James W. Brook and Others, - Appellants; Charles Brook and Others - and
the Attorney-General, - Respondents
House of Lords
Original Printed Version (PDF)
Original Citation: (1861) 9 HLC 193
English Reports Citation: 11 E.R. 703
Feb. 25, 26, 28, March 18, 1861.
Marriage - Conflict of Laws - Personal Disability - Prohibited Degrees -
Statutes 28 H. 8, c. 7, and c. 16 - 32 H. 8, c. 38 - 5 and 6 W. 4, c. 54.
Mews' Dig. iii. 478; vii. 626, 630, 633, 635, 649; viii. 216. S.C. 7 Jur.
N.S. 422 4 L.T. 93; 9 W.R. 461; 5 Rul. Cas. 783; and, below, 27 L.J.Ch. 401; 3
Sm. and G. 481. Considered and acted upon, as to conflict of laws, in In re
Alison's Trusts, 1874, 31 L.T. 639; and Sottomayor v. De Barros, 1877, 2 P.D.
87; 3 P.D. 6. As to marriage with deceased wife's sister, adopted in Howarth v.
Mills, 1866, L.R. 2 Eq. 392; and Pawson v. Brown, 1879, 13 Ch.D. 205. As to
ex-territorial application of English Acts, cf. Whicker v. Hume, 7 H.L.C. 134,
and note thereto.
[193] JAMES W. BROOK and Others,-Appellants; CHARLES BROOK and Of-and
the ATTORNEY-GENERAL,-Respondents [Feb. 25, 26, 28, March L
18, 1861].
IX H.L.C., 194 BEOOK V. BROOK [1861]
Marriage-Conflict, of
Laws-Personal
Disability-Prohibited
Degrees-Statutes 28 H. 8, c. 7, and c. 16-32 H. 8, c. 38-5 and 6 W. 4,
c. 54.
The forms of entering into the
contract of marriage are regulated by the lex loci contractus, the essentials
of the contract depend upon the lea, dornicilii. If the latter are contrary to
the law of the domicile, the marriage (though duly solemnized elsewhere) is
there void.
The Marriage Act, 26 Geo. 2, c. 33,
only applies to the forms of certain marriages celebrated in this country; it
does not touch the essentials of the contract. . It is, therefore, only
territorial.
The 5 and 6 Will. 4, c. 54, affects
all domiciled English subjects wherever they may be transiently resident. It
does not affect them when actually domiciled in British Colonies acquired by
conquest, where a different law exists.
The marriage of a man with the
sister of his deceased wife is declared by the 28 Hen. 8, c. 7, to be contrary
to God's law; and though that statute itself is repealed, its declarations are
renewed in the 28 Hen. 8, c. 16, and 32
Hen. 8, c. 38, which are in force. -
Being forbidden by our law, such a
marriage contracted by British subjects, temporarily resident abroad, but
really domiciled in this country, though valid in the foreign country, and duly
celebrated according to the forms required by the law of that country, is
absolutely void here.
A. and B., British subjects,
intermarried; B. died; A. and C. (the lawful sister of B.), being both at the
time lawfully domiciled British subjects, went abroad to Denmark, where, by the
law, the marriage of a man with the sister of his deceased wife is valid, and
were there duly, according to the laws of Denmark, married:
Held, that under the provisions of
the 5 and 6 Will. 4, c. 54, the marriage in Denmark was void.
William Leigh Brook, of Meltham
Hall, in the county of York, married in May 1840, at the parish church of
Huddersfield, in Yorkshire, Charlotte Armitage. There were two children of that
marriage, Clara Jane Brook and James William Brook. In October 1847, Mrs. [194]
Brook died. On the 7th June 1850, William Leigh Brook was duly, according to
the laws of Denmark, married at the Lutheran church at Wandsbeck, near Altona,
iii Denmark, to Emily Armitage, the lawful sister of his deceased wife. At the
time of this Danish marriage, Mr. Brook and Miss Emily Armitage were lawfully
domiciled in England, and had merely gone over to Denmark on a temporary visit.
There were three children of this union, Charles Armitage Brook, Charlotte
Amelia Brook, and Sarah Helen Brook. On the 17th September 1855, Mrs. Emily,
the second wife of Mr. Brook, died at Frankfort of cholera, and two days
afterwards Mr. Brook himself died of the same complaint at Cologne, leaving all
the five children him surviving.
Mr. Brook, in the early part of the
day on which he died, executed a will, by which he disposed of his property
among his five children, and appointed his brother Charles Brook, and his two
brothers-in-law, John and Edward Armitage, his executors and trustees. In
consequence of the state of his property and of some pending purchases of land,
and afterwards on account of the death of the infant Charles Armitage Brook, it
became necessary to institute an administration suit, and a bill was filed for
this purpose in March 1856, which by order of the Court, was amended, and in
July 1856, a supplemental bill was filed, making the Attorney General a party
to the suit.
The causes came on to be heard in
March 1857, before Vice Chancellor Stuart, ' when certain inquiries were
ordered, and in June 1857, the chief clerk certified (among others) the facts
above stated, and the certificate raised the question of the validity of the
marriage at Wandsbeck. Evidence was taken on this subject, and several
declara-[195]-tions were made by officials and by advocates in Holstein, that
the marriage of a widower with the sister of his deceased wife was perfectly
lawful and valid in Denmark to all intents and purposes whatever.
The cause coming on for hearing, on
farther directions, Vice-Chancellor Stuart called in the assistance of Mr.
Justice Creswell, who, on the 4th December 1857, declared his opinion that the
marriage at Wandsbeck, was by the law of England
704 BROOK V. BEOOK [1861]
IX H.L.C., 196
invalid. Vice-Chancellor Stuart on the 17th April 1858, pronounced
judgment, fully adopting this opinion, and decreed accordingly. This appeal was
then brought.
Sir F. Kelly and Mr. Malins (Mr. G.
Lake Russell, Mr. Cleasby, and Mr. Freeman with them) for the Appellants.-It is
a settled rule of international law, that every contract must depend for its
validity on the law of the country in which it is made. Marriage is a contract
which falls within this rule. Being valid where it is made, its validity must
be accepted throughout the world. There are two exceptions to this general
principle: First, where the contract is malum in se. Secondly where, though
valid in the country where made, it is by express law prohibited in another
country, and all the subjects of this latter country are forbidden any where
and under any circumstances to enter into such a contract (Story, Confl. of L.,
ss. 82, 113, 114, 117, 123). The question here will depend on this second
exception.
The English law has acknowledged
marriages which would have been invalid in this country, to be valid if duly
celebrated elsewhere. Marriages by words of present, acknowledgment only are
instances of this, Compton [196] v. Bearcroft (Buller's N.P. 113, 114, See 2
Hagg. Cons. Eep. 444n), so as even to entitle the wife to dower here, llderton
v. Ilderton (2 H. Bl. 145), Eliding v. Smith (2 Hagg. Cons. Rep. 371),
Scrimshire v. Scrimshire (id. 395), in which last case the rule was distinctly
declared, though the alleged marriage there was held to be void as being contrary to the law of
the foreign country, as well as of the domicile. Gayll (Lib. 2, Obs. 36), is
there quoted (2 Hagg. Cons. Rep. 408), for the principle that " constat
unumquemque subjici jurisdictions judicis, in eo loco in quo contraxit,"
and that principle was acted on in Harford v. Morris (id. 423), Butler v.
Freeman (Ambl. 303), and Roach v. Garvan (1 Ves. 157), and the converse of it,
namely, that the marriages of all subjects celebrated abroad not in accordance
with the lex loci are invalid, was asserted in Middleton v. Janverin (2 Hagg.
Cons. Rep. 437).
Personal laws have no extra
territorial application. Paul Voet, and other authorities, all of which are
summed up by Story (Confl. of Laws, s. 7, 20-22). A contract valid where made,
and capable of being performed anywhere, may be enforced in a country where it
could not be legally made, as in the case of the usury laws, Harvey v. Archbold
(3 Barn, and Cres. 626), Mill v. Roberts (3 Esp. 163). It is admitted that this
principle is not recognised as to- marriage by the law of France, but then the
law of France on that matter is an exception to all laws. The Sussex Peerage
case (11 Clark and Fin. 85), is not an exception to this rule, for it was held
there that the words of the statute expressly attached on the persons of a
particular family, and the Duke of Sussex was one of that family. But for that
peculiarity, if the marriage had been proved [197] to be valid by the law of
Rome, where it was celebrated, it would have been valid here; and so it was
held in Sarft v. Kelly (3 Knapp. P.C. Gas. 257), where no such personal
disability existed. The case of Birtwhistle v. Vardill (2 Clark and Fin. 671; 7
id. 895), and the recent case of Fenton v. Livingstone (3 McQueen Sc. Ap. Rep.
497), may both be put aside, as they relate rather to the tenure of property
than to the law of marriage. In the former, especially, the marriage was
undoubtedly valid, and the only question was as to its retroactive effect upon
landed property in England. If this marriage should be pronounced invalid here,
though validly celebrated in Denmark, it must be on the ground that such
marriages are invalid as contrary to the law of God, but that is not expressly
asserted by any statute in this country, the only statute which did declare it,
28 Hen. 8, c. 7, having been repealed.
In Sherwood v. Ray (1 Curt. 173; 1
Moo. P.C.C. 355) it was considered that such a marriage, though by the canon of
1603 declared to be prohibited by the law of God, was not to be so treated by
the principles of the law of England. And in Westby v. Wesfby (2 Dru. and War.
502) Lord Chancellor Sugden sustained a family arrangement, the very object of
which had been to compromise family differences by not disturbing a marriage of
this sort, which he would not have done had such a marriage been contrary to
God's law.
If it is held here to be contrary to
God's law, that would make a marriage between two Danish subjects invalid here
when they came to reside in this country, though it had been perfectly valid in
their own country. No such monstrous consequence can be permitted. It cannot be
asserted here that such marriages are contrary to [198] the law of God, for
those which took place before this last Act
H.L. xi. 705 23 IXH.L.C.,
199 * BROOK V.
