Scrimshire v Scrimshire
| Jurisdiction | England & Wales |
| Judgment Date | 29 July 1752 |
| Date | 29 July 1752 |
| Court | Consistory Court |
English Reports Citation: 161 E.R. 782
IN THE CONSISTORY COURT
Referred to, Sottomayor v. De Barrors, 1879, L. R. 5 P. D. 100; Ogden v. Ogden, [1908] P. 63.
[395] cases on foreign marriage referred to in the V; ò£"£ò&?." preceding judgment. .if.-^s"' scrimshire v. scrimshire.* Consist. 29th July, 1752.-Validity of marriage of British subjects contracted abroad, how far considered, by the law of England, to depend upon the law of the country where it is celebrated. Marriage held to be null and void in this case. [Referred to, Sottomayor v. De Barros, 1879, I.. E. 5 P. D. 100; Ogden v. Ogden, [1908] P. 63.] This was a suit for restitution of conjugal rights, in which the validity of the marriage was denied, as being a foreign marriage, not celebrated according to the laws of the country in which it was contracted. The question appears to have been then brought, for the first time, to judicial determination in the Ecclesiastical Court; and the effect of that decision, in legal authority, has been the subject of much discussion in, subsequent cases. It is introduced here, with the two following sentences on the same subject, as elucidating the references to former authorities, on this important subject, in the preceding case. Judgment-Sir Edward Simpson. This is a case, primae impressionis, and of great importance, not only to the parties, but to the public in general. The suit is brought bj Miaa Jones, t for restitution of conjugal rights. She pleads a marriage in France, * This case is printed from a MS. note of Sir Edward Simpson, communicated by Dr. Swabey. f This lady was the daughter of Theophilus Jones, Esquire, Accountant-General of the Bank of England. 2 HAG. OOK, 398 SCRIMSHIRE V. SCRIMSHIRE 783 clandestine and forbidden by the laws of both countries, with this difference that, by the laws of France, such marriages are, in all cases, absolutely null, whereas, by the laws of England, they are only [396] irregular, but not null unless under special circumstances that warrant the Court to put that construction upon them An allegation has been given in on the part of Mr. Scrimshire, which pleads that he was drawn in by surprise and terror to marry; that the marriage was celebrated in France ; that by the laws of France the marriage of minors under twenty-five, unless with the consent of parents, is null and void ; and that marriage can only be legally celebrated in that country by the proper priest, licensed to marry and exercise his functions within the jurisdiction where the parties live: that he was a minor, about eighteen ; that Miss Jones was about fifteen : that the marriage was solemnized in a private house, by a priest not authorized, and without the consent of parents ò that, under these circumstances, the marriage was null by the laws of France A sentence of the Parliament of Paris, declaring the marriage null, is also pleaded, not as a bar to entering into the question in this Court, whether the marriage be good or not, but as evidence of the law of France, which may be material for the consideration of this Court in determining whether this be a good mairiageby the law of England or not Before I enter into the merits of the case I shall take notice of some preliminary objections that have been made by the counsel TTpon the return of the citation vns et mcdis, on the 23d of June, 1749, Mr. Bogg appeared for Mr. Scrimshire. On the 26th October, 1749, a libel was given in by Miss Jones, and admitted. On the same day, Mr Bogg exhibited a special proxy, and contested suit negatively, And it has been insisted [3973 that by such absolute appearance, without protest, he had submitted entirely to the jurisdiction of this Court; and that the matter should be determined by the laws of this country, without any regard to the laws of France; and that he had waived all right to any benefit that might be derived from the sentence, which has been passed on this marriage in France. It is further insisted that, after an absolute appearance, he had alleged the sentence in France to be a bar to any further proceedings ; and that the Court having overruled that plea, the sentence of the Parliament of Paris and the French laws were entirely out of the case; and that the question before the Couit, whether this is a good marriage or not, ought to rest solely on the English law, with respect to clandestine marriage, without any regard to the French law on that subject. This is the inference made by counsel. But, I apprehend, these consequences, as drawn by them, will not follow from Mr. Bogg's absolute appearance, nor from the Court's rejecting the plea offered by him as a plea in bar. Thia is a cause for the restitution of conjugal rights. Mr. Bogg appears to the citation, &c. and denies the marriage. This surely is not a waiver of his client's right