Star.
London, England, 1812-11-18 00:00:00

- ?
. •e. COVAT Q? EXPHEQUER, NOWAtir iL '•
:' .-Zk '
, - • , THZ situp v. LoLt.at. _
./' Mr. BROUGHAM argued this case on .hillllf Of the!
defendant WilliAM Martin Jolley, whokbe-seid, was
.n English subject, !who -had hisen-matried in Eng-1
nd, hcccording to- theliiee of -it; thatch, to an Eng-
rah lady. , Some ,years aitetwatds, the parties remo-
ta to Scotland, where the husband waasailty of
Several acts of adultery, which occasioned tFectife to
i.ePply tathe"Scotch Consistorial Cott •• and.-bring-,
Mg bersase within its jurisdiction, she obtained a
- aensence of divorce. The parties returned separately
,to England, where the :husband married a second
Offe,. and being prosecuted for bigamy, was tried at
the last Lancaster Assizes, before Mr. Baton Wow.
The case for theproseCutinn beinsproved, the priso-
nee.rested his defence uPon•the proof ofthis -Scotch
liroecr .and was found Guiky, with a reserve of,
F:veral points for the.considenitiOnof theAtfelve
dges. 1. Whether a divorce, had in Scotland, or
.434,
arty flitelgti country, can dissolve the tiers/um of an
English marriage f 2: Whether such a divorce as
thivs.though irbe not of sufficient force to dissolve the
iiiernlyi At Mi Eoglish :marriage, is nevertheless seffi-
lettl,to-brioje the party, within 411 e exception -in the
itittfiteroAn
epti:.,thltkcisint:gtt,o4.4.l jasa.mc.7.lfli.finwyh, icsiluir
k
novntickexs:
lend tei-arty Odeon .Who shall be at the time of inch
item riage ditorced by any sentence in the Eccksiasti. 1
cal Court. The Ad point, which did now come be-
forethe,consisleration of the Court, as there was To '
sidiiig of the fact by the Any, related to the proof of
&allusion in obtaining the Sentence of divorce which
*strAde kit fraud upon the law of Scotland, and to the
Otinet Amps taken on the part of the htsband to
snOace- wite to obtain it-
LOril I wauionoi.on suggested the propriety of.
*Ailing 2d point, first.
*o
4 :Mr. Bealt Ham said; ihat would be the most obvi-
AllticCOUriMp as that point-avail less doubtful then the
first ; and:if at -Were politely with lien, it -would be
- sufficient for the defentiaaes.ease: but the connection
beta Ate fest end second points was so great, that
he een,l4 SA trust hisriself with sefficie.nt confidence
in the latterilill he, had made a little way in the for-
' Ott. it was contended by his antagonists, that the
- . Scotch eantedice of divorce was not stifficient, because
is FoglAnd there was no such means of dissolving a
. ;puate : their proposition was, that marriage being
in England au indissoluble contract, the ,partiesi
bnutidly it should hot, by going where, by the laws
of a country, man iage was not an indissoluble con.'
tr 0,, and returning, avail themselves of the &solo-
prioeiples of those taws. Bet there was CO ay.',
priufpr sayieg that in England the essence of the
ainage-contract was its heingibdissoluble, although,
'fis Ad. jurisdiction in England whereby that ,
iinaluden could be obtained; or, rather, although"
! some Courts had a jurisdiction to deal with it, they 1
were prohibited from dissolving the eiarelass of the
ogipelinkrriageindidet. Even (be Pontifical- lees did;net hold
ssoluble t and to thiner_that ;bedew's.
r L.,
sicimeta of marriage was pot a neerr.doctrine. the leer-,
sled Counsel quoted the 6th book of PuffendorG. cit.
I: see. 21, which gave adultery, aiid 'l4l desertion
_al trufileient censers of divorce; (rein the common ma-
r- tpre of covenants, that *hen one party had broken
' tlle ag9nOient. the-other-is no longer obliged to keep
it, and which justified the injured party not only in
refusing to cohabit, but likewise inpasingto a second'
marriage, whatever the Canonisis brged''to the don-'
teary ; and even they eluded their oWn decrees, dry I
tbnevattion of declaring the former marriage to km
bra originally null and void. It was Pope busmen&
who started' the idea that marriage was not a eiril!
contract, but a sacrament, a divine contract whicli no
haman power could dissolve. This Was adopted by'
oar Church, together *ith the rest Oftheltotnish sei
perstitions, and thence it found its way into our law.
—.He then quoted Porter's case, Croke Charles, 461,
in which the five causes of dissolving marriageo
mentioned in' ft Ed. 111., and coinciding with those
id Coke Lyttlevn, 235 a, were all pre-existing causes
of ere searing the anartlage void.. Thu was a prow-
evil/MlA:mit a woman for Polygamy. who bad a
... .---

