The Hon.
Lady Anne Warrender,-Appellant; The Right Hon sir George Warrender,
Bart.,-Respondent.
FROM THE
COURT OF SESSION.
Original Eng. Rep. version. PDF
Original
Citation: (1835) 2 Cl & Fin 488
English
Reports Citation: 6 E.R. 1239
[Mews'
Dig. viii. 226; S. C. 9 Bli. N.S.
89. Among the numerous cases in which Warrender v. Warrender has been dealt
with, it may suffice to refer to Harvey v. Farnie (1880-82), 8 A. C. 43; and Le
Mesurier v. Le Mesurier (1895), A. C. 517, where all the principal authorities
are examined. See also Westlake's Priv. Int. Law, 3d Ed. 65, 78, and Dicey,
Confl. of Laws, 2nd Ed. 388. ]
A
Scotchman domiciled in Scotland was1 married in England to am Englishwoman, and
by marriage contract secured to her a jointure on his Scotch estates. They went
to Scotland after their marriage, and resided there a short time, when they
returned to England. They afterwards agreed to a separation, and articles of
agreement were executed, by which the husband secured a separate maintenance to
the wife during the separation. From the time of the separation the wife
resided abroad, and the husband continued to be domiciled in Scotland, where he
raised an action of divorce against her, on the head of adultery, alleged to
have been committed abroad after the separation. held by the House of Lords,
affirming the interlocutor of the Court of Session, that the wife's legal
domicile was in Scotland, where the husband's was, and that she was amenable to
the jurisdiction of the Scotch Court; that an edictal citation, with actual
intimation by serving a copy of the summons personally, was a good citation;
and that it is competent to the Scotch Courts to entertain a suit to dissolve a
marriage contracted in England. This was an appeal against an interlocutor of
the Court of Session in Scotland, repelling preliminary defences taken by the
Appellant to an action of divorce raised against her there, in September 1833,
at the instance of the Respondent. The main question, now for the first* time
submitted for adjudication to [489] this House, was whether the Scotch Courts
have jurisdiction to entertain suits for dissolving marriages contracted and
solemnized in England, according to the law of England. The Respondent, in the
case prepared on his behalf in the Court of Session, and afterwards presented
to this House for the purposes of the appeal, stated, among other things, that
he was born in Scotland, of Scotch parents ; succeeded to the family estates in
the county of East Lothian, and acquired, by purchase in other counties of
Scotland, landed property of considerable extent and value; that on succeeding
to the estate of Bruntsfield near Edinburgh, in 1820, he fitted up the
mansion-house there as his principal place of residence, and actually resided
there from that period; that in early life he obtained a commission in the
Berwickshire militia, and was still lieutenant colonel of that regiment. In
1807 he was returned to Parliament for the Haddington district of burghs;
afterwards was elected Member for an English borough, and during his attendance
on his parliamentary duties, for the first five years, he lived in temporary
lodgings or in hotels in London, having then no house or establishment in any
part of England. In 1812, being appointed a member of the Board of Admiralty,
he took possession of a house assigned to him in right of that appointment, and
continued to occupy it until April of the year 1822; but in every year during
that period he returned to Scotland, whenever his official duties permitted his
absence from London. In October 1810, while the Respondent was residing in
lodgings in London, he was married, according to the laws of England and the
rites of the Church of England, to the Hon. Anne Boscawen (the Appellant),
daughter of George Evelyn, Viscount [490] Falmouth, then deceased, with the
consent of her guardians, she being only 18 years of age: That previous to and
in contemplation of the marriage, a settlement in the English form, * The same
question was submitted in Tovey v. Lindsey, 1 Dow. 117, but was not decided.
1239 II CLARK & FINNELLY. WARRENDER V. WARRENDER [1835]
to which
the Appellant's guardians were parties, was duly made and executed, securing
the interest of her fortune to
herself for life; and also
an ante-nuptial contract of marriage, in the Scotch form, was executed
at the same time, by which it was provided that the Appellant should be secured
in a jointure of 1000 a year, partly over the Respondent's heritable estates of
Lochend, and partly over his lands at Goodspeed, both situated in the county of
Haddington; and in virtue of the precept of sasine contained in that contract,
the Appellant was afterwards duly infeft in those lands: That immediately after
the marriage the Respondent, accompanied by the Appellant, returned to
Scotland, and they resided together on his paternal estates there for the
greater part of the two years next following; the Respondent being obliged by
the duties of his office in 1812 and thenceforwards, to reside more constantly
in London, where the Appellant also resided with him. The Respondent further
stated, that in the year 1814, and subsequently, differences sprung up between
him and the Appellant; and that in 1819, at the solicitation of herself and her
relations, he reluctantly consented to a. separation. The articles of agreement
entered into on that occasion, dated the 1st of January 1819, and made between
the Respondent of the first part, the Appellant of the second part, and her
brothers, Viscount Falmouth and the Hon. and Rev. John Evelyn Boscawen, of the
third part, recited, that " Whereas circumstances have arisen which have
induced the said Sir George War-[491]-render and Dame Anne, his wife, to agree
to live separate and apart from each other henceforth, until these presents
shall be annulled as hereinafter mentioned," etc.; and, after securing to
the Appellant certain annual income, to be paid by the Respondent to' her
trustees, at such periods and in such manner as therein mentioned, for her
separate maintenance during the separation, they contained the following
clauses: " That if the said Sir George Warrender shall in any one year be
obliged to pay and shall pay any debt or debts of the said Dame Anne Warrender
hereafter contracted, to the amount in the whole of upwards of 1010 (the annual
sum secured for her separate maintenance), then and thenceforth the covenants
of the said Sir George Warrender, hereinbefore contained, shall cease and be
void;" and again, " That if the said Sir George Warrender and Dame
Anne his wife shall jointly be desirous of annulling these presents*, and the
agreements and provisions therein contained, and shall signify such desire in
writing indorsed on these presents, or on a duplicate thereof, (such writing to
be under their joint hands and attested by two credible witnesses,) then and from thenceforth these
presents, and every article, matter and thing herein contained, shall cease,
determine and be null and void, anything hereinbefore contained to the contrary
notwithstanding." On the 6th of February 1819, the Respondent addressed
the following letter to1 the Appellant's brothers, the trustees of the
articles: " My Lord and Sir,-Although I have objected to have any clauses
inserted in the articles of separation between Lady Warrender and myself, which
should contain a permission from me to her to1 go and reside where she pleases,
or which should preclude me from suing her in the Ecclesiastical Court for
restitution of conjugal rights, I hereby [492] pledge myself that Lady
Warrender shall be at liberty, during our separation, to go and reside where
she pleases, and that I will not institute any suit against her, for the
purpose mentioned. I am, etc., G. Warrender." The Respondent in his case
further stated, that he and the Appellant had lived separate ever since the
date of the said recited articles; he continuing to' reside sometimes in
Scotland, sometimes in London, as1 required by his official situation and
parliamentary duties; but that the Appellant went to the Continent, and, except
one short, visit to England in 1821, she had ever since resided abroad, in
France, Switzerland, or Italy: that circumstances: having lately come to the
knowledge of the Respondent, which led him to distrust the Appellant's conjugal
fidelity, he, upon an investigation directed by him, satisfied himself that she
had, in 1822, formed an improper intimacy with one Luigi Rabitti, a
music-master, and had been guilty of adultery with him in that year, and kept
up an adulterous intercourse with him through the years 1822, 1823, 1824, 1825,
1826, 1827 and 1828, in Paris, Dieppe and Versailles, all in the kingdom of
France; whereupon the Respondent instituted his suit praying for " a,
decree, finding and declaring the Appellant guilty of adultery, and divorcing
and separating her from his fellowship and company; and also finding and
declaring the Appellant to have forfeited the rights and privileges
1240 WARRENDER V. WARRENDER [1835] II CLARK & FINNELLY.
of a lawful wife; and that the
Respondent is entitled to marry any person he pleases, sicklike and in the same
manner as if he had never been married, or the Appellant were naturally dead;
conform to the law and practice of Scotland." The Respondent's summons of
divorce, concluding in these terms, was executed against the Appellant [493]
edictically as forth of Scotland,* and a copy thereof was served personally on
her at her residence at Versailles. The Appellant appeared to process, and
denying that she had been guilty of conjugal infidelity, she took three
preliminary defences to the action : First, that she was not subject to the
jurisdiction of the Court, being English by birth, parentage and connection,
and never having been in Scotland since the date of the contract of separation;
nor had she any Scotch property, except that part of her eventual matrimonial
provision was secured over the Respondent's Scotch estate: her plea was, that
she was not within the jurisdiction of the Court of Session, even although it
were to be assumed or admitted that at the date of the marriage the Respondent
was and had ever since been a domiciled Scotchman : the contract of separation,
which was fully carried into effect for fourteen years, excluded the
application of the Scotch legal fiction, that the domicile of the husband is
necessarily the domicile of the wife. Secondly though the appellant should be
held amenable to the Court, on the ground of the husband's domicile being in
Scotland, and his domicile being the wife's, still she had not been properly
cited even in that view: she had only been cited as " forth of
Scotland;" whereas, if jurisdiction over her be claimed on any presumption
that she was living with the husband in that country, she ought, besides
receiving personal intimation, to have been cited as at his residence, or
somewhere else in Scotland. Thirdly, that the Appellant being a domiciled
Englishwoman at the time of her marriage, [494] and having been married in
England according to the rites- of the English church and to the English law,
her marriage could be dissolved only by Parliament; at all events it could not
be dissolved by a Scotch Court, when all the alleged acts of conjugal
infidelity were stated to have been committed in foreign countries. The
Appellant, in conclusion, insisted, that the marriage being an English
marriage, and the Respondent himself being, at the date of both the contract of
marriage and contract of separation, a domiciled Englishman, all questions
relative to the effect of either of those contracts should be decided according
to the law of England; and by that law the marriage was indissoluble, except by
Act of Parliament. The Lord Ordinary, having heard counsel for both parties in
these defences, appointed them to give in mutual cases. Before the cases were
lodged, the parties being at issue as to the fact of the Respondent's domicile,
a joint minute was entered on the pleadings, by which the Dean of Faculty, for
the Respondent, stated, " That in the cases to be lodged for the parties,
he consented that the preliminary defences should be argued on the assumption
that the Respondent was a. domiciled Scotchman at the date of the marriage, and
had been so ever since; provided always, that the facts stated in the summons
for founding his domicile should not afterwards be disputed in discussing the
preliminary defences:" and the Solicitor-general, for the Appellant,
answered, " that he was willing to discuss the preliminary defences on
that understanding, reserving the whole statements respecting the domicile, in
so far as they may be of avail on the merits." Mutual cases were
subsequently lodged for the parties, and brought before the Lords of the first
[495] division of the Court of Session, who unanimously pronounced an
interlocutor, on the 14th of June 1834, repelling the preliminary defences, and
remitting to the Lord Ordinary to proceed in the cause (12 Shaw and D. 847).
Lady Warrender appealed from that interlocutor. The Attorney-general (Sir J.
Campbell), and Dr. Addams, for the Appellant: - The Appellant has been for the
last twelve years almost constantly resident in France. Denying, in the most
unqualified manner, the truth of the charges imputed to her in the summons, she
is ready to meet them before the proper tribunal; but she decline pleading before what is to her a
foreign Court, where, for many * An edictal citation is given to defenders out
of Scotland, by proclamation at the Marketcross of Edinburgh, and pier and
shore of Leith.-Act of Sederunt, 14th December 1805, s. 1; and see Ersk. B. 1,
tit. 2, s. 18.
1241 II CLARK & FINNELLY. WARRENDER V. WARRENDER [1835]
reasons,
her defence must be conducted under comparatively- great disadvantages; she
has, therefore, taken preliminary objections to the action. In arguing those
objections, the Appellant is bound to assume, hypothetically, the truth of the
statement contained in the Respondent's summons, that he is a domiciled
Scotchman. But it is also clear, from his summons, that, from the year 1812
until within a short period before the raising of the action, he had been
almost constantly resident in England, and that the Appellant was not in
Scotland during the last twenty years. With the exception of two short visits
to Scotland soon after the marriage, the parties resided constantly in England
until the separation in 1819. On that occasion articles of agreement were
executed, and a letter was written by the Respondent, which, bearing express
reference to the contract of separation, must be taken as part of that
contract, and the obligations which it imposes on him must be eon-[496]-sidered
as effectual as if they were embodied in the agreement. By these articles,
which are declared to- be irrevocable except by the joint deed of the parties,
and by the letter taken as part of them, the Appellant was permitted to reside
wherever she pleased; and she accordingly, in the terms of that permission,
took up her residence in France, where, except a short visit to England in
1821, she has continued to reside up to the commencement of this action, and
where also, all the acts of infidelity alleged against her are by the summons
charged to have been, committed. The Appellant has been, under these
circumstances, advised to take preliminary objections to- the action. The first
objection is, that as she was not resident within the jurisdiction of the
Scotch Courts, it was incompetent to insist against her there, in any action
declaratory of her personal status. The rule of law in such cases is, actor
sequitur forum rei. It is true that in the case o-f Brunsdon- v. Wallace (Fac.
Coll. Feb. 1789 ; S.C. Ferg. Cons. Rep. App. 259), where that rule may be said
to1 have been established, there was a, difference of opinion among the Judges;
but that difference arose as to the effect to' be given to the forum originis,
as founding jurisdiction. All doubts upon the point were removed by the
decision of this House in Grant v. Pedie (1 Wils. and Shaw, 716); so that,
notwithstanding the seemingly different decree pronounced in the case of Pirie
v. Lunam (Fac. Coll. March, 1796; S.C. Ferg, Cons. Rep. App. 260), it may be
now considered as settled law in Scotland, that even in the case of a marriage
contracted in that country, the Courts there have no jurisdiction to dissolve
it, unless the defender is a, domiciled native, or resident within the
jurisdiction for forty days before summons served. [497] The rule having been
laid down in the cases referred to, and the principle having been recognised in
subsequent cases, that in all actions in which the wife is the complainant it
is necessary, in order to found jurisdiction, that the husband be a domiciled
Scotchman, or resident in Scotland for a, certain time anterior to the date of
citation ; the question then is, whether, in administering the remedy of
divorce, which, by the law of Scotland, is competent to* the wife as well as to
the husband, a different rule is to be applied in determining the question of
jurisdiction when the husband is the complainant? That a wife may, in point of
fact, be resident in a different country from her husband, is undeniable; but
it may be maintained, as a proposition founded on principle and supported by
legal authority, that as the consortium vitae is the object of matrimony, and
as it is the duty of the parties to live together, therefore, in all cases, the
Court will hold the domicile of the husband to be also the domicile of the
wife. That such is the general rule of law in Scotland, as in England, the
Appellant has no occasion to dispute: she is well aware of the legal maxim, and
that full effect was given to it in the case of French v. Pilcher (Fac. Coll.
