COUNSEL: W. Pearson, Q.C. (George Williamson, with him), for the Plaintiff.
Hastings, Q.C., and Byrne, Q.C., for the infant.

SOLICITORS: Solicitors: A. R. Oldman & Clabburn, agents for H. W. Bainton, Beverley,
H. L. Pemberton, Official Solicitor.

JUDGE: Stirling, J.

DATES: 1887 Dec. 15, 20; 1888 Feb. 1, 15.

English Domicil – Marriage in Bechuanaland according to the Customs of a Native Tribe – Polygamy – Marriage not in a Christian, but a Baralong sense invalid.

A union formed between a man and a woman in a foreign country, although it may there bear the name of marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England unless it be formed on the same basis as marriages throughout Christendom, and be in its essence “the voluntary union for life of one man and one woman to the exclusion of all others.”

C. B., whose domicil was English, in 1878 went to South Africa, and afterwards resided at Mafeking in Bechuanaland. In 1883 he went through the ceremony of marriage with T., a woman of the Baralong tribe, according to the customs of the tribe, among whom polygamy is allowed. C. B.and T. lived together as husband and wife. He was killed in the colony in 1884, and about ten days after his death T. gave birth to a female child. C. B., in a document which he wrote and signed in 1883, made some provision for T. and for a child out of the proceeds of sale of his property in the colony. He refused to be married to T. in a church on the ground that he was a Baralong. He never mentioned the marriage to any of his friends in England, and there was no evidence that he ever introduced or spoke of T. as his wife, but that he called her “that girl of mine.” He was in receipt of about £600 a year, the rents of estates in England,devised to him for life with remainder to his lawful child or children:–

Held, that the union of C. B. and T. was not a marriage in the Christian, but in the Baralong sense, and that it was not a valid marriage according to the law of England.

WILLIAM FROGGATT BETHELL, who died in 1879, by his will, dated the 28th of October, 1876, made a devise of his real estates (including leaseholds) at Burnhill and Hallatreeholmein the county of York. That devise the testator revoked by a codicil dated the 2nd of March, 1878, and instead thereof he thereby gave the same estates to trustees (the Defendants) to the uses and upon the trusts thereinafter expressed and declared, viz., upon trust to secure a rent-charge, and then to the use of his son Christopher Bethell, during his life, or until he should commit one of such acts as therein mentioned, and after the death of Christopher [*221] Bethell in case he should die leaving any child or children him surviving, to the use of the Defendants, their heirs and assigns, upon trust for sale. The testator then declared that the trustees should stand possessed of the moneys arising from such sale for the child of Christopher Bethell if only one, or for his children if mole than one, in equal shares, but in case Christopher Bethell should die without leaving any child or children him surviving, or without leaving any child or children who should attain the age of twenty-one years, then the testator made a devise of the said estates in favour of his eldest son William Bethell (the Plaintiff) during his life.

