HL Deb 17 May 1827 vol 17 cc876-83
The Earl of Eldon

presented a petition from Edward Gibbon Wakefield. The petitioner stated, that the most material allegations of the petition of William Turner were untrue. He prayed their lordships' permission to be heard personally at their lordships' bar, against any bill that might be introduced to dissolve the marriage between him and Miss Ellen Turner; and he stated in the event of their lordships' allowing him to appear at their bar, that he should be unable to avail himself of that permission, unless by an express order of the House, as he was at present confined in gaol by the judgment of the Court of King's-bench. The order of the day for a committee of the whole House was then moved. The petition of W. Turner was read by the clerk. It contained a statement of the facts relative to the marriage of Miss Turner which were proved on the trial of E. G. Wakefield. The petition of E. G. Wakefield was also read.

Earl Grosvenor

said, he thought much credit was due to the noble and learned lord who had brought this question before their lordships, and he hoped they would do the promptest justice to the unfortunate girl who was the cause of the present proceeding. If it was their lordships' intention to act in the manner in which it was proposed for them to act, every moment was lost, if they did not at once proceed to act in that way. It was impossible for their lordships to conceive the distress and agony of mind of that unfortunate family, in whose favour it was proposed to legislate. With respect to the view he took of the question, he did think that, supposing no precedent could be found to bear upon the case, their lordships ought to go a little out of their way and adopt a precedent, on a case which was so extraordinary. There was a precedent on their lordships' Journals, which, though it was not exactly in point, yet, with a little alteration, might be adopted in the present case. He alluded to the case of Miss Wharton, in the year 1691. That case, he considered, might, with a little allowance, be applied to the present one. There was certainly some difference between the two. Miss Wharton had been originally carried away by force; yet, by subsequent persuasion, the marriage had taken place with consent of the lady. In the present case, though there was no actual force employed, yet there was—that which was equivalent to actual force—moral force used, in the manner in which the young lady had been taken from the place where she had been placed for instruction, to the place where the ceremony of the marriage was gone through. He felt, however, somewhat relieved from the anxiety under which he laboured, by the remark made by a learned lord, whose opinion was entitled to considerable weight. That learned lord stated, that, in many instances, fraud was equivalent to force; and, if there ever could arise an occasion in which fraud ought to be considered equal to force, it was the occasion now before their lordships. In that case justice could only be real, in proportion as it was prompt. If the cause were to be tried in the Ecclesiastical court, there was no saying for how long a period it might continue in that court, before a decision would be pronounced. He understood, besides, that relief could not be administered in the Ecclesiastical court, because the person who alone could prove the facts of the case could not he brought forward as a witness. It had been suggested, that it would be better to legalize the admission of that particular evidence in the Ecclesiastical court, which at present could not be admitted, rather than meet the case promptly by an act of parliament. But, if such a course were to be adopted, it would be attended with great delay; and besides, the admissibility of the lady's evidence, in the present case, might be argued against, under the circumstances of the course which had been suggested. The law would be considered as an ex post facto law, and could not with propriety be applied to the present unfortunate case. Whether the marriage was a good one or not, he thought their lordships would feel themselves justified, under the peculiar circumstances of the case, to pass a law, declaring that the marriage which had taken place between E. G. Wakefield and Ellen Turner, whether a valid marriage by the law of Scotland or not, should be considered null and void.