June 1800 ; S.C. Ferg. Cons. Rep. App. 262); but, like every other general
rule, it may be subject to exceptions, and may be qualified by the acts of the
parties1. It may be true that the house of her husband is the legal residence
of the wife, and that, whenever it is necessary to cite the wife for her
interest, a citation at the house of her husband may be a good citation. Such
is the import of the case of Cliichester v. Lady Donegal (1 Add. Eccle. Rep.
5-19), where a citation for the wife, left at the [498] house of her husband,
with whom she was then cohabiting, was held to be a good citation. The rule
obtains, too, whether the wife be, in point of fact, resident in her husband's
house or not, provided there has been no separation between them, either
awarded by law or consented to by the parties. Accordingly, a wife who elopes with her paramour from her
husband's house in Scotland, and goes into a foreign country, is still subject
to the
1242 WARRENDER V. WARBENDER [1835J II CLARK & FINNELLY.
jurisdiction
of the Scotch Courts in an action of divorce, since her absence from her
husband's house is, on her part, a gross breach of duty, on which, she can
found no plea in aid of her defence. But the case is different when the parties
are separated by voluntary agreement, or by the sentence of a Judge. In such
cases, the wife, in living separate from her husband, is guilty of no breach of
duty: she is entitled to acquire a domicile for herself, which, as it is her
actual domicile, must also' be held to ba her legal domicile, in questions with
third parties, and above all, in questions with her husband, the party to the
deed of separation. The application of the legal fiction, which makes the
husband's house the legal and proper domicile of the wife, is excluded in this
case by the deed of separation. That deed, which was executed in England, all
the parties to which, except the Respondent, were English, was irrevocable
except by the consent in writing of the principal parties, and the Appellant
never consented to revoke it. The validity of this deed was placed beyond all
doubt by the case of Tovey v. Lindsay (1 Dow, 117) in this House, and was not
affected by the cases of Beeby v. Beeby (1 Hagg. 142), Sullivan: v. Sullivan (2
Addams, 299), Worrall v. Jacob (3 Meriv. 256), or the passages which [499] may
be cited for the Respondent from Roper's Law of Property of Husband and Wife.
These cases show that a deed of separation does not bar a suit for divorce, nor
alter the legal condition of the parties resulting from the state of marriage,
Marsha/I v. Button (per Lord Kenyoo, C. J., 8 T. Rep. 547); but they decide no
question of domicile o r of jurisdiction. The deeds in those cases were
revocable by either party at any time, and each of them was virtually revoked
by the mere act of executing the summons of divorce. It is no part of the
argument for the Appellant that a separation, whether judicial or voluntary,
excludes either party from the remedy of divorce for adultery: all that she
insists upon is, that the trial of such action must be subject to the ordinary
rules regulating jurisdiction in other matters; and that if a wife is legally
resident in a, foreign country, having acquired a domicile there, it is not
more competent for the husband to cite her to a Scotch Court, than it would be
for a wife to cite to the same Court a husband legally domiciled in England.
The agreement entered into by those parties, whether it be practically
productive of inconvenience to the husband or not, is a conclusive answer to
all his arguments founded on the fiction of law in respect to1 domicile. The
remedy of divorce is in Scotland, as in England, a purely civil remedy, of
which the injured party may or may not take advantage; a remedy which the law
will infer, from certain acts of the party, to have been abandoned or
forfeited. Either party, after detecting and being in a condition to prove the
infidelity of the other, may still decline to sue for a, divorce, or may
continue to cohabit with the other, which amounts to' condonation, and excludes
the right [500] to obtain a divorce; or there may be connivance at the offence,
amounting to what is termed lenocinium, which is a complete bar to any action
of the kind. If there are so' many ways in which a husband may abandon, his1
right to demand a divorce, how can it be maintained, with any show of reason,
that a deed of separation is absolutely void, merely because the party chooses
to- allege that an adherence to its express terms will render the attainment of
his remedy only a little more difficult, tedious and expensive? Questions of
jurisdiction may often arise in Courts of Law, on account of the foreign
residence of one or other of the parties; but of the jurisdiction of Parliament
to legislate upon the rights of two natural-born subjects there is no doubt.
While that tribunal, a,nd the Ecclesiastical Courts of England, are open to the
Respondent, he has no reason to complain of being remediless. The question now
at issue was fully considered, both in the Court of Session and in this House,
in the case of Lindsay v. Tovey (Fac. Coll. June 1807; S.C. Ferg. Cons. Rep.
App. 265). The circumstances of that case are these: Martin Eccles Lindsay,
born and educated in Scotland, entered the army, and went with his regiment to
Gibraltar, where, in 1781, he married Miss Tovey, an Englishwoman, and they
remained there till 1784 ; from that time they resided together in Scotland
until 1792, when they went to live at Durham. The husband soon afterwards went
abroad with his regiment, his residence being regulated by the orders of his
superiors. In 1802 a deed of separation was executed at Durham, by which Mrs.
Lindsay accepted an annuity; the deed also declaring, that " the said M.
E. Lindsay shall and will [501] permit and suffer the said Augusta Margaret
Tovey Lindsay to live, inhabit and reside separate and apart from him, in such
place as she shall think proper," etc. In
1243 II CLARK & FINNELLY. WAKRENDER V. WAR RENDER [1835]
1804 Mr.
Lindsay raised against her an action of divorce for adultery before the
Commissaries of Edinburgh, Mrs. Lindsay at the time being in Durham. A
preliminary objection was taken by her to the jurisdiction of the Commissaries,
but they sustained their jurisdiction. The case was brought by appeal before
the Court of Session. Two questions were raised in the progress of that suit:
first, whether the pursuer was a domiciled Scotchman; secondly, whether, if he
was, it necessarily followed that his, wife was also in the eye of the law
domiciled m Scotland, she being, in fact, resident in England, in the terms of
the deed of separation. To the argument for the defender, founded on that deed,
it was answered, that it was by its very nature a revocable deed, and was virtually
revoked by the summons of divorce. The Court of Session, adopting that view,
sustained the jurisdiction of the Commissaries.. The interlocutor of the Court
of Session being appealed from to this House, Lord Eldon said, with reference
to the objection to the jurisdiction by reason of the deed of separation,
" Even if the fiction or rule of law were admitted, that the forum of the
wife followed that of her husband, so as to give jurisdiction to the Scotch
Courts, still the effect of the deed must be to put an end to that rule or
fiction till the deed was revoked. The husband himself had agreed that their
forum should be different, if the wife so pleased, and then he endeavoured by
this process to get rid of the effect of his own agreement" (1 Dow, 138).
Lord Redesdale, [502] concurring in the observations of Lord Eldon, said,
" When it was considered that, on the principles of this decision of the
Court below, any one, from any quarter, might go and establish a domicile in
Scotland, and by that means, even in the face of a deed of separation, draw his
wife to a Scotch forum, and proceed against her for an absolute dissolution of
the marriage, the question must appear to be one of very great importance. If
this were to prevail, any person had it in his power to alter the nature of his
solemn engagements, etc. It could not be just, that one party should be able,
at his option, to dissolve a contract by a, law different from that under which
it was formed, and by which the other party understood it to be governed "
(1 Dow, 139).-[Lord Lyndhurst: These opinions of those eminent Judges were not
delivered as a judgment, and they appear to go on a misapprehension of some of
the facts.]-Their opinions are not cited as a judgment; no judgment was
pronounced by this House on that case, except to remit it for consideration to
the Court below, and Mr. Lindsay died in the meantime. The observations of
these eminent persons have been cited as being entitled to the greatest
attention, and being applicable to this case, which has this additional
feature, that the deed of separation was declared not to be revocable except by
the joint written consent of the Respondent and Appellant. The Respondent has
alleged, as another argument for the Scotch jurisdiction, that as the Appellant
was infeft in real estate in Scotland in pursuance of her marriage contract,
she must be held as domiciled there, where the subject of her settlement was
situated.-[Lord Brougham: Do you, Sir Wm. Follett, [503] mean to support your
case on that ground 1-Sir Wm. Follett: Certainly not.]-That being the only
circumstance that distinguished this from a, purely English marriage, if the
argument arising from it be abandoned, Lady Warrender is in the same situation
in which Mrs. Lindsay was,-liable to be sued in England, but not amenable to
the jurisdiction of the Scotch Courts. The second plea to the action is, that
even if, according to the legal fiction, the domicile of the husband should be
held to be the domicile of the wife, still the Appellant has not been duly
cited to appear to this action. This is a, point of practice in Scotland, best
known to the practitioners there. The facts agreed upon are, that the summons
was executed against the Appellant edictally, as forth of Scotland ; that is,
by proclamation at the market-cross of Edinburgh, and pier and shore of Leith:
it was also personally intimated to her, by service of a copy on her at her
residence at Versailles. But if the Appellant is to be held as resident at her
husband's in Scot land, it plainly follows that the summons should be served
against her at her husband's house; and it is a contradiction to cite her as
forth of Scotland, when it is insisted that by fiction of law she is resident
in Scotland, and when it is that fiction alone which renders this action
competent. This objection to the service occurred in the case of French v.
Pilcher (Fac. Coll. June 1800; S.C. Ferg. Cons. Rep. App. 262), and it was
stated from the Bench in Scotland, that the defender should be cited not only
at the market and pier and shore, but also at the house of her husband. The
1244 WARRENDER V. WARRENDER [1835] II CLARK & FINNELLY.
personal
intimation, which may be required ad majorem cautelam, did not supply the want
of a regular execution of the summons. The Respondent, while he [504] rested
his whole case on a legal fiction, rejected the fiction altogether in the
execution of the summons. The last and main ground of objection to the suit in
Scotland is, that even if the Appellant were amenable t0 the jurisdiction of
the Court there, it is incompetent for that Court to dissolve this marriage,
contracted in England, with an Englishwoman, and celebrated according to' the
rites of the English Church. This objection goes to the extent, that although
the evidence of adultery were clear and conclusive, yet no Court of Law can
dissolve this marriage; no Court of Law is competent to take cognizance of the
conclusion of the summons. The general result of cases decided even in
Scotland, such as Edmondstone v. Edmondstone, Forbes v. Forbes, and Levett v.
Levett (Ferg. Cons. Rep. pp. 68, 168, 209), comes to this, that am English
marriage cannot be dissolved for adultery by the Scotch Courts, unless the
adultery was committed there, and the party cited be domiciled there. But the
authority on Lolley's (Fac. Coll. March 1812, and Russ. and R. C. C. 237) ca.se
is quite decisive on this question. Lolley had been married in England : his
marriage was dissolved by the Commissary Court in Scotland: he thereupon
contracted a second marriage in England, for which he was tried and convicted
of bigamy. In that case, which is entitled in Scotland, in the action of
divorce, Sugden v. Lolley (Sugden being the maiden name of the wife), the
adultery was charged to be committed in Scotland, and the defender was actually
residing there; two material ingredients which do not belong to the present
case. If the English Judges did not intend to break in upon the jurisdiction of
the Scotch Courts, Lolley was unjustly convicted of bigamy, and was illegally
sentenced to transportation. But there is no question that Lolley's case"
was well decided, and the principle [505] of the decision is, that the contract
of marriage, like other personal contracts, is to be construed according to the law of the country where the
contract was made. In Scotland, marriages may be dissolved for adultery or
desertion; in Prussia, for incompatibility of temper; in France, for any cause
that either party may assign ; but an English marriage cannot be dissolved,
except for adultery, nor even then by any principal tribunal in England ; and
that which was the principle of the decision of the twelve Judges in Lolley's
case, has been adopted by one of their Lordships very recently, in M'Carthy v.
Decaix (vide infra), in the Court of Chancery, and by an eminent Ecclesiastical
Judge, in the case of Beazley v. Beazley (3 Hagg. 639). It is not denied that
many decisions have been from time to time pronounced in the Scotch Courts,
supporting the Respondent's case to the fullest extent: but not one of those
cases has been appealed from ; for they were all collusive. The present case is
the first which gives this superior tribunal an opportunity of settling the
law. This House, having regard to the morals of the people, will be. more
inclined to restrict than extend the facility of divorces. The reasons given by
the Court below for sustaining their jurisdiction are far from being
satisfactory (12 Shaw and D. 847-854).-[Lord Lyndhurst: The Judges in Scotland
hold, that if other contracts made in England are dissoluble, so is the
contract of marriage.-Lord Brougham: It cannot be contended that all the
effects of a contract in one country are to be attributed to it in another
country: if that were so, children born before t'ie marriage of the parents,
being legitimate in Scotland, should be held legitimate in England.]-They are
legitimate in England; but they are not heirs, and that is by reason [P06] of
the statute of Merton (vide infra Birthwhi-stle v. Vardifl), It is not to be
denied that the Scotch Courts may dissolve a Scotch marriage-a dissoluble
marriage-either for adultery or for non-adherence; as in Prussia a marriage is
dissoluble for incompatibility of temper. But the Ecclesiastical Courts of
England have not jurisdiction to dissolve a valid marriage for any cause. The
Judges in Scotland, in their reasoning in this case, evade the chief question :
they have admitted that their decisions were broken in upon by Lollev's case,
and the Appellant insists that the decision in her case is inconsistent with
that case. Much of the fallacy in this case arises from the false assumption,
that this marriage was a Scotch contract: if a native of Russia came to this
country, and married here, is that contract of marriage to be regulated by the
laws of Russin or of England? It is alleged that the contract was Scotch,
because Sir G. Warrender says, he intended to reside
1245 L _1 n CLARK & FINNELLY. WARRENDER V. WARKENDER [1835]
in
Scotland. But in fact he did not act according to his alleged intention, for he
chiefly resided in England; and an intention never acted upon must be construed
as an intention never entertained; Bruce v. Bruce (2 Bos. and Pull. 229). The
basis of the decision of the Scotch Court was, that there was nothing in the
legal character of an English marriage that made it incapable of being
dissolved by the sentence of a Court of Law; whereas it is well established in
this country, that judicial indis-solubility is a legal quality of every
English marriage. It is true that the Scotch Courts have dissolved many
marriages on the principle which they assert; but in most of these cases the
adultery was charged as having been committed in Scotland ; a circumstance
which distinguishes this case from them. [P07] It is no argument to be addressed
to this House, to say that the decisions of the Courts below have been many and
uniform in support of their jurisdiction; in fact, that circumstance makes it
imperative on this House to declare the law.-{Lord Brougham: I should like to
have some authority for the assertion, that this House is not bound by a
uniform course of decisions, not one of which has been appealed from.]-It is
well known that effect had been given for two hundred years to general bonds of
resignation, and that there had been a uniform course of decisions on them
until the case of the Bishop of London v. Ffytche (2 Bro. P. C. 211), brought
on writ of error to this House, reversed them all. The decisions in Scotland
have not been uniform, as may be collected from the cases of Gordon v. Pye,
Brunsdon v. Wallace, Uorcomb v. Uacldland, and several others (Ferg. Cons. Hep.
