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Original
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The Duchess
of Kingston's Case.
THE COURT OF
KING'S BENCH
Original Citation: (1776) 1
Leach 146
English Reports Citation: 168 E.R.
175
S C. 1 East, P. C. 468, 20
St. Tr. 355 Referred to, Galbraith v. Neville (1789), 1 Doug. K. B. 6n., Wilson
v. Rastall (1792), 4 Term Rep 753, Kennell v Abbott (1799), 4 Ves. 802; White
v. Hall (1806), 12 Ves. 321, R v Knaptoft (1824), 2 B. & C. 883; Stafford
v. Clark (1824), 9 Moore, C. P. 724, Bland v Lynam (1827), 5 L. J. (O. S) C. P.
87, Martin v. Nicolls (1830), 3 Sim. 458; Thompson v. Blackhurst (1833), 1 Nev.
& M. K. B. 266; Bandon v. Becher (1835), 9 Bli. (N. S.) 532, Doe d Peter v.
Watkins (1837), 3 Bing (N. C.) 421: R v. Wye (1838), 7 Ad & El. 761; R. v.
Caley (1841), 5 Jur. 709; Hill v. Barry (1842), 7 Jur 10; R v Sow (1843), 4 Q
B. 93, Meddowcroft v. Huguenin (1844), 4 Moo. P. C. D. 386; Robertson v. Struth
(1844), Dav & Mer. 772, Barrs v. Jackson (1845), 11 Ph 582, Tarry v Newman
(1846), 15 M. & W. 645; R. v. Smith O'Brien (1848), 7 St Tr (N S) 1, Barley
v. Harris (1849), 13 Jur. 341, de Bode v. R (1849), 13 Q. B. 364; R v.
Basingslake (1851), 14 Q. B. 611, Bank of Australasia v Nias (1851), 16 Q B
717, R. v. Haughton (1853), 1 E. & B. 501, Shedden v. Patrick (1854), 23 L.
T. (O S.) 194, R. v. Harlington Middle Quarter (1855), 4 E. & B 780,
Cammell v Sewell (1858), 3 H. & N. 617; Routledge v. Hislap (1860), 2 E.
& E 549, Accidental Death Insurance Co. v Mackenzie (1861), 5 L. T. 20;
Howlett v. Tarte (1861), 10 C. B (N. S.) 813; Hunter v. Stewart (1861), 4 De G.
F. & J. 168; "The Justyn" (1862), 6 L. T. 553; Swan v. North
British Australasian Co. (1862), 7 H & N 603; Rogers v. Hodley (1863), 9
Jur. (N. S.) 898; Simpson v. Fogo (1863), 8 L. T. 61; Nawab Sidhee Nazur Ally
Khan v. Ojoodhyaram Khan (1866), 10 Moo Ind. App. 540, R. v. Fanning (1866), 10
Cox. C. C 411; Patch v Ward (1867), 3 Ch. App. 203; Finney v. Finney (1868), L.
R. 1 P & D. 483; Ochsenbern v Papeher (1873), 8 Ch. App. 695; Flitters v
Alfrey (1874), L. R 10 C. P 29, Dover v Child (1876), 34 L. T. 737; Leggott v
Great Northern Railway Co. (1876), 1 Q. B. D 599, R. v. Hutchings (1881), 6 Q.
B. D. 300; Abouloff v. Oppenhermer (1882), 10 Q B D 295; Priestman v. Thomas
(1884), 9 P. D. 210, Caird v Moss (1886), 33 Ch. D. 22; Seton v. Lafone (1886),
18 Q B D 139, Borough v Collins (1890), 15 P. D. 81; Kingston-upon-Hull
Corporation v. Harding (1892), 62 L J. Q. B 55, A -G. for Trinidad and Tobago
v. Eriche, { 1893] A C. 518; Boswell v. Coaks (No. 2) (1894), 86 L. T. 365 n.;
Ballantyne v. Mackinnon, [1896] 2 Q. B. 455, Dalton v Fitzgerald (1897), 66 L.
J. Ch. 604; North-Eastern Railway Co v. Dalton Overseers, [1898] 2 Q. B. 66;
Bynoe v. Bank of England, [1902] 1 K B 467; Turley v. Daw (1906), 94 L. T. 216,
Hill v Clifford, [1907] 2 Ch 236, Burdett v Horne (1911), 27 T. L. R. 402; In
the Estate of Crippin, [1911] P. 108; Bedford v. Cowtan, [1916] 1 K. B. 980;
Isaacs v. Salbstern, [1916] 2 K. B. 139; C (otherwise H.) v C, [1921] P. 399;
Ord v. Ord, [1923] 2 K. B. 432
See-also
Strange, 889, where on " nul ttel record" pleaded "
segrave," for " seagrav½ " was held no vaiiance, qitia
idem sonans.-But Shakespeare and Shake-ptaj ar*nct idemsonans, 10 East's Term.
Rep. 83.
176 THE DUCHESS
OF KINGSTON'S CASE 1 LEACH 147.
Sidkee Nazur Ally Khan v.
Ojaodhyaram Khan (1866), 10 Moo Ind. App. 540 , R. v. Fanning (1866), 10 Cox C.