BROOK [1861]
are by that very Act declared valid, and it cannot be supposed that the
Legislature would thus have recognised that which it intended to declare to be
contrary to God's law. They can only be treated, supposing them to be within
the provision of the 5 and 6 Will. 4, c. 54, as contrary to the law established
by the special provisions of that statute. [Lord St. Leonards : Assuming that
to be so, what then ?] Then the statute cannot affect marriages made abroad and
valid where made, for a statute can have no such extra-territorial application.
That principle has been acted on in many cases in our own Courts, and more
frequently still in the States of North America, where the variety of laws is
great, and the occasions of conflict between theim frequent. In Greenwood v.
Curtis (6 Mass. Rep. 358), a balance of account was in Massachusetts allowed to
be recovered, though the account consisted almost entirely of the value of
negro slaves; the contract itself being made in a State where such a contract
was legal, though wholly illegal in the State of Massachusetts. In the same
manner, in Medway v. Needham (16 Mass. Rep. 157), a marriage between a mulatto
and a white woman made in Rhode Island, where it was lawful, was in
Massachusetts treated as valid, though it was not lawful there; and the broad
proposition laid down was, that a marriage valid in the country where it is
entered into is valid in any other country, and that too even though it should
appear that the parties went into the country of the contract with a view to
evade the laws of their own country. So in Button v. Warren (10 Mete. Mass.
Rep. 451), it was held that a marriage valid where it is contracted was valid
in the Sta.te of Massachusetts, though not valid by the laws of [199] that
State, if it was not incestuous by the laws of nature. In Wightmcun v. Wightman
(4 Johnst. Cas. in Ch. 343), an American court considered whether, there being
no statute regulating marriages within the prohibited degrees, or denning what
those degrees were, the Court would declare marriages void between persons in
the other degrees of collateral sanguinity or affinity.
In Simonin v. Mediae, Sir Cresswell
Cresswell (29 Law Jour. Prob. Cas. 97) acted on a principle the opposite of
which he adopted in the present case. A marriage between two French subjects
had been celebrated in this country, in a manner valid here; it was invalid by
the law of France, and had been so declared by a competent Court in that
country; yet even after that decision, the learned Judge dismissed a suit for
nullity instituted here. If that was a correct decision, because the marriage
was good in the country where it was celebrated, it ought to govern the
present.
The operation of the statute 5 and 6
Will. 4, c. 54, cannot be extended to other countries. It is a settled
principle of law that where a statute purports to operate on contracts or any other acts, so as to avoid them,
it must, by express terms, have its operation extended to the colonies and
to foreign countries, or that
operation will be limited to the United Kingdom. There are no such express
terms in this statute; and, on the contrary, one part of the United Kingdom
itself, namely, Scotland, is distinctly excepted from its operation. There is,
indeed, the expression " All marriages," but that cannot mean all
marriages in the world; then does it mean all marriages of British subjects? In
order to have that meaning, the expression
should have been used-it cannot be implied,-and certainly not implied to the
extent [200] of affecting all British subjects all over the world. It is clear
that it cannot apply to the colonies without their being directly named.
[Lord St. Leonards.-May not the law
affect the colonies without their being named, if it is fitted to them?]
No; Clark on Colonial Law (p. 23 et
seq.). Nor can it affect British subjects in foreign countries; Santos v.
Illtdge (29 Law Jour. C.P. 348), where the selling, by British subjects, of
slaves in Brazil was held in the Exchequer Chamber to be legal, even though the
purchasing of them there might be a felony in a British subject; and there Mr.
Baron Bramwell expressly went on the principle that legislation must be
confined to the country of the legislator, a principle which had been
previously declared in the most express terms in the opinion declared to this
House by Lord Chief Baron, Pollock in the case of Jeferys v. Boosey (4 H.L.
Cas. 938). And, in point of fact, it would be impossible to apply this law to
the colonies, for in them we have millions of Roman Catholic fellow subjects,
who think such marriages perfectly good. Even in the conquered colonies all the
law of the conquering state does not, as of course, prevail. Such a marriage
would therefore be good in some of our
706 BROOK V. BROOK [1861] IX H.L.C., 201
own conquered colonies, for the French, Spanish, or Dutch laws, which
permitted it, still prevail there. The prohibition of it which existed in the
English law, is an exception to the law of the rest of Europe, unless it may be
that of the little Pays de Vaud in Switzerland. It cannot be contended that,
without naming our colonies or British subjects in foreign countries, the
legislature meant that such a marriage between individual British subjects,
wherever contracted, should be invalid. Without such [201] expression it can
have no such effect, Clark on Colonial Law (p. 16 and n.). If it had been
intended to apply to them, nothing was easier than to say so; the absence of
any such declaration is conclusive to show that no such intention was
entertained.
The Act is nothing more than a Local
Act, with a local exception. It forbids these marriages in future in England,
but it excepts those which had already been contracted, and it is to have no
operation in Scotland. If any such marriage between English persons had, before
the passing of this Act, taken place in Scotland, where it is not valid, this
Act would, therefore, have had the effect of rendering such marriage valid
here, for it makes valid all such marriages had previously to the passing of
the Act. The only object of the Act was declared by Lord Chancellor Lyndhurst,
on the Sussex Peerage case (11 Clark and Fin. 137), to be to declare that void
which was before only voidable, and so get rid of a doubt capable of affecting
most prejudicially parties interested in the question. Without, therefore,
disputing the decision in The Queen v. Chadwick (11 Q.B. Rep. 173), it is
contended that that decision cannot affect marriages which have taken place
abroad. Dr. Radcliff, in the Ecclesiastical Court, in Dublin, held that an
Irish statute similar to this, the 9 Geo. 2, c. 11, did not follow Irish
persons so as to invalidate a minor's marriage duly contracted in Scotland,
according to Scotch forms (Steele v. Braddell, Milw. Ecc. (Ir.) Rep. 1).
The Attorney-General (Sir R.
Bethell), and Mr. Wickens, for the Crown.-This is purely a question of English
law, and arises in determining the right of succession to real and personal
[202] estate, the form and validity of the contract of marriage deciding the
title by heirship. Birtwhistle v. Vardill (7 Clark and Fin. 895) is, therefore,
expressly applicable to this case. There are here five propositions. First, the
lex loci determines the form of the contract. Secondly, the capacity of the
parties to contract is determined by the lex loci of their domicile. Thirdly,
that even supposing the contract to have been duly solemnised according to the
law of the forum of its constitution, and even supposing the parties to have
the capacity to contract, yet, if there is anything in the contract which is
prohibited by English law, or is at variance with the institutions and policy
of the English law the contract cannot be accepted as valid in an English court
of justice. These are the general principles that must be applied to the
decision of this case. The particular principles to be added are these. Fourth,
that by the Common and Statute Law of England all subjects, if within the
prohibited degrees of affinity, are incapable of marriage, and a contract of
marriage in disregard of that law is void. Fifthly, there is a marked
distinction between the present case and that of a Scotch marriage, which is
admitted in the English courts as valid, because the parties to such a marriage
are capable of marrying, and there is no incapacity created or declared by the
English Marriage Act, 26 Geo. 2, c. 33, which does not prevent the marriage of
minors, but only relates to the observance of certain forms in their marriages:
forms that of course cannot be required out of England.
There is nothing in the comity of
nations, or the jus gentium, which affects the case, Warrender v. Warrender
(Per Lord Brougham, 2 Clark and Fin. 529, 531). That case shows, that the law
of the domicile [203] governs the marriage; for there, though the marriage, as
to the solemnisation, was English the domicile was Scotch, and the marriage was
treated as a Scotch marriage. The law of all countries merely adopts the lex
loci contractus with relation to the solemnities of the marriage, not the
capacity of the parties. The statute 5 and 6 Will. 4, c. 54, is of universal
application to English subjects as its expressions are universal in their form.
The words are, " all marriages," not " all marriages solemnised
in England." Scotland is expressly exempted from its operation, because
the same law already existed there. The sort of marriage thus forbidden by
statute is, in Harris v. Hicks (2 Salk, 547), described as incestuous, so that
there does exist a legal declaration as to the nature of such a marriage, even
if the 28 Hen. 8, c. 7, should be held to have
707 IX H.L.C., 204 BROOK
V. BEOOK [1861]
no authority. But though that statute was repealed, its declarations of
the forbidden degrees are, in fact, incorporated into the 32 Hen. 8, c. 38,
which expressly adopts the Levitical degrees.
The parties cannot be allowed to
evade the law of their domicile by fraudulently going into another country to
do that which the law of their own country has forbidden. Huberus (De Confl.
Leg. bk. I. tit. 3, s. 8) puts the very case, and says, " Brabantus uxore
ducta, dispensatione Pontificis, in gradu prohibito, si hue migret,
tolerabitur; at tamen si Prisms cum fratris filia se conferat in Brabantiam
ibique nuptias celebret, hue reversus non videtur tolerandus ; quia sic jus
nostrum pessimis exemplis eluderetur; " and he looks on these personal
incapacities as tied round the necks of the subjects. As to this question of
personal capacity Story (Confl. of Laws, s. 50, et seq.~) does not controvert
the doctrine, which he [204] admits to be laid down in the same manner by
Froland, Voet, Pothier, and other writers.
It has been assumed throughout this
argument that this marriage would be valid in Denmark. It may be doubtful
whether that is so; but, at all events, it is not certain that, though the law
of Denmark holds such a marriage among its own subjects to be valid, it would
not hold it to be invalid as contracted between persons who were the subjects
of a country where it was forbidden, and who merely came to Denmark to evade
their own law.
Marriages within the prohibited
degrees were, Hill v. Good (Vaugh. Rep. 302), void by the common law of
England, which was founded upon God's law; but when the ecclesiastical courts
attempted to enforce that law to the extent of declaring, after the death of
the parents, the children to be illegitimate, the common law interfered to
prevent that consequence, and hence grew up the distinction between marriages
void and voidable. The latter word is not quite accurate. It should have been
said, that the marriage was void, but that the law would not allow it to be so
treated after the death of one of the parties. The ecclesiastical jurisdiction,
however, continued with regard to the punishment of the survivor, as Harris v.
