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able here was, that the legis- as insufficient, though proved to lature, when it intended that sustain the suit, and the party certain marriages should be al- be dismissed. together void, had used thc very It was contended in support words which were not applied of the admissibility of the libel, to the present case. The 3d sec- that the act, besides being directtion of the act declared the pub- tory, was prohibitory: it directlication of bans, where parents ed where a marriage should be gave notice of their dissent, al- had, and prohibited where it together void. The 8th annulled should not, and this prohibition als marriages celebrated in any would be without effect unless place but a church or public the marriage were null and void. chapel, where bans of marriage The sections were in different have been usually published (ex- forms, and it was not necessary cept by special license): and the that all of them should contain the 11th declared the marriages the words “ null and void,' as of minors null and void. But the they would, in construction, folpresent case did not come within low to all the clauses after the the range of either of these enact. first without being so specified, ments. This was still more ma. There were various causes of nul. nifest, for by the 1st section mar- lity, which, though not speciriages by bans were to be celebrat- fied, would equally render a mared in the parish church of the riage void, such as the omission of parties ; and by the 4th, those any material parts of the mar. by license in the place where riage ceremony, &c. The first part the parties resided. But all this of the 1st clause was not so was directory only. The 8th strong as the latter, which exa section was still necesary to ren- pressly directed that the marder the marriage void, and that riage should be solemnized in section did not apply to the pre- the church or chapel where the sent case. By former statutes, bans had been published, and in 6 and 7 Wm. c. 6. many direc- no other place whatever ; wheretions were given as to the mode as the 10th section declared that of celebrating marriages, and as to bans published, it was not penalties imposed upon the par- necessary to prove a residence, so ties not complying with them, that the parties in this case were but the marriages themselves still perfectly at liberty to have the continued valid. The present act bans published in another church, seemed to proceed upon the same whilst their own was under repair, principle, and, therefore, the but not afterwards to marry in any marriage in question, though other than that where the publiperhaps in some degree irregu- cation had passed. Upon these lar, yet not being declared null, grounds it appeared that the marwas still to be considered as riage was contrary to the direcvalid, as it would have been, tions, and within the prohibitions had the act never passed. Upon of the act, and, therefore, under * these grounds, it was submitted the proper and legal interpretation that the libel must be rejected of that act, null and void.
Sir John Nicholl recapitulated and a marriage in London, might the facts of the case, which, he or might not, if bona fide, be good. observed, were fully and fairly The title of the act was, “ for set forth in the libel. It appeared the better preventing clandestine that two persons, fully and legally marriages.” This was its sole competent to contract matrimony, object; but in the present case make the proper application for the marriage was any thing but that purpose in the parish church clandestine; there existed no imwhere they reside. The parish pediment to it; there was nothing church being under repair, and either to evade or avoid ; but all no divine service in consequence was done publicly, and 20 years performed in it, a publication of afterwards a nullity is sought for. bans there was impossible, be- There are probably hundreds of cause the purpose of it could marriages of this description in not be answered. The public other parishes, and in different cation was therefore made where parts of the kingdom. The proits object could be effected, viz. ceeding was therefore of a most in the church of an adjoining momentous nature; affecting, in parish, resorted to by the pa- its consequences, the comfort and rishioners of this, but the mar- situation in society of so many inriage took place in the church of dividuals thus circumstanced, and the regular parish, it being in the rights of children emanating a sufficient state of repair for from such a state of things. This that purpose, though insuffici- was a case not within the spirit ent for the bans; and the ques- of the law; no doubt as to its vation was, whether the mar- lidity had been excited; if there riage was valid or void, a ques- had, an application would probation certainly of great import- bly have been made to the legis. ance. The case was entirely new; lature, and an Act passed to rethere could be no doubt of the medy it; but it was highly impromarriage being valid before the per to resort to the legislature ex. passing of the Marriage Act, and cept in