his real and personal estate to the defendant Kerrick, and made him his executor, who proved the will in the Ecclesiastical Court, in common form: afterwards, in a contest in the Ecclesiastical Court touching the validity of that will, a sentence was given in favour of the will in the year 1716. Bransby, the father, filed a bill in Chancery, to set aside the will for fraud and imposition. Witnesses were examined, and many acts and circumstances of imposition were proved upon the defendant. The cause came to be heard before lord Macclesfield, then chancellor, upon the 14th of November 1718, when his lordship, struck with the monstrous fraud and iniquity of the transaction, declared the executor should stand as a trustee for the next of kin. Upon appeal, the House of Lords reversed the decree, upon the ground that it was not competent to a court of equity to examine into fraud and imposition in a will touching personal estate; that the court of ecclesiastical jurisdiction had decided that point; that it was no longer open to dis cussion. matter. The same law holds in respect to the courts of Admiralty: whether prize or not prize, belongs to the Court of Admiralty; jurisdiction of that court decides upon the subject; though they have given a wrong decision, though the facts did not warrant it, though the judge has done it corruptly, yet it is a sentence which the common-law courts must be bound by, wherever it comes in litigation here: and I have known, in point of experience, in an action of trespass brought here for seizing a ship, where it has been before a Court of Admiralty and received a decision, that the court of common law no longer entertains the cause, for the question of prize or not prize is peculiarly belonging to the admiralty jurisdiction, and you give faith and credit to that jurisdiction. I might refer your lordships too (but the cases are innumerable upon the subject) to that of Burroughs and Jamineau, in Strange, 233, which was upon a bill of exchange, where, by a peculiar local custom within Legborn, it is competent to the acceptor of a bill, by a judgment of the court, to have his acceptance annulled, if the drawer becomes bankrupt before the bill be payable. There is no such law in this country; yet, giving credit to the sentence of that court, the Court of Chancery here would not send it to a trial at law, but deter. mined upon the point, that the sentence in that court was decisive upon the subject, it being a matter within their jurisdiction. My lords, in almost every case where judgment, or records of other courts have been the subject of discussion, the sentences of the Ecclesiastical Court have always been cited and argued from as conclusive upon the subject of dispute, and the courts have uniformly adopted those cases as law; but the attempt has ever been to distinguish cases immediately before the court from those determined by the ecclesiastical jurisdiction. Your lordships will find much of that in the case of Philips and Bury, in Skinner, 468. My lords, the same rules obtain with respect to every court of competent jurisdiction, whether foreign or domestic: we give credit to the decisions of all foreign courts in points within their proper jurisdiction, and do not examine into the facts, but are concluded by the sentence. I will only refer your lordships to a case in sir Thomas Raymond's Reports 473. In the war between the Dutch and the French in the time of Charles the second, a ship was seized by the French as a Dutch ship, and condemned. The ship being in truth English, the purchaser under the French condemnation, brought the ship into England, where the right owner seized her: upon this an action was brought by the purchaser under the condemnation. The defendant, the original owner, offered to prove his property, and that the ship was never a Dutch ship, nor was liable to be taken and condemned by the French: but what said the court? We must give credit to My lords, there was a very late case deterthe condemnation of the court in France; we mined in the court of Common Pleas, and are forced to give credit to and believe that this which is now got into print, reported by Mr. ship was in the condition of a Dutch ship, and Serjeant Wilson, which is Biddulph and Ather. subject to a condemnation: and, upon the It arose upon a question of claim by the duke ground, that if a court of competent jurisdic-of Norfolk to all wreck within the rape of tion gives a sentence, all other courts must be bound by it, the Englishman was precluded from asserting his right.* It was the same upon a case of an insurance, which will occur to some of your lordships, where the ship was warranted Swedish, and condemned in the war between England and France: the parties were concluded from insisting that the ship is any longer Swedish or a neutral, because a court of competent jurisdiction had decided the *See 2 Ld. Raym. 893. Carthew 32. Rex . Raines, 1 Ld. Raym. 262, 12 Mod. 136. Oddy v. Bovill, 2 East 476. See also that case cited in 13 East 473; and the other cases upon this subject, cited by Mr. Hargrave in his Treatise. Bramber, in Sussex, which was proved by many records: it was a question whether those records were admissible, or, if admissible, were conclusive evidence. The counsel who argued in favour of those records and the conclusion which was to arise from them, compared them to the case of ecclesiastical sentences, and would gladly have brought those records within that rule. The Court in that case acknowledged the argument proper with respect to the Ecclesiastical Courts. The Court admitted that the sentence of an Ecclesiastical Court, in a matter whereof they have the sole cognizance, is conclusive evidence, and parole evidence