Hicks (2 Salk, 547) expressly declares. In such marriages, the persons are
inhabiles. If so, the law of the place of celebration cannot make them habiles,
for that law affects only the validity of the forms of celebration; and a
marriage may be good in the place of celebration and yet be bad in the place of
domicile, and that was the case in Simonin v. Mallac (29 Law Jour. Prob. and M.
97), which, therefore, is not inconsistent with the present. Where the marriage
is between two [205] persons who are not domiciled abroad, they cannot set up
the lex loci contractus, except for the forms of celebration, for going abroad
animus redeundi, they carry the English law with them. In Fenton v. Livingstone
(3 Macq. Sc. App. Rep. 407) this House left it to the Scotch courts to declare
whether the marriage -there contracted was incestuous by the law of Scotland.
It is impossible to use language
stronger than that which is employed in this statute. It leaves the law, as to
capacity, just as before, but it declares that to be absolutely void which had
been before voidable only during the life of both the parties.
The decision in Steele v. Braddell
(Milw. Ecc. Rep. (Ir.) I) does not r.ffeoc the present, for there the case
failed because proceedings had not been instituted in the time limited by the
statute.
Sir F. Kelly, in reply, referred to
Swift v. Kelly (3 Knapp, P.C. Cas, 257) as a case in which a marriage had been
sustained solely because it was good by the law of the place where it was
celebrated.
The Lord Chancellor (Lord Campbell)
(March 18).-My Lords, the question which your Lordships are called upon to
consider upon the present appeal is, whether the marriage celebrated on the 9th
June 1850 in the duchy of Holstein, in the kingdom of Denmark, between William
Leigh Brook, a widower, and Emily Armitage, the sister of his deceased wife,
they being British subjects then domiciled in England, and contemplating
England as their place of matrimonial residence, is to be considered valid in
England, marriage between a widower and the sister of his deceased wife being
permitted by the law of Denmark?
[206] I am of opinion that this
depends upon the question whether such a marriage would have been held illegal,
and might have been set aside in a suit
708 BROOK V. BROOK [1861]
IX H.L.C., 20T
commenced in England in the lifetime of the parties before the passing
of statute 5 and 6 Will. 4. c. 54, commonly called Lord Lyndhurst's Act.
I quite agree with what was said by
my noble and learned friend during the argument on the Sussex peerage, that
this Act was not brought in to prohibit a man from marrying his former wife's
sister, and that it does not render any marriage illegal in England which was
not illegal before. The object of the second section was to remedy a defect in
our procedure, according to which marriages illegal, as being within the
prohibited degrees either of affinity or consanguinity, however contrary to
law, human and divine, and however shocking to the universal feelings of
Christians, could not be questioned after the death of either party. But no
marriage that was before lawful was prohibited by the Act; and I am of opinion
that no marriage can now be considered void under it, which, before the Act,
might not, in the lifetime of the parties, have been avoided and set aside as
illegal.
There can be no doubt that before
Lord Lyndhurst's Act passed, a marriage between a widower and the sister of a
deceased wife, if celebrated in England, was unlawful, and in the lifetime of
the parties could have been annulled. Such a marriage was expressly prohibited
by the legislature of this country, and was prohibited expressly on the ground
that it was " contrary to God's law." Sitting here, judicially, we
are not at liberty to consider whether such a marriage is or is not "
contrary to God's law," nor whether it is expedient or inexpedient.
Before the Reformation the degrees
of relationship by [207] consanguinity and affinity, within which marriage was
forbidden were almost indefinitely multiplied; but the prohibition might have
been dispensed with by the Pope, or those who represented him. At the
Reformation, the prohibited degrees were confined within the limits supposed to
be expressly defined by Holy Scripture, and all dispensations were abolished.
The prohibited degrees were those within which intercourse between the sexes
was supposed to be forbidden as incestuous, and no distinction was made between
relationship by blood or by affinity. The marriage of a man with a sister of
his deceased wife is expressly within this category. Hill v. Good (Vaugh. 302)
and Reg. v. Chadwick (11 Q.B. Rep. 173, 205) are solemn decisions that such a
marriage was illegal; and if celebrated in England such a marriage
unquestionably would now be void.
Indeed, this is not denied on the
part of the Appellants. They rest their case entirely upon the fact that the
marriage was celebrated in a foreign country, where the marriage of a man with
the sister of his deceased wife is permitted.
There can be no doubt of the general
rule, that " a foreign marriage, valid according to the law of a country
where it is celebrated is good everywhere." But while the forms of
entering into the contract of marriage are to be regulated by the lex loci
contractus, the law of the country in which it is celebrated, the essentials of
the contract depend upon the lex domicilii, the law of the country in which the
parties are domiciled at the time of the marriage, and in which the matrimonial
residence is contemplated. Although the forms of celebrating the foreign
marriage may be different from those required by the law of the country of
domicile, the mar-[208]-riage may be good everywhere. But if the contract of
marriage is such, in essentials, as to be contrary to the law of the country of
domicile, and it is declared void by that law, it is to be regarded as void in
the country of domicile, though not contrary to the law of the country in which
it was celebrated.
This qualification upon the rule
that " a marriage valid where celebrated is good everywhere," is to
be found in the writings of many eminent jurists who have discussed the
subject.
I will give one quotation from
Huberus de Conflictu Legum, Bk. 1, tit. 3, s. 2, " Eectores imperiorum id
comiter agunt, ut jura cujusque populi intra terminos ejus exercita, teneant
ubique suatn vim, quatenus nihU potestati aut juri altering imperantis ejusque
civium praejudicetur." Then he gives " marriage" as the
illustration : " Matrimonium pertinet etiam ad has regulas. Si licitum est
eo loco, ubi contractum et celebratum est, ubique validum erit effectumque
habebit, sub eadem exceptione, prejudicii aliis non creandi; cui licet addere, si
exempli nimis sit abominandi; ut si incestum juris gentium in secundo gradu
contingeret alicubi esse permissum; quod vix est ut usu venire possit,"
Id. sec. 8. The same great jurist observes: "Non ita praecise respiciendus
est locus in quo contractus est
709 IXH.L.C., 209 BROOK
V. BROOK [1861]
initus, ut si paries alium in contrahendo locum respexerint, Hie non
potius sit considerandus. Gontraxisse unusquisque in eo loco intelligitur, in
quo ut solveret se obligavit. Proinde et locus matrimonii contracti non tarn is
est, ubi contractus nuptialis initus est, quam in quo contrahentes matrimonium
exercere voluerunt." Id. s. 10.
Mr. Justice Story, in his valuable
treatise on " the Conflict of Laws," while he admits it to be the
" rule that a marriage valid where celebrated is good everywhere,"
says (S. 113 a.) there are exceptions; those of marriages involving [209]
polysjamv and incest, those positively prohibited by the public law of a
country from motives of policy, and those celebrated in foreign countries by
subjects entitling themselves, under special circumstances, to the benefit of
the laws of their own country, he adds (S. 114), " in respect to the first
exception, that of marriages involving polygamy and incest, Christianity is
understood to prohibit polygamy and incest, and, therefore, no Christian
country would recognise polygamy or incestuous marriages; but when we speak of
incestuous marriages care must be taken to confine the doctrine to such cases
as by the general consent of all Christendom are deemed incestuous." The
conclusion of this sentence was strongly relied upon by Sir FiteRoy Kelly, who
alleged that many in England approve of marriage between a widower and the
sister of his deceased wife; and that such marriages are permitted in
Protestant states on the Continent of Europe and in most of the States in
America.
Sitting here as a judge to declare
and enforce the law of England as fixed by King, Lords, and Commons, the
supreme power of this realm, I do not feel myself at liberty to form any
private opinion of my own on the subject, or to inquire into what may be the
opinion of the majority of my fellow citizens at home, or to try to find out
the opinion of all Christendom. I can as a judge only look to what was the
solemnly pronounced opinion of the legislature when the laws were passed which
I am called upon to interpret. What means am I to resort to for the purpose of
ascertaining the opinions of foreign nations? Is my interpretation of these
laws to vary with the variation of opinion in foreign countries? Change of opinion
on any great question, at home or abroad, may be [210] a good reason for the
legislature changing the law, but can be no reason for judges to vary their
interpretation of the law.
Indeed, as Story allows marriages
positively prohibited by the public law of a country, from motives of policy,
to form an exception to1 the general rule as to the validity of marriage, he
could hardly mean his qualification to apply to a country like England, in
which the limits of marriages to be considered incestuous are exactly defined
by public law.
That the Parliament of England in
framing the prohibited degrees within which marriages were forbidden, believed
and intimated the opinion, that all such marriages were incestuous and contrary
to God's word I cannot doubt. All the degrees prohibited are brought into one
category, and although marriages within those degrees may be more or less
revolting, they are placed on the same footing, and before English tribunals,
till the law is altered, they are to be treated alike.
An attempt has been made to prove
that a marriage between a man and the sister of his deceased wife is declared
by Lord Lyndhurst's Act to be no longer incestuous. But the enactment relied
upon applies equally to all marriages within the prohibited degrees of
affinity, and on the same reasoning would give validity to a marriage between a
step-father and his step-daughter, or a step-son and his step-mother, which
would be little less revolting than, a marriage between, parties nearly related
by blood.
The general principles of
jurisprudence which I have expounded have uniformly been acted upon by English
tribunals. Thus, in the great case of Hill v. Good (Vaugh. Rep. 302), [211]
Lord Chief Justice Vaughan and his brother Judges of the Court of Common Pleas,
held, that " When an Act of Parliament declares a marriage to be against
God's law, it must be admitted in all Courts and proceedings of the kingdom to
be so."
In Harford v. Morris (2 Hagg. Con.
Rep. 423, 434) the great judge who presided clearly indicates his opinion, that
marriages celebrated abroad are only to be held valid in England, if they are
according to the law of the country where they are
710 BROOK V. BROOK [1861]
IX H.L.C., 212
celebrated, and if they are not contrary to the law: of England. He
adds, " I do not say that foreign laws cannot be received in this court,
in cases where the courts of that country had a jurisdiction. But I deny the
lex loci universally to be a foundation for the jurisdiction, so as to impose
an obligation upon the court to determine by those foreign laws."
