The Sun.
London, England, 1857-11-26 00:00:00

LAW INTELLIGENCE.—Nov. 25.

VICE-CHANCELLORS' COURTS.
(Before Vice-Chancellor Stuart and .Mr. Justice
Cresswell.)
BROOK T. BROOK.—_MARRIAGE AT ALTONA. BY A
Bltf#Xl StBJECT DOMICILED IN ENGLAND WITIT
A DECEASED WIFE'S SISTER.
Sir F. Kelly, in reply, said he would confine
himself strictly to those arguments which had been
urged on behalf of the Crown. The Solicitor-
General had relied on some passages in "The
Queen v. Chadwick." He (Sir F. Kelly) presumed
at the outset that this Court would not overrule
the decision of the Court of Queen's Bench, and
had therefore assumed that a marriage between a
deceased wife's-sister was prohibited by law ; but as
reference had been made to that case he should not
scruple to arraign the decision of that case, if neces-
sary before the court of ultimate appeal. The
statute of Henry VIII. had laid it down that no
marriage was invalid except such as was contrary
to God's law. " The Queen v. Chadwick," how-
ever, proceeded on a repealed statute of Henry
VIII., but left untouched the moral and social
question. He, for one, must therefore impugn the
validity of that decision. The question was not
now,,herwever, as to the validity of a marriage of a
deceased wife's sister in this country, but as to such
a marriage in a foreign country, where it was valid
by law. There was not a single case, except the
Sussex peerage case, where a marriage celebrated in
a foreign country, where such marriages were valid,
was not held to be valid here, though there had
always existed courts in this country with juris-
diction to impeach such marriages. This was a
remarkablei circumstance that no such case had
ever occurred. The Sussex peerage case—the only
exception—was a singular one, depending on the
language of the statute. It was a personal statute,
and was tantamount to a statute enacting that the
Duke of Sussex should not be able to contract ma-
trimony without the consent of the Crown. It was
as much a personal statute as the statute by which
the sovereign became of age at 18 instead of 21.
To hold that such a statute could be defeated by
merely crossing the Channel would be absurd.
Mr. Justice Cresswell—ln the King v. Loll ey did
a.-ny 'question arise whether the second marriage
wag good or bad—in a word, was a man treated as
a felon without discussion ?
Sir F. Kelly—That case was determined on the
question of the validity of divorce—viz., whether
an English marriage could be dissolved in a foreign
cottntry, and it was held it could not.
Mr' Justice Cresswell—a min is guilty of felony
if he take-a second wife, his first wife living. Had
he married- a second wife in Scotland, it would have
been good s then, according to your argument, he
might have come to England with two lawful wiver.
Sir P. Kelly—There was no doubt there might
arise a conflict of laws, but the question was hot
the inconvenience, but whether the casehad arisen.
The report of L9lley's cases gives the argument, but
does not state the reasons of the judgment, which
was merely that an English marriage could not be
dissolved .by a foreign tribunal. All we claimed
here wes the power of foreign courts to legalise
acts done within their jurisdiction which were
not contrary to morality. He repeated there
waa not a case in which a marriage celebrated
abroad was regarded on any other point than
on the one, viz., was it legal there ? The Attorney-
General had contended that the legalisation of a
marriage in a foreign country was as to the form
and ceremony of it, but that, though true, was by
no means the limit of the proposition. To say that
the jurisdiction did not extend also to the personal
capaCity of the contract and all other contracts was
to confound the language and meaning of all the
authorities. In the case of May v. Ross (3 Espi-
nesse) Lord Elsie e eld that a contrast, though the
question was personal, must be determined by the
law of the country where it was entered into. In
De la Vega v. Vienna (B. and Ad 284) the same
principle was laid down, and the remedy must be
pursued according to the laws of the country where
the party was.
Mr. Justice Cresswell—Suppose a promise to
marry a deceased wife's sister in Denmark, would
this Court enforce it ?
Sir Y. Kelly—That would raise a difficult ques-
tion as to specific performance.
The Vice-Chancellor—Sir F. Kelly, we have not
oome yet to bills for specific performance to marry.
(Laughter.)
Sir F. Kelly—lf the contract were to marry in
Denmark, he could see no objection to the action.
Mr. Justice Story's " Conflict of Laws," section 103,
laid it down clearly that the lex loci must prevail ;
but not to weary the Court with authorities, he would
refer to the only class of cases within his know-
ledge depending on prohibition in a parent State
of marriages between different classes of persons.
There were several States of the Union where
marriages were prohibited between white men and
black women, but in some States such marriages
were lawful: and yet the test has always
been considered to be, was the marriage valid by
the law of the State where it was contracted ? 'Tlad
learned counsel then referred to the case of "Read-
ing v. Smith" (2 Haggard Con.), to show that such
was the test in this country. The same theory was
to be found in Scrimshire, v. 9. The next case was
Harford v. Morris," which be had not referred
to, because it had been overruled; but it did not
bear out what had been sought to establish thereby.
Then came the case of "Middleton v. Jan verin ;
but thesante principle was acted on there. There
was, therefore, no single exception to the rule that
the validity a marriage depended on the validity
by the laws of the country where it was celebrated.
In the case of " Monro v. Monro," which had
been cited (7 Cl. and Fin. 782), it was held that the
law of the country where it was celebrated deter-
mined its validity, and the law of the domicile re-
gulated its consequence ; therefore, any question
of divorce or alimony, had such arisen in this case,
would have depended on the law of England. In
" Birkwhistle v. Hurry" the same principle was
acted on. It might be that the Attorney-General
believed that these marriages were incestuous, but
it was too much to denounce these marriages, wh'cb-
millions of virtuous, Christian, and religious pr-
sons believed t ) be innocent.
We must ri-menaber
that there marriages were lawful throughout the
wh 13 of the Protestant States of the continent of
Europe and of America, and even throughout
Rona in Catholic countries subject to disren..cali )ii.
[fever there was a cass in which a qnestion oug%.t
to be considered calmly, it woe one whero the pater
patrice came into one orter own c-)urts to take away
from the children the property earned by the labour
of their parent. He now came to the real question
at issue, that the marriage was valid here if valid by
the law of the country where it was celebrated, bur,
of conne, with the qualification that it must nat. be
contrary to morality or Christianity. This country
would not recognise polygamy, on the groend that
it was immoral. No case had been cited in which
this country had refused to recognise the validity of
other laws. We ought, therefore, to beware, how
we made laws at variance with ose of civilised
Europe, and spreading ruin, desolation, and de-
gradation among thousands of families. He now
came to the question whether the Act of William
tended to the colonies—would it extend to Ire-
land before the union ? There was no doubt of the
power of the Legislature to make laws. but it was
settled that a statute did not apply to Ireland un-
less Ireland was named (7 Coke, Calvin's Case").
The learned gentleman then cited The Attorney-
General v. Stuart" (2 Merirale), cont4oing a note
from Blackstone's %Commentaries," to the effect
that the laws of England only extend to such co-
lonies as are named. We had colonies which had
formerly belonged to countries by whose laws these
marriages were lawful. In conclusion, he sub-
mitted this question was to be governed by the
strict construction of the language of the Legisla-
ture, without reference to opinions of individuals
on certain passages of Scripture, an I, tried by that
test, the marriage could not be impeached.
The Vice-Chancellor said it was too important a
question to be determined hastily, and he should,
therefore, with the advice and assistance of Mr.
Justice resswell, consider his judgment.