The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1872-05-11 00:00:00

" THE QUEEN v. HENRY ALLEN."

On S durday, in the Court for the Consideration of Crown
Cases Reserved, the Lord Chief Justice, the Lord Chief
Justice of the Common Pleas, the Lord Chief Baron, Baron
Martin, Baron Channel', Mr. Judi. Willem, Baron Bracewell,
Mr. Justice Byles, Mr. J totice Blackburn, Mr. Justice
Mellor, Boron Pigott, Mr. Justice Lush, Baron Cleashy. Mr.
Justice Batmen, Mr. Justice Grove, and Mr. Justice Quaiu—
a larger of judges than were ever before assembled—met to
consider the cause of "Tile Queen v. henry Allen "—which
was a ease of some importance on the law of marriage as
bearing on the offence of bigamy.
The question raised and reserved in this case was
whether the offence of bigamy is committed where the
second marriage is invalid, as being within the pro-
hibited degrees of consanguinity or affinity. It arose
thus :—The prisoner, after the death of his first wife,
re-married, and then his second wife still being
married the niece of his first wife. Prior to Lord, Lynd-
hurst's Act (land 6 William IV., 54) marriages within
the prohibited degrees of affinity were not void at law,
but were only voidable during the life of the parties by
suit in the Ecclesiastical Courts, and after their death
could not be invalidated. That Act, however, declared
that marriages celebrated between persons within the
prohibited degrees of consanguinity or affinity should
be absolutely null and void to all intents and purposes
whatever. The question NM as to the effect of such a
marriage with reference to bigamy when the second
marriage was within the Act. It was admitted that
when the first marriage was within the Act, as it was
null and void, the second marriage would not be
bigamous. But was it so 118 to tile second marriage'
As to this, the counsel for the prisoner relied on the
opinion of the judges delivered by Lord Chief Justice
Tindal in the House of I ,ords in 1844 in the celebrated
case of "the Queen v. Mills" :—" The words of the
Act are, if any person, being married, shall marry any
other person during the life of the first husband or
wife, the words 'being married' in the first clause, and
the words 'marry any other person' iii the sec, eel,
insist of necessity denote marriage of the same kind
and obligation." (10, Clark and Finelly's House of
Lords Beaorts, 689.) The prosecution relied on a, case
in this country before Lord Denman (" the Queen
v. Brown," 1, Carriaglon and Kirtaaris Crown
Cases, 144), where it was held by that noble and
learned lord that marriage meant only the ceremony of
marriage, and that, therefore, in a case like the present
the otlenue was cominitted. But then that was only
the ruling of a single Judge at the assizes, and in
answer to it the counsel for the prisoner relied on a
more recent cave before the Court or the Consideration
of Crown ewes in Ireland, before 11 Judges—Citief
Justice Christian, Chief Justice Manahan, Chief
Justice Lefroy, Chief Baron Pigott, Justice Megan,
Baron Fitzgerald, Mr. Justice Fitzgerald, Justice
Keogh, Baron Deasy, liar n Hughes, and Mr. Justice
O'Brien. That was a eace whet e, by the law relating
to marriages between Boman Catholics and Protest-
ants, the second marriage was "null and void." The
majority of the Court—seven to four— held that the
crime of bigamy bad not been committed, but four of
the learned Judges—Chief Justice Lefroy, Chief
Justice Monatam, Mr. Justice O'lLezan, and Mr.
Justice Koh—held otherwi: e, that the clime had
been committed.
Mr. Buffet) was for the prisoner; Mr. NVarry was
for the prosecution.
The counsel for the prisoner argue.l that Lord (lief
Justice Tindal and the Judges had laid down in 1444
to constitute the crime of bigamy the second marriaee
must be as valid as the first (hut for the former mar-
riage), while the counsel fir the prosecution argued
that this was not so, and that it was enough that the
married man went through the form and ceremony of
marriage. -

In the course of the argument,
The Lord Chief Justice observed that the essence of
the offence of bigamy consisted in au outrage upon
public decency, aud this was not the lees perpetrated
whether the second marriage was valid or invalid.
The Lord Chief Baron, Mr. Justice Blackburnriflnd
Mr. Justice Wiles observed that the offence would not
be the lesi committed because both parties were
previously married.
Baron Martin observed that theessence of the crime
consisted in the injury to the individual, and the conse-
quent offence against public justice.
Mr. Justice Blackburn, however, observed that the
offence was not the less committed inertly because
the woman last married was aware of the previous
marriage.
Baron Channel! observed that if this marriage was
valied a man 'night legally marry a woman and then
marry her daughter.
Mr. Justice Lush remarked that he thought it was
enough that the form and ceremony of marriage was
legally gone through, and that there was such a mar-
riage as would be -valid but for the personal disability
to contract another marriage.
Mr. Justice Blacklitun observed that one of the
Irish Judges, Mr. Justice Christian, had drawn a dis-
tinction between the invalidity of the form or cere-
mony of marriage and the invalidity of the marriage
by reason of pe;sonal disability; and that learned
Judge had suggested that the Irish case was one of the
former class; aml if that were so there would be no
inconsistency between that case and the other.
After the argument, the learned Judges retired to
consider their judgment, and were absent some time.
They then returned into court, and
The Lord Chief Justice said: Considering that a
case, if not quite the sime as the present, at least
closely resembling it, has been lately been before the
Judges in Ireland, and, considering also the general
importance of the question, we have determined to
reserve our judgment, which will be delivered next
Term.