I will only give another example,
the case of Warrender v. Warrender (2 Clark and Fin. 488), in which I had the
honour to be counsel at your Lordships' bar. Sir George Warrender, born and
domiciled in Scotland, married an Englishwoman in England according to the
rites and ceremonies of the church of England; but instead of changing his
domicile, he meant that his matrimonial residence should be in Scotland, where
he had large landed estates, on which his1 wife's jointure was charged. Having
lived a short time in Scotland, they separated. Sir George, continuing
domiciled in Scotland, commenced a suit against her in the Court of Session,
for a dissolution of the marriage on the ground of adultery alleged to have
been committed by her on the continent of Europe. It was objected that this
being a marriage celebrated in England, a country in which by the then existing
law, marriage was indissoluble, the Scotch court had no jurisdiction to
dis-[212]-solve the marriage, and Lolly's case was relied upon, in which a
domiciled Englishman having been married in England, and while still domiciled
in England, having been divorced by decree of the Court of Session in Scotland,
and having afterwards married a second wife in England, his first wife being
still alive, he was convicted of bigamy in England, and held by all the judges
to have been rightly convicted, because the sentence of the Scotch court
dissolving his first marriage was a nullity. But your Lordships unanimously
held that as Sir George Warrender at the time of his marriage was a domiciled
Scotchman, and Scotland was to be the conjugal residence of the married couple,
although the law of England where the marriage was celebrated, regulated the
ceremonials of entering into the contract, the essentials of the contract were
to be regulated by the law of Scotland, in which the husband was domiciled, and
that although by the law of England, marriage was indissoluble, yet as by the
law of Scotland, the tie of marriage might be judicially dissolved 'or the
adultery of the wife, the suit was properly constituted, and the Court of
Session had authority to dissolve the marriage.
It is quite obvious that no
civilised state can allow its domiciled subjects or citizens, by making a
temporary visit to a foreign country to enter into a contract, to be performed
in the place of domicile, if the contract is forbidden by Ihe law of the place
of domicile as contrary to religion, or morality, or to any of its fundamental
institutions.
A marriage between a man and the
sister of his deceased wife, being Danish subjects domiciled in Denmark, may be
good all over the world, and this might likewise be so, even if they were
native born English subjects, who had abandoned th"i. English domicile,
and were domiciled in [213] Denmark. But I am by no means prepared to say, that
the marriage now in question ought to be, or would be, held valid in the Danish
courts, proof being given that the parties were British subjects domiciled in
England at the time of the marriage, that England was to be their matrimonial
residence, and that by the law of England such a marriage is prohibited as
being contrary to the law of God. The doctrine being established that the
incidents of the contract of marriage celebrated in a foreign country are to be
determined according to the law of the country in which the parties are
domiciled and mean to reside, the consequence seems to follow that by this law
must its validity or invalidity be determined.
Sir FitzRoy Kelly argued that we
could not hold this marriage to be invalid without being prepared to nullify
the marriages of Danish subjects who contracted such a marriage in Denmark
while domiciled in their native country, if they should come to reside in
England. But on the principles which I have laid down, such marriages, if
examined, would be held valid in all English courts, as they are according to
the law of the country in which the parties were domiciled when the marriages
were celebrated.
I may here mention another argument of
the same sort brought forward by Sir FitzRoy Kelly, that our courts have not
jurisdiction to examine the validity of marriages celebrated abroad according
to the law of the country of celebration,
711 IX H.L.C., 214 BROOK
V. BROOK [1861]
because, as he says, the Ecclesiastical Courts, -which had exclusive
jurisdiction over marriage, must have treated them as valid. But I do not see
anything to have prevented the Ecclesiastical Court from examining and deciding
this question. Suppose in a probate suit the validity of a marriage had been
denied, its validity must have been determined by the Ecclesiastical Court,
[214] according to the established principles of jurisprudence, whether it was
celebrated at home or abroad.
Sir FitzRoy Kelly farther argued
with great force, that both Sir Cress-well Cresswell and Vice Chancellor Stuart
have laid down that Lord Lyndhurst's Act binds all English subjects wherever
they may be, and prevents the relation of husband and wife from subsisting
between any subjects of the realm of England within the prohibited degrees. I
am bound to say, that in my opinion this is incorrect, and that Lord
Lyndhurst's Act would not affect the law of marriage in any conquered colony in
which a different law of marriage prevailed, whatever effect it might have in
any other colony. I again repeat that it was not meant by Lord Lyndhurst's Act
to introduce any new prohibition of marriage in any part of the world. For this
reason, I do not rely on the Sussex Peerage Case as an authority in point, although
much reliance has been placed upon it; my opinion in this case does not rest on
the notion of any personal incapacity to contract such a marriage being
impressed by Lord Lyndhurst's Act on all Englishmen, and carried about with
them all over the world; but on the ground of the marriage being prohibited in
England as " contrary to God's Law."
I will now examine the authorities
relied upon by the counsel for the Appellants. They bring forward nothing from
the writings of jurists except the general rule, that contracts are to be
construed according to the lex loci contractus, and the saying of Story with
regard to a marriage being contrary to the precepts of the Christian religion,
upon which I have already commented.
But there are various decisions
which they bring forward as conclusive in their favour. They begin with Compton
v. Bearcroft, and the class of cases in which it was held that Gretna Green
marriages were valid in Eng-[215]-land, notwithstanding Lord Hardwicke's
Marriage Act, 26 Geo. 2, c. 33. In. observing upon them, I do not lay any
stress on the proviso in. this Act that it should not extend to marriages in
Scotland or beyond the seas; this being only an intimation of what might
otherwise have been inferred, that its direct operation should be confined to
England, and that marriages in Scotland and beyond the seas should continue to
be viewed according to the law of Scotland and countries beyond the seas, as if
the act had not passed. But I do lay very great stress on the consideration that
Lord Hardwicke's Act only regulated banns and licenses, and the formalities by
which the ceremony of marriage shall be celebrated. It does not touch the
essentials of the contract or prohibit any marriage -which was before lawful,
or render any marriage lawful which was before prohibited. The formalities
which it requires could only be observed in England, and the whole frame of it
shows it was only territorial. The nullifying clauses about banns and licenses
can only apply to marriages celebrated in England. In this class of cases the
contested marriage could only be challenged for want of banns or license in the
prescribed form. These formalities being observed, the marriages would all have
been unimpeachable. But the marriage we have to decide upon has been declared
by the legislature to be " contrary to God's law," and on that ground
it is absolutely prohibited. Here I may properly introduce the words of Mr.
Justice Coleridge in Reg. v. Chadwick (11 Q.B. Rep. 238), " We are not on
this occasion inquiring what God's law or what the Levitical law is. If the
Parliament of that day [Hen. 8] legislated on a misinterpretation of God's law
we are bound to act upon the statute which they have
[216] The Appellant's counsel next
produced a new authority, the very learned and lucid judgment of Dr. Radcliff,
in Steele v. Braddell (Milw. Ecc. Rep. (Ir.) 1). The Irish statute, 9 Geo. 2,
c. 11, enacts, " that all marriages and matrimonial contracts, when either
of the parties is under the age of twenty-one, had without the consent of the
father or guardian, shall be absolutely null and void to all intents and
purposes; and that it shall be lawful for the father or guardian to commence a
suit in the proper Ecclesiastical Court in order to annul the marriage." A
young
712 BROOK V. BROOK [1861]
IX H.L.C., 217
gentleman, a native of Ireland, and domiciled there, went while a minor
into Scotland, and there married a Scottish young lady without the consent of
his father or guardian. A suit was brought by his guardian in an Ecclesiastical
Court in Ireland, in which Dr. Badcliff presided, to annul the marriage on the
ground that this statute created a personal incapacity in minors, subjects of
Ireland, to contract marriage, in whatever country, without the consent of
father or guardian. But the learned Judge said, " I cannot find that any
Act of Parliament such as this has ever been extended to cases not properly
within it, on the principle that parties endeavoured to evade it." And
after an elaborate view of the authorities upon the subject, he decided that
both parties being of the age of consent, and the marriage being valid by the
law of Scotland, it could not be impeached in the courts of the country in
which the husband was domiciled, and he dismissed the suit. But this was a
marriage between parties who, with the consent of parents and guardians, might
have contracted a valid marriage according to the law of the country of the
husband's domicile, and the mode of celebrating the marriage was to be [217]
according to the law of the country in which it was celebrated. But if the
union between these parties had been prohibited by the law of Ireland as "
contrary to the word of God," undoubtedly the marriage would have been
dissolved. Dr. Radcliff expressly says, " it cannot be disputed that every
state has the right and the power to enact that every contract made by one or
more of its subjects shall be judged of, and its validity decided, according to
its own enactments and not according to the laws of the country wherein it was
formed."
Another new case was brought
forward, decided very recently by Sir Cresswell Cresswell, Simonin v. Mediae
(29 Law J., Probate and Mat., 97). This was a petition by Valerie Simonin for a
declaration of nullity of marriage. The Petitioner alleged that a pretended
ceremony of marriage was had between the Petitioner and Leon Mallac of Paris,
in the parish church of St. Martin's-in-the-Fields; that about two days
afterwards the parties returned to Paris, but did not cohabit, and the marriage
was never consummated; that the pretended marriage was in contradiction to and
in evasion of the Code Napoleon;' that the parties were natives of and
domiciled in France, and that subsequently to their return to France the Civil
Tribunal of the department of the Seine had, at the suit of Leon Mallac,
declared the said pretended marriage to be null and void. Leon Mallao was
served at Naples with a citation and a copy of the petition, but did not
appear. Proof was given of the material allegations of the petition, and that
the parties coming to London to avoid the French law, which required the
consent of parents or guardians to their union, were married by license in the
parish church of St. Martin's-in-the-Fields. Sir Cresswell Cresswell, after the
[218] case had been learnedly argued on both sides, discharged the petition.