App. pp. 276. 259. 264). The question is now brought for adjudication to this
House; it becomes necessary to settle the law; and it does not follow that, if
this decision is reversed, that reversal can have any effect on a former
decision which was not appealed from. Sir William Follett and Dr. Lushington,
for the Respondent:-The question put in issue by the Appellant's first plea is,
whether it was competent for the Respondent to institute a suit for a divorce
against her in the Scotch Courts, while she was living apart from him under a
deed of separation, and actually residing in a foreign country ? The Respondent
is a Scotchman by birth, education, residence, and possession of property; his
proper and unquestionable domicile is in Scotland. It is a fact, formally
admitted in this case, that he is now and ever has been a domiciled Scotchman.
The question then is, was Lady [508] Warrender domiciled in Scotland when the suit
was instituted? She was, it is true, an Englishwoman up to the time of her
marriage. The effect of that marriage was, that she lost her domicile of
origin, and took the domicile of her husband. It is a rule of law, admitted in
the municipal code of all states, that the forum of the husband is the forum of
the wife. By entering into the marriage contract, the wife leaves her own
family, and comes under the obligation to follow the fortunes of her husband,
in whom the law vests a curatorial power over her: by the marriage her separate
interests merge in those of the husband ; her separate character is lost in
his, and she is no longer capable of retaining the domicile which she had
before the marriage, or of acquiring any other separate from that of her husband.
The soundness of this principle was once questioned by the Commissary Court in
Scotland, but was sustained by the Court of Session on appeal; French v.
Pilcher (Ubi supra, p. 497). The principle has been followed ever since, not
only in Scotland, but also in the Consistorial Courts of England; Chiehester v.
Marchioness of Donegal (1 Add. Eccl. Rep. 5-19). Although the question of
domicile was not the point at issue in that case, yet the Judge observed,
" Was not the Consistory Court of London the legal jurisdiction,
notwithstanding her (the defendant's) actual residence, during a certain
period, in Ireland? A party may have two domiciles, the one actual and the
other legal; and, prima facie at least, the husband's actual and the wife's
legal domicile are one, wheresoever the wife may be personally resident. It is
admitted that the husband's domicile is within the diocese of London." The
civil law concurs with the law of England and of Scotland [509] in holding,
that the domicile of a married woman depends not on the place of her own
residence, but on the domicile of her husband (Cod. Lib. 10, t. 39, sec. 9;
Voet ad Pand. Lib. 23, t. 2, sec. 40; Lib. 5, t. 1, sec. 101; Stair's Inst, B.
L tit. 4, sec. 9; Loth. Consist. Law, p. 136). The general rule is strengthened
in this case by the peculiar consideration, that the husband being a domiciled
Scotchman at the time of the marriage, having neither residence nor property in
England, and also the wife's fortune as well as the other
1246 WARRENDER V. WARRENDER [1835] II CLARK & FINNELLY.
family
provisions being secured on his Scotch estates, the marriage must be taken to
be a Scotch contract, although it was had and solemnized in England. It is
clear, from these circumstances, that both the parties had a view to Scotland
when they entered into the contract. Huber thus lays down the law : Non ita
precise respicien-dtts est locus in quo contractus initus est, etc. Contraxisse
unusquisque in eo loco intelligitur ,in quo ut sojveret se oWgavit. Proinde et
locus matrimonii contiacti non tarn is est ubi contractus nuptiahs initus est
quam in quo contrail entes matri-monium exercere voluerunt (De Conflictu Legum,
sec. 10). Lord Mansfield also, in Bland v. Robinson (1 Sir Wm. Black. Rep.
258), said, " The general rule established, ex cornitate et jure gentium,,
is, that the place where the contract is made, and not where the action is
brought, is to be considered in the expounding and enforcing the contract. But
this rule admits of an exception, where tJie parties at the time of making the
contract had a view to a different country." It is impossible to deny that
the marriage of these parties was entered into intuitu of a Scotch domicile;
and it must, therefore, be considered as a Scotch contract; [510] and consequently
the Appellant must be held, in respect of her husband's admitted domicile, to
be amenable to the jurisdiction of the Scotch Courts. If the cases of Brunsdon
v. Wallace, Pine v. lAinan, and Sharpe v. Orde, cited for the Appellant, have
any bearing on this point, they will be found to sustain the Respondent's case.
But Lady Warrender, though she admits the general rule that the actual domicile
of the husband is the forum of the wife, still insists that her case is an
exception, inasmuch as by the deed of separation she had her husband's
permission to live apart from him and to choose her own domicile, of which
permission she availed herself ; and for this position she relies on the
observations of Lords Eldon and Redesdale in Tovey v. Lindsay (1 Dow, 117). The
Respondent answers, that she had not capacity to acquire a separate domicile
independent of his; there was no covenant in the deed of separation binding him
to permit her to live where she pleased, or restraining him from suing her for
conjugal rights. His letter bound him in honour not to interfere with her
choice of residence during the separation, but it was not intended to dissolve
the matrimonial engagement, and release her from all liability to answer in the
forum of the husband. The letter was not under seal; was not part of the deed,
and is not better than waste paper as affecting process or jurisdiction. Even
if it had been incorporated in the deed, it, would not have any effect, as the
Respondent might put an end to the deed at any time, even by the summons of
divorce. The principle of the law of Scotland, deduced from the cases decided
there, is, that all voluntary separations) are [511] revocable, although they
bear to be irrevocable fx facie of the deeds, except where the separation has
proceeded propter sattiitiam of the husband, or is sanctioned by judicial
authority. The marriage being the radical and the original contract, and
separation being contrary to the implied inherent condition, and to the duties,
of the married state, the law allows either party to revoke expressly, at any
time, a contract of separation ; and such contract is void by the fact of the
parties again living together, or by either suing the other for restitution of
conjugal rights, or for divorce; Fletcher v. Fletcher (2 Cox, 99), Bateman v.
Ross (1 Dow. 235). So also by the law of the Ecclesiastical Courts of England,
the relation of husband and wife must, notwithstanding deeds of separation,
continue complete until it is dissolved by decree a, mensa et tJioro, or a
vvnculo ; Mortimer v. Mortimer (2 Hagg. 318), King v. Sansorn (3 Add. 277),
Beeby v. Beeby (1 Hagg. 142), Sullivan v. Sullivan (2 Hagg. 239; S. C. 2 Add.
299-303). In this last case Sir John Nicholl says, " These Courts have so
repeatedly said that such deeds of separation are no bars either to suits for
conjugal rights or to charges of adultery, that it would be superfluous to
combat this argument," (that a deed of separation was a bar to the
husband's prayer for a divorce). " I see no more in this deed than the ordinary
class of provisions for enforcing, as far as it may be, the continuance, and
preventing the termination, of the separate state, in which the parties
covenant to live, by means of a suit for restitution brought by either, which
nearly in all cases find their way into' dee-is of this nature, tho-ugh
nugatory as to any binding effect [512] on the parties." Neither do the
Courts of Equity give effect to deeds of separation, further than to enforce,
reluctantly, during the separation, the payments stipulated by the husband to
the wife's trustee, whose covenant to indemnify the husband against her debts
is held to be a. sufficiently valuable con-
1247 II CLARK & FINNELLY. WARRENDBR V. WARRENDER [1835]
sideration;
Wills.es v. Wilkes (2 Dick, 791), Legard v. Johnson (3 Ves. jun. 352), Worrcul
v. Jacob (3 Meiriv. 256), St. John v. St. John (11 Ves. 526). Mr. Roper, in his
Treatise of the Law of Property of Husband and Wife, refers to other cases, and
deduces from them this general conclusion, that Courts of Equity will not
infringe on the jurisdiction of the Ecclesiastical Courts, by enforcing the
performance of a mere personal contract entered into between husband and wife
to live apar from each other (2 Roper, 265-287). It has also been held by the
Courts of Common Law, that those deeds do not afiect the rights or relation of
the parties, and that husband and wife cannot by any private agreement alter
the character and condition which by law results from the state of marriage,
while it subsists; Mao-shall v. Button (8 T. Rep. 546), Beard v. Webb (2 Bos.
and Pull. 93-107). The law, as thus established in all the Courts of England as
well as in Scotland, is not, in the least, affected by the case of Tovey v.
Lindsay (1 Dow, 117), which differed from this case in the very material
circumstance, that Major Lindsay was not held to be a domiciled Scotchman at
the date of the deed of separation, or when he sued for the divorce. Lord Eldon
having a doubt upon that point, being inclined to think his domicile was at Durham,
and being also [513] impressed with the circumstance that the then recent
decision of the English Judges in Lottey's case had not been brought before the
view of the Judges of the Court of Session, recommended a remit, for the
purpose of reconsideration, but there was no final decision ever afterwards
pronounced here or in Scotland; so that the case so much relied upon by the
Appellant, does not affect this case one way or the other. It would be great
injustice to Lord Eldon to say, that if Major Lindsay had his domicile in
Scotland, his Lordship could entertain any doubt that the Courts there had
jurisdiction, in the face of Lander v. Vanghent (Fac. Coll. 27th February 1692;
S. C. Ferg. Rep. App. 250), M'Donald v. Fritz (Fac. Coll. 26th March 1813; S.
C. Ferg. Rep. App. 273), and numerous other cases which have never been
impugned. In the cases of Brunsdon v. Wallace (Fac. Coll. 9th February 1789; S.
C. Ferg. Rep. App. 259), and Morcombe v. Maclelland (Fac. Coll. 27th June 3801;
S. C. Ferg. Rep. App. 261), the actions were dismissed on the ground that the
defenders (the husbands) had not domicile in Scotland; the attempts made in
both cases to found jurisdiction on domicile ratione originis, failed. In the
present case it is a fact admitted, that the Respondent had actual domicile in
Scotland, both at the date of the marriage and of the commencement of the
action. The second plea of the Appellant is to the manner of the citation : she
insists, that if her domicile be held to be at the dwelling-house of the
Respondent, then she ought not to have been cited edictally, as forth of
Scotland, but the citation should have been left for her at the Respondent's
dwelling-house. But it is the practice in Scotland to cite a party edictally,
if he or she be absent from the country above forty [514] days. The Appellant
having been absent for that and a longer period, she was properly cited
edictally; and, for the purpose of giving her actual notice of the suit, and as
a measure of precaution, the summons was served personally on her, at her
temporary residence in France. By the Scotch Judicature Act (6 Geo. 4, c. 120,
s. 53) it is declared, " That where a person, not having a dwelling-house
in Scotland, occupied by his family or servants, shall have left his usual place
of residence, and have been absent forty days without having left notice where
he is to be found, within Scotland, he shall be held to be absent from
Scotland, and be cited according to the forms prescribed." And by the Act
of Sederunt, (14th of December 1805, s. 1,) " It shall in time coming be
held, that a person after forty days' absence from his usual place of
residence, is forth of the kingdom of Scotland; and the citation, after that
period, must be at the market-cross of Edinburgh, and pier and shore of
Leith," etc. There can be no doubt that in this case edictal citation,
accompanied with personal notice, was the proper course to be observed. The
third plea and ground of appeal, is the alleged indisolubility of this marriage
by the Courts of Scotland. The Respondent conceiving that so much of this plea
as was not contained in the first preliminary defence, was involved in the
merits of the action, which the judgment of the Court below did not at all
touch ; and being also advised that by the 6 Geo. 4, c. 120, s. 5, any appeal
against the interlocutory judgment was incompetent; presented a petition to
this House against entertaining it. The Appeal Committee, to whom that petition
was referred, sus-[515]-tained the appeal, on the ground that the judgment of
the Court below did decide
1248 WARRENDER V. WARRENDER [1835] II CLARK & FINNELLY.
the
principle, that an English marriage might be dissolved by a Scotch Court. In
deference to that opinion of the Appeal Committee, the Respondent has
undertaken to sustain the competence of the Court of Session to' entertain the
action. He is a Scotchman by birth and connexions and estates; he was married
in England during a transient visit to that country, without any intention then
or at any time to make it his permanent abode. It is evident, from the
antenuptial contract, that the marriage was entered into with a view to
residence in Scotland; the rights and obligations arising out of the marriage
contract were to be performed in Scotland; and although England was the place
of celebration, yet it was essentially a Scotch contract, and must be regulated
in all it* relations and consequences by the rules of Scotch law. The question
for the decision of the House is not whether indissolubility is an inherent
element in a marriage contracted in England between two English parties; this
House, sitting on this case as a Scotch Court of Appeal, is not to consider
what effect the English Courts of Law, either civil or criminal, would give to
a divorce pronounced by a Scotch Court. The argument for the Appellant on this
part of her case is, that the contract of marriage is to be governed by and
according to' the law of the country where the contract is entered into. There
is a fallacy in that argument: it is true, that in all questions of status or
personal obligation, the constitution of the contract is governed by the lex
loci contractus; that is, the questions1 whether the contract was valid or
void, whether the requisite forms, and solemnities for completing the contract
were duly complied with, [516] must be determined by the law of the country
where the contract was made: but where questions arise about enforcing or
expounding the contract, or about granting redress to one party for a breach of
its obligations by the other, these must be decided by the law of the country
which * the parties had in view with reference to its fulfilment. Marriages at
Gretna Green between English parties, duly performed according to' the Scotch
form, are valid in England; it is the law of Scotland that determines their
validity or nullity, but all the obligations arising from the conjugal relation
are regulated by the laws of England; so much so, that a wife so married is
entitled to dower out of her husband's English estates, though not to her terce
out of his property in Scotland, if he should happen to have any there;
Ilderton v. Ilderton (2 H. Black. 145). The lex loci contractus cannot prevail,
unless the parties had, in entering into the contract, reference to- the same
place for the fulfilment of its obligations; for if the forum of the contract
were to prevail against the forum, of the real domicile, a contract entered,
into' in a foreign country, during one day's visit, would be governed by the
laws of that country, and not by those of the country of the parties' birth and
permanent residence; which would be too absurd. In a recent case, Anstruther v.