411ftres sepsrstiou 9 soma et slard by the Ecclesias.
tical Court, trolttrr scvitiset, which she pleaded at,
bringing her within the proviso in the statute of Jas.
but the Court doubted, and adOsed her not to insist
*pan the law, but to procure a pardon sad yet
Cos lnst. 89, says such s person ir within the pro.
trik After the Reformation, do sattedness of mar.
rii_ge *as denied, and its sarramentality was done
slily with, along with other ROmlsh superstitions ;•—•
stiir whatever H 4 vir -

_.....ever Mentz _ilLinar Al * ' Initten in the
MAU part of his wogs; ha certainly introduced the
typedy of divorce a Toad° etairistaii. The lb.*.
asilag ..teen Esckeiasticareah 47., the substance of
wbith is IR Gibson's Codex, 445, last edition, and in
*ft Burn's Ecclesiastical•Lbr, title Marriage, was then
referred. to; and:Although th it reformatiou was never
aroat cO
iptp
"ktp. yet the remedy had been applied
our Courts trotter achilierimandprep
• m
frarier Tor some time the divorce a viscid° ma-
,!r7'•- irk Veiegnised in our Courts, till in 5. Sul-
.
thr- -- •

and another in iuL _ In
former country, and indissoluble in the latter
.; that
the mere circumstance of crossing a river could give
a man all the rights of marriage, or all
_the pnvi.
of celibacy—could by a reflex I operatim change
seSC he had done one country into something
ferent in another. It signified nothing where a man
was marrieds change of place could not endure to
make him married here, and not married there. In
construing a contract, the consideration I Vas, where
was it made ? but in the enforcing of. it, what are
•w •

rivrviiii
irtlld, 13f3, it was, raid tat " a divorce for adultery i the remedies provided by our awn I A sentence
we anciently of Vinceile wAttrinronii • and, thereforeb:ni upon a contract in one country was conclusive in an.
tile. beginning of the reign of QUeen Elizabeth . the other; and he contended, on principles of the iegy
1
epniion of the. Church of 4i gland was, that after 4 nature of contract, that the marriage was dissolvilirg
ohrorde for adultery the patttc4, might marry again as and that that dissolution. being good -in Scottilei
I:o.liamb's case, .Masi 44,.&m. in the star Chamber, I was good all the world oveg. He then awned 4/rei
that opinion is as chnged,: and Archbishop Ban- i case of Aldan IN the Duke de
asyiLjawes, 1 Boil*,
eroft, upon the advice of Divines, held that adultery tquet and Puller, 138 ; in which defendant, being,
'vas only a divorce a wesua is them" since, and. 1‘ I held to bail in this country. on an instrurnententera
virtue of. that case, tbm were no name of slieoke t into in France, and by which his property only, and'
144.0147' of separation. for adukety or cruelty, anti ' not his person, Was node liable, the Onset dischanil
nn power 4 attutilli9g an. origioally good aadvalid i gad hint, on eateriag a com* appearance; lopelk
magiage% But the GM* of this indisspinhilirt Wog C. J. Eyre saying. so that it mast be shewn what gart.l
only.the copsigleratiutt 4 marriage a* a increment,'. laws of France were, and that they crested an obits.
and Oax cookisierakul t being dope awn with by the , gation which the laws of England woad enforce ;"'
Reformatiods be bail a right to slYsla, the words Of and Mr. J. Rooke concurring, although the only'
blithstonas 1 Comma. 483, that " our law muskier's& other Judge present (Heath) mokquite a difientati
marriage in no other light than at a civil contract." I view of that ewe . and ths in4pilkest had not since
Taking it, then, in die civil or common le* view of ! given perfect satisfaction. The Learned Counsel did
it, it was A. cArittike. 91 a peculiar nen)* ; for it • not rest his doubts of its law on the case of Somers
b"un4 *94 PAY for OR to another, who lost s 1 se- sett the negro, which was decided by Lord Mans.
Dante. =jaw., "NIPS power of reitase s it eras the fie d, is Trent', Terse, 11 Ceo. 9, or on the saw of
*time as if a wan were to tie up his pen perty with ida Talheyrand o. Bouisser, (S Veaer,jua. 447) r, but
fivriPiasaill in favour oia person erligterotail bav no on a ocarce of Lord Engsboroligh. Cli the quulat...ike
paws; to, mimic birp,. l'he icujelklegitar Ai 016. af •" ...puke de Fitriargeg...oo9* s'• viel-
_ _ ,
thesesievana ' He also -of Wit.