But was there anything here inconsistent with the opinion which the same
learned Judge delivered as assessor to Vice-Chancellor Stuart in Brook v. Brook
? Nothing whatever; for the objection to the validity of the marriage in
England was merely that the forms prescribed by the Code Napoleon for the
celebration of a marriage in France had not been observed. But there was no law
of France, where the parties were domiciled, forbidding a conjugal union between
them; and if the proper forms of celebration had been observed, this marriage
by the law of France would have been unimpeachable. The case, therefore, comes
into the same category as Compton v. Bearcroft and Steele v. Braddell [Milw.
E.R. (Ir.) 1], decided by Dr. Radcliff. None of these cases can show the
validity of a marriage which the law of the domicile of the parties condemns as
incestuous, and which could not, by any forms or consents, have been rendered
valid in the country in which the parties were domiciled.
Some American decisions, cited on
behalf of the Appellants, remain: to be noticed. In Greenwood v. Curtis (6
Mass. Rep. 358), the general doctrine was acted upon that a contract, valid in
a foreign state, may be enforced in a state in. which it would not be valid,
but with this important qualification, " unless the enforcing of it should
hold out a bad example to the citizens of the state in. which it is to be
enforced." Now the legislature of England, whether wisely or not, considers
the marriage of a man with the sister of his deceased wife " contrary to
God's law," and of bad example.
Medway v. Needham (16 Mass. Rep.
157), according to the marginal note, decides
H.L. xi. 713 23a IX
H.L.C., 219 BROOK V. BROOK [1861]
nothing which the counsel for the Respon-[219]-dents need controvert.
" A marriage which is good by the laws of the country where it is entered
into, is valid in any other country; and although it should appear that the
parties went into another state to contract such marriage, with a view to evade
the laws of their own country, the marriage in the foreign country will,
nevertheless, be valid in the country in which the parties live; but this
principle mill not extend to legalize incestuous marriages so contracted."
This judgment was given in the year 1819. As in England, so in America, some
very important social questions have arisen on cases respecting the settlement
of the poor. Whether the inhabitants of the district of Medway, or the
inhabitants of the district of Needham, were bound to maintain a pauper,
depended upon the validity of a marriage between a Mulatto and a white woman.
They were residing in the province of Massachusetts at the time of the supposed
marriage, which was prior to the year 1770. As the laws of the province at that
time prohibited all such marriages, they went into the neighbouring province of
Rhode Island, and were there married according to the laws of that province.
They then returned to Massachusetts. Chief Justice Parker, held that the
marriage was there to be considered valid, and, so far, the case is an
authority for the Appellants. But I cannot think that it is entitled to much
weight, for the learned judge admitted that he was overruling the doctrine of
Huberus and other eminent jurists; he relied on decisions in which the forms
only of celebrating the marriage in the country of celebration and in the
country of domicile were different; and he took the distinction between cases
where the absolute prohibition of the marriage is forbidden on mere motives of
policy, and where the marriage is prohibited as being contrary to religion on
the ground of incest. I myself must deny the [220] distinction. If a marriage
is absolutely prohibited in any country as being contrary to public policy, and
leading to social evils, I think that the domiciled inhabitants of that country
cannot be permitted, by passing the frontier and entering another state in
which this marriage is not prohibited, to celebrate a marriage forbidden by
their own state, and immediately returning to their own state, to insist on
their marriage being recognised as lawful. Indeed Chief Justice Parker
expressly allowed that his doctrine would not extend to cases in which the
prohibition was grounded on religious considerations, saying, " If without
any restriction, then it might be, that incestuous marriages might be
contracted, between citizens of a state where they were held unlawful and void,
in countries where they were prohibited."
The only remaining case is Sutton v.
Warren (10 Met. Mass. Rep. 451). The decision in this case was pronounced in
1845. I am sorry to say, that it rather detracts from the high respect with
which I have been in the habit of regarding American decisions resting upon
general jurisprudence. The question was, whether a marriage celebrated in
England on the 24th of November 1834, between Samuel Sutton and Ann Hills, was
to be held to be a valid marriage in the state of Massachusetts. The parties
stood to each other in the relation of aunt and nephew, Ann Hills being own
sister of the mother of Samuel Sutton. They were both natives of England, and
domiciled in England at the time of their marriage. About a year after their marriage
they went to America, and resided as man and wife in the state of
Massachusetts. By the law of that state a marriage between an aunt and her
nephew is prohibited, and is declared null and void. Nevertheless, the supreme
court of Massa-[221]-chusetts held that this was to be considered a valid
marriage in Massachusetts. But I am bound to say that the decision proceeded on
a total misapprehension of the law of England. Justice Hubbard, who delivered
the judgment of the court, considered that such a marriage was not contrary to
the law of England. Now there can be no doubt that although contracted before
the passing of 5 and 6 Will. 4, c. 54, it was contrary to the law of England,
and might have been set aside as incestuous, and that A.ct gave no protection
whatsoever to a marriage within the prohibited degrees of consanguinity; so
that if Samuel Sutton and Ann Hills were now to return to England, their
marriage might still be declared null and void, and they might be proceeded
against for incest. If this case is to be considered well decided and an
authority to be followed, a marriage contrary to the law of the state in which
it was celebrated, and in which the parties were domiciled, is to be held valid
in another state into which they emigrate, although by the law of this state,
as well as of the state of celebration and domicile, such a marriage is
prohibited and declared to be null and void. This
714 BROOK V, BROOK [1861]
IX H.L.C., 222
decision, my Lords, may alarm us at the consequences which might follow
from adopting foreign notions on such subjects, rather than adhering to the
principles which have guided us and our fathers ever since the Reformation.
I have now, my Lords, as carefully
as I could, considered and touched upon the arguments and authorities brought
forward on behalf of the Appellants, and I must say that they seem to me quite
insufficient to show that the decree appealed against is erroneous.
The law upon this subject may be
changed by the Legislature, but I am bound to declare that in my opinion, by
the existing law of England this marriage is [222] invalid. It is therefore my
duty to advise your Lordships to affirm the decree, and dismiss the appeal.
Lord Cranworth.-My Lords, the
important question to be decided in this case is, whether the marriage
contracted in 1850, between William Leigh Brook, a widower, and Emily Armitage,
the sister of his deceased wife, in Denmark, where such marriages are lawful,
was a valid marriage in England, both parties to it being, at the time it was
contracted, native born subjects of Her Majesty domiciled in England.
The Court of Chancery decided that
it was invalid, as having been prohibited by the second section of the 5 and 6
Will. 4, c. 54.
One argument on behalf of the
respondents was, that this enactment is of a nature so general and extensive
that it must be construed as affecting all her Majesty's subjects wheresoever
born or domiciled, so that it would operate throughout all our colonies, and on
all who owe allegiance to the British Crown wheresoever they may be. I cannot
concur in that construction, of the statute; no doubt the Imperial Legislature
can, and occasionally does legislate so as to affect our colonies, but
ordinarily our Acts of Parliament speak only to the inhabitants of Great
Britain and Ireland; and I see nothing to lead to the inference that the
enactment in question was meant to have a wider import; indeed, the exception
of Scotland in the next section seems to me, independently of other
considerations, conclusive on the subject.
Excluding, then, this more extensive
operation of the enactment, it seems plain. that the prospective effect of the
Act is to make all marriages within the prohibited degrees absolutely void, ab
initio, dispensing with the [223] necessity of a sentence in the Ecclesiastical
Court declaring them void.
The persons whose marriages by the
second section are declared to be void, are the same persons, and only the same
persons, whose marriages before the passing of that Act might, during the lives
of both parties, have been declared void by the Ecclesiastical Court.
The question, therefore, is, whether
before the passing of that statute the Ecclesiastical Court could have declared
the marriage now in dispute void. It certainly could, and must have done so if
it had been celebrated in England; and all that your Lordships have to say is,
whether the circumstance that it was celebrated in a foreign country, where
such unions are lawful, would have altered the conclusion at which the Court
ought to have arrived.
In the first place, there is no
doubt that the mere fact of a marriage having been celebrated in a foreign
country did not exclude the jurisdiction of the Ecclesiastical Court, while the
jurisdiction as to marriages was exercised by that court. It was of ordinary
occurrence that the court should entertain suits as to the validity of marriages
contracted out of its jurisdiction. So that the question for decision is narrowed
to the single point whether in deciding on the validity of this marriage, if it
had come into discussion before the year 1835, and during the lives of both,
the parties, the Ecclesiastical Court would have been guided by the law of this
country, or by that of the country where the marriage was contracted.
The case was most elaborately argued
at your Lordships' bar, and we were referred to very numerous authorities
bearing on the subject. The conclusion at which I have arrived is the same as
that which my noble and [224] learned friend on the Woolsack has come to,
namely, that though in the case of marriages celebrated abroad the lex loci
contractus must quoad solennitates determine the validity of the contract, yet
no law but our own can decide whether the contract is or is not
715 IX H.L.C., 226 BROOK
V. BROOK [1861]
one which the parties to it, being subjects of Her Majesty domiciled in
this country, might lawfully make.
There can be no doubt as to the
power of every country to make laws regulating the marriage of its own
subjects, to declare who may marry, how they may marry, and what shall be the
legal consequences of their marrying. And if the marriages of all its subjects
were contracted within its own boundaries no such difficulty as that which has
arisen in the present case could exist. But that is not the case; the
intercourse of the people of all Christian countries among one another is so
constant, and the number of the subjects of one country living in or passing
through another is so great, that the marriage of the subject of one country
within the territories of another must be matter of frequent occurrence. So,
again, if the laws of all countries were the same as to who might marry, and
what should constitute marriage, there would be no difficulty; but that is not
the case, and hence it becomes necessary for every country to determine by what
rule it will be guided in deciding on the validity of a marriage entered into
beyond the area over which the authority of its own laws extends. The rule in
this country, and I believe generally in all countries is, that the marriage,
if good in the country where it was contracted, is good everywhere, subject,
however, to some qualifications, one of them being that the marriage is not a
marriage prohibited by the laws of the country to which the parties contracting
matrimony belong.
The real question therefore is,
whether the law of this [225] country, by which the marriage now under
consideration would certainly have been void if celebrated in England, extends
to English subjects casually being in Denmark?