Chalmers (2 Sim. 1), in the Court of Chancery, it was held that the will of a
Scotchwoman, who was domiciled in England, and who, during a visit to Scotland,
executed there, in the Scotch form, a will of personal property, deposited it
there, and died in England, was to be construed by the English law. All writers
on the civil law lay it down as; an acknowledged rule, that the import and effect
of all ordinary civil con-[517]-tracts are to be determined by the law of the
place of performance, to which alone the contracting parties are presumed to
have reference. Contraxisse unusquisque in eo loco intelligitur, in quo ut
solveret se obligavit, are the words of Julian in the Pandects (Lib. 21, tit.
De obligationibus et actionibus). There are numerous cases decided by the
Courts in Scotland, establishing the general rule, that questions relating to
the negotiation of bills of exchange are to be decided by the laws of the place
of payment, and not of the place of contract. Brown v. Crawford (Morr. 1587),
Stevenson v. Stewart (Morr. 1518), Watson v. Renton (Bell's Rep. 103), Armow
v..Campbell (Morr. 4476). The same rule has been adopted by the English Courts
of Law, as in Robinson v. Bland (1 Wm, Black. Rep. 256). This doctrine applies
with equal force to the contract of marriage, and it is so expressly stated by
Huber (De Conflictu Leg. see. 10), whose words, as also those of Lord Mansfield
in Robinson v. Bland, have been already quoted (P. 509 supra). This marriage,
therefore, on the authority of the civilians and of the cases cited, must be
dealt with as a Scotch contract, and its obligations construed and enforced by
the laws of Scotland, where they were intended to be performed. There is no
reason to apprehend that the affirming of the interlocutor now appealed
H.L. vi. 1249 40 II CLARK & FINNELLY. WAERENDER V. WARRENDER [1835]
from will
produce any conflict between the jurisdiction or decisions of the Scotch and
English Courts, as this case is distinguished from those of Sugden v. Lolley,
and Beazley v. Beazley, by the material circumstance that in these the husband
and wife were English, were domiciled in England, and it was there that all [518]
the obligations arising out of the contract of marriage were to be performed.
The cases of Ryan v. Ryan (2 Phil. 332), and of M'Carthy v. Decaix (vide
infra), cited in behalf of the Appellant, have no bearing on the question for
the decision of the House. The observations attributed to a noble and learned
Lord, in the latter case, were not necessary for the decision of that case, and
can only have the authority of an extrajudicial dictum. The-case o-f Lolley
must be confined to the circumstances on which the twelve Judges adjudicated,
and is not to be extended. Subsequently to that case, and with full knowledge
of it, the Judges of the Court of Session asserted their jurisdiction over a
marriage contracted in England, Edmonstone v. Edmonstone (Ferg. Cons. Rep.
168), thereby following up a long series of uniform decisions. This House,
sitting as a Scotch Court of Appeal, is bound to recognize those decisions,
which have never been questioned. The case of The Bishop of London v. Ffytche
(2 Bro. P. C. 211) was referred to for the purpose of showing, that a judgment
pronounced on the authority of decisions long acquiesced in, might still be
reviewed and reversed by this House. That case, indeed, was reversed in this
House, by nineteen against eighteen; all the bishops on one side, against all
the lawyers, except Lord Thurlow, on the other. It is better for the Respondent
that such a decision should be quoted against him than for him. If two
foreigners, Prussians for instance, (with whom incompatibility of temper is
ground of divorce,) met on a visit in this country, and were married here and
returned to Prussia, could it be maintained that the Courts of [519] Prussia
have not power to dissolve that marriage for any cause whatsoever, but that the
parties are to be released from the contract only by Act of the English
Legislature? If two English persons, travelling in France, meet and marry
there, and return to this country, could not the husband, after discovering the
wife's adultery, apply to the tribunals of his domicile for such remedy as they
could afford him, although the Courts of the place of the contract would afford
none? The law of England does not allow any valid marriage to be dissolved a
vinculo, by the Courts of Law; but the Scotch Courts have the power to
entertain those actions, and have frequently exercised it. The question here
is, not what effect the divorce granted in Scotland would have in England, but
it is, whether the Courts of Scotland have, by the law of Scotland, the power
to divorce on proof of adultery. Dr. Addams, in reply:-The whole of the
argument for the Respondent is put on the fact of his domicile being in
Scotland when the action was raised. The Appellant had not her residence then
in Scotland, either in fact or in law. It is not alleged that her actual
residence was there, arid the fiction of law is excluded by the deed of
separation, which was not revoked when the action was commenced. It is a
fallacy to say that the marriage of these parties was a Scotch contract; for
the marriage was performed in England, the Appellant was an Englishwoman, and
the Respondent was residing in England. If a Spaniard or other foreigner came
to this country and married an Englishwoman here, according to the law of
England, could it be said, that that was a Spanish and not an English marriage?
There cannot be a doubt, [520] that if the interlocutor be affirmed, the Court
below will proceed, on proof of adultery, to dissolve this marriage, whether it
is Scotch or English. The Commissaries in Scotland were generally inclined
against the assumption of this power, but they were overruled by the Judges of
the Court of Session. The case of Gordon v. Pie (Ferg. Cons. Rep. App. 276,
357) was the first English marriage over which the Court of Session assumed jurisdiction,
by remitting that case to the Commissary Court, with instructions to proceed;
but there were numerous cases previous to that, in which the jurisdiction was
declined; Brunsdon v. Wallace, Morcombe v. Maclelland.-He further cited, for
the purposes of his argument, Dalrymple v. Dalrymple (2 Hagg. 58), and
Anstrut/her v. Adair (2 Myl. and K. 513); and many of the cases already
referred to. The Lords took time to consider the case. Lord Brougham:-Sir
George Warrender, a Scotch baronet, possessed of large hereditary estates in
Scotland, born and educated in that country, and having
1250 WARRENDER V. WARRENDER [1835] II CLARK & FINNELLY.
there his
capital mansion, where he resided the greater part of the year, except when he
held office or was attending his parliamentary duties in England, intermarried
in London, in 1810, with the daughter of the Viscount Falmouth, Anne Boscawen,
who was born and educated in England, and never had been in Scotland previous
to the marriage. After that event, she was twice there with her husband, but
subsequently he resided for the most part in London, to discharge the duties of
Lord of the Admiralty and [521] Commissioner of East India Affairs; offices
which he held from 1812 to 1819, inclusive. In the latter year, at the end of
much domestic dissension, a separation was determined upon, and an agreement
executed by the parties; in which, after setting forth by way of recital only
their having agreed to live separate, Sir George bound himself to allow Dame
Anne Warrender a certain annuity; and it was further agreed that the agreement
shall only be rescinded by common consent, and in a certain specified manner. A
letter was written by Sir George, bearing equal date with the agreement, and
addressed to the trustees under the marriage settlement. In this he stated that
he had refused to insert any provision for her being allowed to live apart, in
order that he might not be precluded from suing, if he chose, for restitution
of conjugal rights, but also stating that it was not his intention ever to do
so, or to interfere with or molest her in the choice of a residence. The
marriage settlement had secured her a jointure upon the Scotch real estates;
upon which fact it is now admitted that nothing can turn, except that it may
serve the better to show the connexion of the parties and the contract with
Scotland. These are the facts, and the undisputed facts of this case. I say
undisputed; for the attempt occasionally made in the course of the Appellant's
argument, to create some doubt as to Sir George Warrender's Scotch residence
and domicile, cannot be considered as persisted in with such a degree of
firmness or uniformity as to require a discussion and a decision of the point,
in order to clear the way for the very important legal question which arises
upon these plain and undeniable statements. [522] In 1834, after the parties
had lived separate for fifteen years, Sir George's residence being, during the
latter part of the time, almost constantly on his Scotch estates, and Lady Warrender's
varying from one country to another-a few months in England, generally in
France, and occasionally in Italy-Sir George brought his suit in the Court of
Session (exercising, under the recent statute, the consistorial jurisdiction
formerly vested in the Commissaries) for divorce, by reason of adultery alleged
to have been committed by his wife. Lady Warrender took preliminary objections
to the competency of the suit, under three heads: First, that the summons of
divorce was not served on her at her husband's residence, so as to give her a
regular citation ; secondly, that the Court had no jurisdiction, inasmuch as
the wife's domicile was no longer her husband's after the separation ;*
thirdly, that even if the service had been regular, and the two domiciles one
and the same, and that domicile Scotland, the marriage having been contracted
in England, and one of the parties being English, no sentence of a Scotch Court
could dissolve the contract. To these several points I propose to address
myself in their order. The first need not detain us long. It is clear, that if
the wife's domicile is not in Scotland, her being cited or not cited at the
mansion is wholly immaterial; and the minor objection of irregularity merges in
the exception to the jurisdiction: and if the wife's domicile was in Scotland,
it must be her husband's, which, indeed, the objection supposes; and then the
[523] argument amounts to this, that Sir George should have served himself with
a notice, by way of regularly serving his wife. Surely it is unnecessary to
show that such a proceeding would have been nugatory, not to say ridiculous,
and that the omission of it can work nothing against the validity of the
notice. Lady Warrender had, it is admitted on all hands, personal service and
full notice of the proceeding against her; nor was any reliance placed upon her
domicile in contemplation of law, (that is, her husband's domicile,) being
sufficient to exclude the necessity of bringing notice, in point of fact, home
to her. If the preliminary objection to the service is good for anything, it is
good to show * The order in which these two objections were pleaded and argued
is here reversed.
1251 II CLARK & FINNELLY. WARRENDER V. WARRENDER [1835]
that the
pursuer might have served a notice on her whom he knew to be some hundreds of
miles distant, by leaving it for her in his own house, and then have considered
this as good and sufficient service, without personally notifying his intended
suit to her, or serving her with the summons which lie had filed. We may
therefore come at once to the serious and more substantial exceptions taken
against the jurisdiction ; the first of which arises upon the domicile, as
affected by the articles oi separation. Secondly, It is admitted on all hands
that, in the ordinary case, the husband's domicile is the wife's also ; that,
consequently, had Lady Warrender been either residing really and in fact with
her husband, or been accidentally absent for any length of time, or even been
by some family arrangement, without more, in the habit of never going to
Scotland, which was not her native country, while he lived generally there, no
question could have been raised upon the competency of the action as excluded
by her non-residence. For actual residence-residence in point of fact-signifies
nothing in the case of a married woman, and [524] shall not, in ordinary
circumstances, be set up against the presumption of law, that she resides with
her husband. Had she been absent for her health, or in attendance upon a sick
relation, or for economical reasons, how long soever this separation de facto
might have lasted, her domicile could never have been changed. Nay, had the
parties lived in different places, from a mutual understanding which prevailed
between them, the case would still be the same. The law could take no notice of
the fact, but must proceed upon its own conclusive presumption, and hold her
domiciled where she ought to be, and where, in all ordinary circumstances, she
would be,-with her husband. Does the execution of a formal instrument,
recognising such an understanding, make any difference in the case? This is all
we have here; for there is no agreement to live separate. The "letter
" has indeed been imported into the agreement, and argued upon as a part
of it. Now, not to mention that the instrument in which parties finally state
their intentions, and mutually stipulate and bind themselves, is always to be
regarded as their only contract; and that no separate or subsequent agreement
is to be taken into the account, unless it contains some collateral agreement;
admitting that we have a right to look at the letter at all, either as part of
one transaction with the agreement, or as providing for something left
unsettled in the principal instrument, and so' collateral in some sort to the
contract itself, it does not appear that the tenor of the letter aids the
Appellant's contention. For the letter sets out with expressly saying, that Sir
George has refused to insert in the agreement a leave to live apart, in order
to preclude all objection against his suing for restitution of conjugal rights.
Is not this 525] sufficient to deprive the letter of all binding force in law,
whatever else it may contain? In truth, the words which follow this preliminary
statement amount only to an honorary pledge, in no legal view obligatory, even
had they stood alone; but, taken in connexion with the preceding statement,
they plainly exclude all possibility of construing the letter as a legal
obligation. It therefore appears impossible to consider the parties in this
case as living apart under a contract of separation. The agreement, by its
obvious construction, only imports an obligation upon Sir G. Warrender to pay
so much a year to Lady Warrender, as long as she should live apart from him. But
let us suppose it to be an
ordinary deed of separation; that it contained a covenant on the husband's part
to' permit the wife to live apart from him, and to choose her own residence;
