these:—His late Royal Highness, Prince Augustus Frederick, was the sixth son of his late Majesty Geo. 3; in 1793 he went to Rome, and on the 4th of April in that year intermarried with Lady Augusta Murray, the second daughter of the Earl and Countess of Dun-more; that marriage was celebrated by a clergyman of the church of England, in a form as nearly as could be according to the rites of the church of England, an English Prayer-book being used upon the occasion; and it was contracted and attested by two papers [87] signed by his Royal Highness and by Lady Augusta, which papers were in the following terms: —

" As this paper is to contain the mutual promise of marriage between Augustus Frederick and Augusta Murray, our mutual names must be put here by us, both, and kept in my possession; it is a promise neither of us can break, and is made before God our Creator and all-merciful Father."
" On my knees before God our Creator, I Augustus Frederick promise thee Augusta Murray, and swear upon the Bible, as I hope for salvation in the world to come, that I will take thee Augusta Murray for my wife; for better for worse; for richer for poorer; in sickness and in health; to love and to cherish till death us do part; to love but thee only, and none other; and may God forget me if I ever forget thee.    The Lord's name be praised !    So bless me!    So bless us, O God !    And with my handwriting do I Augustus Frederick this sign, March the 21st, 1793, at Rome ; and put my seal to it, and my name.
(l. s.)                                                  Augustus Frederick."
" (Completed at Rome, April 4th, 1793.) "
" On my knees before God my Creator, I Augusta Murray promise and swear upon the Bible, as I hope for salvation in the world to come, to take thee Augustus Frederick for my husband; for better for worse; for richer for poorer; in sickness and in health; to love and to cherish till death us do part. So bless my God, and sign this.                                                                                Augusta   Murray."

There were duplicates of these papers; and in the first of them, the words "' Married, April 4th, 1793, [88] Rome, 7 o'clock at night," were introduced in the place of the words " Completed at Rome, April 4th, 1793." The latter words were added on the day thus mentioned, in the handwriting of his Royal Highness.

The petitioner's case further stated that the parties were again regularly married in England, and that the petitioner was born in the parish of St. Marylebone, in the county of Middlesex, on the 13th January 1794; and the petitioner was the only male issue of the marriage: That by letters patent, dated on the 27th November 1801, his Royal Highness, Prince Augustus Frederick, was created a Peer of the' realm, by the titles of Baron Arklow, Earl of Inverness, and Duke of Sussex, with limitation to the heirs male of his body; and that his Royal Highness afterwards sat and voted in Parliament, and died on the 21st April 1843, leaving the petitioner his only son and heir male him surviving.

The Attorney-general, on the 21st August 1843, made a report to Her Majesty, in which he said, " It appears to me, on the testimony laid before me, that it is established that the contracts of marriage above set forth were entered into by his late Royal Highness the Duke of Sussex and the Lady Augusta Murray, at Rome, on the 21st of March 1793; and I think it may be inferred that his late Royal Highness the Duke of Sussex and the Lady Augusta Murray considered that they stood in the relation of husband and wife."    He then expressed his doubts of the fact of any marriage, valid by the laws of England, having been contracted, even independently of the Royal Marriage Act (12 G. 3, c. 11); and declared that he was not satisfied with the correctness of certain opinions which were laid before him, stating that Act to have no binding force on parties living out or England.    He [89] therefore recommended Her Majesty to refer the petition to the House of Lords.    Her Majesty was pleased to adopt this recommendation; and on the 22d of August the petition, together with the Attorney-general's report, was referred to the House of Lords, and by the House to the Lords Committees for Privileges.