Wax
. - _ A the want of a` sipalatte potsreeollisam. as% (II East. 45.1.1 - quoted the ciao
and he eoutended that- allatbat,*ae gaits *. Jones, 13 East. +39, 2,314*1*/et case dips
!isdatiog at the cue of marline, was a oompeaait ja• Unit ;atm% not let reported. of which he bad been

• hr
, , ... ,
' ifilittlifitio tiotii di isititiiti, ibt a 'tilsseittibie , fialleatei with note. ttr. gaoled; hi whi
Oinciple within it. There were three views which une Ofthe Judges now observed -to .Mr. Broughant,
presented themselves nethe Learned Counsel ; first he thought both ranks bad been in Javnalca toga{
1 ind chicly, beamed ask, in what manner were the Cher. - The Learaej Counsel then proceeded to are
Ecclesiastical Courts (who had the exclusive- jun:- gut, that the law of tbeemintry 'where a man was
diction of the tralidity of marriages) tied 4p from dis. remaining claimed to Iwtherule of his conduct: as
Kevin* the viarxhatt of marriage t In a way quite he subjected himself the moment he entered it to the
inconsistent with the notion of the indissolubility of iacovimoda, he hada right to the csmaioda. He then
marriage. By the'lo7th Canokpassed ortly after reversed the case, and supposed a Scotch marriage
relearn-les case, it was ordered **titan, ' sentences coming into the English Ecclesiastical Courts, prov-
pronounced a alma It Mom there Aced" -a caution ing adultery, and clanningeadivorce a vincula marl-
-and.restraipit inserted, fbat thesPaetlei .shntild live ',wail. The answer would be, 44 We can'egrant. it
:eltastely.andatittifiently, and'not conemet tilauimony you." The'claimant would reply, 44 If we had been
with other persons) during each other's life, and that married in England you might refuse, but we were
the sentence should not be pronounced till the party married in Scotland.' Still the answer would be,
requiring it had given security to the Coon for not 14 Whatever remedy you may hyle in your own coun-
transgressing the said prohibitibn t and by Canon try, you can't claim it here." And upon the same-
-108, if any Judge giving sentence of divorce should principle the divorce was granted, when sought in.
not observe theliremise,,gie shall be suspended from Scotland ttpon an English marriage. Afteepursuing
the exercise of his office for One,yea4and ;the sentence this argument, he asked, as the English law recog.
dial be void: It was not neceseiry faiths Ltarned nited the conttatt of a Scotch "marriage, why it;
Counselto rely ittion the abitracrhatute of marriage, should except 'to acknowledge the dissolution or ter-
Mir Upon the decision of Archbishop Bancroft, mination ot that contract ? No one doubted that the
against all authority to dissolve the. vincylaw of mar- Contract was good here ; why was there any exception
rtage : sill he had to do was'to rest upon these canon' as to diet:menet in which its validity shouldterrninete?
as proving 'his propoiition, and it affording sufficient A-Upon the same principle, of giving effect to a fo.
grounds for aayiog that metrierhad nothing of the reign tottnery, the English law ought to say that the
essence of indhsofuhilty, since it cased to be Corsi- parties were no longer married, but had reverted to •
tiered as a sacrament. If that could have been relied thtir singleness. As these parties ceased, in the eye
upon, where was the use of publishing the 'canon of die Englidehtw,mbe single, only when the Scotch
and taking thelOnd for obeying it, Which was the law said they were married ; why did they sot ceese.
practice to this day / Re should, secondly, consider to be married when the Scotch law said they were
the numerous cases of dissolving marriage, by private again single ? Wasietio inconvenience or abseedity,
,bill in Parliament, in use at the present day. Ithat a man should be said to be single or married only
-Lord Eetseammuon—Do not the preambles asp, in rated, loci P—that when he was in one degree of
.those Acts rune-a whereas the parties cannot harem ',latitude,he should be free from the chains of anti-
relief bat by the authority of Parliament 1" ' mony ; and subject to its burthens, when in another ?
Mr. -BROUrilliAil assented. The preamble did not ' -1---that if he marries one foot to the right df'a certain
say e whereas Marriage is in hs nature indissoluble," line, he .should incur felony; and one foot tei the left,
or 66 whereas ao Court can -diS3oll"e it;" and the . should be performing a laudable and holy act t The
early cases went, not on the nature of the contract very definition of a man's rtatur was, the qualities
or the want of jurisdiction, bat on the impediment , which begonged to his person, natal ally inherent in or
which the cannot law threw in the way. He quoted . legally attached to him, and which travel about with