and let us consider what difference this would make, and whether or not this
would be sufficient to determine the legal presumption of domicile. First of
all, it must be admitted that, even if the execution of such a deed gave the
wife a power of choosing a residence, and if that residence once chosen were to
be deemed her separate domicile, still this would only give her a power; and
unless she had executed the power by choosing a residence, no new domicile
could be acquired by her. The domicile which she had before marriage was for
ever destroyed by that change in her condition. The dissolution of the marriage
by divorce, or by the husband's decease, never could remit her to her original
or maiden domicile; much less could this be affected by any such deed as we are
supposing; for that, by the utmost possible stretch of the supposition, could
only give [526] her the option of taking a new domicile, other than her
husband's; and until she did exercise this option, her married or marital
domicile would not be changed. Now there is no
1252 WARRENDER V. WARRENDER [1835] II CLARK & FINNELLY.
evidence
here of Lady Warrender having ever acquired any domicile after 1819, other than
the one she had before the separation, that is to say, her husband's; and this
proof clearly lay upon her, for she seta up the separation to exclude the legal
presumption that she is domiciled with her husband; and the separation only
conveying to her a power of choosing a domicile, and the production of the
articles only proving that power to- have been conferred upon her, unless she
goes further, and also proves the exercise of the power by acquiring a new
domicile, she proves nothing. She only shows, and all the ample admissions we
are, for the sake of argument, making, confess that she had obtained the power
or possibility of gaining a domicile other than her husband's, but not at ail
that she had actually gained such separate domicile. The evidence in the cause
is nothing to this purpose. It is, indeed, rather against than for the
Appellant's argument; it rather shows that she had done nothing like gaining a
new domicile, for she was living chiefly abroad, and in different places. But
there is, at any rate, no evidence in the cause of her acquiring a separate
domicile, and the proof lying upon her, it follows that, for all the purposes
of the present question, her husband's Scotch domicile is her own. But suppose
we pass over this fundamental difficulty in her case, and which appears to me
decisive of the exception with which I am now dealing, I am of opinion that
there is nothing in the separation, supposing it had been ever so formal, and
ever so full in its provisions, which can by law [527] displace the presumption
of domicile raised by the marriage, and subsisting in full force as long as the
marriage endures. A party relying on the lex loci contractus, in construing the
import and tracing the consequences of the marriage contract,- cannot well be
heard to deny that the same lex loci must regulate the construction and the
consequences of any deed of separation between the married pair. Nor do I understand
the Appellant as repudiating the English law as to the import of the separation
in this case. Then what is the legal value or force of this kind of agreement
in our law? Absolutely none whatever--in any Court whatever-for any purpose
whatever, save and except one only-the obligation contracted by the husband
with trustees to pay certain sums to the wife, the cestui que trust. In no
other point oi view is any effect given by our jurisprudence, either at law or
in equity, to such a contract. No damages can be recovered for its
breach-no specific performance of
its articles can be decreed. No Court, civil or consistorial, can take notice
of its existence. So far has the legal presumption o f cohabitation been
carried by the common law Courts, that the most formal separation can only be
given in mitigation of damages, and not at all as an answer to an action for
criminal conversation, the ground of which is the alleged loss of comfort in
the wife's society; and all the evidence that can be adduced of the fact of
living apart, and all the instruments that can be produced binding the husband
to' suffer the separate residence o f his wife-nay, even where he has for
himself stipulated for her living apart, and laid her under conditions that she
should never come near him-all is utterly insufficient to repel the claim which
he makes for the loss of her [528] society without doing any act either in
court or in pais, to determine the separation or annul the agreement. In other
words, no fact and no contract, no matter in pais and no deed executed, can
rebut the overruling presumption of the law that the married persons live
together, or, which is the same thing, that they have one residence-one
domicile. In the contemplation of the common law then, they live together and
have the same domicile. That the Consistorial Courts regard the matter in the
same light is manifest from the strong decision given upon the 3 and 4 Geo. 4,
as applicable to a case where the parties had never been near one another for
ten years before it passed; yet this case was held within the provision of the
statute which gives the benefit of confirmation of the marriage to all parties
who have been living together at and before the passing oi the Act. But we need
not resort to such extreme cases, or seek support from such strong decisions.
It is admitted on all hands that the Consistorial Courts never regard a
separation, how formal soever, as of any avail at all against either party, nor
require any person suing for his rights under the marriage, and standing on the
marriage, to do any act for annulling the separation. Either party has a clear
and undenied right to pass it by entirely, and proceed, whether in bringing or
in defending a suit exactly as it the separation articles had no existence.
Thirdly, We are therefore, in every view that can be taken of the question,
bound to regard Lady Warrender's domicile as identical with her husband's, and
thus the
1253 II CLARK & FINNELLY. WARRENDER V. WARRENDER [1835]
case
becomes divested of all special circumstances, and is that of a marriage had in
England between a domiciled Scotchman and an Englishwoman, sought to be
dissolved by reason of the wife's adul-[529] tery, through a suit in the Courts
in Scotland, the residence or domicile of the husband being bÈnd fide Scotch;
and as the determination at which we have arrived upon the question of domicile
makes the forum originis of the wife quite immaterial, the question is in truth
the general one, whether or not a Scotch divorce can dissolve a marriage
contracted by a domiciled Scotchman in England, the parties to that marriage
being bond fide and not collusively for the purposes of the suit, domiciled in
Scotland. The importance c*f this question to the parties, and, considering the
constant and fortunate intercourse between the two countries, to the law which
governs each, cannot be denied; at the same time it is of considerably less
interest than it would have been had the domicile not been bond fide Scotch,
because then the more absolute question would have been raised as to the
validity of a Scotch divorce generally, to dissolve an English marriage.
Possibly the decisions upon the validity of Scotch marriages generally and
without regard to the fraud upon the English law, practised by the parties to
them, may seem to make the distinction to which I have just adverted less
material and substantial; nevertheless I think it right and convenient to make
it, and to keep it in view. 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. This is sometimes expressed, and I take
leave to say inaccurately expressed, by saying that there is a comitas shown by
the tribunals of one country towards the laws of the other country. Such a
thing as convitas or courtesy may be said to exist in certain cases, as where
the French Courts inquire how our law would deal with a Frenchman in similar or
parallel circum-[530]-stances, and upon proof of it, so deal with an Englishman
in those circumstances. This is truly a comitas, and can be explained upon no
other ground ; and I must be permitted to say, with all respect for the usage,
it is not easily reconcileable to. any sound reason. But when the Courts of one
country consider the laws of another in which any contract has been made, or is
alleged to have been made, in construing its meaning, or ascertaining its
existence, they can hardly be said to act from courtesy, ex comitate ; for it
is of the essence of the subject-matter to ascertain the meaning of the
parties, and that they did solemnly bind themselves; and it is clear that yo u
must presume them to have intended what the law of the country sanctions or
supposes; it is equally clear that their adopting the forms and solemnities
which that law prescribes, shows their intention to bind themselves, nay more, is the only safe criterion of
their having entertained such an intention. Therefore the Courts of the country
where the question arises, resort to the law of the country where the contract
was made, not ex comitate, but ex debito justitiae; and in order to explicate
their own jurisdiction by discovering that which they are in quest of, and
which alone they are in quest of, the meaning and intent of the parties. But whatever
may be the foundation of the principle, its acceptance in all systems of
jurisprudence is unquestionable. Thus 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 [531] 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. If those laws annex
certain disqualifications to parties circumstanced in a particular way, or if
they impose certain conditions precedent on certain parties, this falls exactly
within the same rule; for the presumption of law is in the one case that the
parties are absolutely incapable of the consent required to' make the contract,
and in the other case that they are incapable until they have complied with the
conditions imposed. I shall only stop here to remark, that the English
jurisprudence, while it adopts this principle in words, would not perhaps, in
certain cases which may be put, be found very willing to act upon it
throughout. Thus we should expect that the Spanish and Portugueze Courts would
hold an English marriage avoidable between uncle and niece, or brother and
sister-in-law, though solemnized under papal dispensation, because it would clearly
be avoidable in this country.
1254 WARRENDER V. WARRENDER [1835] II CLARK & FINNELLY.
But I
strongly incline to think that our Courts would refuse to sanction, and would
avoid by sentence, a marriage between those relatives contracted in the Peninsula,
under dispensation, although beyond all doubt such a marriage would there be
valid by the lex locvcontractus, 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 and its 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 [532] 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 recognize the plurality of wives, and
consequent validity of second marriages, standing the first, which second
marriages, the laws of those countries authorize and validate. This cannot be
put upon any rational ground, except our holding the infidel marriage to be
something different from the Christian, and our also holding Christian marriage
to be the same every where. Therefore all that the Courts o f one country have
to determine is, whether or not the tiling called marriage, that known relation
of persons, that relation which those Courts are acquainted with, and know how
to deal with, has been validly contracted in the other country where the
parties professed to bind themselves. If the question is answered in the
affirmative, a marriage has been had; the relation has been constituted; and
those Courts will deal with the rights of the parties under it according to the
principles of the municipal law which they administer.* But it is said that
what is called the essence of the contract must also1 be judged of according to
the lex loci; and as this is a somewhat vague, and for its vagueness, a
somewhat suspicious proposition, it is rendered more certain by adding, that
dissolubility or indissolubility is of the essence of the contract. Now I take
this to be really petitio principii. It is [533] putting the very question
under discussion into another form of words, and giving the answer in one way.
There are many other filings which may just as well be reckoned of the essence
as this. If it is said that the parties marrying in England must be taken all
the world over to have bound themselves to live until death or an Act of
Parliament " them do part;" why shall it not also be said that they
have bound themselves to live together oil such terms, and with such mutual
personal rights and duties, as the English law recognizes and enforces? Those
rights and duties are just as much of the essence as dissolubility or
indissolubility; and yet all admit, all must admit, that persons married in England
and settled in Scotland will be entitled only to the personal rights which the
Scotch law sanctions, and will only be liable to perform the duties which the
Scotch law imposes. 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 f ro rn 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. The fallacy of the argument, " that
indissolubility is of the essence," appears plainly to be this: it
confounds incidents with essence; it makes the rights under a contract, or
flowing from and arising out of it, parcel of the contract; it makes the mode
in which judicatures deal with those rights, and with the contract itself, part
of the contract; instead of considering, as in all soundness of principle we
ought, that the contract and all its incidents, and the rights of the parties
to it, and the wrongs committed by them respecting it, must be dealt with by
the Courts of the [534] country where the parties reside, and where the
contract is to be carried into execution. But at all events this is clear, and
it seems decisive of the point, that if, on some such ground as this, a
marriage indissoluble by the lex loci is to be held indissoluble everywhere;
so, conversely, a marriage dissoluble by the lex loci must be held everywhere
dissoluble. The one proposition is in truth identical with the other. Now it
would [* See as to this passage an article on " Non-Christian Marriage
" by Sir Dennis Fitzpatrick in Jour. Soc. Comp. Leg. N.S. No. V. p. 374.]
1255 II CLARK & FINNELLY. WARRENDER V. WARRENDER [1835]
follow
from hence, or rather it is the same proposition, that a, marriage contracted
in Scotland, where it is dissoluble by reason of adultery or of non-adherence,
is dissoluble in England, and that at the suit of either party. Therefore a
wife married in Scotland might sue her husband in our Courts for adultery, or
for absenting himself four years, and ought to obtain a divorce a vinculo
matrimonii. Nay, if the marriage had been solemnized in Prussia, either party
might obtain a divorce on the ground of incompatibility of temper; and if it
had been solemnized in France during the earlier period of the revolution, the
mere consent of the parties ought to suffice for dissolving it here. Indeed,
another consequence would follow from this doctrine of confounding with the
nature of the contract that which is only a matter touching the jurisdiction of
the Courts, and their power of dealing with the rights and duties of the
parties to it: if there were a country in which marriage could be dissolved
without any judicial proceeding at all, merely by the parties agreeing in pa/is
to separate, every other country ought to sanction a separation had in pais
there, and uphold a second marriage contracted after such a separation. It may
safely be asserted, that so absurd a proposition never could for a moment be
enter-[535]-tained ; and yet it is not like, but identical with the proposition
upon which the main body of the Appellant's argument rests, that the question
of indissoluble or dissoluble must be decided in all cases by the lex loci.
Hitherto we have been considering the contract as to' its nature and
solemnities, and examining how far, being English, and entered into with
reference only to England, it could be dissolved by a Scotch sentence of
divorce. But the circumstance
of parties belonging to one country marrying in another (which is the case
before us) presents the question in another light. In personal contracts much depends upon the
parties having regard to the country where it is to be acted under, and to receive
its execution; upon their making the contract, with a view to its execution in
that country. The
marriage-contract is emphatically one which parties make with an immediate view
to the usual place of their residence. An Englishman, marrying in Turkey, contracts a
marriage of an English kind, that is, excluding plurality of wives, because he
is an Englishman, and only residing in Turkey and under the Mahometan law
accidentally and temporarily, and because he marries with a view of being a
married man and having a, wife in England, and for English purposes;
consequently the incidents1 and effects, nay, the very nature and essence (to
use the language of the Appellant's argument) must be ascertained by the
English, and not by the Turkish law. So of an Englishman marrying in Prussia, where
incompatible temper, that is, disagreement, may dissolve the contract; as he
marries with a view to English domicile, his contract will be judged by English
law, and he cannot apply for a divorce here, upon the ground of incompatible
tempers. In [536] like
manner, a domiciled Scotchman may be said to contract not an English but a
Scotch marriage, though the consent wherein it consists may be testified by
English, solemnities.
The Scotch parties, looking to residence and rights in Scotland, may be
held to regard the nature and incidents and consequences of the contract,
according to the law of that country, their home: a connexion formed for
cohabitation, for mutual comfort, protection and endearment, appears to be a
contract having a most peculiar reference to the contemplated residence of the
wedded pair; the home where they are to fulfil their mutual promises, and
perform those duties which were the objects of the union ; in a word, their
domicile; the place so beautifully described by the civilian : " Domi-cilii
quoque intuilu conveniri quisque potest, in eo scilicet loco, in quo larem,
reruni-que ac fortunarum suarum summam constituit, unde rursus non sit
discessurus, si nihil avocet, undeque cum profectus est, peregrinari videtur
" (Voet ad Pand. Lib. 5, tit. 1, s. 92). It certainly may well be urged, both with a view
to the general question of lex loci, and especially in answering the argument
of the alleged essential quality of indissolubility, that the parties to' a
contract like this must he held emphatically to enter into it with a reference
to their own domicile and its laws; that the contract, assumes:, as it were, a
local aspect; but that at any rate,' if we infer the nature of any mutual
obligation from the presumed intentions of the parties, and if we presume those
intentions from supposing that the parties had a particular system of laws in
their view (the only foundation of the argument for the Appellant), there is
fully more reason to suppose they bad the law of their own home in their view,
where they purposed to [537] live, than the la,w of the stranger, under which
they happened for the moment to be.