shall never be received. My lords, there is a manuscript note in being of what the judges particularly said; and I find it was Court against the testimony of ten thousand witnesses. Your lordships will find the same doctrine in the same book, 1st sir John Strange's Reports, in the case of King and Roberts, where that defendant exhibited a will in Doctors Commons, as executor, and demanded probate; after long contest, it was determined in favour of the plaintiff; and upon an appeal to the Delegates, this sentence was confirmed; after the sentence, the parties who had brought it about fell out amongst themselves, and disco cited, as one of the instances where the sentence was conclusive, by the learned chief justice who then presided in the Court: he says, if there is a sentence in au Ecclesiastical Court declaring a marriage-for instance, if it could be proved by a hundred witnesses that the parties were never within 500 miles of each other, that evidence is not to be received, but the judgment of the Ecclesiastical Court is conclusive upon the point. In many of the cases I have cited to your lordships, the question came directly before the Court, and received a solemn discussion: in some the doc-vered that the will which had been proved was trine has been recognized; in none, nor in any case that I know of, has it ever been doubted. My lords, though the cases respect civil suits, I trust that no real ground of distinction can be made between criminal and civil proceedings: in civil suits, courts go as far as possible to relieve claims founded in equity and justice; in criminal cases, the leaning is always to the defendants; and therefore I should conceive such evidence stronger, in a criminal prosecution, in favour of innocence. a forgery. The manner of giving relief was to grant a commission of review; but the person who had been disappointed and injured by this forgery, also preferred a bill of indictment against the persons concerned in the act of forgery. The chief justice refused to try the cause whilst the sentence was in force, bur insisted that it should stand off till the sentence was laid out of the case by the decision of the commissioners under that commission of review. My lords, in this your lordships find the doctrine recognized in the strongest manner. My lords, I will take the liberty, however, of reminding your lordships of two or three The next case, which came before the court cases in criminal law, where the same doctrine of King's-bench, is the King and Gardell.* It has been established, and the acts of the Ec- was an indictment prosecuted by Mr. Crawclesiastical Court deemed conclusive upon the ford, a fellow-commoner of Queen's college, subject, until reversed by appeal. My lords, for assault upon him. At the trial of the inin the 1st volume of sir John Strange's Re-dictment, the defendant, who had acted by the ports, 481,* your lordships will find a case that happened at the Old Bailey in the 8th of George the 1st; it was an indictment for forg. ing a will of a personal estate. On the trial, the forgery was proved; but the defendant producing a probate, that was held to be con clusive evidence in support of the will, and the defendant was acquitted. This your lordships see was a prosecution for a very serious offence indeed; a prosecution for the forgery of a will: the forgery is stated to have been actually proved at the trial, but upon the production of a probate from the Ecclesiastical Court, whose decisions are final and conclusive upon such subjects, the defendant was acquitted, and the evidence of the forgery rejected. It ought not to have been received, if that circumstance of the probate had been discovered sooner to the Court; but the defendant, perhaps conceiving that there could be no evidence to affect him with the guilt of forgery, withheld the probate; whatever might be the reason, it is immaterial, he produced it in time to save himself; for you must receive a probate in the Ecclesiastical This was the case of the King and Vin cent, as to which, see the remarks which were made in the arguments on the part of the prosecution in the case before us. See, too, East's Pl. Cr. ch. 19, s. 43, the various cases stated by Mr. Hargrave in his learned Discourse al ready mentioned, and the reasons for the appelJanis in Bouchier and others v. Taylor. These reasons were written by Mr. Hargrave, and such of them as relate to the matter before us, are inserted in that treatise. VOL. XX. orders of the college, produced the acts of the college by which Mr. Crawford was expelled. He came into the garden of the college afterwards with an intent to take possession of his rooms, and the officer of the college took hold of him, and conducted him out of the limits of the college; and this was the assault in that indictment, and which was in point of law an assault; and unless the defendant had a defence, or an excuse for his acts, he must have been found guilty. The act of expulsion was given in evidence. An offer was made by Mr. Crawford to prove the invalidity of those acts, that by the constitution of this college more persons were necessary to concur in an act of expulsion than had been present at that time, and other objections were made to the validity of those acts. The learned judge, before whom that cause came to be tried, conceived himself concluded upon this subject; that as the college had the sole jurisdiction of the cause, their decision was conclusive upon him; and it did not signify upon what grounds they had gone, for the effect of their judgment was an excuse of the defendant, and so long as it remained unimpeached, and unreversed in the proper course, there could be no doubt but it furnished protection to the defendant, or to speak more properly, a defence against this indictment. This doctrine not being satisfactory to the gentleman, he brought the business before the court of King's-bench; and that Court were unanimously of opinion, that the Court had * See the Case of Collett v. lord Keith, 2 East, 260. 