Doe, dem. John Birtwhistle, Plaintiff in Error v. Agnes Vardill, Defendant in Error [1840] UKHL 1_Rob_627

UKHL
Doe, dem. John Birtwhistle, Plaintiff in Error v. Agnes Vardill, Defendant in Error
[1840] UKHL 1_Rob_627 · 1840-08-10
APPENDIX TO THE CASES OF COUNTESS of DALHOUSIE v. M'DOUALL AND MUNRO v. MUNRO .

[ 10th August 1840 .]

Counsel: [ Attorney General (Campbell).] [ Dampier.]

Subject_ Marriage. — Legitimation per subsequens matrimonium — Lex loci rei sitæ. —a. A. went from England to Scotland, and resided and was domiciled there, and so continued for many years till the time of his death: A. cohabited with M., an unmarried woman, during the whole period of his residence in Scotland, and had by her a son B., who was born in Scotland: Several years after the birth of B., who was the only son, A. and M. were married in Scotland according to the laws of that country: A. died seised of real estate in England, and intestate;—Held, upon consulting the Judges (affirming the judgment in K. B.), thatb. B. was not entitled to such property as heir of A.Statement.John Birtwhistle was born in Scotland. His father, although a native of England, had gone to Scotland twenty years before his death, and during the whole of that time was domiciled there. The mother was a native of Scotland, and also domiciled there. The parents, some years after the birth of their son, were married in Scotland. The father died seised in fee of certain estates in England, and intestate, and the son claimed as heir. The case was tried on ejectment at York in 1825, the law of Scotland as to the marriage being proved by Scotch counsel. A special verdict was returned, it being found, among other things, that the claimant was “legitimate,” in consequence of the marriage

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The cause having stood over, it was appointed to be reargued by one counsel of a side, in presence of the Judges, and counsel having been fully heard, in the session of 1839, the following observations were made at the close of the argument, on proposing the question to the Judges:—Ld. Chancellor's Speech.Lord Chancellor .—My Lords. Your Lordships have had the advantage of having had this case, raising certainly a very important question, argued with the utmost learning and ability, and it will be for your Lordships now to consider in what way the question is to be submitted to the learned Judges, in order to call their attention to the point to be decided. Upon looking at the question put to the learned Judges in 1830, it seems to me very accurately to state the facts of the case necessary to be submitted to the learned Judges, and it does not appear to me that it can be done better by putting it in other words. That question was in these words:
“A. went from England to Scotland, and resided and was domiciled there, and so continued for many years till the time of his death. A. cohabited with M., an unmarried woman, during the whole period of his residence in Scotland, and had by her a son B., who was born in Scotland. Several years after the birth of B., who was the only son, A. and M. were married in Scotland according to the laws of that country. By the laws of Scotland, if the marriage of the mother of a child with the father of such child takes place in Scotland, such child born in Scotland before the marriage is equally legitimate with children born after the marriage for the purpose of taking land, and for every other purpose. A. died seised of real estate in England, and intestate. Is B. entitled to such property as the heir of A.?”

That, therefore, is the

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Ld. Brougham's Speech.Lord Brougham .—My Lords. I entirely agree with my noble and learned friend that the question of 1830 is much better than any other which can be put. It raises the point upon the facts stated in the special verdict. That verdict did unfortunately not find particularly in every respect what the law of Scotland is upon this subject, consequently the argument of the learned counsel for the plaintiff in error pro tanto is damnified. It would have been better if it had been put as the learned counsel, Mr. Murray, stated it, whose evidence 1 was believed by the Judge and the jury, namely, that the marriage is supposed to have been antecedent to the birth by fiction; but the legitimacy, as contradistinguished from legitimation, is sufficiently put for the purpose of the argument, and with the assistance of the authorities it can leave very little doubt upon the minds of the learned Judges. Yet I cannot help expressing my regret at the length of time during which this suit has been pending. It was tried at York as long ago as 1825, and I very well recollect the trial. The delay of fourteen years certainly is a very great misfortune; it has been owing in part to the changes in the custody of the Great Seal. In 1830 the appeal was certainly prosecuted, but it was not decided, and it was not till 1835 that we were aware of it being still depending. If I had ever known, whilst I held the Great Seal, that it was undetermined, I should have called the attention of the House to it, and then there would have only been the delay from 1825 to 1830. It was not noticed, until another case brought it to your Lordships knowledge, that it was not disposed of. Some laches, too, probably, may be imputed to the parties. If they had reminded the House of it, no doubt the cause would have been heard; but I suppose there is something in the state of the property that did not make it very necessary, else they would have taken some means of obtaining an earlier judgment. My Lords, I am desirous that the attention

