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In a question as to the right of succession to heritable property in Scotland raised by persons claiming to be lawful children, held that they were not legitimate, their parents having been before their alleged marriage “knowing adulterers” with each other, who by the law of Canada could not validly contract marriage.
This is an action brought by certain parties claiming to be the lawful children of the late Francis Beattie, for the purpose of setting aside certain services carried through by the defender, and of establishing their right to heritable subjects in Scotland as the lawful children of their father, the said Francis Beattie. On behalf of the defender, it is maintained that the pursuers have no title to sue, in respect that they are illegitimate, their mother having been the wife of another man when she was married to their father. A proof having been allowed and taken,
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the Lord Ordinary (Kinloch) pronounced an interlocutor sustaining the objection to the pursuer's title, finding them illegitimate, and dismissing the action The facts of the case appear from the following note, which his Lordship appended to his interlocutor:— The preliminary question in the case, and that on the decision of which the title to pursue depends, is whether the pursuers are, as averred by them, the lawful children of Francis Beattie, junior. It is the opinion of the Lord Ordinary that they have not established this.
It is said that their father and mother, Francis Beattie and Jane Pringle, were, on or about the 11th November 1813, married at Gretna Green. This marriage is not proved. The alleged contract of marriage of 22d October 1822, in which the fact is said to be set forth (supposing that this was sufficient evidence of the fact), has not had its authenticity and the genuineness of the signatures proved in such a way as to make it competent evidence in our Courts.
But even if such a marriage had taken place, it was wholly invalid, because at that time-as the Lord Ordinary considers clearly proved—Jane Pringle was the wife of James Crombie, from whom she had eloped with Francis Beattie. The Lord Ordinary holds it fully established that Jane Pringle was married to James Crombie on or about 26th November 1805. The fact is proved by the hearsay of one witness who was present at the marriage—by the evidence of several witnesses who knew the parties as man and wife—and by the document entitled “indictment of irregular marriage,” the signatures to which of Messrs Shortt and Staig (now both dead) sufficiently attest the acknowledgment mentioned in it to have been made.
James Crombie is proved not to have died till 24th July 1823.
The Lord Ordinary holds it to be established that, on 26th October 1822, Francis Beattie and Jane Pringle, who had previously emigrated together to Canada, were formally married at Montreal by the Rev. John Bethune, Rector and Dean of Montreal. This marriage was, of course, as invalid as that alleged to have taken place at Gretna Green (Crombie not having died till nine months afterwards), except for the alleged operation of a decree of divorce said to have been obtained by Crombie against Jane Pringle in the Commissary Court of Edinburgh, on 16th July 1819.
This decree of divorce has not been recovered: and the Lord Ordinary doubts whether any substitute short of a decree of proving the tenor, is legally admissible. The documents, however, are clearly such as would prove the tenor; and both parties agreed to hold the decree established. Its terms are proved by a duplicate kept in the Commissary Court books, marked by the initials of Mr George Ross, the commissary. From this duplicate the judgment appears to have been the following:—“Edinburgh, 16th July 1819.—The commissaries, having considered the proof adduced, and whole process, find facts, circumstances, and qualifications proved, relevant to infer the defender's guilt of adultery with Francis Beattie, mentioned in the proof; find her guilty of adultery with him accordingly. Therefore divorce and separate. Find and declare in terms of the conclusions of the libel, and decern.
(Intld.) “G. R.”
By this decree Jane Pringle was divorced from James Crombie more than three years before her marriage in Canada to Francis Beattie. But it is contended that, notwithstanding this, the marriage was invalid; and the Lord Ordinary concurs in thinking that it was so.
It is proved by the opinions of Canadian counsel that, by the law of the country, adulterers cannot afterwards marry. Mr Popham being asked—“Is it not a rule of Lower Canada law that the parties who have committed adultery together can never lawfully marry each other?”— replied, “Yes, if they have knowingly committed adultery with each other.” Mr Mackay, in like manner states—“Two persons, wilful, knowing adulterers, can never marry together lawfully in Lower Canada.”
If, therefore, the law of Lower Canada (where it seems to be beyond a doubt that Francis Beattie hall established a domicile) is to rule the validity of the marriage at Montreal in October 1822, the marriage is invalid, having been contracted between adulterers.