At the first sitting of the Committee for Privileges, on the 7th of June 1844, the Earl of Shaftesbury in the chair, the Lord Chancellor, Lord Brougham, Lord Den-man, Lord Cottenham, Lord Langdale, Lord Campbell, and other Lords being present; and Lord Chief Justice Tindal, Lord Chief Baron Pollock, and Justices Patte-son, Williams,  Coltman  and Cresswell,  and  Baron  Parke,  attending;—

Sir T. Wilde (Mr. Erie and Mr. James Wilde were with him) opened the case for the petitioner:—There will be no difficulty in this case in proving the petitioner to be the only son of the late Duke of Sussex. The fact of the marriage will also be easily established, and the only question will be as to the validity of that marriage. The marriage was a valid marriage by the laws of England, independently of the Royal Marriage Act. And it is submitted that that Act does not impeach its validity. The correspondence between the parties, both before and after the marriage (many parts of which were put in and read) proves beyond doubt that the object they had in view was marriage, and nothing else. The Prince appeared to imagine that if married at Rome, he should, especially after he was 21, be able, notwithstanding any opposition, to have his marriage celebrated in England. It appeared that Protestants at Rome had considerable difficulty in celebrating marriages between themselves. The Roman priests could not celebrate such marriages, and the laws of Rome did not recognise any marriage, except those [90] which were celebrated according to the Roman-catholic ritual. In this situation of things, the Prince had recourse to the Rev. Mr. Gunn, an ordained minister of the church of England, who happened to be at that time in Rome for the purpose of discovering and collecting the Stuart papers. After long-repeated importunities, Mr. Gunn consented to celebrate the marriage; and the fact would be placed beyond all doubt that he did celebrate it according to the rubric of the church of England, with every form that circumstances enabled him to employ, in order to give it force and validity. This marriage is, therefore, a valid marriage by the laws of England, as a foreign marriage made at a place where no other form of marriage was open to the parties. Or, if denied to be a marriage valid, according to the laws of England, as strictly a marriage celebrated according to the General Marriage Act, then it is valid as a contract of present relation of husband and wife, and may be considered as if made between two parties in a desert island in the ocean, where no laws existed, and where the solemn and declared intentions of the parties must, from the necessity of the case, constitute the marriage: or as made at a place where only one form of marriage was open to the parties, and they married by that form; in which case their marriage would undoubtedly be good according to the laws of England.

The question upon the statute then arises: assuming the marriage to be perfectly valid and unobjectionable by English or Roman law, the question arises whether it is avoided by reason of the Act of Parliament commonly known as the Royal Marriage Act [12 Geo. 3, c. 11], one of the parties to the marriage being a descendant of Geo. 2? In order to try the effect of that circumstance, and the construction of the Act of Parliament, the marriage must be assumed to be valid in [91] other respects.    The material clause in that Act is in these terms: —
" That no descendant of the body of his late Majesty King George the 2d, male or female (other than the issue of Princesses who have married or may hereafter marry into foreign families), shall be capable of contracting matrimony, without the previous consent of his Majesty, his heirs or successors, signified under the Great Seal, and declared in Council (which consent, to preserve the memory thereof, is hereby directed to be set out in the licence and register of marriage, and to be entered in the books of the Privy Council); and that every marriage or matrimonial contract of any such descendant, without such consent first had and obtained, shall be null and void to all intents and purposes whatsoever."