I think it does; of the power of the
legislature to determine what shall be the legal consequences of the acts of
its own subjects done abroad, there can be no doubt, and whether the operation
of any particular enactment is intended to be confined to acts done within the
limits of this country, or to be of universal application, must be matter of
construction, looking to the language used and the nature and objects of the
law.
It must be admitted that the
statutes on this subject are in a confused state. But it must be taken as clear
law that though the two statutes of Hen. VIII., i.e., the 25 Hen. 8, c. 22, and
the 28 Hen. 8, c. 7 (being the only statutes which in terms prohibited marriage
with a wife's sister as being contrary to God's law), are repealed, yet by two
subsequent Acts of the same reign, namely, the 28 Hen. 8, c. 16, and the 32
Hen. 8, c. 38, which had for their object to make good certain marriages, the
prohibition is, in substance, revived or kept alive. For in both of them there
is an exception of marriages prohibited by God's law, and in one of them, 28
Hen. 8, c. 16, the language of the exception is, " which marriages- be not
prohibited by God's laws limited and declared in the Act made in this present
Parliament;" that is the repealed Act of the 28 Hen. 8, c. 7, s. 11; so
that it is to that Act, though repealed, that we are to look in order to see
what marriages the legislature has prohibited as being contrary to God's law.
It was, perhaps, unnecessary to advert to this after the decision of the Court
of Queen's Bench in Reg. v. Chadturick (11 Q.B. Rep. 173), but [226] it is fit
that the grounds on which we proceed should be made perfectly clear.
Assuming, then, as we must, that
such marriages are not only prohibited by our law, but prohibited because they
are contrary to the law of God, are we to understand the law as prohibiting
them wheresoever celebrated, or only if they are celebrated in England? I
cannot hesitate in the answer I must give to such an inquiry. The law,
considering the ground on which it makes the prohibition, must have intended to
give to it the widest possible operation. If such unions are declared by our
law to be contrary to the laws of God, then persons having entered into them,
and coming into this country, would, in the eye of our law, be living in a
state of incestuous intercourse. It is impossible to believe that the law could
have intended this.
It was contended that, according to
the argument of the Respondent, such a marriage, even between two Danes,
celebrated in Denmark, must be contrary to the law of God, and that, therefore,
if the parties to it were to come to this country, we must consider them as
living in incestuous intercourse, and that if any question were to arise here
as to the succession V their
property, we must hold the issue of
716 BROOK V. BROOK [1861]
IX H.L.C., 227
the second marriage to be illegitimate. But this is not so. We do not
hold the marriage to be void because it is contrary to the law of God, but
because our law has prohibited it on the ground of its being contrary to God's
law. It is our laws which makes the marriage void, and not the law of God. And
our law does not affect to interfere with or regulate the marriages of any but
those who are subject to its jurisdiction.
The authorities showing that the
general rule which gives validity to marriages contracted according to the laws
of the place where they are contracted, is subject to [227] the qualification I
have mentioned, namely, that such marriages are not contrary to the laws of the
land to which the parties contracting them belong, have been referred to not
only by my noble and learned friend, but in the able opinion of Sir Cresswell
Cresswell, delivered in the Court below, as also in the judgment of the
Vice-Chancellor. I abstain, therefore, from going into them in detail: to do so
would only be to repeat what is already fully before your Lordships.
I cannot, however, refrain from
expressing my dissent from that part of Sir Cresswell Cresswell's able opinion,
in which he repudiates a part of what is said by Mr. Justice Story as to
marriages which are to be held void on the ground of incest. That very learned
writer, after stating (sec. 113) that marriages valid where they are
contracted, are, in general, to be held valid everywhere, proceeds thus: "
The most prominent, if not the only known exceptions to the rule, are marriages
involving polygamy or incest; those positively prohibited by the public law of
a country from motives of policy, and those celebrated in foreign countries by
subjects entitling themselves, under special circumstances, to the laws of
their own countries." And then he adds that, " as to the first
exception, Christianity is understood to prohibit polygamy and incest, and,
therefore, no Christian country would recognize polygamy or incestuous
marriages; but when we speak of incestuous marriages, care must be taken to
confine the doctrine to such cases as, by the general consent of all Christendom,
are deemed incestuous." With this latter portion of the doctrine of Mr.
Justice Story, Sir Cresswell Cresswell does not agree. But I believe that this
passage, when correctly interpreted, is strictly consonant to the law of
na-[228]-tions. Story, there, is not speaking of marriages prohibited as
incestuous by the municipal law of the country. If so prohibited, they would be
void under his second class of exceptional cases; no inquiry would be open as
to the general opinion of Christendom. But suppose the case of a Christian
country, in which there are no laws prohibiting marriages within any specified
degrees of consanguinity or affinity, or declaring or defining what is incest;
still, even there, incestuous marriages would be held void, as polygamy would
be held void, being forbidden by the Christian religion. But then, to ascertain
what marriages are, within that rule, incestuous, a rule not depending on
municipal laws, but extending generally to all Christian countries, recourse
must be had to what is deemed incestuous by the general consent of Christendom.
It could never be held that the subjects of such a country were guilty of
incest in contracting a marriage allowed and approved by a large portion of
Christendom, merely because, in the contemplation of other Christian countries,
it would be considered to be against God's laws. I have thought it right to
enter into this explanation, because it is important that a writer so highly
and justly respected as Mr. Justice Story should not be misunderstood, as, with
all deference, I think he has been in the passage under consideration.
Having thus expressed my opinion, I
do not feel that I should usefully occupy your Lordships' time by going again
over the cases which have been so carefully examined by my noble and learned
friend. I agree with him that the cases decided as to Gretna Green marriages,
do not assist the Appellants. Lord Hardwicke's Act, 26 Geo. 2, c. 33, directs
that marriages shall only be celebrated after publication of banns or by
license; if either party is under age, the llth section makes the marriage
[229] void unless there has been the requisite consent of parent or guardian.
That section evidently cannot be extended to marriages celebrated out of
England; the necessity for banns or license clearly shows that the operation of
the statute was to be confined to this country, and on that ground such
marriages as those I have alluded to have always been deemed valid.
It was on this same ground that the
Irish case, Steele v. Braddfll (Milw. Ecc. Rep. (Ir.) 1) was decided. Dr.
Radcliff held that the Irish statute prohibiting the
717 IX H.L.C., 230 BROOK
V. BROOK [1861]
marriage of a minor without certain consents, was, from the nature of
its provisions, and attending to all its enactments, to be deemed to be
confined to marriages celebrated in Ireland; not that the nature of the
provisions might not have been such as to show that its operation was intended
to be universal; indeed he expressly stated the contrary. It has therefore no
bearing on the present case, where the ground of the prohibition shows that it
must have been meant to be of the widest possible extent.
I also concur entirely with my noble
and learned friend that the American decision of Medway v. Needham cannot be
treated as proceeding on sound principles of lav,-. The state or province of
Massachusetts positively prohibited by its law, as contrary to public policy,
the marriage of a mulatto with a white woman; and on one of the grounds of
distinction pointed out by Mr. Justice Story, such a marriage certainly ought
to have been held void in Massachusetts, though celebrated in another province
where such marriages were lawful.
I shall not farther detain your Lordships.
I think that this marriage is one clearly prohibited by the statutes of Henry
VIII. wheresoever celebrated; and therefore that [230] the statute of 5 and 6
Will. 4, c. 54, makes it absolutely void. I therefore concur in thinking that
the appeal should be dismissed. Lord St. Leonards.-My Lords, the question
before the House is one of great importance, but not of much difficulty. The
learned counsel for the Appellants insisted that as marriage was but a civil
contract, it must, by international law, depend upon the law of the country
where it is contracted, and that the question of domicile was excluded; that
certain marriages in Scotland were allowed in England to be good,
notwithstanding Lord Hardwicke's Marriage Act; and that but for the Act of
Will. 4, this marriage could not be impeached. It was admitted that this country
would not recognise a contract in a foreign country, which was contrary to
religion or morality, or was criminal; but it was argued that the allowance of
marriages, such as that under consideration, by other States, showed that they
were not contrary to religion or morality, or criminal, and that the very Act
of Will. 4, virtually repealed any former law of this country impeaching the
validity of such marriages as contrary to the law of God; for if deemed to be
contrary to God's law, Parliament would not have given legal validity to those
which had been solemnised. And it was forcibly urged that no Act of Parliament
treats a marriage with a deceased wife's sister as incestuous.
I consider this as purely an English
question. It depends wholly upon our own laws, binding upon all the Queen's
subjects. The parties were domiciled subjects here, and the question of the
validity of the marriage will affect the right to real estate. Warrender v.
War-[231J]-render (2 Clark and Fin. 488), shows how the marriage contract may
be affected by domicile. We cannot reject the consideration of the domicile of
the parties in considering this question; I may at once relieve the case from
any difficulty arising out of Scotch marriages in fraud, as it is alleged, of
our Marriage Act. When those marriages are solemnised according to the law of
Scotland, they are no fraud upon the Act, for it expressly, amongst other exceptions,
provides that nothing contained in it shall extend to Scotland. Lord Hard-wicke
observed in Butler v. Freeman (Ambl. 301), that there was a door open in the
statute as to marriages beyond seas and in Scotland. I may observe that the
door was purposely left open, and such marriages have no bearing upon the question
before the House.
The grounds upon which, in my
opinion, this marriage in Denmark is void by our law, depend upon our Act of
Parliament, and upon the rule that we do not admit any foreign law to be of
force here, where it is opposed to God's law, according to our view of that
law.
The argument, as I have already
observed, for the Appellants, was, that no law in this country branded
marriages with a deceased wife's sister as incestuous. Let us see how this
stands. The 25 Hen. 8, c. 22, s. 3, states, " that many inconveniences
have fallen as well within this realm as in others, by reason of marrying
within degrees of marriage prohibited by God's law, that is to say," and
then several instances are stated, " or any man to marry his wife's
sister, which marriages alb lit, they be plainly prohibited and detested by the
laws of God," and it then alludes to
718 BROOK V. BROOK [1861]
' IX H.L.C., 232
the " dispensations by man's power [232] which is but
usurped," and declares that no man hath power to dispense with God's law.
