Brook
v. Brook.
BEFORE
VICE-CHANCELLOR STUART AND MR. JUSTICE CRESSWELL.
Original Printed Version
(PDF)
Original
Citation: (1857-1858) 3 Sm & G 481
English
Reports Citation: 65 E.R. 746
Nov. 20,
21, 24, 25, Dec. 4, 1857; April 17, 1858.
Affirmed,
9 H. L. C. 193; 11 E. R. 703 (with note, to which add In re De Wilton [1900], 2
Ch. 488; In re Bozzelli [1902], 1 Ch. 753.
[481] Brook v. Brook. Before Vice-Chancellor Stuart and Mr. Justice
Cresswell. Nov. 20, 21, 24, 25, Dec. 4, 1857 ; April 17, 1858.
The law of the country in which a marriage is solemnised
cannot give validity to a marriage prohibited by the laws of the country of the
domicile and allegiance of the contracting parties.
Therefore, a marriage celebrated during a temporary
residence in Denmark between an English widower and the sister of his deceased
wife, being null and void by the stat. 5 & 6 Wm. 4, is not valid, although
by the law of Denmark marriages are permitted between persons so related by
affinity.
The principle of lex loci contrad'As examined as to various
qualifications and exceptions.
The question raised in this suit is the validity of a
marriage celebrated in 1850, according to the rites of the Lutheran church,
near Altona, in the Duchy of Holstein, in the kingdom of Denmark, between Mr.
William Leigh Brook, since deceased, and Miss Emily Armitage, the sister of his
deceased wife, both British subjects, domiciled in England.
On the 20th of May 1840, at Huddersfield, Mr. Wm. Leigh
Brook was married according to the rites and ceremonies of the Church of
England to Miss Charlotte
3SM.&GIFF.482. BBOOK V. BROOK 747
Armitage,
who died in the year 1847; by whom he had issue two children, namely, the
Plaintiff, Clara Jane Brook, and the Defendant, James William Brook, who are
both living.
On the 7th of June 1850 Wm. Leigh Brook was married at the
Lutheran church at Wandsbeck, in the Duchy of Holstein, in the kingdom of
Denmark, to Miss Emily Armitage, the sister of his deceased wife. Both the
parties were British subjects domiciled in England, and had no permanent
residence in the country where they were married. There were issue of Mr.
Brook's second marriage three children, viz., Charles Armitage Brook, since
deceased, Charlotte Amelia Brook and Sarah Helen Brook.
On the 17th of September 1855 the second wife died of
cholera at Frankfort, and on the 19th of the same month Mr. Brook himself died
of the same disease at [482] Cologne : but having previously to his death made
his will, which was as follows:- " I hereby revoke all former wills and
testaments that I may have heretofore made. I give and bequeath to my eldest
son, James William Brook, all that mansion-house, called Meltham Hall, with
gardener's house, ground and farmers' cottages and land adjacent to it; not to
include my mill property of any description. I give and bequeath to my said
son, James William Brook, to my daughter, Clara Jane Brook, to my reputed son,
Charles .Armitage Brook, commonly so called, to my reputed daughter, Charlotte
Amelia Brook, commonly so called, and to my reputed daughter, Sarah Helen
Brook, commonly so called, the rest of my property, share and share alike,
except that I give to my two sons aforesaid a double portion; (that is to say)
I give to my two sons two-sevenths each, and to my three daughters, one-seventh
each of the property hereby disposed of; the property of Meltham Hall being
already appropriated to my eldest son, with reversion to my second and reputed
son, Charles Armitage Brook, commonly so called, in event of my said eldest
son, James William Brook, dying during his minority, which I hereby will and
make; and further, in event of both my sons aforesaid dying before they attain
the age of 21 years, I then will that the property of Meltham Hall aforesaid be
realized at the discretion of my trustees hereinafter named, and the proceeds
divided into portions to be equally divided between the surviving sisters and
reputed sisters who shall attain the age of 21 years. I wish to be paid to the
Huddersfield Infirmary, free of legacy duty, the sum of 100. In order to carry
into effect the provisions of this my last will and testament, I appoint hereby
my brother, Charles Brook the younger, John Armitage and Edward Armitage, my
brothers-in-law, sole trustees, with full power to realize and to act with the
property I leave in all respects whatsoever as they shall think fit, in my said
five children's and reputed children's interest."
[483] On the 26th of December 1855 letters of administration
with the will annexed were granted out of the Exchequer and Prerogative Court
at York to Charles Brook the younger, John Armitage and Edward Armitage, being
the trustees named in the will.
On the 8th of March 1856 a bill was filed for the purpose of
establishing the will and administering the trusts, under the direction of the
Court.
On the 31st of the same month Charles Armitage Brook, the
son of the second' marriage, died, on which the suit abated. A bill of revivor
and supplement was shortly afterwards filed by his sisters and half-sister
against the eldest son, to which the Attorney-General was made a Defendant. The
bill charged that Charles Armitage Brook, the deceased infant, was well
entitled to the real and personal estate given to him by the testator's will,
and that all his real estate descended to his brother, the Defendant, as his
heir at law, and the personal estate to the Defendant and the Plaintiffs as his
next of kin.
The bill averred that the title of the Defendant, William
James Brook, to the real and personal estate of the deceased infant was denied
by the Attorney-General, on the part of the Crown, who alleged that the
marriage of the testator with his deceased wife's sister, Emily Armitage, was
not a valid marriage, and claimed the real and personal estate of the said
Charles Armitage Brook accordingly.
The bill charged that the marriage was a good and valid
marriage; and even if it was not valid according to the law of England, yet
that according to the laws of Denmark it was good and valid.
748 BROOK V. BROOK
3 SM. & GIFF. 4S4.
Under these circumstances a question was also raised as to
the amount of legacy duty and succession duty.
The Chief Clerk by his certificate, dated the 17th of June
1857, approved by the Vice-Chancellor on the 22d, certified to the facts as
stated above.
[484] The certificate also found that, according to the laws
of Denmark, the marriage was good and the children were legitimate.
The substance of the following affidavit was used before the
Chief Clerk :-
"I, Adolph Ulrick Hausen, of Wandsbeck, in the Duchy of
Holstein, in the kingdom of Denmark, Lutheran pastor, make oath, and say as
follows :-
"1. I am now and was during and prior to the year 1850
the pastor or minister of the Lutheran church at Wandsbeck aforesaid.
"2. On the 7th day of June, in the year 1850, I
performed the ceremony of marriage between William Leigh Brook, late of Meltham
Hall, near Huddersfield, in the county of York in England, and Emily Armitage,
late of Milnsbridge House, near Huddersfield aforesaid, single woman. The said
ceremony was duly performed and solemnized according to the rites and
ceremonies of the Luth'eran church, and according to the laws of the said
duchy.
" 3. Previously to my performing and celebrating the
said marriage, I caused to be produced to me the necessary certificates and
vouchers required by the law of the said duchy, and also investigated strictly
and satisfied myself that there was no legal obstacle to the said marriage, and
all the necessary provisions and requisitions were duly fulfilled and performed
on the occasion of such marriage, in accordance with the laws of the said
duchy.
" 4. In my capacity as such minister as aforesaid, I
have had occasion to study and I have studied, and am well acquainted with the
laws relating to marriage in force in the said duchy; I say that the said
marriage was legal and valid according to the laws of the said duchy,
notwithstanding the said Emily Armitage being the sister of the previously
deceased wife of the said William Leigh Brook, and notwithÁstanding that in
England a man is not permitted to marry the sister of his deceased wife, and
the [485] children born of such a marriage would be recognised as legitimate,
in and by the Courts of law of the said Duchy of Holstein."
Sir F. Kelly, Mr. Malins and Mr. G-eorge Lake Eussell, for
the Plaintiffs, the three daughters of the testator, William Leigh Brook.
The religious and social considerations involved in and
connected with the policy of such marriages as that in question are very
important. There are persons who hold that they are expressly or inferentially
warranted by Scripture, and that they tend to a great amount of social good;
while others believe that they are contrary to the divine law, and inconsistent
with Christianity. The arguments applicable to that part of the question,
however important, need not be referred to on the present occasion.
The question involved in the present inquiry ought to be
strictly confined to ascertain the true construction of the Act 5 & 6 Wm.
4, c. 54, on which the decision in this case must depend.
It is a general rule in the laws of all countries that leges
extra territoriam nan dbligant. The question is whether the Act rendered such
marriages unlawful only when solemnized in England, or whether it rendered them
unlawful also when solemnized in the colonies, or even in foreign countries.
Wherever a statute for the first time prohibits or makes any
act unlawful, such statute cannot, without express words or necessary
intendment to that effect, have operation out of Great Britain. This is a rule
well recognised in the construction of statutes.
The Sussex Peerage case (11 Cl. & Fin. 85) will occur to
the Court in which it was held that the enactments of the Eoyal Marriage Act
were personal, following the individual and [486] binding him everywhere, and
it may possibly be inferred that the. Act of William 4 has a similar construction;
but the effect attributed to the Eoyal Marriage Act arose partly from the
policy of that Act, but more especially from the construction to be put on the
peculiar wording of that Act. If it had been intended that the Act 5 & 6
Wm. 4, c. 54, should also be personal and attach to the persons of all
Englishmen wheresoever they might solemnize marriage, whether in or
3SM. &GIFF. 487. BROOK V. BROOK 749
out of
England, why did not the Legislature, with the precedent of the Royal Marriage
Act before it, use similar language? The difference between the two enactments
is remarkable.(l)
[487] It is conceded on the part of the Plaintiffs that an
Act of Parliament may be so expressed as to operate on all Englishmen
everywhere; but, unless it be so expressed, its operation must be confined
within the realm of England. The distinction between the language of the two
Acts formed the ground of the judgment of the Judges in the Sussex Peerage
case, as delivered by Lord Chief Justice Tindal. (11 01. & F. 85, 102.) The
question here raised was adverted to in the following terms by Mr. Justice
Erie, who was counsel for the claimant in that case :-
"And it is yet doubtful whether the 5th & 6th Wm.
4, c. 54, prohibiting all marriages of persons within certain degrees of
relationship, and declaring such marriages absolutely null and void, would
apply to such marriages contracted by British subjects out of the realm of
England." (11 01. & F. 137.)
