Star. — London, England, 1812-12-15 00:00:00

Ii , LAJff - SERJEAI4TS' INN,.DECIIM AR 7. TOR KING V. LOLLEY. Ey adjournment from the Exchequer Chamber, November 14, and inserted in the STAR of the 18th. The Twelve Judges were all present - , and procee ded to hear the argument in this case, continued. Mr. Bnonouasi, after recapitulating the points of argument, before proceeding to the second point, put a case somewhat different from the present, and ss",lich could admit of no question, but which mustbe allowed to rule this also in principle, viz. that of an English marriage dissolved in Scotland, and a se cond,imarriage afterwards contracted there also by one of the parties t this second marriage must be good in Scotland, because the previous divorce was good there,. This was admitted on all hands. Then, if the second marriage was good there, it must be good here also, and endure to all purposes in England, and every where else. That this was clear from the cases, of Compton v. Bearcroft, recognized in. idletan i v. Idleton ; for the rule there laid down is, that pro- 1 aided the marriage be good in Scotland, it is good in England also. In those cases an English infant, in. capable of marrying in England, without consent, had been married in Scotland without consent, where no such consent is required,. In the case pet, art English party incapable of marrying in England, from a previous. marriage subsisting (as was contended) indissolubly had married in Scotland, where the pre. vim' marriage is held to be competently dissolved., The cases were the same, and in 1 Comm. 43.5, the two personal disqualifications alluded to, of infancy and previous marriage, are enumerated under the same class, ad treated in like manner. , Therefore, no doubt could exist, that whatever was made of the present case, where the second marriage is in . Eng land, in the case put, the second 'Marriage hemeg Scotch, must stand good. Could it be contended that the validity of the divorce was recognized ,in England, as it mnsitikikthe supposed, dug, and lot in the case in question t 'This wonld be - fo contend', that its validity depended not on itself, but on the doing of some subsequent act, vit. an after marriage, to depend on the place where this should be hal— After arguing at length on this, he put a cite, to shew the absurd consequences of giving different ef... fectgin En- 'to the divorce, from those which it _gland . ..., 11‘C, II Va. ....___ has 'in Scotland. Suppose an English couple there divorced—the wife remains, and innocently marries ; tne husband returns to England, marries, and is a fe lon. But suppose he remains in Scotland, and his divorced wife comes to England ; he marries again in Scotland, and again is divorced. His second wife • comes to England also ; and so, in like manner, may a third wife. He dies, and all his three wives have dower of his lands, or he might have survived, and married a fourth wife, and then died ; and the Sheriff have been called on, .by a writ, to set out to each of . four wives a third of his lands in dower—a third snore than there is of them, Yet this follows irresis , 61;4 from Compton v. Bearcroft, and Idletoti v. Id . leton (itself a question on a writ of dower) where it is laid down, that that which had it been in England would have prevented the marriage from being valid, provided it does not form any impediment in Sept. land, is to be wholly disregarded in England,, in ,a question arising out of a marriage actually, had, in Scotland. Take this undoubted principle, and take with it the one now contended for by the other ;ide, that, here the Scotch divorce must not be recognized, and you come at once to this absurd conclusion. He then went to the second point—whether the Scotch divorce wassuffieient to bring the party with in the provision of 1 Jac. e. 11 (the Bigamy or rather the Polygamy Act), the exception is of such as have been divorced by the gcclesiasticar Court, which he contended cannot be confined to the Courts of this country ; but must be taken largely, as an exception *to a high penal enactment. The preamble clearly shews, that the Act is intended against fraudulent and, secret transactions. This whole Act has been construed largely in favorem vita. 1 Hall, P. C. 694, I Hawk, P. C. 44. the drawing of it was inaccurate too ; and from the use of one word (divorce) in its popular and not legal sense, doubts had arisen, whether. a separation a mensa et thoro, brought a per ion withikthe exception. Porter's Case, Croke, Car. 461. But these doubts had long been removed : .4ausl i all,the authorities ruled, that divorce must be . taken largely to mean separation in favorem vitae.— . Lord Coke, 4 Inst. 88, speaks twice in one passage of the " great generality of the terms," in which the , , provisois.drawn. So Lord Hale, to reconcile two parts of it, and extend one of them in favorem vita, takes, " any part in the Icing's dominions," to mean , any part. in this one island, excluding even Ire • land. Then what is the precise meaning of the " Ec _/s,lesiastical Court ?" If there were but one in Eng . 