It then by section 4 enacts, "
that no persons, subjects or resiants of this realm, or in any of the King's
dominions, should from thenceforth marry within the said degrees; and if any
person had been married within this realm, or in any of the King's dominions,
within any of the degrees above expressed, arid by any Archbishop, etc. of the
Church of England, should be separate from the bonds of such unlawful marriage,
every separation should be good, and the children under such unlawful marriage
should not be lawful nor legitimate, any foreign laws, etc. to the contrary
notwithstanding."
The statute of 28 Hen. 8, c. 7,
repealed the 25 Hen. 8, c. 22, but by section 7 again prohibited at large the
marriages prohibited by the 25th Hen. 8. The marriage of a man with his wife's
sister is included in the prohibition, and that and the other prohibited
marriages the Act states to be " plainly prohibited and detested by the
law of God." The statute 28 Hen. 8, c. 16, made good all past marriages
whereof there was no divorce, and which marriages were not prohibited by God's
laws, limited and declared in the Act made in this Parliament or otherwise by
Holy Scripture.
These Acts were followed by the 32
Hen. 8, c. 38, " For marriages to stand, notwithstanding
pre-contracts." It enacted that all marriages as within the Church of
England which should be contracted between lawful persons (as by this Act were
declared all persons to be lawful that were not prohibited by God's law to
marry), were not to be affected by pre-contracts, and that no reservation or
prohibition God's law except, should trouble or impeach any marriage without
the Levitical degrees, and [233] no process to the contrary was to be admitted
within any of the Spiritual Courts within this the King's realm, or any of his
Grace's other lands and dominions.
It appears from these Acts, that the
marriage in question is by the law of England declared to be against God's law,
and to be detested by God plainly, because, although there is only affinity
between the parties, it was deemed, like cases of consanguinity, incestuous. We
are not at liberty to consider whether the marriage is contrary to God's law,
and detested by God; for our law has already declared such to be the fact, and
we must obey the law. That law has been so clearly and satisfactorily explained
by the learned Judges in the case of the Queen v. Chad-wick, as to render it
unnecessary to observe farther upon it, or to trace the repeals and
re-enactments of the laws to which I have referred. As one of the learned
Judges observed, we need not tread the labyrinth of statutes to discover which
of the enactments in question has been repealed or revived, and which has not.
We may use the prior Acts simply as the best interpreters of the statute 32
Hen. 8, c. 38, which is clearly in force.
This brings us to the 5 and 6 Will.
4, c. 54, which was passed with a view to put an end to the uncertainty of the
marriage contract arising from the decisions in our courts, that where the
parties were within the prohibited degrees of affinity, the marriage was
voidable only. The act drew a distinction between affinity and consanguinity.
It enacted, that all past marriages between persons within the prohibited
decrees of affinity, should not be annulled for that cause by any sentence of
the Ecclesiastical Court; Provided that nothing in the Act should affect marriages
between persons being within the prohibited degrees of consanguinity. And the
Act then proceeds to enact, that all marriages which should thereafter be celebrated
[234] between persons within the prohibited degrees of consanguinity or
affinity shall be absolutely null and void to all intents and purposes
whatsoever. The recital stated the intention to make them ipso facto void, and
not voidable. Nothing can be plainer. The statute created no farther
prohibition; it treated the legal prohibition already in existence as well
known by the general description in the Act. The construction of the Act was
settled by the Queen v. Chadwick (11 Q.B. Rep. 173), the law of which case was
not disputed at the bar. By that decision the marriage now in question would
have been absolutely void had it been contracted in England.
This case, then, is reduced to the
simple question, Is the marriage valid in this country because it was
contracted in Denmark, where a marriage with a deceased
719 IX H.L.C., 236 BROOK
V. BROOK [1861]
wife's sister is valid? This depends upon two questions, either of
which, if adverse to the Appellants, would be fatal to the validity of the
marriage, namely, first, will our courts admit the validity of a marriage
abroad by an English subject domiciled here with his deceased wife's sister,
because the marriage is valid in the country where it was contracted? Secondly,
is such a marriage struck at by 5 and 6 Will. 4?
I think that the marriage has no
validity in. this country on the first ground, for by our law such a marriage
is forbidden, as contrary, in our view, to God's law. The objection that
Parliament gave validity to such marriages already had, in cases of affinity,
is no reason why, when we have in future carefully made all such marriages
absolutely void, we should admit their validity in favour of the law of a
foreign country. The learned Judge who assisted the learned Vice-Chancellor in
the Court below, came to [235] the conclusion, after an elaborate review of the
authorities, that a marriage contracted by the subjects of one country, in
which they are domiciled, in another country, is not to be held valid, if, by
contracting it, the laws of their own country are violate^. This proposition is
more extensive than the case before us requires us to act upon, but I do not
dissent from it.
I shall not, however, dwell upon
this point, because I think that upon the second point the marriage is clearly
invalid. The Appellant relies upon the silence of the Act in respect to
marriages abroad. Now the Act is general, and contains a large measure of
relief as well as a prohibition. It gives validity to all marriages celebrated
before the passing of the Act, by persons being within the prohibited degrees
of affinity. This is unlimited, and we could hardly hold that such of those
persons as had been married abroad were excluded from the benefit of the Act.
Why should the relief be confined, and not allowed as large a. range as the
words will admit? Clearly no intention appears to limit the operation of the
words. The next clause, which nullifies the contract, is equally unlimited. All
marriages thereafter celebrated between persons within the prohibited degrees
of consanguinity or affinity are declared to be null and void. We must give the
same interpretation to the words in this section as to those in the former
section. To whatever class the relief was extended, to the same class, in
addition to those within the prohibited degrees of consanguinity, the
prohibition must be applied. It is of course not denied that three or four
additional words would have put the question at rest. But why when the words
are " all marriages," without making any exception, are we to
introduce an exception in order to give validity to the very marriages which
the legislature in-[236]-tended to render null and void? The marriage now under
consideration shows how expedient it was that the law should prohibit it. It is
not like the exception in the Marriage Act of marriages in Scotland, which
enabled parties, without any real evasion of the law, to marry there without
the forms imposed by the Act. What was intended was expressed. Here, on the contrary,
the enactment is general and unqualified; and as it was intended to create a
personal inability, there is of course no exception. The answer to the argument
that the very case is not provided for in so many words, is, that, with the
Marriage Act before them, the framers of the new law would have introduced an
exception to meet this case, if such had been the intention. But when we advert
to the nature of the contract, and the state of our law in relation to such a
contract, which law was not altered by the new enactment, and bear in mind that
the contrary law in a foreign country ought to receive no sanction here,
opposed as it is to our law declaring such a contract to be contrary to God's
law, we cannot fail to perceive that this case falls directly within the
enactment that all such marriages shall be null and void.
Authority is not wanting in favour
of this construction. The Royal Marriage Act, as your Lordships are aware, has
been held in this House to extend to marriages abroad. And yet how much weaker
a case was that than the one now before us. In it there was no infraction of
God's law as declared by our law. The prohibition there rested only on
political grounds. There were difficulties to surmount in extending the Act to
marriages abroad, which do not occur in this case; the last clause, which makes
persons who assist in celebrating the forbidden marriages incur the pains and
penalties, makes the Act a highly penal one.
[237] The invalidity of the marriage
of the Duke of Sussex at Rome, without
720 BROOK V. BROOK [1861]
IX H.L.C., 238
the king's consent, was declared by this House (11 Clark and F. 85),
with the assistance of six law Lords and seven common law Judges. The unanimous
opinion of the Judges was delivered by Lord Chief Justice Tindal. He stated the
only rule of construction of Acts of Parliament to be, that they should be
construed according to the intent of the Parliament which passed them. If the
words of the statute are in themselves precise and unambiguous, then no more
can be necessary than to expound those words in their natural and ordinary
sense. The words themselves alone do in such case best declare the intention of
the lawgiver. The Act created a personal inability in the Duke to contract a
marriage without consent. The prohibitory words were general, that every
marriage or matrimonial contract of any such person shall be null and void. As
a marriage once duly contracted in any country will be a valid marriage all the
world over, the incapacity to contract a marriage in Rome is as clearly within
the prohibitory words of the statute as the incapacity to contract it in
England. So again as to the second or annulling branch of the enactment, "
that every marriage without such consent shall be null and void; " the
words employed are general, or more properly universal, and cannot be satisfied
in their plain literal ordinary meaning, unless they are held to extend to all
marriages in whatever part of the world they may have been aon-tracted or
celebrated. The learned Chief Justice then addressed himself to the 2d section
of the Act, and made an observation strongly applicable to my observations on
the operation of the 5 and 6 Will. 4, in rendering valid, as I submit, former
marriages wherever [238] celebrated. He said, as no doubt could be entertained
by any one but that a mairiage taking place with the due observance of the
requisites of the 2d section, would be held equally valid, whether contracted
and celebrated at Rome or in England, so the Judges thought it would be contrary
to all established rules of construction if the very same words in the 1st
section were to receive a different sense from those in the 2d ; if it should
be held that a marriage in Rome contracted with reference to the 2d section is
made valid, and at the same time a marriage at Rome is not prohibited under the
first; surely (the Chief Justice added), if a marriage of a descendant of Geo.
II. contracted or celebrated in Scotland or Ireland, or on the continent, is to
be held a marriage not prohibited by this Act, the statute itself may be
considered as virtually and substantially a dead letter from the first day it
was passed.
I think your Lordships will agree
with me that the opinions of the learned Judges in the royal marriage case
strictly apply to this case, and ought to rule it; I adopt every one of those
opinions without reserve. It is true that the Acts are not framed, as they
could not be, exactly alike; because the Royal Marriage Act did not intend to
establish an absolute prohibition, unless in the last resort. But where that
Act, and the Act of Will. 4 have the same object, viz., the annulling and
rendering void a marriage contracted contrary to their provisions, they are
identical, and cannot admit of two constructions.
I may observe that these were
difficulties in the Duke of Sussex's case, with which we have not to contend
here; but the Judges were of opinion, and this House held, that the clause
requiring the consent to be set out in the license and register of the marriage,
was directory only, and applied only to a marriage in England by license. The
[239] defect in the penal clause in not making provision for the trial of
British subjects when they violate the statute out of the realm, did not
operate to make the enactment itself substantially useless and inoperative.