the speech of Bishop Coutins in the case of Lord ; him, wherever he goes. Was there nothing absurd
' Rous, 1G66; the arguments in Parliament, in the in saying, that this .tatty should not travel about with
Duke of Norfolk's case, 1699. 1700 t and the speech : lien, but that he should be eithet clothed with orstrip.
of Bishop 'Burnett, to Mother Case. If the contract ped of it. accordingly as he inhabited one part of the
were indissoluble, nrithis,Parliament nor any human ' kingdom or another ? Hence the principle which in-
law could dissolve its eattl I eh;s, like the right to bind duced one country to recognise the laws of another :
after-Parliaments, would be one of the cases in which i if there were no such thing as trading or travelling,
Parliament itself wooed heeled up. The thed con- it would be useless; and Courts of Justice would
sideration was the distinction between a contract not have nothing to do, but to ascertain how fir their
i iedissolublei end yet which there existed no jurisdic• geographical jurisdiction extended.
i ton to diuolve t and them were many wrongs for Lord Eet-Exaortoener.—lu China, if a man conii.
which there was no redress, and many righ s for dews his family too Large, he may drown one or more
which there -wits no temedy. He instanced debts iOl his children; do you mean to coMend that a Chi-
' lamed by the Statute of Limitations, which were nese may sately do that in the river Th ones ?
still legal rights, but the enforcing of which was Mr. Bnnuanari extended his principle to civil
estnpped. There was no ifection or statute, iiet es- cases only, not to criminal. If the present defendant
tepting the SW Hen. 8, since the Reformation, which had done what would be a criminal act in all coup.
made marriage an indissoluble cOntrace There were tries, the case eould be different ; but the present in-
various eases, in which a woman had relief Against dictment did not accuse him of felony in marrying
her husband. The operation of the canons iras B. but that being •already married to C. he had been
confined to dais country t other consistent taking the guilty of felony in marrying B. Then cattle the
same view of the marriage contract with England, question, whether he was married to C. at the time ?
had adopted means Of practically dissolving it.: the, In the case put by Lord Ellenboiough, the crithinal
nature and essence of the contract was the same both question was the principals and there was no civil
in England and Scotland; and the definition of mar!. I matter at all r here the civil question was the main,
riage by a Scotch writs! would precisely hold with our , and thew criminal incidental. He then proeeded *pun
views, o a conjunction of man and wife to eve insepa.i the subject of statutes to quote ; limber at conflirtu le-
rably till death." Just adore did not consider this con-1 as diverrarwa in diver it imitaiih in Iris Pralectioare
tract to prevent our separation a wait's, Moro, so the fur. Rom. b. I. 3,.tit. sect. 2.
. •
Scotch laws did not think it inconsistent with dissial. Lord Eeezesoitotron adverted tothe ease ilia.
vlng die wince/ens : one was as mach a separation as etersett the negro, in which the ka irci was held ht.,
the other : we held the contract bindidg as long as applicable to slavery, and that though it negro wool
-.. law does rot .separate us—ties, as long as -the I brought from a country in which he was legally
vinculum hold them together. In Scotland, adultery , a slave, yet he erased to be so the moment his
is punished as a high misdemeanor, sometimes capi- I master carried him into one 'where slavery was not
tally—incest, always capitally—and bigamy etinielo permitted ; and said that so, when Scotland was the
able likewise. He then quoted the case of Compton i defendant's resident country pro tnaisorr, the marriage
v. Bearcroft.. before the Delegates, (.fuller's Nisi + had been dissolved, but eve could not adopt that
Prius, 111), in which a Scotch marriage of English , eivorce as_paramount. The relation of parent and
subjects, the wife being under age, and running away child, his Lordship added, was universal ; but sup-
without the consent ot her guardian, WAS held good pose the authority of the old Roman law was given
here ; also the note 79 b. in Hargrave and Butler's by any country to a father over a child, were we to
Coke Litt.; and the case of Ilderton v. Ilderton. 2 abide by our own law, or adopt that in any instance?
Henry Blackstone, 145, in which itwas admitted at !
Mr. Blot:
.GHAM said, that that was exactly his con-
the bar, and assented to by the Bench, as an undeubt-
- - , :_ - _ tention in favour of general and not particular •
. .