cases of urgent necessity. the question therefore was, whe- Nothing but the most imperious ther it was made void by that act. demand of judicial interpretation The clause recited did not make could induce the Court to hold it void, in express terms, but only, such a marriage void, and it had as was contended, upon a sound no hesitation in saying, that all construction of it, with reference the legal requisites had been comto the rest of the act. This clause plied with. It had been truly containing no enactment of nul- said, that Courts must only interlity, and there being others which pret, not make laws; and meet, did, the inference was, that no but not create doubts. The law nullity was intended by it; but did not require impossibilities; the Court did not form its opinion and it was therefore not to be preupon that consideration alone. It sumed, that the legislature meant might be weighty, but leading to to introduce provisions leading to difficulties; and it was not neces- such a demand. There could be sary to say whether bans at York no bans in Newington, because
there was no divine service per- for such a case as the present ; formed in the church. It could and that the publication of bans not be the intention of the law, was sufficient, as, though done at that persons in this parish should St. George's, it was to be consinot be married whilst the church dered as done at Newington.was under repair ; and they could Looking to the consequences that not be married any where they would result from an opposite pleased, the act specifying the construction of the law, they conparticular places. What, then, firmed him in this opinion, though was to be done? The Court was they were not the grounds of it. of opinion just what had been He therefore rejected the libel, been done, for it was provided by and dismissed the party cited from the act that the bans, as to extra- the suit. parochial places, should be published in the church or chapel ad- The Right Hon. the Earl of Rosejoining to them; and under the berry v. the Countess of Roseberry. particular situation of the church This was a proceeding for a diat this time, St. Mary, Newing- vorce, on the ground of adultery, ton, was to be considered as an committed by the Countess of extra - parochial place, and St. Roseberry, with Sir Henry St. George's church in consequence John Mildmay, Bart. the proper place for publishing On the 20th of May, 1808, its bans. The publication in ques- Lord Roseberry (then Viscount tion was, therefore, a publication Primrose) was married to Harin Newington to all intents and riett, his present Countess, a purposes, and not in St. George's. daughter of the Hon. Mr. BouveIt was so intended to be; it was rie. In 1809, Sir Henry Mildentered in the bans'- book of St. may married the elder sister of Mary, Newington, signed as such, Lady Roseberry; and his younger and an entry made explanatory of brother, Mr. Paulet Mildmay, sub. the cause of the publication being sequently married another sister: in St. George's church.
This family connection necessaties throughout held it as a pub- rily produced a great intimacy belication of bans in Newington, tween Sir Henry Mildmay and and the Court held it as such. If Lord Roseberry's family; and on so, then Newington church be- the death of lady Mildmay, in came the proper place for the ce- 1810, he remained with them for lebration of the marriage, for some time, daily receiving from which it was not in an unfit state, them those affectionate attentions though it was for the publication best calculated to alleviate his of bans, and the extra-parochial- grief for the loss he had sustained. ity (if the term might be allowed) They had the desired effect; and did not extend beyond the publi- Sir Henry returned to society from cation. Under these circumstances, a retirement which has unhappily he was clearly of opinion that the since proved a source of the greatmarriage was not invalid, that est unhappiness to this noble faneither the spirit nor the letter of mily. Lord and lady Roseberry the law had been violated; that were then living in the most unthe act had, in fact, provided interrupted state of domestic hapa
piness ; her conduct, until that repaired to the Earl's seat in Norperiod, and for some time after- folk, and afterwards to another wards, being represented as uni- seat in Scotland ; and it was here, formly correct in the discharge in October, 1814, that those acts of her duties as a wife and mother. took place which forined the founAn alteration in this conduct was dation of the present proceeding. first noticed by the Dowager Coun. Lady Roseberry adopted a practice tess of Roseberry, towards the hitherto very unusual with her, end of the year 1813, when she that of taking lonely walks by her. observed her daughter-in-law dis- self, rejecting the company of the posed to advocate principles in- Dowager Countess. The latter consistent with her domestic du- was rather alarmed at this, and ties and previous behaviour. In though not suspecting that any March, 1814, Lord Roseberry left criminality had as yet passed, she town for Scotland, upon the oc- determined to watch her