land in 1818. In 1819 his parents intermarried in Scotland. In 1855 D died intestate, seised in fee simple of land in England and without ever having been married. Kindersley V.C. held that 'issue' in sec. 3 of 3 & 4 Will. IV. c. 106 was intended to be used in the sense of issue capable of inheriting by the law of this country, and that therefore D's father, who survived him, was not capable of being heir to D, D not having been born in marriage. as The remaining English decision requires closer attention. W. L. B., by his will, dated in September, 1855, gave and bequeathed Meltham Hall and its appurtenances, not to include his mill property of any description, to his eldest son J. W. B. The residue of his property he gave and bequeathed to the said J. W. B., to his daughter C. J. B., to his reputed son C. A. B., to his reputed daughter C. A. B., and to his reputed daughter S. H. B., tenants in common. The testator died in the same month. A bill for administration was filed in 1856, the plaintiffs being the abovenamed younger children, and the defendants the trustees and the eldest son. Before the case was set down to be heard, C. A. B., the younger son, died a minor. A bill of revivor and supplement was thereupon filed by the three surviving plaintiffs in the original suit against the defendants in the original suit and the AttorneyGeneral, averring that the Attorney-General, on the alleged ground that the late plaintiff, C. A. B., was the issue of the second marriage of the testator, and that such marriage, being with the sister of the first wife of the testator, then deceased, was invalid, claimed on behalf of the Crown the real and personal estate of the late plaintiff, C. A. B. The chief clerk's certificate, in answer to enquiries directed at the hearing, found in effect, that the testator was married in 1850 to the sister of his deceased wife, that both parties were then domiciled in England, that the marriage took place in Holstein, where it was a good marriage and where the children of such a marriage were legitimate, and that the issue of this marriage were C. A. B., the deceased plaintiff, and C. A. B. and S. H. B., the reputed daughters. The question whether this marriage was valid by the law of England was argued upon further consideration. The answer to the question affected the right to the property of the deceased C. A. B., both real and personal; the right of administration to his personal estate; and the amount of legacy duty payable by the two daughters. Doe v. Vardill was not cited by the Crown counsel, but was relied upon by the other side. Cresswell J., who sat as assessor to Stuart V.C., was of opinion that the marriage was invalid because the Act 5 & 6 Will. IV. c. 54 was of universal obligation upon all British subjects domiciled in England, Ireland, or Wales, and the lex loci contractus could not prevail against this. The Vice-Chancellor adopted this opinion, and declared that the marriage was not a valid marriage, and that all the real and personal estate of C. A. B. had become vested in the Crown. It does not appear that it occurred to any one to suggest that, so far at any rate as concerned the real estate, the question was to be determined solely by the lex situs1. 4 The plaintiffs appealed to the Lords. Sir R. Bethell, A.-G., and Wickens for the Crown did now say, This is a purely English question, and arises in determining the right of succession to real and personal estate, the form and validity of the contract of marriage deciding the title by heirship. Birtwhistle v. Vardill2 is, therefore, expressly applicable to this case. Then they continued the general argument, citing, towards the end, Fenton v. Livingstone. Three of the Lords who decided Fenton v. Livingstones sat on this appeal also, but Lord St. Leonards alone, and he took no part in Fenton v. Livingstone 3, takes any notice of this special argument, saying, 'the question of the validity of the marriage will affect the right to real estate.' But his speech, as those of the others, is taken up with reasoning that the marriage was avoided by the statute and that the statute applied to British domiciled subjects even on their travels 5. It may be objected, the marriage was accounted bad any way, and it was not necessary to go into the question about the real estate. But it must be remembered that this case itself is the first decision, as far as it goes, that the capacity to marry was to be regulated by the law of the domicil. It is remarkable that the Attorney-General, the Solicitor-General, and Wickens arguing the case in the Vice-Chancellor's Court, are unable to cite one solitary English decision. They rely upon the opinions of foreign jurists and upon Warrender v. Warrender. In the Lords-putting aside Doe v. Vardill, and some cases which they said showed that marriages within the prohibited degrees were void by the common law-they are no better off, citing Simonin v. Mallac, which had been decided in the meantime, only to distinguish it. This being so, it is extraordinary that the immoveable lawful wedlock argument should not have received more attention at the bar, in the opinion and judgment below, and in the Lords, if anyone had thought that there was really anything in it. Turning to the Scotch case. 9 Fenton v. Livingstone was decided. Campbell, Cranworth, and Wensleydale. The judgment in the Lords was in 1860. cided in 1859, but was not cited or referred to. 2 Cl. & F. 488. 29 L. J. P. 97. 