.
ed proiosition, that a marriage celebrated in Scot. i - rights.
ord
land (if not between persons wni go thither for the .•
L ELLSNIOSOUtars—Here is a general induso-
purpose of evading the laws of England) will entitle lability.
Mr. BROVGPIAII.—in thecase put by his Lordship,
the woman to dower in England. The same prin. '
if the question were whether parent or not, we should
ciple was also recognized in the subsequent case of
be bound to decide the legitimacy by their law; and
Dalrymple v. Dalrymple, which gave real rights
here the question was whether married or not. The
over an English estate, by virtue of a marriage in
,relation of parent and child, and husband and wife;
Scotland. It suss, inCleed, absurd to suppose that .
the act of marriage could mean one thing in Scotland :must hold all over the world. In the nearest ease of
England—could be dissoluble' the stow to the present was one of Crawford sh Patrick,

tfrhich the Learned Counsel himself had the honour to
argue before the House of Lords, Session 1807-B.
It was a Scotch appeal, and the Chancellor decided
that the rastas was the same in whatever country.—
The marriage in that case took place in America,
where the English law prevails; and the question
was, whether a son should inherit estates in Scotland,
who was born before the marriage, but who would
nevertheless have been legitimate by the law of Scot..
land The Hoitse decided that the rtotw, or legiti.
of she son, referred to the country where he

waswas been, and not where he would have taken lands,
and he was therefore illegitimate. There the case of
the Chinese was put by Mt. Brougham; (who had
then to argue Ob that side,) as thatot a J.ipanese. •
Mr. Baron GHANA-M.—lt not a marriage, indisso-
luble here, indissoluble all the world over ?
1, • 'Mr. BROUGHAM contended, that it was not indisso-
Wile here ; and that the defendant had acquired the
4SeSse of singleness in Scotland. He quoted Calvin's
;coo, 7 Rep. to prove that degrees from a King to a
ILnight were universally recognised, of whatever
,country.
Lord EummettonsiitLia :Xing of Mawr/scar or
of Anarnabee, Ms Wegener R Om afraid the antho-
Irity will net with servliori-; bat it is in the book,
land you are not answafor it.'
3dr. Iktovonsu proceeded, that the relation of
iiikster and slave was not universal, but that of father
and son, of legitinurte and bastatd, of married and
'single, was so. He next contended, that the coin-
,persoc lemma in dui Scotch Court, acting in roe.
$4 not between. parties personally, was conclusive
41011111‘.11SIORRilMpeached • and was proceeding to
w. Henderson S Bon. and PdL
751% &c. •

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' eitOINYEL.L/GEAret.
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