motions. casion of his father's illness, whose Sir Henry, under the assumed death, which was then hourly ex- name of Colonel De Grey, had pected, shortly afterwards took repaired to Scotland, and taken place. He then returned to town, up his abode at an inn in the and remained about three months. neighbourhood of Lord RoseIt was at this time that several berry's, where he suffered his letters passed between Sir Henry, beard and whiskers to grow, and Mildmay and lady Roseberry, otherwise disguised his appear. which were produced in the cause, ance. His lordship's family at and evidently showed an undue this time consisted of himself, the intimacy between them. They Countess, the Dowager Countess, were couched in terms of the and his brother, the honourable warmest affection, and pourtrayed Mr. Primrose, besides occasional the feelings of Sir Henry Mild- visitors. They usually dined at may in the strongest language.-- six o'clock. The ladies retired Lady Roseberry, too, at this time, about seven, and were joined by was in the habit of often walking the gentlemen about nine. Lady in Kensington - gardens, where Roseberry usually made some ex she was met by Sir Henry, and cuse for leaving her mother-inthe progress of this intimacy pro- law, and retired to a suit of rooms duced in her a great indifference on the ground floor of one of the of behaviour towards her husband. wings of the building. They con He remonstrated with her, and sisted of a library, anti-room, a subsequently forbad Sir Henry bed-room, called the red bedhis house ; but finding they had room, dressing-room, and some still many opportunities of meet.. others, all of them communicating, he determined to withdraw ing with each other, and with the from London. Sir Henry's letters windows looking out upon a terto lady Roseberry about this time race; just below which there was a expressed the greatest uneasiness leaden cistern, by means of which at this determination, conjured it was not difficult to ascend the her, if possible, to avert it, and terrace,and enter these rooms by expressed his determination to any of the windows. The Dowager follow them in disguise. They Countess, in the course of her
watching, had observed a man Court. Lady Roseberry remaindescend from the window and ed in the house that night, but walk off by this way. This she the next morning took her decommunicated to the Hon. Mr. parture. She had been recomPrimrose; and one afternoon, mended to return to her father ; about ten minutes after lady but being joined by Sir Henry Roseberry had retired as usual, Mildmay, they were traced to he repaired, with some of the London, having slept together at servants, to the doors of the bed- an inn on the road. They then room, which he found fasten- took up their residence at Sir ed. They endeavoured to force Henry's house, in Lower Brookone of them open, when it was street, but have subsequently reopened by lady Roseberry; Sir paired together to the continent. Henry was then discovered by the An action was brought by Lord side of the bed, dressed in a large Roseberry against Sir H. Mildblue jacket and trowsers, and a may, who suffered judgment by dered waistcoat, covered with a fault, and a verdict with 15,0001. profusion of pearl buttons, and damages was returned against armed with a brace of pistols.- him, on the execution of the writ His beard and whiskers were much of enquiry. grown, and his appearance alto- Upon this evidence Lord Rosegether so much altered, that Mr. berry's counsel submitted that the Primrose did not at first recognise necessary facts were fully subhim. The handkerchief which stantiated to entitle his lordship lady Rose berry had worn round to the remedy he prayed. her neck at dinner was off, and
The counsel for lady Roseberry her gown unpinned, though not admitted that it was impossible so as to expose her bosom inde- for them to offer any observations cently. The bed was indented in to resist the effect of this evidence, the centre, as if pressed by an ex- which they therefore left to the traordinary weight, or by persons impartial consideration of the leaning against it; and the car. Court. pet, which had been nailed down, Sir Wm. Scott recapitulated the was stretched and forced up near circumstances of the case. The the bed, and was much dirtied, as letters were without date, but if pushed with muddy feet. Lady from some passages in them, it Roseberry seemed to express con- was easy to assign dates to them. trition, and endeavoured to pre- They appeared to have been writvent any contest between Mr. ten about March and April, 1914, Primrose and Sir Henry, who,
and alluded to a former corresafter some conversation, was pre- pondence, so that the origin of
upon to retire through the the connection did not appear. At window by which he entered. — whatever time it may have comLord Roseberry did not see his menced, it was, however, sufficilady afterwards. He delivered ently manifest that at this time her writing desk into Mr. Prim- the connection subsisted in a high rose's possession, who took from degree of criminal intimacy, and it the letters exhibited in the it was impossible not to assent to