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."