William Richard Swift, - Appellant; Elizabeth Catherine Kelly, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 01 July 1835 |
| Date | 01 July 1835 |
| Court | Privy Council |
English Reports Citation: 12 E.R. 648
ON APPEAL FROM THE ARCHES COURT OF CANTEBURY.
Ill KNAPP, 257 SWIFT V. KELLY [1835] [257] ON APPEAL FROM THE ARCHES COURT OF CANTERBURY. WILLIAM RICHARD SWIFT!,-Appellant; ELIZABETH CATHERINE KELLY,- Respondent * [May 23, June 18, 20, 26, 27, July 1, 1835]. A marriage having been clandestinely celebrated between two English persons resident at Rome, both previously Protestants, and one a minor; who in conformity with the Roman law had abjured the Protestant faith and been admitted into the Roman Catholic Church, one of them making such abjuration two days previous, and the other immediately before the ceremony, was repudiated by the lady in a suit for restitution of conjugal rights, on the ground that the priest was not properly qualified to perform the ceremony, and that she had never become or intended to become a Roman Catholic, her abjuration being made without her knowledge or consent. Held by the Judicial Committee reversing the judgment of the Court below, that it appearing by the evidence that the marriage ceremony and act of abjuration were duly performed according to the Roman law, the marriage was a valid and subsisting contract; and restitution of conjugal rights decreed. This was originally a cause of restitution of conjugal rights promoted by the appellant against the respondent, who denied the fact of the marriage, and pleaded that if any marriage did take place in point of form, it was invalid and null by the law of Rome, where the parties were then sojourning, and [258] where the ceremony was performed. The cause therefore assumed the form of a suit to try the validity of the marriage, which had been contracted between the parties under the following circumstances. In January, 1830, the appellant, Mr. Swift, with his mother, the Countess de Morlandi, and his sister and her husband, the Chevalier de Sodre, were at Florence. The respondent, Miss Elizabeth Kelly, and her mother, Mrs. Kelly, were also there at the same time; the families became intimate; and a mutual attachment was formed between Mr. Swift and Miss Kelly, which was concealed from Mrs. Kelly. Both parties were of respectable families in Ireland, and Protestants; Mr. Swift was about 23 years of age, Miss Kelly about 19, and she was entitled to a considerable fortune. About the 25th February, 1830, Mrs. and Miss Kelly left Florence for Rome. They were overtaken on the road by Mr. Swift, and his mother and her family, and all arrived at Rome together about the 2nd of March, and hired apartments at the Hotel della Gran Bretagna. On the 8th March, Mr. Swift, with the consent of Miss Kelly, wrote a letter to Mrs. Kelly, making proposals of marriage for her daughter. On the 9th, Mrs. Kelly wrote an answer, declining his proposals, on the ground that her daughter's fortune was inadequate to support a family, and for other reasons, but expressed her sense of his gentlemanlike conduct, and her hope that they might continue friends, and meet as formerly. Mr. Swift on the following day, March 10th, wrote again to Mrs. Kelly, urging her to consent to his suit, and answering her objections. Mrs. Kelly, however, on the llth March, wrote to him in reply to his second letter, finally rejecting his proposals. [259] Various letters, written both at Florence and Rome, passed between the parties, evincing,on Miss Kelly's part,her affection for and confidence in Mr. Swift,and proving that they were in the habit of meeting and conversing together clandestinely. None of these letters were dated; but in one alleged by Mr. Swift to have been written by Miss Kelly, at Florence, in reply to his proposal of a secret marriage, she told him, that if, after he was acquainted with certain circumstances she then communicated, he was disposed to repeat his questions, she would answer them in any way he wished. Subsequently, but it did not appear when, Miss Kelly wrote and sent * Present.-The Lord President (The Marquis of Lansdowne), Lord Brougham, The Vice-Chancellor [Sir Lancelot Shadwell], Mr. Baron Parke, and the Chief Judge of the Court of Bankruptcy [The Hon. Thomas Erskine]. 