Christopher Bethell left England for the Cape of Good Hope in the year 1878, and never returned to this country. He died in South Africa on the 30th of July, 1884, having been on that day killed in fighting with the Boers in Bechuanaland. Some time after the death of Christopher Bethell, William Bethell took out an originating summons in this matter, in which the trustees (the Defendants) of the testator’s will were Respondents, asking for a declaration that he was entitled to the property on the ground that Christopher Bethell had died without leaving any issue, and on the 12th of June, 1885, an inquiry was directed whether Christopher Bethell was ever married, and if so, when, and to whom, and whether he left any, and what children him surviving, and when they were respectively born. The Chief Clerk in answer to that inquiry made a certificate that Christopher Bethell in October, 1883, being then a resident at Mafeking in Bechuanaland, went through the form of marriage according to the custom of the Baralong tribe with Teepoo, a Baralong girl, and had issue by her a female child who was born ten days after his death; that the Baralongs had not any religion, nor any religious customs, and that polygamy was allowed in that tribe; that at the time of the marriage the domicil of Christopher Bethellwas English, and that, save as aforesaid, he never was married. Upon that certificate the matter came on to be heard upon further consideration. It was then considered desirable that the infant child mentioned in the certificate should be represented; and in order that that might be done the official solicitor was appointed her guardian, and notice of the order of the 12th of June, 1885, [*222] was served upon him in accordance with Rules of Supreme Court, 1883, Order XVI., rule 44, and Order IX., rule 4. The infant had appeared by her guardian, who had taken out a summons asking that the certificate might be varied by finding that Christopher Bethell was married to Teepoo, and left one child him surviving, a girl born on the 9th of August, 1884. The evidence, which had been taken by commission in Bechuanaland, was to the effect that Christopher Bethell refused to be married in a church, though, as stated, there was a Wesleyan church at Mafeking, and a minister; and also an English church and a clergyman at Kimberley, a large English town not very far off; that he did not intend to remain in Bechuanaland, but to return to England; that in none of his communications to his relations or friends had he intimated or led them to infer that he was married; and that he called Teepoo “that girl of mine.” It was also in evidence that “each male is allowed one great wife and several concubines, who have almost the same status in the home as the great or principal wife.” And Montsioa the chief of the tribe said:- “There are those who have two, three, or four gives, but the first is the principal wife.” The marriage ceremony was thus described:- “When the consent of the parents has been obtained, the bridegroom slaughters a sheep, a buck, an ox, or cow. The head of the animal is taken to the bride’s parents, as also is the hide, which is cleaned and softened They are then considered married, and after the birth of the first child the number of the cattle previously agreed upon is handed over to the wife’s parents.” Christopher Bethell in October, 1883, went through that ceremony with Teepoo, a niece of Montsioa, who in his depositions gave this account of what took place:–

“Bethell came to me and said he wanted a woman to take and marry according, to the Baralong custom I said to him, ‘You know we Baralongs have a different custom from other tribes. The custom is that during courtship and after marriage, the man, when he kills an ox, sends the head to the girl’s mother, so if you do this the mother will know your intentions are honourable.’ Bethell said:- ‘Well, I want to marry a Baralong, and I will do so according to Baralong custom;’ also ‘I am a Baralong,’ I said, ‘Will you not marry her in church?’ He said, ‘No; I am a Baralong; did you marry your wife in church, did yon not also [*223] marry in the custom I am about to do?’ I said, ‘Very well, if that is the case you can take one,’ and of a truth he did take one. He slaughtered an ox, and sent the head to Makwas, the mother of Teepoo. I then went to Makwas, and said, ‘Give your daughter to Bethell; you see he really means it. See, he has sent you the head.’ She did, and he married her exactly in accordance with our customs. There is no other ceremony except taking the girl. The paying of cattle is no part of the ceremony of marriage, and may be done years after the consummation of the marriage. Bethell took the girl to his house. Bethell gave a span of oxen and trekgoed and plough to Teepoo’s father, saying, ‘Plough Makwas’s garden with this.’ It is one of our customs for the son-in-law to plough the mother-in-law’s garden, or have it ploughed. I know that Bethell really married Teepoo, and that she was his wife and not his paramour.” On the 3rd of December, 1883, Christopher Bethell wrote and signed the following document making some provision for Teepoo and any child she might have by him:–

“I hereby desire that in the event of my decease here in Mafeking, and in the absence of any other will, Mr. E. Rowlandshall take over all my arms, ammunition, cannon wagon, oxen, horses and any other property that may be in my possession, and shall sell them to the best advantage. I desire that he will realize all the property as quickly as possible, and shall apply the proceeds to the payment of Taylor & Leark’s (Klerksdup) account, the balance he shall have and hold as a bequest and present from me. And he shall inform my relatives in Englandof my decease and of the manner in which my property is disposed of. Always providing that before disposing of any of the proceeds of the sale of my property he shall purchase or put aside (30) thirty heifers, (10) ten three years old, (10) ten two years old, (10) ten one year old, and shall use them for the benefit of Teepoo in the following manner – he shall keep the heifers for the space of one year from my decease, and in case she (Teepoo) has no child by me he shall hand the said (30) thirty heifers over to her for her own property and use. If she has a child after my decease, he shall keep the heifers and their produce until the said child be arrived at the age of (21) twenty-one years, selling any [*224] full-grown oxen and old cows, and investing the proceeds in land or English Government securities. The milk of the cattle and the use of the young oxen to be applied to the use of Teepoo and the child. At the end of eight years the child is to be removed from its mother and placed at a school for the time of ten years, either in the colony or in England, and if a boy shall be taught a profession, or enter Her Majesty’s service as a soldier. In order to repay the work of Mr. Rowland in the case of a child being born I desire that he shall take (20) twenty per cent. of all sales of oxen and cows as before mentioned. In case Teepoo remarries or has any more children or conducts herself in an improper way, she shall be debarred from any participation in the heifers and shall give up the guardianship of the child at once to E. Rowland and shall receive 10 yearly heifers only as a dowry. But in case she have no child by me at the expiration of the year, she will be at liberty to do as she likes and will receive the (30) thirty heifers as before mentioned. And Ragnassie, her father, shall receive eight young heifers as dowry, and thereby relinquishes by Bechuana law all command over Teepoo and the child.