Is this Act confined to marriages contracted in England, or in British territories, or does it affect to enact prohibitions on British subjects marrying anywhere and under any forms of law?    It cannot have this latter operation.    Its obligations and prohibitions must be confined to marriages contracted within  British territories. There are two cases on this subject, one of which is directly in point: Swift v. Swift (3 Knapp, 257) is a case where the parties were married in Rome.    There, both parties were British subjects and Protestants, and by the law of Rome no Protestant religious ceremony could be celebrated between them.    Their marriage was, there-fore, not made according to the English law.    Nor by our law would it have been good in another view of the matter; for in order to get married they had fraudulently pretended to be Roman-catholics, and had made profession of that faith, and had been married according to the form of [92] the Roman ritual.    The Arches Court, on the ground of the fraud, had declared the marriage invalid (3 Knapp, 303); but the Privy Council reversed that decision, as neither party had been deceived as to the person with whom the contract was made, and as the marriage had been good by the forms of the Roman law.    The next case is that of Lord Cloncurry (Cruise on Dignities, cvi. s. 85, p. 276 (ed. 1823).    The name of the case is not mentioned).    There a divorce Bill was introduced into the Legislature, and it became necessary to ascertain whether there had been a valid marriage.    Both the parties there were Protestants.    They had been at Rome; and not being able, as Protestants, to have the marriage ceremony performed according to the law of the place, they were married by an English priest, as the parties have been in the present instance.    When the Bill was argued at the bar of this House, Lord Eldon desired to know what was the law at Rome as to the marriages of Protestants.    Witnesses were examined, and it was proved that by the law of Rome, and the effect of the Council of Trent, Protestants could not be married at Rome; it was also proved that these parties had been married per verba de praesenti, in the presence of an English clergyman, and this House held the marriage to  be  valid.    These two  cases  are  decisive  of  the  present.—[Lord Brougham:  Lord Cloncurry's case does not much affect the matter; for that was a divorce Bill  where but slender proof of marriage is required. as the marriage is set
[.....]
purpose or evading the law, performed the act which they were incapable of performing in their own State, and then returned to that State where the validity of what they had elsewhere done was acknowledged. One of these cases was the marriage of a white man with a black woman, such marriage being absolutely prohibited in the State to which the man belonged. This principle is so important, that unless the Legislature has most clearly and expressly declared an intention to avoid it, such intention cannot be implied : Dwarris on Statutes (vol. 2, p. C47). The passing of this Act was strongly opposed, and it [141] may reasonably be supposed that the words which are necessary to give it effect abroad were purposely left out. Her present Majesty (had she married before Her accession to the throne), the Princess Charlotte, and the Princess Augusta of Cambridge, might have married, and their issue would have been exempt from the operation of the Act. It does not extend to Ireland, and therefore there can be no doubt, that if the line of succession should come into the Duke of Sussex, the present claimant would be entitled to the allegiance of Ireland. That country, for such a purpose, stands in the situation of a foreign country.— [Lord Brougham: Not as to purposes of the succession of the Crown, for there is an Irish Act which gives the Crown of Ireland to any one who holds the Crown of England.]—The words of this Act are indefinite and vague, and cannot be permitted to have effect against the great principles of the law which all nations have recognised. There has been clearly a marriage in fact, in this case, one which by the general law of England would be valid, but which, is sought to be avoided by the doubtful terms of this Act of Parliament, by straining the words or a disabling and penal statute. No such violation of known and universally recognised principles will be sanctioned by this Committee.

The Lord Chancellor :—I propose to put a question to the Judges. It is upon the construction of the Royal Marriage Act. If the Judges should wish for any further argument, any argument from the Attorney-General, they will intimate their wishes to me, and I will take care to make the necessary arrangements. I propose to submit the following question to the Judges : —
" Evidence being offered of a marriage solemnised [142] at Rome in the year 1793 by an English priest, according to the rites of the church of England, between A. B., a son of his Majesty King George 3, and C. D., a British subject, without the previous consent of his said Majesty, assuming such evidence to have been sufficient to establish a valid marriage between A. B. and C. D. independently of the provisions of the statute 12 G. 3, c. 11, would it be sufficient, having regard to that statute, to establish a valid marriage in a suit, in which the eldest son of A. B. claims lands in England, as heir of A. B., by virtue of such alleged marriage? "
The Judges requested time to consider the question, which was granted.               

Lord Chief Justice Tindal now delivered (July 9) the opinion of the Judges :—In answer to this question, I am requested by my brethren to inform your Lordships, that it is the unanimous opinion of all the Judges who have heard the argument in this case, that assuming the evidence given to have been sufficient to establish a valid marriage between A. B. and C. D. independently of the provisions of the statute 12 G. 3, c. 11, it is not sufficient, having regard to that statute, to establish a valid i marriage in a suit, in which the eldest son of A. B. claims lands in England, as heir of A. B., by virtue of such alleged marriage. The question turns entirely upon the legal construction of that statute, and is shortly this: whether, to bring a marriage within the prohibition of that statute, it is necessary that it should have been contracted within the realm of England ; or whether the statute extends to prohibit and | to annul marriages, wherever the same be contracted or solemnised, either within the realm of England or without?       
                                                                           
[143] It is scarcely necessary to observe, that as your Lordships' question states that A. B. is a son of his late Majesty King George 3, it applies to a descendant of the body of his late Majesty King George 2, not being the issue of any Princess married into a foreign family; so that A. B. falls precisely within the class or description of persons with respect to whose marriage the statute intends to legislate; and that, as he falls with respect to him personally and individually ; as if it had enacted in express terms, " That A. B. shall not be capable of contracting matrimony without the previous consent of the reigning Sovereign, signified under the Groat Seal, and declared in Council." And again; " That the marriage of A. B., without such consent first had and obtained, shall be null and void to all intents and purposes."