On which Lord Lyndhurst. who was then Lord Chancellor,
remarked :-
" With respect to the statute just mentioned, I wish to
observe that I am supposed to have brought in a bill to prohibit a man from
marrying his former wife's sister. I did no such thing. The statute simply says
that such a marriage shall be void, not voidable. The statute was passed merely
for the purpose of getting rid of the doubt which might for years leave two
parties and their children in the belief that a valid marriage had taken place,
subject, [488] in fact, to have that marriage declared void by a suit instituted
just before the death of one of the parties." (11 01. & F. 137.)
What Lord Lyndhurst then said clearly shewed that he
intended to leave the law applicable to such a case as the present as he found
it.
(1) The words of the 12 Geo. 3, c. 11 (the Royal Marriage
Act), are as follows :-
I. " That no descendant of the body of His late
Majesty, King George the Second, 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."
And the Act contains a third section, imposing penalties on
persons assisting at any such marriage without such consent.
By the 5 & 6 Wm. 4, c. 54 (1835), it is recited as
follows :-
" Whereas marriages between persons within the
prohibited degrees are voidable only by sentence of the Ecclesiastical Court,
pronounced during the lifetime of both the parties thereto, and it is
unreasonable that the state and condition of the children of marriage between
persons within the prohibited degrees of affinity, should remain unsettled
during so long a period, and it is fitting that all marriages which may here-/
after be celebrated between persons within the prohibited degrees of
consanguinity or affinity, should be ipso fa-do void, and not merely
voidable;" and it is enacted as follows :-
I. " That all marriages which shall have been
celebrated before the passing of this
Act, between persons being within the prohibited degrees of
affinity, shall not hereÁ
after be annulled for that cause by any sentence of the
Ecclesiastical Court, unless
pronounced in a suit which shall be depending at the time of
the passing of this Act;
Provided, that nothing hereinbefore enacted shall affect
marriages between persons
being within the prohibited degrees of consanguinity.
II. "That
all marriages which shall
hereafter be celebrated
between persons
within the prohibited degrees of consanguinity or affinity
shall be absolutely null and
void, to all intents and purposes whatsoever."
III. " Provided always that nothing in this Act shall
be construed to extend to
that part of the United Kingdoms called Scotland."
750 BROOK V. BROOK
3 SM. & GIFT. 489.
Then would such a marriage as that in question have been
held before the Act of William 4, to have been invalid in England, if
celebrated abroad 1 Clearly not.
There is no instance of any marriage which had been
solemnized abroad, and which was valid according to the law of the place in
which it was solemnized, having been declared to be invalid by any Court in
this country. This marriage being valid by the law of Holstein would, without
doubt, have been upheld in this country before the Act of William 4; but that
Act contained nothing to invalidate such a marriage, and it was not the
intention of the framer that it should do so. In Sutler v. Freeman (Amb. 301),
which was before Lord Hardwicke in 1756, the Plaintiff, at the age of 18, had
been seduced away from a clergyman in Buckinghamshire, with whom he had been
placed for education by one Medwin, a shopkeeper in Mariow, and Mary Dolben,
his wife's sister, a woman without any fortune, and they all went to Antwerp,
where the Plaintiff and Mary Dolben were married according to the rites and
ceremonies of the Church of England. Lord Hardwicke said, "As to such
marriages (I was going to call it robbery) there is a door open in the statute
(i.e., the Marriage Act of George 2), as to marriages beyond seas and in
Scotland," and further on in his judgment Lord Hardwicke admitted the
principle now contended for on behalf of the Plaintiffs, for he said the
marriage of the Plaintiff would be good in England if it were good in the
country where it was celebrated. So also in Compton v. [489] Bearcroft
(Buller's Nisi Prius, 114) the Appellant and Eespondent were both English
subjects, and the Appellant, being under age, ran away without the consent of
her guardian, and was married in Scotland. On a suit brought in the Spiritual
Court to annul the marriage it was held that the marriage was good.
It is decided by authority that a foreign marriage, valid
according to the law of the place where celebrated, would be good in England.
This principle is expressly recognised by Lord Stowell in Ruding v. Smith (2
Hagg. Consist. Eep. 371). In the recent case of Fenton v. Livingstone (18
Fraser;, S. C. Court of Session Case (1855) 865), before the Scotch Courts, the
marriage of a man with his deceased wife's sister was upheld, and if this Court
should now come to a contrary decision the anomaly would exist of such a
marriage being lawful in Scotland, but unlawful in England or Ireland.
In a case of this kind, where a statute makes an act
unlawful, it is necessary that the provisions of the enactment should be
express in order that they should attach to British subjects elsewhere than in
England, Wales or Ireland. In the Sussex Peerage case Lord Brougham held that
the marriage of the Duke of Sussex was void, expressly because he thought the
words of the Eoyal Marriage Act, 12 Geo. 3, c. 11, were clear, and he added
that he thought it was necessary they should be clear in order .that they might
accomplish the object of that Act. "I say this," said his Lordship in
that case (11 Cl. & F. 151), "because it is not sufficient ground to
hold that the purpose is clear unless the words are sufficient to accomplish
that purpose ; otherwise the Act might have been nugatory. It was so in the
case of the General Marriage Act (26 Geo. 2, c. 33). 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
Scot-[490]-land, a very short journey, the parties intended to' be affected by
the Act-namely, wealthy persons--could easily accomplish the purpose and defeat
the Act. My opinion is that, if the Act had used the same phraseology, and had
rendered the parties incapable of conÁtracting matrimony, we should never have
heard of Crompton v. Bearcroft (Buller's Nisi Prius, 114) and Ildertm v.
Ildertm (2 H. Bl. 145)."
If, then, the language of the Eoyal Marriage Act had not
been larger and more comprehensive than that of the Marriage Act, 26 Geo. 2, c.
33, the former Act would, in Lord Brougham's opinion, have failed of its effect
in the Sussex Peerage case.
It is no answer to the argument on behalf of the Plaintiffs,
to say that if this marriage were upheld by declaring the children legitimate,
the Act of William 4 would be easily evaded; because the Marriage Act of George
2 had been evaded as easily by parties going to Scotland.
Even assuming that it was the intention of the Legislature
to prohibit marriages of this description by Englishmen, wheresoever
solemnized, they have endeavoured to accomplish their purpose by language so
imperfect that opinions have been given
3 SM. & GIFT. 491. BROOK V. BROOK 751
by most
eminent and experienced counsel that the Act does not apply out of England or
Ireland, and that when a widower goes abroad, as the testator, Mr. Brook, has
done, and marries a deceased wife's sister in a place where such marriage by
the lex loci is good, such marriage must be upheld in this country, and the
legitimacy of the issue cannot for a moment be questioned.
In considering this case it should also be borne in mind
that it is one of affinity, and not of consanguinity, between which jurists
have always drawn a marked distinction.
Mr. Justice Story, in his Conflict of Laws (s. 115, p. 206),
says:-[491] "The prohibition has also been extended in England to the
marriages between a man and the sister of his former deceased wife, but upon
grounds of scriptural authority it has been thought very difficult to affirm.
In many, and indeed in most of the American States, a different rule prevails,
and marriages between a man and the sister of his former deceased wife are not
only deemed in a civil sense lawful, but are deemed in a moral, religious and
Christian sense lawful and exceedingly praiseÁworthy. In some of the States the
English rule is adopted. Upon the Continent of Europe most of the Protestant
countries adopt the doctrine that such marriages are lawful."
The best construction of the Act is that it does not create
any personal disability on.the part of Englishmen, wheresoever they may be
abroad, to contract such-marriages as that the validity of which is now
disputed, but that its operation is confined strictly to marriages celebrated in
England, Wales or Ireland.
In the consideration of the question now before the Court it
should be rememÁbered that the Plaintiffs do not ask the Court to recognise the
marriage of Mr. Brook with his second wife as between the parties to that
marriage, and that the present is not a case for the restitution of conjugal
rights; but that it is a ease in which the status and legitimacy of the
children of that marriage are called in question after the death of their
parents.
But for the Act of William 4 the question in this ease could
not have arisen. Even if the marriage had taken place in England the question
after the death of the parents could not have been raised before the passing of
that Act: Scrimshire v. Scrimshire (2 Hagg. Consist. E. 395); Dalrymple v. Dalrymple
(Ib. 54); and other cases support the proposition laid down by Lord Stowell in
Ruding v. Smith (Ib. 371), in the following terms:-˜" It is true, indeed,
that English deci-[492]:sions have established this rule, that a foreign
marriage, valid according to the law of the place where celebrated, is good
everywhere else."
There is no case in which a marriage which was good by the
law of the country in which it was celebrated has been held by the Courts in
England to be invalid.
If then it can be shewn, as it has been in this case by the
certificate of the Chief Clerk, that the marriage was good where it was had,
that is enough.
The reason of that rule has been very well enunciated by the
late Mr. Justice Story (Conflict of Laws, s. 121), as follows:-"Theground,
however, upon which the general rule of the validity of marriages according to
the lex loci contractus is mainÁtained, is easily vindicated. It cannot be
better expressed than in the language of Sir Edward Simpson, already cited. All
civilised nations allow marriage contracts. They are juris gentium, and the
subjects of all nations are equally concerned in them. Infinite mischief and
confusion must necessarily arise to the subjects of all nations with respect to
legitimacy, succession and other rights, if the respective laws of different
countries are only to be observed as to marriages contracted by the subject of
these countries abroad ; and therefore all nations have consented, or are
presumed to consent, for the common benefit and advantage, that such marriages
shall be good or not, according to the laws of the country where they are
celebrated. By observing this rule few, if any, inconveniences can arise; by
disregarding it infinite mischief must ensue. Suppose, for instance, a marriage
celebrated in France according to the law of that country should be held void
in England, what would be the conseÁquences 1 Each party might marry anew in
the other country. In one country the issue would be deemed legitimate, in the
other illegitimate. The French wife would in France beheld the [493]'only wife,
and entitled as such to all the rights of property appertaining to that
relation. In England the English wife would hold the
752 BROOK V.
BROOK 3 SM. & GIFT. 494.
same
exclusive rights and character. What, then, would be the confusion in regard to
the personal status of the parties, in its own nature transitory, passing
alternately from one country to the other 1 Suppose there should be issue of
both marriages, and then all the parties should become domiciled in England or
France, what confusion of rights, what embarrassments of personal and conjugal
relations must necessarily be created !"