“In token my hand, C. Bethell.

“Which can, if necessary, be verified by the Standard Bank (Limited).”

Further evidence is stated in the judgment.

W. Pearson, Q.C. (George Williamson, with him), for the Plaintiff, stated the facts: and submitted that the onus of proving a valid marriage was upon the infant; and see In re Bethell, Bethell v. Bethell (1).

Hastings, Q.C., and Byrne, Q.C., for the infant:–

On the facts and on the evidence taken in Bechuanaland the question to be decided is, whether the marriage of Christopher Bethell, a domiciled Englishman, in a foreign country with Teepoo, a woman of a native tribe, was good and valid, notwithstanding polygamy may prevail there. A marriage celebrated abroad according to, and valid by the lex loci is valid everywhere: Dalrymple

(1) 34 Ch. D. 561.

[*225] v. Dalrymple (1); and Lord Wensleydale in Brook v. Brook (2) said: “It is the established principle that every marriage is to be universally recognised, which is valid according to the law of the place where it was had, whatever that law may be.”

This was the doctrine of Lord Stowell in the case of Herbert v. Herbert (3), and Lord Campbell said (4): “Although the forms of celebrating the foreign marriage may be different from those required by the law of the country of domicil, the marriage may be good everywhere.” Now is that applicable to a marriage in a place which may be described as an uncivilized country?

[STIRLING, J.:- The question is whether the relationship as described by the chief of the tribe is a marriage at all.]

The law of England recognises the principle in those cases as applicable, even though a marriage may be solemnized in a country where the people are not so highly civilized as in England; and where the practice of polygamy may obtain. The Court cannot distinguish between a marriage of an Englishman in the Baralong country and a marriage of an Englishman in Turkey. According to the law of Ceylon, as in England, where a man and woman are proved to have lived together as husband and wife the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage: and those who claim by virtue of the marriage are not bound to prove that all necessary ceremonies have been performed: Sastry Velaider Aronegary v. Sembecutty Vaigalie (5). The question there was whether there had been a valid marriage between two Tamils in Ceylon, where (6) “if the rice ceremony is performed it is a marriage.” Then there is the case of Connolly v. Woolrich (7). Connolly, a Christian, who never lost his domicil of birth in Lower Canada, went to and did reside in the North-West Territories for thirty years, and there married an Indian woman of the Cree Indians, who were pagans, and the Court held that the marriage was valid notwithstanding the assumed existence of polygamy, and divorce at will obtained.

(1) 2 Hagg. Cons. Rep. 54.
(2) 9 H. L. C. 193, 241.
(3) 2 Hagg. Cons. Rep. 271. (PDF, 892 kb)
(4) 9 H. L. C. 207.
(5) 6 App. Cas. 364.
(6) Ibid. 366.
(7) 11 Low. Can. Jur. 197 (1867).