1256 WARRENDER V. WARRENDER [1835] II CLARK & FINNELLY.
Suppose
we take now another but a very obvious and intelligible view of the subject, and
regard the divorce not as a, remedy given to the injured party, by freeing him
from the chain that binds him to a guilty partner, but as a. punishment
inflicted upon crime, for the purpose of preventing its repetition, and thus
keeping public morals pure. The language of the Scotch acts plainly
countenances this view of the matter, and we may observe how strongly it bears
upon the present question. No one can doubt that every State has the right to
visit offences with such penalties as to its legislative wisdom shall seem
meet. At one time adultery was punishable capitally in England; it is so, in
certain cases, still by the letter of the Scotch law. Whoever committed it must
have suffered that punishment, had the law been enforced, and without regard to
the marriage, of which he had violated the duties, having been contracted
abroad. Indeed, in executing such statutes, no one ever heard of a question
being raised as to' where the contract had been made. Suppose again that the
proposition, frequently made in modern times, were adopted, and adultery were
declared to be a misdemeanor, could any one, tried for it either here or in
Scotland, set up in his defence, that to the law of the country where he was
married there was no such offence known? In like manner, if a disruption of the
marriage tie is the punishment denounced against the adulterer for disregarding
its duties, no one can pretend
that the tie being declared indissoluble by the laws of the country where it
was knit, could afford the least defence against the execution of the law
declaring its [538] dissolution to be the penalty of the crime. Whoever
maintains that the Scotch Courts are to take cognizance of the English law of
indissolubility when called upon to inflict the penalty of divorce, must likewise
be prepared to' hold that, in punishing any other offence, the same Courts are
to regard the laws of the State where the culprit was born, or where part of
the transaction passed; that, for example, a forgery being committed on a
foreign bill of exchange, the punishment awarded by the foreign law is to
regulate the visitation of the offence under the law of Scotland. It may safely
be asserted, that no instance whatever can be given of the criminal law of any
country being made to bend that of any other in any part o f its
administration. When the Roman citizen carried abroad with him his rights of
citizenship, and boasted that he could plead in all the Courts of the world
" civis Romanus sum,'' his boast was founded not on any legal principle,
but upon the fact that his barbarian countrymen had overrun the world with
their arms, reduced all laws to' silence, and annihilated the independence of
foreign legislatures'. Their orators regarded this very plea as the badge of
universal slavery, which their warriors had fixed upon mankind. But if any
foreigner had come to Rome, and committed a crime punishable with loss of civil
rights, he would in vain have pleaded in bar of the capitis diminutio, that
citizenship was indelible and indestructible in the country of his birth. The
lex loci must needs govern all criminal jurisdiction, from the nature of the
thing and the purpose of that jurisdiction. How then can we say, that when the
Scotch law pronounces the dissolution of a, marriage to' be the punishment of adultery,
the Scotch Courts can be justified in im-[539]-porting an exception in favour
of those who had contracted an English marriage; an exception created by the
English law, and to the Scotch law unknown 1 But it may be said, that the
offence being committed abroad, and not within the Scotch territory, prevents
the application to it of the Scotch criminal law. To this it may however be
answered, that where a person has his domicile in a. given country, the laws of
that country to which he owes allegiance may visit even criminally offences
committed by him out of its territory. Of this we have many instances in our
own jurisprudence. Murder and treason, committed by Englishmen abroad, are
triable in England and punishable here. Nay, by the bill which I introduced in
1811, and which is constantly acted upon, British subjects are liable to be
convicted of felony for slave-trading, in whatever part of the world committed
by them. It would no doubt be going far to hold the wife criminally answerable
to' the law of Scotland, in respect of her legal domicile being Scotch. But we
are here not so much arguing to the merits of this case, which has abundant
other ground to rest upon, as to the general principle; and at any rate the
argument would apply to' the case most frequently mooted, of English married
parties living temporarily in Scotland, and adultery being there committed by
one of them. To such a state of facts the whole argument now adduced is
applicable in its full force; and without admitting that application,
H.L. vi. 1257 40a II CLARK & FINNELLY. WARRENDER V. WARRENDER [1835]
I do not
well see how we can hold that the Scotch legislature ever possessed that
supreme power which is absolutely essential to the very nature and existence of
a legislature. If we deny this application, we truly admit that the Scottish
Parliament had no right to punish the offence of adultery by the penalty of
divorce. Nay, we hold [540] that English parties had a right to violate the
Scotch criminal law with, perfect impunity in one essential particular; for,
suppose no other penalty had been provided by the Scotch law except divorce,
all English offenders against that law must go unpunished. Nay worse still, all
Scotch parties who chose to avoid the punishment had only to marry in England,
and then the law, the criminal law of their own country, became inoperative.
The gross absurdity of this strikes me as bearing directly upon the argument,
and as greater than that of any consequences which I remember to have seen
deduced from almost any disputed position. It may further be remarked that this
argument applies equally to the case, if we admit that the Scotch divorce is
invalid out of Scotland, and consequently that it stands well with even the
principles of Lolley's case. In order to dispose of the present question, it is
not at all necessary on the one side, to support, or on the other to impeach,
the authority of Lolley's case, or of any other which may have been determined
in England upon that authority. This ought to be steadily borne in mind. The
resolution in Lolley's case was, that an English marriage could not be
dissolved by any proceeding in the Courts of any other country, for English
purposes; in other words, that the Courts of this country will not recognize
the validity of a Scotch divorce, but will hold the divorced wife dowable of an
English estate, the divorced husband tenant thereof by the curtesy, and either
party guilty of felony by contracting a, second marriage in England. Upon the
force and effect of such divorce in Scotland, and for Scotch purposes, the
Judges gave, and indeed could give, no opinion; and as there would be nothing
legally impossible in a. marriage being good in one [541] country which was:
prohibited by the law of another, so if the conflict of the Scotch and English
law be complete and ir-reconcileable, there is nothing legally impossible in a.
divorce being valid in the one country which the Courts of the other may hold
to' be a nullity. Lolley's case, therefore, cannot be held to decide the present,
perhaps not even to affect it in principle. In another point of view it is
inapplicable ; for, though the decision was not put upon any special
circumstance, yet in fairly considering its application, we cannot lay out of
view that the parties were not only married, but really domiciled in England,
and had resorted to Scotland for the manifest purpose of obtaining a temporary
and fictitious domicile there, in order to give the Scotch Courts jurisdiction
over them, and enable them to dissolve their marriage; whereas here the
domicile of the parties-is Scotch, and the proceeding is bona fide taken by the
husband in the Courts of his own country, to which he is amenable, and ought to
have free access; and no fraud upon the law of any other country is practised
by the suit. It must be added that, in Lolley's case, the English marriage had
been contracted by English parties, without any view to the execution o f the
contract at any time in Scotland; whereas the marriage now in question was had
by a Scotchman and a woman whom the contract made Scotch, and therefore may be
held to have contemplated an execution and effects in Scotland. But although,
for these reasons, the support of my opinion does not require that I should
dispute the law in Lolley's case, I should not be dealing fairly with this
important question, if I were to avoid touching upon that subject; and as no
decision of this House has ever adopted that rule, or assumed its [542]
principle for sound, and acted upon it, I am entitled here to express the
difficulty which I feel in acceding to that doctrine-a difficulty which much
deliberation and frequent discussion with the greatest lawyers of the age, I
might say both of this and of the last age-has not been able to remove from my
mind. If no decision had ever been pronounced in this country, recognizing the
validity of Scotch marriages between English parties, going to Scotland with
the purpose of escaping from the authority of the English law, I should have
felt it much easier to acquiesce in the decision of which I am speaking: for
then it might have been said, consistently enough, that whatever may be the
Scotch marriage law among its own subjects, and for the government of Scotch
questions, ours is in irreconcileable conflict with it, and we cannot permit
the positive enactments of our statute-book,
1258 WARRENDER V. WARRENDER [1835] II CLARK & FINNELLY.
and the
principles of our common law, to be violated or eluded, by merely crossing a
river, or an ideal boundary line. Nor could anything have been more obvious
than the consistency of those, who, holding that no unmarried parties,
incapable of marrying here, can, in fraud of our law, contract a valid marriage
in Scotland, by going there for an hour, should also hold the cognate doctrine,
that no married parties can
dissolve an English marriage, indissoluble here, by repairing thither for six
weeks. But upon this firm ground the decisions of all the English Courts have
long since prevented us from taking our stand. They have held, both the Consis-torial
Judges in Campion v. Bearcroft, and those of the common law in llderton v.
Ilderton, the doctrine uniformly recognized in all subsequent cases, and acted
upon daily by the English people, that a Scotch marriage, contracted by English
parties in the face and in fraud [643] of the English law, is valid to all
intents and purposes, and carries all the real and all the personal rights of
an English marriage, affecting, in its consequences, land, and honours, and
duties, and privileges, precisely as does the most lawful and solemn
matrimonial contract entered into among ourselves, in our own churches;,
according to our own ritual, and under our own statutes. It is quite
impossible, after this, to say that we can draw the line, and hold a foreign law,
which we acknowledge all-powerful for making the binding contract, to be
utterly impotent to dissolve it. Were a sentence of the Scotch Court in a
declarator of marriage to be given in evidence here, it would be conclusive
that the parties were man and wife; and no exception could be taken to the admissibility or the effect
of the foreign evidence, upon the ground of the parties having been English,
and repaired to Scotland for the purpose of escaping the provisions of the
English law. A similar sentence of the same Court, declaring the marriage to be
dissolved by the same law of Scotland, being now supposed to be given in
evidence between parties who had married in England, can it, in any consistency
of reason, be objected to the reception or to the force of this sentence, that
the contract had been made, and the parties had resided here? In what other
contract of a nature merely personal-in what other transaction between men-is
such a, rule ever applied-such an arbitrary and gratuitous distinction made-such
an exception raised to the universal position, that things are to be dissolved
by the same process whereby they are bound together ; or rather, that the tie
is to be loosened by reversing the operation which knit it, but reversing the
operation according to the same rules? What gave [544] force to the ligament?
If a contract for sale of a chattel is made, or an obligation of debt is
incurred, or a chattel is pledged, in one country, the sale may be annulled,
the debt released, and the pledge redeemed, by the law and by the forms of
another country, in which the parties happen to reside, and in whose Courts
their rights and obligations come in question; unless there was an express
stipulation in the contract itself against such avoidance, release, or redemption.
But at any rate this is certain, that if the laws of one country and its Courts
recognise and give effect to those of another in respect of the constitution of
any contract, they must give the like recognition and effect to those same
foreign laws, when they declare the same kind of contract dissolved. Suppose a
party, forbidden to purchase from another by our equity as administered in the
Courts of this country (and we have some restraints upon certain parties which
come very near prohibition), and suppose a sale of chattels by one to another
party standing in this relation towards each other, should be effected in
Scotland, and that our Courts here should (whether right or wrong) recognise
such a sale, because the Scotch law would affirm it-surely it would follow that
our Courts must equally recognise a rescission of the contract of sale in
Scotland by any act which the Scotch law regards as valid to1 rescind it,
although our own law may not regard it as sufficient. Suppose a question to
arise in the Courts of England respecting the execution of a contract thus made
in this country, and that the objection of its invalidity were waived for some
reason ; if the party resisting its execution were to produce either a sentence
of a Scotch Court declaring it rescinded by a Scotch matter done in pads, or
were merely to pro-[545]-duce evidence of the thing so done, and proof of its
amounting by the Scotch law to a rescission of the contract. I apprehend that
the party relying on the contract could never be heard to say, " The
contract is English, and the Scotch proceeding is impotent to dissolve
it." The reply would be, " Our English Courts have (whether right or1
wrong) recognised the validity of a. Scotch proceeding to complete the
obligation, and can no longer deny
the validity
1259 II CLARK & FINNELLY. WARRENDER V. WARRENDER [1835]
of a
similar but reverse proceeding to dissolve it-unumquodque dissolvitur eodem
modo quo ligatur." Suppose, for another example, that the law of this
country precluded an infant or a married woman from borrowing money in any way,
or from binding themselves by deed (which is the fact), and that in another
country those obligations could be validly incurred; it is probable that our
law and our Courts would recognise the validity of such foreign obligations.
But suppose a feme covert in a foreign country had executed a power, and
conveyed an interest under it to another feme covert in England, could it be
endured that where the donee of the power produced a release under seal from
the feme covert in the same foreign country, a distinction should be taken, and
the Court here should hold that party incapable of releasing the obligation 1
Would it not be said that our Courts, having decided the contract of a feme
covert to be binding, when executed abroad, must, by parity of reason, hold the
discharge or release of the feme covert to be valid, if it be valid in the same
foreign country? Nor can attempt succeed, in this argument, which rests upon
distinctions taken between marriage and other contracts, on the ground that its
effects govern the enjoyment of real rights in England, and [546] that the
English law alone can regulate the rights of landed property. For, not to
mention that a Scotch marriage between English parties gives English honours
and estates to its issue, which would have been bastard had the parties so
married, or pretended to marry, in England; all personal obligations, may in
their consequences affect real rights in England. Nor does a Scotch divorce, by
depriving a widow of dower or arrears of pin-money charged on English property,
more immediately affect real estate here, than a bond or a judgment released in
Scotland according to Scotch forms, discharges real estate of a lien, or than a
bond executed, or indeed a simple contract debt incurred in Scotland,
eventually and consequentially charges English real estate. It appears to me
quite certain that those who decided Lolley's case did not look sufficiently to
the difficulty of following out the principle of the rule which they laid down.
At first sight, on a cursory survey of the question, there seems no great
impediment in the way of a Judge who would keep the English marriage contract
indissoluble in Scotland, and yet allow a Scotch marriage to have validity in
England ; for it does not immediately appear how the dissolution and the
constitution of the contract should come in conflict, though diametrically
opposite principles are applied to' each. But only mark how that conflict
arises, and how, in fact and in practice, it must needs arise as long as the
diversity of the rules applied is maintained. When English parties are divorced
in Scotland, it seems easy to say, " We give no validity to this
proceeding in England, leaving the Scotch law to deal with it in that country;
and with its awards we do not in anywise interfere." But the time speedily
arrives when we can no longer refuse [547] to interfere; and then see the
inextricable confusion that instantly arises and involves the whole subject.
The English parties are divorced-they return to England, and one of them
marries again : that party is met by Lolley's case, and treated as a felon. So
far all is smooth. But what if the second marriage is contracted in Scotland?
and what if the issue of that marriage claims an English real estate by
descent, or the widow demands her dower ? Lolley's case will no longer serve
the purpose of deciding the rights, of the parties-for Lolley's case is
confined to the effects of the Scotch divorce in England, and professes not to
touch, as, indeed, they who decided it had no authority to touch, the validity
of that divorce in Scotland. Then the marriage being Scotch, the lex loci must
prevail by the cases of Compton v. Bearcroft, and llderton v. Ilderton. All its
consequences to the wife and issue must be dealt with by the English Courts ;
and the same Judge, who, sitting under a commission of gaol delivery, has in
the morning sent Mr. Lolley to' the hulks for felony, because he re-married in
England, and the -divorce was insufficient, sitting at nisi prius in the
afternoon, must give the issue of Mrs. Lolley's second marriage an estate in
Yorkshire, because she re-married in Scotland, and must give it on the precise
ground that the divorce was effectual. Thus the divorce is both valid and
nugatory, not according to its own nature, or the law of any one State, but
according to the accident whether a transaction which follows upon it, and does
not necessarily occuv at all, chanced to take place in one part of the Island
or in the other; and yet the felony of the husband depended entirely
1260 WARRENDER V. WARRENDER [1835] II CLARE & FINNELLY.
upon his
not having been divorced validly in Scotland, and not at all upon his not being
divorced validly in England; and the [548] title of the wife's issue to the
succession, or of herself to dower, depends wholly upon the same husband having
been validly divorced in that same country of Scotland. Nor will it avail to
contend that the parties marrying in Scotland after a Scotch divorce, is in fraud
of the English rule as laid down in that celebrated case. It may be so; but it
is not more in fraudem legis Anglicanae, than the marriage was in Campion v.