My Lords, the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe mean of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Chief Justice Dyer (Stowel v. Lord Zouch, Plowden, 369), is " a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress."

[144] And, looking to all these grounds of interpretation, we think they concur, in the present instance, in demanding that construction of the statute at which we have arrived.    For in the first place, the words of the statute itself appear to us to he free from ambiguity.    The prohibitory words of it are general: " That no one of the   persons therein described shall be capable of contracting matrimony."    And again: " That every marriage or matrimonial contract of any such person shall be null and void to all intents and purposes whatsoever."    The statute does not enact an incapacity to contract matrimony within one particular country and district or another, '   but to contract matrimony generally,  and  in the abstract.    It is an incapacity attaching itself to the person of A. B., which he carries with him wherever he goes. But as a marriage once duly contracted in any country will be a valid marriage all the world over, the incapacity to contract a marriage at Rome is as clearly within the prohibitory words of the statute as the incapacity to contract in England.    So again, as to the second or annulling branch of the enactment, " that every marriage without such consent shall be null and void; " the words employed are general, or, more properly, universal; and cannot be satisfied in their plain, literal, ordinary meaning, unless they are held to extend to all marriages, in whatever part of the world they may have been contracted or celebrated.

The words of the second section throw light upon and confirm the interpretation to be given to the first.    By the second section the descendants of the body of Geo. 2, being above the age of 25 years, who shall persist in their resolution to contract a marriage disapproved of or dissented from by the King, upon, giving notice to the Privy Council, are enabled, at [145] any time from the expiration of 12 calendar months after such notice, to contract such marriage, and such marriage may be duly solemnised, without the previous consent of his Majesty, his heirs or successors; and such marriage is declared to be good, as if that Act had never been made, unless both Houses of Parliament shall, before the expiration of the said 12 months, expressly declare their disapprobation of such intended marriage.    The words employed in this section are the same.as in the first, " to contract a marriage," and " marriage " generally, and without any reference to the country wherein the marriage is contracted or solemnised.    But as no doubt could be entertained by any one but that a marriage, taking place with the due observance of the requisites of the second section, would be held equally valid whether contracted and celebrated at Rome or in England ; so we think it would be contrary to all established rules of construction if the very same words in the first section were to receive a different sense from those in the second ; if it should be held that a marriage at Rome, contracted with reference to the second section, is made valid, and at the same time a marriage at Rome is not prohibited under the first.

Indeed it is scarcely supposable that the Legislature should have provided the minute and laborious machinery of the second section; that it should have interposed such checks against a marriage without consent, and at the same time have rendered such a marriage ultimately valid, in one given state of circumstances; if the party himself who is the subject of such legislation, by an easy journey, or a voyage of a few hours, could render all these provisions useless, and set the statute at defiance, by contracting [146] a marriage abroad with whomever he thought proper. And it is not unworthy of remark, whilst we are looking to the body of this Act in order to discover its interpretation, that the very exception from the prohibitory clause, of the issue of those Princesses who have married or may marry into foreign families, affords some proof that marriages abroad could not have been out of the view or contemplation of the Legislature at the time of passing the Act, as such marriages in all probability might not unfrequently be celebrated out of England.