[*226] And in Johnson v. Johnson’s Administrator (1) and 1 Bishop on Marriage and Divorce (2), we find the case of a white man cohabiting with an Indian woman in an Indian country, and having children born there. He afterwards brought them away to Missouri, but left the mother behind. The question was whether they were, and could be recognised as, legitimate in Missouri. That depended upon whether legally the father was the husband of the mother. The lower Court before which the case was tried instructed the jury that unless the agreement of the parents was to live their whole lives together in a state of union, as husband and wife, it was not a marriage, nor were the children of such union capable of inheriting from the father: but on appeal the instruction was held to be wrong, being too restrictive, and would operate to nullify all Indian marriages. Judge Napton said: “In most of the tribes, perhaps in all, the understanding of the parties is, that the husband may dissolve the contract at his pleasure,” and “It is plain that, among the savage tribes on this continent, marriage is merely a natural contract, and that neither law, custom, nor religion has affixed to it any conditions, or limitations, or forms, other than what nature has itself prescribed.” The decisions in those cases come to this, that the rule as to marriage being valid, in a foreign country – in Germany for instance – is valid everywhere, and the Courts here are in the habit of looking at them as useful guides in applying the law to the case under consideration. A Turkish subject came to England and married an English lady, and the marriage was held to be good and valid: Colliss v. Hector (3). Assuming there was a marriage in Bechuanaland, then comes the question whether it involves polygamy, and will not be recognised in this country. The proposition which the Plaintiff will have to rely upon is that every marriage which is celebrated in a country where polygamy is recognised or obtains is a marriage involving polygamy, and if that should be held to be a true proposition there is an end of the infant’s case. But did Christopher Bethell’s marriage involve polygamy? If he had gone through another marriage that would have been polygamous. If a man embraces a faith a tenet of which is that

(1) 30 Missouri state Rep. 72.
(2) 6th Ed. 1881, p. 223.
(3) Law Rep. 19 Eq. 334.

[*227] polygamy is lawful, if he becomes a Mormon or a Mahommedan, and marries, that would involve polygamy, but if an Englishman marries in Turkey, or in the territory of the Baralongs, however absurd or grotesque the ceremonies may be, and intends to live, and does live, with his wife to the exclusion of every other woman, how that can be called polygamy it is difficult to comprehend, at any rate there is no decision in favour of such a proposition. An Englishman goes to a colony and resides among a native tribe where polygamy prevails, and there goes through the form of marriage, and what possible reason is there for saying that it is not a good and valid marriage? It is submitted that there is none. In Dalrymple v. Dalrymple (1) Lord Stowell said: “Marriage, in its origin, is a contract of natural law. ….It is the parent, not the child, of civil society.” In certain cases “marriages will be allowed to be valid according to the law of the native, or of fixed actual domicil: “Story on Conflict of Laws (2). “Where a marriage valid according to the lex loci actus is impossible, from the want of any such law applicable to the case, parties may marry with the forms, so far as it is possible to observe them, and with the consents, respectively required by their own law”: Westlake’s Private International Law (3).

Christopher Bethell intended to, and did, enter into a contract of marriage. He wrote in the document of the 3rd of December, 1883, “In case Teepoo remarries.” It cannot be contended that he could not enter into the contract however grotesque the ceremony gone through may appear to be. Mr. Justice Story, in his Conflict of Laws (4), while he admits it to be the rule that a marriage valid where celebrated is good everywhere, says (5) there are exceptions; those of “marriages involving polygamy and incest.” Does the exception of polygamy void this marriage? There is no authority in support of that proposition, and there seems to be no reason for it. Lord Stowell in Ruding v. Smith said (6): “It is true, indeed, that English decisions have established this rule, that a foreign marriage, valid according to the law of the place where celebrated, is good everywhere else; but they have

(1) 2 Hagg. Cons. Rep. 63.
(2) Ed. 1883, p. 198, s. 118.
(3) Ed. 1880, p. 57, s. 23.
(4) § 113.
(5) § 113a.
(6) 2 Hagg. Cons. Rep. 371, 390.

[*228] not converso established, that marriages of British subjects, not good according to the general law of the place where celebrated, are universally, and under all possible circumstances, to be regarded as invalid in England. It is therefore, certainly, to be advised, that the safest course is always to be married according to the law of the country, for then no question can be stirred;” and the cases of Scrimshire v. Scrimshire (1); Harford v. Morris (2); Middleton v. Janverin (3), also bear upon the point. To maintain that the marriage was invalid it must be made out by the Plaintiff that it was celebrated with the intention on the part of Christopher Bethell of having the advantage of being able to avail himself of the law or custom which allowed polygamy. His conduct subsequent to the marriage, and his writing and signing the document of the 3rd of December, 1883, in which he made provision for a child which was contemplated, was in accordance with English law, and quite consistent with an honest intention to treat it as a valid marriage. It would have been dishonest if he had treated the marriage as being invalid; and it would be a startling proposition to make that in a country where polygamous marriages are allowed a domiciled Englishman cannot marry without the marriage involving polygamy. If Christopher Bethell had been a Baralong the infant would be legitimate: In re Goodman’s Trusts (4). He must have intended to give the marriage with Teepoo all the characteristics of an English marriage. He solemnly said that he had married her, and they lived together as man and wife. It was in every sense an English marriage, and the Court will not impute to him that he intended to take any advantage of the practice of polygamy.