The Earl of Lauderdale

said, be could assure their lordships that no man had read with greater horror the proceedings of Wakefield than he had. There was no man who wished more sincerely than he did, that the young lady in the present case could be released from the engagement which she had entered into; but, as a member of their lordships' House, he had a duty to perform, superior to that which was dictated by his feelings. It was his duty to guard the law of the country, and to guard the proceedings of their lordships' House; and to prevent any precedent from being formed, which might, in his opinion, be prejudicial to the future welfare of the country. If, in the present case, it was proposed to form a precedent, there was a danger to be guarded against, of making the House pass a precedent upon subjects which went to the feelings of a man. On such subjects reason only was to be consulted. With respect to the question before the House, he begged to say, in the first place, that the case of "Campbell and Wharton" formed no precedent that could apply to the present. The peculiar circumstances of that case were, that the moment marriage had taken place, Mr. Campbell absconded, and therefore was out of the jurisdiction of the Ecclesiastical court, and it was impossible to render him amenable to any court in this country. This circumstance formed a most material distinction. He desired to know what was the jurisdiction of their lordships' House? In the high court of parliament all injuries which the subject might sustain, and for which he could get no redress in the common courts of justice, would find their remedy; and therefore the high court of parliament was the last resource. There was no court which had the power of divorcing a matrimonio: the courts of Scotland possessed that power; but in this country there was no court which had such power, excepting the high court of parliament. Now, it was proposed to their lordships to take up the present case, because no court in this country had any jurisdiction upon it. But, what was the case? The petitioner stated, that he was informed the Ecclesiastical court would not take the evidence of the parties. He was not sure that that was the fact; and he should like to hear the best legal authorities on the subject, before he made up his mind. In the first place, before their lordships proceeded in this view of the case, they ought to call for the assistance of those judicial authorities which, by the constitution, they were permitted to consult, to ascertain whether that which had been stated was the real state of the law; namely, not to take the evidence of the parties in the Ecclesiastical court. If this should prove to be a real evil, what was the direct remedy, but that their lordships should pass a law, giving a power, not only in this case, but generally, to the judge, at his discretion, not to examine the plaintiff, but to examine the parties in every case of such a nature as the present where fraud might be urged. He said, that this power should be left to the judge; for fraud might be urged for the purpose of obtaining the evidence of the parties, in cases where there was no actual appearance of fraud. The learned lord before him was aware, that in actions in the course of common law the parties could not be examined: even a trustee who had no personal interest could not be examined. But, in the court of Chancery, the parties to a cause could at all times be examined, and must be examined. If the lord Chancellor sends an order out of the court of Chancery, which was a frequent custom of that court, stating that he grants the power to any court of law to examine parties in the course of their proceedings, he administers the same remedy which was prayed for in the present case. But it was objected, that, after having this order, the cause might depend for four or five years in the Ecclesiastical court. If the form of process in that Ecclesiastical court was bad, it was for the noble lords to bring in a general bill to amend that form of process. But it might be said, that the present case was one of peculiar hardship, and that the sooner it was settled the better. That might be the case; but he was bound to think what would be the effect of the precedent that was proposed to be established. He had sat in that House for many years, and no man in it had attended more regularly than he had to the business connect-with divorce cases; and he had not the least hesitation in saying, that he had often witnessed proceedings which struck him with disgust. When a case approached the time of decision, he had seen noble lords come down, and, without having heard the evidence, deciding causes, in opposition to the opinions of those who were entitled to the attention of the House. He was one who did not wish to see the jurisdiction of that House extended. The present case was, no doubt, one of gross fraud; but there were degrees of fraud. A case of minor fraud might hereafter come before their lordships, founded on the precedent of this case, and of which their lordships might be persuaded to take cognizance. Their lordships having thus furnished two precedents, a case of still minor fraud might come before the House; and their lordships would, step by step, be drawn into this situation—that whenever a man runs away with a young heiress, her parents or guardians might come to their lordships' House for relief. He did not think that their lordships intended to go so far as to legislate upon every matter of that nature; but such, he thought, was not an improbable result of forming a precedent as proposed. He had heard the petition of Mr. Turner read, and, from an extraordinary allegation which the petition contained, he should wish to have different authority than the simple statement of Mr. Turner respecting the forms of the Ecclesiastical courts. The statement he alluded to was the following —"that such marriage, as the one he prays the House to dissolve, could not, under the law of Scotland, be dissolved." There was a book with which every man who had attended to the law of Scotland, was acquainted. The book was edited by Hutcheson, and in it their lordships would find the following entry, in a case where a marriage was dissolved." The case was that of Allen, a schoolmaster, and Ann Young. It appeared, that the marriage ceremony had been regularly performed, and the girl was aged twelve years; that she was placed under Allen's care for the purpose of being taught; that undue influence, and a train of fraud and imposition had been used, to obtain her consent to the marriage; but that no consummation had taken place. This marriage was dissolved. The petitioner, however, stated, that such dissolution could not take place; and he himself had a little doubt on the subject of what the law in the Ecclesiastical courts was; but he thought it preferable, at all events, to the proposed mode of proceeding, to pass a law to enable, at the discretion of the judge, parties to be examined in all cases of fraud; by which means their lordships would keep that jurisdiction which they now had, and would not extend it; to do which, he thought, in his conscience and honour, would be dangerous.