It must be admitted that incest forms an exception to the
rule laid down by Lord Stowell in Euding v. Smith; but such a marriage as that
in question is clearly not considered incestuous by the greater portion of
Christendom. In the Papal States a valid dispensation can be, and frequently
is, granted, which enables parties to solemnize it, and it cannot be presumed
that the Pope would grant a dispensation for the commission of incest.
[MR. justice cresswell. If these marriages were not voidable
before the statute of William 4, on the ground of incest, on what ground were
they voidable 1 ]
They were clearly not voidable on the ground of incest; for,
as the Act of William 4 rendered valid all marriages of that nature which had
been celebrated before the passing of the Act, that Act would have the effect
of having rendered vaKd incestuous marriages, if such marriages had been
previously voidable on the ground of incest. If they were before voidable as
being incestuous, the Legislature has said that such marriages theretofore
celebrated should be valid, and has thereby sanctioned incestuous
marriages-which cannot be presumed.
If the Legislature had intended to create a personal
incapacity on the part of Englishmen, wheresoever they [494] might be, it would
have used words large enough for that purpose. On referring to other Acts,
which are in pan materid, different and more comprehensive language is.used
than that to be found in the 5th & 6th Wm. 4, c. 54. That is the case with
the Marriage Act, 25 Hen. 8, c. 22, which in the 4th section enacted, "
That no person or persons, subjects or resiants of this realm, or in any of our
dominions, of what estate, degree, or dignity soever they be," should
hereafter marry within certain degrees of relationship. In two Irish Marriage
Acts, the one the 4th Wm. 3, c. 3, and the other the 2d Anne, c. 6, as well as
in the Royal Marriage Act, 12 Geo. 3, c. 11, equally comprehensive language is
used. Can it be said that the absence of language equally comprehensive from
the statute of William 4 was unintentional, when it is found that wherever the
Legislature wished to give effect to an intention personally to bind its
subjects everywhere it could find language to express such intention ?
Mr. Elmsley, Mr. Cleasby (of the Common Law Bar) and Mr.
Pemberton, for the Defendants, Charles Brook the younger, John Armitage and
Edward Armitage, the trustees under the will of the testator, and James William
Brook, the eldest son and heir at law, in support of the Plaintiff's case.
The rule laid down by Lord Stowell, in Dalrymple v.
Dalrymple (2 Hagg. Consist. Rep. 54), that in questions of the validity or
invalidity of marriages the lex loci contractus must prevail, is the rule which
must prevail in this Court, unless the 5th & 6th Wm. 4, c. 54, has changed
that rule; but it has been already shewn that no such effect can be attributed
to that Act.
But whatever and however comprehensive an effect is
attributed to that Act as an inference, another principle of law applies to it,
countervailing the effect which might possibly otherwise be attributable to the
enactment. It is [495] this, that by the comity of nations this Court is bound
to respect the law of a foreign State; and where the law of that State gives
validity to a marriage contracted within its limits between subjects of this
country whilst sojourning there, then the law of this country must recognise
such a marriage when the contracting parties shall have come back to this
country. (See Huber, " Prselectiones Juris Civilis," " De
Conflictu Legum," b. i., tit. 3, ss. 3, 8, d al. (ed. 1766).)
But the rights of the Legislature are ordinarily limited to
its own subjects only whilst they are resident within its local jurisdiction.
Thus, in Jeffreys v. Boosey (4 Ho. Lds. Cases, 815, 926, 939), on a question of
copyright involving international rights, Mr. Baron Parke said, "It is
clear that the Legislature has no power over any persons except its own
subjects, that is, persons natural-born subjects or resident, or whilst they
are within the limits of the kingdom." Chief Baron Pollock in the same
case used similar language.
3SM.&GIFF. 496. BROOK V. BROOK 753
In Arnold v. Arnold (2 My. & Cr. 256-270), above cited,
Lord Cottenham said, " All the cases bring the rule to this, that where
you find in enactments general words which may be applicable to all places,
they are so construed as to be limited by the Courts territorially; and this
principle must be as applicable to the Marriage Act of William 4 as to the
other Acts which the Courts have so limited.
The difficulty as to the word "all," which occurs
in 5 & 6 Wm, 4, c. 54, occurred in Arnold v. Arnold, and it must be met in
the same way.
The Commissioners appointed to inquire into the state and
law of marriage make some very important remarks on this subject. After
referring to the case of Eegina v. Chadwick (11 Q. B. 173), in which the Court
convicted the prisoner for marrying his deceased wife's sister, the
Commissioners state that many questions of great difficulty in relation to such
marriages had been [496] submitted to the consideration of eminent counsel, but
had not received any judicial decision, and as one of such questions they state
the question whether a marriage bond abroad between two English subjects within
the prohibited degrees of affinity would be held null and void by the tribunals
in England, if it were legal by the law of the country where it was solemnized,
and whether a bond fide domicil would make any distinction. The ComÁmissioners
find from the evidence before them that marriages of this kind are perÁmitted
by dispensation or otherwise in nearly all the continental States of Europe,
and that in particular all the Protestant States of Europe, with the exception
of some of the cantons of Switzerland, permit these marriages to be solemnized
by dispensaÁtion or licence under ecclesiastical or civil authority.
From the same report it appears that these marriages are
allowed by dispensation from the Pope, that although in the Greek church such
marriages are held to be unlawful, and that there is no dispensation, yet, that
where in Eussia such marriages are solemnized between persons not in the Greek
communion, they are not invalidated by the law of the State-that the Jews hold
that the Scripture does not invalidate such unions, and that the various bodies
of Dissenters in England do not entertain the opinion that these marriages are
invalidated by Holy Writ, and that although the majority of the clergy of the
Church of England object to such marriages, yet very many of them do not
consider these marriages to be prohibited by the law of God.(l)
The learned labours of these Commissioners, including one
bishop, two Judges and learned counsel, prove that the marriage with a deceased
wife's sister is not incest, according to the acceptation of the term
throughout Christendom, but that it is entirely distinguishable from [497]
incest from consanguinity ; and that the prohibiÁtion is a mere human
ordinance-a matter of ecclesiastical discipline to be imposed or relaxed as
circumstances should render it expedientj and that therefore there is no reason
why the laws of this country should not, according to the comity of nations,
recognise the law of Holstein.
The opinion of Lord Meadowbank, cited in Story's Conflict of
Laws (sec. 97), and the arguments of Mr. Justice Story (sees. 100-103), and the
cases of Conway v. Beasley (3 Hag. Ecc. E. 639), Rex v. Lolley (1 Euss. &
Ey. Cr. C. 236), and the American case of Greenwood v. Curtis (6 Mass. E. 378),
lead to the same conclusion.
Much confusion has arisen from the use of the word incest,
as applicable to these marriages. That is owing to the poverty of our language,
in which incest by conÁsanguinity and incest by affinity are designated by the
same word, when all mankind draw a broad distinction between the two. But it
might be asked, does the English law recognise the distinction between incest
of affinity and incest of consanguinity1? The very Act before the Court draws
that distinction, for it confirms the marriage of all persons under the
prohibited degree of affinity, which it doe's not confirm as to persons within
the prohibited degrees of consanguinity.
But referring especially to the recital in the Act of
William 4 in the following words:-" Whereas marriages tween persons within
the prohibited degrees are voidÁable only by sentence of the Ecclesiastical
Court pronounced during the lifetime of both the parties thereto, and it is
unreasonable that the state and condition of the children of marriages between
persons within the prohibited degrees of affinity should
(1) See First Eepprt of the Commissioners (1848) pp. vi. and
vii. in the Eeports from Commissioners, 1847, 1848.
754 BROOK V. BROOK
3 SM. & GIFF. 498.
remain
unsettled during so long a period ; and it is fitting that all marriages which
may here-[498]-after be celebrated between persons within the prohibited
degrees of consanguinity or affinity, should be ipso facto void, and not merely
voidable;" it is clear that this recital must be taken to be the measure
of the extent of the Act, and that it is confined to marriages which were then
voidable by the ecclesiastical law, and it is submitted that those marriages
could only be the marriages solemnized within the jurisdiction of the
Ecclesiastical Courts, and such a marriage as the present is not within the
jurisdiction. Munro v. Munro (I Rob. R. Ho. Lds. 493), and Birtwhistle v.
Fardill (5 B. & Cr. 488; S. C. on appeal, 2 CL & F. 571).
They referred to the 20th section of Story's Conflict of
Laws, reading at length the quotations from Voet and Boullenois therein; and
they illustrated the present question by reference to the usury laws and the
Statute of Frauds, reading thereon Story on the Conflict of Laws, ss. 262 and
291.
They also referred to The Attorney-General v. Forbes (2 Cl.
& F. 48) and Thompson v. The Advocate-General (13 Sim. 153; S. C. on
appeal, 12 Cl. & F. 1).
the attorney-general [Sir R. Bethell], the solicitor-general
[Sir H. S. Keating] and Mr. Wiekens, for the Crown.
It is satisfactory that a determination will be at last come
to upon the present question, which will put an end to that doubt, anxiety and
suffering which must be the result of the delusive anticipation which has led
many persons to rely on the validity of such marriages as that which is now in
question in this cause.
The Court is here called upon to recognise as valid a
marriage which is plainly, according to the laws of this country, absolutely
void. It is not a marriage of persons who were domiciled in Holstein, but it is
a marriage in that duchy of British subjects domiciled in England who resorted
to Holstein for the particular purpose of evading the laws of this country..
[499] It is evident that one of the parties who contracted
the marriage had no faith in its validity or legality, according to the laws of
England, for in his will the testator speaks of the children of his second
marriage as his " reputed children."
The propositions contended for on behalf of the Plaintiffs
are-first, that the statute of the 5th & 6th Wm. 4, c. 54, has no
application to marriages celebrated out of England or Ireland; and, secondly,
that the law of England is bound to accept the lex loci contractds, and to
receive from that law the determination of the validity of the marriage and the
consequences of the marriage.
The propositions contended for on behalf of the Crown
are-first, that the Act of 5 & 6 Wm. 4, s. 54, is a law of universal
acceptation, speaking to and binding all British subjects resident within
England or Ireland; secondly, that it is a personal statute, creating a
personal disability, which attaches on every natural-born British subject in
England or Ireland, and follows him everywhere, on the subject of the contract
of marriage; and, thirdly, that being one of our established laws, we are not
bound to accept the rule of the lex loci contracts, at least without
qualification.