648 SWIFT V. KELLY [1835] III KNAPP, 260 a note to Mr. Swift, in the following terms :-" Si la ma.no, lo ti prometto. Sunday morning, 4J o'clock." About the middle of March, Mr. Swift, with a view to a secret marriage, applied to Signer Pif eri, a Tuscan priest, and teacher of the English language, at Rome, and by him was introduced to Signor Mazio, a Roman, proprietor, to whom Mr. Swift stated the mutual passion between himself and Miss Kelly, that they wished to be united in marriage together, and had between themselves resolved first to make abjuration of the errors of their Protestant religion, and to enter the bosom of the Holy Roman Catholic and Apostolic Church, and then to contract a marriage between them according to the rites of that Church. He therefore requested Signor Mazio's assistance to effect the business. About the 17th March, Signor Mazio introduced Mr. Swift first to the Cardinal Vicar of Rome, who questioned him as to his sincerity; and subsequently to the Reverend Father the Commissioner of the Holy Office, to which tribunal it appertained to receive the abjuration of the parties. A petition was [260] afterwards presented in the joint names of Mr. Swift and Miss Kelly, to the Cardinal Vicar, and thereupon, on the 23d or 24th March, 1830, the " Cardinal Zurla, Vicar General of his Holiness the Pope, granted authority to the Reverend Father LudovicO' Lepri, as a special delegate from the Holy Roman and Universal Inquisition, for the purpose of receiving the abjuration of the errors of the Anglican sect hitherto held and professed by William Richard Swift, son of, etc., and Elizabeth Kelly, daughter of, etc.; as well as for receiving the supplemental oath of the parties, in proof of their having been baptized, and their being in a free state, to the end that, (upon consideration of the peculiar and serious circumstances which were repre.- sented to him, a general dispensation being first granted of the publication of the banns after previous abjuration, and formal profession on their part of the Roman Catholic faith, upon their solemn oath,) he might assist and officiate in the evening of any day, in any week, and in the presence of witnesses, on, the celebration of the marriage which they much wished to contract together ; and with due observance of all the formalities which are prescribed by the Holy Council of Trent; of all which an authentic certificate should afterwards be issued and delivered, to be presented and registered in the Secretary's Office of the Tribunal of Marriage of the Vicariat of the Holy Metropolis." On 25th March the Commissioner of the Holy Office reported to the Cardinal Vicar, that, " At the audience of yesterday the sentiments of his Eminence the Signor Cardinal Vicar, respecting the prudential motives which rendered expedient the permission of the marriage in question, of the two Irish- individuals, [261] being reported to his Holiness1, his Holiness was not opposed to it, but he, however, showed himself immoveably desirous that the abjuration should precede; and for the rest left the affair to its course." Accordingly, on the 24th of March, 1830, Mr. Swift appeared before the Office of the Inquisition, and there abjured the Protestant religion, received absolution, and was reconciled to the Roman Catholic Church, in proof of which the Tribunal of the Vicariat granted their certificate. In the evening of the following day, the 25th of March, which was in Lent, the alleged marriage was solemnized by the special delegate, the Abbe Ludovico Lepri, in the presence of Signers Mazio and Gregori, and was certified by Lepri to have been duly performed after all the prescribed preliminaries had been complied with. The circumstances under which the marriage ceremony was solemnized, were sworn to be as follows: - Late in the evening of the 25th of March, the Priest Lepri, Signers Mazio and Gregori, and Mr. Swift, met at the apartments of Mr. Swift at the Hotel della Gran Bretagna, and after some conversation between them, about eleven, o'clock at night, Mr. Swift left the room, and soon after returned with Miss Kelly, whose apartments were below in the same hotel. The Abb6 Lepri informed Miss Kelly that he wag delegated to receive her abjuration, and assist at Tier marriage; and asked her if she had any objection. To which she answered in Italian, " None, Sir." He asked whether she was disposed to become a Roman Catholic and make abjuration, and she answered "Yes;" upon which her abjuration was taken; she first reading aloud the formula of abjuration, which was in Italian, and showing that she understood and assented to it. [262] The Signor Mazio afterwards, for precaution, interpreted in, English the substance of it. Miss Kelly then signed the abjuration, and the previous act of spontaneous assent; and she and Mr. Swift signed the supplemental oath as to their baptism, etc. The Abbe Lepri then called the attention of the P.C. i. 649 21a Ill KNAPP, 263 SWIFT V. KELLY [1835] parties to the obligations of matrimony, blessed the nuptial ring, which was placed by Mr. Swift on the finger of the bride, and asked each of them:-" Are you, Sir, content, and are you, Miss, content, to take each other according to the rites of the Holy Mother Roman Catholic Church?" to which each expressly and verbally assented. Signor Mazio explained everything in English; but both parties appeared quite conversant with the Italian language. The whole transaction occupied about twenty minutes, and Miss Kelly returned down stairs to her mother's apartments. After the marriage, while the parties remained at Rome, a clandestine correspondence of notes in affectionate terms, but without dates or signature, and of frequent meetings by appointment, was continued...
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