It was contended in the course of the argument at your Lordships' bar, that an Act of the English Legislature can have no binding force beyond, or out of, the realm of England ; and if by this is meant only, that it can have no obligatory force upon the subjects of another State, the position is no doubt correct in its full extent; but it is equally certain that an Act of the Legislature will bind the subjects of this realm, both within the kingdom and without, if such was its intention. Indeed it was admitted by the learned counsel for the claimant, that if there had been found in this statute the words " marriages within the realm of England, or without," or any other words equipollent thereto, under such an enactment the capacity to contract a marriage at Rome would have been taken away, and the marriage, there solemnised, would have been made null and void. But if the words actually found in the statute are comprehensive enough to include all marriages, as well those within the realm as without, as we think they are; and if, at the same time, the restraining the sense of those words, to marriages within England, must necessarily defeat the object and purpose of the Act, as we think it would; then it seems to follow, [147] that the construction of the Act must be the same, whether those words are found within the statute or not. Surely, if the marriage of a descendant of George the Second, contracted or celebrated in Scotland or Ireland, or on the Continent, is to be held a marriage not prohibited by this Act, the statute itself may be considered as virtually and substantially a dead letter from the first day it was passed.

But the object and purpose for which the Act was passed, and the mischief intended to be prevented thereby, are clear, and leave no doubt as to the proper construction of the Act. It was founded upon the policy and expediency which requires that no marriage of any branch of the Royal Family should be contracted, which might be detrimental to the interests of the State, either at home or abroad. The object declared by the preamble is, " more effectually to guard the Descendants of his late Majesty King George the Second, from marrying without the approbation of the reigning Sovereign;" it declares "the marriages of the Royal Family to be of the highest importance to the State;" and "that therefore the Kings of this realm have ever been entrusted with the care and approbation thereof." But this object is frustrated, the mischief is remediless, and the power of the Sovereign nugatory, if the marriage, which in England would have been confessedly void, is to be held good and valid when celebrated out of the country.

It was argued on the part of the claimant, that as it is directed in the 1st section of the Act, that the consent under the Great Seal shall be set out in the licence and register of the marriage, and as this direction can only be applicable to the case of a marriage celebrated in this country, so the prohibition must be construed as confined to a marriage in this country [148] only, and as not extending to a foreign marriage. But to this objection it appears to us to be a sufficient answer, that the only words in that section that are essential to make the marriage a valid marriage, are those which require " the previous consent of his Majesty, signified under the Great Seal, and declared in Council;" and that the words which follow, directing such consent to be set out in the licence and register of the marriage, are, as the very words import, directory only, not essential, and are applicable to those cases alone where they can bo applied, namely, to the case of a marriage celebrated in England by licence. For it would be impossible to contend, if the marriage of A. B. had been celebrated at Rome, with the previous consent of his Majesty King George the Third, signified under the Great Seal, and declared in Council, that such marriage would not have been good and valid to all intents and purposes, although the observance of the direction that such consent should be inserted in the licence and register of the marriage, had become, in that case, impracticable.

It was further contended in argument, that inasmuch as by the 3d section of the Act all persons who wilfully and knowingly presume to solemnise, or assist or be present at the celebration of any marriage, or at the making of any matrimonial contract, without such consent, shall incur the penalties of a praemunire; and as there is no provision made in this section for the trial and consequently the punishment of the offender where the offence shall be committed out of England, the necessary inference must be, that the statute itself does not extend to prohibit a marriage out of England : but we think the inference that the penal clause is itself defective, in not making provision for the trial of British subjects when they violate the statute out of [149] the realm, is the more just and reasonable inference; not that we should refuse, on that account, to give the plain words of the statute their necessary force, and hold the enactment itself to be substantially useless and inoperative.

We therefore think, for the reasons humbly submitted to your Lordships, that the eldest son of A. B., under the circumstances stated in your Lordships' question, and regard being had to the statute 12 G. 3, c. 11, could not make out a good title, as heir to A. B., to the lands sought to be recovered.

The Lord Chancellor:—Your Lordships will, I am sure, agree with me in expressing our thanks to the learned Judges for the care and attention which they have bestowed on this subject, amidst their other incessant and laborious occupations. I think, from the nature of the question, it may be proper that we should postpone the further consideration of this case.

Lord Brougham:—I agree with my noble and learned friend in tendering our thanks to the learned Judges for their most lucid, able, and convincing argument, which the learned Chief Justice has just delivered. I have but one doubt about the postponement, which is on account of putting the parties to the expense of an additional attendance: I am quite prepared to give my opinion on the case at this moment.