Under all the circumstances of the case it would be a strong thing to say that he merely intended to form a simple union which he intended to throw over at a future time. Can it be contended that if after the marriage with Teepoo he had contracted a marriage with a woman in this country that would not have been bigamy?

[STIRLING, J.:- The question is, was it a marriage in an English sense?]

(1) 2 Hagg. Cons. Rep. 395. (PDF, 1.3 mb)
(2) Ibid. 423.
(3) 2 Hagg. Cons. Rep. 437. (PDF, 770 kb)
(4) 14 Ch. D. 619.

[*229] Supposing there had been no evidence in the case except that Christopher Bethell had gone through a native marriage, had cohabited with his wife, and had left a child, that, it is submitted, would have been conclusive, without any other evidence of the legitimacy of the child, and unless the Plaintiff can shew something against the propositions advanced on behalf of the infant; and it is submitted that he can shew no authority against them; she should be held to be entitled to the estate.

[The cases of Warrender v. Warrender (1), Piers v. Piers (2), Shaw v. Gould (3), Hyde v. Hyde and Woodmansee (4), and Harvey v. Farnie (5), were also referred to.]

W. Pearson, Q.C., and G. Williamson, for the Plaintiff:–

The claim on behalf of the infant that there was a valid marriage, and that she is the legitimate child of Christopher Bethell, and therefore entitled to take under the will, has failed. To establish the legitimacy of the child it must be proved that her father and mother were united in a manner which the English law alone recognises. The meaning of the word “marriage” in this country is perfectly plain; but certain forms and ceremonies are required by law for the purposes of evidence. In Christian countries marriage is the union of one man and one woman exclusively for the whole period of life: Hyde v. Hyde and Woodmansee; and there must be a mutual interchange of consent by the two persons. Unless there be an interchange of consent there cannot be that which English law recognises as marriage. Was there such an interchange of consent between Christopher Bethell and Teepoo? The Baralong tribe have not laws but only customs when they marry. A marriage solemnized according to the lex loci the law of this country will recognise: Dalrymple v. Dalrymple (6); but if not so solemnized then it is not recognised. There are foreign states, some of which are Christian and some not. Some recognise that which this country calls marriage, and others merely a connection, but that is a different thing from an English marriage. If a British citizen contracts a marriage at a mosque

(1) 2 Cl. & F. 488.
(2) 2 H. L. C. 331. (PDF, 3.4 mb)
(3) Law Rep. 3 H. L. 55.
(4) Law Rep. 1 P. & D. 130.
(5) 6 P. D. 35; 8 App. Cas. 43.
(6) 2 Hagg. Cons. Rep. 54.

[*230] with an Englishwoman, that would not be, according to English law, a marriage. In Turkey or other countries an English marriage can take place before an ambassador or consul. Christians marry according to the rites of the Christian Church established in those countries, and the marriages are held to be valid in this country: Warrender v. Warrender (1). There may be a state in which Christianity is not tolerated, in which England has no representative, and where there is no Christian minister and no church, but even there, if there be an intention to contract a Christian marriage, and an interchange of consent to accept each other in a Christian sense, it will be held, upon the principle of “necessity,” a marriage. No such intention, however, is shewn in this case, and the principles laid down in Ruding v. Smith (2), a case referred to by Sir W. Page Wood, V.C., in Armitage v. Armitage (3), do not apply. An Englishman takes his English common law with him. Was it possible for any domiciled Englishman to contract a marriage unless under or by means of his common law right, and in the presence of an ordained minister? Beamish v. Beamish (4); Reg. v. Millis (5). If a person marries in a civilized country, then the lex loci governs the case, but how far an Englishman can carry into a savage land his own common law rights is shewn in the case of Rex v. Inhabitants of Brampton (6).