Footnote

1 The law of Scotland, as to marriage, was proved by Scotch counsel.

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One word more before closing these observations. Being moved by the considerations to which I have adverted, I introduced a bill into parliament in 1835 to cure this evil, and terminate so anomalous a state of things. I have been strongly urged to introduce it again. I own I had rather not do so pending this discussion, because I should hardly be able to accomplish my purpose without prejudicing this question, and I would therefore rather wait till it shall be decided. Now what is the real origin of all this embarrassment? A great deal arises from a country possessing one system of law being connected with a country possessing a different system, like Scotland and England, and these countries being contiguous. But much the greater part of the inconvenience has arisen from another source, and it shows the danger of departing from sound, solid, and uniform principles. If you had held originally that a marriage celebrated in Scotland, not bonâ fide by parties really resident there, but by parties who could not be duly married here, and who went to Scotland in fraudem legis Anglicanæ, to escape the provisions of the English marriage act, was a bad marriage in England,—if you had held, as you ought to have done, by that opinion generally, and declared it was a bad marriage, and that you would not allow parties who could afford to go to Scotland for the purpose of evading the marriage act, and who were really the only people contemplated by that act, to escape its provisions by this Scotch

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Ld. Wynford's Speech.Lord Wynford .—My Lords, I cannot omit troubling your Lordships with one or two observations. Since I have been at the bar, now nearly fifty years, I have never heard a case argued with more ability than this case has been argued today. I have heard that ability exerted with great pleasure as to one of my friends, but greater pleasure with respect to the other, a young friend of mine who I have known from his earliest youth; and I am very sorry that the profession at large should not have the advantage of the full extent of his talents, in consequence of the situation he happens to hold in another place. My Lords, I believe I am the only peer now present who was in the House at the time the question was put to the learned Judges upon the former

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The Lord Chancellor again read the question to be proposed to the Judges, and the same was agreed to.Opinion of the Judges.On the 20th July 1840 Lord Chief Justice Tindal delivered the opinion of the Judges as follows:—Lord Chief Justice Tindal .—“My Lords, the facts of the case upon which your Lordships propose a question to Her Majesty's Judges are these:a. A. went from England to Scotland, and resided and was domiciled there, and so continued for many years till the time of his death. A. cohabited with M., an unmarried woman, during the whole period of his residence in Scotland, and had by her a son, B., who was born in Scotland. Several years after the birth of B., who was the only son, A. and M. were married in Scotland according to the laws of that country. By the laws of Scotland, if the marriage of the mother of a child with the father of such child take place in Scotland, such child, born in Scotland before the marriage, is equally legitimate with children born after the marriage for the purpose of taking land and for every other purpose. A. died seised of real estate in England, and intestate. And your Lordships found this question upon the foregoing state of facts; viz., ‘Isb. B. entitled to such property as the heir of A.?’ And in answer to the question so proposed to us, I have the honour to state to your Lordships that it is the opinion of all the Judges who heard the argument 1 that B. is not entitled to such property as the heir of A. We have, indeed, reason to lament that we have been deprived of the assistance of one of our learned brethren, who heard this case argued at your Lordships bar, the late Mr. Justice Vaughan; but as he had expressed a concurrent opinion

Footnote

1 Lord Chief Justice Tindal, Mr. Justice Vaughan, Mr. Baron Parke, Mr. Justice Bosanquet, Mr. Justice Patteson, Mr. Baron Gurney, Mr. Justice Williams, Mr. Justice Coleridge, Mr. Justice Coltman, Mr. Justice Maule.