2 D lady at the bar hopes to avail herself, begin, as your lordships bave heard, by a complaint on ber part, that Mr. Hervey did, before that suit was commenced, improperly and without ground lay claim to her as his wife; in other words, in the language used in that court, that he did jactitate that the lady was his wife. The suit being thus begun, the next proceeding in it is in the common way, where a person thus called upon means to insist upon a mar done right at the trial of the cause to reject all evidence upon the ground of these acts of expulsion; that the acts themselves, being within the jurisdiction of the college, were sufficient for the defendant to avail himself of; and that it was not competent to the prosecutor of that indictment to shew to the Court that these were not regularly or orderly done, or that they were invalid in any respect whatsoever. My lords, in that case the general doctrine was recognized, that in all courts of competent juris-riage. The defendant in the suit admits that diction their acts, however wrong they are, yet while they remain in force, are conclusive upon every other court: the cases of ecclesiastical sentences, and many others, were then mentioned. I might refer your lordships' memory to the cases in Exchequer seizures, where condemnations are given constantly without a defence almost, and yet all other courts are concluded by them. It has been thought so extremely hard a doctrine, that judges have wished for the liberty of examining into the fact, and to have the matter fully discussed in the courts; yet when the matter came to be fully argued, the result has ever been, that the judgment has been found conclusive upon all other courts whatever. My lords, under these authorities for a succession of ages, I confidently rest that your lordships will, in the present cause, conceive the sentence of the Ecclesiastical Court now produced, in a case clearly within their jurisdiction, in a case in which they have the sole jurisdiction, to be conclusive; no courts whatever have a direct cognizance of marriage but the Ecclesiastical Court. Suppose a person without any grounds whatever claims a marriage; it may be highly injurious to the lady; she has no remedy but by resorting to an ecclesiastical court, because there is no other court that can bring the matter immediately and directly in question: if a woman separate from her lawful husband, what court is there to compel her to cohabit with him but the censure of the Ecclesiastical Court? It is that forum which the constitution of this country has intrusted with the decision of the legality of marriages. As there are not to be found, in commonlaw or ecclesiastical courts, any decision contrary to those I have, with great deference, already submitted to your lordships' consideration, I trust your lordships will give that determination upon the validity and effect of this sentence, which courts of law have ever done, when a sentence of the same kind has been a matter of discussion. Mr. Mansfield [now (1813) Lord Ch. Just. of C. B.]. My lords; I am also to trouble your lordships in support of that sentence, which has been offered to you as conclusive upon the present occasion. The sentence baving been read to your lordships, you are now apprized of the contents of it. The proceedings in the Ecclesiastical Court, of which the noble he did claim the lady as bis wife, and contends that he had a right to do so, because he was lawfully married to her. Such being his ailegation, her ladyship's answer to it is, that there is no foundation for his claim; that she is not, that she never was his wife; and she states in the allegations made by her, which your lordships have heard, a great variety of particulars during a very long period of her life, in which in the most public manner, and upon the most important occasions, she was universally reputed, received, and acted as a single woraan. After this allegation of hers, the next proceeding was to examine a great variety of witnesses, upon the result of whose testimony fol lows that which is the important part of the business, that is, the sentence of the ecclesiastical judge; which sentence pronounces in the same way in this as in all other suits, where two parties litigate a marriage claimed on one side and denied on the other-that these two parties were free from any matrimonial contract. If that sentence is to have the force which, as it is apprehended by those who sit on this side of the bar, by law it must have, it will of course follow, that this indictment must fall to the ground; because the sole foundation of the criminal charge is the supposed marriage with Mr. Hervey, which this sentence, if conclusive, must unanswerably prove never to have existed. It must, we submit to your lordships, follow as a consequence, that this is the proper place and point of time to stop: it would be to no purpose for your lordships to sit here to bear a long story, the object of which, when the sentence was conclusive, would only be to give pain to one whose sufferings no one would wish to encrease, and at last, after it had been heard, no possible good effect could follow from it. As evidence ought not to be heard, if this seutence is conclusive, because it would be hearing that which could have no intention, no weight, no consequence; so it would be nugatory to state it, and every body would wish to decline the hearing it for the reasons