4 3 rid, this must be taken strictly.' But there are many, ....some with exclusion, others with concurrent jut isdic s ;ion. Thus the Arches has, besides its appellate ju risdiction ;n the province of Canterbury, exclusive ,jurisdiction in 13 parishes in London ; and can give sentence of separation there ; and each divorce has a Coasistorial Court. The words then must mean quoad England, not the Court, but aoy competent . Court. '1 hen why restrain them to this meaning, „ after being , forced to make one large step ? They ~ ; g arther must be extended to include Wales. But ..obey also include Ireland ; for no one can maintain, that a sentence of separation in Dublin would not bring parties within the exception. There is no reason . for, excluding Scotch sentences. By the strict con struction too, divorce, by Act of Parliament, won't bring parties within the proviso ; for they are still apart its "whose former husbaneic or wives are living;" • indeed, more so than the , parties really meant ' • for the tam former supposes the marriage di sso l ve d, which is another inaccuracy in the language. . He next chewed that the Scotch Court is strictly an Ecclesiastical Court, and exactly similar to ours in origin and in jurisdiction. Lord Coke, 4. Inst. 345 ispeaking of the similarity of the ancient Scotch lay. to the English), refers to the book called Regiiim Majestatem, as almost a transcript of our Glanville. In this book, the Commissary Court is decribed as having cognizance of wills, slander, marriage, and divorce, exactly like our own. In both' the statutes court is called, like Christianitatis. Its 'scar, or Official ; and Bishops formerly ap. Queen Mary's time, . . • • 'on the abolition of the Popish prelacy, the Crown I cases of countries only shew, that we give effect to toisk.this patronage; for AL while the sublime Court 1 lex loci, as' far - as=rot repugnant to oar ewn--Thisr— ofiJustice exercised it. James restoreet it to the Bi- • Cower .d. tad liaLrbero was relied on by the de shops about the very tithe of the statute in question; fendant ; bur there it does not appear where the first for though he revived the ordei of Bishops, by an marriage was had, and it was a Jewish marriage, set, passed in'l6o6, two years after the I Jac. c. 11, which makes it indifferent where had And where dis. yet several years before it he had introduced acts pre. solved ; besides, such marriages are expressly excep liaratora, thereto, and restoring their temporalities as tea out of the Marriage Act. soon as he .should reinstate them. So it continued On the second point, he contended that the word" until the Revolution, when the Bishops were abolished divorce meant' either dissolution of the vinculum or again, and the appointment of Commissioners again lseparation a meara et thoro, and he denied that the became vested in the Crown. Moreover these di- Scotch is such an Ecclesiastical Court as the law vorces in Scotland are guarded by peculiarity, strict here knows and could recognise. The questicin is regulations„ and provisions to prevent collusion, fully simply, would the Legislature have said such was as much so as , the bills daily passed by our Pattie- their meaning, had they been then asked, if the Fo ment, for similar purposes. He lastly submitted, oiso extend to Scotch divorce I—and he maintained `that the Scotch divorce, if not allowed to be valid .they would not. to dissolve the vinculum of an English marriage,could ' On the third point he contended, that it was not ' only be deemed to be so, because that marriage irin. necessary in a proceeding against the Defendant for dissoluble in England; but for this.reasoa the divorce him to shew that both parties concurred in the con ;s at least tantamount to a separation, a mensa et thorn; elusion. It was sufficient for his argument that the which is of daily practice bete ; to deny this is to re. party using fraud is precluded thereby from setting 'fine persons who may be bona fide resident in Scot- up in his own defence, the sentence obtained by his Hand to be divorced a mensa et them, and to make fraud, and he insisted upon the fraud of the Defend ahem come here for that purpose, otherwise they can- ant, and of his exclusion by it from any benefit of not again marry here. It is encouraging divorces the sentence of divorce at length. here, and discouraging marriages here, saying to II BROUGHAM in reply, would only advert to the new parties, if you wish to marry, go to Scotland, other. i matter introduced by the other party.—The texts of wise you commit felony; but if you wish to be di. i Scripture expressly excepted the very case in question, voiced, you must come here, otherwise you can't allowing divorce for adultery, and it was on those F marry again here. In all,respects, the interpretation very passages accordingly that the text writer on , is contrary to the rulesof ordinary construction, which - Scotch Lavegrounded the practice. The authoritiee ' lay it down, that life a'ad matrimony are the favou - to shew the indissolubility of the contract in England rites of the law. only proved that for the most part there had been no He then went to the third point—Whether the judicial means of dissolving it—not that there was fraudulent proceedings of the defendant were suffi: any thing indiSsoluble in the nature of. the relation. cient, without collusion on the part of the wife, to set If there were, an Acr-of •Parliment could no more aside the divorce so obtained, or at least to. prevent dissolve it than it could bind future Parliaments, that him from using it ?