Graham's Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1837 |
| Date | 01 January 1837 |
| Court | Crown Court |
English Reports Citation: 168 E.R. 1091
Crown Cases
Considered, R. v. Fanning, 1866, 10 Cox C. C. 411.
BIGAMY. Carlisle Sp. Assizes, 1837. graham's case. (What is necessary to constitute a valid marriage in Scotland.) [Considered, R. v. Fanning, 1866, 10 Cox C. C. 411.] The prisoner was indicted for having married a second wife at Gretna Ureen, in Soot-[S8]-land *2; his first wife, whom he had married at Carlisle, being still alive. *L Lord Henley, in note (d), p. 383, of his Practical Treatise on the Bankrupt Law, says, Ci There k an inaccuracy in this clause of the new Act (6 Geo. IV. c. 16), whici should be remedied on a future revision of the law , it has omitted the words, ' in case of any default or wilful omission.' " This remark seems rather to imply that the roll is defective than that there is a variance between it and the printed copy. | In this case the prisoner was tried at the Old Bailey Sessions, 1831, before Littledaler J., for stealing a letter, which, under 52 Geo. III. c 143, was a capital offence. Three were, also, two counts in the indictment for larceny, in stealing bank notes. The prisoner was acquitted of the capital charge, but found guilty of larceny in stealing one of the notes. The prisoner's counsel objected, that the counts for stealing the bank notes were bad in point of law, inasmuch as they did not conclude, " against the form of the statute," which he contended they ought to have done, as the offence of stealing a bank note was not an offence at common law, but was created by Act of Parliament. Littledale, J , reserved the point for the opinion of the Judges ; who, in Trinity Term, 1831, met (except Garrow, B , and Patteson, J ), and held, that the omission was not cured by* 7 Geo. IV. c. 64, and that the judgment ought to be arrested Note.-This decision does not touch the question, whether, if it appear upon the iace of the indictment aliundet that the party is charged with doing the act " in violation of the statutes of the realm," the old technical (qu. magical ?) form of concluding " against the form of the statute," is necessary. It only decides, notwithstanding the 7 Geo. IV. c. 64, that, where an indictment charges a statutable offence, it ouglfeso to appear upon the face of it. ** Dalryrvple v. Dalrymple, 2 Haggard's Con. Eep. 54, is a leading case on the Scotek law of marriage. In th* elaborate judgment of Sir Wdliam Scott (created Lord Stowell, 17th July, 1821), the opinions of tie highest authorities are collected; and, after a full review of them, the decision of that eminent person is arrived at The judgment was afterwards appealed from to the Court of Delegates, but was affirmed, January 19, 1814. As the law of Scotland with regard to marriage contracts is of frequent im- 1092 graham's case 2 lewik 99. [9Q] The first marriage was proved, and that the woman whom he had married was still living. [100] Thomas Little was then called, who deposed as follows -" I live at Spring Field, near Gretna [101] Hall, and am an innkeeper I am in the habit of perform- jiortance in the administration of the criminal law of England, the following digest of the judgment in Dalrymple v Dairymple, is inserted .- " Marriage being a contract is consensual, for it is of the essence of all contracts to be constituted by the consent of parties "' ' Consensus non concubitus facit matrtmomutn ' The maxim of the Roman law is the maxim of all law upon the subject " A marriage must be an agreement of the parties looking to the consortium vitce, and capable of the concutntu*. The incapacity of either party to satisfy that duty nullifies the contract. " Marnage in its origin is a contract of natural law. " In civil society it becomes a civil contract, regulated and prescribed by law and endowed with civil consequences " The law of the church, although it reverenced marriage as a sacrament, still so far respected its natural and civil origin as to consider, that, where the natural and civil contract was formed, it had the full essence of matrimony without the intervention of the priest " It is a matter of misapprehension to suppose that this intervention was required as a matter of necessity for that purpose before the council of Trent; on the contrary, it appears, from the history of that council and from many other authorities, that, till the Council of Trent passed its decree for the reformation of marriage, the consent of two parties...
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