to which I alluded; and I am persuaded, not only for the sake of the noble lady at the bar, but for the sake of preserving that which every one will always think of great importance, that is, uniformity in legal decisions and judicatures, that this sentence must upon this occasion, as I believe ou every one has been in which any such sentence has ever been produced in a court, be deemed decisive and unanswerable. My lords, that it ought to be so upon this occasion, I will first endeavour to shew to your lordships by considering the nature of that act of parliament upon which the present prosecution is founded, and the state of the law before that act of parliament was made. near me, who are much better acquainted with My lords, the act of parliament creates no new offence; it punishes nothing but what was punishable before, a second marriage while a former existed: taking a second husband or wife while there was a former in being, was undoubtedly an offence long before this statute of king James the first; indeed as long as the ecclesiastical constitution of this country has subsisted. This act of parliament makes no other alteration in the law, but as it subjects persons committing this offence to temporal prosecution and punishment; before this act, such an offence could only be the object of ecclesiastical censure and punishment. but, my lords, the makers of this statute never dreamt, that they were in any respect altering the ecclesiastical constitution of this kingdom; that they were in any instance invading or breaking in upon the rights of the ecclesiastical courts: no such thing is to be found in the statute; nothing is to be collected from that. Indeed, if you might collect from the preamble to the act of parliament, it will appear to every one who reads it, that it was not in the imagination of those who framed this law, that a second marriage could be made the object of punish-time there may be a suit to restore and set up ment, where there had been a sentence which a first marriage, which has been undone by a prevented a supposed former marriage being sentence by accident, by mistake, by collusion, binding upon the parties. When I say that, I or from any other reason not satisfactory. If allude to the exceptions in the act, which make all the evidence that could have been had reno part of your lordships' present considera- specting the marriage has not been laid before tion. But besides that, the preamble of the the spiritual judge, any party who has any inact tells your lordships what it was that the terest may at any time again apply to that makers of it had in view: the preamble tells court, again institute a suit, offer new evidence, your lordships, that divers evil-disposed per- have that which has been already heard, heard Sons being married, run out of one county into again, that the marriage, if it did really exist, another, or into places where they are not may be established by a sentence of that court: known, and there become to be married, hav- this is, I believe, clear law, and undoubted in ing another husband or wife living, to the great that judicature. If it is, then your lordships displeasure of God, and utter undoing of divers are not to conclude, that by any sanction which honest men's children and others. Now it you give this sentence, you either authorize never was supposed by the makers of this act adultery, or give effect to second marriages of parliament, that the persons described in the while first marriages subsist; no, at any time preamble of it would go through the form and that first marriage may be established notwithceremony of a trial and litigation, and obtain a standing a sentence against it, when any person decision in the Ecclesiastical Court, before such shall think fit in a legal way in such judicasecond marriage was to take effect, which was tures to impeach that sentence: but all that is to be the object of this law: but it is enough contended for is, that while that sentence rethat in this statute there is not any thing that mains, the matter is concluded; the marriage tends to diminish or break in upon the domi- cannot be proved to exist; the relation of husnion of the Ecclesiastical Court; but that the band and wife is destroyed. statute left those courts and the law relating to them just in the same situation as they were before. Now if this was an offence before the act, how was it punishable? What would have been the operation of such a sentence before this law? Unquestionably, a person taking a second husband or wife, the first being living, might have been made the subject of punish ment in the ecclesiastical courts. Let me suppose a prosecution commenced for that purpose by the second husband or wife, the first husband or wife being living: those who stand My lords, if this which I have now submitted to your lordships be, as I apprehend it is, well founded in the known practice and law of these courts, the consequence I trust will be, that this sentence must now have the effect under a prosecution upon the present act of parliament, as it would have had in a prosecution in the Ecclesiastical Court for an adul tery, or a crime against the first marriage. In that judicature, the only one which by the laws of this country has a regular jurisdiction to enquire into marriages, by a solemn judgment these two parties are declared not to be married; that would have been an answer to any prosecution before the statute. The statute leaves the power of the ecclesiastical courts exactly as it was before; leaving it so, a sentence pronounced by that court in a cause, in which it has clear jurisdiction, must I apprehend be decisive. But, my lords, it is undoubted. Various cases, which I shall not