Upon these principles the case must be decided. The facts of actual marriage and interchange of consent, which this country recognises, have not been established. A Christian marriage cannot be inferred from the ceremony which was gone through. It has not been shewn that there was any case of “necessity,” even if the parties intended to contract a Christian marriage, in the mode and form in which it was done. The cases of Johnson v. Johnson’s Administrator (7), and Connolly v. Woolrich (8), were not determined in accordance with English law and have no bearing upon this case.

In Johnson v. Johnson’s Administrator the question of fact and

(1) 2 Cl. & F. 488, 531, 535. 2 Hagg. Cons. Rep. 371..
(3) Law Rep. 3 Eq. 343.
(4) 9 H. L. C. 274.
(5) 10 Cl. & F. 534.
(6) 10 East. 282.
(7) 30 Missouri state Rep. 72.
(8) 11 Low. Can. Jur. 197 (1867).

[*231] evidence was one only in reference to Johnson’s marriage with an Indian woman, and whether it could be inferred that some ceremony of marriage took place between them.

The case of Connolly v. Woolrich (1) is of no authority in this country. It was decided upon the old French and Canon laws. The “necessity” there was shewn to be absolute, as there was no minister nearer than 3000 miles away: Armitage v. Armitage (2); Ruding v. Smith (3), and Westlake on Private International Law (4).

The case of Sastry Velaider Aronegary v. Sembecutty Vaigalie (5) has no bearing on this case whatever. The question of ceremony as constituting a Christian marriage did not arise in that case: Story’s Conflict of Laws (6).

It is submitted that from the proved facts the Court cannot assume, having regard to the place where the marriage took place, that any consents were interchanged. There is certainly no evidence of any such interchange as in a Christian marriage. There was merely a sexual relationship between Christopher Bethell and Teepoo, and it is submitted that the only inference which the Court can draw from the facts is that there was an intention by both parties that it was to be such a connection as usually exists in the Baralong tribe, and in accordance with their customs. The ceremony was a Baralong one, and none other.

There must be mutual consent: Warrender v. Warrender (7). What did Teepoo consent to? Certainly not to a Christian marriage. She became one of the wives whom Christopher Bethell,residing in Bechuanaland, might have, and to live with him all her life. There was no contract to be his wife exclusive of every other woman. The Court cannot, in regard to assents, assume more than the forms and ceremonies of the marriage import. There is no question of “necessity” in this case. That is shewn by the fact that there was a missionary at Mafeking. As to intention, there was the refusal by Christopher Bethell to marry in a church, and also his statement that he was a Baralong, and

(1) 11 Low. Can. Jur. 197 (1867).
(2) Law Rep. 3 Eq. 343.
(3) 2 Hagg. Cons. Rep. 371, 390.
(4) Ed. 1880, p. 57, s. 23.
(5) 6 App. Cas. 364.
(6) Ed. 1883, p. 198, s. 118.
(7) 2 Cl. & F. 488.

[*232] would take a wife according to their customs. It is clear, from the evidence, that he did not intend to remain in the colony but to return home; and that in none of his communications to his friends at home did he intimate that he was married. Can it be supposed for a moment that he intended to bring Teepoo home as his lawful wife? Certainly not. The summons ought to be dismissed; and a declaration made in favour of the Plaintiff’s title to the estates.

Borthwick, for the Defendants, the trustees of the will.

Hastings, in reply.

1888. Feb. 15. STIRLING, J. (after stating the facts, continued):–

The question thus raised is whether a marriage valid according to English law took place between Christopher Bethell and Teepoo, and it has been very fully and ably argued by counsel on behalf both of the infant and of William Bethell. The facts which gave rise to it, so far as the same appear by the evidence, are shortly these: Christopher Bethell, who left England in 1878, was, shortly after his arrival in South Africa, appointed British Resident with Montsioa, the chief of the Baralongs, a barbarous or semi-barbarous tribe who inhabit a portion of Bechuanalandbeyond the limits of the British dominion. That appointment was afterwards cancelled, but he continued to reside among the Baralongs, and became a storekeeper at Mafeking within their territory. Upon the breaking out of disturbances in Bechuanalandhe joined the Bechuana mounted police, a corps in the employment of the British Government, and he met with his death in an encounter between that force and the Boers. At the time of his death a commission appointing him to a command in the corps had been made out, and was on its way to him, but he did not actually receive it.