The passages read on behalf of the Plaintiffs from the late
Mr. Justice Story's book on the Conflict of Laws amount to this, that no State
has power to call on a foreign country to recognise within that foreign country
its own peculiar laws and institutions. But that proposition leaves untouched
the other proposition, that every State has a right to make laws for its own
subjects, which shall be binding on them everywhere, save this only, that the
subjects may not set up their own native law in opposition to the law of the
country in which they may happen to be resident; but yet that the duty of
obedience on the part of the subject will attach to him on his return to his
native country.
It is idle for the Plaintiffs to rely on the lex loci
contractus, unless they can shew that the Courts of law in [500] Denmark have
declared this marriage legal, after solemn argument, and with full information
before them of the personal disqualificaÁtion with which by the law of England
the contracting parties had been branded and impressed, and that they had
resorted to Wandsbeck non animo morandi, sed animo revertendi, and for the
avowed and declared object of evading an express enactment of the Legislature
of this country, which declared this marriage to be void.
It must first be shewn that the Courts of the foreign
country have had their attention drawn to the particular circumstances of the
case, and that, notwithstand-
3 SM. & GEFF. 501. BROOK V. BROOK 755
ing
these circumstances, they have held the marriage valid; but until that is shewn
it is idle to talk of or to rely on the lex loci contract-As.
Jurists have divided statutes into two classes, real and
personal. Personal statutes, Mr. Justice Story says, s. 13, are. held to be of
general obligation and force everywhere ; but real statutes are held to have no
extra-territorial force or obligation. "Personal statutes (says Merlin,
cited in Story's Conflict of Laws (sec. 13)) are those which have principally
for their object the person, and treat only of property (biens) incidentally
(aceessoirement) ; such are those which regard birth, legitimacy, freedom, the
right of instituting suits, majority as to age, incapacity to contract, to make
a will, &c. Eeal statutes are those which have principally for their object
property (biens), and which do not speak of persons except in relation to
property; such are those which concern the disposition which one may make of
his property, either while he is living or by testament." ,
In a passage from the works of the celebrated French
Chancellor D'Aguesseau, cited in the same work (Story's Conflict of Laws, s.
14, n.), it is said that the test of a statute being personal is its being
"directed towards the person, to provide in general for his
qualifications, or his general absolute capacity; as when [501] it relates to
the qualities of major or minor, of father or son, of legitimate or
illegitimate, of ability or inability to contract, by'reason of personal
causes;" and Ibid. (sec. 16), " by the personality of laws foreign
jurists generally mean all laws which concern the condition, state and capacity
of persons; by the reality of laws, all laws which concern property or things,
quce ad rein spedant. Whenever they wish to express that the operation of a law
is universal they compendiously announce that it is a personal statute; and
whenever, on the other hand, they wish to express that its operation is
confined to the country of its origin they simply declare it to be a real
statute."
Now, the statute of the 5th & 6th Wm. .4, e. 54, clearly
falls, within the definition of a personal statute, and, as such, it must be
held on the authority of jurists to be binding. The jus gentium called on the
Courts of Denmark to recognise that Act of Parliament as personal, and on the
ground of comity to admit the inability or disÁability of the contracting parties.
If then, after that, Denmark chose to admit the marriage, it was not incumbent
on this country also to recognise it.
With reference to parties escaping the provisions of the
Marriage Act, 26 Greo. 2, c. 33, by going to Scotland, it should be borne in
mind that that Act expressly excepted Scotland from its provisions.
The lex loci contract^ applies only to the solemnities
attending the celebration of marriage, and it does not prevail where either of
the contracting parties is under a legal disability by the law of the domicil.
In the case of Conway v. Beasley (3 Hagg. Ecc. Kep. 639) a second marriage had
in England, on a Scotch divorce (a vinculo) from an English marriage between
parties domiciled in England at the time of such marriage and divorce, was
declared to be null. But Mr. Justice Story, who is so entirely relied on on
behalf of the [502] Plaintiffs, has put the very case that has here arisen.
"Suppose," says Story (sec. 116), "a case of a marriage,
incestuous by the law of the country where the parties are born or are bond
fide domiciled, and without changing their domicil for the purpose of evading
that law they go to a foreign country where a different rule prevails, and the
marriage which would not be incestuous by its laws is there celebrated, and the
parties afterwards return to their own country-ought such a marriage .to be
held valid in such country ?" Huberus has put the very case, and held that
it ought not to be there held valid, and the late Mr. Burge, in his
Commentaries on Colonial and Foreign Law (part 1, c. 5, s. 1, p. 147), comes to
the same conclusion.
The law which prohibits persons related to each other in a
certain degree from intermarrying, and declares their intermarriage to be null,
imposes on them a personal incapacity quoad that act, and that incapacity must
continue to affect them . so long as they retain their domieil in the country
in which that law prevails. The resort to another country where there was no
such prohibitory law, for the mere purpose of evading the law of their own
country, and with the intention of returning thither when their marriage had
taken place, could not be considered a change of their former domicil or the
acquisition of a domieil in the country to which they had
756 BROOK V.
BftOOK 3 SM. & GIFF. 503.
resorted. They must therefore fee
regarded as still subject to the personal incapacity imposed by the law of
their real domicil.
Now, the question is, ought this Court to disregard all the
principles of English jurisprudence, which condemn marriages of this
description and give place to a foreign law 1 It has been said to be a question
relating to the comity of nations, and it has been sought to give to the law of
Holstein an extra-territorial effect, and a power of abrogating our laws. But
the question is whether the comitas gentium could require that the law of this
country [503] should give place to a foreign law, and should abrogate its own
enactment in favour of the latter. But the English law has moreover condemned
these marriages as incestuous, and as forbidden by the highest religious
considerations; and is it to'be said that when such marriages are declared by
this country to be contrary to God's law that we are to favour the
latitudinarianism of other countries 1 ,
Let the case be put of the Divorce Act of last session
having forbidden the guilty parties after a divorce to marry, could it have
been contended that the Act might be evaded, as it was now contended the Act of
1835 might be evaded, by their going abroad, and there marrying 1
The third maxim of Huberus (Praelee. P. 2, Lib. 1, tit. 3,
De Conflictu Legum, ss. 2, 3, 8, et seq. p. 538), on the comity of nations, is
applicable to this subject. " That the rulers of every empire from comity
admit that the laws of every people in force within its own limits ought to
have the same force everywhere, so far as they do not prejudice the powers or
rights of other Governments or of their citizens."
By the comitas gentium, then, a foreign country is bound to
take the rule of its own law on this subject as applicable to its own domiciled
subjects.
The Act of 5 & 6 Wm. 4, c. 54, is per se conclusive on
the subject, as comprehendÁing all marriages of British subjects domiciled in
England and Ireland, wheresoever solemnized; it is a personal statute, creating
a personal disability, attending the subjects who owe it obedience everywhere,
and rendering them incapable of entering into a contract such as that now in
question. The allegation of the lex loci contrackhs ,is insufficient, and it is
impossible to yield to that rule as conclusive unless it be shewn that the
foreign country knew of the statute of 1835, and proceeded nevertheless
according to its own jurisprudence to pronounce the marriage valid.
. The rule is laid down in Warrender v. Warrender (2 Cl.
& F. 488 ; 9 Bligh's New Eeports, 89), [504] "that if two parties
domiciled in one country go to another country and there marry, and then return
to the former country, the consequences of the marriage will be determined
according to the law of the domicil." This marriage, therefore, solemnized
as it was abroad, was solemnized with reference to the matriÁmonial domicil of
the parties-viz., England; and therefore its effects and conseÁquences, and its
operation on the issue of the marriage as to whether they are legitimate or
not, are to be determined by the law of the matrimonial domicil. The argument
which has been derived on the other side from the rule of the lex loci
contradus is fallacious. The true meaning of that rule is that it governs only
the solemnities and the other modes of celebrating the marriage, and it assumes
the ability of persons to contract, and, by the comity of nations, supposing
that the marriage was valid in every respect and in all its consequences, by
the lex loci contradtis it remains valid in that country only, and has no claim
nor any title to acceptation in, ours ; because such acceptation could be
attained by no other means than abrogating and annulling principles which are
binding on all Courts of English Judicature.
Great stress has been laid in support of the marriage on the
construction of the statute, and it has been argued that the statute is
territorial and not personal, because it does not contain a personal
prohibition of marriage such as the Royal Marriage Act contains, as well as a
clause declaring that all marriages within the prohibited degrees shall be
void-a clause similar in terms to that contained in the Royal Marriage Act; but
there can be no doubt that the Judges would have come to the same conclusion on
the Royal Marriage Act as that to which they arrived, if the first, the
personal clause, had not been contained in it.
Questions have been raised as to the meaning of prohibited
degrees of affinity in the statute of 1835. What [505] those words meant has
been determined judicially
3 SM, & GOT. 506. BROOK V. BROOK 757
in
Regina v. Ghadwick (11 Q. B. 173). The Court has there defined prohibited
degrees to mean degrees prohibited by God's laws, of which incest is one ; and
the marriage with a deceased wife's sister is incest. . .
Reference has been made to enactments as to slavery, taxes
and copyright; but it is enough to say, as to these topics, that they are not
in pan materia.
Eeference has also been made to a number of decisions on
Lord Hardwicke's Marriage Act; but those cases do not apply, because there was
in that Act a clause expressly limiting its operation, and declaring that it
should not apply to foreign parts, or to Scotland.
Fenton v.,Livingstone has been, relied on as a case similar
to the present in support of the legitimacy of the deceased infant in this
case; but in that case the child had had a status of legitimacy-the child in
this case has always the status of illegitimacy.
The law as laid down by Mr. Justice Story was laid down by him
under the peculiar circumstances of the American States. His attention was
mainly directed to the rights and obligations of those States inter se. Now,
the connexion of those States is not international, but municipal, creating a
much more intimate connexion, and involving a greater degree of respect by the
different States for the laws of the other States. This consideration will
explain how it is that Mr. Justice Story expressed himself with some degree of
ineaution, and in a way which the authorities, he cites do not authorize.
Sir Fitzroy Kelly, in reply. The case of Regina v. Ghadwick
(Ibid.) has been
much relied on on behalf of the Crown, as shewing that,
according to the law
of this country, the marriage of a widower with his deceased
wife's [506] sister is.
incest. This Court is not asked to overrule the decision in
that case, but I do not
hesitate to say that, if I should ever have occasion to
argue this question before the-
highest tribunal- in the country, I should feel it my duty
and I should not scruple to-
arraign that decision as being erroneous. '
The statute of ,32 Hen. 8 has enacted that no marriages
should be invalid except those that are contrary to God's laws. The enactment
now particularly under discussion of the 5 & 6 Wm. 4, c. 54, declares
marriages between persons within the-prohibited degrees void, and, in order to
determine what are prohibited degrees, they take the interpretation of a
statute of Henry 8, repealed at the time ; whilst that decision left untouched
the moral, the social and general questions, which are involved in the statute,
which is of a penal nature.