The pursuers endeavoured to avoid this result by pleading that Francis Beattie's connection with Jane Pringle was begun and maintained in ignorance of her being a married woman; in which case the Canadian counsel indicate an opinion that the putative marriage would be sufficient to legitimatise the children. The Lord Ordinary finds it unnecessary to enter on the legal discussion which this point raises, became, as he conceives, there has been an entire failure to prove that Francis Beattie was ignorant of Jane Pringle being a married woman when he eloped with her in 1813. The contrary is the fair inference from the proof, and the Lord Ordinary has no doubt was the fact. Jane Pringle had in 1813 been more than eight years married to James Crombie, and had lived with him, and been known as his wife. She was living in that year in Dumfries, under the name of Mrs Crombie, with her husband Crombie coming to her regularly every Saturday, his work lying at some distance. She had several children by Crombie living with her. Her acquaintance with Francis Beattie seems to have been commenced by her getting employment in binding hats for the hat manufactory carried on by Beattie's father; and there is no reason to doubt that she got this employment under the married name by which she was then known. When Francis Beattie eloped with her in November 1813, and took her with him to Carlisle, where they lived together for the next six years, it is impossible to suppose that he did not know her true position. Indeed, the fact of the elopement is, itself strong evidence on the subject, as he need not have carried an unmarried mistress away from Dumfries, and only did so to break the claims of the unfortunate James Crombie. If the pursuers were to set up a case of bona fide ignorance on Francis Beattie's part, the onus clearly lay on them to prove such exceptional case. But so far from the proof establishing such a case, it appears to the Lord Ordinary fairly to establish the reverse. The parties were, as he thinks, “wilful, knowing adulterers” prior to the date of the marriage in Montreal in 1822; and, according to the law of the country, the marriage was invalid.
But the Lord Ordinary has to observe, in conclusion, that, had the law of Canada been different, he would not have been prepared to hold the marriage valid by force of the Canadian law. The question is now raised in the Supreme Court of Scotland. And although, in questions of status, international law requires that respect be paid to the law of the domicile, it is a trite qualification
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of the rule, that the principle does not hold where the law sought to be applied is at variance with that of the tribunal of decision, in regard to a fundamental point of national policy or general morality. The doctrine to this effect was expressly laid down in the decision by the House of Lords of the well-known case of Fenton v. Livingstone, which regarded the validity of a marriage with a deceased wife's sister. ( Fenton v. Livingstone, House of Lords, 15th July 1859, M'Queen iii. 397.) Under the operation of this doctrine, the Scottish Courts will not recognise a marriage as valid which is held by their own law to be objectionable, as contrary to morality, and therefore null. By the Scottish Act of Parliament 1600, c. 20, it is enacted that “all marriages to be contracted hereafter, by any persons divorced for their own crime and fact of adultery from their lawful spouses, with the persons with whom they are declared by sentence of the Ordinary Judge to have committed the said crime and fact of adultery, be in all time coming null and unlawful in themselves, and the succession to be gotten by such unlawful conjunctions to be inhabile to succeed as heirs to their said parents.” This enactment strikes directly at the case of Francis Beattie and Jane Pringle. And whatever might have been the law of Canada, the Lord Ordinary would have felt himself compelled to hold, in this Court, the marriage in Montreal to be invalid, and the pursuers illegitimate.
It is an additional ground for so holding, that the present action is not simply for declaring status. It is for the purpose of enforcing a claim to heritable property within Scotland. The action seeks to set aside certain services carried through by the defender, and thereby to establish certain heritable rights alleged to belong to the pursuers, either ab intestato, or by virtue of dispositions in favour of Francis Beattie's lawful children. It is familiar that all questions concerning real property are to be determined by the law of the country in which the real property is situated. The pursuers cannot succeed to real property in Scotland if, by the law of Scotland, they are illegitimate.
W. P.
The pursuers reclaimed.
Fraser, Scott, and Brand, for them, argued—
1. Assuming that there was a clandestine marriage between Jane Pringle and James Crombie in 1805, the fair inference from the evidence is that when Jane Pringle and Francis Beattie, jun., left Dumfries together, the latter was quite ignorant of the alleged relationship between Pringle and Crombie.