C 411; Patdi v Ward (1867), 3 Ch. App. 203; Finney v. Fmney (1868), L R. 1 P
& D. 483; Ochsenbem v Papelier (1873), 8 Clu App. 695; -F&fters v ^// ^
(1874), L. R 10 C. P 29, Dover v CftiZrf (1876), 34 L. 1. 737;
Z½^o½ v Great Northern, Railway Co. (1876), 1 Q B D 599 , fl. v
Hiftehsngs (1881), 6 Q. B. D. 300; Abouloffv. Oppenkeimer (1882), 10 Q. B D 295
; Pn&tman v. JAowos (1884), 9 P. I . 210, Caird v Moss (1886), 33 Ch D. 22;
Seton v. La/one (1886), 18 Q B D 139, Borough v CWh/w (1890), 15 P. D. 81;
Krngston-upan-HuU Corporation v. Harding (1892), 62 L J. Q. B 55, A -G. for
Tr-wudad and Tobago v. Ertche, [1893] A C. 518 ; Boswell v. Coaks (No. 2)
(1894), 86 L. T. 365 n.; BaHantyne v. Mackmnon, [1896] 2 Q B. 455 , Dation v
Fitzgerald (1897), 66 L. J. Ch. 604; North-Easlern Railway Co v. Ddton
Overseers, [1898] 2 Q. B. 66 ; Bynoe v. #an of England, [1902] 1 K B 467 ;
Tttr% v. at½ (1906), 94 L. T. 216 , Hdl v Clifford, [1907] 2 Ch 236,
Burdett v Home (1911), 27 T. L. R. 402; /½ ffe #a*afe of Crtppin, [1911]
P. 108; Bedford v. Cotttfaw, [1916] 1 K. B. 980^ Isaac* v. Satbstevn, [1916] 2
K. B 139; C (otherwise H.) v C , [1921] P. 399 ; Ord v. Ord, [1923] 2 K. B, 432
]
Elizabeth Chudleigh, daughter of
Colonel Thomas Chudleigh, of Chelsea College, was married to the Honourable
Augustus John Hervey ou the 4th of August 1744, at the parish-church of
Lainston in the county of Southampton, as appears by the register of that place
On 9th November 1768, she instituted a suit of Jactitation of Marriage against
Mr Hecvey in the Consistory Court of the Bishop of London , and on tie 10th
February 1769, sentence was pronounced, " That the said Elizabeth
Chudleigh was and now is a Spinster, and free from all matrimonial contracts
and espousals with the said Augustus John Hervey " On the 8th March 1769,
Miss Chudleigh was married, by special licence from the Archbishop of
Canterbury, to Evelyn Pierpomt, Duke of Kingston And on the 9th January 1775,
an indictment of polygamy was found at Hicks's Hall, " That Elizabeth, the
wife of Augustus John Hervey, Esq of Hanover-square, in the county of
Middlesex, being then married, and then the wife of the said Augustus,
feloniously did marry and take to husband Evelyn^ Pierpoint, Duke of Kingston,
the said Augustus John Hervey being then alive^ Ac."
On the 18th May 1775, a writ of
Certioran was granted by Lord Mansfield to Bemeve the proceedings into the
Court [147] of King's Bench , but this wnt was superseded , and on llth November
1776, another writ of Certioran, signed " York," issued to remove the
proceedings before the King in Parliament.
On tie 15th; April 1776, a
commission was directed to Henry, Earl Bathurst, ChaneeHor, appointing him Lord
High Steward of Great Britain, and authorizing Mm to try the said indictment
The Lords came on the same day from their own kause inla the court erected in
Westminster-Hall; and Her Grace, who had been adanaftedtto bail, appearing at
the bar, was desired to kneel, and in that posture she was arraigned by the
Lord High Steward. The indictment was then read by the Clerk of fete Crow^ to
which the prisoner pleaded Not Guilty.
The Duchess of Kingston
immediately submitted to the Court, that as her supposed marriage with Mr.
Hervey was the ground of the present charge against her, the sentence of the
Consistory Court, pronouncing her free from all matrimonial contracts and
espousals with him, remaining unreversed and unimpeached, ought to be
conclusive ; and that no other evidence ought to be received or stated against
ter respecting such marriage.
The whole of the proceedings in
the Ecclesiastical Court, from the libel to the sentemie^ were read ; and the
question, Whether the sentence was conclusive or not, Was very elaborately
argued fey the Counsel on each side (for the Crawn, Mr. Att. Gen , Mr. SoL Geo,
Mr Dinning, Dr Harris. For the prisoner, Mr Wallace, Mr Mans-ield, Dr. Calvertj
Dr, Wynne) ; but the Lords ordered the triaj to proceed, and after a hearing of
four days, pronounced the prisoner Guilty.
In comsequence of this verdict,
several questions were submitted to the consideraÁtion of the Twelve Judges-,
and the following points were resolved.
First, That a sentence of the
Spiritual Court against a marriage, in a suit for jactitation of marriage, is
not conclusive evidence, so as to stop the Counsel for the Crown frem proving
the said marriage in an indictment for polygamy
Secondly, That,, admitting the
sentence to be conclusive upon such indictment,
1 LEACH 148. THE KING V. JOHN BROWN
177
the Counsel for the Crown may be
[148J admitted to avoid the effect of such sentence, by proving the same to
have been obtained by fraud or collusion.
Thirdly, That by the statute 1 Edw
VI. c. 12, s 16, a Peer, convicted of a clergy-able felony, is intitled to his
immediate discharge, without reading or burning in the hand, or being liable to
imprisonment by the 18 Eliz c 4, s 3 (2 Hawk 475). Ancl that this privilege
given by statute being such as may be enjoyed by a Peeress, is by operation of
law communicated to her, and puts her in the same situation as a Peer. The
consequence of which is, that a Peeress convicted of a clergyable felony,
praying the benefit of this statute, is not only excused from capital
punishÁment, but ought to be immediately discharged, without being burnt in the
hand (see5 Ann. c. 6, and the 19 Geo III c 74, s. 3), or liable to any
imprisonment
The prisoner was accordingly
discharged.