—and contended, first, that no the period during which there were means of disscl finding of fraud being on the verdict, it signified not wing it was short, he agreed—for during the Popish , what answer was given to this question ; and next, times it was a Sacrament, and then not even an Act that the divorce 'is given either as a remedy to the of Parliament was ever tried to dissolve it—and soon wife for an injury, or decreed pro salute mummers after Foljamb's case came from the Canons-- those of . 11e parties, and that in neither view of it canter be Canons acknowledged that the perpetuity of the yin concluded, that it is less a debitutn justitise; because, culurn depended -not on its own nature in the view of beside committing the adultery, the party commit- the law, but on the proceedings of judicatures respec ting it may have also committed a fraud. ' ting it—for they were addressed to the Ecclesiastical Mr. LITTLEDALE argued at length for the gement. Courts, and required steps to be taken in each case, tion, and contended, on the first point, that marriage which would have been superfluous had the essence of is indissoluble in England—there is no instance of its the contract been such as stated. The argument of being dissolved without a new law pro re aa ip, 13 4 ,Mr. Holborn', in Porter's case, shews that they en. no text can be 4 cited for its dissolu b ility : *i s i s tertained the same view of Foljamb's case as is now founded on Scr ipture; and .he quoted .5 Matth. Sl' maintained, and of the law before that time as there and 32, 19 Matth. 17, and 1 Corinth. c. vii. v. 16 stated. and 11, prohibiting divorce, except for fornication.... • The interposition of religious solemnities does not The early churches held it to be indissoluble e then a alter the nature of the contract itself—they are cer difference arose—the Greek church allowing divorce tain arbitrary forms attached to the execution of the a vincnlo for ataultery—the Roman pot allowing it :. contract for the sake of publicity and evidence, and the Fathers differed accordingly—Origin allompg of no more make it a religious covenant than those veil the greater divorce—St. Augustin only of the lesser, obi civil and even military proceedings in which pa. or, separation a mensa et thoro. The Calvinists and rochial officers, clerks, churchwardens, &c. are en. Lutherans followed the Greek church—the English gaged, become religious on that account, or the mat church followed the Roman doctrine—the Scottish, ter ordered to be published by being read from the being a Calvinistic body, followed the former, and pulpit. Besides a marriage irregularly celebrated in adopted the greater divorce. Thus the difference has Scotland, though ROI void - , is punishible by law:— been radical and original. But the plain proof that marriage in England is ease*. ~ In Foljamb's case. in 3 Salk. there is some error— daily' the same contract as in Scodand,is, that a thus the Archbishop's name is wrong given—it is not couple marrying in Scodanel, and then coming to Bancroft, but Whitgift ; and in Moor, 623, and Noy, England, ate forthwith held to be exactly in the same 100, the point is not mentioned. state as if married in England, which would have The Canons, 07 aid 108, relied on, are not the been a manifest absurdity were the contract different origin of the restriction against divorces a lineal°. in the two countries.—since in that case they would Lord Coke lays it down as existing long before, when have entered into a contract of one kind, and then be he enumerates the ire causes elope competent, au held to have entered into a contract of another kind, cf them being previous grounds. Besides, from Mid- though nothing new had been done o change it.— ' dleton v. Croft, ca. temp. Hard. 316, and 2 Str. 1256, As to the deficiency of provisions in our law for the it appears, that the Canons of 7 James I. are not bind- case of dissolution, this was to be supplied by the Le ing on the laity. giskature—if the analogies of separation, or dissoln. He proceeded to shew that, in England, marriage non by death could not aid us, how was it when Par is a religious as well as civil contract—in Scotland, it liament dissolved by a private Act, and did not pro is purely a civil contract, and cited Dalrymple eh vide for one in ten of the cases enumerated ? There Dalrymple and Salk. 119, where a marriage is held we were left to the analogies. Then the absurdities void, because celebrated by one not in Holy Orders ; flowing . from the opposite doctrine are called incon besides the Marriage Act establishes this. . venienctes arising from the conflict of laws—but they He next sheaved, that the English law makes no are not so, for they exist not in the defendant's view provision for such a case as a dissolution of marriage. ,of the question at all, and are is truth logical infe- What would become of the children? Are they to rences, sheaving the premises from whence they are be under the father or mother ?Or are the sons to be fairly deduced to be unsound. But the alledged ale. under one and the daughters under the other ? What surdity of the defendant's doctrine derived from al becomes of the property ? Has the wife dower of the lusion to France, &c. is a mere inconvenience, in fact, husband's estates, and has he courtesy of her's ? and not an inference in argument,. and it is for the —What becomes of the settlements? What be- Legislature to apply the remedy, which it may do as comes of the personality of the wife's fortune.