under the French law, but rather an assertion of it. The process is for restitution of rights; and the marriage being denied, a question arises incidentally, whether it is a marriage or not-to determine whether the party is entitled to restitution or not, undter the marriage which has been pleaded. Mr. Bogg pleads a sentence at Paris, in bar to entering [398] further into the question of a marriage or not. This surely is far from waiving any right under the sentence, for he insists upon the force and effect of the sentence. The Court was of opinion then, and still is, that a foreign sentence alone could not, of itself, be a bar to entering into a consideration of the question, whether this marriage between English subjects was good or not by the law of England? The Court thought, however, that such sentence was proper to be pleaded, as a circumstance, or a fact, to naake evidence of the law of France, with respect to the question here, on the validity of a marriage celebrated in France. Accordingly the sentence was pleaded, and admitted in that light; and in that light it seems to be very properly before the Court; as I think the laws of France are very material to be considered, in determining, even by our law, on the validity of a contract of marriage had and made in France. So that the Court, by rejecting the sentence when pleaded in bar, has not determined that the sentence in France, when pleaded as a circumstance, is of no avail. Neither has Mr Bogg waived all benefit of the sentence, by appearing absolutely, and pleading the sentence as a circumstance, which is evidence of the law of the place where the marriage was had, and will, in my opinion, be material in considering the points on which the case depends. The general questions are two 1st, whether there be full and legal proof that the parties did mutually, freely, and voluntarily celebrate marriage, in such a manner as 784 SCRIMSHIRE V. SCRIMSHIRE 2 HAG. CON, 399. the laws of this country would deem to constitute marriage, if there was [JS9] nothing else in the case but a question on the fact of the marriage 2dly, whether, if the fact of the marriage should be proved, this marriage can, by the laws of this country, be effectuated, and pronounced to be good, being solemnized in France, where by law it is null and void, to all intents and purposes 1 For it seemed to be admitted in the argument that the law was so ; but insisted that it ought not to be a rule of determination in this cause. As to the fact of marriage, it is to be observed that it is a marriage between minors ^that it is a clandestine marriage in a private house-not by the regular priest; that it is unfavourable and discountenanced by the laws of both countries . and if there had not been a special act of grace, none of the persons present at the marriage conld have been, in this case, legal witnesses to prove it; since it is the constant practice in Ecclesiastical Courts to repel the testimony of persons present at clandestine marriages, till they have been absolved. Persons present at such marriages are excommunicate ipeo facto : and in our Courts it is not thought necessary to have a declaratory sentence of an excommunication ipso facto, for the Court can ex officio take notice of it The practice on this point has been confirmed by constant use, under the received maxim that lex eurrit cum praxi; and it has been so determined lately by Dr. Andrew in the case of Collis. It is to be observed that this marriage was performed by a Romish priest, according to the Roman ritual. The Romish Church acknowledges several orders; though bi$hops, priests, and deacons, corresponding to those orders in the Church [400] at Rme, are only allowed by us; and in the form of making and consecrating bishops, 3 & 4 Edw. 6, c. 12. 5 & 6 Edw 6, c. 1, s. 5. 13 & 14 Car. 2, c. 4, it is declared that no man " is to be accounted or taken to be a lawful bishop, priest, or deacon, or suffered to execute any function, except he be admitted thereto, according to the form following, or hath had formerly episcopal ordination and consecration." Bishop Gibson observes that this last clause was designed to allow Romish converted priests, who had been before ordained by a bishop, that such priests might be received without reordination; namely, that they might be received to exercise the functions of a priest, and to do the duties of the English clergy-but not to allow them to celebrate marriage according to the Roman ritual; for by the law of this cointry, it is, I apprehend, prohibited under severe penalties, for a Roman Catholic priest to be in this country, and to exercise any part of his office as a Popish priest in this kingdom *x But as a priest Popishly ordained ia allowed to be a legal presbyter, it is generally said that a marriage by a Popish priest is good; and it is true, where it is celebrated after the English ritual, for he is...
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