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My Lords,the grounds and foundations upon which our opinion rests are briefly these: That we hold it to be a rule or maxim of the law of England with respect to the descent of land in England from father to son, that the son must be born after actual marriage between his father and mother; that this is a rule juris positivi, as are all the laws which regulate succession to real property, this particular rule having been framed for the direct purpose of excluding in the descent of land in England the application of the rule of the civil and canon law, by which the subsequent marriage between the father and mother was held to make the son born before the marriage legitimate; and that this rule of descent, being a rule of positive law annexed to the land itself, cannot be allowed to be broken in upon or disturbed by the law of the country where the claimant was born, and which may be allowed to govern his personal status as to legitimacy upon the supposed grounds of the comity of nations.My Lords,to understand the nature and force of this rule of our law, ‘that the heir must be a person born in actual matrimony in order to enable him to take land in England by descent,’ and to perceive at the same time the positive and inflexible quality of this rule, and how closely it is annexed to the land itself, it will be necessary to consider the earlier authorities in which that rule is laid down and discussed, both before and subsequently to the statute of Merton, and more particularly the legal construction and operation of that statute.If we take the definition of heir which Lord Coke adopts from the ancient text writers, and which is borrowed originally from the Roman law (Co. Litt. 7. b.), namely, that he is ‘ex justis nuptiis procreatus,’ the very description points at a marriage celebrated according to the rules, requisites, and rituals of the civil or Roman law. ‘Operæ pretium est scire quæ sint justæ nuptiæ,’ says Huber (lib. 23. tit. 2. de ritu nuptium). He adds, “in promptu est

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Your Lordships will observe the form of this writ, how precisely it puts the objection against the heir's title upon the very rule of the English law, that “he was born before the marriage of his mother;” by which it is necessarily implied that the marriage of the parents had subsequently taken place. Now if the question had been put generally on the fact whether any marriage had taken place, or upon the legality of such marriage as had taken place, to such a question of general bastardy, as it is called, the bishop would

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The bishop being placed in the difficulty of this conflictus legum, by reason of the precise form of the king's writ, at length, at the parliament holden at Merton in the twentieth of Henry the Third, the statute was framed which will be found to have a strong and direct application to the present question. That statute has not upon the original roll the title prefixed thereto, upon which observations were made at your Lordships bar, that it showed the intention of the law to have been no more than to declare the personal status of those who are described in such statute. In the edition of the statutes published under the commission from the crown there is no other than the general title, ‘Provisiones de Merton;’ and no more argument can justly be built upon the title prefixed in some editions of the statutes than upon the marginal notes against its different sections. That statute or provision of Merton runs thus; viz. “To the king's writ of bastardy, whether any one being born before matrimony may inherit in like manner as he that is born after matrimony, all the bishops answered, that they would not nor could not make answer to that writ, because it was directly against the common order of the church; and all the bishops instanted the lords that they would consent that all such as were born before the matrimony should be legitimate as well as they that be born within matrimony, as to the succession to inheritance, for as much as the church accepteth such as legitimate; and all the earls and barons with one voice answered, that they would not change the laws of the realm which hitherto had been used and approved.”