trouble your lordships with the repetition of, have been mentioned, which prove that to no purpose can this noble lady at the bar and Mr. Hervey be considered as man and wife, or proved to be man and wife while this sentence subsists. No conjugal duties can be exacted from one to the other; was a wife starving in the streets, she could not in any way oblige him to contribute to her support. Whilst such a sentence remains, the woman cannot be a wife for any beneficial purpose resulting from matrimony: and it will be, I believe, difficult to point out one for which she can be a wife, unless it be for the single purpose of subjecting her to be punished as a felon for marrying a second busband. I can hardly believe that any human creature can be found, who would wish that the noble lady at your bar should for this purpose alone, and in this single instance, be deemed a wife, when she can be in no other. But if there be any who wish it, I am satisfied your lordships' wishes will go along with the Jaw as I understand it to be, if the law be so: and that it will be very difficult to convince your lordships, that she, who was not a wife for any other purpose, should be deemed a wife in order to be subjected to criminal punishment for an open, an avowed, and by her thought an honourable marriage with a noble duke. My lords, in every instance in which an issue in the temporal courts, in the courts of common law, is joined upon matrimony, where a marriage is insisted upon on one side and denied on the other; in every instance of that sort we know the temporal courts decide not; they send to the spiritual courts to have the matter enquired into and decided upon; nothing is more clear than that rule of law. So it is in cases of dower; where dower is claimed by a widow, where it is denied that she was ever lawfully married to her husband, the temporal court says, it has no power to enquire into the matter, it must refer it to the spiritual court; and the decision of the bishop is final upon the point. It is not only in the case of marriage, but in other cases, that the decision of the Ecclesiastical Court is the only competent one, and is final and conclusive to all purposes: so it is upon questions of legitimacy, where bas tardy is alledged and denied; the common-law courts decide not the point; they send it to the Ecclesiastical Court: so it is with regard to the probate of wills; and no case can be stronger than that which was mentioned to your lordships, where even upon a criminal accusation, a charge of forgery, an accusation resembling the present, a decision of the Ecclesiastical Court in favour of a will was held to be con It clusive evidence upon an indictment for forgery, and that no proof could be received of the fact of forgery in opposition to such a sentence. is not only so in these instances of the Ecclesiastical Court; there are others with regard to captures; the decisions of the courts of Admiralty are in like manner conclusive: so the court of Exchequer, upon disputes concerning the revenue: there are many other instances which might be pointed out to your lordships, in which, after the sentences of courts having competent jurisdiction, all other courts are shut out from enquiry into the matter, however it might appear that such sentences are not founded in truth. This rule is so clear and so well known, that I will trouble your lordships with no particular cases or instances in which any such matter is determined: but there are some that have been already mentioned to your lordships, and one other which I shall add, to which I shall beg your lordships' attention on account of another view, which it is necessary for him, who would contend for the full force of this sentence, to see this subject in. My lords, it may be said, something of that has been hinted already; much we know has been talked out of doors, not all i believe warranted by the fact; but of that now we are not to judge or enquire: but it may be said, in answer to these arguments giving the utmost force to such sentences, let them be final and conclusive as they may, yet if a sentence can be shewn to be the effect of agreement and collusion, that it shall not be final, that it shall not have a binding force. If those, who are to argue against the effect of this sentence in the extent in which it is now endeavoured to be urged, should be at liberty to say, that they would attempt to shew that this sentence now in question before your lordships was the effect of what is called in the common-law courts, covin, or collusion; if there was any ground, as I do most firmly believe there is not, to impute this sentence to any such original; yet before your lordships, I trust it will appear, that this is not the place in which any such collusion ought to be enquired into. Those courts, which the constitution has trusted with the investigation and decision of matters relating to marriage, are fully equal to the decision of any such collusion; they may undo their sentences where they appear to be collusive: and it is not to be presumed that any collusive sentences would be encouraged in those courts. Indeed there is one strong and cogent reason, why no such collusive sentences are to be feared in those courts; because, as I before observed to your lordships, a sentence there, though conclusive while it stands, may at any time be attacked or impeached by those who find an interest in so doing: and if it may, then it would be idle for persons to be collusively obtaining a sentence, when any relations that might be affected by issue of a second marriage, in short, any person who has an interest, might overturn and destroy it. This at least is very obvious upon the sentence that is now urged to |