The Lord Chancellor : —I suggested the postponement with a view to consult the wishes of other noble Lords; not from any doubt I entertain, for I entirely concur in the opinion on the statute which has been expressed by the learned Judges. In fact, I never [150] entertained any doubt upon the words, the object of the Act, or the provisions of that particular section, the second section, to which the observations of the learned Chief Justice have been directed. The answer which has been given to the question proposed by your Lordships is decisive of the whole case, because the same rule that would apply to estates would apply to honours.

Lord Cottenham:—My Lords, I do not apprehend that there is any difference of opinion as to the construction of the Royal Marriage Act [12 Geo. 3, c. 11]; and if so, it would seem to be better to dispose of the case at once. I am of opinion that the marriage is invalid under the statute.

The Lord Chancellor :—I shall therefore propose to resolve, that it is the opinion of the Committee that the claimant has not made out his claim.

Lord Brougham:—My Lords, in agreeing to the motion of my noble and learned friend, and in expressing my entire concurrence with the opinion of the learned Judges, I do so upon the ground not only that the object of the Act is clear, but that the words of the Act are sufficient (for that is necessary also-) to accomplish the manifest purpose of the Act.    I say this, because it is not a sufficient ground to hold that the purpose   is   clear,   unless   the   words   are  sufficient  to   accomplish  that  purpose, though otherwise the Act might have been nugatory.      It   was   so   in   the   case of  the  General   Marriage  Act.      It  was  quite  clear  that  that  Act  was   intended to prevent minors from marrying without consent, unless with the publication of banns; and yet notwithstanding that, by going to Scotland, a very short journey, the parties intended to [151] be affected by the Act, namely, wealthy persons, could easily accomplish the purpose, and defeat the Act.    My opinion is, that if that Act had used he same phraseology as this, and had rendered the parties incapable of contracting matrimony, we should never have heard of Compton v. Bearcroft (Bull. N.P. 6th ed. 13; 2 Hagg. Cons. Rep. 443, 444 n.), and llderton v. llderton (2 H. Bl. 145).    At all events, there is sufficient in my mind to stamp with perfect accuracy the opinions delivered by the learned Judges.    Parties are rendered incapable of contracting matrimony, and not merely, as in the case of Lord Hardwicke's Act, the marriage rendered null and void.    It therefore follows that a Prince going abroad and contracting matrimony, is, for all British purposes, with a view to the Crown and the rights of Peerage, incapable of contracting matrimony; and any marriage so contracted is null and void.

The Lord Chancellor: —I do not entertain the slightest doubt of the sufficiency of the evidence to establish the marriage as a marriage in fact.    (Vide infra, p. 153.)

Lord Denman :—After the observations of my noble and learned friends, there does not appear to me to be any sufficient reason for postponing the decision on this claim. I join in the thanks which I think we owe to the learned Judges for the very clear and satisfactory document which has been read before your Lordships, and I am happy and very much satisfied in being enabled to say that my opinion entirely agrees with that of your Lordships; I think the operative words of the Royal Marriage Act [12 Geo. 3, c. 11], taken alone, are perfectly clear to show that this is no marriage by the law of England.

[152] Lord Campbell:—My Lords, I agree with my noble and learned friend, the Lord Chancellor, that, as the evidence now stands, there would be a marriage in fact; because the evidence that has been given to us of the Roman law, uncontradicted as it is, would prove that a marriage at Rome of English Protestants, contracted according to the rites of their own church, would be recognised as a marriage by the Roman law, and therefore would be a marriage all over the world. I own that that evidence rather surprised me. I had imagined that it was impossible there could be a valid marriage at Rome, between Protestants, by a Protestant clergyman, such as the Roman law would recognise. As the evidence stands at your Lordships' bar, it would appear, however, that the Roman law would recognise such a marriage without the religious ceremonies required by the Romish church before the Council of Trent, namely, without the intervention of a priest, and would treat it as a marriage valid by the universal law of the church before the date of the decree of that Council; and it would appear that the decree of the Council of Trent respecting marriages, was not meant to apply to the marriage of Protestants, who could not conform to it. That, my Lords, I think is the universally prevailing opinion. But when we come to the Royal Marriage Act, it seems to me that there is an insuperable bar to the validity of this marriage. The elaborate opinion that has been delivered by the Lord Chief Justice of the Common Pleas appears to me to have entirely exhausted this part of the subject. It accords with the opinion I had originally formed. I kept rny mind, however, entirely open till I had heard the arguments on both sides, and I now am confirmed in my previous opinion by the legal reasoning laid before us in the most admirable opinion [153] we have this day heard delivered by the Lord Chief Justice. I entirely concur with that opinion. I have no doubt that it is competent to the British Legislature to pass a law making invalid the marriage of particular British subjects all over the world. I have no doubt that it was the object of that Act of Parliament to invalidate marriages of the descendants of George the Second (with the exception of Princesses married into foreign Royal families), without the consent of the Crown, wherever those marriages might be celebrated; and I am clearly of opinion that the intention is sufficiently testified by the language which has been employed.