It is manifest from Bracton, who lived and wrote in the

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My Lords,the extent of the dominions of the crown at the time of the passing of the statute of Merton demands particular attention. Normandy, Aquitaine, and Anjou were then under the allegiance of the King of England, and had been so at least from the commencement of the reign of Henry the First. Many of the nobles and other subjects of the king had large possessions both in England and the countries beyond sea. Those born in Normandy, Aquitaine, or Anjou, (as also in subsequent periods of our history those born in Calais or Tournay,) whilst under the actual dominion of the crown, were natural-born subjects, and could inherit land in England. (Calvin's case, 7th Coke, 20. b.) Many of the very persons who attended at the coronation of Henry the Third, the occasion on which the parliament met at Merton and the statute was

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On the contrary, the observation of Lord Coke, 2 Inst. 98. although not made in any case in a court of law, proves in a manner which leaves no doubt what would have been the opinion of that great lawyer upon the point now under discussion if it had arisen in his time. “Some have written,” he says, “that William the Conqueror being

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It therefore appears to be the just conclusion from these premises, that the rule of descent to English land is that the heir must be born after actual marriage of his father and mother in order to enable him to inherit, and that this is a rule of a positive inflexible nature applying to and inherent in the land itself, which is the subject of descent, of the same nature and character as that rule which prohibited the descent of land to any but those who were of the whole blood to the last taker, or like the custom of gavelkind or borough-English, which cause the land to descend in the one case to all the sons together, in the other to the younger son alone.And if such be, as it appears to us to be, the rule of law which governs the descent of land in England, without any exception either express or implied therein on the score of the place of birth of the claimant, it remains to be considered whether by any doctrine of international law or by the comity of nations that rule is to be let in by which B. being held to be legitimate in his own country for all purposes must be considered as the heir at law in England.The broad proposition concluded for on the part of the plaintiff in error is, that legitimacy is a personal status to be determined by the law of the country which gives the party birth, and that when the law of that country has, once pronounced him to be legitimate, he is by the comity of international law to be considered as legitimate in every other country also, and for every purpose; and it is then contended, that as by the Scotch law there is a presumptio juris et de jure, that under the circumstances

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Now, there can be no doubt but that marriage, which is a personal contract, when entered into according to the rites of the country where the parties are domiciled and the marriage celebrated, would be considered and treated as a perfect and complete marriage throughout the whole of Christendom.But it does not therefore follow, that with the adoption of the marriage contract the foreign law adopts also all the conclusions and consequences which hold good in the country where the marriage was celebrated. That the marriage in question was not celebrated in fact until after the birth of B., is to be assumed from the form of the question. Indeed, except on that supposition, there would be no question at all. Does it follow then, that because the Scotch hold a marriage celebrated between the parents after the birth of a child to be conclusive proof of an actual marriage before, a foreign country which adopts the marriage as complete and binding as a contract of marriage must also adopt this consequence? No authority has been cited from any jurist or writer on the subject of the law of nations to that effect; nothing beyond the general proposition, that a party legitimate in one country is to be held legitimate all over the world. Indeed the ground upon which this conclusion of B.'s legitimacy is made by the Scotch law is not stated to us, and we have no right to assume any fact not contained in the question which your Lordships have proposed to us. We may however observe that, in the course of the argument at your Lordships bar, the ground has been variously stated upon which the laws of different countries have arrived at the same conclusion. It was asserted that, by the law of Scotland, the subsequent marriage is not to be taken to be the marriage itself, but only evidence, though conclusive in its nature, of the marriage prior to the birth of B. That the canon law rests the legitimacy of the son

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Now, it would never be contended by any jurist that the law of England, with respect to the succession of land in England, would be bound to adopt a positive law of succession like that which holds in France, the distinction being so well known between laws that relate to personal status and personal contracts, and those which relate to real and immoveable property, for which it is unnecessary to make reference to any other authority than that of Dr. Story, in his admirable Commentaries on the Conflict of Laws (see sections 430 and following, where all the authorities are brought together); and if such positive law is not upon any principle to be introduced to control the English law of descent, what ground is there for the introduction into the English law of descents, not only of the contract of marriage observed in another country, which is admitted to be adopted, but also of a fiction with respect to the time of the marriage, that is, in effect, of a rule of evidence which the foreign country thinks it right to hold?But admitting for the sake of argument, and we are not called upon to give an opinion on that point, that B., legitimate in Scotland, is to be taken to be legitimate all