2. This ignorance on Beattie's part continued during their residence in Carlisle, where they are proved to have lived as husband and wife, and up to and after their leaving for Canada in 1819. Therefore the marriage which took place between them in Montreal in 1822, in facie ecclesiæ, was, by the law of Lower Canada, as proved in this case, a lawful marriage to the effect of legitimating the issue, and enabling them to succeed to heritable property in Scotland.
3. By the Canadian law, the pursuer, Mrs Elizabeth Beattie or Thomson, though born prior to the ceremony in Montreal, is lawful issue per subsequens matrimonium.
4. Jane Pringle and James Crombie were never married. The proof of such alleged marriage only shows there was some irregular concubinal connection.
5. But if they were married they were afterwards divorced by decree of the Commissary Court of Edinburgh in 1819, a date prior to the Canadian marriage, and therefore there was no impediment to that marriage; aid the female pursuer was born in 1821, long subsequent to the decree of divorce.
6. The domicile of Francis Beattie, jun., and Jane Pringle is admitted to have been Canada, and therefore their status and that of their issue falls to be determined by the law of Canada, and as by that law the marriage was valid and the issue lawful, so in this country they are entitled to the legal rights of lawful issue.
7. The Act 1600, cap. 20, has no application, because it is merely local, and in its nature penal. And the case of Fenton v. Livingstone has no application, because it is clear that unless for the Act 1600, cap. 20, the Canadian marriage would be lawful and the issue of that marriage legitimate. The pursuers cited Story's Conflict of Laws, 6th ed., sections 29 and 30 and 117;2 Huber, Lib. 1, tit. 3., De Conflictu Legum, sec. 2; 1 Hertii, Opera, De Collis, sec. 4, art. 8, p. 123; Stair, More's Notes, p. 16; Little v. Smith, 9th Dec. 1845, 8 D. 265; Inhabitants of West Cambridge v. Inhabitants of Lexington, October 1823: 1 Pickering (Amer. Rep.), p. 506; Stair, 3. 3. 42.
Solicitor-General, Pattison, and A. Blair, for the defender, argued—
1. The proof shows that James Crombie and Jane Pringle were irregularly married in 1805. They were declared married persons by judgment of the Justice of Peace at Dumfries on 26th November 1805.
2. Of this marriage Francis Beattie, jun., was proved to have been aware when he left Dumfries for Carlisle, and subsequently for Canada, with Jane Pringle. He was therefore a “wilful, knowing adulterer.” Hence:—
3. The alleged marriage in Canada was bad, as having been celebrated between wilful, knowing adulterers; and this, both by the law of Scotland and by the law of Lower Canada, as proved in pursuers' own evidence.
4. The Canadian marriage is bad and the issue illegitimate, under the Act 1600, cap. 20. Francis Beattie, jun., having all along been in mala fide, that Act applies directly to the present case, the estate to which it is sought to give the pursuers a title being heritable estate situated in this country.
5. The pursuers are unlawful issue, on the authority of the case of Fenton v. Livingstone, as, though the Act 1600, cap. 20, did not apply, the marriage would be contrary to the public policy of Scotland, as also to the national morality. The defenders cited Act 1600, cap. 20; Hamilton 2,. Wyllie & Son, 26th May 1827, 5 Shaw, 71G; Broun v. Johnston, Berg. Con. Law Reports, p: 229; Fenton v. Livingstone, 1859, H. L, 3 M'Queen, p. 497; H. M. Ad. v. Sharpe or M'Fie, H. C., July 10, 1843, 1 Broun, 568; H. M. Ad. v. Langley, H. C., June 9, 1862, 4 Irvine, p. 190.
The Court unanimously adhered to the Lord Ordinary's interlocutor.
The
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Lord Curriehill concurred.
Lord Deas also concurred, observing that it was not necessary to decide the question that would arise if the Canadian marriage had been valid. That question was not solved by the principle of Fenton v. Livingstone. Nor was it solved by saying that such a marriage is contrary to general morality or national policy, for we recognise such a marriage, except when the party is named in the decree of divorce. The question is one which must be determined on much narrower considerations.
Lord Ardmillan also concurred.
Agent for Pursuers— John Walls, S.S.C.
Agent for Defender— John M'Cracken, S.S.C.