But the decision in Regina v. Chadwick is confined in its
doctrine to the validity of a marriage with a deceased wife's sister solemnized
in this country, and it leaves, entirely untouched the question now before the
Court.
After all the argument on the part of the Crown no case has
been adduced, and there is no case in which a marriage like the present,
celebrated in a foreign country,, is not held to be valid here, except only the
decision in the Sussex Peerage case ; and when the number of marriages open to
be impeached is considered, the absence of any decision is remarkable.
There is indeed that one exception-an exception much relied
upon in the arguÁment against the validity of this marriage-the Sussex Peerage
case-but that case is entirely distinguishable from the present. There the
prohibition was personal, confined to a small number of persons, the enactment
being for high State purposes.. The decision of that case, independent of these
considerations, was come to on the construction of the express language of the
statute, which prohibited certain persons, including [507] the Duke of
Sussex-as if he had been expressly named-from contracting matrimony without the
previous consent of the Crown. That was as-much a personal statute as the
statute which declares that the sovereign shall be of age at the age of 18. To
hold that a statute so expressly binding on the individual could be evaded by
him, by merely crossing the Channel, would be absurd.
Mr. Justice Cresswell, referring to the case of Rex v.
Lolley'-(Bus. & Ey. Cr. C. 237), asked whether the Court did not discuss
the validity of the second marriage, or whether the prisoner had been treated
as a felon without discussion 1
Sir F. Kelly remarked that in that case the first marriage
was unquestionably a good marriage in this country, and it followed the married
man wherever he went,.
758 BROOK. V. BROOK
3 SM. & GIFT. 508.
and was
indissoluble without a change of domicile, and, although the prisoner had
obtained a divorce in another country, he had not thrown off his English
domicil; therefore, the divorce that he had obtained in Scotland was a nullity
in this country, and then he married secondly in England.
me. justice cresswell. But, supposing he had married his
second wife in ScotÁland, might he not have come to England and have had two
lawful wives living at the same time here ?
Sir F. Kelly. Such a question might arise, and create the
question of a conflict of law. The grounds of the decision in Bex v. Lolley are
not given in the report.
The Plaintiffs here contend simply for this, that it is
within the power of foreign Courts to clothe with legality acts done within
their jurisdiction, provided they are not contrary to morality.
It has been contended for the Crown that the legalisation of
a marriage in a foreign country is within the jurisdiction, so far as regards
the form and ceremonies of it; [508] but that is not at all the limit of the
proposition; it extends to the personal capacity to contract. In Male v.
Roberts (3 Esp. N. P. 163) Lord Eldon, then being a Common Law Judge, held that
a contract, though involving a personal question, must be determined by the law
of the country where it was entered into. De La Vega v. Vianna (1 Barn. &
Aid. 284) was to the same effect.
The law on this question is laid down accurately by Mr.
Justice Story, in his Conflict of Laws (sec. 103), in the following
terms:-" In regard to questions of minority or majority, competency or
incompetency to marry, incapacities incident to coverture, guardianship,
emancipation and other personal qualities and disabilities, the law of the
domicil of birth, or the law of any other required and fixed domicil, is not
generally to govern, but the lex loci contractils aut actus, the law of the
place where the contract is made or the act done. Therefore, a person who is a
minor until he is of the age of twenty-five years by the law of his domicil,
and incapable of making a valid contract there, may, nevertheless, in another
country, where he would be of age at twenty-one years, generally make a valid
contract at that age, even a contract of marriage."
This question is illustrated by the way in which the
different States in America deal with the marriage of a white man with a black
woman.
Reading v. Smith, Scrimshire v. Scrimshire, Harford v.
Morris (2 Hag. Consist. E. 432) and Middleton v. Janverin (Ib. 437), confirm
the views which have been enforced on the Court on behalf of the Plaintiffs.
It has been decided repeatedly that the lex loci contraMs
determines the validity of the marriage, personal as well as ceremonial, but
that the law of the domicil of the contracting parties regulates all the
consequences. Mimro v. Munro (7 Cl. & Fin. 842), Birhvhistle v. Vardill (5
Barn. & Cres. 438; S. C. on appeal, 2 Cl. & F. 571), Calvin's case (7
Coke's Eep. 1).
[509] In the present case the Crown comes into its own
Court, seeking to take away from its children the property earned for them by
the labour of their deceased parent. If ever there was a case in which the
question ought to be considered calmly and favourably for the Plaintiffs, it is
such an one as the present.
The only proper question in such a case was whether the
marriage is contrary to morality or Christianity. The Plaintiffs submit that it
is contrary to neither.
I do not deny the power of the Crown so to frame a statute
as to have reached this, case, but it has not done so; it does not even include
the colonies; it would not, prior to the Union, have extended to Ireland. (2
Mer. 143.) That a statute does not even extend to our colonies is clear from
The Attorney-General v. Stewart (Intro, s. 4, 100), and the numerous cases
there .cited, and 1 Blackstone's Commentaries (p. 101). Much less, then, could
the statute of 5 & 6 Wm. 4 affect foreign countries, unless they are
specially named.
In conclusion, it is submitted that the decision in this
case depends on the strict construction of the words of the statute 5 & 6
Wm. 4, and that without reference to the opinions of individuals or to passages
in the Scriptures; if so considered, there can be no doubt on the subject, and
this marriage cannot be impeached.
The statutes 25 Hen. 8, c. 22, and 28 Hen. 8, c. 7, and two
Irish statutes-the 4 Wm. 3, e. 3, and 2 Anne, c. 6; sections 103, 104, 124,
262, 291, from Story's
3 SM. & GIFF. S10. BROOK V. BROOK 759
Conflict
of Laws; J. Voet, Com. ad Pand. lib. 23, tit. 2, s. 4 (tome "2, p.'20); P.
Voet, De Statut. s. 9, c. 2 (p. 267, ed. 1.715); Pothier, Traite du Mariage
(pt. 3, c. 3); and St. Joseph, Concordance entre tes Codes Etrangers et le Code
Napoleon (vol. 2, p. 139, ed. 1856, "Danemark"); Roach v. Ganam (1
Ves. sen. 157; S. C. 1 Die. 88), [510] Medway v. Needham (16 Mass. B. 157,
161), Herbert v. Herbert (2 Hag. Cons. Eep. 263 ; S. C. 3 Phil. Ecc. Eep. 58),
Lacon v. Biggins (3 Stark, N. P. C. 178), Sheddon v. Patrick (5 Paton's App. C.
194; S..C. 1 Mae. 2; Ho. of Lds. Cases, 535), Ease v. Boss (4 Wils. & Shaw,
289), McCarthy v. De Caix (2 Euss. & Myl. 614), Forbes v. Cochmne (2 Bar.
& Cress. 448, 470), Say v. Sherwood (1 Curt. Eccl. Eep. 173, 193), Sherwood
v. Ray (1 Moore, P. C. C. 353, 396) were cited.
Dec. 4. mr. justice ceesswell on this day delivered his
opinion in the following terms:-
In this case I have been called upon by Vice-Chancellor
Stuart to assist him by giving my opinion as to the validity or invalidity of a
marriage solemnized near Altona, in the kingdom of Denmark, between William
Leigh Brook and Emily Armitage, the sister of William Leigh Brook's former
wife, then deceased.
In answer to certain inquiries the Chief Clerk of the
Vice-Chancellor certified as follows :-" That William Leigh Brook and
Emily Armitage were respectively, up to and at the time of such marriage, and
at the time of their respective deaths, domiciled in England, and that they had
not any permanent residence in the country where they married; that the
marriage between William Leigh Brook and the said Emily Armitage was a lawful
marriage according to the law of the Duchy of Holstein ; and that, according to
the same law, the children of such marriage are legitimate children." Upon
the latter part of the certificate it was observed in argument that it must be
taken as a certificate that such marriages between Danish subjects are good,
and not that the Danish Courts would hold them good when solemnized between the
subjects of another country domiciled in that country where such marriages are
prohibited [511] by law. The opinion which I have formed in this case renders
it unnecessary to inquire into that matter. For, even assuming that in Denmark
the marriage now in question would be held good, I think that by the law of
England it was invalid, and the children of the parties to it illegitimate.
The question depends upon the effect to be given to the
statute 5 & 6 of Wm. 4, e. 54. By the first section it is enacted, "
That all marriages which shall have been celebrated before the passing of this
Act between persons being within the prohibited degrees of affinity, shall not
hereafter be annulled for that cause by any sentence of the Ecclesiastical
Court, unless pronounced in a suit which shall be depending at the time of the
passing of this Act," &c. The second section enacted, " That all
marriages which shall hereafter be celebrated between persons within the
prohibited degrees of consanguinity or affinity shall be absolutely null and
void to all intents and purposes whatsoever." Now, putting the narrowest
construction on the words of this statute, it certainly had the effect of rendering
absolutely void all such marriages between parties within the prohibited
degrees as would, without the aid of the statute, have been voidable by the
Ecclesiastical Court. The question to be considered, then, is whether the
marriage under consideration 'would have been so voidable. Had it been
celebrated in England there could be no doubt that it would have been voidable.
In Sherwood v. Ray (1 Moore, P. C. C. 395) Baron Parke, in pronouncing the
opinion of the Judicial Committee, used this language:-
" That marriage-viz., between a widower and his
deceased wife's sister-having been celebrated between persons within the
Levitieal degrees, and prohibited from marrying by the Holy Scriptures as
interpreted by the canon law and by the statute 25th of Henry 8, was
unques-[512]-tionably voidable during the lifetime of both, and might have been
annulled by criminal proceedings or civil suit."
And this statement of the law was fully adopted by the Court
of Queen's Bench in Regina v. Chadwick (11 Q. B. Eep. 173). Indeed, this point
was hardly disputed by the learned counsel, who contended for the validity of
this marriage. But they relied on the fact of the marriage having been
celebrated in Denmark, where such marriages are held valid, and contended that
by the law of nations questions of this sort are to be decided according to the
law of the country where the marriage takes place; and many cases decided by'
most eminent persons were cited in which that
760 BROOK V. BROOK
3 SM. & GIFF. 513.
principle
was said to have been recognised and to have received full effect. I forbear to
enter into an examination of them at present, for in none of them was a
marriage in question which was contrary to the law of God and Holy Scripture.