Bearcroft, which yet has been held good in all our Courts. Neither will it
avail to argue that the indissoluble nature of the English marriage prevents
those parties from marrying again in Scotland as well as in England; for the
rule in Lolley's case has no greater force in disqualifying parties from
marrying in Scotland, where that is not the rule of law, than the English
Marriage Act ha s in disqualifying infants from marrying without banns
published; and yet these may, by the law of England, go and marry validly in
Scotland. Indeed, if there be any purely personal disqualification or
incapacity caused by the law, and which, more than any ether, may be said
to travel about with the party, it
is that which the law raises upon a natural status, as that of infancy, and
infixes on those who, by the order of nature itself, are in that condition, and
unable to shake it off, or by an hour to accelerate its termination. If, in a
matter confessedly not clear, and very far from being unincumbered with doubt
and difficulty, we find that manifest and serious inconvenience is sure to
result from one view, and very little, in comparison, from adopting the
opposite course, nothing can be a stronger reason for taking the latter. Now
surely it strikes every one that the greatest hardships must occur to parties,
the greatest embarrassment to [549] their rights, and the utmost inconvenience
to the Courts of Justice in both countries, by the rule being maintained as
laid down in Lolley's case:-The greatest hardship to parties; for what can be a
greater grievance than that parties living bona fide in England, though temporarily,
should either not be allowed to marry at all during their residence here, or if
they do, and afterwards return to their own country, however great its
distance, that they must be deprived of all remedy in case of misconduct,
however aggravated, unless they undertake a voyage back to England, aye, and
unless they can comply with the Parli amen try forms in serving notices: - The
greatest embarrassment to their rights; for what can be more embarrassing than
that a person's status should be involved in uncertainty, and should be subject
to change its nature as he goes from place to place; that he should be married
in one country, and single, if not a felon, in another; bastard here, and
legitimate there?- The utmost inconvenience to the Courts; for what inconvenience
can be greater than that they should have to regard a person as married for one
purpose, and not for another-single and a felon if he marries a. few yards to'
the southward; lawfully married if the ceremony be performed a few yards to the
north-a bastard when he claims land; legitimate when he sues for personal
succession-widow when she demands the chattels of her husband ; his concubine
when she counts as dowable of his land? It is in vain to remind us of the
opportunity which a strict adherence to the lex loci, with respect to
dissolution of the contract, would give to violators of our English marriage
law. This objection comes too late. Before the validity of Scotch marriages had
been supported by decisions too numerous and too old for any [550] question,
this argument ab inconvenienti might have been urged and set against those
other reasons which I have adduced, drawn from the same consideration. But we
have it now firmly established as the law of the land, and daily acted upon by
persons of every condition, that, though the law of England incapacitates
parties from contracting marriage here, they may go for a few minutes to the
Scotch border, and be married as effectually as if they had no incapacity
whatever in their own country, and then return, after eluding the law, to set
its prohibitions at defiance without incurring any penalty, and to obtain its
aid without any difficulty in securing the enjoyment of all the rights incident
to the married state. Surely there is neither sense nor consistency in
complaining of the risk, infraction or evasion arising to the English law from
supporting Scotch divorces, after having thus given to the Scotch marriages the
power of eluding, and breaking, and defying that law for so many years.
1261 II CLARK & FINNELLY. WARRENDER V. WARRENDER [1835]
I have
now been commenting upon Lolley's case on its own principle-that is, regarding
it as merely laying down a rule for England, and prescribing how a Scotch
divorce shall be considered in this country, and dealt with by its Courts. I
have felt this the more necessary because I do not see, for the reasons which
have occasionally been adverted to in treating the other argument, how,
consistently with any principle, the Judges who decided the case could limit
its application to England, and think that it did not decide also on the
validity of the divorce in Scotland. They certainly could not hold the second
English marriage invalid and felonious in England, without assuming that the
Scotch divorce was void even in Scotland. In my view of the present question,
there-[551]-fore, it was fit to show that the Scotch Courts have a good title
to consider the principle of Lolley's case erroneous even as an English
decision. This, it is true, their Lordships have not done; and the Judgment now
under appeal is rested upon the ground of the Scotch divorce being sufficient
to determine the marriage contract in Scotland only. I must now observe, that
supposing (as may fairly be concluded) Lolley's case to have decided that the divorce
is void in Scotland, there can be no ground whatever for holding that it is
binding upon the Scotch Courts on a question of Scotch law. If the cases and
the authorities of that law are against it, the learned persons who administer
the system of jurisprudence are not bound to regard-nay, they are not entitled
to regard-an English decision, framed by English Judges upon an English case,
and devoid of all authority beyond the Tweed. Now, I have no doubt at all that
the Scotch authorities are in favour of the jurisdiction, and support the
decision under appeal; but I must premise that, unless it could be shown that
they were the other way, my mind is made up with respect to the principle, and
I should be for affirming on that ground of principle alone, if precedent or
dicta did not displace the argument. The principle I hold so clear upon grounds
of general law, that the proof is thrown, according to my view, upon those who
would show the Scotch law to be the other way. In approaching this branch of
the question, it is most important to remark, that there may be a very small
body of judicial authority upon a point of law very well established in any
country; nay, that oftentimes the less doubtful the point is, the fewer cases
will you find decided upon it. Thus no one denies [5521 that the Scotch
Consistorial Court had, ever since its establishment upon the Reformation, been
in the practice of pronouncing sentences of divorce for adultery. The Catholic
religion was abolished by the Parliament of Scotland in 1560; and three years
after that important event, we find a statute made, the Act 1563, c. 74, in
which, after a preamble expressing great and lively horror of the "
abominable and filthie vice of adultery," (an opinion, perhaps, more
sincere in the estates of Parliament than in the Queen,) it is declared to be a
capital offence, if " notour " (notorious) ; and all other adultery
is to continue punishable as before, but with an express saving of the right to
" pursue for divorcement for the crime of adultery, conform to (according
to) the law." For above two centuries the jurisdiction thus recognized by
the statute had been exercised by the Consistorial Courts. Nor was any
objection whatever made to the want of jurisdiction over parties, in respect of
their domicile having been foreign or the marriage contracted abroad. In truth,
the view which the law took of adultery as a crime punishable with even the
severest of penalties, seems almost to preclude any such exception. If a person
were indicted under the statute for notour adultery committed in Scotland, he
clearly never could have defended himself by showing he had been married in
England, and was only temporarily a resident in Scotland; so there seems never
to have been any such distinction taken, in giving the injured party the civil
remedy against the offender by dissolving the marriage. That Englishmen
temporarily residing in Scotland have been in use to sue for divorces from
marriages contracted in England, ever since the intercourse of the two countries
became constant by the union first of the Crowns and then of the Kingdoms,
[553] is a fact of much importance, and it is not disputed. The importance of
it is this- that the Courts administering the law of divorce have, with a full
knowledge that they were dissolving English marriages, never inquired further
than was necessary for ascertaining that the Pursuers and Defenders had
acquired a domicile in Scot land, and then exercised the jurisdiction without
scruple, and without any hesitation. This is a clear proof that the law, the
Scotch law, was always understood among it*
1262 WARRENDER V. WARRENDER [1835] II CLARK & FINNELLY.
practitioners,
and by the Judges of the country, as the present decision supposes it to be;
and such a long continued and unqualified practice is a fully better proof of
what that law is, than even a few occasional decisions in foro contentioso. It
would be a dangerous thing to admit that generally recognized and long
continued practice should go for nothing, merely because, until a few years
ago, no one had brought those principles and that practice in question, and
because the judicial decisions in its favour were few in number, and of a
recent date. There is every reason to believe that in this, as in most other
particulars, the more ancient law of England was the same with that of our
northern neighbours. Between the Reformation and the latter end of Queen
Elizabeth's reign, it was held that the Consistorial jurisdiction extended to
dissolve marriages a vinculo for adultery (2 Burn's Eccl. Law, 503). It was,
however, apparently not till 1789 that the question of jurisdiction was raised
in foro contensioso, by the case of Brunsdon v. Wallace. But there a question
was made upon the sufficiency of the forum originis to found a jurisdiction.
The husband, before marriage, had left Scotland without any intention of [554]
returning, and so had the wife. The Judges were much divided, and the judgment
was given with an express reference to the circumstances of the case, of which
the absence of the defender, the husband, from Scotland, when and long before
the suit was commenced, must be regarded as one. Nevertheless, as the majority
of the Court considered the forum originis of both parties sufficient to found
the jurisdiction, I should have thought this a decision against the principles
which I deem to be recognised by later cases, had it stood untouched by these.
Pirie v. Lunan is, I believe, the next case; but it was the case of a Scotch
marriage between Scotch parties, and only raised the question of forum; for
both were domiciled in England. The Court sustained the jurisdiction ratione
originis. This decision clearly proves little or nothing anyway in the present
question. And the same may be said of Grant v. Pedie. So French v. Pileher
turned on the wife, the defender being an Englishwoman and resident out of
Scotland, and the adultery chiefly committed abroad; and, accordingly, it does
not touch, and hardly even approaches, any of the points now in dispute. In
Lindsay v. Tovey, the Court of Session sustained the jurisdiction in all
respects, though the parties had been living separate under a deed. It is true
that your Lordships, on appeal, remitted the case; and that the death of one of
the parties prevented any further proceedings. The ground of the remit was
twofold: that the domicile of the husband appeared to your Lordships (acting
under Lord Eldon's advice) to be in England; and that Lolley's case had not
been considered by the Court below. Upon that case Lord Eldon pronounced no opinion,
but he certainly intimated a doubt; and I can inform your Lordships [555]
(having been counsel in the cause, and having, at the argument, given his
Lordship a note of the judgment in Lolley's case) that he said, " It- is a
decision on which we probably shall hear a good deal more." But since
Lolley's case was decided, with the doctrine there laid down fully before them,
and after maturely considering it, the Scotch Courts have repeatedly affirmed
the jurisdiction in all its particulars. Those cases to which I particularly
refer were decided in 1814, and the two or three following years. Lovett v.
Lovett, and Kibble-thwaite v. Kibbtethwaite, both of the same date, 21st
December 1816, are those to which I shall particularly advert. In both cases
the marriage was had in England; in both, the parties were English by birth and
by domicile; in both, the suit was brought by the wife for the husband's
adultery; and the only domicile in Scotland being that required to give the
Courts jursdiction, the Commissaries in both refused to divorce, on the ground,
not of the indissolubility of the English marriage, but the insufficiency of
the Scotch residence; in both, the Court of Session, after the fullest
discussion, with one dissentient voice, and that turning upon the question of
domicile, sustained the jurisdiction, and remitted to the Commissaries to
proceed with the divorce. Upon the other cases, of Edmonstone v. Edmonstone,
and Butler v. Forbes, I need not dwell in detail. The state of the judicial
authority on this question is fully given in the work of Mr. Ferguson, one of
the most experienced of the Scotch Consistorial Judges. After referring to all
the cases, the words of that learned person, though not to be cited as an
authority, are well worthy of attention, as the testimony of a Judge
1263 II CLARK & FINNELLY. WARRENDER V.
WARRENDER [1835]
sitting
for so many years in the Scotch Consistorial [556] Court, and speaking to its
uniform and established practice, twenty years after Lolley's case had been determined
here. Mr. Ferguson says, " According to these precedents, the municipal
law of Scotland is also now applied by the Consistorial Judicature in all cases
of divorce, without distinction, whether the parties are foreign or domiciled
subjects and citizens of this kingdom; whether, when foreign, the law of their
own country affords the same remedy or not, and whether they have contracted
their marriage within this realm, or in any other; provided only that they have
become properly amenable to the jurisdiction in this forum. None of these last
mentioned cases, nor indeed any other from Scotland, in which a question of
international law could be raised for trial and judgment, having hitherto been
appealed, the rule has for a period of more than ten years stood as fixed by
them, and the subsequent practice has furnished additional instances of its
application." I think I need scarcely add, that this current of judicial
authority, and still more the uniform practice of the Scotch Courts,
unquestioned ever since the Reformation, establishes clearly the proposition in
its largest sense, that the Scotch Courts have jurisdiction to divorce when a
formal domicile has been acquired by a temporary residence, without regard to
the native country of the parties, the place of their ordinary residence, or
the country where the marriage may have been had. But although it was
necessary, to complete the view which I have taken of this important question,
that I should advert to the cases which bear upon it in all its extent, there
is no necessity whatever for our assenting to the proposition in its more
general and [557] absolute form, for the purpose of the case now before us.
That is the case of a marriage contracted in England, between a man, Scotch by
domicile and birth, and a woman about to' become Scotch by the execution of the
contract. It is moreover the case of a suit instituted in the Scotch Courts,
while the pursuer had his actual domicile in Scotland, and his wife had the
same domicile by law. To term a marriage so contracted an English marriage,
hardly appears to be correct. I am sure it is, if not wholly a Scotch contract,
at the least, a contract partaking as much of the Scotch as of the English.