—of soon as parties are forced to resort to the Continent, the choses in action to her appertaining, and other in order to break the marriage tie. contingent interests, the possession under which may . He maintained that married or single, is purely not accrue till after marriage dissolved ? For all this qvaltio Maim and so held by all the authorities. His. the law makes no sort of provision, and therefore ber expressly enumerates it thus, and so Poet ad panel: , plainly does not contemplate the event, viz, the di- part 2. lib. I. tit. 4. and dig. 1. 12. De Statu Ho vorce as possible. In Scotland,. all this is fully pro. minum. Justiniana likewise views it so in the foal tided for and regulated, so as no difficulty or doubt tutee. As to Huber's authority on the precise ques.; can remain about the effects of the dissolution, either don, it must be taken with allowance, however much as to personal questidns and rights of property. to be respected on the more general principles and. It is said we allow the 'validity of Scotch marriages, definitions—for he proceeds on quite different view's and therefore should allow that of divorces ; but we of law from ours. Thus he holds that a will of lands know the one—we are ignorant of the other. As to executed according to the forms of the country where the inconveniences. aad absurdities pointed out in the i made carries lands every where—for example, that a , conclusions froth our arguments, they arise not from I will in Holland, Witnessed by one person, carries land ' thence, but from the con fl ict of different laws :of in England, notwithstanding the Statute of. Frauds—. these a strong one was the case put of the second and he lays it down as too clear to admit of a denial, marriage being in Scotland, and not in England.— that an infant incapable of marrying in Holland, ' But ,it is sufficient to say this is not the case now be. I going to West Friesland, and contracting marriage fore the Court, and we need not discuss it. Here (where the law is different) and returning to Holland, . the second marriage is in England. Strebar has been is in no wise married—which is the very reverse of cited, as proving that status follows the person—but Compton v. Bearcroft, and the other English cases. certain and status only do so—slavery does not—po. He then replied to the rest of the arguments on the lyganay does not,—Huber lays it down Tit. de con- other two points, and toncluded with denying the flictu hem, that the Lex loci is to be taken only in law as laid 'down by the other side, that any sentence so far as it is compatible with the laws of the coml. of any competent Court could be even set aside ine try in which it is used, or relied on. Singleness and vitably by a proof of error, in fact, before it was re marriage are not questions of status—they may be I gularly set aside by appeal. personal qualities, but they are rather descriptive of al The argument being closed, the Court are under contract and its dissolution.. In fact singleness i is a ' stood to have given judgment for the conviction. complex idea, and not a simple one. - Huber limits the proposition as to the lex loci fur.i MARLBOROUGH•STREST.—HaNiihON, alias Fitzgerald, ther, by saying, that it shall not be taken fur the rule I alias See, was yesterday charged with robbing a where inconvenience world result from it. Here the gentleman in Sutton-street, Soho. The prisoner had greatest inconveniences and dangers would follow only been two days out of Newgate on a similar from adopting it. Suppose we had peace, and could I charge when he committed the robbery. He attacked freely communicate with the Continent, any • couple the prosecutor, who is a corpulent man, by hitting might go over, and in an hour, by mutual compact, him on the stomach, and he at the same instant dissolve their marriage, and return free. snatched at the watch, but the chain broke, and be In Potts v. Brown, 5 East, the Court gave effect • possessed himself only of part of it and the seal. to a foreign contract, because consistent with our liw; Carter, the pugilist, is matched for a considerable but in Smith v. Buchanan, 1 East, 6, they refused to 6111111, to run the celebrated in. Woad two miles. The allow an American certificate to discharge a debt former is to receive we hundred yards at starting) contracted here, because the law clashed. All the the match la to take place within a fortnight. • ',Miring any hold of the constittitloa, and. a few times maie lia . 'pietist,. cure. In the most obstinite cats perseverance will pe o . duce the desired effect; and tau remedy can be so well calculated for children as this, for it requires no medicine to be taken inwarety. 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