In order to make the cases relied upon applicable to the present it is
necessary to shew that the same respect would be paid to the law of a foreign
country recognising a marriage contrary to what we deem to be God's law. No
such decision can be found. In the absence of any direct authority writers on
international law have been resorted to, and many passages have been read to
the Court from Story's Commentaries on the Conflict of Laws. In section 113 he
says :
" The general principle certainly is (as we have
already seen) that between persons sui juris marriage is to be decided by the
law of the place where it is celebrated.. If valid there, it is valid
everywhere. It has a legal ubiquity of obligation. If invalid there, it is
equally invalid everywhere."
In section 113, he also says:
"The most prominent, if not the only known exceptions
[513] to the rule are those marriages involving polygamy and incest; those
positively prohibited by the public law of a country from motives of policy;
and those celebrated in foreign countries by subjects entitling themselves
under special circumstances to the benefit of the laws of their own
country." Again, in section 114, he proceeds:-
" In respect to the first exception, that of marriages
involving polygamy and incest, Christianity is understood to prohibit polygamy
and incest; and, therefore, no Christian country would recognise polygamy or
incestuous marriages; but when we speak of incestuous marriages care must be
taken to confine the doctrine to such cases as by the general consent of all
Christendom are deemed incestuous."
To this latter passage I cannot give my assent. How is a
Judge sitting in an English Court of Justice, called upon to decide whether a
marriage be incestuous or not, to be guided in his decision? Surely, if the law
of his own country has already settled what is incestuous or the contrary, by
that he must be governed. Is he to inquire into the opinions of all other
nations in which Christianity exists, and to adopt that rule which is
ascertained to prevail among the greater number, and to say that it shall be
acted upon in defiance of the law of his own country 1 This would, indeed, be
enlarging the comitas gentium to an extent hitherto unheard of. For the purpose
of deciding whether a marriage be incestuous or not I feel bound to ascertain
what is the law of England and to give effect to it. Examining that law I find
that, according to many decisions, such marriages are held to be prohibited by
Holy Scripture, that they are within the degrees of affinity prohibited by
God's law, and punishable as incestuous; and must therefore here be deemed to
fall within the exceptions stated in Story (Conflict of Laws, s. 113), and not
to be recognised in this Christian country. If that were otherwise, and we were
bound by the comitas gentium to hold this a good marriage, this consequence
would follow : an Englishman domi-[514]-ciled in this country, cohabiting with
the sister of his deceased wife, whether he has celebrated a marriage with her
or not, is deemed to be guilty of incest and punishable by our ecclesiastical
law; but by taking a short voyage to Denmark, and celebrating a marriage there,
he would acquire the privilege of returning to this country and maintaining an
intercourse by our law deemed incestuous, with perfect impunity. These considerations
satisfy me that the marriage would have been voidable before the statute'5
& 6 Wm. 4, c. 54, was passed, and that by force of that Act it was
absolutely void to all intents and purposes. This opinion as to the voidable
character of the marriage in question, although celebrated in Altona, makes it
not absolutely necessary that I should express any opinion upon another
question which was discussed with much learning and ability, viz., whether the
general expressions that have on various occasions fallen from the most eminent
Judges in this country as to the validity of marriages here, if valid in the
country celebrated, are to be construed in the widest sense which can be
ascribed to them according to the ordinary meaning of the English language, or
whether they are to be limited and restrained by an implied proviso that such
marriages are not contrary to the laws of this country. Nevertheless, as it is
a point which, if settled one way, would dispose of the case, although my
opinion, already expressed, should be held to be erroneous, I think I ought not
to avoid entering into the question; and I do so with the less
3SM.&GIFF.515. BROOK V. BROOK 761
hesitation
as my opinion on this very important subject will be open to review, and no
doubt will be reviewed in this very case. Sir George Hay, in pronouncing
judgÁment in Harford v. Morris (2 Hagg. Const. Rep. 423), expressed an opinion
that marriages of English subjects having an English domicile, celebrated in
other countries, have been held valid, not merely because they would be valid
according to the laws of those countries, but because they were not contrary to
the law of England. In page 434 he says :
[515] " I do not say that foreign laws cannot be
received in this Court in cases where the Court of that country had a
jurisdiction, or that this Court would not determine upon those laws in such a
case. But I deny the lex loci universally to be a foundation for the
jurisdiction, so as to impose an obligation on the Court to determine by those
foreign laws."
The judgment in that case was reversed, but upon grounds
wholly irrespective of the opinion above cited. It therefore remains of such
value as the reputation of the learned Judge by whom it was pronounced can give
to it; and in Warrender v. Wamnder (2 Cl. & Fin. 488) there are some
passages delivered by Lord Brougham which throw much light on this question. In
one place he says (Ibid. 529):
" The general principle is denied by no one that the
lex loci is to be the governing rule in deciding upon the validity or
invalidity of all personal contracts."
In another place he says (Ibid. 531):
" A marriage good by the laws of one country is held
good in all others where the question of its validity may arise, for the
question always must be, did the parties intend to contract marriage? And, if
they did that which in the place they were in is deemed a marriage, they cannot
reasonably, or sensibly, or safely be considered otherwise than as intending a
marriage contract. The laws of each nation lay down the forms and solemnities,
a compliance with which shall be deemed the only criterion of the intention to
enter into the contract."
- The noble Lord having used the general terms found in the
first sentence quoted, by that which follows, shews that he meant to apply them
only to the forms and solemnities of constituting a marriage, and to the proof
of the parties having made a contract; for he afterwards says (Ibid.):
" I shall only stop here to remark that the English
jurisprudence, while it adopts the principle in words, would not perhaps be
found very willing to act upon it [516] throughout. Thus, we should expect that
the Spanish and Portuguese Courts would hold an English marriage avoidable
between uncle and niece, or brother and sister-in-law, because 'it would
clearly be avoidable in this country; but I strongly incline to think that our
Courts would refuse to sanction, and would avoid by sentence, a marriage
between those relations contracted in the Peninsula under dispensation,
although beyond all doubt such a marriage would there be valid by the lex loci,
and incapable of being set aside by any proceedings in that country. But the
rule extends, I apprehend, no further than to the ascertaining of the validity
of the contract and the meaning of the parties-that is, the existence of the
contract in its construction."
The case of The Queen v. Lolley (Russ. & Ryan, C. G. R.
237), although not directly in point, almost compels me (if it be good law) to
adopt that opinion. The case was this:-An Englishman married in England; he
afterwards went to Scotland and obtained a divorce there, which, according to
the law of that country, dissolved the marriage. He then returned to England
and married another woman, the first wife living, for which he was indicted,
tried and convicted.. The propriety of that conÁviction was argued by very able
counsel before the twelve Judges, and by their unanimous opinion was held to be
correct. The English Court, therefore, would not recognise the law of Scotland
because it was contrary to our own. But it may be said that the matter then in
question was the dissolution of the marriage, not the constitution of it. True,
but had the constitution of a marriage been in question and not the dissolution
the result must have been the same. By the 9th Geo. 4, c. 31, s. 22, it was
enacted :
" That if any person, being married, shall marry any
other person during the life of the first husband or wife, whether the second
marriage shall have taken place in [517] England or elsewhere, every such
offender shall be guilty of felony."
762 BROOK V.
BROOK. 3 SM. &GIFF. 818.
Now, suppose after the Scotch: divorce the man had married
again in Scotland, that marriage would have been good there; would it therefore
have been good herel If it would, then the man might haye returned to England
with his second wife, and had two lawful wives living at the same time by
marriages held to be valid by our own law. Some rather embarrassing questions
would have arisen out of such a state of things. Would both wives have been
dowable1? If the second had had a son born, and the first had had a son born
afterwards, which would have been heir to the father 1 And, besides all these
strange questions, the father would have been indictÁable and punishable as a
felon, by the express words of the statute, for having conÁtracted a marriage
which by the law of this Court was perfectly legal. In addition to these
reasons for supposing that the learned persons who used the general expressions
so frequently brought to our notice during the argument did not intend that
they should have the widest sense of which the words were susceptible, there
are some passages in Huber's Prselectiones Juris Civilis which shew that, in
his opinion, the comitas gentium did not require so large an effect to be given
-to foreign law. In his chapter De Conflictu Legum he states, in sec. 2, 3d
axiom:
" 1. Leges cujusque imperil vim habent intra .terminos
ejusdem reipublicse,
omnesque ei subjectos obligant, nee ultra. 2. Pro subjectis
imperio habendi sunt
omnes qui intra terminos ejusdem reperiuntur, sive in
perpeteum, sive ad tempus ibi
commorentur. 3. Eectores imperiorum id eomiter agunt, ut
jura eujusque populi
intra terminos ejus exercita, teneant ubique suam vim,
quatemis nihil potestati aufc
juri alterius imperantis ejusque civium prsejudicetur."
"Sec. 8. Matrimonium pertinet
etiam ad has regulas. Si lici-[518]-tum est eo loco ubi
cpntractum et eelebratum est,
ubique validum erit effectumque habebit, sub eadem
exceptione prsejudicii aliis non
creandi; cui licet addere si exempli nimis sit aboniinandi;
ut si incestum juris
gentium in seeundo gradu contingeret alicubi esse permissum;
quod vix est ut usu
venire possit."
Further on he writes-
" Brabantus, uxore ductS, dispensatipne Pontificis in
gradu prohibito, si hue migret, tolerabitur; at tamen, si Frisius cum fratris
fiM se conferat in Brabantiam ibique nuptias celebret, hue reversus non videtur
tolerandus; quia sic jus nostrum pessimis exemplis eluderetur."
There are other passages to the same effect. John Voet, Paul
Voet, Sanchez, Gayll and other jurists say that the validity of a marriage is
to be decided by the laws of the country where it is celebrated; but they
explain that their operation extends only to the formation of the contract and
the form and ceremonial of the marriage. I now proceed to examine some of the
general dicta that a marriage valid by the law of the country where solemnized
is valid everywhere. The first case cited was Roach v. Garvam (1 Yes. sen.