As was found by the Chief Clerk polygamy prevails among the Baralongs. According to one witness “Each male is allowed one great wife and several concubines, who have almost the same status in the home as the great or principal wife.” And the chief of the tribe said: “There are those who have two, three, or four

[*233] wives, but the first is the principal wife. The marriage ceremony is thus described. [His Lordship read the evidence set forth above, and continued:-]

Christopher Bethell in October, 1883, went through that ceremony with Teepoo, a niece of Montsioa, who gave an account of what took place. [His Lordship read the depositions of the chief set forth above].

On the 3rd of December Christopher Bethell wrote and signed a document. [His Lordship read it, and continued:–]

Christopher Bethell kept up communication with various members of his family down to shortly before his death. He from time to time expressed his intention to return to England; and that portion of the Chief Clerk’s certificate which finds that his domicil was English has not been excepted to. He never mentioned the marriage to any of his relatives; and there is no evidence that he ever introduced Teepoo, or spoke of her to any European, as his wife. One of the witnesses stated that he always called her “that girl of mine.” Although it was not formally in evidence, it was stated at the Bar, and the statement was accepted by counsel on behalf of the infant, that the contents of the testator’s will were communicated to Christopher Bethellshortly after his father’s death in 1879; and that the income of the property, amounting to about £600 a year, was regularly remitted to him down to the time of his death.

I have now to inquire what is the law applicable to the case. In Warrender v. Warrender (1) Lord Brougham said (2): “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.” This is the general rule of law and is relied on by the counsel for the infant. His Lordship, however, afterwards qualifies his statement of the rule as follows: “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 and its

(1) 2 Cl. & F. 488.
(2) 2 Cl. & F. 530-533.

[*234] construction. If indeed there go two things under one and the same name in different countries – if that which is called marriage is of a different nature in each – there may be some room for holding that we are to consider the thing to which the parties have bound themselves, according to its legal acceptance in the country where the obligation was contracted. But marriage is one and the same thing substantially all the Christian world over. Our whole law of marriage assumes this; and it is important to observe, that we regard it as a wholly different thing, a different status from Turkish or other marriages among infidel nations, because we clearly never should recognise the plurality of wives, and consequent validity of second marriages, standing the first, which second marriages the laws of those countries authorize and validate. … Indeed if we are to regard the nature of the contract in this respect as defined by the lex loci, it is difficult to see why we may not import from Turkey into England a marriage of such a nature as that it is capable of being followed by and subsisting with another, polygamy being there of the essence of the contract.” That statement of the law was acted upon by Lord Penzance in the case of Hyde v. Hyde and Woodmansee (1), in dealing with the case of a Mormon marriage celebrated at Salt Lake City. He there says (2): “The matrimonial law of this country is adapted to the Christian marriage, and it is wholly inapplicable to polygamy” and (3), “I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”

I conceive that, having regard to these authorities, I am bound to hold that a union formed between a man and a woman in a foreign country, although it may there bear the name of a marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England unless it be formed on the same basis as marriages throughout Christendom, and be in its essence “the voluntary union for life of one man and one woman to the exclusion of all others.” Now it is plain that Christopher Bethell intended that Teepoo should

(1) Law Rep. 1 P. & D. 130.
(2) Law Rep. 1 P. & D. 135.
(3) Law Rep. 1 P. & D. 133.