This, in my judgment, frees the case from all doubt; but as I have also a
strong opinion upon the more general question-an opinion not of yesterday, nor
lightly taken up-I have deemed it fitting that I should not withhold it from
your Lordships, and the parties, and the Court below, upon the present
occasion. Lord Lyndhurst:-My noble and learned friend has, in the judgment
which he has just read, given your Lordships so full and clear a view of the
state of the case, and of the law applicable to it, that it is not necessary
for me to do more than communicate the result of my own opinions on the
principal question submitted for your Lordships' decision. That question is one
of great importance, not only to the parties immediately interested, but also
to the public, on account of the principle which is involved in it. I have, on
that account, from time to' time during the argument, and since, given my best
consideration to the subject, in the earnest desire to arrive at a just and
satisfactory conclusion. I must, however, in the outset declare, that if I
conceived that the judgment which your Lordships are now about to adopt, were
[558] to be understood as affecting that delivered by the twelve Judges in
Lolley's case, I should feel it my duty to object to so dangerous and
precipitate a course-a course so likely to create inconvenience and
embarrassment in its results-and should recommend to your Lordships, before you
pronounced a final judgment, to review the principles of the law, and
especially to request the assistance and opinions of the learned Judges of the
Courts of Law on the whole case, or so far at least as your judgment might be
in conflict with their unanimous decision in the case of Lolley. It may be in
the recollection of some of your Lordships that Lolley had been married in
England, had subsequently gone to Scotland, and there procured a divorce, and
then returned to England, where he married a second time, and was, in
consequence, tried for bigamy. His defence was, that he had been legally
divorced in Scotland; but the twelve Judges declared that the sentence of
divorce pronounced in Scotland, however effectual there, could not be permitted
to enable a party, who had previously solemnized one marriage in England, to
effect a second in it while his first wife was living. He was found guilty, and
sentenced to transportation. That proceeding was not carried through lightly
and unadvisedly; for it came before the assembled Judges of England,
1264 WARRENDER V.
WARRENDER [1835] II
CLARK & FINNELLY.
in the
course of objections raised in reference to Lolley's plea of impunity, founded
on the fact of the Scottish divorce, and supported by advocates of the first
ability; yet the sentence, overthrowing the force of the Scottish ceremonial of
divorce, was confirmed by the unanimous approbation of the twelve eminent individuals
in England best fitted, by talent, legal knowledge and great experience, to
pronounce with, the voice of undoubted authority on the [559] wisdom of that
decision. If, therefore, your Lordships contemplate any interference with that
sentence, so supported, it would only be just and wise to take care that such
interference is warranted, and, as a consistent preliminary, to consult those
twelve individuals, and obtain their assistance on this important point. It has
been stated that Lord Eldon has entertained some doubts on the propriety of
that decision ; but my noble and learned friend is hardly warranted in drawing
such a conclusion, or so interpreting what might have dropped from that learned
Lord, who was then at the head of the law, and would certainly not have allowed
Lolley to be punished, if he had not fully acquiesced in the principle involved
in the sentence, and confirmed by the twelve Judges. But Lolley's case has
received further confirmation; for my noble and learned friend, sitting in the Court
of Chancery, deciding a case which came before him there in 1831, referred to
this case of Lolley, and on the high authority of that case laid it down, in
the most satisfactory manner, that an English marriage could not be dissolved
or affected by a Danish or other foreign divorce.-[His Lordship read, from the
printed case, the observations said to be made by Lord Brougham upon Lolley's
case, when giving judgment in the case in Chancery (vide M'Carthy v. De Caix,
infra, p. 568), and proceeded thus:]-If after this confirmation of Lolley's
case by my noble and learned friend, and by Lord Eldon, as my noble and learned
friend distinctly states in the judgment which I have read-if after all this
your Lordships intend to pronounce this judgment as interfering with the
principle established in Lolley's case, my opinion is, that we should have a
new hearing before the twelve [560] Judges, that we may have the question
settled advisedly once for all, and know henceforth with certainty what the law
shall be in Great Britain. It must be admitted that the legal principles and
decisions of England and Scot-land stand in strange and anomalous conflict on
this important subject. As the laws of both now stand, it would appear that Sir
George Warrender may have two wives ; for, having been divorced in Scotland, he
may marry again in that country: he may live with one wife in Scotland most
lawfully, and with the other equally lawfully in England ; but only bring him
across the border, his English wife may proceed against him in the English
Courts, either for restitution of conjugal rights, or for adultery committed
against the duties and obligations of the marriage solemnized in England :
again, send him to Scotland, and his Scottish wife may proceed, in the Courts
in Scotland, for breach of the marriage contract entered into with her in that
country. Other various and striking points of anomaly, alluded to by my noble
and learned friend, are also obvious in the existing state of the laws of both
countries; but however individually grievous they may be, or however apparently
clashing in their principles, it is our duty, as a Court of Appeal, to decide
each case that comes before us according to the law of the particular country
whence it originated, and according to which it claims our consideration;
leaving it to the wisdom of Parliament to adjust the anomaly, or get rid of the
discrepancy, by improved legislation. The real question now before us amounts
to this : whether in the law of Scotland a divorce obtained in Scotland, as
decided by the Scottish Judges, is supported and justified by the invariable
course of the law of Scotland. We are now sitting as a Scottish [561] Court of
Appeal, this case coming thence to us, and as such we must be guided by a
reference to the principles of the law of that country. In English cases, on
the contrary, we sit as an English Court of Appeal, and must equally be guided
by the spirit of the laws prevailing here. As to the first question-the point
of the domicile-it is fully established by all the papers produced in the case,
and was without hesitation admitted by counsel on both sides, in the
preliminary argument, that Sir George Warrender has been a domiciled resident
in Scotland during the whole period, from his marriage up to the commencement
of the suit and to the present time. This is the basis of the whole case, and
it therefore clearly follows that Lady Warrender became, as his wife, similarly
domiciled in Scotland; for the principle of the law of both countries equally
recognises the domicile of the husband
1265 II CLARE & FINNELLY. WARRENDER V. WARRENDER [1835]
as that
of the wife. No point of law is more clearly established' that point being
established, the subsequent deed of separation amounts to nothing more than a
mere permission to one party to live separate from the other-not a binding
obligation in the eye of the law-and there the matter rests. It confers no
release of the marriage contract on either party, and neither can thereupon
presume to violate it. The letter of Sir George Warrender cannot alter the
principle of law. The strongest articles of separation may be drawn up and
signed with full acquiescence of husband and wife, yet he may sue her and she
may sue him notwithstanding. It is at the most a mere temporary arrangement, a
permission to live elsewhere; but the legal domicile remains as it was. One may
pledge himself not to claim or institute a suit for conjugal rights; but he
cannot be bound by any such pledge, for it is against the inherent
con-[562]-dition of the married state, as well as against public policy. It is
said that Lord Eldon, in the case of Tovey v. Lindsay, in this House, threw
some doubt on the principle, and seemed inclined to give effect to those deeds
of separation ; but I am of opinion, on the authority of cases deliberately
decided by that noble Lord himself, that the deed of separation here cannot
affect the domicile, or any other condition inherent in the relation of husband
and wife, or be any bar to the husband's suit. The next point in the case
regards the locus delicti. The allegations in the summons are, that the
adultery was committed in France, and other countries abroad. We must assume
for the present that Lady Warrender is innocent of these charges; they are not
to be taken as facts proved in the cause: she may, for anything that has yet
appeared in this suit, be as pure and spotless as any woman in the country. But
it is proper to remark, that it is no bar or objection, to the suit, that the
adultery was committed, not in this country, but in a foreign country: the law,
either in this country or in Scotland, makes no distinction in respect of the
place of the commission of the offence. An action for damages may be brought in
this country for adultery committed abroad ; that circumstance cannot have any
effect even in the mitigation of damages. There is no validity in this
objection of the place where the adultery is alleged to' have been committed.
On the third plea depends the main question in the appeal; and it is, whether
it is competent for the Scotch Courts, on proof or admission of adultery, to
pronounce a decree of divorce in a marriage which was contracted and solemnized
in England. I may observe here, that marriage is looked upon, in the
international spirit of the laws of almost every country [563] in Europe, as a
Christian contract, equally binding on the parties wheresoever they may be
found; and in looking to the propriety of the law of divorce in Scotland, it
must be treated as a question of remedy for a violation of nuptial
rights-rights guaranteed by peculiar ceremonials in every country, and in
enforcing respect to which each
country has a right to provide what remedy it pleases. In ascertaining what the
principle of that remedy may be in any country, the safest rule is to look to
the decisions of the Courts of that country. In Scotland these are found, in
perfect agreement with each other, extending in its records over the space of a
century, and embodying a principle which, till the case of Lolley occurred in
England, was never doubted or disputed. In Gordon v. Engle-graaff (Fac. Coll. 9
June 1699; S. C. Ferg. Cons. App. 251), in the year 1699, the marriage was
contracted in Holland, between a Scotchman and a native of Amsterdam. All that
was in proof was the fact of adultery committed by her in Holland, and the
Scotch Court pronounced a decree of divorce at the suit of the husband. In
Ural/am v. Wilkieson (Fac. Coll. 16 December 1726; S. C. Ferg. Cons. App. 252),
in 1726, the parties were married in Ireland; the husband a Scotchman, and the
wife an Irishwoman. A suit for divorce, on the head of adultery, was instituted
by the husband in Scotland, and a decree was pronounced. In 1731 happened the
case of Scot v. Boutcher (Fac. Coll. 6 March 1731; S. C. Ferg. Cons. App. 252):
the marriage was had in England with an Englishwoman, and the adultery was
alleged to have been committed in England. The husband, a Scotchman, instituted
a suit in the Consistorial Court of Edinburgh, and, on proof of her guilt,
obtained in her absence a decree of divorce a vinculo matrimonii. [564] The
case of Urquhart v. Flucker (Fac. Coll. 25 January 1787; S. C. Ferg. Cons. App.
259), in 1787, was still stronger in relation to the present case. There a,
Scotchman in the army married at Boston, in New England, a native of that
place; they cohabited there, and afterwards at Halifax, and lastly in London.
The husband, finding proofs of adultery committed
1266 WARRENDER V. WARRENDER [1835] II CLARK & FINNELLY.
by the
wife in all these places, brought his action for divorce in Scotland, and
obtained a decree accordingly. In none of these cases was the objection made
that the Court in Scotland had not jurisdiction, because the marriage was
solemnized or the adultery committed abroad. No doubt was entertained of the
jurisdiction, upon proof of the adultery, until the year 1789, when the case of
Brunsdon v. Wallace, or Dunlop (Fac. Coll. 9 February 1789; S. C. Ferg. Cons.
App. 259) occurred. The parties there were married in England; the question of
domicile was the only point contested. The Consistorial Court proceeded to
entertain the action, brought by the wife in absence of the husband, who was
cited edictally : but on his appearance, and appeal to the Court of Session,
the action was ordered to be dismissed, on the ground that the parties were not
domiciled in Scotland. Up to that period the decisions in the Scotch Courts
were uniform, and so they continued afterwards; as in the case of The Duchess
of Hamilton v. The Duke of Hamilton, in 1794 (Fac. Coll. 7 February 1794 ; S.
C. Ferg. Cons. App. 260). That was an English marriage, according to the
English la,w and ritual; sentence of divorce a vinculo was nevertheless
pronounced by the Scotch Courts, on proof of adultery. Next came the case of
Lindsay v. Tovey (Fac. Coll. 27 January 1807; S. C. Ferg. Cons, App. 265), in
Scotland, in 1807, which was brought by appeal to this House about the time
that Lolley's [563] case was decided by the twelve Judges of England. In
consequence of doubts entertained by Lords Eldon and Redesdale, and the great
importance of the question then raised for the first time, as to the
jurisdiction, the case of Lindsay v. Tovey (1 Dow, 117) was remitted for
further consideration. The pursuer in that case unfortunately died, and no further
proceedings were taken. The Courts in Scotland, however, continued to sustain
and exercise the same jurisdiction ; as appears by a series of cases, which are
briefly stated in Ferguson's Consistorial Reports, and Appendix: as, Utterton
v. Tewsh; Rodgers v. Wyatt, in 1811 ; Hilary v. Hilary, and Sugden v. Lottey,
in 1812; Pollock v. Russell Manners, in 1813; Homfray v. Newte, and St. Aubyn
v. O'Brien, in 1814. All these cases were uniformly decided according to the
law and practice of Scotland. Then came the case of Gordon v. I'ye, in 1815,
which I mention for the purpose of showing a difference of opinion between the
Judges of the Consistorial Court in Scotland, the majority of whom came to the
conclusion, that in consequence of what was done by the Judges of England, in
Lolley's case, the Courts of Scotland ought not to interfere with English
marriages. But afterwards came the case of Edmonstone v. Lockliart, or
Edmonstone, in 1816; in which the question was raised as to the validity of a
defence to an action of divorce in Scotland, that the marriage took place in
England. That case was brought before the fifteen Judges of the Courts of
Scotland-the very thing which Lord Eldon desired, in remitting the case of
Lindsay v. Tovey-and they were unanimously of opinion, that according to the
law of Scotland, notwithstanding the marriage was [566] had in England, it was
competent for the Courts of Scotland to pronounce sentence of divorce a
vinculo. The arguments of Lord Robertson, one of the Judges of the second
division of the Court of Session, delivered by him in support of his opinion,
and printed in Mr. Ferguson's Appendix (p. 393) to his report of that and other
cases, have satisfied my mind that it is the law of Scotland that the Courts
there have, without reference to the country where the marriage was contracted,
been used from a very remote period to pronounce sentence of divorce for
adultery. The decisions of the Courts of a country are the best proofs of the
law of that country, and they are our best guides. There was no doubt, or
suggestion of a doubt, what the law of Scotland was on those questions, until
Lolley's case brought it into question, and the doubts raised by that were
removed very soon after by the fifteen Judges, in Edmonstone v. Edmonstone.
Though only an English lawyer, and only picking up Scottish la,w during the
three years that I had the honour of attending to cases that came before us,
sitting here in a Court of Appeal, yet I am quite satisfied with the decision
of the Scottish Judges in the present case, and I should act very
inconsistently if I should advise your Lordships to reverse their judgment. I
am clearly of opinion that the domicile is established ; the husband's is
clearly so, as admitted ; the wife's follows the husband's. The deed of
separation does not affect the rule o f law. The objection as to citation has
been virtually abandoned, and the law of Scotland gives the remedy of divorce
without reference to the country in which the marriage was contracted or the
adultery committed. If my noble and learned friend thinks that your
Lord-[567]-ships' judg-
1267 II CLARK & FINNELLY. LOLLEY V. LOLLEY [1812]
ment will
affect the decision in Lolley's case, then, whatever inconvenience may be
sustained, it would be advisable to call in the aid of the learned Judges; but
my opinion is, that it does not break in on that case. As to a reconcilement of
the conflict of the laws of the two countries, Parliament must effect that, for
it alone is competent to interfere, as it has done from time to time, to remove
other inconveniences. I shall, therefore, advise your Lordships to affirm the
decision of the Court below. Lord Brougham:-I think that this judgment does not
break in on Lolley's case. This is a decision in reference to the law of Scotland
; a judgment founded on which, we now, as a Court of Appeal, confirm. Lolley's
case refers to the law of England. The note of what I said in Chancery, in
M'Carthy v. De Caix, read from the printed case by my noble and learned friend,
may or may not be correct: I did not correct this note, nor did I know of it
until I saw it in these papers. Whatever opinion I may have entertained of
Lolley's case in the Court of Chancery, or privately, cannot affect my judicial
opinion in this House, sitting as a member of a Court of Appeal on a case from
Scotland. The interlocutor of the Court below was affirmed.