157). The facts of the case are thus stated :--Major Roach having two
daughters, one born at Fort St. George, in the East Indies, and the other at
St. ˜, near it, sent them to France for their education, and put them into a
nunnery. Mr. Quan, one of the persons in whose care they were left, married the
eldest, who was then about 11 years of age, to his son, not then 17. Quan
petitioned for cohabitation with his wife. Another petition about guardianship
and fortune was also before the Court. Lord Hardwieke said : " As to the
fact of the marriage, if good, the Court will take care that the husband makes
a suitable , provision ; but the most material consideration is as to the
validity thereof. It has been argued to be valid from [519] being established
by the sentence.of a Court in France having proper jurisdiction, and it is true
that, if so, it is conclusive, whether in a foreign Court or not, from the law
of nations in such eases." There is nothing in that case to shew that if
the parties had been British subjects domiciled in England, and it had been
contrary to our law, and the Courts of this country had been called upon to
adjudicate with regard to it, they would have held it valid. The next case in
order of time was Scrimshire v. Serimshire (2 Hagg. Consist. 395). These two
British subjects had been married in France. A suit was instituted here for the
restitution of conjugal rights. The validity of the marriage was denied, as
being a foreign marriage not celebrated according to the laws of the country in
which it was contracted; and a sentence of the Parliament of Paris declaring
the marriage null was also pleaded. Dealing with that question, Sir Edward
Simpson, in giving his judgment, said (Ibid. 398):
3 SM. & GIFF. 520. BROOK V. BROOK 763
"The Court was of opinion then (alluding to some
earlier proceedings in the case), and still is, that a foreign sentence alone
could not of itself be a bar to entering into a consideration of the question
whether this marriage between English subjects was good or not by the law of
England."
And in pages 408 and 411 other expressions of similar import
are to be found; but the question before the Court was whether the contract had
been made in a form binding by the law of France, and whether the
marriage'rites had been duly celebrated according to that law, no question as
to any violation of English law being involved in the discussion. The case of
Ruding v. Smith (Ibid. 371-390) was also cited on account of one or two
passages in the judgment of Lord Stowell. One of them runs thus :-
" It is true, indeed, that English decisions have
established [520] this rule that a foreign marriage, valid according to the law
of the place where celebrated, is good everywhere else. ... It is therefore
certainly to be advised that the safest course is always to be married
according to the law of the country, for thus no question can be stirred."
But here again Lord Stowell was dealing with the marriage
ceremonial, and not with any inquiry whether such a marriage was or was not a
violation of the law of this country. But the celebrated case of Dalrymple v.
Dalrymple (2 Hagg. Cons. Eep. 54) was mainly pressed upon our consideration on
account of the passage in which Lord Stowell enunciated the principle on which
that and similar cases should be decided. It is in page 58 :-
"Being entertained (said the learned Judge) in an
English Court, it must be adjudicated according to the principles of English
law applicable to such a case. But the only principle applicable to such a case
by the law of England is that the validity of Miss Gordon's marriage rights
must be tried by reference to the law of the country where, if they exist at
all, they had their origin. Having furnished this principle, the law of England
withdraws altogether, and leaves the legal question to the exclusive judgment
of the law of Scotland."
But what were the questions raised 1 Whether Captain
Dalrymple had entered into a contract of marriage, and whether that which took
place between the parties constituted a marriage in fact according to the law
of Scotland ; and those were the two questions with which the learned Judge
throughout his elaborate and learned judgment was dealing. It was not, and
could not be, contended in that case that a contract of marriage made by a
minor in Scotland was contrary to the law of England, nor that the sufficiency
of the marriage ceremony was to be judged of by any other law than that of
Scotland. It has been supposed that Scotch marriages between minors are
con-[521]-trary to the Marriage Act, 26 Geo. 2, c. 33, but that is a mistake, for
the 18th section contains inter alia this proviso :-
"That nothing in this Act contained shall extend to
that part of Great Britain called Scotland, &c., nor to any marriages
solemnized beyond the seas."
Why, then, should it be assumed that the learned Judge used
the expressions relied on in a sense more extensive than was necessary for the
decision of the case before him. Is it not more reasonable to suppose that he
used them secundum subjectam materiam to enunciate the principle upon which he
was about to decide the questions involved in the case under consideration, and
not with reference to another question which had not been, and could not then
be, raised 1 I certainly am disposed to apply to them the same canon of
construction which in fairness and candour should be applied to all judgments,
rather than to assume that they were intended to have a larger meaning, in
opposition to the writings of Huber, and extending-far beyond the principle
laid down by John and Paul Voet, by Sanchez and by Gayll. The writings of these
jurists were no doubt well known to Lord Stowell, and it is hardly to be
supposed that he would have expressed an opinion at variance with theirs
without condescending to notice their writings and to explain his reason for
differing from them. I have found nothing to justify giving the more extensive
meaning to the words of Lord Stowell, except some passages in Mr. Justice
Story's work on the Conflict of Laws, and a decision cited by him from the
reports of the Court of Massachusetts; and, perhaps, this greater force given
in one of the United States to the laws of another at variance with its own may
be accounted for by the greater
764 BBOOK V. BROOK
3 SM.& GIFF. 522.
inclination
that would naturally exist to give a larger scope to the comitas gentium
between the different States of the Union than could be expected to find place
among nations wholly independent of and un-[522]-connected with each other. I
have therefore come to the conclusion that a marriage, contracted by the
subjects of a country in which they are domiciled, in another country is not to
be held valid, if by contractÁing it the laws of their own country are
violated. Another question remains to be considered, viz., whether the 2d
section of the statute 5 & 6 Wm. 4, e. 54, taken by itself, is so framed as
to be binding on all English subjects wherever they may be; or, in other words,
whether it is personal and accompanies the person of an English subject into
foreign lands. It is in these words :-˜
"Be it further enacted that all marriages which shall
hereafter be celebrated between persons within the prohibited degrees of
consanguinity or affinity shall be absolutely null and void to all intents and
purposes whatsoever."
The words in their common and ordinary sense would extend to
marriages wherever celebrated; otherwise some only and not all would be
rendered void. It is a statute affecting persons, and may be read as if it had
been:-
" If hereafter any persons (that is British subjects)
within the prohibited degrees contract marriages, all such marriages shall be
void."
A law framed in such terms would attach upon the persons of
British subjects, and accompany them to all parts of the world. Upon this point
the decision of the House of Lords in the Sussex Peerage case appears to be
conclusive. By 12 Geo. 3, c. 11, s. 1, it was enacted :-
" That no descendant of the body of His late Majesty
King George II. (other than, &c.) shall be capable of contracting matrimony
without the previous consent of His Majesty, his heirs or successors (signified
in a certain specified manner), _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."
[523] In expressing the opinion of the Judges on the
question referred to them Lord Chief Justice Tindal says of this enactment (11
Cl. & Fin. 145):
" The words of the statute itself appear to us to be.
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."
And further on he says :-
" The words employed are general, or more properly
universal, and cannot be satisfied in their plain literal and 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 whole passage might have been written with reference to
the enactment now under consideration. This statute does not enact an
incapacity to contract matrimony within the prohibited degrees within one
particular country and district or another, but to contract such marriage
generally. The object of the statute was to put an end to all such marriages
between English subjects for the future, and cannot be satisfied by any
narrower construction. On this? ground, therefore, as well as the other two
urged by the counsel of the Crown, I am of opinion that the marriage celebrated
between William Leigh Brook and Emily Armitage, at Altona, was void, and the
children of those two persons illegitimate.
[524] April 17, 1858. the vice-chancellor [Sir John Stuart].
The late father and mother of the infant Plaintiffs were both of them English
subjects, and at the time of the marriage were both of them domiciled in
England. The marriage was solemnized during a temporary residence within the
territories of the King of Denmark.
If the marriage had been solemnized in England, as it was a
marriage between a widower and the sister of his deceased wife, it is settled
that, according to the law of England, it was null and void to all intents and
purposes whatsoever. As to this I have no doubt. It was so settled by the
decision of the Court of Queen's Bench in the
3SM.&GIFF.525. BROOK. V. BROOK 765
ease of
The Queen v. Chadvnck (11 Q. B. 205). And in hearing the present case I have
had the great advantage of the assistance and advice of Mr. Justice Cresswell,
who considers the law upon this point to be clear.
The law of Denmark permits such marriages, and therefore the
argument has principally turned on the right claimed for the issue of the
marriage to have its validity determined according to the law of Denmark, as
that of the country in which it was celebrated. The evidence of the Danish law,
as stated in the Chief Clerk's certificate, is not quite satisfactory. But it
may be assumed that the municipal law of Denmark, as regulating the rights of
the people of Denmark, permits a marriage between a widower and the sister of
his deceased wife.
For the Crown it is insisted that the statute 5 & 6 Wm.
4, e. 44, which has enacted that all such marriages " shall be absolutely
null and void to all intents and purposes whatsoever," binds all the
subjects of the Crown of England, having their domicile in England, in whatever
country the marriage may be contracted.
On the other hand, it is contended for the children of the
marriage that the statute has a mere local operation ; only affects marriages
celebrated in England and Ireland, and has no effect on such marriages
contracted in Den-[525]-mark, or in any other country by the laws of which they
are permitted. They also contend that all questions as to the validity of the
marriage are, by a general principle, to be decided according to the law of the
country in which the contract is made; and they say that by the comity of
nations the Courts of this country are bound to respect the laws of Denmark in
this case, and to judge of the validity of the marriage by those laws, and not
by the English law, as if it had been celebrated in England.
The first question therefore is as to the construction and
effect of the statute 5 & 6 Wm. 4, c. 54.
Mr. Justice Cresswell has given me his opinion that the
statute binds all English subjects wherever they may be. This opinion he
supports by the universality of the words taken in their common and ordinary
sense. He has also supported it by the authority of the Judges in the case of
the Sussex Peerage, in construing the Royal Marriage Act, and by a reference to
the scope and object of this statute itself.
The more closely the matter is examined the more clearly
does it appear that this is the only true construction of the Act. The purpose
of the Legislature was to annul for the future all marriages between persons
within the prohibited degrees. ThereÁfore the words are, " that all
marriages which shall hereafter be celebrated between persons within the
prohibited degrees of consanguinity or affinity shall be absolutely null and
void to all intents and purposes whatsoever." These words, clear and
unambiguous, prevent the relation of husband and wife from subsisting between
any subjects of the realm of England within the prohibited degrees. Scotland is
expressly excepted from the operation of the Act. But the words "all
marriages" are not in any other respect qualified or restricted by
anything in the context. Lord Coke says, " Generate dictum generaliter est
intelligendum" (2 Instit. 21). Unless [526] the words, mean all marriages
wheresoever celebrated, the ordinary sense and meaning of the word "
all" is not given to it; for if marriages elsewhere celebrated are not included,
the words "all marriages" must be read as meaning that some marriages
are not included in the words "all marriages," which would be absurd.