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In the course of the discussion some stress appears to have been placed on the argument, that if B. had died before A. the intestate, leaving a child, such child might have inherited to A., tracing through his legitimate parent; and then it was asked, if the child might inherit, why not the parent himself inherit? But the answer to that supposed case appears to be, that if the parent be not capable of inheriting himself, he has no heritable blood which he can transmit to his child, so that the child could not under the assumed facts have inherited, and the question, therefore, becomes in truth the same with that before us. The case supposed would be governed by the old acknowledged rule of descent, “Qui doit inheriter al pere doit inheriter al fitz.”The two decided cases 1 which have been relied upon in the course of the argument, that of Sheddan v. Patrick , and that of the Strathmore Peerage, do not upon consideration create any real difficulty. Those cases decide no more than that no one can inherit without having the personal status of legitimacy, a point upon which all agree, but they are of no force to establish the main point in dispute in this case, viz. that such personal status is sufficient of itself to enable the claimant to succeed as heir to land in England.Upon the whole, in reporting to your Lordships as the opinion of the Judges, “that B. is not entitled to the real property as the heir of A.,” I am bound at the same time to state, that although they agree in the result, they are

Footnote

1 See ante, p. 586.

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Lord Chancellor .—The subject upon which your Lordships have had the opinion of the Judges is of so much importance, and the learning contained in that able opinion is of such a description, as in my opinion to require further consideration. I shall, therefore, propose to your Lordships that the further consideration of the case be postponed.Lord Brougham .—I perfectly agree in opinion with my noble and learned friend. It is quite impossible to express more strongly than I desire to do the obligations which I think your Lordships and the law are under to the learned Judges, for the very able, elaborate, and lucid opinion they have given.It is perhaps enough to say respecting this opinion of the learned Judges, that in a case which has undergone argument in every form for somewhere about twelve years past, both in the sister kingdom and here,—first in the different Courts of Westminster Hall, and next at your Lordships bar —upon which the learned Judges in the Courts below, upon former occasions, in deciding the questions submitted to them, and the learned Judges here in assisting your Lordships—have given their opinions, and discussed the points—nevertheless, at the eleventh hour as it were, and at the very end of this long-continued discussion, very great new light, if I may express it, has been thrown upon the question by the reasonings of the learned Judges, and very important additions have been made by the arguments to-day to those arguments and that learning which had been brought to bear upon that question in its former shape, in your Lordships House, in Westminster Hall, and in the Courts of Scotland.Under these circumstances, it is not for me to say that the opinion, or rather the leaning of opinion, which it is well known to your Lordships I formerly expressed, is not materially altered by the quite new form in which the argument is now placed. I am by no means prepared to state that I shall not, on reconsidering the reasons of the learned Judges

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Upon these grounds I entirely agree in thinking that the further consideration of this case ought to be postponed. I ought to add, that in the whole of the first part of the reasoning of the learned Judges I was prepared to agree. What I have doubted is the latter part of the reasoning. One thing has struck me, that supposing your Lordships shall ultimately be of opinion that you ought to decide in favour of the defendant in error, and to affirm the judgment of the Court below, it will be absolutely necessary that the legislature should interfere in order to allay the evils which will arise out of the conflict of law, respecting the personal status in the two parts of the kingdom.Further consideration postponed.The cause having (10th August 1840) been put down for judgment, Lord Brougham and the Lord Chancellor severally expressed their opinions. (See Mr. West's Reports of English and Irish Causes in the House of Lords, Volume 1st.)The Lord Chancellor , in moving judgment in favour of the defendant in error, expressed his satisfaction with the grounds upon which the Judges rested their opinion; his Lordship observing, that the question being one which involved the right of succession to real property in England, the decision of it necessarily depended exclusively on the principles which regulate the descent of land in that country.Judgment.The House of Lords ordered and adjudged, That the said judgment given in the said Court of King's Bench be and the same is hereby affirmed; and that the record be remitted, to the end such proceeding may be had thereupon as if no such writ of error had been brought into this House.Solicitors: T. Briggs— Law and Tindai, Solicitors.