Upon the whole, therefore, I am
clearly of opinion that this marriage was rendered void by the Act of Will. 4,
and I concur with my noble and learned friend on the woolsack, that the appeal
should be dismissed, and the decree of the Vice-Chancellor affirmed.
Lord Wensleydale.-My Lords, I agree
in the opinion expressed by my noble and learned friend on the woolsack, and my
other noble and learned friends who have followed him; and, after fully
considering the arguments and judgments in the Court below, as well as the
arguments addressed to your Lordships on the appeal, that you ought to affirm
the decree of the Court below.
The question to be decided is, as
the Lord Chancellor stated, whether a marriage celebrated on the 7th June 1850,
in the duchy of Holstein, between a widower and the sister of his deceased
wife, both being then British subjects domiciled in Eng-
721 IX H.L.C., 240 BROOK
V.- BROOK [1861]
land, and contemplating England as their future matrimonial residence,
is valid in England, such, a marriage being permitted by the law of Holstein.
The question what the consequences would have been if the parties had been
English subjects domiciled there, is not the subject of inquiry. The sole
question relates to British domiciled subjects.
Both the Judges in the Court below
form their judgment, first, on the ground of the illegality of such a marriage
in England, prohibited from very early times by the legislature, and finally by
Lord Lyndhurst's Act, 5 and 6 Will. 4, c, 54; secondly, on the ground that that
Act [240] itself is to be considered as a personal Act, in effect prohibiting
all British born subjects, in whatever part of the world they might happen to
be, from contracting such marriages, and declaring those marriages to be
absolutely void. It was likened by them to the Royal Marriage Act, the 12 Geo.
3, c. 11, which was clearly an Act affecting personally the descendants of King
George II., in the realm, or out of it. That appears from the language of the
Act itself, and the object it had in view.
It is unnecessary to enter into the
discussion of this part of the case, if the other ground is satisfactory, which
I think it is. But as at present advised, I dissent upon this point from my
noble and learned friend who has just addressed your Lordships. I think the
construction put upon this as a personal Act is wrong. I do not think the
purpose of the statute was to put an end to such marriages by British subjects
in any part of the world. Its object was only to make absolutely void
thereafter all marriages in this realm between persons within the prohibited
degrees of consanguinity or affinity which were previously voidable, that is,
which were really void according to our law, though they could be avoided only
by a suit in the Ecclesiastical Court, and that could be done only during the
life of both the married parties.
The question, then, appears to me.
to be reduced to this single point: Was this such a marriage as the
Ecclesiastical Court would have set aside if an application had been made to it
for that purpose during the lives of both the married parties previous to the
passing of the Act 5 and 6 Will. 4, c. 54? If it would have been voidable in
that case before that Act, it is now by its operation absolutely void. I think
it clear that it would have been set aside, and that the view taken particularly
by Sir Cresswell [241] Cresswell in the first part of his opinion upon this
part of the case is perfectly correct.
It is the established principle that
every marriage is to be universally recognised, which is valid according to the
law of the place where it was had, whatever that law may be. This is the
doctrine of Lord Stowell in the case of Herbert v. Herbert, (2 Hagg. Cons. Rep.
271). The same doctrine has been laid down in various authorities, as by Sir
Edward Simpson, in Scrimshire v. Scrimshire (id. 417), and by Story and others.
If valid where it was celebrated, it is valid everywhere, as to the
constitution of the marriage and as to its ceremonies; but as to the rights,
duties, and obligations thence arising, the law of the domicile of the parties
must be looked to. That is laid down by Story (Conn, of Laws, s. 110).
But this universally approved rule
is subject to a qualification. Huber, in his 1st Book, Tit. 3, Art. 8, says,
" Matrimoniumi si licitum, est eo loco ubi contractum et celebratum est,
ubique validum erit, efectumque habebit, sub eddem exceptione, prejudicii alias
non creandi; cui licet addere, si exempli nimis sit abominandi; ut si incestum
juris gentium in secundo gradu contingeret alicubi esse permissum; quod vix est
ut usu venire possit."
A similar qualification is
introduced by Story (id. ss. 113 a, 114). He states, that the most prominent,
if not the only, known exceptions to the rule, are, first, those marriages
involving polygamy and incest; second, those positively prohibited by the
public law of a country from motives of policy, and a third having no bearing
upon the question before us. And as to the first exception, he adds, that
" Christianity is understood to prohibit polygamy and incest, but this
doctrine must be confined to such cases as by [242] general consent of all
Christendom are deemed incestuous."
It would seem enough to say, that
the present case falls within the two exceptions, for it is no doubt prohibited
by the public law of this country. And it is by no means improbable, that
Story's meaning was to apply his first exception only to
722 BROOK V. BROOK [1861]
IX H.L.C., 21/2
those cases to which the second could not apply, as suggested by my
noble and learned friend; to those cases, namely, in which there was no
particular law in the country of the domicile of the parties to such marriages.
And in that sense the position of Story is unobjectionable. His meaning would
have been more clearly expressed, if the second exception had been put the
first, and the first made to apply where no such particular law existed.
It strikes me that this view of the
case is correct. And, therefore, it is in reality quite unnecessary to discuss
the question whether, where a marriage is objected to, not on the ground of its
being against the positive prohibition of a country, but on the ground of
incest, where there is no such prohibition, the incest must be of such a
character as is described in the first exception.
If that question is to be
considered, I perfectly agree with the convincing reasoning of Sir Cresswell
Cresswell on this point of the case. What have we to do with the general
consent of Christendom, on the subject of incest, in a question which relates
to our own country alone? Amongst Christian nations different doctrines
prevail, and surely the true question would be, not, what is the doctrine of
Christianity generally, in which all agree, nor what is the prevailing doctrine
of Christian nations, but what is the doctrine, on this subject, of that branch
of Christianity which this country professes. If it is condemned by us as
forbidden by the law of God in Holy [243] Scripture, it is no matter what
opinions other Christian nations entertain on this question. This reasoning
appears so very clear, that I must think that so able a man as Mr. Justice
Story could never have meant to lay down the proposition that where any country
prohibited a marriage on account of incest, it must be of such quality of
incest as to be of that character
in universal Christendom. If he really did mean to state such a proposition, I
must say I think it cannot be supported.
I proceed, therefore, though I think
it unnecessary, to show that this sort of marriage is forbidden in this country
on the ground of its being against the law of God deduced from Holy Scripture.
We have a distinct and clear opinion on this subject in a well-considered
judgment of the Court of Queen's Bench in the case of The Queen v. Chadwick (11
Q.B. Eep. 173, 205), which was argued for several days; and in which Lord
Denman, Mr. Justice Coleridge, and Mr. Justice Wightman delivered very full and
satisfactory judgments. It was held, that marriages within the prohibited
degrees mentioned in the statute 5 and 6 Will. 4, c. 54, were those within the
Levitical degrees, which, having been before voidable by suit in the
Ecclesiastical Court, were by that statute absolutely avoided. The marriage of
a widower with his wife's sister was considered as clearly falling within this
class. The legislative declarations in Henry VIII.'s reign were considered as
statutory expositions of what was intended by the term " Levitical
degrees," whether those statutes in which they occur are repealed or not.
If we are to inquire into the latter
question, whether they are repealed or not, it will require some research.
[244] The whole question, is ably and distinctly stated in a note appended by
the learned editor to the case of Sherwood v. Ray (1 Moo. P.C. Rep. 353, 355 a.)
The state of the law appears to be
this:-the two statutes in which the term " Levitical degrees " is
explained are the 25 Hen. 8, c. 22, where they are enumerated, and include a
wife's sister, and the 28 Hen. 8, c. 7, in the ninth section of which are
described, by way of recital, the degrees prohibited by God's law in similar
terms, with the addition of carnal knowledge by the husband in some cases; and
with respect to them, the prohibition of former statutes was re-enacted.
The whole of this Act, 25 Hen. 8, c.
22, was repealed by a statute of Queen Mary; and so was part of 28 Hen. 8, c.
7, but not the part as to the prohibited degrees. That part was repealed by 1
and 2 Philip and Mary, c. 8. But by the 1 Eliz., c. 1, s. 2, that Act itself
was repealed, except as therein mentioned, and several Acts were revived, not
including the 28 Hen. 8, c. 7; no doubt because it avoided the marriage with
Ann Boleyn. But by the 10th section of the 28 Hen. 8, c. 16 (which in the
second section referred to marriages prohibited by God's laws as limited and
declared in the 28 Hen. 8, c. 7, or otherwise by Holy Scripture), all and every
" branches, words and sentences, in those several Acts contained, are
revived and are enacted to be in full force and strength to all intents and
purposes." The
723 IXH.L.C., 245 STOCKTON AND
DARLINGTON RY. CO. V. BROWN [1860]
question is, whether that part of 28 Hen. 8, c. 7, which relates to
prohibited degrees and describes them, is thus revived? I think it is. But
whether it is or not, the statements in the statutes are to be looked at [245]
as a statutory exposition of the meaning of the term, " Levitical
degrees." And that is the clear opinion of Lord Denman and Mr. Justice
Coleridge in the case to which I refer.
The statute law of the country,
which is binding on all its subjects, therefore, must be considered as
pronouncing that this marriage is a violation of the Divine law, and therefore
that it is void within the first exception made by Mr. Justice Story, and
within the principle of the exception laid down by Huber. If our laws are
binding, or oblige us, as I think they do, to treat this marriage as a
violation of the commands of God in Holy Scripture, we must consider it in a
court of justice, as prejudicial to our social interest and of hateful example.
But if not, it most clearly falls within the second exception stated by Story,
which alone, I think, need be considered, as it is clearly illegal by the law
of this country, whether it be considered incestuous or not, and a violation of
that law.
I do not, therefore, in the least
doubt that before the 5 and 6 W. 4, it would have been pronounced void by the
Ecclesiastical Court on a suit instituted during the life of both parties. And
therefore I advise your Lordships that the judgment should be affirmed.
Order appealed against affirmed, and
appeal dismissed with costs.-Lords' Journals. 18 March 1861.