[*235] have a status different from and higher than that of a mere concubine. Indeed the attempt to form such a connection with any woman of the tribe, and still more with one nearly related to its chief, would probably have been attended with unpleasant, not to say dangerous consequences. The evidence clearly proves that Christopher Bethell intended that the relationship between himself and Teepoo should at least be that of husband and wife in the sense in which those terms are used among the Baralongs. That relationship, however, is essentially different from that which bears the same name in Christendom, for the Baralong husband is at liberty to take more than one wife; and it must therefore be determined whether the union between Christopher Bethell and Teepoo was a marriage in the Christian or merely in the Baralongsense. In my opinion the latter alternative is the conclusion to be arrived at upon the evidence before me. To begin with, the cohabitation between Christopher Bethell and Teepoo lasted for only a few months. During that time both resided in the Baralongcountry. Christopher Bethell, although he kept up communication with his relatives at home, never mentioned his marriage to them. He never introduced Teepoo or spoke of her to any European as his wife. In short there is an entire absence of that reputation of marriage (in the Christian sense) which has in many cases afforded weighty evidence of the actual existence of such a union. Next it is to be observed that Christopher Bethellpositively and emphatically refused to marry Teepoo in church, and that not on the ground that there was any difficulty in finding a place of religious worship where the marriage ceremony might have been performed, but upon the allegation, which he repeated more than once, that he was a Baralong, and wished to be married according to Baralong customs. He thus desired to be regarded as being, for the purpose of the relationship he was about to form, a member of the tribe. I think that the proper inference is that he meant to enter into no higher or other union than that which between members of the tribe was regarded as a marriage. This conclusion appears to me to be strongly confirmed by the document of the 3rd of December, 1883. It can scarcely be supposed that if Christopher Bethell regarded his union with Teepoo as a marriage, in the sense in which it is understood

[*236] among Englishmen, and the child, referred to in that document, as legitimate, he would have made such provisions as are therein contained for the maintenance, education, and advancement in life of the child. He was in receipt of an income of £600 a year from an estate in Yorkshire; and he knew of the provisions of his father’s will, under which a legitimate child of his would succeed to the property; yet he directed that his child by Teepoo should be maintained and educated up to the age of twenty-one on the proceeds of thirty heifers to be purchased out of the proceeds of a sale of his property at Mafeking, to be effected by his friend Mr. Rowland, who was a resident among the Baralongs. It is true that he speaks of the “re-marriage” of Teepoo, and makes provision for the “dowry” to be received by her, and by her father; but in my opinion he used those terms in the sense in which they were understood among the Baralongs, and his instructions were directed simply to ensure the fulfilment of obligations which he conceived to be cast upon him by their laws or customs. Finally, Teepoo herself has given no testimony in this case. No doubt the evidence was completed before her child was made a party to the cause, but I should willingly have listened to any application on the infant’s behalf for leave to adduce further evidence. No such application has been made; and there is nothing to shew that Teepoo regarded herself as entering into any other union than such as prevails among the tribe to which she belongs, or that she would have been, or would have considered herself to be, aggrieved if Christopher Bethell had availed himself of the Baralong custom and introduced a second or third wife into his household. I am, therefore, of opinion that the union between Christopher Bethell and Teepoo was a marriage in the Baralong sense only, and was not a valid marriage according to the law of England. In the view which I have taken it is unnecessary for me to express an opinion on many of the numerous points relating to the law of marriage which were discussed before me, but I ought, perhaps, to refer to two cases which were cited in support of the contention on behalf of the infant, viz., Johnson v. Johnson’s Administrator (1) and Connolly v. Woolrich (2). Those decisions are not, of course, binding upon me, but they are entitled to most

(1) 30 Missouri state Rep. 72.
(2) 11 Low. Can. Jur. 197.

[*237] respectful consideration, and in the absence of direct English authority might have exercised a weighty influence upon my decision. The former of those cases was decided in 1860, before Hyde v. Hyde and Woodmansee (1), and in the latter judgment was given on the 9th of July, 1867, but Hyde v. Hyde and Woodmansee, which was decided on the 20th of March, 1866, was not referred to. I am not sure that the learned Judges who decided those cases took the same view of the law as is expressed by Lord Penzance, by which I consider myself to be bound; but in both cases the facts were very different from those in the present case; and circumstances were proved which might, in my judgment, well lead to the conclusion, consistently with the doctrine laid down in Hyde v. Hyde and Woodmansee, that the marriages there under consideration were valid according to the law of England. The summons taken out on behalf of the infant must be dismissed, but the costs of the infant will be paid out of the estate. Beyond that I have no power to make any order; but I cannot refrain from again expressing the hope that the members of the family who, under this decision, will succeed to the property of which Christopher Bethell was tenant for life, will deem it to be their duty to make an adequate provision for one who, whatever may be her legal status, is undoubtedly the child of a very near relative.

(1) Law Rep. 1 P. & D. 130.

T. F. M.

Compare: Consorts de Cousin de Lavallière c/ Epoux de la Bernardie, Cass. Req. 14 March 1933, Sirey, 1934. 1. 161.