The Lord Chancellor:—My Lords, I wish to explain, that by a " marriage in fact," I mean that I think the evidence is sufficient to show that these parties were married at Rome by a clergyman of the church of England, in conformity with the rites and ceremonies of the English church. With regard to the evidence, as referred to by my noble and learned friend (Lord Campbell), that evidence is sufficient, as it at present stands, to show that this marriage would be a valid marriage of Protestants at Rome, according to the law of Rome: whether such a marriage would be a valid marriage in this country for any purpose independently of the Royal Marriage Act [12 Geo. 3, c. 11], is a point upon which I give no opinion.

Lord Brougham:—I give no opinion upon that.

Lord Cottenham :—My Lords, after the discussion which has taken place, I think it right to say that my opinion is formed entirely and exclusively upon the Royal Marriage Act. It is only that part of the case which has been concluded, and that is the only part [154] upon which we can properly express an opinion. I entirely agree in the opinion which has been expressed by the learned Judges, inasmuch as by the construction of the Royal Marriage Act [12 Geo. 3, c. 11], whether the marriage would be valid by the law of Rome or not, it would not be valid by the law of this country. My opinion, therefore, is against the claim.

It was then resolved that the claimant had not made out his claim to bo Duke of Sussex, Earl of Inverness, and Baron of Arklow:   and the Chairman was directed to report the same to the House.

The resolution was accordingly reported to the House, and affirmed.   And the same was reported by the House to Her Majesty.—Lords' Journals, 9th July 1844.

[764]                                                   APPENDIX.                                                    
     
(Some gentlemen having expressed a wish for Dr. Wiseman's evidence on the claim to the Susses Peerage, as to English marriages in Rome, the material passages extracted from the printed evidence are here subjoined.    It was omitted in the Report (ante, p. 117), as there stated, because the claim was disposed of on the construction of the Royal Marriage Act alone.)

" The law of the Council of Trent is that a marriage, to be valid, must be in the presence of the parish priest and two witnesses.    The Council of Trent does not point out the particular form of the ceremony of marriage; the Roman ritual prescribes that.    To make a marriage lawful, it would be necessary to conform to the Roman ritual, but it would be valid and binding though the forms were not observed; but the parties would be subjected to censure in the Ecclesiastical Courts, for illegal   proceedings.    It would not be required that a marriage which had been so celebrated irregularly should be repeated:  it could not be rendered more binding by any subse-  ; quent ceremony; it would be indissoluble.                                                              

" I never heard of any attempt being made by two Protestants to be married ac- cording to the Catholic ceremonial in Rome, or before the parish priest; nor do I believe that they would be permitted to avail themselves of the law. The parish priest would not be under an obligation to solemnize the marriage of two Protestants. There has been no regulation upon that subject, nor can I refer to any decree relating , to it. But supposing a marriage of two Protestants, celebrated at Rome in the presence of a Protestant clergyman, according to the English Protestant ritual, should after-[765]-wards come before a tribunal there for a decision upon it, I have no hesitation in saying that that tribunal would pronounce for the validity of the mar-riajre. Such persons so married, if they afterwards professed the Roman-catholic faith, would not be required to be married again, nor to do any act to confirm the marriage; nor would they be allowed to separate, nor could either of them marry again during the life of the other. The children of such a marriage would be deemed legitimate. I believe that such a marriage would not subject the parties to any ecclesiastical censure. My decided opinion is, that if parties were married accord-ing to the forms which they considered, in accordance with their religious opinions, binding upon them as a matrimonial contract, the law would consider them as man and wife, and would not allow a separation. If two persons married according to the form of their own religion, they would undoubtedly be held as lawfully married. If the parties themselves considered the marriage sufficient, and if in the opinion of persons of character, of their own country and religion, it was considered equivalent to a marriage,—as if two Scotch persons married  according to the law of their country,—it would, on that basis, be considered sufficient and binding.