THE HOUSE OF LORDS AND THE
"INDIRECT" CLAIMS.
The Times of Tuesday, in a leader describing the excite-
ment in the (louse of Lords the previous evening, unit sug-
gesting the possibilities of the future, says:—
The House of Lords has rarely exhibited a more re.
markable scene than was presented at the commence-
ment of yesterday's sitting. There was a large
attendance of Peers, there was an attendance almost
equally large of members of the House of Commons,
and the space about the steps of the Throne appropri-
ated to Privy Councellors was thronged with Ministers
and ex-Ministers, who hail come from the other House
despite the attractions of a debate on the Scotch edu-
cational Bill, which was to end in a ministerial
defeat. A Royal visitor testified by his presence
the interest felt in the solution of the Alabama
ditticuty by neutral Powers on the Conti-
nent. All bad come to hear what Lord Russell
had to say, and Lord Granville bad to answer. The
difficulty of pressing Lord Ruseell's motion was not
to be disguised; but the difficulty of consenting to an
increasing bewilderment of diplomacy was, at least,
equally pressing. The Ministers of the Crown felt
the critical character of the emergency, and Lord
Granville anticipated Lord Russell by pledging him-
self that, if he would postpone his motion once more,
he would be prepared on Monday next to present to
the House all necessary papers relating to the pend-
ing negotiations or to make a full explanatory state.
went.
A very singular conversation followed. First one,
then another, and, again, a third and a fourth Peer rose,
each most reluct intly, each banging back till the last
moment, so that the interlude seemed to be at an end
half-a-dozen times before it ceased, but each feeling
that there must be no misunderstanding about the sup-
posed settlement offered by the Ministry. A very
general agreement was at last concluded. Next
Monday the Ministers must unbosom themselves.
Whether the pending negotiations be or be net at that
time concluded, Lord Granville must take the Peers

into his confideUce. . . •
It cannot be denied that this remarkable conversa-
tion produced a certain sense of relief. 'rids 'was
the result of many causes. Souse were, perhaps,
pleased that a difficult &emission had been for the
thus avoided, but there was a general source of satis-
faction in the thonght that on Monday next the end
must at last be reached. Ministers have seven days'
grace and the American Government have seven
wore days for reflection. If the. English and Ame-
rican Ministers do not nice by the end of the
current week that the presentation of the Judi-
direct Claims at Geneva shall be superseded by a
joint Memorandum addressed to the Arbitrators,
Lord Granville will have to promise on behalf of
the Government that they will take no further
sten in the Arbitration until the Indirect Claims are
withdrawn, or to accept an Address from the Lords to
the Crown, praying that further proceedings may be
susranded until the same end is arrived at. It must,
indeed, be clearly understood that Lord Russell does
not call upon the Cabinet at Washington to make up
their minds what they will do. President Grant and
his Ministers may keep their counsel till the 11th
of June, and if at that time they withdraw the In-
direct Claims, the Arbitration will go on without
interruption. The effect of Lord Russell's motion
is simply to put on record in the Journals of Parlia-
ment what has been affirmed over and over
again in and out of the two Houses of the Legislature
—that we cannot go on with the Aibitration while
the question of liability for Consequential Damages is
left open before the Arbitrators. We look upon this
as SO much a matter of course that we cannot but re-
peat what we have before said—that we regret the
Government did not accept it a fortnight since. The
question is whether the Ministers contemplate it as

_ -
possible under any circumstances that they should go
to Arbitration at Geneva with the claims for Conse-
quential Damages hanging over the nation. . . .
We sincerely hope Lord Granville will be aide to
announce next Monday that the presentation of Indi-
rect Claims will be suspersesled by an agreement on the
part of the American Government to instruct the
Tribunal at Geneva to disregard them. We are
persuaded that the clearer definition of our own
purpose resulting from last night's conversation will
assist rather than impede this wished-for end. There
is no concealment as to the character of American
opinion on the subject. It is impossible •to
find any person in the States who dues not
say that he never expected the Arbitrators would
award a single dollar for the Indirect Claims ;
it is rare to find any one who does not comb mu their
insertion in the Case delivered at Geneva. A few
offer an apology for having presented them to the
judgment of the A rbitrators, and the great mass would
have willingly retained them on the recoil, seeing
that they have been presented. This can be easily
understood. None of us like to withdraw from a
position we have assumed in a private matter,
and there is, perhaps, even greater difficulty in
assenting to the propriety of something like a
national recantation. But, when it. becomes a
question between superseding the Indirect Claims
and letting the Arbitration drop and the Treaty of
Washington become abortive, the verdict of the Ameri-
can nation will not, we believe, be uncertain. It is not
even now uncertain. The preponderance of opinion
in the States cannot be misunderstood. It is, in fact,
only a question how far the President can risk his
chance of re-election by consenting to the withdrawal
of what has been imprudently put forward....