8 in 1859. The claimant asserted himself entitled to Scottish lands as 'heir lawfully procreate' under a Scottish entail. He was the child of a Scotsman and his deceased wife's sister, who, prior to the passing of 3 & 4 Will. IV. c. 54, had been married in England, where they were then domiciled. Both parents were dead, and the marriage had not been questioned in their lifetime. The Court of Session decided in favour of the claimant. On appeal, Lord Cranworth was content to say that the marriage was void in England, and that, even putting that aside, the law of Scotland prohibited it, and that prohibition attached to Scottish subjects wherever they went. Lord Wensleydale said the claimant must prove himself 'heir lawfully procreate.' When the claimant was not a native of the country in which the land was, then if legitimate by the law of his domicil, he would be legitimate by the local law. But if a marriage contravened a positive enactment, or was contrary to Scottish notions of religion or morality, it would be impossible to contend that it ought to be adopted in Scotland, and that the issue should be deemed legitimate for the purpose of succession to real estate. The marriage was void in England, and he assumed it to be a heinous crime in Scotland. Lord Brougham, since he objected to Doe v. Fardill, laid down, as he was wont to do in relation to Lolley's case 1, that it decided much more than it did decide, or than it has since been said by English Judges in an English Court to have decided 2, and so said very broadly that the lex loci rei sitae must prevail. But he also concluded that the marriage was an offence by the law of Scotland, and void in England. Lord Chelmsford spoke to much the same effect. The Court of Session had found only that the claimant was legitimate, and the case was remitted that that Court might find whether the marriage was good by the law of Scotland or no. Since this marriage was void in the country of the place of celebration and of the domicil of both the parties, and since both the lex loci rei sitae and the lex fori stood in the way of the adoption of the rule of English law which, in the events which had happened, would have barred an enquiry into its validity in England3, it was not necessary for Lords Brougham and Chelmsford to talk as they did at all; and further, they misapprehended Doe v. Vardill. Lord Cranworth's speech is rather in my favour, because he does not even notice this all prevailing lex situs. If Lord Wensleydale where he says 'for the purpose of succession to real estate' had said 'personal' estate, or for any 1 Russ. & Ry. 237. See Harvey v. Farnie, 8 App. Ca. 43. 2 Re Goodman's Trusts, ubi supra. 3 Beckford v. Wade, 17 Ves. 87; Don v. Lipmann, 5 Cl. & F. 1. purpose, it would not be easy, seeing that he was assuming this marriage to be a capital crime in Scotland, to show that he was saying ought wherein he differed greatly from the law of England1. But even if the case decides for Scotland all that it has been said to have decided, yet I claim that according to authorities having the force of law in this country a different view of the proper interpretation, extent, or application of the principle that the law of the locality governs the land prevails in this respect in England, and that, therefore, the opinions expressed by some of the Lords when giving judgment on the Scottish appeal cannot be held conclusive in this country 2. Lastly, the speeches proceed to a very considerable extent on the opinions of Huberus and others; from such authorities as these I appeal to Savigny 3. Is there anything in the general rules as to immoveables to compel that the validity of a marriage should ever be tried by the lex situs? Assuredly not. The law of the locality must rule the forms and solemnities of a transfer of immoveable property, the rights of alienating and limiting it, and, in the absence of any trust or contractual obligation, all questions as to its burdens and liabilities. By what other law should these things be governed? There is really no conflict at all. But when it is said that the lex situs is te prevail, not to determine what is the effect of a status on land, but to determine whether the status exists or no, then I answer that the rule of obvious convenience which is well established as to such things as those above indicated lends no countenance to such a statement as this, and that the rules as to contract, the nearest analogy, though it is a false one, to marriage, point not indistinctly the other way. There is this final consideration. Any natural-born subject of the Queen, or any person whose right to be deemed a naturalborn subject depends wholly or in part on his legitimacy or on the validity of a marriage. . . . claiming any real or personal estate situate in England, may apply by petition to the Divorce Division of the High Court, praying that Court for a decree declaring that the marriage of his father and mother, or of his grandfather and grandmother, was a valid marriage. The Court can then make such decree declaratory of the validity or invalidity of such 1 Hyde v. Hyde, L. R. 1 P. & D. 130; Re Bethell, 38 Ch. D. 220; Sottomayor v. De Barros, 3 P. D. 1; S. C. 5 P. D. 94; Brook v. Brook, ubi supra, per Lord St. Leonards; Roth v. Roth (104 Ill. 35), 44 Amer. Rep. 81; Reynolds v. U. S. 98, U. S. 145. 2 See Ewing v. Orr Ewing, 10 App. Ca. 453, 499. 3 Guthrie's Translation, ed. 1880, pp. 137, 151. To go seriatim through the cases here would be to write a moderate sized book. See Westlake, c. viii; Selected Cases, 135-152. 5 Campbell v. Dent, 2 Mo. P. C. 292; Cood v. Cood, 33 L. J. Ch. 273; Norton v. Florence Land Co., 7 Ch. D. 332. marriage as to the Court may seem just. No proceeding in this way will affect any final judgment or decree already pronounced or made by any Court of competent jurisdiction1; but otherwise any such decree, unless subsequently proved to have been obtained by fraud or collusion, will be binding to all intents and purposes on Her Majesty, on every person cited or made a party to the proceedings 2, and on the heir at law or next of kin, or other real or personal representative of, and on any person deriving title under or through a person so cited or made a party 3. A the petitioner claiming real and personal estate in England proves that the marriage of his father and mother was well constituted secundum legem loci contractus, and that there was no personal incapacity attaching upon either party by the law of their respective domicils. It is replied that the marriage would not have been valid if celebrated here and between persons domiciled in this country. Is the Court to declare that this marriage is both valid and invalid? If the Court decrees the marriage valid, then if A has taken care that the proper persons have been cited, who is to deny his claim to the real property * ? HORACE NELSON. 1 Shedden v. Att.-Gen. 30 L. J. P. 217. 2 Brinkley v. Att.-Gen. 14 P. D. 83. Legitimacy Declaration Act, 1858 (21 & 22 Vict. c. 93). |