The object of the Act is to prevent the relation of husband
and wife from subsistÁing between certain persons who are subjects of the Crown
of England and domiciled in England. But that object would be defeated if, by
any marriage celebrated anyÁwhere between two subjects of the Crown of England
and domiciled in England, this prohibited relation were allowed to subsist. As
part of the municipal law of England this statute has its operation within the
territory of England upon all English subjects, and upon all marriages between
English subjects who are within the prohibited degrees.
The municipal laws of foreign countries are made to bind the
subjects of foreign countries. If a law were passed in Denmark, or any other
foreign country, declaring ˜ that all marriages celebrated within its
territories between English subjects who are within the degrees of affinity
prohibited by, the law of England should be valid marriages in England; and,
although declared by an English Act of Parliament to be null and void to all
intents and purposes, should nevertheless be deemed valid in
766 BROOK V.
BBOOK 3 SM. & GIFF. 527.
England,
such a law could have no force or effect in this country. ˜ It would be a law
passed by a foreign State to alter the municipal law of England as to English
subjects, and therefore would be merely nugatory and absurd.
But the English statute which enacts that all such marriages
shall be null and void, and which prohibits the status of marriage between such
persons, would be equally nugatory if such marriages celebrated elsewhere than
in England should be held valid.
[527] Persons within the prohibited degrees are by the Act
made incapable of contracting a marriage between themselves, because the Act
says that such a marriage shall be null and void. Therefore, the same
observations which the Chief Justice Tindal made on the construction of the
Koyal Marriage Act are applicable to this Act. It does not enact an incapacity
to contract matrimony in any one particular country or district more than any
other. The existence of the affinity between the persons makes them incapable
of entering into a valid contract of matrimony. This incapacity is personal
and, being impressed upon the persons by the law of their own country, cannot
be cast off or removed by mere change of place. It is a personal quality which,
according to Huber and other jurists, travels round everywhere with the
persons; inseparable from them as their shadows.
" Qualitas personalis certo loco alicui jure impressus,
ubique circumferri et personam comitari, cum hoc effectu, ut ubivis locorum eo
jure quo tales persons alibi guadent vel subjecese sunt, frauntur et
subjiciantur."
The result is that the settled principles of construction
require that a general and comprehensive interpretation should be given to this
Act, which contains words the most general and comprehensive. A confined and
restricted interpretation is not warranted by the context, and would make the
statute nugatory. Finally, the decision of the House of Lords in the Sussex
Peerage case, and the reasons given to me by Mr. Justice Cresswell, satisfy my
mind that the marriage in this case, whether it was celebrated in Denmark or
elsewhere, is by the Act of Parliament made null and void to all intents and
purposes whatsoever.
All the arguments founded on the Slave Trade Acts and the
Legacy Duty Acts, and other cases cited for the Plaintiffs, fail in their
application to the construction of a statute which enacts that the relation of
husband and wife [528] shall not subsist between persons related to each other
in a certain degree.
The next question is whether, as this marriage was
celebrated in Denmark, its validity in all respects is to be decided by the
laws of Denmark.
As a general principle the lex loci is to govern on all
questions as to the validity or invalidity of personal contracts. This
principle is founded on convenience. But it has been found necessary, from a
regard also to the higher considerations of duty, as well as convenience, to
make certain exceptions and qualifications in applying this principle. These
exceptions are well defined by high authority, and rest on unquestionable
grounds.
Lord Mansfield says, in the case of Robinson v. Bland, 1st
Wm. Blackstone, 258, ˜" Lex loti contracttis admits of an exception where
the parties at the time of making the contract had a view to a different
country." Therefore it has been held that the law of the country in which
the contract is to be performed is to have effect rather than the law of the
country in which the contract may happen to have been made. Huber says, "
Non ita precise respiciendus est locus in quo. contractus initus est, &c.
Contraxisse iinusquisque in eo loco intelligitur in quo ut solveret se
obligavit." And the same writer says, as to the marriage contract:
"Proinde et locus matrimonii ˜contracti non tarn is est ubi contractus
nuptialis initus, quam in quo contrahentes -matrimoniuin exercere voluerunt."
The French jurists are generally of opinion that the
validity of a marriage must be decided according to the law of the place where
it is celebrated ; but with a clear exception, in cases positively prohibited
by their own law, to their own subjects. 'The necessity of this exception
arises from the obligation, on each estate, to preserve its own institutions
entire. Nations are bound duly to respect and recognise each ˜other's laws. But
each nation [529] is bound by a much higher duty to enforce obedience to its
own municipal laws as regulating the rights of persons and of property among
its own subjects. Therefore it is that so much weight is given to the law of
the country in which the contract is to be performed.
JSM.& GIFT. 530. BROOK V. BROOK 767
What seemed most material of the authorities cited on behalf
of the Plaintiffs were the decisions on Lord Hardwicke's Marriage Act-one
passage in the judgment of Sir William Scott in the case of Dalrymple v.
Dalrymple, and an extract from Story's Treatise.
Mr. Justice Cresswell has already well disposed of what was
read from Story's book. Indeed, in the 113th section that writer admits the
exception of marriages "positively prohibited by the public law of a
country, from motives of policy."
As to the decisions on Lord Hardwicke's Act there is an
express proviso in the Act that it shall not extend to marriages contracted in
Scotland or beyond the seas. So far from that Act containing any general or
absolute prohibition and declaration of nullity as to all marriages contracted
otherwise than according to its provisions, the prohibition and declaration in
it are confined to marriages contracted in England without a compliance with
the solemnities and consents which that Act requires.
The words quoted from Sir William Scott's judgment in
Dalrymple v. Dalrymple have no reference to anything but the acts and
solemnities necessary to bind the persons. The words are wholly inapplicable to
cases where there is a positive legislative incapacity to contract at all. When
Sir William Scott said that the law of England leaves the question of the
validity of a marriage to the decision of the law of the country in which the
contract is made, he spoke as to the case before him, which was a question
concerning a marriage contracted in Scotland per verba de pmsenti, and without
any religious celebration, [530] and therefore a question only as to the
sufficiency of the acts and solemnities to constitute a valid contract of
Mr. Barge, in his very valuable commentaries, says (1, 69):
"A contract, however legal it may be in itself, cannot be enforced against
property situated in a country the laws of which prohibit such contract. The
formalities established for authenÁticating and proving Acts are those
prescribed by the law of the place where the Acts are passed; and if those have
been observed, the Acts are, as to their form, deemed valid in all places. The
formalities which are attached to, and inherent in, the property which is the
subject of the contract are those prescribed by the law of the country in which
the property is situated."
These propositions relate to contracts in general. But the
vast importance of the marriage contract requires their application to it in a
peculiar degree. It has been repeatedly decided in our Courts that the law of
the country where a marriage may happen to be celebrated cannot prevail where
it is opposed to the municipal instituÁtions of the country of the domicile and
allegiance of the contracting parties. ThereÁfore, in the case of Beazeley v.
Beazeley (3 Hag. 639) the law of the country where the marriage was celebrated
was held not to prevail, because one of the contracting parties was by the law
of the country of his domicile incapacitated from entering into the contract.
It was held that this incapacity was not removed by a transient visit to
another country, the laws of which did not incapacitate in such a case.
In the case of Warrender v. Warrender (2 Clk. & Fin.
488), the House of Lords decided that although the marriage was contracted in
England, yet, the husband being a domiciled Scotchman, and the marriage being
with a view to a permanent [531] residence in Scotland as the country of the
husband and wife, the law of Scotland and not the law of England was to
regulate, because although the marriage was celebrated in England, Scotland was
the country in which the contract was to be fulfilled.
The law of England is wisely reluctant to admit any doctrine
which is repugnant to the settled principles and policy of its own
institutions. It is a settled principle of the law of England not to recognise
or give effect to any contract illegal or immoral, or against public policy.
This principle, so, well established, is binding upon all English subjects, and
imperative in all English Courts of Justice. The question of illegality,
immorality or contravention of public policy in such cases is to be decided by
the laws of England, and not by the laws of any foreign country.
All the highest authorities among foreign jurists treat as
an exception from the principle of comity and respect due to foreign laws the
case of such foreign laws as interfere with the power and public policy of each
State in its own municipal system. The parties to this marriage contract were
subjects of the Crown of England, bound
768 BARTLETT V. BARTLETT 3 SM. & GIFF. 532.
by their
allegiance and domicile to the law and constitution of England. In Denmark they
continued still subjects to the Crown of England. In Denmark their status was
that of aliens to the Crown of Denmark, and owing only a temporary obedience to
the laws of Denmark, under which they had only temporary protection.
The law of England, which prohibits the marriage of a
widower with the sister of
his deceased wife, is an integral part of our law and public
policy. Therefore, by
the established principles of international law, it must
have a paramount effect, and
cannot be evaded by having resort to the laws of any foreign
country. ; . ','_˜_ 1
The law of England as to this matter is a personal law
acting upon the persons of English subjects, and creating [532] a personal
incapacity which must accompany the persons into every country. " Quando
lex in personam dirigitur respieienda est ad leges illius civitatis quse
personam habet subjectam." These are the words of Hertius, and they state
a principle recognised by the other jurists.
As a question on the law of contract, the validity of the
contract of marriage as to the capacity to contract must depend on the law of
the country in which the contract was to have its effect, and that country was
England. This is a case in which three circumstances concur, any one of which,
according to the jurists, excludes the application of the lex loci contractfis.
It is a case in which the public policy of the law of England prohibits the
contract. It is a case in which the law is personal in its nature, and must
accompany the persons wherever they go. And it is moreover a case in which
England was the country with a view to which, and in which, the marriage
contract was to have its permanent effect.
No resort to the laws of Denmark, or of any other foreign
country, can give validity to such a contract where the law of England has made
it null and void.
It seems, therefore, the duty of this Court to declare that
the marriage between the testator and Emily Armitage, the sister of his
deceased wife, was not a valid marriage, but is null and void to all intents
and purposes whatsoever, and that the real and personal estate of Charles
Armitage Brook, deceased, has become vested in the Crown.