Lord Redesdale

thought, he had followed the best course in referring the petition to a committee of the whole House. The present case was certainly one of considerable doubt; and he thought that, in some way or other, relief ought to be given, provided the case could be proved in point of fact. Their lordships were all aware, that, if the cause was argued in the Ecclesiastical court, it might occupy a very considerable length of time. If he mentioned the space of three or four years, he was sure he was stating a duration much shorter than that which such a proceeding might occupy. Their lordships would recollect, that the young lady in the present case knew not whether she was married or not—that her father, her uncle, and, in fact, that all the world were ignorant whether she was married or not. The case of Miss Wharton had been cited. That lady, after her divorce, married a person of the name of Ireland. The principal offender made his escape to France; but one of the conspirators was executed. The act in that case passed in the year 1691, a period when there were in that House, persons every way competent to frame it with effect; persons who had been engaged in the Revolution. The bill came up to their lordships from the other House of parliament; but he thought it preferable that the present measure should originate here, where questions of law and equity were frequently tried, and where their lordships were accustomed to have the assistance of the judges. The proceeding suggested by the noble earl could not be adopted; for their lordships must perceive, that the present case was one which was not provided for by any existing law. In cases of disputed property, delay of judgment would not alter the situation of the parties; but here there was a doubt as to whether the parties were husband and wife. In the event of the death of either of them while the suit was pending, there would be no possibility of annulling the marriage; their respective rights must remain whole and entire. If Wakefield died first, the lady would be regarded as his widow, and, in that character, entitled to dower. If she died first, the alleged husband would be intitled to all his marital rights, so far as regarded her personal property, and the custody of her lands. Here, then, a man might, in this latter event, become possessed of considerable property, by means of fraud of which he had been found guilty in a court of law. He believed it was generally understood, that the lady could not be examined in the Ecclesiastical court, as to the circumstances relating to the marriage. In cases, however, of a criminal prosecution, such an examination was allowed in the temporal courts, and Miss Wharton, under such circumstances, appeared as a witness. It was suggested, that a bill should be introduced to legalise the evidence of the parties in all cases of fraud; but if that were done, there would still, in the present case, be a difficulty in obtaining relief, as the person against whom the proceedings were instituted would endeavour, by all the means in his power, to delay the final decision. Their lordships would have an opportunity of taking into their consideration all the particulars the case while the bill was in progress; but if they should reject the prayer of the petition, the lady and her family would be left in the most cruel state of suspense. There was no possible mode of extricating her, unless by a bill; and death might, by possibility, prevent that justice which their lordships would desire to see done. To what a deplorable state would this young lady be reduced, if she were allowed to remain the wife of a felon! Their lordships, in his opinion, were perfectly warranted, by the case of 1691, in allowing the bill to be brought in.

Lord Tenterden

supported the prayer of the petition. He said, that the facts stated in the petition must be assumed to be true, and that the young lady had been taken away by means of fraud and forgery. The learned lord then recapitulated all the particulars of the case, and said, that the principal offender and his accomplices had been convicted of a conspiracy, originating in the basest motives of lucre, and conducted throughout by fraud and force. He thought the House bound to afford the relief prayed. The friends of the unfortunate girl had, by prosecuting the defendants, done all in their power, and now came to the House for that relief which the peculiar nature of the case demanded. He considered the precedent of 1691 sufficient. There were certainly circumstances in the present case which did not exist in that. In that instance, the husband had fled the country: but the fact of Campbell having so done did not form any material matter of consideration on the minds of those who passed that bill. If any other course were adopted, their lordships must recollect the great delay which must take place, and the anxiety and distress to which the parties must be subjected in the mean time. Public justice demanded that they should pass the bill. The punishment in this case had been too sparingly administered, considering the inflictions which the defendants had imposed on the unhappy young woman. He thought it was the duty of their lordships to take care to inform these persons, and not only them, but all others who possessed themselves of the persons of young women for the sake of base lucre, that such conduct would be visited with the severest penalties—to tell them, by what their lordships would now do, that they not only exposed themselves to the punishment which the courts of law might inflict, but that there was a power in the country, which would deprive them of all possibility of reaping advantage from their crimes. Leave was given to bring in the bill.