" The decree of the Council of Trent, declaring void all marriages which are not celebrated coram parocho and two witnesses, is not binding in any country in which that decree has not been duly promulgated, but there the old canon law still prevails as to the marriages of Catholics. The decree in its terms makes no distinction between Roman-catholics and Protestants, but practically it does not extend beyond the former; and its object was to do away with a great practical abuse respecting marriages among Catholics, and not in any way to strike at Protestants. That is the interpretation of the decree according to Layman's Course of Moral Theology; a work of the highest authority in all ecclesiastical matters, and cited in the judicial tribunals in Roman-catholic countries."

The preceding extracts are made from Dr. Wiseman's evidence, given before the objection was taken to his competency. After that objection was overruled, and he was [766] desired to state the grounds of, and authority for, his opinion that by the law of Rome a marriage of two Protestants celebrated as before described, would be held valid there, he proceeded thus : —

" I consider this case as a practical case:  Supposing the case of a marriage, such as has been stated, came before the Roman tribunals, and it had to be decided whether for all civil purposes it was to be held good or not, the decision would be that they were to be considered as married, and the children would inherit.    That is grounded upon the principle that the operation of that decree of the Council of Trent was not intended to have effect to the extent of annulling and invalidating Protestant marriages.    I had just alluded to the decree, when the question of my admissibility as a witness was introduced ; but I had observed that this decree is under the peculiar condition of not coming into operation until 30 days after it is promulgated in each parish, and from that moment forward we find the opinion of theologians to have been, and decisions framed in conformity with that opinion, that in cases where Protestants married according to their own form, even in places where the Council of Trent was promulgated, those marriages were valid.    It is true that in the decision of such cases there have been discrepancies, and that the decisions at Rome have varied, sometimes being given for the marriage, and sometimes against it; and irregularities, in consequence of that difference of opinion, have arisen.    Pope Benedict XIV. has entered at great length into the question, and the grounds upon which it was decided.    He issued a bull, addressed to the Bishops of Belgium, in which he . pronounced marriages between Protestants in Belgium, though the Council of Trent had been there promulgated, to be valid.    This bull, which goes at length into the question, is not a remedial one.    It is not saying that they shall be considered as valid, and shall be valid in futuro, but it declares that they have all along been valid, notwithstanding the promulgation of the Council of Trent in those places; and he gives, in the recitals of the bull, the reasons of the decision; reasons which apply to any other similar case.    He gives a variety of reasons, which it is not necessary to [767] enter into; but I may mention the principal, and those which he dwells upon most.    First, that it could not be the intention of the Council of Trent to bind Protestants in any way, from the very fact of their having given 30 days to elapse between the promulgation and the operation of the decree, which could only be in order to enable Protestant powers to prohibit the execution of the decree; because, he says, it could not be expected that Protestants would go before a Catholic priest to be married :   and. he says, if we admit, in the present case, those marriages to be invalid, we introduce the very evil which it was the intention of the Council to avoid, and we shall make the decrees of the Council a subject of dislike to Protestants, which it evidently was the object of the Council by that decree to avoid.    Then he observes, that it would be contrary to the spirit of the Council to interfere in that way, inasmuch as it would produce a serious evil to the Catholic religion, which the Council themselves  wished to  avoid; which was that of fictitious conformity or fictitious conversion, for the purpose of getting rid of matrimonial arrangements :   and he alludes to the danger there would be of persons that wished to become Catholics, being prevented by the fear of having to be considered as having lived until then in a state of concubinage.    Those evils are such, that he cannot suppose the Council to have intended to produce them; and therefore he interprets the decree of the Council in such a way as not to invalidate the marriages of Protestants."



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